[Title 22 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2021 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          
          
          Title 22

Foreign Relations


________________________

Parts 1 to 299

                         Revised as of April 1, 2021

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2021
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



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

  Title 22:
          Chapter I--Department of State                             3
          Chapter II--Agency for International Development         791
  Finding Aids:
      Table of CFR Titles and Chapters........................    1099
      Alphabetical List of Agencies Appearing in the CFR......    1119
      List of CFR Sections Affected...........................    1129

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 22 CFR 1.1 refers to 
                       title 22, part 1, section 
                       1.

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

[[Page v]]



                               EXPLANATION

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

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

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

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
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HOW TO USE THE CODE OF FEDERAL REGULATIONS

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OMB CONTROL NUMBERS

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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 
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that volume.

[[Page vii]]

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    Oliver A. Potts,
    Director,
    Office of the Federal Register
    April 1, 2021







[[Page ix]]



                               THIS TITLE

    Title 22--Foreign Relations is composed of two volumes. The first 
volume, parts 1-299 contains Chapter I--Department of State regulations 
and Chapter II--Agency for International Development regulations. The 
second volume, part 300 to End is composed of Chapter III--Peace Corps; 
Chapter IV--International Joint Commission, United States and Canada; 
Chapter V--United States Agency for Global Media; Chapter VII--US 
International Development Finance Corporation; Chapter IX--Foreign 
Service Grievance Board; Chapter X--Inter-American Foundation; Chapter 
XI--International Boundary and Water Commission, United States and 
Mexico, United States Section; Chapter XII--United States International 
Development Cooperation Agency; Chapter XIII--Millennium Challenge 
Corporation; Chapter XIV--Foreign Service Labor Relations Board; Federal 
Labor Relations Authority; General Counsel of the Federal Labor 
Relations Authority; and the Foreign Service Impasse Disputes Panel; 
Chapter XV--African Development Foundation; Chapter XVI--Japan-United 
States Friendship Commission; and Chapter XVII--United States Institute 
of Peace. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of April 1, 2021.

    For this volume, Cheryl E. Sirofchuck 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 22--FOREIGN RELATIONS




                   (This book contains parts 1 to 299)

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

chapter i--Department of State..............................           1

chapter ii--Agency for International Development............         200

[[Page 3]]



                     CHAPTER I--DEPARTMENT OF STATE




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1               Insignia of rank............................           9
2               Protection of foreign dignitaries and other 
                    official personnel......................           9
3               Gifts and decorations from foreign 
                    governments.............................          11
3a              Acceptance of employment from foreign 
                    governments by members of the uniformed 
                    services................................          17
4               Notification of foreign official status.....          19
5               Organization................................          20
7

[Reserved]

9               Security information regulations............          22
9a              Security information regulations applicable 
                    to certain international energy 
                    programs; related material..............          29
9b              Regulations governing Department of State 
                    press building passes...................          31
                         SUBCHAPTER B--PERSONNEL
11              Appointment of Foreign Service officers.....          35
12              Complaints against employees by alleged 
                    creditors...............................          41
13              Personnel...................................          41
16              Foreign Service grievance system............          42
17              Overpayments from the Foreign Service 
                    Retirement and Disability Fund under the 
                    Foreign Service Retirement and 
                    Disability System (FSRDS) and the 
                    Foreign Service Pension System (FSPS)...          50
18              Regulations concerning post employment 
                    conflict of interest....................          52
19              Benefits for spouses and former spouses of 
                    participants in the Foreign Service 
                    retirement and disability system........          56
20              Benefits for certain former spouses.........          77

[[Page 4]]

21              Indemnification of employees................          81
                      SUBCHAPTER C--FEES AND FUNDS
22              Schedule of fees for consular services--
                    Department of State and Foreign Service.          83
23              Finance and accounting......................          88
                SUBCHAPTER D--CLAIMS AND STOLEN PROPERTY
33              Fishermen's Protective Act Guaranty Fund 
                    procedures under section 7..............          90
34              Debt collection.............................          94
35              Program fraud civil remedies................         104
                           SUBCHAPTER E--VISAS
40              Regulations pertaining to both nonimmigrants 
                    and immigrants under the Immigration and 
                    Nationality Act, as amended.............         121
41              Visas: Documentation of nonimmigrants under 
                    the Immigration and Nationality Act, as 
                    amended.................................         139
42              Visas: Documentation of immigrants under the 
                    Immigration and Nationality Act, as 
                    amended.................................         186
43-45

[Reserved]

46              Control of aliens departing from the United 
                    States..................................         214
47

[Reserved]

                 SUBCHAPTER F--NATIONALITY AND PASSPORTS
50              Nationality procedures......................         220
51              Passports...................................         225
53              Passport requirement and exceptions.........         242
              SUBCHAPTER G--PUBLIC DIPLOMACY AND EXCHANGES
61              World-wide free flow of audio-visual 
                    materials...............................         245
62              Exchange visitor program....................         248
63              Payments to and on behalf of participants in 
                    the international educational and 
                    cultural exchange program...............         316
64              Participation by Federal employees in 
                    cultural exchange programs of foreign 
                    countries...............................         321
65              Foreign students............................         323
66              Availability of the records of the National 
                    Endowment for Democracy.................         324

[[Page 5]]

67              Organization of the National Endowment for 
                    Democracy...............................         332
 SUBCHAPTER H--PROTECTION AND WELFARE OF AMERICANS, THEIR PROPERTY AND 
                                 ESTATES
71              Protection and welfare of citizens and their 
                    property................................         337
72              Deaths and estates..........................         340
                    SUBCHAPTER I--SHIPPING AND SEAMEN
89              Prohibitions on longshore work by U.S. 
                    nationals...............................         349
                SUBCHAPTER J--LEGAL AND RELATED SERVICES
91              Import controls.............................         358
92              Notarial and related services...............         358
93              Service on foreign state....................         387
94              International child abduction...............         388
95              Implementation of torture convention in 
                    extradition cases.......................         391
96              Intercountry adoption accreditation of 
                    agencies and approval of persons........         392
97              Issuance of adoption certificates and 
                    custody declarations in Hague Convention 
                    adoption cases..........................         439
98              Intercountry adoption--Convention record 
                    preservation............................         442
99              Reporting on Convention and non-Convention 
                    adoptions of emigrating children........         443
               SUBCHAPTER K--ECONOMIC AND OTHER FUNCTIONS
101             Economic and commercial functions...........         445
103             Regulations for implementation of the 
                    Chemical Weapons Convention and the 
                    Chemical Weapons Convention 
                    Implementation Act of 1998 on the taking 
                    of samples and on enforcement of 
                    requirements concerning recordkeeping 
                    and inspections.........................         446
104             International trafficking in persons: 
                    Interagency coordination of activities 
                    and sharing of information..............         453
                         SUBCHAPTER L [RESERVED]
         SUBCHAPTER M--INTERNATIONAL TRAFFIC IN ARMS REGULATIONS
120             Purpose and definitions.....................         454
121             The United States munitions list............         469
122             Registration of manufacturers and exporters.         518
123             Licenses for the export and temporary import 
                    of defense articles.....................         522

[[Page 6]]

124             Agreements, off-shore procurement, and other 
                    defense services........................         538
125             Licenses for the export of technical data 
                    and classified defense articles.........         549
126             General policies and provisions.............         555
127             Violations and penalties....................         598
128             Administrative procedures...................         605
129             Registration and licensing of brokers.......         611
130             Political contributions, fees and 
                    commissions.............................         619
                       SUBCHAPTER N--MISCELLANEOUS
131             Certificates of authentication..............         625
132             Books, maps, newspapers, etc................         625
133             Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         625
134             Equal Access to Justice Act; implementation.         631
136             Personal property disposition at posts 
                    abroad..................................         637
138             Restrictions on lobbying....................         640
139

[Reserved]

140             Prohibition on assistance to drug 
                    traffickers.............................         652
                       SUBCHAPTER O--CIVIL RIGHTS
141             Nondiscrimination in federally-assisted 
                    programs of the Department of State--
                    effectuation of title VI of the Civil 
                    Rights Act of 1964......................         659
142             Nondiscrimination on the basis of handicap 
                    in programs or activities receiving 
                    Federal financial assistance............         668
143             Nondiscrimination on the basis of age in 
                    programs or activities receiving Federal 
                    financial assistance....................         681
144             Enforcement of non-discrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the United 
                    States Department of State..............         686
146             Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         692

[[Page 7]]

147             Information and communication technology....         709
           SUBCHAPTER P--DIPLOMATIC PRIVILEGES AND IMMUNITIES
151             Compulsory liability insurance for 
                    diplomatic missions and personnel.......         712
                 SUBCHAPTER Q--ENVIRONMENTAL PROTECTION
161             Regulations for implementation of the 
                    National Environmental Policy Act (NEPA)         715
                   SUBCHAPTER R--ACCESS TO INFORMATION
171             Public access to information................         728
172             Service of process; production or disclosure 
                    of official information in response to 
                    court orders, subpoenas, notices of 
                    depositions, requests for admissions, 
                    interrogatories, or similar requests or 
                    demands in connection with Federal or 
                    State litigation; expert testimony......         747
173             Availability of public diplomacy program 
                    material in the United States...........         752
                 SUBCHAPTER S--INTERNATIONAL AGREEMENTS
181             Coordination, reporting and publication of 
                    international agreements................         755
                      SUBCHAPTER T--HOSTAGE RELIEF
191             Hostage relief assistance...................         763
192             Victims of terrorism compensation...........         770
           SUBCHAPTER U--INTERNATIONAL COMMERCIAL ARBITRATION
194             Inter-American Commercial Arbitration 
                    Commission rules of procedure...........         782
196             Thomas R. Pickering Foreign Affairs/Graduate 
                    Foreign Affairs Fellowship Program......         789
197-199

[Reserved]

[[Page 9]]



                          SUBCHAPTER A_GENERAL





PART 1_INSIGNIA OF RANK--Table of Contents



Sec.
1.1 Office of the Secretary of State.
1.2 Office of the Deputy Secretary of State.
1.3 Office of the Under Secretaries of State.

    Authority: Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658.



Sec.  1.1  Office of the Secretary of State.

    The official flag indicative of the office of Secretary of State 
shall be as follows: On a blue rectangular field a white disk bearing 
the official coat of arms of the United States adopted by the act of 
June 20, 1782, in proper colors. In each of the four corners a white 
five-pointed star with one point upward. The colors and automobile flag 
to be the same design, adding a white fringe. For the colors a cord and 
tassel of blue and white to be added. The sizes to be in accordance with 
military and naval customs.

[22 FR 10788, Dec. 27, 1957]



Sec.  1.2  Office of the Deputy Secretary of State.

    The official flag indicative of the office of the Deputy Secretary 
of State shall be as follows: On a white rectangular field a blue disk 
bearing the official coat of arms of the United States adopted by act of 
June 20, 1782, in proper colors. In each of the four corners a five-
pointed star with one point upward. The colors and automobile flag to be 
the same design, adding a blue fringe. For the colors a cord and tassel 
of white in accordance with military and naval customs.

[38 FR 30258, Nov. 2, 1973]



Sec.  1.3  Office of the Under Secretaries of State.

    The official flag indicative of the office of the Under Secretaries 
of State shall be as follows: On a red rectangular field a white disk 
bearing the official coat of arms of the United States adopted by act of 
June 20, 1782, in proper colors. In each of the four corners a white 
five-pointed star with one point upward. The colors and automobile flag 
to be the same design, adding a white fringe. For the colors a cord and 
tassel of white and red to be added. The sizes to be in accordance with 
military and naval customs.

[38 FR 30258, Nov. 2, 1973]



PART 2_PROTECTION OF FOREIGN DIGNITARIES AND OTHER OFFICIAL PERSONNEL--
Table of Contents



Sec.
2.1 Designation of personnel to carry firearms and exercise appropriate 
          power of arrest.
2.2 Purpose.
2.3 Notification of foreign officials.
2.4 Designation of official guests.
2.5 Records.



Sec.  2.1  Designation of personnel to carry firearms and exercise 
appropriate power of arrest.

    (a) The Deputy Assistant Secretary of State for Security is 
authorized to designate certain employees of the Department of State and 
the Foreign Service, as well as employees of other departments and 
agencies detailed to and under the supervision and control of the 
Department of State, as Security Officers, as follows.
    (1) Persons so designated shall be authorized to carry firearms when 
engaged in the performance of the duties prescribed in section (1) of 
the act of June 28, 1955, 69 Stat. 188, as amended. No person shall be 
so designated unless he has either qualified in the use of firearms in 
accordance with standards established by the Deputy Assistant Secretary 
of State for Security, or in accordance with standards established by 
the department or agency from which he is detailed.
    (2) Persons so designated shall also be authorized, when engaged in 
the performance of duties prescribed in section (1) of the act of June 
28, 1955, 69 Stat. 188, as amended, to arrest without warrant and 
deliver into custody any person violating the provisions of section 111 
or 112 of title 18, United States Code, in their presence or if they 
have reasonable grounds to believe that the person to be arrested has

[[Page 10]]

committed or is committing such felony.
    (b) When the Under Secretary of State for Management determines that 
it is necessary, persons designated under paragraph (a) of this section 
shall be authorized to provide protection to an individual who has been 
designated by the President to serve as Secretary of State, prior to his 
appointment, or to a departing Secretary of State. In providing such 
protection, they are authorized to exercise the authorities described in 
paragraphs (a) (1) and (2) of section. Such protection shall be for the 
period or periods determined necessary by the Under Secretary of State 
for Management, except that in the case of a departing Secretary of 
State, the period of protection under this paragraph shall in no event 
exceed 30 calendar days from the date of termination of that 
individual's incumbency as Secretary of State.
    (c) When the Under Secretary of State for Management determines that 
it is necessary, persons designated under paragraph (a) of this section 
shall be authorized to provide protection to a departing United States 
Representative to the United Nations. In providing such protection, they 
are authorized to exercise the authorities described in paragraphs (a) 
(1) and (2) of this section. Such protection shall be for the period or 
periods determined necessary by the Under Secretary of State for 
Management, except that the period of protection under this paragraph 
shall in no event exceed 30 calendar days from the date of termination 
of that individual's incumbency as United States Representative to the 
United Nations.

(Sec. 4, 63 Stat. 111, as amended, sec. 1, 69 Stat. 188; 22 U.S.C. 2658, 
2666)

[29 FR 15571, Nov. 20, 1964, as amended at 47 FR 30480, July 14, 1982; 
50 FR 14379, Apr. 12, 1985]



Sec.  2.2  Purpose.

    Section 1116(b)(2) of title 18 of the United States Code, as added 
by Pub. L. 92-539, An Act for the Protection of Foreign Officials and 
Official Guests of the United States (86 Stat. 1071), defines the term 
``foreign official'' for purposes of that Act as ``any person of a 
foreign nationality who is duly notified to the United States as an 
officer or employee of a foreign government or international 
organization, and who is in the United States on official business, and 
any member of his family whose presence in the United States is in 
connection with the presence of such officer or employee.'' Section 
1116(c)(4) of the same Act defines the term ``official guest'' for the 
purposes of that Act as ``a citizen or national of a foreign country 
present in the United States as an official guest of the Government of 
the United States pursuant to designation as such by the Secretary of 
State.'' It is the purpose of this regulation to specify the officer of 
the Department of State who shall be responsible for receiving 
notification of foreign officials under the Act and determining whether 
persons are ``duly notified'' to the United States and who shall be 
responsible for processing official guest designations by the Secretary 
of State.

(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26, 1949, as 
amended (22 U.S.C. 2658))

[37 FR 24817, Nov. 22, 1972]



Sec.  2.3  Notification of foreign officials.

    (a) Any notification of a foreign official for purposes of section 
1116(b)(2) of Title 18 of the United States Code shall be directed by 
the foreign government or international organization concerned to the 
Chief of Protocol, Department of State, Washington, DC 20520. For 
persons normally accredited to the United States in diplomatic or 
consular capacities and also for persons normally accredited to the 
United Nations and other international organizations and in turn 
notified to the Department of State, the procedure for placing a person 
in the statutory category of being ``duly notified to the United 
States'' shall be the current procedure for accreditation, with 
notification in turn when applicable. The Chief of the Office of 
Protocol will place on the roster of persons ``duly notified to the 
United States'' the names of all persons currently accredited and, when 
applicable, notified in turn, and will maintain the roster as part of 
the official files of the Department of State adding to and deleting 
therefrom as changes in accreditations occur.

[[Page 11]]

    (b) For those persons not normally accredited, the Chief of Protocol 
shall determine upon receipt of notification, by letter from the foreign 
government or international organization concerned, whether any person 
who is the subject of such a notification has been duly notified under 
the Act. Any inquiries by law enforcement officers or other persons as 
to whether a person has been duly notified shall be directed to the 
Chief of Protocol. The determination of the Chief of Protocol that a 
person has been duly notified is final.

(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26, 1949, as 
amended (22 U.S.C. 2658))

[37 FR 24818, Nov. 22, 1972]



Sec.  2.4  Designation of official guests.

    The Chief of Protocol shall also maintain a roster of persons 
designated by the Secretary of State as official guests. Any inquiries 
by law enforcement officers or other persons as to whether a person has 
been so designated shall be directed to the Chief of Protocol. The 
designation of a person as an official guest is final. Pursuant to 
section 2658 of title 22 of the U.S.C., the authority of the Secretary 
of State to perform the function of designation of official guests is 
hereby delegated to the Chief of Protocol.

(22 U.S.C. 2658)

[45 FR 55716, Aug. 21, 1980]



Sec.  2.5  Records.

    The Chief of Protocol shall maintain as a part of the official files 
of the Department of State a cumulative roster of all persons who have 
been duly notified as foreign officials or designated as official guests 
under this part. The roster will reflect the name, position, 
nationality, and foreign government or international organization 
concerned or purpose of visit as an official guest and reflect the date 
the person was accorded recognition as being ``duly notified to the 
United States'' or designated as an official guest and the date, if any, 
of termination of such status.

(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26, 1949, as 
amended (22 U.S.C. 2658))

[37 FR 24818, Nov. 22, 1972]



PART 3_GIFTS AND DECORATIONS FROM FOREIGN GOVERNMENTS--Table of Contents



Sec.
3.1 Purpose.
3.2 Authority.
3.3 Definitions.
3.4 Restriction on acceptance of gifts and decorations.
3.5 Designation of officials and offices responsible for administration 
          of foreign gifts and decorations.
3.6 Procedure to be followed by employees in depositing gifts of more 
          than minimal value and reporting acceptance of travel or 
          travel expenses.
3.7 Decorations.
3.8 Approval of retention of gifts or decorations with employing agency 
          for official use.
3.9 Disposal of gifts and decorations which become the property of the 
          United States.
3.10 Enforcement.
3.11 Responsibility of chief of mission to inform host government of 
          restrictions on employees' receipt of gifts and decorations.
3.12 Exemption of grants and other foreign government assistance in 
          cultural exchange programs from coverage of foreign gifts and 
          decorations legislation.

    Authority: Sec. 515(a)(1), 91 Stat. 862, amending 5 U.S.C. 7342 
(1976).

    Source: 45 FR 80819, Dec. 8, 1980, unless otherwise noted.



Sec.  3.1  Purpose.

    These regulations provide basic standards for employees of the 
Department of State, the United States International Development 
Cooperation Agency (IDCA), the Agency for International Development 
(AID), and the International Communication Agency (USICA), their spouses 
(unless separated) and their dependents to accept and retain gifts and 
decorations from foreign governments.



Sec.  3.2  Authority.

    (a) Section 515(a)(1) of the Foreign Relations Authorization Act of 
1978 (91 Stat. 862-866), approved August 17, 1977,

[[Page 12]]

(hereafter referred to as ``the Act'') amended section 7342 of title 5, 
U.S. Code (1976), making substantial changes in the law relating to the 
acceptance and retention of gifts and decorations from foreign 
governments.
    (b) 5 U.S.C. 7342(g) authorizes each employing agency to prescribe 
regulations as necessary to carry out the new law.



Sec.  3.3  Definitions.

    When used in this part, the following terms have the meanings 
indicated:
    (a) Employee means (1) an officer or employee of the Department, 
AID, IDCA, or USICA, including an expert or consultant, however 
appointed, and (2) a spouse (unless separated) or a dependent of such a 
person, as defined in section 152 of the Internal Revenue Code of 1954 
(26 U.S.C. 152).
    (b) Foreign government means: (1) Any unit of foreign governmental 
authority, including any foreign national, State, local, or municipal 
government; (2) any international or multinational organization whose 
membership is composed of any unit of foreign government as described in 
paragraph (b)(1) of this section; (3) any agent or representative of any 
such unit or organization, while acting as such;
    (c) Gift means a tangible or intangible present (other than a 
decoration) tendered by, or received from, a foreign government;
    (d) Decoration means an order, device, medal, badge, insignia, 
emblem or award tendered by, or received from, a foreign government;
    (e) Minimal value means retail value in the United States at the 
time of acceptance of $100 or less, except that on January 1, 1981, and 
at 3-year intervals thereafter, ``minimal value'' is to be redefined in 
regulations prescribed by the Administrator of General Services, in 
consultation with the Secretary of State, to reflect changes in the 
consumer price index for the immediately preceding 3-year period.



Sec.  3.4  Restriction on acceptance of gifts and decorations.

    (a) An employee is prohibited from requesting or otherwise 
encouraging the tender of a gift or decoration from a foreign 
government. An employee is also prohibited from accepting a gift or 
decoration from a foreign government, except in accordance with these 
regulations.
    (b) An employee may accept and retain a gift of minimal value 
tendered and received as a souvenir or mark of courtesy, subject, 
however, to the following restrictions--
    (1) Where more than one tangible item is included in a single 
presentation, the entire presentation shall be considered as one gift, 
and the aggregate value of all items taken together must not exceed 
``minimal value''.
    (2) The donee is responsible for determining that a gift is of 
minimal value in the United States at the time of acceptance. However, 
should any dispute result from a difference of opinion concerning the 
value of a gift, the employing agency will secure the services of an 
outside appraiser to establish whether the gift is one of ``minimal 
value''. If, after an appraisal has been made, it is established that 
the value of the gift in question is $200 or more at retail in the 
United States, the donee will bear the costs of the appraisal. If, 
however, the appraised value is established to be less than $200, the 
employing agency will bear the costs.
    (c) An employee may accept a gift of more than minimal value when 
(1) such gift is in the nature of an educational scholarship or medical 
treatment, or (2) it appears that to refuse the gift would likely cause 
offense or embarrassment or otherwise adversely affect the foreign 
relations of the United States, except that a tangible gift of more than 
minimal value is deemed to have been accepted on behalf of the United 
States and, upon acceptance, shall become the property of the United 
States.
    (d) An employee may accept gifts of travel or expenses for travel 
taking place entirely outside the United States (such as transportation, 
food, and lodging) of more than minimal value if such acceptance is 
appropriate, consistent with the interests of the United States, and 
permitted by the employing agency. Except where the employing agency has 
specific interests which may be favorably affected by employee travel 
wholly outside the

[[Page 13]]

United States, even though it would not normally authorize its employees 
to engage in such travel, the standards normally applied to determine 
when proposed travel will be in the best interests of the employing 
agency and of the United States Government shall be applied in approving 
acceptance of travel or travel expenses offered by a foreign government.
    (1) There are two circumstances under which employees may accept 
gifts of travel or expenses:
    (i) When the employee is issued official travel orders placing him 
or her in the position of accepting travel or travel expenses offered by 
a foreign government which are directly related to the authorized 
purpose of the travel; or
    (ii) When the employee's travel orders specifically anticipate the 
acceptance of additional travel and travel expenses incident to the 
authorized travel.
    (2) When an employee is traveling under circumstances described in 
paragraph (d)(1)(i) of this section, that is, without specific 
instructions authorizing acceptance of additional travel expenses from a 
foreign government, the employee must file a report with the employing 
angency under the procedures prescribed in Sec.  3.6.
    (e) Since tangible gifts of more than minimal value may not lawfully 
become the personal property of the donee, all supervisory officials 
shall, in advising employees of their responsibilities under the 
regulations, impress upon them their obligation to decline acceptance of 
such gifts, whenever possible, at the time they are offered, or to 
return them if they have been sent or delivered without a prior offer. 
All practical measures, such as periodic briefings, shall be taken to 
minimize the number of gifts which employees must deposit and which thus 
become subject to disposal as provided by law and regulation. Employees 
should not accept gifts of more than minimal value on the assumption 
that refusal would be likely to ``cause offense or embarrassment or 
otherwise adversely affect the foreign relations of the United States''. 
In many instances it should be possible, by explanation of the 
prohibition against an employee's retention of such gifts, to avoid 
consequences of acceptance, including possible return of the gift to the 
donor. Refusal of the gift at the inception should typically be regarded 
as in the interest both of the foreign government donor and the U.S. 
Government.



Sec.  3.5  Designation of officials and offices responsible for administration 
of foreign gifts and decorations.

    (a) The Act effects a significant degree of decentralization of 
administration relative to the disposal of foreign gifts and decorations 
which become U.S. Government property. Each agency is now responsible 
for receiving from its employees deposits of foreign gifts of more than 
minimal value, as well as of foreign decorations not meeting the 
statutory criteria for retention by the recipient. The agency is also 
responsible for disposing of this property by return to the donor, for 
retaining it in the agency if official use of it is approved, for 
reporting to the General Services Administration within 30 calendar days 
after deposit items neither disposed of nor retained, and for assuming 
custody, proper care and handling of such property pending removal from 
that custody pursuant to disposal arrangements by the General Services 
Administration. The Secretary of State, however, is made responsible for 
providing guidance to other executive agencies in the development of 
their own regulations to implement the Act, as well as for the annual 
publication of lists of all gifts of more than minimal value deposited 
by Federal employees during the preceding year. [See Sec.  3.5(c).] 
Authority for the discharge of the Secretary's responsibilities is 
delegated by these regulations to the Chief of Protocol.
    (b) The Office of the Chief of Protocol retains primary 
responsibility for administration of the Act within the Department of 
State. That Office will, however, serve as the depository only for those 
foreign gifts and decorations which are turned in by State Department 
employees. The Director of Personnel Services of the USICA will have 
responsibility for administration of the Act within that agency and will 
serve as the depository of foreign gifts and decorations. Employees of 
the other

[[Page 14]]

foreign affairs agencies must deposit with their respective agencies any 
gifts or decorations deposit of which is required by law.
    (c) Any questions concerning the implementation of these regulations 
or interpretation of the law should be directed to the following:
    (1) For the Department of State, to the Office of Protocol or to the 
Office of the Assistant Legal Adviser for Management, as appropriate;
    (2) For IDCA, to the Office of the General Counsel;
    (3) For AID, to the Assistant General Counsel for Employee and 
Public Affairs; and
    (4) For USICA, to the General Counsel.



Sec.  3.6  Procedure to be followed by employees in depositing gifts of more 
than minimal value and reporting acceptance of travel or travel expenses.

    (a) An employee who has accepted a tangible gift of more than 
minimal value shall, within 60 days after acceptance, relinquish it to 
the designated depository office for the employing agency for disposal 
or, with the approval of that office, deposit it for official use at a 
designated location in the employing agency or at a specified Foreign 
Service post. The designated depository offices are:
    (1) For the Department of State, the Office of Protocol;
    (2) For IDCA, the General Services Division of the Office of 
Management Planning in AID;
    (3) For AID, the General Services Division of the Office of 
Management Planning; and
    (4) For USICA, the Office of Personnel Services.
    (b) At the time that an employee deposits gifts of more than minimal 
value for disposal or for official use pursuant to paragraph (a) of this 
section, or within 30 days after accepting a gift of travel or travel 
expenses as provided in Sec.  3.4(d) (unless the gift of such travel or 
travel expenses has been accepted in accordance with specific 
instructions from the Department or agency), the employee shall file a 
statement with the designated depository office with the following 
information:
    (1) For each tangible gift reported:
    (i) The name and position of the employee;
    (ii) A brief description of the gift and the circumstances 
justifying acceptance;
    (iii) The identity of the foreign government and the name and 
position of the individual who presented the gift;
    (iv) The date of acceptance of the gift;
    (v) The donee's best estimate in specific dollar terms of the value 
of the gift in the United States at the time of acceptance; and
    (vi) Disposition or current location of the gift. (For State 
Department employees, forms for this purpose are available in the Office 
of Protocol.)
    (2) For each gift of travel or travel expenses:
    (i) The name and position of the employee;
    (ii) A brief description of the gift and the circumstances 
justifying acceptance; and
    (iii) The identity of the foreign government and the name and 
position of the individual who presented the gift.
    (c) The information contained in the statements called for in 
paragraph (b) of this section is needed to comply with the statutory 
requirement that, not later than Janaury 31 of each year, the Secretary 
of State publish in the Federal Register a comprehensive listing of all 
such statements filed by Federal employees concerning gifts of more than 
minimal value received by them during the preceding year.



Sec.  3.7  Decorations.

    (a) Decorations tendered in recognition of active field service in 
time of combat operations or awarded for other outstanding or unusually 
meritorious performance may be accepted, retained, and worn by an 
employee, subject to the approval of the employing agency. Without such 
approval, the decoration is deemed to have been accepted on behalf of 
the United States and, like tangible gifts of more than minimal value, 
must be deposited by the employee with the designated depository office 
for the employing agency within sixty days after acceptance, for 
retention for official use or for disposal in accordance with Sec.  3.9.

[[Page 15]]

    (b) The decision as to whether a decoration has been awarded for 
outstanding or unusually meritorious performance will be made:
    (1) For the Department of State, by the supervising Assistant 
Secretary of State or comparable official, except that, in the case of a 
decoration awarded to an Assistant Secretary or other officer of 
comparable or higher rank, the decision shall be made by the Office of 
Protocol;
    (2) For IDCA, by the Assistant Director for Administration;
    (3) For AID, by the Director of Personnel Management; and
    (4) For USICA, by the Supervising Associate Director, the General 
Counsel, or the Director of the Office of Congressional and Public 
Liaison (for domestic employees), and by the Director of Area Offices 
(for overseas employees).
    (c) To justify an affirmative decision, a statement from the foreign 
government, preferably in the form of a citation which shows the 
specific basis for the tender of the award, should be supplied. An 
employee who has received or been tendered a decoration should forward 
to the designated depository office of the employing agency a request 
for review of the case. This request should contain a statement of 
circumstances of the award and such documentation from the foreign 
government as has accompanied it. The depository office will obtain the 
decision of the cognizant office as to whether the award meets the 
statutory criteria and thus whether the decoration may be retained and 
worn. Pending receipt of that decision, the decoration should remain in 
the custody of the recipient.



Sec.  3.8  Approval of retention of gifts or decorations with employing agency 
for official use.

    (a) At the request of an overseas post or an office within the 
employing agency, a gift or decoration deemed to have been accepted on 
behalf of the United States may be retained for official use. Such 
retention should be approved:
    (1) For the Department of State, by the Chief of Protocol;
    (2) For IDCA, by AID's Director of Management Operations;
    (3) For AID, by the Director of Management Operations; and
    (4) For USICA, by the Associate Director for Management.

However, to qualify for such approval, the gift or decoration should be 
an item which can be used in the normal conduct of agency business, such 
as a rug or a tea service, or an art object meriting display, such as a 
painting or sculpture. Personal gift items, such as wristwatches, 
jewelry, or wearing apparel, should not be regarded as suitable for 
``official use''. Only under unusual circumstances will retention of a 
decoration for official use be authorized. Every effort should be made 
to place each ``official use'' item in a location that will afford the 
largest number of employees, and, if feasible, members of the public, 
the maximum opportunity to receive the benefit of its display, provided 
the security of the location is adequate.
    (b) Items approved for official use must be accounted for and 
safeguarded as Federal property at all times under standard Federal 
property management procedures. Within 30 days after the official use of 
a gift has been terminated, the gift or decoration shall be deposited 
with the designated depository office of the employing agency to be held 
pending completion of disposal arrangements by the General Services 
Administration.



Sec.  3.9  Disposal of gifts and decorations which become the property 
of the United States.

    (a) Gifts and decorations which have been reported to an employing 
agency shall either be returned to the donor or kept in safe storage 
pending receipt of instructions from the General Services Administration 
for transfer, donation or other disposal under the provisions of the 
Federal Property and Administrative Services Act of 1949, 63 Stat. 377, 
as amended, and the Federal Property Management Regulations (41 CFR part 
101-49). The employing agency shall examine each gift or decoration and 
the circumstances surrounding its donation and assess whether any 
adverse effect upon the foreign relations of the United States might 
result from a return of the gift (or decoration) to the donor, which 
shall be the preferred

[[Page 16]]

means of disposal. If this is not deemed feasible, the employing agency 
is required by GSA regulations to report deposit of the gift or 
decoration within 30 calendar days, using Standard Form 120, Report of 
Excess Personal Property and, as necessary, Standard Form 120A, 
Continuation Sheet, and citing section 7342 of title 5, U.S. Code 
(1976), on the reporting document. Such reports shall be submitted to 
the General Services Administration, Washington National Capital Region 
(WDPO), Attention: Federal Property Resources Service, Seventh and D 
Streets, SW., Washington, DC 20407.
    (b) No gift or decoration deposited with the General Services 
Administration for disposal may be sold without the approval of the 
Secretary of State, upon a determination that the sale will not 
adversely affect the foreign relations of the United States. When 
depositing gifts or decorations with the designated depository office of 
their employing agency, employees may indicate their interest in 
participating in any subsequent sale of the items by the Government. 
Before gifts and decorations may be considered for sale by the General 
Services Administration, however, they must first have been offered for 
transfer to Federal agencies and for donation to the States. 
Consequently, employees should understand that there is no assurance 
that an item will be offered for sale, or, if so offered, that it will 
be feasible for an employee to participate in the sale. Employees are 
reminded in this connection that the primary aim of the Act is to 
discourage employees' acceptance of gifts of more than minimal value.



Sec.  3.10  Enforcement.

    (a) Each employing agency is responsible under the Act for reporting 
to the Attorney General cases in which there is reason to believe that 
one of its employees has violated the Act. The Attorney General in turn 
may file a civil action in any United States District Court against any 
Federal employee who has knowingly solicited or accepted a gift from a 
foreign government in violation of the Act, or who has failed to deposit 
or report such gift, as an Act required by the Act. In such case, the 
court may assess a maximum penality of the retail value of a gift 
improperly solicited or received, plus $5,000.
    (b) Supervisory officials at all levels within employing agencies 
shall be responsible for providing periodic reorientation of all 
employees under their supervision on the basic features of the Act and 
these regulations, and for ensuring that those employees observe the 
requirements for timely reporting and deposit of any gifts of more than 
minimal value they may have accepted.
    (c) Employees are advised of the following actions which may result 
from failure to comply with the requirements of the Act and these 
regulations:
    (1) Any supervisor who has substantial reason to believe that an 
employee under his or her supervision has violated the reporting or 
other compliance provisions of the Act shall report the facts and 
circumstances in writing to the senior official in charge of 
administration within the cognizant bureau or office or at the post 
abroad. If that official upon investigation decides that an employee who 
is the donee of a gift or is the recipient of travel or travel expenses 
has, through actions within the employee's control, failed to comply 
with the procedures established by the Act and these regulations, the 
case shall be referred to the Attorney General for appropriate action.
    (2) In cases of confirmed evidence of a violation, whether or not 
such violation results in the taking of action by the Attorney General, 
the senior administrative official referred to in paragraph (c)(1) of 
this section as responsible for forwarding a violation report to the 
Attorney General shall institute appropriate disciplinary action against 
an employee who has failed to (i) Deposit tangible gifts within 60 days 
after acceptance, (ii) account properly for the acceptance of travel 
expenses or (iii) comply with the Act's requirements respecting disposal 
of gifts and decorations retained for official use.
    (3) In cases where there is confirmed evidence of a violation, but 
no evidence that the violation was willful on the part of the employee, 
the senior administrative official referred to in paragraph (c)(1) of 
this section shall institute appropriate disciplinary action of a lesser 
degree than that called for in

[[Page 17]]

paragraph (c)(2) of this section in order to deter future violations by 
the same or another employee.



Sec.  3.11  Responsibility of chief of mission to inform host government 
of restrictions on employees' receipt of gifts and decorations.

    A special provision of the Act requires the President to direct 
every chief of a United States diplomatic mission to inform the host 
government that it is a general policy of the United States Government 
to prohibit its employees from receiving gifts of more than minimal 
value or decorations that have not been tendered ``in recognition of 
active field service in time of combat operations or awarded for other 
outstanding or unusually meritorious performance.'' Accordingly, all 
Chiefs of Mission shall in January of each year conduct a thorough and 
explicit program of orientation aimed at appropriate officials of the 
host government concerning the operation of the Act.



Sec.  3.12  Exemption of grants and other foreign government assistance 
in cultural exchange programs from coverage of foreign gifts 
and decorations legislation.

    The Act specifically excludes from its application grants and other 
forms of assistance ``to which section 108A of the Mutual Educational 
and Cultural Exchange Act of 1961 applies''. See 22 U.S.C. 2558 (a) and 
(b) for the terms and conditions under which Congress consents to the 
acceptance by a Federal employee of grants and other forms of assistance 
provided by a foreign government to facilitate the participation of such 
employee in a cultural exchange.



PART 3a_ACCEPTANCE OF EMPLOYMENT FROM FOREIGN GOVERNMENTS 
BY MEMBERS OF THE UNIFORMED SERVICES--Table of Contents



Sec.
3a.1 Definitions.
3a.2 Requirement for approval of foreign government employment.
3a.3 Authority to approve or disapprove proposed foreign government 
          employment.
3a.4 Procedure for requesting approval.
3a.5 Basis for approval or disapproval.
3a.6 Notification of approval.
3a.7 Notification of disapproval and reconsideration.
3a.8 Change in status.

    Authority: Sec. 509, 91 Stat. 859 (37 U.S.C. 801 Note); sec. 4, as 
amended, 63 Stat. 111 (22 U.S.C. 2658).

    Source: 43 FR 55393, Nov. 28, 1978, unless otherwise noted.



Sec.  3a.1  Definitions.

    For purposes of this part--
    (a) Applicant means any person who requests approval under this part 
to accept any civil employment (and compensation therefor) from a 
foreign government and who is: (1) Any retired member of the uniformed 
services;
    (2) Any member of a Reserve component of the Armed Forces; or
    (3) Any member of the commissioned Reserve Corps of the Public 
Health Service.

The term ``applicant'' also includes persons described in paragraph 
(a)(1), (2), or (3) of this section, who have already accepted foreign 
government employment and are requesting approval under this part to 
continue such employment.
    (b) Uniformed services means the Armed Forces, the commissioned 
Regular and Reserve Corps of the Public Health Service, and the 
commissioned corps of the National Oceanic and Atmospheric 
Administration.
    (c) Armed Forces means the Army, Navy, Air Force, Marine Corps, and 
Coast Guard.
    (d) Secretary concerned means: (1) The Secretary of the Army, with 
respect to retired members of the Army and members of the Army Reserve;
    (2) The Secretary of the Navy, with respect to retired members of 
the Navy and the Marine Corps, members of the Navy and Marine Corps 
Reserves, and retired members of the Coast Guard and members of the 
Coast Guard Reserve when the Coast Guard is operating as a service in 
the Navy;
    (3) The Secretary of the Air Force, with respect to retired members 
of the Air Force and members of the Air Force Reserve;
    (4) The Secretary of Transportation, with respect to retired members 
of the Coast Guard and members of the Coast

[[Page 18]]

Guard Reserve when the Coast Guard is not operating as a service in the 
Navy;
    (5) The Secretary of Commerce, with respect to retired members of 
the commissioned corps of the National Oceanic and Atmospheric 
Administration; and
    (6) The Secretary of Health, Education, and Welfare, with respect to 
retired members of the commissioned Regular Corps of the Public Health 
Service and members of the commissioned Reserve Corps of the Public 
Health Service.



Sec.  3a.2  Requirement for approval of foreign government employment.

    (a) The United States Constitution (Article I, section 9, clause 8) 
prohibits the acceptance of civil employment with a foreign government 
by an officer of the United States without the consent of Congress. 
Congress has consented to the acceptance of civil employment (and 
compensation therefor) by any person described in Sec.  3a.1(b) subject 
to the approval of the Secretary concerned and the Secretary of State 
(37 U.S.C. 801, Note). Civil employment with a foreign government may 
not be accepted without such approval by any person so described.
    (b) The Secretary of State has no authority to approve employment 
with a foreign government by any officer of the United States other than 
a person described in Sec.  3a.1(a). The acceptance of employment with a 
foreign government by any other officer of the United States remains 
subject to the constitutional prohibition described in paragraph (a) of 
this section.
    (c) Any person described in Sec.  3a.1(a) who accepts employment 
with a foreign government without the approval required by this section 
or otherwise obtaining the consent of Congress is subject to forfeiture 
of retired pay to the extent of his or her compensation from the foreign 
government, according to the Comptroller General of the United States 
(44 Comp. Gen. 139 (1964)). This forfeiture is in addition to any other 
penalty which may be imposed under law or regulation. \1\
---------------------------------------------------------------------------

    \1\ Approval under this part does not constitute an exception to the 
provisions of the Immigration and Nationality Act concerning loss of 
United States citizenship, for example, by becoming a citizen of or 
taking an oath of allegiance to another country. See 8 U.S.C. 1481 et 
seq.
---------------------------------------------------------------------------



Sec.  3a.3  Authority to approve or disapprove proposed 
foreign government employment.

    The Director, Bureau of Politico-Military Affairs, is authorized to 
approve or disapprove any request by an applicant for approval under 
this part to accept civil employment (and compensation therefor) from a 
foreign government. The Director may delegate this authority within the 
Bureau of Politico-Military Affairs, Department of State.



Sec.  3a.4  Procedure for requesting approval.

    (a) An applicant must submit a request for approval of foreign 
government employment to the Secretary concerned, whose approval is also 
required by law for the applicant's acceptance of civil employment from 
a foreign government. The request must contain information concerning 
the applicant's status, the nature of the proposed employment in as much 
detail as possible, the identity of and relationship to the foreign 
government concerned, and other matters as may be required by the 
Secretary concerned.
    (b) Requests approved by the Secretary concerned will be referred to 
the Director, Bureau of Politico-Military Affairs, for approval. 
Requests received by the Director, Bureau of Politico-Military Affairs, 
directly from an applicant will be initially forwarded to the Secretary 
concerned, or his designee, for approval of disapproval.



Sec.  3a.5  Basis for approval or disapproval.

    Decisions by the Director, Bureau of Politico-Military Affairs, 
under this part shall be based on whether the applicant's proposed 
employment with a foreign government would adversely affect the foreign 
relations of the United States, in light of the applicant's official 
status as a retiree or reservist.

[[Page 19]]



Sec.  3a.6  Notification of approval.

    The Director, Bureau of Politico-Military Affairs, will notify the 
Secretary concerned when an applicant's proposed foreign government 
employment is approved. Notification of approval to the applicant will 
be made by the Secretary concerned or his designee.



Sec.  3a.7  Notification of disapproval and reconsideration.

    (a) The Director, Bureau of Politico-Military Affairs, will notify 
the applicant directly when an applicant's proposed foreign employment 
is disapproved, and will inform the Secretary concerned.
    (b) Each notification of disapproval under this section must include 
a statement of the reasons for the disapproval, with as much specificity 
as security and foreign policy considerations permit, together with a 
notice of the applicant's right to seek reconsideration of the 
disapproval under paragraph (c) of this section.
    (c) Within 60 days after receipt of the notice of disapproval, an 
applicant whose request has been disapproved may submit a request for 
reconsideration by the Director, Bureau of Politico-Military Affairs. A 
request for reconsideration should provide information relevant to the 
reasons set forth in the notice of disapproval.
    (d) The disapproval of a request by the Director, Bureau of 
Politico-Military Affairs, will be final, unless a timely request for 
reconsideration is received. In the event of a request for 
reconsideration, the Director, Bureau of Politico-Military Affairs, will 
make a final decision after reviewing the record of the request. A final 
decision after reconsideration to approve the applicant's proposed 
employment with a foreign government will be communicated to the 
Secretary concerned as provided in Sec.  3a.6. A final decision after 
reconsideration to disapprove the applicant's proposed employment with a 
foreign government will be communicated directly to the applicant as 
provided in paragraph (a) of this section and the Secretary concerned 
will be informed. The Director's authority to make a final decision 
after reconsideration may not be redelegated.



Sec.  3a.8  Change in status.

    In the event that an applicant's foreign government employment 
approved under this part is to be materially changed, either by a 
substantial change in duties from those described in the request upon 
which the original approval was based, or by a change of employer, the 
applicant must obtain further approval in accordance with this part for 
such changed employment.



PART 4_NOTIFICATION OF FOREIGN OFFICIAL STATUS--Table of Contents



Sec.
4.1 General.
4.2 Procedure.

    Authority: 22 U.S.C. 2651a(a)(4).

    Source: 61 FR 32328, June 24, 1996, unless otherwise noted.



Sec.  4.1  General.

    In accordance with Article 10 of the Vienna Convention on Diplomatic 
Relations and Article 24 of the Vienna Convention on Consular Relations, 
diplomatic missions must notify the Office of Protocol immediately upon 
the arrival, in the United States, of any foreign government officer or 
employee (including domestics and family members), who are serving at 
diplomatic missions, consular posts, or miscellaneous foreign government 
offices. If the employee is already in the United States in some other 
capacity, the notification should be made upon assumption of duties. 
This initial notification requirement also includes all U.S. citizens 
and permanent resident aliens who are employed by foreign missions.



Sec.  4.2  Procedure.

    Notification and subsequent changes are made as follows:
    (a) Diplomatic and career consular officers and their dependents: 
Form DSP-110, Notification of Appointment of Foreign Diplomatic Officer 
and Career Consular Officer;
    (b) All other foreign government employees who are serving at 
diplomatic missions, consular posts, or miscellaneous foreign government 
offices and

[[Page 20]]

their dependents: Form DSP-111, Notification of Appointment of Foreign 
Government Employee.
    (c) Honorary consular officers: Form DSP-112, Notification of 
Appointment of Honorary Consular Officer.
    (d) Missions should use Form DSP-113, Notification of Change--
Identification Card Request, to promptly inform the Department of State 
of any change in the status of officers or employees of the missions and 
their family members originally reported to Protocol, or to apply for an 
identification card.
    (e) Upon termination of employment of any diplomatic or consular 
officer, honorary consular officer, embassy or consular employee, or 
miscellaneous foreign government staff member, a Form DSP-115, Notice of 
Termination of Diplomatic, Consular, or Foreign Government Employment, 
must be submitted to the Office of Protocol.



PART 5_ORGANIZATION--Table of Contents



Sec.
5.1 Introduction.
5.2 Central and field organization.
5.3 Rules of procedure, description of forms available, or the places at 
          which forms may be obtained.
5.4 Substantive rules of general applicability adopted as authorized by 
          law.
5.5 The Foreign Affairs Manual and the Foreign Affairs Handbook.

    Authority: 22 U.S.C. 2651a; 5 U.S.C. 552.

    Source: 83 FR 50824, Oct. 10, 2018, unless otherwise noted.



Sec.  5.1  Introduction.

    This part provides information to the public as required by the 
Freedom of Information Act, 5 U.S.C. 552(a)(1).



Sec.  5.2  Central and field organization.

    (a) The central organization of the Department of State is 
prescribed by the State Department Basic Authorities Act of 1956, as 
amended (Pub. L. 84-885), codified at 22 U.S.C. 2651 et seq. and the 
Foreign Affairs Manual (see Sec.  5.5).
    (b) As used in this part, the term ``Department of State'' includes 
all offices within the Department in Washington, its domestic field 
offices in the United States, all U.S. diplomatic and consular posts 
throughout the world, and U.S. missions to international organizations 
unless otherwise specified.
    (c) Any person desiring information concerning a matter handled by 
the Department of State, or any person desiring to make a submittal or 
request in connection with such a matter, should communicate either 
orally or in writing with the appropriate office. If the office 
receiving the communication does not have jurisdiction to handle the 
matter, the communication, if written, will be forwarded to the proper 
office, or, if oral, the person will be advised how to proceed. When the 
submittal or request from a member of the public consists of a formal 
application for one of the documents, privileges, or other benefits 
provided for in the laws administered by the Department of State, or in 
the regulations implementing these laws, the member of the public should 
follow the instructions on the form as to preparation and place of 
submission.
    (d) From time to time, the Secretary of State will, to the extent 
authorized by law, delegate statutory or other authorities to 
subordinate officers, as authorized by 22 U.S.C. 2651a(a)(4). The 
Department will generally publish such delegations of authority in the 
Federal Register.



Sec.  5.3  Rules of procedure, description of forms available, 
or the places at which forms may be obtained.

    Rules of procedure regarding the following listed matters may be 
consulted under the corresponding regulations referenced in Sec.  5.4, 
or obtained upon application to the offices listed below. Forms 
pertaining to the following listed matters, and instructions relating 
thereto may also be obtained at the offices indicated in the following 
table 1 to Sec.  5.3:

[[Page 21]]



                                              Table 1 to Sec.   5.3
----------------------------------------------------------------------------------------------------------------
           Subject matter                       Office                                Address
----------------------------------------------------------------------------------------------------------------
Access to Information and Records..  Bureau of Administration...  Office of Information Programs and Services
                                                                   (IPS), U.S. Department of State, State Annex
                                                                   2 (SA-2), 515 22nd Street NW, Washington, DC,
                                                                   Suite 8100, 20522-0208, Fax: (202) 261-8579,
                                                                   URL: FOIA.state.gov.
                                                                  For passport records and records of the Office
                                                                   of the Inspector General, please see 22 CFR
                                                                   171.4(a).
Appointment of Foreign Service       Board of Examiners for the   Board of Examiners for the Foreign Service,
 Officers.                            Foreign Service.             Department of State, SA-1, H-518, 2401 E
                                                                   Street NW. Washington, DC 20522.
Authentications....................  Office of Authentications..  U.S. Department of State, 600 19th Street NW,
                                                                   Washington, DC 20006.
Civil Rights.......................  Office of Civil Rights.....  Office of Civil Rights (S/OCR), 2201 C Street
                                                                   NW, Suite 7428, Washington, DC 20520.
Forms..............................  ...........................  https://eforms.state.gov.
International educational and        Bureau of Educational and    For ECA-funded programs, Department of State,
 cultural exchange programs.          Cultural Affairs.            2200 C Street NW, Washington, DC 20522-0500,
                                                                   ECA.state.gov; phone (202) 632-6445.
                                                                  For the Exchange Visitor Program, Department
                                                                   of State, SA-4E, Room E-B001--2201 C Street
                                                                   NW, Washington, DC 20520.
                                                                   [email protected]; phone (202) 632-6445.
International Traffic in Arms        Directorate of Defense       U.S. Department of State, Directorate of
 Regulations.                         Trade Controls.              Defense Trade Controls, 2401 E Street NW, SA-
                                                                   1, Room H1200, Washington, DC 20037.
U.S. Passports.....................  Passport Services..........  https://travel.state.gov/, National Passport
                                                                   Information Center, 877-487-2778, 888-874-
                                                                   7793 (TDD/TTY), 8:00 am to 10:00 pm ET Monday-
                                                                   Friday, 10:00 am to 3:00 pm ET Saturday
                                                                   (excluding federal holidays), [email protected].
Organizational chart...............  ...........................  https://www.state.gov/r/pa/ei/rls/dos/
                                                                   99484.htm.
Procurements and assistance,         Office of the Procurement    U.S. Department of State, A/OPE (SA-15, Suite
 domestic/international acquisition   Executive.                   1060), Washington, DC 20522, FAX 703-875-
 and federal assistance policy.                                    6155.
Protection and welfare of U.S.       Overseas Citizen Services..  https://travel.state.gov/, 888-407-4747 (from
 citizens, intercountry adoption,                                  U.S. and Canada), +1 202-501-4444 (from
 international child abduction, and                                Overseas).
 other consular services abroad.
Treaties and international           Office of the Assistant      https://www.state.gov/s/l/treaty/.
 agreements.                          Legal Adviser for Treaty
                                      Affairs.
Visa issuance......................  Office of Visa Services....  https://travel.state.gov/, National Visa
                                                                   Center--Public Inquiries, 603-334-0700
                                                                   (immigrant visas only), 603-334-0888
                                                                   (nonimmigrant visas only), 7:00 a.m.--12:00
                                                                   a.m. ET Monday-Friday (excluding federal
                                                                   holidays), https://
                                                                   secureforms.travel.state.gov/ask-nvc.php.
----------------------------------------------------------------------------------------------------------------


[[Page 22]]



Sec.  5.4  Substantive rules of general applicability adopted 
as authorized by law.

    (a) The regulations of the Department of State required to be 
published under the provisions of the Administrative Procedure Act are 
found in the Code of Federal Regulations (generally in title 22) and in 
the Federal Register. Any person desiring information with respect to a 
particular procedure should examine the pertinent regulation cited in 
paragraph (b) of this section.
    (b) The following paragraphs (b)(1) through (18) are citations to 
regulations within the scope of this section:
    (1) Appointment of Foreign Service Officers. 22 CFR part 11 et seq.
    (2) Schedule of Fees for Consular Services. 22 CFR part 22.
    (3) Claims and Stolen Property. 22 CFR part 31 et seq.
    (4) Issuance of Visas. 22 CFR parts 41-42 et seq.
    (5) Nationality and Passports. 22 CFR part 50 et seq.
    (6) International Educational and Cultural Exchanges. 22 CFR part 62 
et seq.
    (7) Protection and Welfare of Americans Abroad. 22 CFR part 71 et 
seq.
    (8) Other Consular Services Abroad. 22 CFR part 92 et seq.
    (9) Chemical Weapons Convention Regulations. 22 CFR part 103.
    (10) International Trafficking in Persons. 22 CFR part 104.
    (11) International Traffic in Arms Regulations. 22 CFR part 121 et 
seq.
    (12) Certificates of Authentication. 22 CFR part 131 et seq.
    (13) Civil Rights, including implementation of Sections 504 and 508 
of the Rehabilitation Act of 1973. 22 CFR part 141 et seq.
    (14) Department of State Acquisition Regulation. 48 CFR chapter 6.
    (15) Availability of Information and Records to the Public. 22 CFR 
part 171.
    (16) Service of Process. 22 CFR part 172.
    (17) Availability of Public Diplomacy Program Material in the United 
States. 22 CFR part 173.
    (18) Coordination, Reporting, and Publication of International 
Agreements. 22 CFR part 181.
    (c) The regulations listed in paragraph (b) of this section are 
supplemented from time to time by amendments appearing initially in the 
Federal Register.



Sec.  5.5.  The Foreign Affairs Manual and the Foreign Affairs Handbook.

    The Department articulates official guidance, including procedures 
and policies, on matters relating to Department management and personnel 
in the Foreign Affairs Manual (FAM) and the Foreign Affairs Handbook 
(FAH) series. Some of these directives are promulgated pursuant to 
statute, such as the Secretary of State's authority to prescribe 
regulations for the Foreign Service as provided in Section 206 of the 
Foreign Service Act of 1980, as amended, 22 U.S.C. 3926. The FAMs and 
FAHs that are publicly available are located on the Department's public 
website, at https://fam.state.gov/.

                            PART 7 [RESERVED]



PART 9_SECURITY INFORMATION REGULATIONS--Table of Contents



Sec.
9.1 Basis.
9.2 Objective.
9.3 Senior agency official.
9.4 Original classification.
9.5 Original classification authority.
9.6 Derivative classification.
9.7 Identification and marking.
9.8 Classification challenges.
9.9 Declassification and downgrading.
9.10 Mandatory declassification review.
9.11 Systematic declassification review.
9.12 Sharing other-agency classified information.
9.13 Access to classified information by historical researchers and 
          certain former government personnel.
9.14 Pre-publication review of writings by former Department personnel.
9.15 Assistance to the Historian's Office.
9.16 Safeguarding.

    Authority: E.O. 13526 (75 FR 707, January 5, 2010); Information 
Security Oversight Office Directive 32 CFR part 2001 (75 FR 37254, June 
28, 2010).

    Source: 79 FR 35936, June 25, 2014, unless otherwise noted.

[[Page 23]]



Sec.  9.1  Basis.

    The regulations in this part, taken together with 32 CFR part 2001 
and Volume 5 of the Department's Foreign Affairs Manual, provide the 
basis for the security classification program of the U.S. Department of 
State (``the Department'') implementing Executive Order 13526 on 
Classified National Security Information (``the Executive Order'' or 
``the Order'').



Sec.  9.2  Objective.

    The objective of the Department's classification program is to 
ensure that national security information is protected from unauthorized 
disclosure, but that it remains classified only to the extent and for 
such a period as is necessary.



Sec.  9.3  Senior agency official.

    The Executive Order requires that each agency that originates or 
handles classified information designate a Senior Agency Official to 
direct and administer its information security program. The Department's 
senior agency official is the Under Secretary of State for Management. 
The Senior Agency Official is assisted in carrying out the provisions of 
the Executive Order and the Department's information security program by 
the Assistant Secretary for Diplomatic Security, the Assistant Secretary 
for Administration, and the Deputy Assistant Secretary for Global 
Information Services.



Sec.  9.4  Original classification.

    (a) Definition. Original classification is the initial determination 
that certain information requires protection against unauthorized 
disclosure in the interest of national security (i.e., national defense 
or foreign relations of the United States), together with a designation 
of the level of classification.
    (b) Classification levels. (1) Top Secret shall be applied to 
information the unauthorized disclosure of which reasonably could be 
expected to cause exceptionally grave damage to the national security 
that the original classification authority is able to identify or 
describe.
    (2) Secret shall be applied to information the unauthorized 
disclosure of which reasonably could be expected to cause serious damage 
to the national security that the original classification authority is 
able to identify or describe.
    (3) Confidential shall be applied to information the unauthorized 
disclosure of which reasonably could be expected to cause damage to the 
national security that the original classification authority is able to 
identify or describe.
    (c) Classification requirements and considerations. (1) Information 
may not be considered for classification unless its unauthorized 
disclosure could reasonably be expected to cause identifiable or 
describable damage to the national security in accordance with section 
1.2 of the Executive Order, and it pertains to one or more of the 
following:
    (i) Military plans, weapons systems, or operations;
    (ii) Foreign government information;
    (iii) Intelligence activities (including covert action), 
intelligence sources or methods, or cryptology;
    (iv) Foreign relations or foreign activities of the United States, 
including confidential sources;
    (v) Scientific, technological, or economic matters relating to the 
national security;
    (vi) United States Government programs for safeguarding nuclear 
materials or facilities;
    (vii) Vulnerabilities or capabilities of systems, installations, 
infrastructures, projects, plans, or protection services relating to the 
national security; or
    (viii) The development, production, or use of weapons of mass 
destruction.
    (2) In classifying information, the public's interest in access to 
government information must be balanced against the need to protect 
national security information.
    (3) The unauthorized disclosure of foreign government information is 
presumed to cause damage to national security.
    (d) Classification limitations and prohibitions. (1) In no case 
shall information be classified in order to conceal violations of law, 
inefficiency, or administrative error, or to prevent embarrassment to a 
person, organization, or agency, to restrain competition, or to

[[Page 24]]

prevent or delay the release of information that does not require 
protection in the interest of the national security.
    (2) A reference to classified documents that does not directly or 
indirectly disclose classified information may not be classified or used 
as a basis for classification.
    (3) Only information owned by, produced by or for, or under the 
control of the U.S. Government may be originally classified.
    (e) Duration of classification. (1) Information shall be classified 
for as long as is required by national security considerations, subject 
to the limitations set forth in section 1.5 of the Executive Order. When 
it can be determined, a specific date or event for declassification in 
less than 10 years shall be set by the original classification authority 
at the time the information is originally classified. If a specific date 
or event for declassification cannot be determined, information shall be 
marked for declassification 10 years from the date of the original 
decision, unless the original classification authority determines that 
the sensitivity of the information requires that it be marked for 
declassification for up to 25 years from the date of the original 
decision except for:
    (i) Information that would reveal the identity of a confidential 
human source or a human intelligence source, or key design concepts of 
weapons of mass destruction, in which case the duration of 
classification shall be up to 75 years and shall be designated with the 
markings ``50X1-HUM'' and ``50X2-WMD,'' respectively; and
    (ii) Specific information incorporated into the classification guide 
under section 2.2(e) of the Executive Order relating to exemptions from 
automatic declassification.
    (2) An original classification authority may extend the duration of 
classification up to 25 years from the date of origin of the document, 
change the level of classification, or reclassify specific information 
only when the standards and procedures for classifying information under 
the Executive Order are met.
    (3) No information may remain classified indefinitely. Information 
marked for an indefinite duration of classification under predecessor 
orders, such as ``Originating Agency's Determination Required'' (OADR) 
or classified information that contains incomplete declassification 
instructions or lacks declassification instructions, shall be 
declassified in accordance with Part 3 of the Order.



Sec.  9.5  Original classification authority.

    (a) Authority for original classification of information as Top 
Secret may be exercised by the Secretary and those officials delegated 
this authority in writing by the Secretary. Such authority has been 
delegated to the Deputy Secretaries, the Under Secretaries, the 
Counselor, Assistant Secretaries and equivalents; Chiefs of Mission and 
U.S. representatives to international organizations; and certain other 
officers within the Department and at posts abroad.
    (b) Authority for original classification of information as Secret 
or Confidential may be exercised only by the Secretary, the Senior 
Agency Official, and those officials delegated this authority in writing 
by the Secretary or the Senior Agency Official. Such authority has been 
delegated to Deputy Assistant Secretaries, Principal Officers at 
consulates general and consulates abroad, and certain other officers 
within the Department and at posts abroad. In the absence of the Secret 
or Confidential classification authority, the person designated to act 
for that official may exercise that authority.



Sec.  9.6  Derivative classification.

    (a) Definition. Derivative classification is: the incorporating, 
paraphrasing, restating, or generating in new form information that is 
already classified and the marking of the new material consistent with 
the classification of the source material, or the marking of the 
information in accordance with an authorized classification guide. 
Duplication or reproduction of existing classified information is not 
derivative classification. Persons who apply classification markings 
derived from source material or as directed by a classification guide 
need not possess original classification authority.

[[Page 25]]

    (b) Responsibility. Information classified derivatively from other 
classified information shall be classified and marked in accordance with 
instructions from an authorized classifier or in accordance with an 
authorized classification guide and shall comply with the standards set 
forth in sections 2.1-2.2 of the Executive Order and 32 CFR 2001.22. The 
duration of classification of a document classified by a derivative 
classifier using a classification guide shall not exceed 25 years except 
for:
    (1) Information that would reveal the identity of a confidential 
human source or a human intelligence source (50X1-HUM) or key design 
concepts of weapons of mass destruction (50X2-WMD), and
    (2) Specific information incorporated into the classification guide 
under section 2.2(e) of the Executive Order relating to exemptions from 
automatic declassification.
    (c) Department of State Classification Guide. The Department of 
State Classification Guide (DSCG) is the primary authority for the 
classification of information in documents created by Department of 
State personnel. The Guide is classified ``Confidential'' and is found 
on the Department of State's classified Web site.



Sec.  9.7  Identification and marking.

    (a) Classified information shall be marked pursuant to the standards 
set forth in section 1.6 of the Executive Order, 32 CFR part 2001, 
subpart C, and internal Department guidance in 5 Foreign Affairs Manual.
    (b) Foreign government information shall retain its original 
classification markings or be marked and classified at a U.S. 
classification level that provides a degree of protection at least 
equivalent to that required by the entity that furnished the 
information. Foreign government information retaining its original 
classification markings need not be assigned a U.S. classification 
marking provided the responsible agency determines that the foreign 
government markings are adequate to meet the purposes served by U.S. 
classification markings.
    (c) Information assigned a level of classification under predecessor 
executive orders shall be considered as classified at that level of 
classification despite the omission of other required markings.
    (d) Prior to public release, all declassified records shall be 
appropriately marked to reflect their declassification.



Sec.  9.8  Classification challenges.

    (a) Challenges. Authorized holders of information pertaining to the 
Department of State who believe that its classification status is 
improper are expected and encouraged to challenge the classification 
status of the information. Such persons making challenges to the 
classification status of information shall not be subject to retribution 
for such action. Informal, usually oral, challenges are encouraged. 
Formal challenges to classification actions shall be in writing to an 
original classification authority (OCA) with jurisdiction over the 
information and a copy of the challenge shall be sent to the Office of 
Information Programs and Services (IPS) of the Department of State, SA-
2, 515 22nd St. NW., Washington, DC 20522-8100. The Department (either 
the OCA or IPS) shall provide an initial response in writing within 60 
calendar days.
    (b) Appeal procedures and time limits. A negative response may be 
appealed to the Department's Appeals Review Panel (ARP) and should be 
sent to: Chairman, Appeals Review Panel, c/o Director, Office of 
Information Programs and Services/Appeals Officer, at the IPS address 
given above. The appeal shall include a copy of the original challenge, 
the response, and any additional information the appellant believes 
would assist the ARP in reaching its decision. The ARP shall respond 
within 90 calendar days of receipt of the appeal. A negative decision by 
the ARP may be appealed to the Interagency Security Classification 
Appeals Panel (ISCAP) referenced in section 5.3 of Executive Order 
13526. If the Department fails to respond to a formal challenge within 
120 calendar days or if the ARP fails to respond to an appeal within 90 
calendar days, the challenge may be sent directly to the ISCAP.

[[Page 26]]

    (c) Pre-publication review materials. The provisions for 
classification challenges do not apply to material required to be 
submitted for pre-publication review, or other administrative action, 
pursuant to a non-disclosure agreement.



Sec.  9.9  Declassification and downgrading.

    (a) Declassification processes. Declassification of classified 
information may occur:
    (1) After review of material in response to a Freedom of Information 
Act (FOIA) request, mandatory declassification review request, discovery 
request, subpoena, classification challenge, or other information access 
or declassification request;
    (2) After review as part of the Department's systematic 
declassification review program;
    (3) As a result of the elapse of the time or the occurrence of the 
event specified at the time of classification;
    (4) By operation of the automatic declassification provisions of 
section 3.3 of the Executive Order with respect to material more than 25 
years old.
    (b) Downgrading. When material classified at the Top Secret level is 
reviewed for declassification and it is determined that classification 
continues to be warranted, a determination shall be made whether 
downgrading to a lower level of classification is appropriate. If 
downgrading is determined to be warranted, the classification level of 
the material shall be changed to the appropriate lower level.
    (c) Authority to downgrade and declassify. (1) Classified 
information may be downgraded or declassified by:
    (i) The official who originally classified the information if that 
official is still serving in the same position and has original 
classification authority;
    (ii) A successor in that capacity if that individual has original 
classification authority;
    (iii) A supervisory official of either if the supervisory official 
has original classification authority;
    (iv) Other Department officials specifically delegated 
declassification authority in writing by the Secretary or the Senior 
Agency Official; or
    (v) The Director of the Information Security Oversight Office 
pursuant to Sec. 3.1(a) of E.O. 13526.
    (2) The Department shall maintain a record of Department officials 
specifically designated as declassification and downgrading authorities.
    (d) Declassification in the public interest. Although information 
that continues to meet the classification criteria of the Executive 
Order or a predecessor order normally requires continued protection, in 
some exceptional cases the need to protect information may be outweighed 
by the public interest in disclosure of the information. When such a 
question arises, it shall be referred to the Secretary or the Senior 
Agency Official for decision on whether, as an exercise of discretion, 
the information should be declassified and disclosed. This provision 
does not amplify or modify the substantive criteria or procedures for 
classification or create any substantive or procedural right subject to 
judicial review.
    (e) Public disclosure of declassified information. Declassification 
of information is not, by itself, authorization for its public 
disclosure. Previously classified information that is declassified may 
be exempt from public disclosure under the FOIA, the Privacy Act, or 
various statutory confidentiality provisions. There also may be treaties 
or other international agreements that would preclude public disclosure 
of declassified information.



Sec.  9.10  Mandatory declassification review

    (a) Scope. All information classified under E.O. 13526 or 
predecessor orders shall be subject to mandatory declassification review 
upon request by a member of the public or a U.S. government employee or 
agency with the following exceptions:
    (1) Information originated by the incumbent President or the 
incumbent Vice President; the incumbent President's White House staff or 
the incumbent Vice President's staff; committees, commissions, or boards 
appointed by the incumbent President; other entities within the 
Executive Office of the President that solely advise and assist the 
incumbent President;

[[Page 27]]

    (2) Information that is the subject of pending litigation; and
    (3) Information that has been reviewed for declassification within 
the past two years which need not be reviewed again, but the requester 
shall be given appeal rights.
    (b) Requests. Requests for mandatory declassification review should 
be addressed to the Office of Information Programs and Services, U.S. 
Department of State, SA-2, 515 22nd St. NW., Washington, DC 20522-8100.
    (c) Description of information. In order to be processed, a request 
for mandatory declassification review must describe the document or the 
material containing the information sought with sufficient specificity 
to enable the Department to locate the document or material with a 
reasonable amount of effort. Whenever a request does not sufficiently 
describe the material, the Department shall notify the requester that no 
further action will be taken unless additional description of the 
information sought is provided.
    (d) Refusal to confirm or deny existence of information. The 
Department may refuse to confirm or deny the existence or nonexistence 
of requested information whenever the fact of existence or nonexistence 
is itself classified.
    (e) Processing. In responding to mandatory declassification review 
requests, the Department shall make a review determination as promptly 
as possible, but in no case more than one year from the date of receipt 
of the request, and notify the requester accordingly. When the requested 
information cannot be declassified in its entirety, the Department shall 
release all meaningful portions that can be declassified and that are 
not exempt from disclosure on other grounds.
    (f) Other agency information. When the Department receives a request 
for information in its possession that was originally classified by 
another agency, it shall refer the request and the pertinent information 
to the other agency unless that agency has agreed that the Department 
may review such information for declassification on behalf of that 
agency. In any case, the Department is responsible for responding to the 
requester with regard to any responsive information, including other-
agency information, unless a prior arrangement has been made with the 
originating agency.
    (g) Foreign government information. In the case of a request for 
material containing foreign government information, the Department shall 
determine whether the information may be declassified and may, if 
appropriate, consult with the relevant foreign government on that issue. 
If the Department is not the agency that initially received the foreign 
government information, it may consult with the original receiving 
agency.
    (h) Documents or material containing RD or Transclassified Foreign 
Nuclear Information (TFNI). Documents or material containing RD or TFNI 
will be submitted to DOE for review. Documents containing FRD will be 
submitted to DOE or DoD for review.
    (i) Appeals. Any denial of a mandatory declassification review 
request may be appealed to the ARP. A denial by the ARP of a mandatory 
declassification review appeal may be further appealed to the ISCAP. A 
failure of the Department to make a determination on a mandatory 
declassification review request within one year from the date of its 
receipt or to respond to an appeal of a denial by the ARP within 180 
calendar days of its receipt may be appealed directly to the ISCAP.



Sec.  9.11  Systematic declassification review.

    The Director of the Office of Information Programs and Services 
shall be responsible for conducting a program for systematic 
declassification review of historically valuable records that: were 
exempted from the automatic declassification provisions of section 3.3 
of the Executive Order; or will soon become subject to the automatic 
declassification provisions of section 3.3 of the Order. The Director 
shall prioritize such review in accordance with priorities established 
by the National Declassification Center.



Sec.  9.12  Sharing other-agency classified information.

    The long-standing third-agency rule has required prior originating 
agency approval before a receiving agency

[[Page 28]]

could further disseminate classified information. Under the Executive 
Order, unless the originating agency indicates on the material that 
prior approval is required and provided that the criteria for access 
under section 4.1(a) of the Order are met, a receiving agency may 
further disseminate classified information in documents created 
subsequent to the effective date of the Order to another agency or U.S. 
entity without consultation with the originating agency. ``U.S. entity'' 
includes cleared state, local, tribal, and private sector entities. 
Similarly, under certain circumstances, receiving agencies may pass such 
classified information to foreign governments.



Sec.  9.13  Access to classified information by historical researchers 
and certain former government personnel.

    (a) The restriction in E.O. 13526 and predecessor orders on limiting 
access to classified information to individuals who have a need-to-know 
the information may be waived, under the conditions set forth below, for 
persons who: are engaged in historical research projects; have served as 
President or Vice President; have occupied senior policy-making 
positions in the Department of State or other U.S. government agencies 
to which they were appointed or designated by the President or the Vice 
President. It does not include former Foreign Service Officers as a 
class or persons who merely received assignment commissions as Foreign 
Service Officers, Foreign Service Reserve Officers, Foreign Service 
Staff Officers, and employees.
    (b) Requests by such persons must be submitted in writing to the 
Office of Information Programs and Services at the address set forth 
above and must include a general description of the records sought, the 
time period covered by the records that are the subject of the request, 
and an explanation why access is sought. Requests for access by such 
requesters may be granted if:
    (1) The Secretary or the Senior Agency Official determines in 
writing that access is consistent with the interests of national 
security;
    (2) The requester agrees in writing to safeguard the information 
from unauthorized disclosure or compromise;
    (3) The requester submits a statement in writing authorizing the 
Department to review any notes and manuscripts created as a result of 
access;
    (4) The requester submits a statement in writing that any 
information obtained from review of the records will not be disseminated 
without the express written permission of the Department;
    (c) If a requester uses a research assistant, the requester and the 
research assistant must both submit a statement in writing acknowledging 
that the same access conditions set forth in paragraphs (b)(2) through 
(b)(4) of this section apply to the research assistant. Such a research 
assistant must be working for the applicant and not gathering 
information for publication on his or her own behalf.
    (d) Access granted under this section shall be limited to items the 
official originated, reviewed, signed, or received while serving as a 
Presidential or Vice Presidential appointee or designee or as President 
or Vice President.
    (e) Such requesters may seek declassification and release of 
material to which they have been granted access under this section 
through either the FOIA or the mandatory declassification review 
provisions of E.O. 13526. Such requests shall be processed in the order 
received, along with other FOIA and mandatory declassification review 
requests, and shall be subject to the fees applicable to FOIA requests.



Sec.  9.14  Pre-publication review of writings by former Department personnel.

    The Department provides pre-publication review of writings on 
foreign relations topics by former Department personnel, including 
contractors and detailees, who had security clearances to try to ensure 
that former personnel do not violate their agreements on non-disclosure 
of classified national security information in such writings. 
Manuscripts (including articles, speeches, books, etc.) should be sent 
to the Director, Office of Information Programs and Services, 515 22nd 
St. NW., Washington, DC 20522-8100. Questions about pre-publication 
clearance may be sent to [email protected].

[[Page 29]]



Sec.  9.15  Assistance to the Historian's Office.

    All elements of the Department shall assist the Historian's Office 
in its preparation of the Foreign Relations of the United States (FRUS) 
series such as by providing prompt access to and, when possible, 
declassification of information deemed appropriate for inclusion in the 
FRUS.



Sec.  9.16  Safeguarding.

    Specific controls on the use, processing, storage, reproduction, and 
transmittal of classified information within the Department to provide 
protection for such information and to prevent access by unauthorized 
persons are contained in Volume 12 of the Department's Foreign Affairs 
Manual.



PART 9a_SECURITY INFORMATION REGULATIONS APPLICABLE TO CERTAIN 
INTERNATIONAL ENERGY PROGRAMS; RELATED MATERIAL--Table of Contents



Sec.
9a.1 Security of certain information and material related to the 
          International Energy Program.
9a.2 General policy.
9a.3 Scope.
9a.4 Classification.
9a.5 Declassification and downgrading.
9a.6 Marking.
9a.7 Access.
9a.8 Physical protection.

    Authority: E.O. 11932 (41 FR 32691), E.O. 11652 (37 FR 5209, 
National Security Council Directive of May 17, 1972 (37 FR 10053).

    Source: 42 FR 46516, Sept. 16, 1977; 42 FR 57687, Nov. 4, 1977, 
unless otherwise noted.



Sec.  9a.1  Security of certain information and material related to 
the International Energy Program.

    These regulations implement Executive Order 11932 dated August 4, 
1976 (41 FR 32691, August 5, 1976) entitled ``Classification of Certain 
Information and Material Obtained from Advisory Bodies Created to 
Implement the International Energy Program.''



Sec.  9a.2  General policy.

    (a) The United States has entered into the Agreement on an 
International Energy Program of November 18, 1974, which created the 
International Energy Agency (IEA). This program is a substantial factor 
in the conduct of our foreign relations and an important element of our 
national security. The effectiveness of the Agreement depends 
significantly upon the provision and exchange of information and 
material by participants in advisory bodies created by the IEA. 
Confidentiality is essential to assure the free and open discussion 
necessary to accomplish the tasks assigned to those bodies.
    (b) These regulations establish procedures for the classification, 
declassification, storage, access, and dissemination of certain 
information related to the International Energy Program.



Sec.  9a.3  Scope.

    These regulations apply to all information and material classified 
by the United States under the provisions of E.O. 11932, dated August 4, 
1976 entitled ``Classification of Certain Information and Material 
Obtained From Advisory Bodies Created To Implement The International 
Energy Program.''



Sec.  9a.4  Classification.

    (a) Section 1 of E.O. 11932, August 4, 1976 directs that information 
and material obtained pursuant to the International Energy Program and 
which requires protection against unauthorized disclosure in the 
interest of the national defense or foreign relations of the United 
States shall be classified pursuant to Executive Order 11652.
    (b) Information and material, including transcripts, records, and 
communications, in the possession of the United States Government which 
has been obtained pursuant to (1) section 252(c)(3), (d)(2) or (e)(3) of 
the Energy Policy and Conservation Act (89 Stat. 871, 42 U.S.C. 
6272(c)(3), (d)(2), (e)(3)), or (2) The Voluntary Agreement and Program 
Relating to the International Energy Program (40 FR 16041, April 8, 
1975), or (3) the Voluntary Agreement and Plan of Action to Implement 
the International Energy Program (41 FR 13998, April 1, 1976), or (4) 
Any similar Voluntary Agreement and Program entered into under the 
Energy Policy and Conservation Act shall be reviewed by an officer of 
the Department of State

[[Page 30]]

with classifying authority for the purpose of determining whether such 
information or material should be classified pursuant to E.O. 11652. If 
the officer determines that the information or material warrants 
classification, he shall assign it the appropriate classification. Such 
information or material may be exempted from the General 
Declassification Schedule established by section 5 of Executive Order 
No. 11652 if it was obtained by the United States on the understanding 
that it be kept in confidence, or if it might otherwise be exempted 
under section 5(B) of such Order.
    (c) In classifying such information or material, officers of the 
Department of State shall follow the standards in E.O. 11652 and the 
provisions of 22 CFR 9.5 through 9.8.



Sec.  9a.5  Declassification and downgrading.

    The provisions of E.O. 11652, 22 CFR 9.9 through 9.15, and 9a.4(b) 
shall govern declassification and downgrading of such information or 
material.



Sec.  9a.6  Marking.

    (a) The provisions of 22 CFR 9.15 through 9.19 shall govern the 
marking of information or material classified under the provisions of 
these regulations, except that the following stamp shall be used as 
appropriate:

(Top Secret, Secret or Confidential)
Classified by: _______________
Under Executive Order 11932
Exempt from General Declassification Schedule of E.O. 11652 Exemption 
Category section 5B (2), (3), or (4); or E.O. 11932
Automatically Declassified on _______
(effective date or event if any)


Exemption category ``E.O. 11932'' shall be used for information and 
material obtained by the United States on e understanding that it be 
kept in confidence and classified under E.O. 11932.
    (b) If the information or material does not qualify for exemption 
from the General Declassification Schedule, ordinary stamps and marking 
may be used.



Sec.  9a.7  Access.

    (a) Except as set forth in this section, access to information or 
material classified under the provisions of these regulations shall be 
governed by the provisions of 22 CFR 9.20 through 9.25.
    (b) Classified information and material which was created by or in 
connection with an advisory body to the IEA may be made available to 
participants in such advisory body and their colleagues in accordance 
with the following subsections.
    (c) Such information and material classified ``Confidential'' may be 
made available for review to participants in the meeting of the advisory 
body in which it was developed or discussed. Where participants are 
acting as representatives of companies or of the IEA Secretariat, such 
information and material may be made available for review to employees 
or other representatives of, or counsel for, such companies or 
Secretariat: Provided, That such person is determined by an appropriate 
officer of the Department to be trustworthy and to have a need for 
access to the particular classified information sought in connection 
with the performance of duties in furtherance of the purposes of the 
IEA, including the furnishing of legal advice to such participants.
    (d) Such information and material classified ``Confidential'' may be 
left in the custody of such participants or other persons who may review 
it for reasonable period of time: Provided, That an appropriate officer 
of the Department determines that it will be protected from unauthorized 
disclosure by adequate security safeguards. Such information or material 
may not be reproduced by those permitted to review it pursuant to this 
section without the written consent of an officer of the Department with 
classifying authority.
    (e) Such information and material classified other than 
``Confidential'' under E.O. 11652 may be made available for review only 
to participants in the meeting in which it was developed or discussed; 
it must be reviewed in the presence of an official of the United States 
Government with an appropriate security clearance granted by the 
Department, and may not be left in the custody of such participants.

[[Page 31]]



Sec.  9a.8  Physical protection.

    Except as provided in Sec.  9a.7, the physical protection of 
information or material classified under this regulation shall be 
governed by the appropriate provisions of 22 CFR 9.45 through 9.49.



PART 9b_REGULATIONS GOVERNING DEPARTMENT OF STATE PRESS BUILDING PASSES--
Table of Contents



Sec.
9b.1 Press access to the Department of State.
9b.2 Press correspondents employed by United States media organizations.
9b.3 Press correspondents employed by foreign media organizations.
9b.4 Department of State building press pass for technical crews.
9b.5 Temporary Department of State press building passes.
9b.6 Grounds for denial, revocation, or non-renewal of Department of 
          State press building passes.
9b.7 Procedures for denial, revocation, or non-renewal of Department of 
          State press building passes.
9b.8 Term and renewal of Department of State press building passes.

    Authority: 22 U.S.C. 2658.

    Source: 49 FR 4465, Feb. 7, 1984, unless otherwise noted.



Sec.  9b.1  Press access to the Department of State.

    (a) Media correspondents without valid Department of State press 
building passes shall have access to the Main State building identical 
to that enjoyed by members of the public.
    (b) Media correspondents holding valid Department of State press 
building passes:
    (1) May enter and have access 24 hours a day, during regular working 
hours, outside regular working hours, on weekends and on holidays, 
without an appointment, to the reception area of the Diplomatic Lobby, C 
Street Mezzanine area, press booths (Room 2310), press briefing room 
(Room 2118), and when in operation, the Office of Press Relations (Room 
2109).
    (2) May enter and have access without an appointment, on the 
basement level or on the first and second floors, to the cafeteria, post 
office, banks, concessionaries, barber shop, dry cleaners and the 
Foreign Affairs Recreation Association offices for the purposes for 
which they are established and when they are in operation.
    (3) May not escort non-passholders into the Department of State 
building.
    (c) Media correspondents, with or without a Department of State 
press building pass, may enter areas above the second floor of the Main 
State building only if the correspondent is invited by a Department 
employee to attend a specific social or official function in an office 
located above the second floor. Permission to enter areas above the 
second floor is strictly limited to direct passage to and from the 
appointment location of the Department of State employee, or the office 
or reception room where the function takes place.
    (d) Possession of State Department press building pass does not 
confer access to or other privileges at other Federal buildings. It is 
not to be construed as official United States Government recognition, 
approval or accreditation of a correspondent.

[54 FR 1686, Jan. 17, 1989]



Sec.  9b.2  Press correspondents employed by United States media organizations.

    In order to obtain a Department of State press building pass, press 
correspondents employed by United States media organizations must:
    (a) Present to the Office of Press Relations, Department of State, a 
letter from his or her organization stating:
    (1) That the applicant is a bona fide, full-time media correspondent 
based permanently and residing in the Washington, DC, metropolitan area;
    (2) That the applicant is employed by the certifying organization;
    (3) That the organization and the applicant have regular and 
substantial assignments in connection with the Department of State as 
evidence by regular attendance at the daily press briefings.
    (b) Submit to the Office of Press Relations, Department of State, 
Washington, DC 20520, a signed application and FORM DSP-97 for a press 
building pass. Applicants must comply with instructions contained in 
paragraphs 1 and 6 of FORM DSP-97 regarding fingerprinting and prior 
arrests. FORM

[[Page 32]]

DSP-97 requires the following information:
    (1) Name;
    (2) Affiliation with news media organizations;
    (3) Date of birth;
    (4) Place of birth;
    (5) Sex;
    (6) Citizenship;
    (7) Social Security or passport number;
    (8) Marital status;
    (9) Spouse name;
    (10) Office address and telephone number;
    (11) Length of employment;
    (12) Home address and telephone number; and
    (13) Length of residence.

[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1686, Jan. 17, 1989]



Sec.  9b.3  Press correspondents employed by foreign media organizations.

    In order to obtain a Department of State press building pass, 
correspondents employed by foreign media organizations must:
    (a) Present to the Office of Press Relations, Department of State, 
Washington, DC 20520 a letter from his or her organization stating:
    (1) That the applicant is a bona fide, full-time media correspondent 
based permanently and residing in the Washington, DC, metropolitan area:
    (2) That the applicant is employed by the certifying organization;
    (3) That the organization and the applicant have regular and 
substantial assignments in connection with the Department of State as 
evidence by regular attendance at the daily press briefings.
    (b) A letter from the Washington, DC Embassy of the nation where the 
organization is headquartered or from the Embassy of the United States 
in the nation where the organization is headquartered attesting to the 
existence of the news organization and the applicant's employment by 
that organization. The Director of the Office of Press Relations may 
accept a letter from another source attesting to the existence of such 
news organizations and the applicant's employment if, in his or her 
judgment, a substitute letter is warranted.
    (c) Submit to the Office of Press Relations, Department of State, 
Washington, DC 20520 a signed application and FORM DSP-97 for a press 
building pass. Applicants must comply with instructions contained in 
paragraphs 1 and 6 of FROM DSP-97 regarding fingerprinting and prior 
arrests. FORM DSP-97 requires the following information:
    (1) Name;
    (2) Affiliation with news media organizations;
    (3) Date of birth;
    (4) Place of birth;
    (5) Sex;
    (6) Citizenship;
    (7) Social Security or passport number;
    (8) Marital status;
    (9) Spouse name;
    (10) Office address and telephone number;
    (11) Length of employment;
    (12) Home address and telephone number; and
    (13) Length of residence.

[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 17, 1989]



Sec.  9b.4  Department of State building press pass for technical crews.

    Department of State press building passes are issued to members of 
television and radio technical crews who provide technical support on a 
daily basis for media correspondents assigned to the Department of 
State. Members of technical crews who do not possess press passes, but 
who provide technical support for media correspondents assigned to the 
Department of State, may apply to the Office of Press Relations for a 
visitor's pass valid for one day.

[54 FR 1687, Jan. 17, 1989]



Sec.  9b.5  Temporary Department of State press building passes.

    A media correspondent or technician who meets all the qualifications 
stated in Sec. Sec.  9b.2(a)(1) and 9b.2(a)(2) or Sec. Sec.  9b.3(a) and 
9b.3(b), but does not have regular and substantial assignments in 
connection with the Department of State may make arrangements with the 
Office of

[[Page 33]]

Press Relations for the issuance of a visitor's pass valid for one day.

[54 FR 1687, Jan. 17, 1989]



Sec.  9b.6  Grounds for denial, revocation, or non-renewal 
of Department of State press building passes.

    In consultation with the Bureau of Diplomatic Security and the 
Office of the Legal Adviser, the Director of the Office of Press 
Relations of the Department of State, may deny, revoke, or not renew the 
Department of State press building pass of any media correspondent or 
technician who:
    (a) Does not meet the qualifications stated in Sec. Sec.  
9b.2(a)(1), 9b.2(a)(2) and 9b.2(a)(3) or Sec. Sec.  9b.3(a)(1), 
9b.3(a)(2), 9b.3(a)(3) and 9b.3(b). (Upon denial, revocation, or non-
renewal the correspondent or technician may not re-apply for a period of 
one year unless there are material changes in meeting the 
qualifications.) or,
    (b) Poses a risk of harm to the personal safety of Department of 
State or other Governmental personnel or to Government property; or
    (c) Engages or engaged in conduct which there are reasonable grounds 
to believe might violate federal or state law or Department of State 
regulations.
    (d) Has been convicted of a felony (or a crime in a foreign country 
that would be considered a felony if it were committed in the United 
States).
    (e) Fails to claim an approved authorization form for a State 
Department press building pass after notification by the Office of Press 
Relations following a period of three (3) months.

[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 15, 1989]



Sec.  9b.7  Procedures for denial, revocation, or non-renewal 
of Department of State press building passes.

    (a) If the Director of the Office of Press Relations, Department of 
State, anticipates, after consultation with the Office of the Legal 
Adviser, that in applying the standard set forth in Sec.  9b.6 a 
Department of State press building pass might be denied, revoked or not 
renewed, the media correspondent or technician will be notified in 
writing by the Director of the basis for the proposed denial in as much 
detail as the security of any confidential source of information will 
permit. This notification will be sent by registered mail.
    (b) The notification of the proposed denial, revocation or non-
renewal sent to the correspondent will also contain a statement advising 
the correspondent of his or her right to respond to the proposed denial 
and to rebut any factual basis supporting the proposed denial.
    (c) The correspondent shall be allowed thirty (30) days from the 
date of the mailing of the proposed denial, revocation or non-renewal 
notification to respond in writing. The response shall consist of any 
explanation or rebuttal deemed appropriate by the correspondent and will 
be signed by the correspondent under oath or affirmation.
    (d) If the correspondent is unable to prepare a response within 30 
days, an extension for one additional 30-day period will be granted upon 
receipt of the correspondent's written request for such an extension.
    (e) At the time of the filing of the media correspondent's or 
technician's written response to the notification of the proposed 
denial, revocation or non-renewal, the correspondent or technician may 
request, and will be granted, the opportunity to make a personal 
appearance before the Director of the Office of Press Relations, 
Department of State, for the purpose of personally supporting his/her 
eligibility for a press pass and to rebut or explain the factual basis 
for the proposed denial. The Director shall exercise, in consultation 
with the Bureau of Diplomatic Security and the Office of the Legal 
Adviser, final review authority in the matter. The correspondent or 
technician may be represented by counsel during this appearance.
    (f)(1) On the basis of the correspondent's or technician's written 
and personal response and the factual basis for the proposed denial, 
revocation or non-renewal, the Director of the Office of Press 
Relations, Department of State, will consult with the Bureau of 
Diplomatic Security and the Office of the Legal Adviser to determine 
whether or not further inquiry or investigation concerning the issues 
raised is necessary.

[[Page 34]]

    (2) If a decision is made that no such inquiry is necessary, a final 
decision will be issued in conformity with paragraph (g) of this 
section.
    (3) If a decision is made that such further inquiry is necessary, 
the Director of the Office of Press Relations of the Department of 
State, the Bureau of Diplomatic Security and the Office of the Legal 
Adviser will conduct such further inquiry as is deemed appropriate. At 
the Director's discretion the inquiry may consist of:
    (i) The securing of documentary evidence:
    (ii) Personal interviews:
    (iii) An informal hearing:
    (iv) Any combination of paragraphs (f)(3)(i) through (f)(3)(iii) of 
this section.
    (g) On the basis of the correspondent's or technician's written and 
personal response, the factual basis for the proposed denial and the 
additional inquiry provided for if such inquiry is conducted, the 
Director of the Office of Press Relations of the Department of State 
will consult with the Bureau of Diplomatic Security and the Office of 
the Legal Adviser and expeditiously reach a final decision in accordance 
with the standard set forth in Sec.  9b.6. If a final adverse decision 
is reached, the correspondent or technician will be notified of this 
final decision in writing. This notification will set forth as precisely 
as possible, and to the extent that security considerations permit, the 
factual basis for the denial in relation to the standard set forth in 
Sec.  9b.6. This notification will be sent by registered mail and will 
be signed by the Director of the Office of Press Relations of the 
Department of State.

[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 17, 1989]



Sec.  9b.8  Term and renewal of Department of State press building passes.

    (a) Department of State press building passes for U.S. citizens are 
issued with three years' validity. Subject to positive completion of an 
international background check, passes for non-U.S. citizens are issued 
with one year's validity and may be renewed for three years. 
Notwithstanding its initial validity, any press building pass that has 
not been used for a twelve-month period, as recorded by the Bureau of 
Diplomatic Security's turnstyle entry devices, will become invalid at 
the end of that twelve-month period.
    (b) For any valid passes issued before October 1, 1995, notification 
shall be sent by the Department of State to the holder of the pass that 
the pass has become invalid by reason of lack of use for 12-month 
period. However, failure of the holder for any reason to receive such a 
notification shall not affect the invalidity of the pass. Anyone whose 
pass has become invalid may apply for a new pass in accordance with 
Sec. Sec.  9b.2 through 9b.5.

[61 FR 3800, Feb. 2, 1996]

[[Page 35]]



                         SUBCHAPTER B_PERSONNEL





PART 11_APPOINTMENT OF FOREIGN SERVICE OFFICERS--Table of Contents



Sec.
11.10 Links to relevant provisions of the Foreign Affairs Manual.
11.20 Entry-level Foreign Service Officer career candidate appointments.
11.30 Mid-level Foreign Service Officer career candidate appointments. 
          [Reserved]
11.40 Senior Foreign Service Officer career candidate appointments. 
          [Reserved]
11.50 Foreign Service specialist career candidate appointments.
11.60 Limited non-career appointments.

    Authority: 22 U.S.C. 2651a, 3926, 3941.

    Source: 80 FR 64320, Oct. 23, 2015, unless otherwise noted.



Sec.  11.10  Links to relevant provisions of the Foreign Affairs Manual.

    (a) The Foreign Affairs Manual (FAM) is the formal written document 
for recording, maintaining, and issuing Department of State (Department) 
directives that address personnel and other matters. It is the primary 
authority for appointment of current Department employees to the Foreign 
Service. This part is the primary authority for the appointment of non-
employees to the Foreign Service. The FAM provides Department procedures 
and policies that are not repeated in this part. It is an important 
resource for understanding the provisions of this part.
    (b) The two FAM volumes relevant to this part are Volume 3, 
Personnel, and Volume 16, Medical. FAM provisions are cited by volume 
followed by chapter or subchapter--for example, Chapter 210 of Volume 16 
would be cited 16 FAM 210. All of the relevant FAM provisions are on the 
Department's public Web site. The links for the relevant FAM provisions 
are as follows:

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
3 FAM 2215...................  http://www.state.gov/documents/organization/84854.pdf.
3 FAM 2216.2
3 FAM 2216.3
3 FAM 2217
3 FAM 2218
3 FAM 2245...................  http://www.state.gov/documents/organization/84851.pdf.
3 FAM 2250...................  http://www.state.gov/documents/organization/84850.pdf.
3 FAM 2251.3
3 FAM 2290...................  http://www.state.gov/documents/organization/84846.pdf.
16 FAM 210...................  http://www.state.gov/documents/organization/89692.pdf.
----------------------------------------------------------------------------------------------------------------



Sec.  11.20  Entry-level Foreign Service Officer career candidate appointments.

    (a) General considerations--(1) Authority. Pursuant to section 302 
of the Foreign Service Act of 1980 (hereinafter referred to as ``the 
Act''), all Foreign Service Officers shall be appointed by the 
President, by and with the advice and consent of the Senate. All 
appointments shall be made to a class and not to a particular post. No 
person shall be eligible for appointment as a Foreign Service Officer 
unless that person is a citizen of the United States, is twenty-one, and 
is world-wide available. Pursuant to section 306 of the Act, such 
appointment is initially a career-candidate appointment. The tenuring of 
Foreign Service Officer career candidates is governed by the provisions 
of 3 FAM 2245.
    (2) Veterans' preference. Pursuant to section 301 of the Act, the 
fact that an applicant for appointment as a Foreign Service Officer 
candidate is a veteran or disabled veteran, as defined in 5 U.S.C. 2108, 
must be considered as an affirmative factor in making such appointments.
    (3) Policy. Appointment as an Entry Level Foreign Service Officer 
career candidate of class 6, 5, or 4 is governed by these regulations. 
Successful applicants will be appointed as career candidates for a 
period not to exceed 5

[[Page 36]]

years. Under precepts of the Commissioning and Tenure Board, career 
candidates may be granted tenure and recommended for appointment as 
career Foreign Service Officers. Those who are not granted tenure prior 
to the expiration of their career-candidate appointments will be 
separated from the Foreign Service. Separated candidates who originally 
were employees of an agency and who accepted a limited appointment to 
the Foreign Service with the consent of the head of the agency in which 
they were employed will be entitled to reemployment rights in their 
former agency in accordance with section 310 of the Act.
    (b) The Foreign Service Officer Test (FSOT). The following 
regulations apply to the FSOT:
    (1) Purpose. The FSOT is designed to enable the Board of Examiners 
for the Foreign Service to test the applicant's knowledge, skills, and 
abilities, including writing skills that are necessary to the work of a 
Foreign Service Officer.
    (2) Eligibility. Before each FSOT, the Board of Examiners will 
establish a closing date for the receipt of applications for designation 
to take the test. No person will be designated to take the test who has 
not, as of that closing date, filed a complete application with the 
Board. To be designated to take the FSOT, an applicant, as of the date 
of the test, must be a citizen of the United States and at least 20 
years of age.
    (3) When and where given. The FSOT will be given periodically, in 
designated cities in the United States and at selected locales abroad, 
on dates established by the Board of Examiners and publicly announced on 
careers.state.gov.
    (4) Scoring. The several parts of the FSOT will be weighted and 
graded according to standards established by the Board of Examiners. The 
Board of Examiners may adjust the passing score of the FSOT to reflect 
the projected hiring needs of the Foreign Service.
    (c) Qualifications Evaluation Panel (QEP). The following regulations 
apply to the QEP:
    (1) Purpose. Each QEP is designed to enable the Board of Examiners 
for the Foreign Service to review each candidate's file and evaluate it 
against established precepts of successful Foreign Service Officer 
performance. The QEPs rank order candidates within each career track.
    (2) Panels. QEPs are career track specific and are staffed by 
panelists approved by the Board of Examiners from a roster of qualified 
active duty and retired Foreign Service Officers. At least one of the 
panelists will be from the same career track as those in the candidate 
pool.
    (3) Eligibility. Candidates whose score on the FSOT is at or above 
the passing level set by the Board of Examiners will be invited to 
submit their responses to Personal Narrative Questions. The questions, 
linked to the Foreign Service performance precepts, are designed to 
elicit specific examples of past performance where the candidate 
demonstrated the requisite precept.
    (4) When administered. The Board of Examiners holds one session of 
QEPs following each FSOT.
    (5) Scoring. Panelists will score files according to standards 
established by the Board of Examiners. The candidacy of anyone whose 
score is at or above the passing level set by the Board of Examiners 
will continue. The candidacy of anyone whose score is below the passing 
level will be ended and may not be considered again until the candidate 
has passed a new FSOT, at minimum of a year later. The Board of 
Examiners sets the passing score for each QEP based on the projected 
hiring needs of the Foreign Service. All candidates exempt from the 
FSOT, except Mustang applicants, are also exempt from review by a QEP.
    (i) The Board of Examiners may authorize QEPs to give special 
consideration in the selection of candidates to certain factors, e.g., 
demonstrating language ability, which the Board will publicly announce 
on careers.state.gov.
    (ii) The Board of Examiners may choose to verify accounts given by 
candidates in their personal narratives.
    (d) Foreign Service Oral Assessment (FSOA). The following 
regulations apply to the FSOA:
    (1) Purpose. The FSOA is designed to enable the Board of Examiners 
for the Foreign Service to test the candidate's ability to demonstrate 
the qualities or dimensions that are essential to the

[[Page 37]]

successful performance of Foreign Service work. The FSOA for the Entry 
Level Foreign Service Officer Career Candidate Program will consist of 
an assessment procedure publicly announced by the Board of Examiners on 
careers.state.gov. The process is generally referred to as the Foreign 
Service Oral Assessment or FSOA.
    (2) Eligibility--(i) Through the FSOT and QEP review. (A) Candidates 
who pass the FSOT and whose score on the QEP review is at or above the 
passing level set by the Board of Examiners will be invited to take the 
FSOA.
    (B) Candidates must schedule the FSOA within 12 months of receiving 
their invitation to take the FSOA unless they receive an extension of 
time. Candidates may request an extension of up to an additional 12 
months. Active duty military have unrestricted time to take an FSOA if 
they notify the Board of Examiners of their active duty status. Failure 
to take the FSOA within 12 months of the invitation will result in the 
cancellation of the candidacy, unless the candidate has requested and 
obtained an extension of eligibility. The candidacy of anyone for whom 
the scheduling period is extended by the Board due to being outside of 
the United States will automatically be terminated if the candidate 
fails to notify his or her registrar of the change in status within 
three months of returning to the United States. The candidate must 
schedule an FSOA, but if a candidate fails to appear for a scheduled 
FSOA, the candidacy is automatically terminated. The Director of the 
Office of Recruitment, Examination, and Employment in the Bureau of 
Human Resources, or his/her designee, will consider requests to 
reschedule on a case-by-case basis if a candidate so requests prior to 
his/her scheduled FSOA.
    (ii) Through the Mustang Program. Career employees of the Department 
of State in classes FS-6 and above or grades GS-5 and above who are at 
least 21 years of age and who have at least three years of service with 
the Department may be selected by the Board of Examiners for admission 
to the FSOA for Entry Level Career Candidates under the Department's 
Mustang Program. Mustang candidates must meet all program requirements 
and submit all application material to be considered for the Mustang 
Program. See the procedures set forth in 3 FAM 2216.2-4 (Foreign Service 
Officer Oral Assessment (FSOA)).
    (iii) Through a mid-level conversion program. Employees of the 
Department of State in grade GS-13 and above are eligible to apply to 
enter the Foreign Service through a mid-level conversion program (see 3 
FAM 2216.3-2) whenever held.
    (iv) Through other programs. (A) Under programs established pursuant 
to section 105(d)(1) of the Act, which addresses diversity within the 
Foreign Service.
    (B) Under any other special entry programs created by the Department 
to meet specific needs of the Foreign Service.
    (3) When and where given. The FSOA will be held intermittently in 
Washington, DC, and may be held in selected cities in the United States 
or abroad as necessary, as publicly announced.
    (4) Assessment panel. (i) The FSOA will be given by a panel of 
assessors approved by the Board of Examiners from a roster of active 
duty and/or retired Foreign Service Officers.
    (ii) Service as an assessor shall be limited to a maximum of 5 
years, unless a further period is specifically authorized by the Board. 
Normally assessment panels shall be chaired by a career officer of the 
Foreign Service, trained in personnel testing and evaluation. 
Determinations of duly constituted panels of assessors are final unless 
modified by specific action of the Board of Examiners.
    (5) Scoring. Candidates taking the FSOA will be scored numerically 
according to standards established and publicly announced by the Board 
of Examiners, in places such as careers.state.gov. The candidacy of 
anyone whose score is at or above the passing level set by the Board 
will be continued. The candidacy of anyone whose score is below the 
passing level will be terminated.
    (e) Background investigation. Candidates who pass the FSOA and elect 
to continue the hiring process will be subject to a background 
investigation. The

[[Page 38]]

background investigation must be conducted to determine the candidate's 
eligibility for a security clearance and serves as the basis for 
determining suitability for appointment to the Foreign Service (see 3 
FAM 2212.1 (Security Investigation)).
    (f) Medical examination--(1) Eligibility. Candidates who pass the 
oral assessment and elect to continue the hiring process must undergo a 
medical examination. See the procedures in of 16 FAM 210 (Medical 
Clearances).
    (2) [Reserved]
    (g) Suitability Review Panel. Generally after the medical clearance 
has been issued and the background investigation is received, the 
candidate's entire file (excluding any medical records) is reviewed and 
evaluated by the Suitability Review Panel to determine the candidate's 
suitability for the Foreign Service. See the procedures in 3 FAM 2215 
(Suitability Review). The candidacy of any candidate who is determined 
by the Suitability Review Panel to be unsuitable for appointment shall 
be terminated and the candidate so informed. According to procedures 
established by the Board of Examiners, a candidate may appeal this 
decision to the Board of Examiners Staff Director or designee whose 
decision will be final. The Bureau of Diplomatic Security (DS) will re-
submit applicants to the Suitability Review Panel if they are found to 
have falsified information in the application process or are found to 
have disqualifying factors.
    (h) Certification for appointment--(1) Eligibility. (i) A candidate 
will not be certified as eligible for appointment as a Foreign Service 
Officer Career Candidate unless that candidate is at least 21 years of 
age and a citizen of the United States.
    (ii) Except for preference eligible individuals, career candidate 
appointments must be made before the candidate's 60th birthday. 
Preference eligible individuals must be appointed before their 65th 
birthday. The maximum age for appointment under this program is based on 
the requirement that all career candidates must be able to:
    (A) Complete at least two full tours of duty, exclusive of 
orientation and training;
    (B) Complete the requisite eligibility period for tenure 
consideration; and
    (C) Complete the requisite eligibility period to receive retirement 
benefits, prior to reaching the mandatory retirement age of 65 
prescribed by the Act.
    (iii) A candidate may be certified as eligible for direct 
appointment to classes FS-6, FS-5 or FS-4 based on established, publicly 
available, criteria.
    (iv) Employees who receive a career candidate appointment, i.e., who 
are untenured, have five years to obtain tenure. These career-candidate 
appointments, including the appointment of an individual who is the 
employee of any agency, may not exceed five years in duration, and may 
not be renewed or be extended beyond five years. A candidate denied 
tenure under 3 FAM 2250 may not be reappointed as a career candidate to 
become a generalist.
    (2) Career-track rank-order registers. The Board of Examiners 
maintains separate rank-order registers for career candidates in 
administrative, consular, economic, public diplomacy and political 
career tracks within the Department of State. Appointments from each 
career-track register will be made in rank order according to hiring 
needs.
    (3) Special programs. Mustang candidates who are career employees of 
the Department of State and who have satisfactorily completed all 
aspects of the assessment process will be certified by the Board of 
Examiners for placement on the Hiring Register to compete for a hiring 
opportunity as a Foreign Service Officer. Mustang candidates who have 
previously passed the FSOT/QEP will continue in the career track they 
selected when registering for the FSOT and be placed on the appropriate 
career track register.
    (4) Foreign language requirement. A candidate may be certified for 
appointment to classes FS-6, FS-5, or FS-4 without first having passed 
an examination in a foreign language, but the appointment will be 
subject to the condition that the newly appointed career candidate may 
not be appointed as a career Foreign Service Officer unless, within a 
specified period of time, proficiency in a foreign language is achieved.

[[Page 39]]

    (i) Termination of eligibility--(1) Time limit. Candidates who have 
qualified but have not been appointed because of lack of openings will 
be removed from the rank-order register 18 months after the date of 
placement on the rank-order register. Time spent in civilian Federal 
Government service abroad (to a maximum of 2 years of such service), 
including Peace Corps volunteer service, spouses of Foreign Service 
officers, or in active regular or reserve military service (no maximum), 
will not be counted as part of the 18-month eligibility period.
    (2) Extension. The Board of Examiners may extend the eligibility 
period when such extension is, in its discretion, justified by the needs 
of the Foreign Service.
    (3) Postponement of entrance on duty. Postponement of entrance on 
duty because of civilian Federal Government service abroad (to a maximum 
of 2 years of such service), including Peace Corps volunteer service, or 
as spouse of a Foreign Service Officer, or active regular or reserve 
military service (to a maximum of the limit of such required service), 
may be authorized by the Board.
    (j) Travel expenses. The travel and other personal expenses of 
candidates incurred in connection with the written and oral examination 
will not be borne by the Government. However, the participating foreign 
affairs departments may issue round-trip invitational travel orders to 
bring candidates to Washington, DC, at government expense, when it is 
determined by the agencies that this is necessary in the interest of the 
Foreign Service.



Sec.  11.30  Mid-level Foreign Service Officer career candidate appointments. 
[Reserved]



Sec.  11.40  Senior Foreign Service Officer career candidate appointments. 
[Reserved]



Sec.  11.50  Foreign Service specialist career candidate appointments.

    (a) General considerations. (1) Pursuant to section 303 of the Act, 
the Secretary may appoint individuals to the Foreign Service (other than 
those who are in the personnel categories specified in section 302(a) of 
the Act). Pursuant to section 306 of the Act, such appointment is 
initially a career candidate appointment. Section 303 governs the 
appointment by the Department of State of Foreign Service specialist 
career candidates to classes FS-1 and all classes below. Specialist 
candidates comprise all candidates for career appointment in all career 
tracks other than generalist career tracks (i.e., management, consular, 
economic, political, and public diplomacy). The tenuring of specialist 
career candidates is governed by the procedures in 3 FAM 2250.
    (2) Veterans' preference shall apply to the selection and 
appointment of Foreign Service specialist career candidates. Veterans' 
preference is an affirmative factor once the candidate has been 
qualified for the position. As soon as veterans go on the Hiring 
Register, they may apply for additional points to increase their rank 
order standing.
    (b) Specialist career candidate appointments--(1) Certification of 
need. (i) Candidates for appointment as specialist career candidates 
must be world-wide available and must have a professional or a 
functional skill for which there is a continuing need in the Foreign 
Service. No applicant shall be appointed for which there is no certified 
need established at a specific class level. Either the Director General 
may determine in advance which specialties are routinely or frequently 
in shortage or need periodic recruitment through publicly posted vacancy 
announcements, or the Director General may certify that there is a need 
for an applicant in a specific specialist category and at a specific 
class.
    (ii) Candidates who receive a career candidate appointment, i.e., 
who are untenured, have four years with the possibility of five years 
(see 3 FAM 2251.3) to obtain tenure. These appointments, including the 
appointment of an individual who is the employee of any agency, may not 
exceed five years in duration, and may not be renewed or be extended 
beyond five years. A specialist candidate denied tenure under 3 FAM 2250 
generally may not be reappointed as a career candidate in the same 
career track.
    (2) Eligibility. An applicant must be a citizen of the United States 
and at

[[Page 40]]

least 20 years of age. The minimum age for appointment as a career 
candidate is 21. Except for preference eligible candidates, all career 
candidate appointments shall be made before the candidate's 60th 
birthday. Preference eligible candidates may be appointed up to their 
65th birthday. The maximum age for appointment under the program is 
based on the requirement that all career candidates shall be able to:
    (i) Complete at least two full tours of duty, exclusive of 
orientation and training,
    (ii) Complete the requisite eligibility period for tenure 
consideration, and
    (iii) Complete the requisite eligibility period to receive 
retirement benefits, prior to reaching the mandatory retirement age of 
65 prescribed by the Act.
    (3) Screening. (i) Specialist career candidates will be screened 
initially on the basis of education and experience.
    (ii) Based on a job analysis, the Board of Examiners, in 
coordination with any bureau responsible for the specialty, will 
establish the knowledge, skills, and abilities required to perform 
successfully the tasks and duties of Foreign Service specialists in that 
functional field. Assessors working for the Board of Examiners will 
screen applications under those approved criteria and select those who 
meet the requirements to invite to an oral assessment.
    (4) Oral assessment. Candidates are selected through the initial 
screening process. The oral assessment will be given by a panel of 
assessors, at least one of whom will be a career Foreign Service 
employee proficient in the functional field for which the candidate is 
being tested. The assessment may include a writing sample. Candidates 
taking the oral assessment will be scored numerically according to 
standards set by the Board of Examiners. The candidacy of anyone whose 
score is at or above the passing level set by the Board will be 
continued. The candidacy of anyone whose score is below the passing 
level will be terminated. The candidate may only reapply after the first 
anniversary date of the original application.
    (5) Background investigation. Specialist candidates who pass the 
oral assessment and elect to continue the hiring process will be subject 
to a background investigation. The background investigation must be 
conducted to determine the candidate's eligibility for a security 
clearance and serves as the basis for determining suitability for 
appointment to the Foreign Service (see 3 FAM 2212.1-1 (Security 
Investigation)).
    (6) Medical examination. Candidates who pass the oral assessment and 
elect to continue the hiring process must undergo a medical examination. 
See the procedures in 16 FAM 210 (Medical Clearances).
    (7) Suitability Review Panel. After the medical examination 
clearance has been issued and the background investigation is received, 
the candidate's entire file (excluding any medical records) is reviewed 
and evaluated by a Suitability Review Panel to determine the candidate's 
suitability for the Foreign Service. See the procedures in 3 FAM 2215 
(Suitability Review). According to procedures established by the Board 
of Examiners, a candidate may appeal this decision to the Board of 
Examiners Staff Director or designee, whose decision will be final. DS 
will re-submit applicants to the Suitability Review Panel if they are 
found to have falsified information on their application or are found to 
have disqualifying factors.



Sec.  11.60  Limited non-career appointments.

    Consistent with section 303 of the Act (22 U.S.C. 3943), the 
Secretary of State may also appoint Civil Service employees and other 
individuals to the Foreign Service, and, consistent with section 309 of 
the Act (22 U.S.C. 3949), such appointments may include limited non-
career appointments (LNAs). After meeting the job specific requirements, 
candidates must meet applicable medical, security, and suitability 
requirements. Limited non-career appointments are covered under 3 FAM 
2290.

[[Page 41]]



PART 12_COMPLAINTS AGAINST EMPLOYEES BY ALLEGED CREDITORS--Table of Contents



Sec.
12.1 No cognizance taken of complaint.
12.2 Claimants denied access to employees.



Sec.  12.1  No cognizance taken of complaint.

    The Department of State will take no cognizance of a complaint 
against an employee by an alleged creditor, so far as the complainant is 
concerned, beyond acknowledging receipt of his communication.

(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)

[22 FR 10789, Dec. 27, 1957]



Sec.  12.2  Claimants denied access to employees.

    Persons claiming to be creditors or collectors of debts or claims 
will be denied access to employees for the purpose of presenting or 
collecting claims during the hours set apart for the transaction of 
public business or while the employees concerned are on duty.

(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)

[22 FR 10789, Dec. 27, 1957]



PART 13_PERSONNEL--Table of Contents



Sec.
13.1 Improper exaction of fees.
13.2 Embezzlement.
13.3 [Reserved]
13.4 False certificate as to ownership of property.

    Authority: 22 U.S.C. 2651a; 22 U.S.C. 4198-4199, 4209, and 4217-
4218.

    Source: 22 FR 10789, Dec. 27, 1957, unless otherwise noted.



Sec.  13.1  Improper exaction of fees.

    Any consular officer who collects, or knowingly allows to be 
collected, for any services any other or greater fees than are allowed 
by law for such services, shall, besides his or her liability to refund 
the same, be liable to pay to the person by whom or in whose behalf the 
same are paid, treble the amount of the unlawful charge so collected, as 
a penalty. The refund and penalty may be recovered with costs, in any 
proper form of action, by such person for his or her own use. The amount 
of such overcharge and penalty may at the discretion of the Secretary of 
the Treasury be ordered withheld from the compensation of such officer 
for payment to the person entitled to the same (22 U.S.C. 4209).

    Note: The foregoing relates to improper collection and personal 
withholding of funds by consular officers. For procedure where a 
collection, having been erroneously made, has been returned by the 
officer to the Treasury in good faith, making a subsequent accounting 
adjustment necessary, see Sec.  22.6, Refund of fees of this chapter.

[22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984; 
79 FR 43247, July 25, 2014]



Sec.  13.2  Embezzlement.

    Every consular officer who shall receive money, property, or effects 
belonging to a citizen of the United States and shall not within a 
reasonable time after demand made upon him or her by the Secretary of 
State or by such citizen, his or her executor, administrator, or legal 
representative, account for and pay over all moneys, property, and 
effects, less his or her lawful fees, due to such citizen, shall be 
deemed guilty of embezzlement, and shall be punishable by imprisonment 
for not more than five years, and by a fine of not more than $2,000 (22 
U.S.C. 4217). Penalties of imprisonment and fine are also prescribed for 
embezzlement in connection with the acceptance, without execution of a 
prescribed form of bond, of appointment from any foreign state as 
administrator, guardian, or to any other office of trust for the 
settlement or conservation of estates of deceased persons or of their 
heirs or of persons under legal disabilities (22 U.S.C. 4198 and 4199). 
Acceptance of such appointments is not ordinarily permitted under 
existing regulations. See Sec.  92.81 of this chapter.

[22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984; 
79 FR 43247, July 25, 2014]

[[Page 42]]



Sec.  13.3  [Reserved]



Sec.  13.4  False certificate as to ownership of property.

    If any consul of vice consul falsely and knowingly certifies that 
property belonging to foreigners is property belonging to citizens of 
the United States, he or she shall be punishable by imprisonment for not 
more than three years, and by a fine of not more than $10,000 (22 U.S.C. 
4218).

[22 FR 10789, Dec. 27, 1957, as amended by Dept. Reg. 108.838, 49 FR 
16989, Apr. 23, 1984; 79 FR 43247, July 25, 2014]



PART 16_FOREIGN SERVICE GRIEVANCE SYSTEM--Table of Contents



Sec.
16.1 Definitions.
16.2 General provisions.
16.3 Access to records.
16.4 Time limits for grievance filing.
16.5 Relationship to other remedies.
16.6 Security clearances.
16.7 Agency procedures.
16.8 Agency review.
16.9 Records.
16.10 Foreign Service Grievance Board.
16.11 Grievance Board consideration of grievances.
16.12 Hearing.
16.13 Decisions.
16.14 Reconsideration of a grievance.
16.15 Judicial review.

    Authority: Sec. 4 of the Act of May 26, 1949, as amended (63 Stat. 
111; 22 U.S.C. 2658); Pub. L. 94-141 (89 Stat. 765); 22 U.S.C. 1037; 
sec. 10 of E.O. 11636 (36 FR 24901).

    Source: 41 FR 13912, Apr. 1, 1976, unless otherwise noted.



Sec.  16.1  Definitions.

    (a) Act means the Foreign Service Act of 1946, as amended.
    (b) Grievant means any officer or employee of the Service who is a 
citizen of the United States; or for purposes of paragraphs (c) (7) and 
(8) of this section, a former officer or employee of the Service; or in 
the case of death of the officer or employee, a surviving spouse or 
dependent family member of the officer or employee.
    (c) Grievance means any act or condition subject to the control of 
the Foreign Affairs agencies (the Department of State, the Agency for 
International Development, or the U.S. Information Agency) which is 
alleged to deprive the grievant of a right or benefit authorized by law 
or regulation or is otherwise a source of concern or dissatisfaction to 
the grievant, including, but not limited to the following:
    (1) Complaints against separation of an officer or employee 
allegedly contrary to law or regulation or predicated upon alleged 
inaccuracy (including inaccuracy resulting from omission or any relevant 
and material document), error, or falsely prejudicial character of any 
part of the grievant's official personnel record;
    (2) Other alleged violation, misinterpretation, or misapplication of 
applicable law, regulation, or published policy affecting the terms and 
conditions of the grievant's employment or career status;
    (3) Allegedly wrongful disciplinary action against an employee 
constituting a reprimand or suspension from official duties;
    (4) Dissatisfaction with any matter subject to the control of the 
agency with respect to the grievant's physical working environment;
    (5) Alleged inaccuracy, error, or falsely prejudicial material in 
the grievant's official personnel file;
    (6) Action alleged to be in the nature of reprisal or other 
interference with freedom of action in connection with an employee's 
participation under these grievance procedures;
    (7) When the grievant is a former officer who was involuntarily 
retired pursuant to sections 633 and 634 of the Act within 6 years prior 
to December 1, 1975, ``grievance'' shall mean a complaint that such 
involuntary retirement violated applicable law or regulation effective 
at the time of the retirement or that the involuntary retirement was 
predicated directly upon material contained in the grievant's official 
personnel file alleged to be erroneous or falsely prejudicial in 
character; and
    (8) When the grievant is a former officer or employee or a surviving 
spouse or dependent family member of a former officer or employee, 
``grievance'' shall mean a complaint that an allowance or other 
financial benefit

[[Page 43]]

has been denied arbitrarily, capriciously or contrary to applicable law 
or regulation.
    (d) Grievance does not include the following:
    (1) Complaints against individual assignment or transfers of Foreign 
Service officers or employees, which are ordered in accordance with law 
and regulation (see also paragraph (c)(2) of this section);
    (2) Judgments of Selection Boards rendered pursuant to section 623 
of the Act, or of equivalent bodies, in ranking Foreign Service officers 
and employees for promotion on the basis of merit, or judgments in 
examinations prescribed by the Board of Examiners pursuant to section 
516 or 517 of the Act (see also paragraph (c)(2) of this section);
    (3) Termination of time-limited appointments pursuant to 22 U.S.C. 
929 and 1008, and the pertinent regulations prescribed by the employing 
agency (see also paragraph (c)(2) of this section);
    (4) Any complaints or appeals for which a specific statutory appeals 
procedure exists (see appendix A for examples).

A grievance filed under these procedures may be based on matters for 
which there is a specific statutory appeals procedure which is 
applicable to the Foreign Service grievant. Should the jurisdiction of 
the Grievance Board over a specific grievance be placed into question on 
grounds that the basis of the grievance is not encompassed within the 
Board's authority (Sec.  16.1(d)(4) and Appendix A), the Board shall 
consult with the other statutory body concerned, transmitting the views 
of the parties concerned before determining whether it has jurisdiction.
    (e) Employee organization means any employee organization accorded 
recognition as the excusive employee representative pursuant to 
Executive Order 11636 dated December 17, 1971.
    (f) Grievance Board or Board means the full Foreign Service 
Grievance Board, or a Panel or member thereof, as appropriate.
    (g) Party means the grievant or the Foreign Affairs agency having 
control over the act or condition forming the subject matter of the 
grievance.
    (h) Bureau means equivalent organizational elements in State and 
USIA, and includes offices in AID.
    (i) Days means calendar days.



Sec.  16.2  General provisions.

    (a) Statement of purpose. These regulations establish procedures as 
required by law to provide Foreign Service officers and employees (and 
their survivors) of the Foreign Affairs agencies, a grievance procedure 
to insure a full measure of due process, and to provide for the just 
consideration and resolution of grievances of such officers, employees, 
and survivors. No regulation promulgated in this part shall be 
interpreted or applied in any manner which would alter or abridge the 
provisions of the due process established by the Congress in Pub. L. 94-
141, 22 U.S.C. 1037, section 691.
    (b) Discussion of complaints. (1) Every effort should be made to 
settle any employee complaint informally, promptly, and satisfactorily.
    (2) Supervisors and other responsible officers should encourage 
employees to discuss complaints with them and should respond in a timely 
manner to resolve the complaints.
    (3) An employee initially should discuss a complaint with the 
employee's current supervisor or with the responsible officer who has 
immediate jurisdiction over the complaint to give that person an 
opportunity to resolve the matter, before further steps are taken under 
these procedures.
    (c) Guidance. Nothing in these procedures prevents a grievant from 
seeking guidance from any official who might be helpful respecting the 
submission of a grievance or its resolution.
    (d) Freedom of action. (1) Any grievant, witness, representative or 
other person involved in a proceeding hereunder shall be free from any 
restraint, interference, coercion, harassment, discrimination, or 
reprisal in those proceedings or by virtue of them. The Foreign Affairs 
agencies recognize their obligation to insure compliance with this 
section. Any person involved or having immediate knowledge of any 
alleged breach of this section should call it to the attention of the 
pertinent foreign affairs agency through appropriate channels for 
corrective action as

[[Page 44]]

necessary. Normally such allegations should be brought to the attention 
of the senior agency official at the post; and at Washington, DC, to the 
Director, Grievance Staff for State; Chief, Employee Relations Branch 
for AID and Chief, Employee-Management Relations Division for USIA.
    (2) The grievant has the right to a representative of the grievant's 
own choosing at every stage of the proceedings. The grievant and repre- 
sentative(s) who are under the control, supervision, or responsibility 
of the Foreign Affairs agencies shall be granted reasonable periods of 
administrative leave to prepare, to be present, and to present the 
grievance.
    (3) Any witness under the control, supervision, or responsibility of 
a Foreign Affairs agency shall be granted reasonable periods of 
administrative leave to appear and testify at any such proceeding.
    (4) The Foreign Service Grievance Board established hereunder shall 
have authority to ensure that no copy of the determination of the agency 
head or designee to reject a Grievance Board recommendation, no notation 
of the failure of the Grievance Board to find for the grievant, and no 
notation that a proceeding is pending or has been held, shall be entered 
in the personnel records of the grievant (unless by order of the 
Grievance Board as a remedy for the grievance) or those of any other 
officer or employee connected the grievance. The Foreign Affairs 
agencies shall maintain grievance records under appropriate safeguards 
to preserve confidentiality (Sec.  16.9).



Sec.  16.3  Access to records.

    (a) Grievance Board records. The grievant and the grievant's 
representative shall have access to the record of proceedings, including 
the decision of the Board.
    (b) Agency records. (1) In considering the validity of a grievance, 
the Grievance Board shall have access, to the extent permitted by law, 
to any agency record considered by the Board to be relevant to the 
grievant and the subject matter of the grievance.
    (2) The agency shall, subject to applicable law, promptly furnish 
the grievant any agency record which the grievant requests to 
substantiate the grievance and which the agency or the Grievance Board 
determines is relevant and material to the proceeding. When deemed 
appropriate by the agency or the Board, a grievant may be supplied with 
only a summary of extract of classified material. If a request by a 
grievant for a document is denied prior to or during the agency's 
consideration of a grievance, such denial may be raised by the grievant 
as an integral part of the grievance before the Board.
    (3) These regulations do not require disclosure of any official 
agency record to the Grievance Board or a grievant where the head of 
agency or deputy determines in writing that such disclosure whould 
adversely affect the foreign policy or national security of the United 
States.



Sec.  16.4  Time limits for grievance filing.

    (a) A grievance concerning a continuing practice or condition may be 
presented at any time if its adverse effect is presently continuing. 
Documents contained in official employee personnel files, for example, 
shall be deemed to constitute a continuing condition.
    (b) Subject to paragraph (a) of this section, a grievance under 
these regulations is forever barred, and the Grievance Board shall not 
consider or resolve the grievance, unless the grievance is presented 
within a period of 3 years after the occurrence or occurrences giving 
rise to the grievance, except that if the grievance arose earlier than 2 
years prior to the effective date of these regulations, the grievance 
shall be so barred, and no considered and resolved, unless it is 
presented within a period of 2 years after the effective date of these 
regulations, There shall be excluded from the computation of any such 
period any time during which the grievant was unaware of the grounds 
which are the basis of the grievance and could not have discovered such 
grounds if the grievant had exercised, as determined by the Grievance 
Board, reasonable diligence.
    (c) A grievance shall be deemed presented to the responsible 
official

[[Page 45]]

(Sec.  16.7(b)), transmitted to post or bureau (Sec.  16.7(c)) submitted 
for agency review (Sec.  16.8) or filed with the Grievance Board Sec.  
16.11(a):
    (1) On the date of its dispatch by telegram, registered or certified 
mail, or receipted mail, in a diplomatic pouch;
    (2) On the date of its arrival at the appropriate office, if 
delivered by any other means.



Sec.  16.5  Relationship to other remedies.

    (a) A grievant may not file a grievance under these procedures if 
the grievant has formally requested, prior to filing a grievance, that 
the matter or matters which are the basis of the grievance be considered 
or resolved and relief be provided, under another provision of law, 
regulation, or executive order, and the matter has been carried to final 
decision thereunder on its merits or is still under consideration.
    (b) If a grievant is not prohibited from filing a grievance under 
these regulations by paragraph (a) of this section, the grievant may 
file under these regulations notwithstanding the fact that such 
grievance may be eligible for consideration, resolution, and relief 
under a regulation or executive order other than under these 
regulations, but such election of remedies shall be final upon the 
acceptance of jurisdiction by the Board.



Sec.  16.6  Security clearances.

    The agencies shall use their best endeavors to expedite security 
clearances whenever necessary to ensure a fair and prompt investigation 
and hearing.



Sec.  16.7  Agency procedures.

    (a) Initial consideration. (1) Grievances shall be considered 
through the steps provided in this section before they are filed with 
the Grievance Board.
    (2) During the pendency of agency procedures under this section, the 
grievant may request a suspension of the proposed action of the 
character of separation or termination of the grievant, disciplinary 
action against the grievant, or recovery from the grievant of alleged 
overpayment of salary, expenses or allowances, which is related to the 
grievance. The request must be in writing and addressed to the 
responsible official of the agencies, as designated in Sec.  16.8(a)(2) 
stating the reasons for such suspension. If the request is related to 
separation or termination of the grievant, and the agency considers that 
the grievance is not frivolous and is integral to the proposed action, 
the agency shall suspend its proposed action until completion of agency 
procedures, and for a period thereafter if necessary, consistent with 
paragraph (a) of Sec.  16.11, to permit the grievant to file a grievance 
with the Board, and to request interim relief under paragraph (c) of 
Sec.  16.11. If a request is denied, the agency shall provide the 
grievant in writing the reason for denial. Nothing in these regulations 
shall be deemed to preclude an employee from requesting the suspension 
of any proposed action.
    (b) Consideration by responsible officer. (1) While every effort 
should be made to resolve a complaint by an initial discussion between 
an employee and the supervisor or responsible officer, an employee may 
present the complaint as a grievance by submitting it in writing, to 
that person. (The term ``responsible officer'' as used herein includes 
any appropriate officer who has immediate jurisdiction over the 
complaint.) The presentation shall include a description of the act or 
condition which is the subject of the grievance; its effect on the 
grievant; any provision of law, regulation, or agency policy which the 
grievant may believe was violated or misapplied; any documentary 
evidence readily available to the grievant on which the grievance rests; 
the identity of individuals having knowledge of relevant facts; and a 
statement of the remedial action requested.
    (2) The responsible officer, whenever possible, shall use 
independent judgment in deciding whether the grievance is meritorious 
and what the resolution of it should be. Within 15 days from receipt of 
the written grievance, the responsible officer shall provide the 
grievant with a written response, which shall include a statement of any 
proposed resolution of the grievance.
    (3) If the response denies in whole or in part the remedial action 
requested, such response shall notify the grievant of the time within 
which to appeal the

[[Page 46]]

decision, and identity of the senior official, or designee, to whom the 
appeal should be addressed. In those cases in which the senior official, 
or designee, is the responsible officer to whom the grievance was 
initially presented or has participated in the decision process and has 
formally approved the written response of the responsible officer, the 
grievant shall be so notified and advised that the grievance may be 
submitted directly to the agency for review under Sec.  16.8.
    (c) Bureau or post review. (1) If the responsible officer's written 
response does not resolve the grievance to the grievant's satisfaction, 
within 10 days of receiving it (or, if no response is received, within 
25 days after first presenting the grievance), the grievant may pursue 
the grievance by transmitting it in writing to the senior official, or 
the designee in the bureau or post which has authority to resolve the 
grievance. The written transmission shall include all the information 
required by paragraph (b)(1) of this section and copies of any 
correspondence under paragraphs (b) (2) and (3) of this section.
    (2) Within 15 days from receipt of the grievance that official shall 
provide the grievant with a written decision, including any proposed 
resolution of the grievance. If the decision denies in whole or in part 
the remedial action requested, the communication shall notify the 
grievant of the time within which to submit the grievance for agency 
review and the identity of the appropriate agency official to whom the 
grievance should be addressed.



Sec.  16.8  Agency review.

    (a) Submission. (1) An employee may submit the grievance for agency 
review if the grievance (i) is not within the jurisdiction of a post or 
bureau, or (ii) the grievance has been considered but not resolved to 
the grievant's satisfaction within the post or bureau as provided in 
Sec.  16.7(c) within 10 days after receipt of the post's or bureau's 
decision (or, if no response is received, within 25 days after 
presenting it to the senior official or the designee). The grievant 
shall submit it in writing to the responsible official of the agency 
which has control of the act or condition which is the subject of the 
grievance.
    (2) Responsible officials. The responsible officials of the agencies 
are the Deputy Assistant Secretary for Personnel (State), the Director 
of Personnel and Manpower (AID), and the Chief, Employee-Management 
Relations Division (USIA).
    (3) Contents. (i) A request for agency review shall include a 
description of the act or condition which is the subject of the 
grievance; its effect on the grievant; any provision of law, regulation 
or agency policy which the grievant may believe was violated or 
misapplied; copies of any correspondence under Sec.  16.7(a), any 
documentary evidence readily available to the grievant on which the 
grievance rests; the identity of individuals having knowledge of 
relevant facts; and a statement of the remedial action requested.
    (ii) The responsible official shall review the grievance on the 
basis of available documentary evidence, and, in that official's 
discretion, interview persons having knowledge of the facts. The agency 
review shall be completed and its decision dispatched within 90 days 
from the date of the initial written presentation of the grievance. The 
grievant shall be informed in writing of the findings of the responsible 
official and any proposed resolution of the grievance. The communication 
shall also include the time within which the grievant may file a 
grievance with the Grievance Board and the appropriate procedure to be 
followed in this respect.



Sec.  16.9  Records.

    All official records concerning agency consideration of grievances, 
except those appropriate to implementation of decisions favorable to 
grievants, shall be kept separate from the official personnel record of 
the grievant and any other individuals connected with the grievance, and 
shall not be accessible to agency personnel other than the grievant, the 
grievant's representative, and those responsible for consideration of 
grievances.

[[Page 47]]



Sec.  16.10  Foreign Service Grievance Board.

    (a) Establishment and composition. There is hereby established a 
Foreign Service Grievance Board for the Department of State, the Agency 
for International Development and the U.S. Information Agency to 
consider and resolve grievances under these procedures.
    (b) The Grievance Board shall consist of not less than 5 members nor 
more than 15 members (including a chairperson) who shall be independent, 
distinguished citizens of the United States, well known for their 
integrity, who are not active officers, employees, or consultants of the 
Foreign Affairs agencies (except consultants who served as public 
members of the Interim Grievance Board previously established under 
section 660, Volume 3, Foreign Affairs Manual) but may be retired 
officers or employees. On its initial establishment, the Board shall 
consist of 15 members including chairperson.
    (c) The Board may act by or through panels or individual members 
designated by the chairperson, except that hearings within the 
continental United States shall be held by panels of at least three 
members unless the parties agree otherwise. Reference in these 
regulations to the Grievance Board shall be considered to be reference 
to a panel or member of the Grievance Board where appropriate. All 
members of the Grievance Board shall act as impartial individuals in 
considering grievances.
    (d) The members of the Grievance Board, including the chairperson, 
shall be appointed by the Secretary of State after being designated by 
the written agreement of the Foreign Affairs agencies and the employee 
organization.
    (e) The Board chairperson and other members shall be appointed for 
terms of 2 years, subject to renewal upon the agreement of the Foreign 
Affairs agencies and the employee organization; except that the terms of 
7 of the initially appointed members shall expire at the end of one 
year.
    (f) Any vacancies shall be filled by the Secretary of State upon the 
nomination by the Board following the agreement of the agencies and the 
employee organization.
    (g) Compensation. Members, including the chairperson, who are not 
employees of the Federal Government shall receive compensation for each 
day they are performing their duties as members of the Grievance Board 
(including travel time) at the daily rate paid an individual at GS-18 
level of the General Schedule under section 5332 of title 5 of the 
United States Code.
    (h) Removal. Grievance Board members shall be subject to removal by 
the Secretary of State for corruption, other malfeasance, or the 
demonstrated incapacity to perform their functions. No member shall be 
removed from office until after the Board of the Foreign Service has 
conducted a hearing and made its recommendations in writing to the 
Secretary of State, except where the right to a hearing is waived in 
writing. The Board of the Foreign Service shall provide a member with 
full notice of the charges against that member, and afford a member the 
right to counsel, to examine and cross-examine witnesses, and to present 
documentary evidence.
    (i) Grievance Board procedures. In accordance with part J, title VI 
of the Act, the Board may adopt regulations concerning the organization 
of the Board and such other regulations as mey be necessary to govern 
its proceedings.
    (j) Board facilities and staff support. The Grievance Board may 
obtain facilities, services, and supplies through the general 
administrative services of the Department of State. All expenses of the 
Board, including necessary costs of the grievant's travel and travel-
related expenses, shall be paid out of funds appropriated to the 
Department for obligation and expenditure by the Board. At the request 
of the Board, officers and employees on the rolls of the Foreign Affairs 
agencies may be assigned as staff employees to the Grievance Board. 
Within the limit of appropriated funds, the Board may appoint and fix 
the compensation of such other employees as the Board considers 
necessary to carry out its functions. The officers and employees so 
appointed or assigned shall be responsible solely to the Grievance Board 
and the Board

[[Page 48]]

shall prepare the performance evaluation reports for such officers and 
employees. The records of the Grievance Board shall be maintained by the 
Board and shall be separate from all other records of the Foreign 
Affairs agencies.



Sec.  16.11  Grievance Board consideration of grievances.

    (a) Filing of grievance. A grievant whose grievance is not resolved 
satisfactorily under agency procedures (Sec.  16.7) shall be entitled to 
file a grievance with the Grievance Board no later than 60 days after 
receiving the agency decision. In the event that an agency has not 
provided its decision within 90 days of presentation, the grievant shall 
be entitled to file a grievance with the Grievance Board no later than 
150 days after the date of presentation to the agency. The Board may 
extend or waive, for good cause, the time limits stated in this section.
    (b) Exhaustion of agency procedures. In the event that the Grievance 
Board finds that a grievance has not been presented for agency 
consideration or that a grievance has been expanded or modified to 
include materially different elements, the Board shall return the 
grievance to the official responsible for final agency review unless the 
agency waives any objection to Board consideration of the grievance 
without such review.
    (c) Prescription of interim relief. If the Grievance Board 
determines that the agency is considering any action of the character of 
separation or termination of the grievant, disciplinary action against 
the grievant, or recovery from the grievant of alleged overpayment of 
salary, expenses, or allowances, which is related to a grievance pending 
before the Board, and that such action should be suspended, the agency 
shall suspend such action until the Board has ruled upon the grievance. 
Notwithstanding such suspension of action, the head of the agency 
concerned or a chief of mission or principal officer may exclude an 
officer or employee from official premises or from the performance of 
specified duties when such exclusion is determined in writing to be 
essential to the functioning of the post or office to which the officer 
or employee is assigned.
    (d) Inquiry into grievances. The Board shall conduct a hearing at 
the request of a grievant in any case which involves disciplinary 
action, or a grievant's retirement from the Service under sections 633 
and 634 of the Act, or which in the judgment of the Board can best be 
resolved by a hearing or by presentation of oral argument. In those 
grievances in which the Board holds no hearing, the Board shall offer to 
each party the opportunity to review and to supplement, by written 
submission, the record of proceedings prior to its decision.



Sec.  16.12  Hearing.

    (a) Appearances and representation. The grievant, a reasonable 
number of representatives of the grievant's own choosing, and a 
reasonable number of agency representatives, are entitled to be present 
at the hearing. The Grievance Board may, after considering the views of 
the parties and any other individuals connected with the grievance, 
decide that a hearing should be open to others.
    (b) Conduct of hearing. (1) Testimony at a hearing shall be given by 
oath or affirmation which any Board member or person designated by the 
Board shall have authority to administer.
    (2) Each party shall be entitled to examine and cross-examine 
witnesses at the hearing or by deposition, and to serve interrogatories 
answered by the other party unless the Board finds such interrogatory 
irrelevant or immaterial. Upon request of the Board, or upon a request 
of the grievant deemed relevant and material by the Board, and agency 
shall promptly make available at the hearing or by deposition any 
witness under its control, supervision or responsibility, except that if 
the Board determines that the presence of such witness at the hearing is 
required for just resolution of the grievance, then the witness shall be 
made available at the hearing, with necessary costs and travel expenses 
provided by the agency.
    (3) During any hearings held by the Board, any oral or documentary 
evidence may be received but the Board

[[Page 49]]

shall exclude any irrelevant, immaterial, or unduly repetitious evidence 
normally excluded in hearings conducted under the Administrative 
Procedures Act (5 U.S.C. 556).
    (4) A verbatim transcript shall be made of any hearing and shall be 
part of the record of proceedings.



Sec.  16.13  Decisions.

    (a) Upon completion of the hearing or the compilation of such record 
as the Board may find appropriate in the absence of a hearing, the board 
shall expeditiously decide the grievance on the basis of the record of 
proceedings. In each case the decision of the Board shall be in writing, 
shall include findings of fact, and shall include the reasons for the 
Board's decision.
    (b) If the Grievance Board finds that the grievance is meritorious, 
the Board shall have the authority within the limitations of the 
authority of the head of the agency, to direct the agency:
    (1) To correct any official personnel record relating to the 
grievant which the Board finds to be inaccurate, erroneous, or falsely 
prejudicial;
    (2) To reverse and administrative decision denying the grievant 
compensation including related within-class salary increases pursuant to 
section 625 of the Act or any other perquisite of employment authorized 
by law or regulation when the Board finds that such denial was 
arbitrary, capricious, or contrary to law or regulation;
    (3) To retain in service and employee whose termination would be in 
consequence of the matter by which the employee is aggrieved;
    (4) To reinstate with back pay, under applicable law and 
regulations, an employee where it is clearly established that the 
separation or suspension without pay of the employee was unjustified or 
unwarranted;
    (5) To order an extension of the time of an employee's eligibility 
for promotion to a higher class where the employee suffered career 
impairment in consequence of the matter by which the employee is 
aggrieved;
    (6) To order that an employee be provided with facilities relating 
to the physical working environment which the employee has been denied 
arbitrarily, capriciously or in violation of applicable regulation.
    (c) Such orders of the Board shall be final, subject to judicial 
review as provided for in section 694 of the Act, except that 
reinstatement of former officers who have filed grievances under Sec.  
16.1(c)(7) shall be presented as Board recommendations, the decision on 
which shall be subject to the sole discretion of the agency head or 
designee, who shall take into account the needs of the Service in 
deciding on such recommendations, and shall not be subjected to judicial 
review under section 694 of the Act. The reason(s) for the agency head's 
(or designee's) decision will be conveyed in writing to the Board and 
the grievant.
    (d) If the Board finds that the grievance is meritorious and that 
remedial action should be taken that directly relates to promotion or 
assignment of the grievant, or to other remedial action, including 
additional step increases, not provided for in paragraph (b) of this 
section, or if the Board finds that the evidence before it warrants 
disciplinary action against any officer or employee, it shall make an 
appropriate recommendation to the head of the agency, and forward to the 
head of the agency the record of the Board's proceedings, including the 
transcript of the hearing, if any. The head of the agency (or designee, 
who shall not have direct responsibility for administrative management) 
shall make a written decision to the parties and to the Board on the 
Board's recommendation within 30 days from receipt of the 
recommendation. A recommendation of the Board may be rejected in part or 
in whole if the action recommended would be contrary to law, would 
adversely affect the foreign policy or security of the United States, or 
would substantially impair the efficiency of the Service. If the 
decision rejects the Board's recommendation in part or in whole, the 
decision shall state specifically any and all reasons for such action. 
Pending the decision, there shall be no ex parte communications 
concerning the grievance between the agency head, or designee, and any 
person involved in the grievance proceeding.

[[Page 50]]



Sec.  16.14  Reconsideration of a grievance.

    A grievant whose grievance is found not to be meritorious by the 
Board may obtain reconsideration by the Board only upon presenting newly 
discovered or previously unavailable material evidence not previously 
considered by the Board and then only upon approval of the Board.



Sec.  16.15  Judicial review.

    Any aggrieved party may obtain judicial review of these regulations, 
and revisions thereto, and final actions of the agency head (or 
designee) or the Grievance Board hereunder, in the District Courts of 
the United States, in accordance with the standards set forth in chapter 
7 of title 5 of the United States Code. Section 706 of title 5 shall 
apply without limitation or exception.



PART 17_OVERPAYMENTS FROM THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND 
UNDER THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM (FSRDS) 
AND THE FOREIGN SERVICE PENSION SYSTEM (FSPS)--Table of Contents



Sec.
17.1 General.
17.2 Conditions for waiver of recovery of an overpayment.
17.3 Fault.
17.4 Equity and good conscience.
17.5 Financial hardship.
17.6 Ordinary and necessary living expenses.
17.7 Waiver precluded.
17.8 Burdens of proof.
17.9 Procedures.

    Authority: 22 U.S.C. 4047(d); 22 U.S.C. 4071(b); 5 U.S.C. 8470(b); 5 
CFR 845.301-07.

    Source: 71 FR 16229, Mar. 31, 2006, unless otherwise noted.



Sec.  17.1  General.

    This part establishes procedures for notifying individuals of their 
rights if they have received an overpayment from the Foreign Service 
Retirement and Disability Fund under Chapter 8 of the Foreign Service 
Act of 1980, as amended, including their right to contest the 
determination that there has been an overpayment and the right to 
request a waiver of recovery of the overpayment. This part also provides 
the procedures for administrative determination of these rights and for 
appeals of negative determinations.



Sec.  17.2  Conditions for waiver of recovery of an overpayment.

    (a) Foreign Service Retirement and Disability System. Recovery of an 
overpayment from the Foreign Service Retirement and Disability Fund 
under the Foreign Service Retirement and Disability System may be waived 
pursuant to section 4047(d), of title 22, United States Code when the 
individual is without fault and recovery would be against equity and 
good conscience or administratively infeasible.
    (b) Foreign Service Pension System. Recovery of an overpayment from 
the Foreign Service Retirement and Disability Fund under the Foreign 
Service Pension System may be waived pursuant to section 4071(b) of 
title 22, United States Code and section 8470(b) of title 5, United 
States Code when the individual is without fault and recovery would be 
against equity and good conscience.
    (c) When it has been determined that the recipient of an overpayment 
is ineligible for waiver, the individual is nevertheless entitled to an 
adjustment in the recovery schedule if he or she shows that it would 
cause him or her financial hardship to make payment at the rate 
scheduled.



Sec.  17.3  Fault.

    A recipient of an overpayment is without fault if he or she 
performed no act of commission or omission that resulted in the 
overpayment. The fact that the Department of State or other agency may 
have been at fault in initiating an overpayment will not necessarily 
relieve the individual from liability.
    (a) Considerations. Pertinent considerations in finding fault are--
    (1) Whether payment resulted from the individual's incorrect but not 
necessarily fraudulent statement, which he/she should have known to be 
incorrect;
    (2) Whether payment resulted from the individual's failure to 
disclose material facts in his/her possession which

[[Page 51]]

he/she should have known to be material; or
    (3) Whether he/she accepted a payment which he/she knew or should 
have known to be erroneous.
    (b) Mitigation factors. The individual's age, physical and mental 
condition or the nature of the information supplied to him or her by the 
Department of State or a Federal agency may mitigate against finding 
fault if one or more contributed to his or her submission of an 
incorrect statement, a statement which did not disclose material facts 
in his or her possession, or his or her acceptance of an erroneous 
overpayment.



Sec.  17.4  Equity and good conscience.

    (a) Defined. Recovery is against equity and good conscience when--
    (1) It would cause financial hardship to the person from whom it is 
sought;
    (2) The recipient of the overpayment can show (regardless of his or 
her financial circumstances) that due to the notice that such payment 
would be made or because of the incorrect payment either he/she has 
relinquished a valuable right or changed positions for the worse; or
    (3) Recovery could be unconscionable under the circumstances.
    (b) [Reserved]



Sec.  17.5  Financial hardship.

    (a) Waiver of overpayment will not be allowed in any case prior to 
receipt and evaluation of a completed Statement of Financial Status, 
duly sworn by the recipient of the overpayment.
    (b) Financial hardship may be deemed to exist in, but not limited 
to, those situations where the recipient from whom collection is sought 
needs substantially all of his or her current income and liquid assets 
to meet current ordinary and necessary living expenses and liabilities.
    (1) Considerations. Some pertinent considerations in determining 
whether recovery would cause financial hardship are as follows:
    (i) The individual's financial ability to pay at the time collection 
is scheduled to be made.
    (ii) Income to other family member(s), if such member's ordinary and 
necessary living expenses are included in expenses reported by the 
individual.
    (c) Exemptions. Assets exempt from execution under State law should 
not be considered in determining an individual's ability to repay the 
indebtedness, rather primary emphasis shall be placed upon the 
individual's liquid assets and current income in making such 
determinations.



Sec.  17.6  Ordinary and necessary living expenses.

    An individual's ordinary and necessary living expenses include rent, 
mortgage payments, utilities, maintenance, food, clothing, insurance 
(life, health and accident), taxes, installment payments, medical 
expenses, support expenses when the individual is legally responsible, 
and other miscellaneous expenses which the individual can establish as 
being ordinary and necessary.



Sec.  17.7  Waiver precluded.

    (a) Waiver of an overpayment cannot be granted when:
    (1) The overpayment was obtained by fraud; or
    (2) The overpayment was made to an estate.
    (b) [Reserved]



Sec.  17.8  Burdens of proof.

    (a) Burden of the Department of State. The Bureau of Resource 
Management, Department of State, must establish by the preponderance of 
the evidence that an overpayment occurred.
    (b) Burden of individual. The recipient of an overpayment must 
establish by substantial evidence that he or she is eligible for waiver 
or an adjustment in the recovery schedule.



Sec.  17.9  Procedures.

    (a) Notice. The Bureau of Resource Management, Department of State, 
shall give written notification to any individual who has received an 
overpayment promptly by first-class mail to the individual at the 
individual's most current address in the records of the Bureau of 
Resource Management. The written notice shall inform the individual of:
    (1) The amount of the overpayment;
    (2) The cause of the overpayment;

[[Page 52]]

    (3) The intention of the Department to seek repayment of the 
overpayment,
    (4) The date by which payment should be made to avoid the imposition 
of interest, penalties, and administrative costs;
    (5) The applicable standards for the imposing of interest, 
penalties, and administrative costs;
    (6) The department's willingness to discuss alternative payment 
arrangements and how the individual may offer to enter into a written 
agreement to repay the amount of the overpayment under terms acceptable 
to the Department; and
    (7) The name, address and telephone number of a contact person 
within the Bureau of Resource Management. The written notice also shall 
inform the individual of their right to contest the overpayment, their 
right to request a waiver of recovery of the overpayment, and the 
procedures to follow in case of such contest or request for waiver of 
recovery. The notification shall allow at least 30 days from its date 
within which the individual may contest in writing the overpayment or 
request a waiver of recovery, including with their submission all 
evidence and arguments in support of their position.
    (b) Administrative file. The Bureau of Resource Management will 
prepare an administrative file as a basis for determination in each case 
where an individual contests a claim to recover overpayment or requests 
waiver of recovery of the overpayment. On the basis of the 
administrative file, the Chief Financial Officer or his or her delegate, 
shall make the final administrative determination.
    (c) Additional information. At any time before the final 
administrative decision, the Department may request the individual to 
supplement his or her submission with additional factual information and 
may request that the individual authorize the Department of State to 
have access to bank and other financial records bearing on the 
application of these regulations. If the individual, without good cause 
shown, fails or refuses to produce the requested additional information 
or authorization, the Department of State is entitled to make adverse 
inferences with respect to the matters sought to be amplified, 
clarified, or verified.
    (d) Decision and right of appeal. The final administrative decision 
shall be reduced to writing and sent to the individual. If the decision 
is adverse to the individual, the notification of the decision shall 
include a written description of the individual's rights of appeal to 
the Foreign Service Grievance Board. The Foreign Service Grievance Board 
shall consider any appeal under this part in accordance with the 
regulations of the Board set forth in 22 CFR part 901.



PART 18_REGULATIONS CONCERNING POST EMPLOYMENT CONFLICT OF INTEREST--
Table of Contents



                      Subpart A_General Provisions

Sec.
18.1 Scope.
18.2 Definitions.
18.3 Director General.
18.4 Records.

                       Subpart B_Applicable Rules

18.5 Interpretative standards; advisory opinions.

            Subpart C_Administrative Enforcement Proceedings

18.6 Authority to prohibit appearances.
18.7 Report of violation by a former employee.
18.8 Institution of proceeding.
18.9 Contents of complaint.
18.10 Service of complaint and other papers.
18.11 Answer.
18.12 Motions and requests.
18.13 Representation.
18.14 Hearing examiner.
18.15 Hearings.
18.16 Evidence.
18.17 Depositions.
18.18 Proposed findings and conclusions.
18.19 Decision of the hearing examiner.
18.20 Appeal to the Board of Appellate Review.
18.21 Decision of the Board of Appellate Review.
18.22 Notice of disciplinary action.

    Authority: 18 U.S.C. 207, as amended, 92 Stat. 1864.

    Source: 46 FR 2608, Jan. 12, 1981, unless otherwise noted.

[[Page 53]]



                      Subpart A_General Provisions



Sec.  18.1  Scope.

    This part contains rules governing disciplinary action against a 
former officer or employee of the Department of State, including the 
Foreign Service, because of a violation of the post employment conflict 
of interest prohibitions. Such disciplinary action may include 
prohibition from practice before the Department of State and any 
component thereof as defined in this part.



Sec.  18.2  Definitions.

    For the purpose of this part--
    (a) The term Department means the Department of State and includes 
the Foreign Service.
    (b) The term Director General means the Director General of the 
Foreign Service and Director of Personnel.
    (c) The term practice means any informal or formal appearance 
before, or, with the intent to influence, any oral or written 
communication to the Department on a pending matter of business on 
behalf of any other person (except the United States).



Sec.  18.3  Director General.

    The Director General shall institute and provide for the conduct of 
disciplinary proceedings involving former employees of the Department as 
authorized by 18 U.S.C. 207(j), and perform such other duties as are 
necessary or appropriate to carry out his/her functions under this part.



Sec.  18.4  Records.

    The roster of all persons prohibited from practice before the 
Department shall be available to public inspection at the Office of 
Director General. Other records may be disclosed upon specific request, 
in accordance with appropriate disclosure regulations of the Department.



                       Subpart B_Applicable Rules



Sec.  18.5  Interpretative standards; advisory opinions.

    (a) A determination that a former officer or employee of the 
Department violated 18 U.S.C. 207(a), (b) or (c) will be made in 
conformance with the standards established in the interpretative 
regulations promulgated, either in interim or final form by the Office 
of Government Ethics and published at 5 CFR part 737.
    (b) Former officers and employees of the Department wanting to know 
whether a proposed course of conduct would be in conformity with the Act 
or the interpretive regulations thereunder may contact the Assistant 
Legal Adviser for Management to request an advisory opinion.



            Subpart C_Administrative Enforcement Proceedings



Sec.  18.6  Authority to prohibit appearances.

    Pursuant to 18 U.S.C 207(j), if the Director General finds, after 
notice and opportunity for a hearing, that a former officer or employee 
of the Department has violated 18 U.S.C. 207(a), (b) or (c), the 
Director General in his/her discretion may prohibit that person from 
engaging in practice before the Department for a period not to exceed 
five years, or may take other appropriate disciplinary action.



Sec.  18.7  Report of violation by a former employee.

    (a) If an officer or employee of the Department has reason to 
believe that a former officer or employee of the Department has violated 
any provision of this part, or if any such officer or employee receives 
information to that effect, he/she shall promptly make a written report 
thereof, which report or a copy thereof shall be forwarded to the 
Director General. If any other person has information of such 
violations, he/she may make a report thereof to the Director General or 
to any officer or employee of the Department.
    (b) The Director General shall coordinate proceedings under this 
part with the Department of Justice in cases where it initiates criminal 
prosecution.



Sec.  18.8  Institution of proceeding.

    Whenever the Director General determines that there is sufficient 
reason to believe that any former officer or employee of the Department 
has violated 18 U.S.C. 207(a), (b) or (c), he/she may

[[Page 54]]

institute an administrative disciplinary proceeding. The proceeding may 
be for that person's suspension from practice before the Department or 
for some lesser penalty. The proceeding shall be instituted by a 
complaint which names the respondent and is signed by the Director 
General and filed in his/her office. Except in cases of willfulness, or 
where time, the nature of the proceeding, or the public interest does 
not permit, a proceeding will not be instituted under this section until 
facts or conduct which may warrant such action have been called to the 
attention of the proposed respondent in writing and he/she has been 
accorded the opportunity to provide his/her position on the matter.



Sec.  18.9  Contents of complaint.

    A complaint shall plainly and concisely describe the allegations 
which constitute the basis for the proceeding. A complaint shall be 
deemed sufficient if it fairly informs the respondent of the charges 
against him/her so that the respondent is able to prepare a defense. 
Written notification shall be given of the place and of the time within 
which the respondent shall file his/her answer, which time shall not be 
less than 15 days from the date of service of the complaint. Notice 
shall be given that a decision by default may be rendered against the 
respondent in the event he/she fails to file an answer.



Sec.  18.10  Service of complaint and other papers.

    (a) Complaint. The complaint or a copy thereof may be served upon 
the respondent by certified mail; by delivering it to the respondent or 
his/her attorney or agent of record either in person; or by leaving it 
at the office or place of business of the respondent, attorney or agent; 
in any other manner which has been agreed to by the respondent; or by 
first-class mail in case of a person resident abroad.
    (b) Service of papers other than complaint. Any paper other than the 
complaint may be served upon a respondent as provided in paragraph (a) 
of this section or by mailing the paper by first-class mail to the 
respondent at the last address known to the Director General, or by 
mailing the paper by first-class mail to the respondent's attorney or 
agent of record. Such mailing shall constitute complete service.
    (c) Whenever the filing of a paper is required or permitted in 
connection with a proceeding, and the place of filing is not specified 
by this subpart or by rule or order of the hearing examiner, the paper 
shall be filed with the Director General, Department of State, 
Washington, DC 20520. All papers shall be filed in duplicate.



Sec.  18.11  Answer.

    (a) Filing. The respondent's answer shall be filed in writing within 
the time specified in the complaint or notice of institution of the 
proceeding, unless on application the time is extended by the Director 
General. The answer shall be filed in duplicate with the Director 
General.
    (b) Contents. The answer shall contain a statement of facts which 
constitute the grounds of defense, and it shall specifically admit or 
deny each allegation set forth in the complaint. The respondent may also 
state affirmatively special matters of defense.
    (c) Failure to deny or answer allegations in the complaint. Every 
allegation in the complaint which is not denied in the answer shall be 
deemed to be admitted and may be considered as proved. Failure to file 
an answer within the time prescribed in the notice to the respondent, 
except as the time for answer is extended by the Director General shall 
constitute a waiver of hearing, and the Director General may make his/
her decision by default without a hearing or further procedure.



Sec.  18.12  Motions and requests.

    Motions and requests, including requests to intervene, may be filed 
with the Director General.



Sec.  18.13  Representation.

    A respondent or proposed respondent may appear in person or he/she 
may be represented by counsel or other representative. The Director 
General may be represented by an attorney or other employee of the 
Department.



Sec.  18.14  Hearing examiner.

    (a) After an answer is filed, if the Director General decides to 
continue the

[[Page 55]]

administrative disciplinary proceedings, he/she shall appoint a hearing 
examiner to conduct those proceedings under this part.
    (b) Authorities. Among other powers, the hearing examiner shall have 
authority, in connection with any proceeding assigned or referred to 
him/her, to do the following:
    (1) Take evidence under appropriate formalities;
    (2) Make rulings upon motions and requests;
    (3) Determine the time and place of hearing and regulate its course 
and conduct;
    (4) Adopt rules of procedure and modify the same from time to time 
as occasion requires for the orderly disposition of proceedings;
    (5) Rule upon offers of proof, receive relevant evidence, and 
examine witnesses;
    (6) Take or authorize the taking of depositions;
    (7) Receive and consider oral or written argument on facts or law;
    (8) Hold or provide for the holding of conferences for the 
settlement or simplification of the issues by consent of the parties;
    (9) Perform such acts and take such measures as are necessary or 
appropriate to the efficient conduct of any proceeding; and
    (10) Make initial decisions.



Sec.  18.15  Hearings.

    Hearings shall be stenographically recorded and transcribed and the 
testimony of witnesses shall be taken under oath or affirmation. 
Hearings will be closed unless an open hearing is requested by the 
respondent, except that if classified information or protected 
information of third parties is likely to be adduced at the hearing, it 
will remain closed. If either party to the proceeding fails to appear at 
the hearing, after due notice thereof has been sent to him/her, he/she 
shall be deemed to have waived the right to a hearing and the hearing 
examiner may make a decision against the absent party by default.



Sec.  18.16  Evidence.

    The rules of evidence prevailing in courts of law and equity are not 
controlling in hearings under this part. However, the hearing examiner 
shall exclude evidence which is irrelevant, immaterial, or unduly 
repetitious.



Sec.  18.17  Depositions.

    Depositions for use at a hearing may, with the consent of the 
parties in writing or the written approval of the hearing examiner, be 
taken by either the Director General or the respondent or their duly 
authorized representatives. Depositions may be taken upon oral or 
written interrogatories. There shall be at least 10 days written notice 
to the other party. The requirement of a 10-day written notice may be 
waived by the parties in writing. When a deposition is taken upon 
written interrogatories, any cross-examination shall be upon written 
interrogatories. Copies of such written interrogatories shall be served 
upon the other party with the notice, and copies of any written cross-
interrogation shall be mailed or delivered to the opposing party at 
least 5 days before the date of taking the depositions, unless the 
parties mutually agree otherwise. Expenses in the reporting of 
depositions shall be borne by the party at whose instance the deposition 
is taken.



Sec.  18.18  Proposed findings and conclusions.

    Except in cases where the respondent has failed to answer the 
complaint or where a party has failed to appear at the hearing, the 
hearing examiner, prior to making his/her decision, shall afford the 
parties a reasonable opportunity to submit proposed findings and 
conclusions and supporting reasons therefor.



Sec.  18.19  Decision of the hearing examiner.

    As soon as practicable after the conclusion of a hearing and the 
receipt of any proposed findings and conclusions timely submitted by the 
parties, the hearing examiner shall make the initial decision. The 
decision shall include
    (a) A statement of findings and conclusions, as well as the reasons 
or basis therefor, upon all the material issues of fact, law, or 
discretion presented on the record, and

[[Page 56]]

    (b) An order of suspension from practice before the Department or 
other appropriate disciplinary action, or an order of dismissal of the 
complaint. The hearing examiner shall file the decision with the 
Director General and shall transmit a copy thereof to the respondent or 
his/her attorney of record. A party adversely affected by the decision 
shall be given notice of his or her right to appeal to the Board of 
Appellate Review (part 7 of this chapter) within 30 days from the date 
of the hearing examiner's decision.



Sec.  18.20  Appeal to the Board of Appellate Review.

    Within 30 days from the date of the hearing examiner's decision, 
either party may appeal to the Board of Appellate Review. The appeal 
shall be taken by filing notice of appeal, in triplicate, with the Board 
of Appellate Review, which shall state with particularity exceptions to 
the decision of the hearing examiner and reasons for such exceptions. If 
an appeal is by the Director General, he/she shall transmit a copy 
thereof to the respondent. Within 30 days after receipt of an appeal or 
copy thereof, the other party may file a reply brief, in triplicate, 
with the Board of Appellate Review. If the reply brief is filed by the 
Director General, he/she shall transmit a copy of it to the respondent. 
The Director General shall transmit the entire case record to the Board 
of Appellate Review within 30 days after an appeal has been taken.



Sec.  18.21  Decision of the Board of Appellate Review.

    The Board of Appellate Review shall decide the appeal on the basis 
of the record. The decision of the Board shall be final, and not subject 
to further administrative review. Copies of the Board's decision shall 
be forwarded promptly to the parties by the Board.



Sec.  18.22  Notice of disciplinary action.

    Upon the issuance of a final order suspending a former officer or 
employee from practice before the Department, the Director General shall 
give notice thereof to appropriate officers and employees of the 
Department. Officers and employees of the Department shall refuse to 
participate in any appearance by such former officer or employee or to 
accept any communication which constitutes the prohibited practice 
before the Department during the period of suspension. The Director 
General shall take other appropriate disciplinary action as may be 
required by the final order.



PART 19_BENEFITS FOR SPOUSES AND FORMER SPOUSES OF PARTICIPANTS 
IN THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM--Table of Contents



Sec.
19.1 Authorities.
19.2 Definitions.
19.3 Participants.
19.4 Special rules for computing creditable service for purposes of 
          payments to former spouses.
19.5 Required notifications to department respecting spouses and former 
          spouses.
19.5-1 Notification from participant or annuitant.
19.5-2 Notification to Department from former spouses.
19.5-3 Residence of spouse during service at unhealthful post.
19.6 Court orders and divorce decrees.
19.6-1 Orders by a court.
19.6-2 Qualifying court order.
19.6-3 Application for payment.
19.6-4 Date of court orders.
19.6-5 Preliminary review.
19.6-6 Notification.
19.6-7 Decision.
19.6-8 Allotment to beneficiary.
19.6-9 Limitations.
19.6-10 Liability.
19.7 Spousal agreements.
19.7-1 Purpose.
19.7-2 Agreement with spouse.
19.7-3 Agreement with former spouse.
19.7-4 Form of agreement.
19.7-5 Limitations.
19.7-6 Duration and precedence of spousal agreements.
19.8 Obligations of members.
19.9 Pension benefits for former spouses.
19.9-1 Entitlement.
19.9-2 Commencement and termination.
19.9-3 Computation and payment of pension to former spouse.
19.9-4 Effect on annuitant.
19.10 Types of annuities to members.
19.10-1 Full annuity.
19.10-2 Reduced annuity with regular survivor annuity to spouse or 
          former spouse.
19.10-3 Marriage after retirement.
19.10-4 Death or divorce of a spouse and remarriage after retirement.

[[Page 57]]

19.10-5 Reduced annuity with additional survivor annuity to spouse of 
          former spouse.
19.10-6 Benefits for recall service.
19.11 Survivor benefits.
19.11-1 Kinds of survivor benefits.
19.11-2 Regular survivor annuity for a former spouse.
19.11-3 Regular survivor annuity for a spouse.
19.11-4 Procedure in event a spouse or former spouse is missing.
19.11-5 Commencement, termination and adjustment of annuities.
19.11-6 Death during active duty.
19.11-7 Annuity payable to surviving child or children.
19.11-8 Required elections between survivor benefits.
19.12 Employment in a Government agency.
19.13 Lump-sum payment.
19.13-1 Lump-sum credit.
19.13-2 Share payable to a former spouse.
19.13-3 Payment after death of principal.
19.14 Waiver of annuity.

    Authority: Secs. 206 and 801 of Foreign Service Act of 1980 (94 
Stat. 2079, 2102); Sec. 4 of Act of May 26, 1949 (22 U.S.C. 2658).

    Source: 46 FR 12958, Feb. 19, 1981, unless otherwise noted. 
Redesignated at 46 FR 18970, Mar. 27, 1981.



Sec.  19.1  Authorities.

    Chapter 8 of the Foreign Service Act of 1980 (Pub. L. 96-465, 94 
Stat. 2102) (hereafter ``the Act''), and any Executive order issued 
under authority of section 827 of the Act.



Sec.  19.2  Definitions.

    (a) Agencies means the Department, the Agency for International 
Development (AID), the International Communication Agency (USICA), the 
Foreign Agricultural Service (FAS), and the Foreign Commercial Service 
(FCS).
    (b) Annuitant means any person including a former participant or 
survivor who meets all requirements for an annuity from the Fund under 
the provisions of the Foreign Service Act of 1980, or any other law and 
who has filed claim therefor.
    (c) Basic salary means the salary fixed by law or administrative 
action before deductions and exclusive of additional compensation of any 
kind. It includes the salary fixed by sections 401, 402, 403, and 406 of 
the Act and salary incident to assignment under section 503 of the Act. 
Basic salary excludes premium pay for overtime, night, Sunday and 
holiday work, allowances, post and special differentials, and 
charg[eacute] pay.
    (d) Chief of Mission means a principal officer in charge of a 
diplomatic mission of the United States or of a United States Office 
abroad which has been designated diplomatic in nature or any member of 
the Foreign Service assigned under the terms of the Act to be 
charg[eacute] d'affaires or head of such a mission or office.
    (e) Child means, except with reference to lump-sum payments, an 
unmarried child, under the age of 18 years, or such unmarried child 
regardless of age who because of physical or mental disability incurred 
before age 18 is incapable of self-support. In addition to the offspring 
of the participant, the term includes:
    (1) An adopted child;
    (2) A stepchild or recognized natural child who received more than 
one-half support from the participant; and
    (3) A child who lived with and for whom a petition of adoption was 
filed by a participant, and who is adopted by the surviving spouse of 
the participant after the latter's death. ``Child'' also means an 
unmarried student under the age of 22 years. For this purpose, a child 
whose twenty-second birthday occurs before July 1 or after August 31 of 
a calendar year, and while a student, is deemed to have become 22 years 
of age on the first day of July after the birthday.
    (f) Court means any court of any State or of the District of 
Columbia.
    (g) Court Order means any court decree of divorce or annulment, or 
any court approved property settlement agreement incident to any court 
decree of divorce or annulment.
    (h) Department means the Department of State.
    (i) Divorce means the dissolution of a marriage by a final decree of 
divorce or annulment.
    (j) Expressly provided for means a direction by a court order to 
divide a member's Foreign Service Retirement benefits or survivor 
benefits and awarding a portion of such benefits to an eligible 
beneficiary.

[[Page 58]]

    (k) Former spouse \1\ means a former wife or husband of a 
participant or former participant who was married to such participant 
for not less than ten years during periods of service by that 
participant which are creditable under section 816 of the Act provided 
the participant was making contributions to the Fund under section 805 
of the Act during some portion of such service, and provided the divorce 
occurred after February 15, 1981. For this purpose, a former spouse 
shall not be considered as married to a participant for periods assumed 
to be creditable under section 808 of the Act in the case of a 
disability annuity or section 809 of the Act in the case of a death in 
service. A former spouse will be considered married to a participant for 
any extra period of creditable service provided under section 817 of the 
Act for service at an unhealthful post during which the former spouse 
resided with the participant. See Sec.  19.5-3 for procedures to 
determine this extra period of marriage.
---------------------------------------------------------------------------

    \1\ Note: Section 804(6) of the Act defines ``former spouse'' with 
respect to duration of marriage as being married to a participant ``for 
not less than 10 years during periods of service by that participant 
which are creditable under section 816.'' The Department interprets this 
as necessarily implying that the marriage must have covered a period of 
at least one day while the member of the Foreign Service was a 
participant in the System.
---------------------------------------------------------------------------

    (l) Fund means the Foreign Service Retirement and Disability Fund.
    (m) M/MED means the Department's Office of Medical Services.
    (n) Military and naval service means honorable active service:
    (1) In the Armed Forces of the United States;
    (2) In the Regular or Reserve Corps of the Public Health Service 
after June 30, 1960; or
    (3) As commissioned officer of the National Oceanic and Atmospheric 
Administration or predecessor organization after June 30, 1961.

However, this definition does not include service in the National Guard, 
except when ordered to active duty in the service of the United States.
    (o) Participant means a person as described in Sec.  19.3.
    (p) Previous spouse means any person formerly married to a 
principal, whether or not such person qualifies as a former spouse under 
paragraph (k) of this section.
    (q) Principal means a participant or former participant whose 
service forms the basis for a benefit under chapter 8 of the Act for a 
spouse, previous spouse, former spouse or child of a participant.
    (r) PER/ER/RET means the Department's Retirement Division in the 
Bureau of Personnel.
    (s) Pro rata share means, in the case of any former spouse of any 
participant or former participant, a percentage which is equal to the 
percentage that (1) the number of years and months during which the 
former spouse was married to the participant during the creditable 
service of that participant is of (2) the total number of years and 
months of such creditable service. When making this calculation, item 
(1) is adjusted in accordance with paragraph (k) of this section and 
item (2) is adjusted in accordance with Sec.  19.4. In the total period, 
30 days constitutes a month and any period of less than 30 days is not 
counted.
    (t) Spousal agreement means any written agreement between a 
participant or former participant, and the participant's spouse or 
former spouse.
    (u) Student means a child regularly pursuing a full-time course of 
study or training in residence in a high school, trade school, technical 
or vocational institute, junior college, university, or comparable 
recognized educational institution. A child who is a student shall not 
be deemed to have ceased to be a student during any interim between 
school years, semesters, or terms if the interim or other period of 
nonattendance does not exceed 5 calendar months and if the child shows 
to the satisfaction of the Retirement Division (PER/ER/RET) that the 
child has a bona fide intention of continuing to pursue such course 
during the school year, semester, or term immediately following the 
interim.
    (v) Surviving spouse means the surviving wife or husband of a 
participant or annuitant who, in the case of death in service or 
marriage after retirement, was married to the participant

[[Page 59]]

or annuitant for at least one year immediately preceding death or is the 
parent of a child born of the marriage.
    (w) System means the Foreign Service Retirement and Disability 
System.

[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, 
Mar. 27, 1981]



Sec.  19.3  Participants.

    The following persons are participants in the System:
    (a) Members of the Service serving under a career appointment or as 
a career candidate under section 306 of the Act (1) in the Senior 
Foreign Service, or (2) assigned to a salary class in the Foreign 
Service Schedule;
    (b) Any person not otherwise entitled to be a participant who has 
served as chief of mission or an ambassador at large for an aggregate 
period of 20 years or more, exclusive of extra service credit for 
service at unhealthful posts, and who has paid into the Fund a special 
contribution for each year of service;
    (c) Any individual who was appointed as a Binational Center Grantee 
and who completed, prior to February 15, 1981, at least 5 years of 
satisfactory service as a grantee, as determined by the Director of 
Personnel of USICA, or under any other appointment under the Foreign 
Service Act of 1946, as amended, who has paid into the Fund a special 
contribution for such service.
    (d) Any person converted to the competitive service pursuant to 
section 2104 of the Act who elects to participate in the System pursuant 
to section 2106(b)(1) or (2) shall remain a participant so long as he/
she is employed in an agency which is authorized to utilize the Foreign 
Service personnel system.



Sec.  19.4  Special rules for computing creditable service for purposes 
of payments to former spouses.

    For purposes of determining the pro rata share of annuity, survivor 
annuity or lump-sum payable to a former spouse, the following shall be 
considered creditable service--
    (a) The entire period of a principal's approved leave without pay 
during full-time service with an organization composed primarily of 
Government employees irrespective of whether the principal elects to 
make payments to the Fund for this service;
    (b) The entire period of Government service for which a principal 
received a refund of retirement contributions which he/she has not 
repaid unless the former spouse received under Sec.  19.13 a portion of 
the (lump-sum) refund or unless a spousal agreement or court order 
provided that no portion of the refund be paid to the former spouse; and
    (c) All creditable service including service in excess of 35 years.

The period covered by the credit for unused sick leave is not creditable 
for this purpose.



Sec.  19.5  Required notifications to Department respecting spouses 
and former spouses.



Sec.  19.5-1  Notification from participant or annuitant.

    If a participant or former participant becomes divorced on or after 
February 15, 1981, he/she shall notify the Department (PER/ER/RET) of 
the divorce on or prior to its effective date. The notice shall include 
the effective date of the divorce, the full name, mailing address, and 
date of birth of the former spouse and the date of the member's marriage 
to that person, and enclose a certified copy of the divorce decree. If 
there is a court order or spousal agreement concerning payment or 
nonpayment of Foreign Service benefits to the former spouse, the 
original or a certified copy of the order or agreement shall also be 
forwarded to PER/ER/RET. In the absence of a court order or spousal 
agreement providing otherwise, the Department will pay a pro rata share 
of the member's benefits to the former spouse. (A former spouse of a 
former participant who separated from the Service on or before February 
15, 1981 is not eligible for a pension under Sec.  19.9, i.e., not 
eligible for a pro rata share of the principal's annuity.) Upon receipt 
of notice of a divorce, a court order, or spousal agreement, the 
Department will proceed as indicated in Sec.  19.6 or Sec.  19.7. 
Delinquent notice to the Department of the divorce of an annuitant will 
result in retroactive payments to any qualified former spouse

[[Page 60]]

to the extent that the retroactive payments can be deducted from future 
annuity payments to the principal as stated in Sec.  19.6-4.



Sec.  19.5-2  Notification to Department from former spouses.

    A former spouse is obligated to notify the Department of the 
following on a timely basis:
    (a) A divorce from a participant or former participant when the 
former spouse is notified by the court of the divorce before the 
participant is notified;
    (b) Any change in address; and
    (c) Any remarriage.

Notices shall be sent to the Department of State, Attention PER/ER/RET, 
Washington, DC 20520.



Sec.  19.5-3  Residence of spouse during service at unhealthful post.

    (a) The calculation of the pro rata share of benefits for a former 
spouse, and the determination of whether a person qualifies as a 
``former spouse'' depends on the length of the marriage. The latter, 
under the definition in the Act and when the principal has received 
extra service credit for an assignment to an unhealthful post, depends 
upon whether a spouse has resided with the principal at the unhealthful 
post. In order to determine residency for this purpose, whenever a 
married participant is assigned to an unhealthful post for which he/she 
does not receive post differential and does receive or request extra 
service credit, the participant shall report on Form OF-140, Election to 
Receive Extra Service Credit Towards Retirement, whether his/her spouse 
is or is not residing at the post. Although a chief of mission is not 
required to submit Form OF-140 in order to receive extra credit for 
service at an unhealthful post, he/she must nevertheless submit this 
form if the chief of mission has a spouse that does not accompany him/
her at post for the entire assignment. Both the participant and spouse 
shall sign the completed form. If there is a change in residence of the 
spouse during the assignment, a new joint Form OF-140 shall be filed to 
report the change.
    (b) Whenever a participant retires or becomes divorced, or whenever 
a former participant becomes divorced who has extra service credit for 
assignment at unhealthful posts completed prior to the issuance of this 
regulation who was married during at least a portion of the assignment, 
the participant or former participant shall submit a statement to PER/
ER/RET reporting on whether his/her spouse resided at the unhealthful 
post and the dates of such residence. The statement shall be signed by 
the principal and his/her spouse or former spouse whenever possible.
    (c) In the event of a disagreement between a principal and his/her 
spouse or former spouse concerning residency at an unhealthful post, or 
the submission of a report or statement by a principal showing a period 
of nonresidence at a post by a spouse which is not signed by the spouse, 
the determination of residence will be made by PER/ER/RET and based on 
records in the Department of payments for travel and allowances plus any 
other evidence that can be adduced. In the absence of any evidence to 
the contrary, the assumption will be made that the spouse resided at the 
post.



Sec.  19.6  Court orders and divorce decrees.



Sec.  19.6-1  Orders by a court.

    (a) A court may--
    (1) Fix the amount of any pension to a former spouse under Sec.  
19.9, or order that none be paid;
    (2) Fix the amount of any regular survivor annuity to a former 
spouse under paragraphs (a) and (b) of Sec.  19.11, or order that none 
be paid;
    (3) Order provision of an additional survivor annuity for a spouse 
or former spouse under Sec.  19.10-5;
    (4) Fix the amount of any benefit under Sec.  19.10-6 based on 
recall service payable to a former spouse to whom the annuitant was 
married during any portion of the recall service, or order that none be 
paid;
    (5) Fix the amount of any lump-sum payable to a former spouse under 
Sec.  19.13 or order that none be paid;
    (6) Order, to the extent consistent with any obligation stated in 
Sec.  19.8 between a participant and a former

[[Page 61]]

spouse, and pursuant to any court decree of divorce, legal separation or 
annulment or any court ordered or approved property settlement agreement 
incident to any court decree of divorce, legal separation, or annulment, 
that any payment from the Fund which would otherwise be made to a former 
participant based on his/her service shall be paid (in whole or in part) 
by the Secretary of State to a previous spouse or child of such 
participant. No apportionment under this paragraph may be made of a 
payment authorized to be paid to a survivor of a participant or 
annuitant.
    (b) An order by a court that does not meet the definition of 
``court'' in Sec.  19.2(f) is not valid for purposes of this section 
even though a divorce decree issued by such court may be a basis for pro 
rata share payments to a former spouse as described in these 
regulations.



Sec.  19.6-2  Qualifying court order.

    (a) To be valid for purposes of this section, a court order must be 
found to be ``qualified'' by PER/ER/RET acting for the Secretary of 
State. A qualifying court order must--
    (1) Be consistent with the terms of the Act and applicable 
regulations;
    (2) Not direct payment of an amount in excess of the maximum amount 
authorized to be paid by the relevant regulation;
    (3) Direct that payments be made to an eligible beneficiary from a 
principal's Foreign Service retirement benefit or survivor benefit. If a 
court directs or implies that a principal, rather than the Secretary of 
State or the Government, make the payments, the order will not be 
considered qualified unless the principal does not object during the 30-
day notice period provided under Sec.  19.6-6;
    (4) Define the amount to be paid to a beneficiary in way so that it 
can be readily calculated from information in the normal files of the 
Department;
    (5) Not make payment contingent upon events other than those on 
which other payments from the Fund are based such as age, marital status 
and school attendance; and
    (6) Not be in conflict with any previously issued court order which 
remains valid.
    (b) No apportionment of annuity to a beneficiary under Sec.  19.6-
1(a) (1) or (6) shall exceed the net annuity of the principal. The net 
annuity is computed by excluding from the gross annuity the amounts 
which are:
    (1) Owed by the individual to the United States;
    (2) Deducted for health benefits premiums pursuant to section 8906 
of Title 5, United States Code;
    (3) Deducted for life insurance premiums under the Government Life 
Insurance Program;
    (4) Owed due to overpayment of annuity;
    (5) Properly withheld for Federal income tax purposes, if amounts 
withheld are not greater than they would be if the individual claimed 
all dependents to which he/she was entitled.

[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, 
Mar. 27, 1981]



Sec.  19.6-3  Application for payment.

    (a) To receive payment from the Fund pursuant to a court award, the 
beneficiary must submit an application in writing to the Chief of the 
Retirement Division (PER/ER/RET), Department of State, Washington, DC 
20520. The application must be typed or printed, signed by the 
beneficiary, and include--
    (1) The full name, date of birth, current address and current 
marital status of the beneficiary;
    (2) Full name and date of birth of the participant or former 
participant and his/her date of birth or other identifying information;
    (3) Relationship to the beneficiary, and if a spouse or former 
spouse, date of marriage to and/or divorce from the participant;
    (4) A statement that the court order has not been amended, 
superseded, or set aside;

The original of the court order or a recently certified copy must be 
enclosed with the application, or a statement appended that such a copy 
has been sent to the Department by other means.

[[Page 62]]

    (b) When payments are subject to termination upon the occurrence of 
a condition subsequent, such as marriage, remarriage or termination of 
schooling, or death of the principal, no payment will be made until the 
beneficiary submits a statement to PER/ER/RET that--
    (1) The condition has not occured;
    (2) He/she will notify the Department (PER/ER/RET) within 15 
calendar days of the occurrence of the condition subsequent; and
    (3) He/she will be personally liable for any overpayment to him/her 
resulting from the occurrence of the condition subsequent. PER/ER/RET 
may require periodic recertification of these statements.



Sec.  19.6-4  Date of court orders.

    (a) A court order directing or barring payment of a pension to a 
former spouse under Sec.  19.9 may not be given effect by the Department 
if it is issued more than 12 months after the divorce becomes final. A 
court order adjusting the amount of a regular or additional survivor 
annuity to a former spouse under Sec.  19.11-2 or Sec.  19.10-5 may not 
be given effect by the Department if it is issued after the death of the 
principal.
    (b) A court order issued within 12 months after a divorce becomes 
final directing payment of a pension to a former spouse in an amount 
other than provided in Sec.  19.9 may be made retroactively effective to 
the first of the month in which the divorce becomes final if so 
specified by the court. In such event, the Department will adjust any 
future payments that may become due to an annuitant and a former spouse 
by increasing one and correspondingly reducing the other in order to 
give effect to the order of the court. However, if future payments to 
one party are not due, as for example if a court orders that no payments 
be made to a former spouse, or that 100 percent of an annuity be paid as 
pension to a former spouse, the Department will not give retroactive 
effect to a court order by collecting overpayments from one party in 
order to pay them to the other party and will not make overpayments from 
the Fund.
    (c) A court order under this chapter involving any payment other 
than a pension to a former spouse under Sec.  19.9 may not be given 
retroactive effect and shall not be effective until it is determined to 
be a qualifying order under Sec.  19.6-5.



Sec.  19.6-5  Preliminary review.

    (a) Upon receipt of an application for payment under Sec.  19.6-3, 
PER/ER/RET will determine whether--
    (1) The application is complete;
    (2) The applicant is an eligible beneficiary under this chapter; and
    (3) The court order is a qualifying order. If the application is 
completed, the beneficiary is eligible and the court order appears on 
its face to be a qualifying order, PER/ER/RET will provide the 
notification required by Sec.  19.6-6, otherwise, it will notify the 
applicant of any deficiency or requirement for additional information, 
and if the order is determined to be non-qualifying, the basis for such 
determination.
    (b) Upon receipt of a certified copy of a final decree of divorce, 
PER/ER/RET will determine whether--
    (1) It is a valid decree. Any decree recognized as valid by the 
parties will be considered valid for this purpose. In addition, any non-
recognized decree will be considered valid for this purpose unless:
    (i)(A) Neither party was domiciled within the court's jurisdiction, 
and
    (B) The party denying recognition did not participate in the 
proceedings, or
    (ii) The party denying recognition was not afforded notice of the 
proceedings (actual or constructive);
    (2) A related court order has been submitted by either party; and
    (3) A pro rata share payment is or may become due the former spouse. 
If a divorce decree is deemed valid under this paragraph, a pro rata 
share payment is due a former spouse unless PER/ER/RET is in receipt of 
a court order which it has deemed qualified under paragraph (a) of this 
section, or a valid spousal agrement providing otherwise. If it 
determines that a pro rata share payment is due, it will provide the 
notification required by Sec.  19.6-6, otherwise, unless action is being 
taken pursuant to a related court order, it will notify both parties to 
the

[[Page 63]]

divorce the reason a pro rata share payment is not payable.

[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, 
Mar. 27, 1981]



Sec.  19.6-6  Notification.

    (a) Notification to a principal. Whenever PER/ER/RET receives from a 
former spouse or other eligible beneficiary--
    (1) a court order which it deems qualified that requires payment to 
the beneficiary; or
    (2) A final decree of divorce which it deems valid together with a 
request for a pro rata share payment--PER/ER/RET will send a copy of the 
document to the principal and a notice stating: (i) That PER/ER/RET 
deems the order qualified or the divorce decree valid, (ii) that 
payments will be made from the principal's account to the beneficiary 
and the effective date of such payments, (iii) the effect of such 
payments on the principal's retirement benefit. In the case of any court 
order with retroactive or immediate effect, and in the case of pro rata 
share payments, the amounts will be withheld from future payments to the 
principal but will not be paid to the beneficiary for 30 days from the 
notice date in order to give the principal an opportunity to contest the 
court order or the validity of the divorce.

PER/ER/RET will provide the former spouse or other beneficiary the same 
information, stating the exact amount that will be payable to the 
beneficiary and explaining how that amount was calculated.
    (b) Notification to a former spouse. When PER/ER/RET receives from a 
principal--(1) a court order which it deems qualified that requires or 
forbids payment to a former spouse; or (2) a final decree of divorce 
which it deems valid without an accompanying court order--PER/ER/RET 
will send a copy of the document to the former spouse and a notice 
stating: (i) That PER/ER/RET deems the court order qualified or the 
divorce decree valid, (ii) that PER/ER/RET intends to honor the court 
decree or to make pro rata share payments because of the divorce, (iii) 
the effective date, exact amount, and method of calculation of any 
payments to the former spouse.

PER/ER/RET will provide the same information to the principal and will 
explain the effect any payment to a former spouse will have on the 
principal's retirement benefit.



Sec.  19.6-7  Decision.

    (a) When a response has not been received by PER/ER/RET from a 
principal within the 30-day period under Sec.  19.6-6a, payment will be 
made in accordance with the notification. When a response is received, 
the Chief, PER/ER/RET will consider the response. If it is shown that a 
court order is not qualifying or that a divorce is not valid under terms 
of the Act and these regulations, payment proposed in the notification 
will not be made. In such a case, PER/ER/RET will advise both parties of 
the basis for its decision and the alternative action, if any, that it 
proposes to take.
    (b) If a principal responding to a notification under Sec.  19.6-6a 
objects to the payment or other action proposed by the Department in the 
notification based on the validity of the court order or divorce decree, 
and the record contains support for the objection, PER/ER/RET will grant 
the principal 30 days to initiate formal legal action to determine the 
validity of the objection, will continue to delay payment to the former 
spouse or other beneficiary during this period, and will notify the 
beneficiary of this action. If evidence is submitted that formal legal 
action has been started within the 30-day period, the amount of any 
proposed payment to a former spouse or other beneficiary will continue 
to be withheld from any payments due the principal, but no payment will 
be made to the former spouse or other beneficiary until a judicial 
decision is rendered or agreement reached between the parties.

[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, 
Mar. 27, 1981]



Sec.  19.6-8  Allotment to beneficiary.

    If a court order is not a qualifying court order because it directs 
or implies that payment to the beneficiary is to be made by the 
principal rather than the Secretary of State, the principal may make an 
allotment to the beneficiary from his/her annuity. An annuitant may also 
make an allotment

[[Page 64]]

from his/her annuity to a previous spouse in the absence of a court 
order.



Sec.  19.6-9  Limitations.

    (a) Retirement benefits are subject to apportionment by court order 
under Sec.  19.6-1(a)(6) only while the principal is living. Payment of 
apportioned amounts will be made only to a previous spouse and/or the 
children of the principal. Such payments will not be made to any of the 
following:
    (1) Heirs or legatees of the previous spouse;
    (2) Creditors of either the principal or the previous spouse; or
    (3) Assignees of either the principal or the previous spouse.
    (b) The amount of any court ordered payment may not be less than one 
dollar and, in the absence of compelling circumstances, shall be in 
whole dollars.
    (c) In honoring and complying with a court order, the Department 
shall not be required to disrupt the scheduled method of accruing 
retirement benefits or the normal timing for making such payments, 
despite the existence of any special schedule relating to a previous 
spouse or other beneficiary.
    (d) In cases where the court order apportions a percentage of the 
retirement benefits, PER/ER/RET will initially determine the amount of 
proper payment. That amount will only be increased by future cost-of-
living increases unless the court directs otherwise.



Sec.  19.6-10  Liability.

    (a) The Department shall not be liable for any payment made from 
retirement benefits pursuant to a court order if such payment is made in 
accordance with the provisions of this chapter.
    (b) In the event that the Secretary is served with more than one 
court order with respect to the same retirement benefits, the benefits 
shall be available to satisfy the court orders on a first-come, first-
served basis.
    (c) A previous spouse or other beneficiary may request that an 
amount be withheld from the retirement benefits of a principal or 
survivor of a principal which is less than the amount stipulated in a 
court order, or otherwise scheduled to be paid to the beneficiary under 
this chapter. This lower amount will be deemed a complete fulfillment of 
the obligation of the Department for the period in which the request is 
in effect. See Sec.  19.14.



Sec.  19.7  Spousal agreements.



Sec.  19.7-1  Purpose.

    A spousal agreement may be used by both parties to establish an 
agreed-upon level of benefits to a spouse or a former spouse and to 
relieve the participant of responsibility for providing a higher level 
of benefits.



Sec.  19.7-2  Agreement with spouse.

    (a) A spousal agreement between a participant and a spouse may waive 
or fix the level of a regular survivor annuity under Sec.  19.11-3. If 
an agreement is filed, it will assure the spouse that the agreed-upon 
level of survivor annuity will be paid, irrespective of a future divorce 
provided the survivor meets the definition of ``former spouse'' in Sec.  
19.2(k). If an agreement is not filed, the participant's annuity will be 
reduced under Sec.  19.10-2 to provide the maximum regular survivor 
annuity for the spouse, but in the event of a future divorce if the 
spouse meets the definition of ``former spouse,'' that person will be 
entitled only to a pro rata share of the survivor annuity. An agreement 
under this paragraph may be filed with PER/ER/RET at any time prior to 
retirement (commencement of the principal's annuity).
    (b) A spousal agreement between an annuitant and a spouse filed with 
PER/ER/RET before commencement of a supplemental annuity for recall 
service may waive a supplemental survivor annuity that would otherwise 
be provided for a spouse under Sec.  19.10-6.
    (c) A spousal agreement between a participant or former participant 
and a spouse may be filed with PER/ER/RET at any time in accordance with 
Sec.  19.10-5 and provide for an additional survivor annuity for the 
spouse.
    (d) A spousal agreement filed under paragraph (a), (b), or (c) 
remains valid and binding in the event of divorce if the spouse 
qualifies as a former spouse.

[[Page 65]]



Sec.  19.7-3  Agreement with former spouse.

    (a) A spousal agreement between a participant or former participant 
and a former spouse may waive, reduce or increase the following benefits 
for a former spouse;
    (1) A pension under Sec.  19.9;
    (2) A regular survivor annuity under Sec.  19.11-2;
    (3) A supplemental survivor annuity under Sec.  19.10-6;
    (4) A lump sum payment for regular or recall service under Sec.  
19.13.

A spousal agreement shall also be used by a participant or former 
participant who has a former spouse on February 15, 1981, to elect a 
regular survivor annuity for such former spouse in accordance with Sec.  
19.11-2(e). An agreement to establish or increase any benefit for a 
former spouse entered into while the principal is married to someone 
else, must be signed and agreed to by both the spouse and the former 
spouse. An agreement affecting pension benefits may be filed at any time 
and will govern payments made after its acceptance by PER/ER/RET. An 
agreement affecting a regular survivor annuity must be filed before the 
end of the 12-month period after the divorce involving that former 
spouse or at the time of retirement, whichever occurs first, except as 
authorized in Sec.  19.11-2(b) for persons retired on February 15, 1981, 
or in Sec.  19.11-2(e) with respect to persons who were former spouses 
on February 15, 1981. This filing requirement stated in the Act makes it 
impossible to adjust, other than by court order, a regular survivor 
annuity for a former spouse when the divorce occurs after a retirement 
which occurs on or after February 15, 1981. The survivor annuity for the 
former spouse in such case is fixed by any spousal agreement entered 
into prior to the divorce, by Sec.  19.11-2 or by court order. An 
agreement affecting supplemental survivor benefits or lump-sum payments 
must be filed before the supplemental annuity of the principal begins or 
lump-sum payment is made.
    (b) A spousal agreement between a participant or former participant 
and a former spouse may be filed with PER/ER/RET at any time in 
accordance with Sec.  19.10-5 to provide an additional survivor annuity 
for the former spouse.



Sec.  19.7-4  Form of agreement.

    (a) A spousal agreement is any legal agreement between the parties 
accepted by PER/ER/RET as meeting the requirements of this section. If 
in accordance with the regulations, PER/ER/RET will accept as a valid 
spousal agreement a property settlement agreed to by the parties and 
approved by a court regardless of the date of the agreement.
    (b) A spousal agreement must either be authenticated by a court or 
notarized.



Sec.  19.7-5  Limitations.

    (a) A spousal agreement may not provide for any payment from the 
Fund in excess of the amount otherwise authorized to be paid, or at a 
time not authorized by these regulations, or to a person other than a 
spouse or former spouse.
    (b) A spousal agreement must be filed with the Department, Attention 
PER/ER/RET, and accepted by that office as in conformance with the Act 
and these regulations prior to the times specified in Sec. Sec.  19.7-2 
and 19.7-3. That office will provide advice to the parties on the 
validity of any proposed agreement and on proper format.
    (c) A spousal agreement may apply only to payments from the Fund for 
periods after receipt of a valid agreement by the Department.
    (d) Paragraphs (b), (c) and (d) of Sec. Sec.  19.6-9 and 19.6-10 
apply to spousal agreements and payments made pursuant to spousal 
agreements to the same extent that they apply to court orders and court 
ordered payments.



Sec.  19.7-6  Duration and precedence of spousal agreements.

    (a) A spousal agreement may be revised or voided by agreement of the 
parties (by filing a new agreement under this section) at any time prior 
to the last day for filing an agreement determined in accordance with 
Sec.  19.7-2 or Sec.  19.7-3, except spousal agreements for additional 
survivor annuities are irrevocable. After the last day for filing a 
particular agreement, such agreement is irrevocable.

[[Page 66]]

    (b) A valid spousal agreement entered into subsequent to the 
issuance of a court order affecting the same parties will override the 
court order, and shall govern payments from the Fund.
    (c) A spousal agreement may not override a previous spousal 
agreement involving the same principal but a different spouse or former 
spouse without agreement of such spouse or former spouse.



Sec.  19.8  Obligations of members.

    Participants and former participants are obligated by the Act and 
these regulations to provide the following benefits to others and must 
accept the necessary reductions in their own retirement benefits to meet 
these obligations:
    (a) A pension to a former spouse pursuant to Sec.  19.9;
    (b) A court ordered apportionment of annuity to a previous spouse or 
child under Sec.  19.6-1 (a)(6) (the benefit to a child referred to here 
is paid during the annuitant's lifetime as distinguished from the 
automatic survivorship annuity to a child described in Sec.  19.11-7);
    (c) A regular survivor annuity to a former spouse who has not 
remarried prior to age 60, and to a spouse to whom married when annuity 
commences, pursuant to Sec. Sec.  19.11-2 and 19.11-3;
    (d) An additional survivor annuity for a spouse or former spouse 
under Sec.  19.10-5 when elected by the participant or ordered by a 
court;
    (e) Lump-sum payments to a former spouse pursuant to Sec.  19.13;
    (f) Benefits ordered by a court under Sec.  19.6 or specified in a 
spousal agreement under Sec.  19.7.



Sec.  19.9  Pension benefits for former spouses.



Sec.  19.9-1  Entitlement.

    (a) Unless otherwise expressly provided by a spousal agreement under 
Sec.  19.7 or a court order under Sec.  19.6, a person who, after 
February 15, 1981, becomes a former spouse of a participant (or former 
participant who separated from the Service after February 15, 1981) and 
who has not remarried prior to becoming 60 years of age, becomes 
entitled to a monthly pension benefit effective on a date determined 
under Sec.  19.9-2 in an amount determined under Sec.  19.9-3.
    (b) A former spouse shall not be qualified for a pension under this 
subsection if, before the commencement of that pension, the former 
spouse remarries before becoming 60 years of age.
    (c) A pension benefit under this section is treated the same as a 
survivor annuity for purposes of Sec.  19.11-5(b): a former spouse who 
elects to receive a pension under this section must waive simultaneous 
receipt of any survivor annuity.

[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, 
Mar. 27, 1981]



Sec.  19.9-2  Commencement and termination.

    (a) The pension of a former spouse under this subsection commences 
on the latter of the day the principal becomes entitled to a Foreign 
Service annuity or on the first day of the month in which the divorce 
becomes final. (Suspension or reduction of a Foreign Service annuity 
because or reemployment does not affect the commencement of a pension to 
a former spouse.) In the case of any former spouse of a disability 
annuitant, the pension of such former spouse shall commence on the 
latter of:
    (1) The date the principal would qualify for an annuity (other than 
a disability annuity) on the basis of his/her creditable service;
    (2) The date the disability annuity begins; or
    (3) The first of the month in which the divorce becomes final.
    (b) The pension of a former spouse and the right thereto terminate 
on:
    (1) The last day of the month before the former spouse dies or 
remarries before 60 years of age; or
    (2) The date the annuity of the former participant terminates unless 
the termination results from recall, reappointment or reinstatement in 
the Foreign Service or reemployment in Government service.



Sec.  19.9-3  Computation and payment of pension to former spouse.

    (a) A pension to a former spouse is paid monthly on the same date 
that annuity is paid to the principal.

[[Page 67]]

    (b) No spousal agreement or court order may provide for a pension or 
any combination of pensions to former spouses of any one principal which 
exceeds the net annuity of the principal as defined in Sec.  19.6-2(b).
    (c) A pension to a former spouse not fixed by a spousal agreement or 
court order shall equal the former spouse's pro rata share of 50 percent 
of the annuity to which the principal is entitled on the date the 
divorce becomes final, or, if not then entitled to an annuity, 50 
percent of the annuity to which the principal first becomes entitled 
following that date. A pension to a former spouse of a disability 
annuitant shall be calculated on the basis of an annuity for which the 
participant would qualify if not disabled. A pension to a former spouse 
will be increased by the same percentage of each cost-of-living 
adjustment received by the principal.
    (d) The Department will initiate payment of a pension to a former 
spouse after complying with the notification and other procedures 
described in Sec.  19.6.
    (e) If a pension can not be paid because a former spouse is missing, 
the principal may file an affidavit with PER/ER/RET that he/she does not 
know the whereabouts of the former spouse. In such an event, the 
principal and the Department will follow the procedures in Sec.  19.11-4 
in an effort to locate the former spouse. The annuity of the principal 
will be reduced by the amount of the pension to the former spouse even 
though the latter is not being paid. If the former spouse has not been 
located during the 12-month period following the date the principal 
files an affidavit under this section, the annuity of the principal will 
be recomputed effective from its commencing date (or on the date 
following the last month a pension payment was made to the former 
spouse) and paid without reduction of the amount of pension to the 
former spouse. If the former spouse subsequently is located, pension 
payments to him/her will be initiated at that time at the rate that 
would have been payable had they been paid continuously from the 
original effective date. The Department shall not be liable to make any 
pension payments to the former spouse for the missing period if the 
procedures under this section were faithfully complied with nor will the 
Department be responsible for recovering any payments made to the 
principal for the benefit of the former spouse.



Sec.  19.9-4  Effect on annuitant.

    Any pension payable to a former spouse under this section or 
pursuant to any spousal agreement or court order shall be deducted from 
the annuity of the principal. (See Sec.  19.6-4 concerning retroactive 
adjustments.) If the annuity of such a principal in any month is 
discontinued or reduced so that the net amount payable is less than the 
pension to the former spouse or spouses of the principal because of 
recall, reappointment or reinstatment in the Foreign Service or 
reemployment in the Government service, the principal's salary, rather 
than annuity, shall be reduced by the amount of the pension payment(s). 
Such salary reductions shall be deposited in the Treasury to the credit 
of the Fund. If a pension to a former spouse is discontinued for any 
reason except a suspension pending a determination of entitlement, the 
annuity of the principal shall be recomputed effective as of the date of 
discontinuance of the pension, and paid as if the pension to the former 
spouse had never been deducted.



Sec.  19.10  Types of annuities to members.



Sec.  19.10-1  Full annuity.

    If a participant retires and does not provide a survivor annuity to 
a spouse, former spouse or designated beneficiary, the participant 
receives a ``full'' annuity. A full annuity means an annuity computed 
without any survivorship reduction. Example: Average salary $20,000 and 
maximum of 35 years of service.

Average basic annual salary for high 3 consecutive years of      $20,000
 service......................................................
Multiplied by 2 pct...........................................       .02
                                                               ---------
                                                                 $400.00
Multiplied by 35 years of creditable service..................       .35
                                                               ---------
Full annuity..................................................   $14,000
 



Sec.  19.10-2  Reduced annuity with regular survivor annuity to spouse 
or former spouse.

    (a) At commencement of annuity, a participant or former participant 
may

[[Page 68]]

provide a regular survivor annuity for any eligible former spouse and, 
within the limits of paragraph (b) of this section, a regular survivor 
annuity to any spouse to whom he/she is then married as described in 
Sec. Sec.  19.11-2 and 19.11-3, respectively. A regular survivor annuity 
for a spouse or former spouse equals 55 percent of the portion of the 
retiree's annuity (up to the full amount) designated as the base for the 
survivor annuity. To provide the survivor annuity, the participant must 
accept a reduction in his/her full annuity equal to 2\1/2\ percent of 
the first $3,600 of the designated base, plus 10 percent of the balance 
of the base. If a regular survivor annuity is being provided for both a 
spouse and a former spouse, the bases for each are added and the 
calculation made as in the following example:

    Participant's full annuity as computed in Sec.  19.10-1: $14,000.
    Maximum regular survivor annuity is 55 percent of full annuity: 
$7,700.
    Case I (Participant has a spouse and former spouse at retirement) If 
the pro rata share for a former spouse is 75 percent, the base for this 
benefit will be 75 percent of $14,000: $10,500.
    The base for the maximum regular survivor annuity for a spouse would 
then be 25 percent of $14,000, or $3,500.
    Combined base: $14,000.
    Participant's full annuity reduced as follows:
    2\1/2\ percent of first $3,600 of the base: $90.
    Plus 10 percent of the amount over $3,600 ($14,000-3,600) $10,400: 
$1,040.
    Total reduction in participant's full annuity: $1,130.
    Participant's reduced annuity: $12,870.
    Survivor annuity for former spouse: 55 percent of $10,500 or $5,775.
    Survivor annuity for spouse: 55 percent of $3,500 or $1,925.
    Case II (Participant married at retirement with no former spouse. 
All calculations made without reference to cost-of-living increases 
described in Sec.  19.11-5d.)
    Joint election of base for regular survivor annuity of 90 percent of 
the maximum, or 90 percent of $14,000: $12,600.
    Participant's full annuity reduced as follows:
    2\1/2\ percent of first $3,600 of the base: $90.
    Plus 10 percent of the amount over $3,600 ($12,600-3,600) $9,000: 
$900.
    Total reduction in participant's full annuity: $990.
    Participant's reduced annuity: $13,010.
    In this example, if divorce occurs subsequent to retirement and a 
court orders a 75 percent share for the former spouse, the base for the 
survivor annuity for the former spouse would be 75 percent of $14,000: 
$10,500.
    The participant's full annuity would then be reduced by $780 in 
accordance with the above formula for this survivor benefit, and the 
reduced annuity would be $14,000-780: $13,220.
    If the former spouse qualifies for a pension as described in Sec.  
19.9 based on a pro rata share of 75 percent, the pension would equal 50 
percent of the participant's reduced annuity times 75 percent (50% x 
$13,220 x 75%): 4,957.50.
    The participant's reduced annuity would then be further reduced by 
this pension ($13,220-$4,957.50) to provide an annuity to the former 
participant of $8,262.50.
    If this annuitant later remarried, the maximum base for the regular 
survivor annuity for the new spouse would be the amount designated at 
retirement, $12,600, less the amount committed to the former spouse, 
$10,500: $12,600-10,500 or $2,100.
    The survivor annuity for this spouse: 55 percent of $2,100 or 
$1,555.
    The election of this benefit for the new spouse would be made 
individually by the annuitant since a marriage after retirement does not 
give a spouse a right to participate in the election.
    If the election is made to provide a regular survivor annuity to the 
new spouse, all of the above calculations would be recomputed effective 
the first day of the month beginning one year after the date of the 
remarriage, as follows:
    Base for survivor annuity for former spouse: 75% of $14,000 or 
$10,500.
    Survivor annuity for former spouse: 55% of $10,500 or $5,775.
    Base for survivor annuity for spouse: 15% of $14,000 or $2,100.
    Survivor annuity for spouse: 55% of $2,100 or $1,555.
    The combined base for the survivor benefits is $10,500 plus $2,100 
or $12,600. The annuity reduction on this combined base as computed 
above is $990.
    The participant's annuity after reduction for survivor benefit would 
be $14,000-$990 or $13,010.
    The pension for the former spouse would be 50% x $13,010 x 75% or 
$4,878.75.
    The participant's annuity would be further reduced by this amount: 
$13,010-$4,878.75 to provide an annuity after this recalculation of 
$8,131.25.

    (b) The maximum regular survivor annuity or combination of regular 
survivor annuities that may be provided under this section is limited to 
55% of the principal's full annuity computed at retirement. If an 
annuitant is recalled to active duty in the Foreign Service, he/she may 
provide additional

[[Page 69]]

regular survivor annuities under Sec.  19.10-6. The maximum regular 
survivor annuity or combination of regular survivor annuities that an 
annuitant who was married at retirement may elect or provide, pursuant 
to a court order or otherwise, after retirement in the event of his/her 
divorce or remarriage, is limited to the amount provided at the time of 
initial retirement or reversion to retired status following recall 
service.



Sec.  19.10-3  Marriage after retirement.

    If an annuitant who was unmarried at the time of retirement, 
marries, he/she may within one year after such marriage irrevocably 
elect to receive a reduced annuity and to provide, subject to any 
obligation to provide a survivor annuity for a former spouse, a survivor 
annuity for the new spouse. If such an election is made, the principal's 
annuity shall be reduced in accordance with Sec.  19.10-2 effective on 
the first day of the first month which begins at least one year after 
the date of the marriage. The reduction is computed on the commencing 
rate of the principal's annuity.



Sec.  19.10-4  Death or divorce of a spouse and remarriage after retirement.

    (a) If the marriage of an annuitant who received a reduced annuity 
at retirement under Sec.  19.10-2 to provide a survivor annuity for a 
spouse is dissolved by divorce or by death of the spouse, the retiree's 
annuity shall be recomputed, if necessary, as of the first of the month 
following the death or divorce. If the marriage was dissolved by death, 
the annuity shall be recomputed and paid at its full amount. If the 
marriage is dissolved by divorce, procedures in Sec.  19.11-2(b) shall 
be followed.
    (b) In the event an annuitant affected by this paragraph remarries, 
the annuitant may elect within one year of remarriage to provide a 
survivor annuity for the new spouse equal in amount to the survivor 
benefit formerly in effect for the previous spouse less any amount 
committed for a former spouse. The annuity of a retiree making such an 
election shall be reduced effective on the first day of the first month 
which begins at least one year after the remarriage to the amount that 
would have been payable had there been no recomputation under paragraph 
(a) of this section.



Sec.  19.10-5  Reduced annuity with additional survivor annuity to spouse 
or former spouse.

    (a) General. This section provides an opportunity for a participant 
or former participant who has provided a regular survivor annuity to a 
former spouse to provide a survivor annuity to a second spouse or to 
another former spouse. The additional survivor annuity provided under 
this section generally is more costly than the regular survivor annuity 
because the participant is required to pay it's full cost by deduction 
from salary or annuity, or otherwise, as specified in paragraph (e) of 
this section. The participant must also be in normal health for his/her 
age and pass a physical examination prescribed by the Secretary of State 
(M/MED) to be eligible to provide an additional survivor annuity under 
this section.
    (b) Limitation on amount. Neither the total amount of additional 
survivor annuity or annuities under this section provided by any 
participant or former participant nor any combination of regular or 
additional survivor annuities for any one surviving spouse or former 
spouse of a principal may exceed 55 percent of the principal's full 
annuity counting any supplemental annuity or recomputation of annuity 
because of recall service. An additional survivor annuity provided by 
any principal shall be further limited to the amount that can be 
provided by a monthly payment which is not greater than the principal's 
net annuity described in Sec.  19.6-2(b). The amount of any additional 
survivor annuity provided by a spousal agreement effective prior to the 
principal's retirement, shall be reduced as necessary by PER/ER/RET 
after the principal's retirement to comply with this limitation. Any 
amount paid by a participant for the portion of additional survivor 
annuity cancelled pursuant to this paragraph shall be treated as an 
additional lump sum payment under paragraph (e) of this section and used 
to increase the amount of the additional annuity. A participant who 
separates from the

[[Page 70]]

Service without entitlement to any annuity is not entitled to provide an 
additional survivor annuity. Payments in such a case would be 
discontinued as described in paragraph (e) of this section.
    (c) Procedures to grant additional survivor annuity. A participant 
or former participant who has provided a regular survivor annuity to a 
former spouse who wishes to provide, or who is ordered by a court to 
provide an additional survivor annuity under this section to a spouse or 
another former spouse, shall do so by filing a spousal agreement with 
PER/ER/RET on a form acceptable to PER/ER/RET. Such an agreement will be 
irrevocable when accepted by PER/ER/RET unless the beneficiary of the 
additional survivor annuity is subsequently made a beneficiary of a 
regular survivor annuity in equal amount. Within the limitations 
specified in paragraph (b) of this section, an individual may be made 
the beneficiary of both a regular and an additional survivor annuity. A 
spousal agreement granting an additional survivor annuity to a spouse 
will remain valid in the event the marriage is dissolved and the spouse 
qualifies as a former spouse under the definition Sec.  19.2(k).
    (d) Eligibility for additional survivor annuity. A spouse or former 
spouse must meet the same criteria (Sec.  19.2(v) or Sec.  19.2(k)) to 
be eligible for an additional survivor annuity as a spouse or former 
spouse must meet to be eligible for a regular survivor annuity. Payment 
of a special survivor annuity will commence on the day after the 
participant dies and shall terminate on the last day of the month before 
death or remarriage before attaining age 60. If it is discontinued 
because of remarriage, it will not be resumed.
    (e) Payment for additional survivor annuity. (1) Payment for an 
additional survivor annuity will commence on the first of the month 
following the effective date of a spousal agreement provising the 
additional survivor annuity. The effective date will be the date of 
acceptance of the spousal agreement by PER/ER-RET (upon a finding that 
the agreement conforms to the law and regulations) or such later date as 
may be specified in the agreement. No payment will be made to a 
beneficiary under the agreement if the principal dies before its 
effective date. Accordingly, in order to give protection to a 
beneficiary during active service, the agreement must be made effective, 
and payment commence, during active service. Payment will be made by a 
participant or annuitant by deduction from salary or annuity. Payment 
will be made by a former participant while awaiting commencement of a 
deferred annuity by direct payment to the Department, Office of 
Financial Operations (M/COMP/FO). Payments not received by the due date 
may, at the option of M/COMP/FO and with notice to the principal and the 
beneficiary be collected from the principal's lump-sum account. Amounts 
so collected must be repaid by the principal with interest compounded at 
10 percent annually to prevent exhaustion of the lump-sum account. If 
the lump-sum account does become exhausted, any rights to the lump-sum 
payment under Sec.  19.13 and survivorship rights under this paragraph 
will expire on that date. If the principal dies with an amount owing, it 
shall be collected by set off from the survivor annuity or lump-sum 
account.
    (2) Monthly payments may be reduced or eliminated by direct payment 
to M/COMP/FO by any participant or former participant under terms 
mutually agreed upon by the participant and PER/ER/RET. Minimum monthly 
payments will be based upon actuarial tables prescribed from time to 
time by the Director General of the Foreign Service (M/DGP) with the 
advice of the Secretary of Treasury. Such tables will be calculated so 
that the present value of all payments equal the present value of the 
survivor annuity. If new tables are prescribed, they would be applicable 
to additional survivor annuities provided by spousal agreements that 
become effective on or after the effective date of the new tables. 
Additional survivor annuities will be increased by regular cost-of-
living adjustments from their commencing dates only when so specified at 
the option of the participant or former participant in a spousal 
agreement. Monthly payments will be higher if cost-of-living adjustments 
are provided.

[[Page 71]]

    (3) In the event of the disqualification of a beneficiary for an 
additional survivor annuity because of death, remarriage prior to age 60 
or divorce from the principal and failure to meet the definition of 
``former spouse,'' or in the event of an authorized reduction or 
cancellation of an election for an additional survivor annuity, the 
monthly payment for such discontinued or reduced additional survivor 
annuity will be discontinued or reduced, as appropriate, effective at 
the beginning of the first month following termination or reduction of 
the benefit. Except as otherwise specified in paragraph (b) of this 
section, any amount paid for such discontinued or reduced benefit by a 
participant or former participant in excess of the minimum monthly 
payments described above shall be refunded to the participant or former 
participant with interest calculated at the annual rate used in the last 
evaluation of the System or at such higher rate as may be authorized by 
M/COMP/FO as will not cause a loss to the Fund. The following table 
illustrates the minimum monthly payments schedule in effect February 15, 
1981.

------------------------------------------------------------------------
                                                 Minimum monthly payment
                                                 required to provide an
                                                   additional survivor
 Age of principal and beneficiary on effective     annuity of $100 per
           date of spousal agreement                     month.
                                               -------------------------
                                                  Without
                                                    COLA      With COLA
------------------------------------------------------------------------
40............................................        $7.49       $12.34
50............................................        14.18        22.01
60............................................        23.55        33.90
70............................................        35.57        47.12
------------------------------------------------------------------------

    (4) Reduction from annuity to a principal to pay for an additional 
survivor annuity will be in the nature of an allotment and will not 
affect computations of cost-of-living adjustments to the principal.



Sec.  19.10-6  Benefits for recall service.

    (a) Annuity of recalled participant. Any participant who is recalled 
to the Service under section 308 of the Act, shall, while serving, be 
entitled in lieu of annuity to the full salary of the class in which 
serving. During such service, the recalled annuitant shall make 
contributions to the Fund under section 805(a) of the Act. If a share of 
the annuity is being paid as a pension to a former spouse under Sec.  
19.9, that share shall be deducted from the salary of the recalled 
annuitant during the period of the recall service. Upon reversion of the 
annuitant to retired status, any pension payable to a former spouse that 
was being deducted from the salary of the principal shall again be 
deducted from the annuity of the principal which shall be determined as 
follows:
    (1) If the recall service lasts less than one year, a refund of 
retirement contributions made during the recall period will be refunded 
under Sec.  19.13 and the former annuity will be resumed at the previous 
rate adjusted by any cost-of-living increases that became effective 
during recall service.
    (2) If the recall service lasts between one and five years, the 
annuitant will be entitled to elect benefits under paragraph (a)(1) of 
this section or receive both the former annuity adjusted by cost-of-
living increases and a supplemental annuity computed under Sec.  19.10 
on the basis of service credit and average salary earned during the 
recall period, irrespective of the number of years of service credit 
previously earned.
    (3) If the recall service lasts five years or more, the annuitant 
will be entitled to recomputation of the annuity as if there had been no 
previous retirement, or elect benefits under paragraph (a) (1) or (2) of 
this section.
    (4) An annuitant may receive credit in any computation under 
paragraph (a) (2) or (3) of this section for any Federal service 
performed subsequent to the separation upon which the original annuity 
was computed provided a special contribution is made for such service 
under section 805 of the Act.
    (5) An annuitant entitled to a supplemental annuity under paragraph 
(a)(3) of this section or a recomputated annuity under paragraph (a)(4) 
of this section is obligated, in the absence of a court order or spousal 
agreement to the contrary, to have those annuities reduced to provide 
the benefits described in Sec.  19.8 to any spouse or former spouse to 
whom married during any portion of the recall service. An annuitant must 
accept a reduction of 10 percent of his/her supplemental annuity in 
order to provide a supplemental survivor annuity to a spouse or former

[[Page 72]]

spouse. The maximum supplemental survivor annuity equals 55 percent of 
the supplemental annuity. If, upon reversion to retired status, an 
annuitant has a former spouse entitled to a pro rata share or some other 
share of the supplemental survivor annuity, but no spouse, the 
appropriate share of the supplemental annuity shall be reduced by 10 
percent to provide such former spouse a share of the maximum 
supplemental survivor annuity.
    (b) Survivor benefit for death during recall service. (1) If an 
annuitant entitled to a reduced annuity under Sec.  19.10-2 dies in 
service after being recalled and is survived by a spouse or former 
spouse entitled to a survivor annuity based on the service of such 
annuitant, such survivor annuity shall be computed as if the recall 
service had otherwise terminated on the day of death and the annuity of 
the deceased had been resumed in accordance with paragraph (a) of this 
section. If such death occurs after the annuitant had completed 
sufficient recall service to attain eligibility for a supplemental 
annuity, a surviving spouse or surviving former spouse who was married 
to the participant at any time during a period of recall service shall 
be entitled to elect, in addition to any other benefits and in lieu of a 
refund of retirement contributions made during the recall service, a 
supplemental survivor annuity computed and paid under Sec.  19.10-6a(5) 
as if the recall service had otherwise terminated. If the annuitant had 
completed sufficient recall service to attain eligibility to have his/
her annuity determined anew, a surviving spouse or such a surviving 
former spouse may elect, in lieu of any other survivor benefit under 
Sec.  19.11, to have the rights of the annuitant redetermined and to 
receive a survivor annuity computed under Sec.  19.11-2 or Sec.  19.11-3 
on the basis of the total service of the annuitant. In the event such an 
annuitant is survived both by a spouse and such a former spouse, the 
former spouse will be entitled to a pro rata share of any refund or 
supplemental survivor benefit under this section computed on the basis 
of total service during the recall period and months of marriage during 
such period. If the surviving spouse and surviving former spouse elect 
different benefits under this paragraph, the former spouse will receive 
the pro rata share of the benefit he/she elects and the spouse will 
receive the reciprocal share of the benefit he/she elects.
    (2) In the event an annuitant dies during recall service and is 
survived by a former spouse to whom not married during any period of the 
recall service, such former spouse will not be entitled to any benefits 
based on the recall service.



Sec.  19.11  Survivor benefits.



Sec.  19.11-1  Kinds of survivor benefits.

    If a participant or former participant dies in active service or 
after retirement, regular survivor annuities are payable under terms of 
this section to an eligible surviving spouse, former spouse or child. 
Also, if all rights to annuity and survivor annuity terminate prior to 
exhaustion of the participant's lump-sum credit, a lump-sum payment is 
made pursuant to Sec.  19.13. In addition to the above, an additional 
survivor annuity, and a supplemental survivor annuity may be payable to 
an eligible survivor under Sec. Sec.  19.10-5 and 19.10-6, respectively. 
If any participant or former participant makes an election, files a 
spousal agreement or becomes subject to a court order to provide a 
regular survivor annuity for a spouse or former spouse and does not 
subsequently become entitled to leave a survivor annuity under these 
regulations (because of separation from the Service and withdrawal of 
contributions, death after separation but before commencement of a 
deferred annuity, or for any other reason), none will be paid and such 
election, spousal agreement or court order to provide such survivor 
annuity will have no force or effect.



Sec.  19.11-2  Regular survivor annuity for a former spouse.

    (a) Divorce prior to retirement. If a participant or former 
participant is divorced prior to commencement of annuity, any former 
spouse shall be entitled to a pro rata share of such a principal's 
maximum regular survivor annuity (based on service performed prior to 
the first date the principal becomes

[[Page 73]]

eligible for an annuity following the divorce) unless a different amount 
is elected in a spousal agreement filed with PER/ER/RET within 12 months 
after the divorce becomes final or at the time of the retirement, 
whichever occurs first, or unless a different amount is specified by a 
court prior to the death of the principal. The principal's annuity shall 
be reduced at the commencing date under Sec.  19.10-2 in order to 
provide the survivor annuity committed to the former spouse.
    (b) Divorce after retirement. In the event an annuitant is divorced 
after retirement (commencement of annuity), the maximum survivor annuity 
that may be provided for that former spouse is limited to the amount 
provided for that person at the time of retirement. Within that limit, 
the former spouse is entitled to a pro rata share of the participant's 
maximum survivor benefit (based on service performed prior to the 
divorce) unless a different amount was elected in a spousal agreement 
filed with PER/ER/RET at the time of retirement, or in the case of 
retirement before February 15, 1981, filed with PER/ER/RET within 12 
months after the divorce becomes final, or unless a different amount is 
specified by a court prior to the death of the principal. For this 
purpose, a joint election filed with PER/ER/RET at the time of 
retirement is considered a spousal agreement. If the survivor annuity 
for the former spouse is reduced at the time of the divorce (because the 
pro rata share or the amount specified in a spousal agreement or court 
order is less than the amount elected at retirement), the principal's 
annuity shall be recomputed and paid, effective on the date the survivor 
benefit is reduced, as if the lower amount had been elected at the 
outset of retirement.
    (c) Death or remarriage of former spouse and transfer of survivor 
benefit to a spouse. Remarriage below age 60 or death of a former spouse 
while a principal is alive will disqualify the former spouse for 
benefits under this section. In the event of such a remarriage or death 
of a former spouse, the portion of a principal's survivor annuity 
committed to that person will become available for transfer to any 
spouse. If such a remarriage or death of the former spouse occurs after 
the principal's annuity commences, any reduction in the principal's 
annuity for that former spouse will be discontinued effective at the 
beginning of the first month following the remarriage or death unless 
the annuitant elects to provide or to increase a survivor benefit for a 
spouse. Such an election may be made within one year after the annuitant 
receives notice of the remarriage or death of his/her former spouse. The 
Department (PER/ER/RET) and the annuitant shall each notify the other 
promptly whenever either receives independent notice of such a 
remarriage or death. If an election to transfer survivor benefits to a 
spouse is not made by the annuitant, his/her annuity will be recomputed 
and paid as if there had been no reduction for the discontinued survivor 
benefit. If an annuity is so recomputed and an election is subsequently 
made to designate as beneficiary a spouse to whom married for at least 
one year at the time the election is made, the principal's annuity shall 
be restored retroactively to its former, lower rate and then adjusted by 
cost-of-living increases that have occured since the date of the first 
recomputation. If an election is made for a spouse when the marriage has 
not yet lasted a year, the procedures in Sec.  19.10-4 shall be 
followed.
    (d) Amount of survivor annuity. The amount of a regular survivor 
annuity is determined under Sec.  19.11-3(c).
    (e) Special rules for election of survivor annuity for a person who 
is a former spouse on February 15, 1981. (1) Any participant, or former 
participant eligible for a deferred annuity which has not yet commenced, 
who, on February 15, 1981 has a former spouse, may at any time prior to 
commencement of annuity, elect, with the consent of any spouse to whom 
married at the time of the election, to receive a reduced annuity and 
provide a regular survivor annuity for such former spouse. Such survivor 
annuity shall be limited by Sec.  19.10-2(b). An election under this 
paragraph for a former spouse will reduce the amount of any regular 
survivor annuity that may subsequently be provided for any spouse or 
other former spouse.

[[Page 74]]

    (2) Any former participant in receipt of an annuity who has a former 
spouse on February 15, 1981 and who has not committed his/her entire 
annuity as a base for a regular survivor annuity for a spouse or any 
other former spouse, may, prior to December 31, 1982, designate any 
portion of the uncommitted base as the base for a regular survivor 
annuity for such former spouse.
    (3) The annuity of a former participant making an election under 
this paragraph shall be reduced under Sec.  19.10-2(a) effective 
February 15, 1981, or from its commencing date if later.
    (4) An election under this paragraph shall be made by filing a 
spousal agreement with PER/ER/RET under Sec.  19.7. A spousal agreement 
to provide a regular survivor annuity under this paragraph for a former 
spouse may be revoked or amended after its acceptance by PER/ER/RET as 
in accordance with the Act and these regulations, only by agreement of 
the parties up to the last day allowed by this paragraph for filing such 
an agreement. Thereafter, it is irrevocable. If a participant dies in 
service after having filed a valid election under this section, a 
survivor annuity will be paid to an eligible former suriving spouse in 
accordance with the terms of the election.



Sec.  19.11-3  Regular survivor annuity for a spouse.

    (a) In the absence of a joint election or a spousal agreement to the 
contrary, a participant or former participant who is separated from 
active service on or after February 15, 1981 who is married at the 
commencement of his/her annuity shall provide a regular survivor annuity 
for a spouse under Sec.  19.10-2 equal to the maximum amount that 
remains available under limitations stated in paragraph (b) of that 
section after allowing for any commitment of a regular survivor annuity 
for a former spouse who has not remarried prior to age 60 and who is 
alive on the date the former participant becomes eligible for an 
annuity.
    (b) A regular survivor annuity is also payable to a surviving spouse 
for whom a principal elected an annuity under Sec.  19.10-3, Sec.  
19.10-4, or Sec.  19.11-2(c) following a marriage after comencement of 
his/her annuity.
    (c) The amount of a regular survivor annuity equals 55 percent of 
the base designated for the benefit at the time the principal's annuity 
commenced, adjusted by the total percentage of cost-of-living increases 
the principal was receiving at death.
    (d) A survivor annuity is payable to a surviving spouse only if that 
person was married to the principal at the time of his/her death or if 
the spouse became a former spouse under the definition in Sec.  19.2(k).

[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, 
Mar. 27, 1981]



Sec.  19.11-4  Procedure in event a spouse or former spouse is missing.

    If a participant or former participant has a spouse or former spouse 
whose whereabouts are unknown, such participant may elect to reduce or 
eliminate the share of a regular survivor annuity provided for that 
person under Sec.  19.11-2 or Sec.  19.11-3 by filing an affidavit with 
PER/ER/RET stating that his/her spouse or former spouse is missing and 
giving full name, last known address, date last heard from, 
circumstances of the disappearance and a description of the effort that 
has been made to locate the individual. Thereafter, the participant 
shall take such additional steps to locate the missing person as may be 
directed by PER/ER/RET. That Office shall also attempt to locate the 
missing person by sending a letter to the individual's last known 
address given in the Department's files, to the address given on the 
affidavit, and, if a Social Security number is known, to the Social 
Security Administration for forwarding. The election and affidavit may 
be filed at any time before commencement of annuity. It must remain on 
file with PER/ER/RET for at least one year before being given 
irrevocable effect by the Department. If the annuity to the former 
participant becomes effective prior to the expiration of this one year 
period, the annuity shall be computed and paid without reference to the 
election filed under this section. Following this one-year period, or at 
the commencement of annuity, if later, if the missing person has not 
been located, the affidavit may be reaffirmed by the participant, after 
which an election by the participant to reduce or

[[Page 75]]

eliminate the share of regular survivor annuity for the missing person 
shall be given irrevocable effect by the Department. If the annuity to 
the former participant has commenced, it shall be recomputed and paid 
retroactively to give effect to any election made under this section.



Sec.  19.11-5  Commencement, termination and adjustment of annuities.

    (a) An annuity payable from the Fund to a surviving spouse or former 
spouse begins on the day after the participant or annuitant dies and 
stops on the last day of the month before the survivor's (1) marriage 
before age 60, or (2) death. If a survivor annuity is terminated because 
of remarriage, the annuity is restored at the same rate effective on the 
date such remarriage is terminated, provided any lump-sum paid upon 
termination of the annuity is returned to the Fund. The termination of a 
surviving spouse annuity due to remarriage does not apply to a survivor 
annuitant who is a surviving spouse of a participant who died in service 
or retired before October 1, 1976, unless elected following a marriage 
after retirement under circumstances described in Sec.  19.10-3 or Sec.  
19.10-4.
    (b) A surviving spouse or former spouse shall not become entitled to 
a survivor annuity or to the restoration of a survivor annuity payable 
from the Fund unless the survivor elects to receive it instead of any 
other survivor annuity to which entitled under this or any other 
retirement system for Government employees. (For this purpose, neither 
the Social Security system nor the military retirement system is 
considered a retirement system for Government employees.) This 
restriction does not apply to a survivor annuitant who is a surviving 
spouse of a participant who died in service or retired before October 1, 
1976, unless the survivor annuity was elected under circumstances 
described in Sec.  19.10-3 or Sec.  19.10-4.
    (c) A child's annuity begins on the day after the participant dies, 
or if a child is not then qualified, on the first day of the month in 
which the child becomes eligible. A child's annuity shall terminate on 
the last day of the month which precedes the month in which eligibility 
ceases.
    (d) Regular and supplemental survivor annuities to a spouse or 
former spouse of an annuitant described in Sec. Sec.  19.11-2, 19.11-3 
and 19.10-6(b) are increased from their effective date by the cumulative 
percentage of cost-of-living increases the annuitant was receiving under 
section 826 of the Act at death. All annuities payable to survivors on 
the date a cost-of-living adjustment becomes effective are increased by 
that percentage except (1) the first increase to a surviving spouse of a 
participant who dies in service shall be pro rated and (2) additional 
survivor annuities under Sec.  19.10-5 when the spousal agreement 
authorizing the annuity makes no provision for cost-of-living increases.
    (e) The annuity of survivors becomes effective as specified in this 
section but is not paid until the survivor submits Form JF-38, 
Application for Death Benefits, supported by such proof as may be 
required, for example, death, marriage, and/or divorce certificates. In 
the event that such is not submitted during an otherwise eligible 
beneficiary's lifetime, no annuity is due or payable to the 
beneficiary's estate.

[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, 
Mar. 27, 1981]



Sec.  19.11-6  Death during active duty.

    (a) Annuity for surviving former spouse. In the event a participant 
dies before separation from the Service and leaves a former spouse, such 
former spouse is entitled to a regular survivor annuity under Sec.  
19.11-2 computed as if the participant had retired on the date of death 
unless a court order or spousal agreement is on file in the Department 
waiving such entitlement or providing for some other computation, or 
unless the former spouse had been found missing and an election filed 
under the procedures of Sec.  19.11-4 waiving a survivor benefit for 
that person. Any assumed service authorized to be used under paragraph 
(b) of this section in computing the annuity for a surviving spouse may 
not be counted as ``years of marriage'' when determining whether the 
previous spouse qualifies as a ``former spouse'' under the definition in 
Sec.  19.2(k) or when computing the pro

[[Page 76]]

rata share under Sec.  19.2(s). A former spouse is entitled to an 
additional survivor annuity under Sec.  19.10-5 provided death occurs on 
or after the effective date of a spousal agreement providing for the 
additional annuity.
    (b) Annuity for surviving spouse. If a participant who has at least 
19 months of civilian service credit toward retirement under the System, 
excluding extra service credited for unhealthful post duty in accordance 
with section 816 of the Act, dies before separation from the Service, 
and is survived by a spouse as defined in Sec.  19.2(v) such survivor 
shall be entitled to an annuity equal to 55 percent of the annuity 
computed in accordance with Sec.  19.10-1 less any annuity payable to a 
former spouse under paragraph a. If the participant had less than three 
years of creditable civilian service at the time of death, the survivor 
annuity is computed on the basis of the average salary for the entire 
period of such service. If, at time of death, the participant had less 
than 20 years of creditable service, the annuity shall be computed on 
the assumption that the participant has had 20 years of service, but 
such additional service credit shall in no case exceed the difference 
between the participant's age on the date of death and age 65. A spouse 
is entitled to an additional survivor annuity under Sec.  19.10-5 
provided death occurs on or after the effective date of a spousal 
agreement providing for the additional annuity.
    (c) Annuity for a child or children. If a participant described in 
paragraph (b) of this section is survived by a child or children, each 
surviving child is entitled to an annuity as described in Sec.  19.11-7.
    (d) Annuity changes. Annuities based on a death in service are 
subject to the provisions of Sec.  19.11-5 governing commencement, 
adjustment, termination and resumption of annuities.



Sec.  19.11-7  Annuity payable to surviving child or children.

    (a) If a participant who has at least 18 months of civilian service 
credit under the System dies in service, or if an annuitant who was a 
former participant dies, annuities are payable to a surviving child or 
children, as defined in Sec.  19.2(e) as follows:
    (1) When survived by spouse and child or children. If a principal is 
survived by a wife or husband and by a child or children, in addition to 
any other annuity, there shall be paid to or on behalf of each child an 
annuity equal to the smallest of:
    (i) $900
    (ii) $2,700 divided by the number of children--adjusted under 
paragraph (b).
    (2) When survived by a child or children but no spouse. If the 
principal is not survived by a wife or husband, but by a child or 
children, each surviving child shall be paid an annuity equal to the 
smallest of:
    (i) $1,080
    (ii) $3,240 divided by the number of children--adjusted under 
paragraph (b) of this section.
    (b) Adjusted rates. In order to reflect cost-of-living increases, 
the amounts referred to in paragraphs (a)(1) and (2) are increased from 
the commencing date of the annuity to each child by the cumulative 
percentage of all cost-of-living increases that have occurred under 5 
U.S.C. 8340 since October 31, 1969.
    (c) Recomputation of annuity for child or children. If a surviving 
wife or husband dies or the annuity of a child is terminated, the 
annuities of any remaining children shall be recomputed and paid as 
though such spouse or child had not survived the participant. If the 
annuity to a surviving child who has not been receiving an annuity is 
initiated or resumed, the annuities of any other children shall be 
recomputed and paid from that date as though the annuities to all 
currently eligible children in the family were then being initiated.



Sec.  19.11-8  Required elections between survivor benefits.

    (a) Bar against concurrent payment under this Act and Workers' 
Compensation Act. Except as stated below, survivor annuities and 
survivors' compensation for work injuries under 5 U.S.C. 8102 are not 
payable concurrently if both are based on the death of the same 
employee. A survivor entitled to both must elect which of the two 
benefits he/she prefers. Should all eligible survivors of a deceased 
employee

[[Page 77]]

elect to receive the compensation benefit rather than the survivor 
annuity, their rights to the latter are terminated and, if the lump-sum 
credit has not been exhausted, a lump-sum payment will become due under 
Sec.  19.13. The one exception to this rule occurs when a widow or 
widower is being paid the balance of a scheduled compensation award 
under 5 U.S.C. 8107 due the deceased employee. If so, the widow or 
widower may receive the survivor annuity and compensation award 
concurrently.
    (b) Election between survivor annuity and social security benefits. 
Pursuant to 42 U.S.C. 417 (a) and (e), survivors who are eligible for 
annuity which is based in part on military service performed by a 
principal between September 16, 1940, and December 31, 1956, and also 
for survivor benefits under the Social Security system, may elect to 
have the military service credited toward the Social Security benefit. 
In practice, the survivors should apply for both benefits, ask the 
Department and the Social Security Administration for statements showing 
the amount of each benefit, and then make their election of where to 
credit the military service. If Social Security benefits are elected, 
the rights of all survivors to a foreign service annuity are terminated.



Sec.  19.12  Employment in a Government agency.

    An annuitant who is reemployed by a Federal Government agency may 
not receive a combination of salary and annuity which exceeds his/her 
Foreign Service salary at the time of retirement. Refer to Sec.  19.9-4.



Sec.  19.13  Lump-sum payment.



Sec.  19.13-1  Lump-sum credit.

    ``Lump-sum credit'' is the compulsory and special contributions to a 
participant's or former participant's credit in the Fund for his/her 
first 35 years of service plus interest thereon computed from the 
midpoint of each service period and compounded at four percent annually 
to the date of separation or December 31, 1976, whichever is earlier, 
and after such date, for a participant who separates from the Service 
after completing at least one year of civilian service and before 
completing 5 years of such service, at the rate of three percent 
annually to the date of separation. Interest shall not be paid for a 
fractional part of a month in the total service or on compulsory and 
special contributions from the annuitant for recall service or other 
service performed after the date of separation which forms the basis for 
annuity.



Sec.  19.13-2  Share payable to a former spouse.

    A former spouse of a participant or annuitant is entitled to a 
prorata share of 50 percent of any lump-sum payment authorized to be 
paid to a former participant under this section who separated from the 
Service on or after February 15, 1981, unless otherwise directed in a 
court order or a spousal agreement.



Sec.  19.13-3  Payment after death of principal.

    If a participant or former participant dies and no claim for annuity 
is payable, the lump-sum credit is paid to surviving beneficiaries.



Sec.  19.14  Waiver of annuity.

    An individual entitled to be paid an annuity may, for personal 
reasons, decline to accept all or any part of the annuity. However, a 
principal may not waive the portion of his/her annuity authorized to be 
paid to a former spouse under Sec.  19.7 or Sec.  19.9 or to a 
beneficiary under Sec.  19.6. An annuity waiver shall be in writing and 
sent to the Department (PER/ER/RET). A waiver may be revoked in writing 
at any time. Payment of the annuity waived may not be made for the 
period during which the waiver was in effect.



PART 20_BENEFITS FOR CERTAIN FORMER SPOUSES--Table of Contents



Sec.
20.1 Definitions.
20.2 Funding.
20.3 Qualifications.
20.4 Retirement benefits.
20.5 Survivor benefits.
20.6 COLA.
20.7 Waiver.
20.8 Effect on other benefits.
20.9 Application procedure.

    Authority: 22 U.S.C. 3901 et seq.

[[Page 78]]


    Source: 53 FR 39457, Oct. 7, 1988, unless otherwise noted.



Sec.  20.1  Definitions.

    As used in this part, unless otherwise specified, the following have 
the meaning indicated:
    COLA means cost-of-living adjustment in annuity.
    Creditable service or service means employment or other periods that 
are counted under sections 816, 817, or 854 in determining retirement 
benefits.
    Disability annuitant means a participant in FSRDS or FSPS entitled 
to a disability annuity under section 808 of the Act or subchapter V, 
chapter 84, title 5 U.S.C., and a disability annuity means a Foreign 
Service annuity computed under those sections.
    FSRDS means the Foreign Service Retirement and Disability System 
established by subchapter I, chapter 8, of the Act.
    FSPS means the Foreign Service Pension System established by 
subchapter II, chapter 8, of the Act.
    Former spouse means a former wife or husband of a participant or 
former participant who was married to such participant for not less than 
10 years during service of the participant which is creditable under 
chapter 8 of the Act with at least 5 years occurring while the employee 
was a member of the Foreign Service and who retired from the Foreign 
Service Retirement System.
    Full annuity equals the annuity the former participant would be 
eligible to receive except for deductions made to provide survivor 
benefits or because of payment of a portion of the annuity to others.
    Participant means a person who contributes to the Fund identified in 
Sec.  20.2. Such person may participate in either FSRDS or FSPS.
    Principal means a participant or former participant whose service 
forms the basis for a benefit for a former spouse under this part.
    Pro rata share, in the case of a former spouse of a participant or 
former participant, means the percentage obtained by dividing the number 
of months during which the former spouse was married to the participant 
during the creditable service of the participant by the total number of 
months of such creditable service. In the total period, 30 days 
constitutes a month and any period of less than 30 days is not counted. 
When making this calculation for a former spouse married to a 
participant during a period the participant earned extra service credit 
under section 817 of the Act, the number of months of such extra service 
credit earned during that period of the marriage shall be added to the 
total number of months of the marriage.



Sec.  20.2  Funding.

    Benefits under this part are paid from the Fund maintained by the 
Secretary of the Treasury pursuant to section 802 of the Act but are not 
authorized to be paid except to the extent provided therefor. 
Appropriations for such Fund are authorized by section 821(a) of the 
Act.



Sec.  20.3  Qualifications.

    To be eligible for retirement or survivor benefits under this part, 
a former spouse must--
    (a) Have been a former spouse on February 14, 1981;
    (b) After becoming a former spouse, not have remarried before 
attaining age 55;
    (c) In the case of any retirement benefit under Sec.  20.5; elect 
this benefit instead of any survivor annuity for which the former spouse 
may simultaneously be eligible under this or another retirement system 
for Government employees; and
    (d) Submit an application to the Department of State by June 22, 
1990, in accordance with Sec.  20.9 unless that date is extended as 
authorized by that section. The deadline for submission of an 
application for survivor benefits under Sec.  20.5 will be deemed to 
have been met if the former spouse submits an application for retirement 
benefits within the deadline.



Sec.  20.4  Retirement benefits.

    (a) Type of benefits. (1) A former spouse who meets the 
qualification requirements of Sec.  20.3 is entitled to a share of any 
Foreign Service annuity (other than a disability annuity) or any 
supplemental annuity computed under section 806(a), 823 or 824 of the 
Act to which the principal is entitled

[[Page 79]]

under FSRDS and to any Foreign Service annuity (other than a disability 
annuity) or annuity supplement computed under section 824 or 855 of the 
Act of 5 U.S.C. 8415 to which the principal is entitled under FSPS.
    (2) A former spouse of a disability annuitant is entitled to a share 
of benefits to which the annuitant would qualify under paragraph (a) of 
this section, he or she not been disabled based on the actual age and 
service of the annuitant.
    (b) Share. The share of a participant's benefits to which a 
qualified former spouse is entitled is--
    (1) 50 percent of the benefits described in Sec.  20.4(a) if the 
former spouse was married to the participant throughout the latter's 
creditable service; or
    (2) A pro rata share of 50 percent of such benefits if the former 
spouse was not married to the participant throughout such creditable 
service.
    (c) Reduction of benefits. If retirement benefits of a principal are 
reduced because of reemployment, attainment of eligibility for Social 
Security benefits or for any other reason, the amount of the share 
payable to a former spouse is correspondingly reduced during the period 
of the reduction.
    (d) Commencement, termination and suspension. (1) Entitlement to 
retirement benefits under this section (except for a former spouse of a 
disability annuitant) shall commence on the latter of--
    (i) The day the principal becomes entitled to benefits described in 
Sec.  20.4(a); or
    (ii) December 22, 1987.
    (2) Entitlement to retirement benefits under this section for a 
former spouse of a disability annuitant shall commence on the latter 
of--
    (i) The date the principal would qualify for benefits (other than a 
disability annuity) described in Sec.  20.4(a) on the basis of the 
principal's actual age and service;
    (ii) The date the disability annuity begins; or
    (iii) December 22, 1987.
    (3) Entitlement to retirement benefits under this section shall 
terminate or be suspended on the earlier of--
    (i) Last day of the month before the former spouse dies or remarries 
before attaining age 55;
    (ii) Date benefits of the principal terminate or are suspended 
because of death, recall, reemployment, recovery from disability or for 
any other reason.
    (4) Entitlement to benefits under this section shall be resumed for 
a former spouse, following their suspension, or the date they are 
resumed for the principal.



Sec.  20.5  Survivor benefits.

    (a) Type of benefits. A former spouse who meets the eligibility 
requirements of Sec.  20.3 is entitled to survivor benefits equal to one 
of the following; whichever is applicable:
    (1) 55 percent of the full annuity to which the principal was 
entitled on the commencement or recomputation date of the annuity in the 
case of a principal who dies while in receipt of a Foreign Service 
annuity computed under section 806, 808, 823, 824, or 855 of the Act of 
5 U.S.C. 8415;
    (2) 55 percent of the annuity to which the principal was entitled at 
death in the case of a principal who dies while in receipt of a Foreign 
Service annuity computed under 5 U.S.C. 8452;
    (3) 55 percent of the full annuity to which the principal would have 
been entitled if he or she retired (or returned to retirement status) on 
the date of death computed--depending on the provision that would be 
used to compute an annuity for a surviving spouse of the principal--
under section 806(a), 823, 824, or 855(b) of the Act of 5 U.S.C. 8415 
and using the actual service of the principal, in the case of a 
principal who dies while in active service, including service on recall 
or reemployment while annuity is suspended or reduced; or,
    (4) 55 percent of the full annuity computed under 5 U.S.C. 8413(b) 
that the principal could have elected to receive commencing on the date 
of death or, if later, commencing on the date the principal would have 
attained the minimum retirement age described in 5 U.S.C. 8412(h), in 
the case of a principal while entitled to a deferred annuity under 5 
U.S.C. 8413(b), but before commencement of that annuity. A survivor 
annuity under this paragraph may not

[[Page 80]]

commence before the date the principal would have attained the minimum 
retirement age.
    (b) Effect of election of alternate form annuity. If a principal 
elects an alternate form annuity under section 829 of the Act or 5 
U.S.C. 8420a, survivor benefits for a former spouse under this section 
shall, nevertheless, be based on what the principal's annuity would have 
been had the principal not withdrawn retirement contributions in a lump 
sum.
    (c) Reduction because of receipt of other survivor benefits. If a 
former spouse is in receipt of a survivor annuity based on an election 
by the principal under section 806(f) or 2109 of the Act, the survivor 
benefits for the former spouse under this section shall be reduced on 
the effective date by the amount of such elected survivor annuity.
    (d) Commencement and Termination. Entitlement to survivor benefits 
under this section--
    (1) Shall commence on the latter of--
    (i) The date the principal dies;
    (ii) December 22, 1987; and
    (2) Shall terminate on the last day of the month before the former 
spouse dies or remarries before attaining age 55.



Sec.  20.6  COLA.

    (a) Retirement benefits. A retirement annuity payable to a former 
spouse under Sec.  20.4 is adjusted for cost-of-living increases under 
section 826 or 858 of the Act in the same manner as the annuity of the 
principal. The first such increase for a former spouse shall be prorated 
under the applicable section in the same way the first increase for the 
principal is adjusted, irrespective of whether the annuity to the former 
spouse commences on the same date as the annuity to the principal. If 
the benefit of a former spouse is based in part on an annuity supplement 
payable to a principal under 5 U.S.C. 8421 which is not adjusted by 
COLA, then that portion of the benefit payable to a former spouse is not 
adjusted by COLA.
    (b) Survivor benefits. (1) Survivor annuities payable to a former 
spouse are adjusted for COLA under section 826 or 858 of the Act in the 
same manner as annuities are or would be adjusted for other survivors of 
the principal.
    (2) A survivor annuity payable to a former spouse under Sec.  20.5-
1(A) shall be increased from its commencing date pursuant to paragraph 
(c)(2) of section 826 of the Act or 8462 of Title 5, U.S. Code, by all 
COLA received by the principal at death, irrespective of the date of 
death and in instances where death occurred prior to December 22, 1987, 
by all COLA that would have been paid to a survivor annuitant from the 
date of death until December 22, 1987.
    (3) The first increase to which a former spouse becomes entitled 
whose annuity is computed under Sec.  20.5(a)(2) shall be prorated 
pursuant to 5 U.S.C. 8462(c)(4).
    (4) The first increase to which a former spouse becomes entitled 
whose annuity is computed under Sec.  20.5(a)(3) or
    (5) Shall be prorated pursuant to paragraph (c)(1) of section 826 of 
the Act or 8462 or title 5, U.S. Code.



Sec.  20.7  Waiver.

    A former spouse entitled to an annuity under this part may decide to 
decline all or any part of the annuity for personal reasons. An annuity 
waiver shall be in writing and sent to the Retirement Division (PER/ER/
RET), Department of State, Washington, DC 20520. A waiver may be revoked 
in writing at any time. Payment of the annuity waived prior to receipt 
by the Retirement Division of the renovation may not be made.



Sec.  20.8  Effect on other benefits.

    Payment to a former spouse under this part shall not impair, reduce, 
or otherwise affect benefits paid under the Act to the principal or 
other persons.



Sec.  20.9  Application procedure.

    (a) Submission of application. To be eligible for retirement or 
survivor benefits under this part, a former spouse must submit a 
properly executed and completed application to the Department of State 
by June 22, 1990 or, if an exception is made for compelling cause to 
this deadline, within 60 days following the date of the letter from the 
Department transmitting the application to the former spouse. The 
application must be delivered or mailed to the Retirement Division (PER/
ER/RET),

[[Page 81]]

Room 1251, Department of State, Washington, DC 20520.
    (b) Request for application. The Department of State has attempted 
to mail applications to all former spouses of whom it is aware that it 
believes may be eligible for benefits under this part. Any eligible 
former spouse who does not have an application at the time this part is 
published in the Federal Register (October 7, 1988) must communicate 
with the Department as soon as possible and request an application. 
Request may be in person or by mail to the address in Sec.  20.9(a) or 
by telephoning the Retirement Division on area code 202-647-9315. A 
request by letter must include the typed or printed full name and 
current address of the former spouse.
    It shall also give the dates of marriage and divorce or annulment 
that establish eligibility and fully identify the Foreign Service 
employee or former employee in question and state the agency of current 
or last employment.
    (c) Payment of benefits delayed. Payment of benefits cannot be made 
to a former spouse until the application for benefits is approved by the 
Retirement Division of the Department. Upon such approval, benefits will 
be paid to an eligible former spouse retroactively, if necessary, back 
to the commencing date determined under this part.



PART 21_INDEMNIFICATION OF EMPLOYEES--Table of Contents



    Authority: 5 U.S.C. 301; 22 U.S.C. 2658.

    Source: 60 FR 29988, June 7, 1995, unless otherwise noted.



Sec.  21.1  Policy.

    (a) The Department of State may indemnify an employee for any 
verdict, judgment, or other monetary award which is rendered against 
such employee, provided that the conduct giving rise to the verdict, 
judgment, or award was taken within the scope of employment and that 
such indemnification is in the interest of the United States, as 
determined as a matter of discretion by the Under Secretary for 
Management or his or her designee.
    (b) The Department of State may settle or compromise a personal 
damages claim against an employee by the payment of available funds at 
any time, provided the alleged conduct giving rise to the personal 
damages claim was taken within the scope of employment and that such 
settlement or compromise is in the interest of the United States, as 
determined as a matter of discretion by the Under Secretary for 
Management or his or her designee.
    (c) The Director General of the Foreign Service and Director of 
Personnel (``Director General'') shall be the designee of the Under 
Secretary for Management with respect to determinations under paragraphs 
(a) and (b) of this section in cases which involve:
    (1) Foreign courts or foreign administrative bodies and
    (2) Requests of less than five thousand dollars.
    (d) Absent exceptional circumstances as determined by the Under 
Secretary for Management or his or her designee, the Department will not 
entertain a request either to agree to indemnify or to settle a personal 
damages claim before entry of an adverse verdict, judgment, or award.
    (e) When an employee in the United States becomes aware that an 
action has been filed against the employee in his or her personal 
capacity as a result of conduct taken within the scope of his or her 
employment, the employee shall immediately notify the Department through 
the Executive Director of the Office of the Legal Adviser that such an 
action is pending. Employees overseas shall notify their Administrative 
Counselor who shall then notify the Assistant Legal Adviser for Special 
Functional Problems. Employees may be authorized to receive legal 
representation by the Department of Justice in accordance with 28 CFR 
50.15.
    (f) The employee may thereafter request indemnification to satisfy a 
verdict, judgment, or award entered against the employee. The employee 
shall submit a written request, with appropriate documentation including 
copies of the verdict, judgment, award, or settlement proposal if on 
appeal, to the Legal Adviser. Except as provided in paragraph (g) of 
this section, the Legal Adviser and the Director General

[[Page 82]]

shall then, in coordination with the Bureau of Finance and Management 
Policy, forward the request with their recommendation to the Under 
Secretary for Management for decision. The Legal Adviser may seek the 
views of the Department of Justice, as appropriate, in preparing this 
recommendation.
    (g) Cases in which the Director General is the designee under 
paragraph (c) of this section may be forwarded by the Assistant Legal 
Adviser for Special Functional Problems, along with the views of the 
employee and the bureau or post as appropriate, to the Director General 
for decision.
    (h) Personal services contractors of the Department are considered 
employees for purposes of the policy set forth in this part.
    (i) Any payment under this part either to indemnify a Department of 
State employee or to settle a personal damages claim shall be contingent 
upon the availability of appropriated funds.
    (j) In addition to the indemnification provisions contained in the 
regulations in this part, the Department will also follow any specific 
policies or regulations adopted with respect to damages awarded against 
Department health care personnel for malpractice claims within the scope 
of 22 U.S.C. 2702.

[60 FR 29988, June 7, 1995]

[[Page 83]]



                       SUBCHAPTER C_FEES AND FUNDS





PART 22_SCHEDULE OF FEES FOR CONSULAR SERVICES_DEPARTMENT OF STATE 
AND FOREIGN SERVICE--Table of Contents



Sec.
22.1 Schedule of fees.
22.2 Requests for services in the United States.
22.3 Remittances in the United States.
22.4 Requests for services, Foreign Service.
22.5 Remittances to Foreign Service posts.
22.6 Refund of fees.
22.7 Collection and return of fees.

    Authority: 8 U.S.C. 1101 note, 1153 note, 1157 note, 1183a note, 
1184(c)(12), 1201(c), 1351, 1351 note, 1714, 1714 note; 10 U.S.C. 
2602(c); 22 U.S.C. 214, 214 note, 1475e, 2504(h), 2651a, 4206, 4215, 
4219, 6551; 31 U.S.C. 9701; E.O. 10718, 22 FR 4632 (1957), 3 CFR, 1954-
1958 Comp., p. 382; E.O. 11295, 31 FR 10603 (1966), 3 CFR, 1966-1970 
Comp., p. 570.

    Source: 46 FR 58071, Nov. 30, 1981, unless otherwise noted.



Sec.  22.1  Schedule of fees.

    The following table sets forth the new fees for the following 
categories listed on the U.S. Department of State's Schedule of Fees for 
Consular Services:

                 Schedule of Fees for Consular Services
------------------------------------------------------------------------
                    Item No.                                Fee
------------------------------------------------------------------------
                    Passport and Citizenship Services
------------------------------------------------------------------------
1. Passport Book or Card Execution: Required for  $35
 first-time applicants and others who must apply
 in person.
2. Passport Book Application Services for:
    (a) Applicants age 16 or over (including      $50
     renewals).
    (b) Applicants under age 16.................  $20
    (c) [Reserved]..............................
    (d) Passport book replacement for name        NO FEE.
     change if submitted within one year of
     passport issuance.
    (e) Passport book replacement for passport    NO FEE.
     book limited in validity if submitted
     within one year of passport issuance.
     (Passport books limited in validity because
     of multiple losses, thefts, damage, or
     mutilations cannot be replaced).
    (f) Passport book replacement for data        NO FEE.
     correction (name, date of birth, place of
     birth, sex printed erroneously) if
     submitted within one year of passport
     issuance.
    (g) Passport book security surcharge          60
     (enhanced border security fee).
3. Expedited service: Passport processing within  $60.
 the expedited processing period published on
 the Department's website (see 22 CFR 51.56(b))
 and/or in-person service at a U.S. Passport
 Agency (not applicable abroad).
4. Exemptions: The following applicants are
 exempted from all passport fees listed in Item
 2 above:
    (a) Officers or employees of the United       NO FEE.
     States and their immediate family members
     (22 U.S.C. 214) and Peace Corps Volunteers
     and Leaders (22 U.S.C. 2504(h)) proceeding
     abroad or returning to the United States in
     the discharge of their official duties.
    (b) U.S. citizen seamen who require a         NO FEE.
     passport in connection with their duties
     aboard an American flag vessel (22 U.S.C.
     214(a)).
    (c) Widows, children, parents, or siblings    NO FEE.
     of deceased members of the Armed Forces
     proceeding abroad to visit the graves of
     such members (22 U.S.C. 214(a)).
    (d) Employees of the American National Red    NO FEE.
     Cross proceeding abroad as members of the
     Armed Forces of the United States (10
     U.S.C. 2602(c)).
5. Travel Letter: Provided in rare, life-or-      NO FEE unless consular
 death situations as an emergency accommodation    time charges (Item
 to a U.S. citizen returning to the United         75) apply.
 States when the consular officer is unable to
 issue a passport book.
6. File search and verification of U.S.           $150.
 citizenship: When applicant has not presented
 evidence of citizenship and previous records
 must be searched (except for an applicant
 abroad whose passport was stolen or lost abroad
 or when one of the exemptions is applicable).
7. Application for Consular Report of Birth       $100.
 Abroad of a Citizen of the United States.
8. Administrative Processing of Request for       2,350
 Certificate of Loss of Nationality.
9. Passport Card Application Services for:
    (a) Applicants age 16 or over (including      $30.
     renewals) [Adult Passport Card].
    (b) Applicants under age 16 [Minor Passport   $15.
     Card].
    (c) Passport card replacement for name        NO FEE.
     change if submitted within one year of
     passport issuance.
    (d) Passport card replacement for data        NO FEE.
     correction (name, date of birth, place of
     birth, sex printed erroneously) if
     submitted within one year of passport
     issuance.

[[Page 84]]

 
(Item 10 vacant.)
------------------------------------------------------------------------
                       Overseas Citizens Services
          Arrests, Welfare and Whereabouts and Related Services
------------------------------------------------------------------------
11. Arrest and prison visits....................  NO FEE.
12. Assistance regarding the welfare and          NO FEE.
 whereabouts of a U.S. Citizen, including child
 custody inquiries and processing of
 repatriation and emergency dietary assistance
 loans.
(Item 13 vacant.)
------------------------------------------------------------------------
                        Death and Estate Services
------------------------------------------------------------------------
14. Assistance to next-of-kin:
    (a) After the death of a U.S. citizen abroad  NO FEE.
     (providing assistance in disposition of
     remains, making arrangements for shipping
     remains, issuing Consular Mortuary
     Certificate, and providing up to 20
     original Consular Reports of Death).
    (b) Making arrangements for a deceased non-   $200 plus expenses.
     U.S. citizen family member (providing
     assistance in shipping or other disposition
     of remains of a non-U.S. Citizen).
15. Issuance of Consular Mortuary Certificate on  $60.
 behalf of a non-U.S. Citizen.
16. Acting as a provisional conservator of
 estates of U.S. Citizens:
    (a) Taking possession of personal effects;    NO FEE.
     making an inventory under an official seal
     (unless significant time and/or expenses
     incurred).
    (b) Overseeing the appraisal, sale, and       NO FEE.
     final disposition of the estate, including
     disbursing funds, forwarding securities,
     etc. (unless significant time and/or
     expenses incurred).
    (c) For services listed in Item 16(a) or (b)  Consular time (Item
     when significant time and/or expenses are     75) plus expenses.
     incurred.
(Items 17 through 19 vacant.)
------------------------------------------------------------------------
                       Nonimmigrant Visa Services
------------------------------------------------------------------------
20. Filing Nonimmigrant Visa Petition Based on    For fee amount, see 8
 Blanket L Petition (collected for USCIS and       CFR 103.7(b)(1).
 subject to change)
    (a) Petition for a nonimmigrant worker (Form  For fee amount, see 8
     I-129).                                       CFR 103.7(b)(1).
    (b) Nonimmigrant petition based on blanket L  For fee amount, see 8
     petition.                                     CFR 103.7(b)(1).
21. Nonimmigrant Visa Application and Border
 Crossing Card Processing Fees (per person):
    (a) Non-petition-based nonimmigrant visa      $160
     (except E category).
    (b) H, L, O, P, Q and R category              $190
     nonimmigrant visa.
    (c) E category nonimmigrant visa............  $205
    (d) K category (fianc[eacute]) nonimmigrant   $265
     visa.
    (e) Border crossing card--age 15 and over     $160
     (10 year validity).
    (f) Border crossing card--under age 15; for   $16
     Mexican citizens if parent or guardian has
     or is applying for a border crossing card
     (valid 10 years or until the applicant
     reaches age 15, whichever is sooner).
22. EXEMPTIONS from Nonimmigrant Visa
 Application Processing Fee:
    (a) Applicants for A, G, C-3, NATO and        NO FEE.
     diplomatic visas as defined in 22 CFR 41.26.
    (b) Applicants for J visas participating in   NO FEE.
     official U.S. Government sponsored
     educational and cultural exchanges.
    (c) Replacement machine-readable visa when    NO FEE.
     the original visa was not properly affixed
     or needs to be reissued through no fault of
     the applicant.
    (d) Applicants exempted by international      NO FEE.
     agreement as determined by the Department,
     including members and staff of an observer
     mission to United Nations Headquarters
     recognized by the UN General Assembly, and
     their immediate families.
    (e) Applicants traveling to provide           NO FEE.
     charitable services as determined by the
     Department.
    (f) U.S. government employees traveling on    NO FEE.
     official business.
    (g) A parent, sibling, spouse, or child of a  NO FEE.
     U.S. government employee killed in the line
     of duty who is traveling to attend the
     employee's funeral and/or burial; or a
     parent, sibling, spouse, son, or daughter
     of a U.S. government employee critically
     injured in the line of duty for visitation
     during emergency treatment and
     convalescence.
23. Nonimmigrant Visa Issuance Fee, including     RECIPROCAL.
 Border-Crossing Cards (Reciprocity Fee).
24. EXEMPTIONS from Nonimmigrant Visa Issuance
 Fee:
    (a) An official representative of a foreign   NO FEE.
     government or an international or regional
     organization of which the U.S. is a member;
     members and staff of an observer mission to
     United Nations Headquarters recognized by
     the UN General Assembly; and applicants for
     diplomatic visas as defined under item
     22(a); and their immediate families.
    (b) An applicant transiting to and from the   NO FEE.
     United Nations Headquarters.
    (c) An applicant participating in a U.S.      NO FEE.
     government sponsored program.
    (d) An applicant traveling to provide         NO FEE.
     charitable services as determined by the
     Department.
25. Fraud Prevention and Detection Fee for Visa   $500.
 Applicant included in L Blanket Petition
 (principal applicant only).
(Items 26 through 30 vacant.)
------------------------------------------------------------------------

[[Page 85]]

 
                   Immigrant and Special Visa Services
------------------------------------------------------------------------
31. Filing Immigrant Visa Petition (collected
 for USCIS and subject to change):
    (a) Petition to classify status of alien      For fee amount, see 8
     relative for issuance of immigrant Visa.      CFR 103.7(b)(1).
    (b) Petition to classify orphan as an         For fee amount, see 8
     immediate relative.                           CFR 103.7(b)(1).
32. Immigrant Visa Application Processing Fee
 (per person)
    (a) Immediate relative and family preference  $325
     applications.
    (b) Employment-based applications...........  $345
    (c) Other immigrant visa applications         $205
     (including I-360 self-petitioners and
     special immigrant visa applicants).
    (d) Certain Iraqi and Afghan special          NO FEE.
     immigrant visa applications.
    (e) Certain applicants for replacement        NO FEE.
     Immigrant Visas as described in 22 CFR
     42.74(b)(2).
33. Diversity Visa Lottery Fee (per person        $330.
 applying as a result of the lottery program).
34. Affidavit of Support Review (only when        $120
 reviewed domestically).
35. Special Visa Services:
    (a) Determining Returning Resident Status...  $180
    (b) Waiver of two year residency requirement  $120
    (c) Waiver of immigrant visa ineligibility    For fee amount, see 8
     (collected for USCIS and subject to change).  CFR 103.7(b)(1).
    (d) Refugee or significant public benefit     NO FEE.
     parole case processing.
(Items 36 through 40 vacant.)
------------------------------------------------------------------------
                          Documentary Services
------------------------------------------------------------------------
41. Providing notarial service:
    (a) First service (seal)....................  $50.
    (b) Each additional seal provided at the      $50.
     same time in connection with the same
     transaction.
42. Certification of a true copy or that no
 record of an official file can be located (by a
 post abroad):
    (a) First Copy..............................  $50.
    (b) Each additional copy provided at the      $50.
     same time.
43. Provision of documents, certified copies of
 documents, and other certifications by the
 Department of State (domestic):
    (a) Documents relating to births, marriages,  $50.
     and deaths of U.S. citizens abroad
     originally issued by a U.S. embassy or
     consulate.
    (b) Issuance of Replacement Report of Birth   $50.
     Abroad.
    (c) Certified copies of documents relating    $50.
     to births and deaths within the former
     Canal Zone of Panama from records
     maintained by the Canal Zone Government
     from 1904 to September 30, 1979.
    (d) Certifying a copy of a document or        $50.
     extract from an official passport record.
    (e) Certifying that no record of an official  $50.
     file can be located.
    (f) Each additional copy provided at same     $50.
     time.
44. Authentications (by posts abroad):
    (a) Authenticating a foreign notary or other  $50.
     foreign official seal or signature.
    (b) Authenticating a U.S. Federal, State, or  $50.
     territorial seal.
    (c) Certifying to the official status of an   $50.
     officer of the U.S. Department of State or
     of a foreign diplomatic or consular officer
     accredited to or recognized by the U.S.
     Government.
    (d) Each authentication.....................  $50.
45. Exemptions: Notarial, certification, and
 authentication fees (Items 41-44) or passport
 file search fees (Item 6) will not be charged
 when the service is performed:
    (a) At the direct request of any Federal      NO FEE.
     Government agency, any state or local
     government, the District of Columbia, or
     any of the territories or possessions of
     the United States (unless significant costs
     would be incurred).
    (b) With respect to documents to be           NO FEE.
     presented by claimants, beneficiaries, or
     their witnesses in connection with
     obtaining Federal, state, or municipal
     benefits.
    (c) For U.S. citizens outside the United      NO FEE.
     States preparing ballots for any public
     election in the United States or any of its
     territories.
    (d) At the direct request of a foreign        NO FEE.
     government or an international agency of
     which the United States is a member if the
     documents are for official noncommercial
     use.
    (e) At the direct request of a foreign        NO FEE.
     government official when appropriate or as
     a reciprocal courtesy.
    (f) At the request of direct-hire U.S.        NO FEE.
     Government personnel, Peace Corps
     volunteers, or their dependents stationed
     or traveling officially in a foreign
     country.
    (g) With respect to documents whose           NO FEE.
     production is ordered by a court of
     competent jurisdiction.
    (h) With respect to affidavits of support     NO FEE.
     for immigrant visa applications.
    (i) With respect to endorsing U.S. Savings    NO FEE.
     Bonds Certificates.
(Items 46 through 50 vacant.)
------------------------------------------------------------------------

[[Page 86]]

 
                      Judicial Assistance Services
------------------------------------------------------------------------
51. Processing letters rogatory and Foreign       $2,275.
 Sovereign Immunities Act (FSIA) judicial
 assistance cases, including providing seal and
 certificate for return of letters rogatory
 executed by foreign officials.
52. Taking depositions or executing commissions
 to take testimony:
    (a) Scheduling/arranging appointments for     $1,283.
     depositions, including depositions by video
     teleconference (per daily appointment).
    (b) Attending or taking depositions, or       $309 per hour plus
     executing commissions to take testimony       expenses.
     (per hour or part thereof).
    (c) Swearing in witnesses for telephone       Consular time (Item
     depositions.                                  75) plus expenses.
    (d) Supervising telephone depositions (per    Consular time (Item
     hour or part thereof over the first hour).    75) plus expenses.
    (e) Providing seal and certification of       $415.
     depositions.
53. Exemptions: Deposition or executing
 commissions to take testimony. Fees (Item 52)
 will not be charged when the service is
 performed:
    (a) At the direct request of any Federal      NO FEE.
     Government agency, any state or local
     government, the District of Columbia, or
     any of the territories or possessions of
     the United States (unless significant time
     required and/or expenses would be incurred).
    (b) Executing commissions to take testimony   NO FEE.
     in connection with foreign documents for
     use in criminal cases when the commission
     is accompanied by an order of Federal court
     on behalf of an indigent party.
(Items 54 through 60 vacant.)
------------------------------------------------------------------------
                 Services Relating to Vessels and Seamen
------------------------------------------------------------------------
61. Shipping and Seaman's services: Including     Consular time (Item
 but not limited to recording a bill of sale of    75) plus expenses.
 a vessel purchased abroad, renewal of a marine
 radio license, and issuance of certificate of
 American ownership.
(Items 62 through 70 vacant.)
------------------------------------------------------------------------
                         Administrative Services
------------------------------------------------------------------------
71. Non-emergency telephone calls...............  $10 plus long distance
                                                   charge.
72. Setting up and maintaining a trust account:   $30.
 For 1 year or less to transfer funds to or for
 the benefit of a U.S. citizen in need in a
 foreign country.
73. Transportation charges incurred in the        Expenses incurred.
 performance of fee and no-fee services when
 appropriate and necessary.
74. Return check processing fee.................  $25.
75. Consular Time Charges: As required by this    $135
 schedule and for fee services performed away
 from the office or during after-duty hours (per
 hour or part thereof/per consular officer).
76. Photocopies (per page)......................  $1.
(Items 77 through 80 vacant.)
------------------------------------------------------------------------


[75 FR 36532, June 28, 2010, as amended at 76 FR 76035, Dec. 6, 2011; 77 
FR 18913, Mar. 29, 2012; 79 FR 51253, Aug. 28, 2014; 79 FR 79066, Dec. 
31, 2014; 80 FR 53709, Sept. 8, 2015; 80 FR 72591, Nov. 20, 2015; 83 FR 
4428, Jan. 31, 2018; 84 FR 35298, July 23, 2019]



Sec.  22.2  Requests for services in the United States.

    (a) Requests for records. Requests by the file subject or the 
individual's authorized agent for services involving U.S. passport 
applications and related records, including consular birth, marriage and 
death records and authentication of other passport file documents, as 
well as records of births, marriages and deaths within the former Canal 
Zone of Panama recorded and maintained by the Canal Zone Government from 
1904 to September 30, 1979, shall be addressed to Passport Services, 
Correspondence Branch, Department of State, Washington, D.C. 20524. 
Requests for consular birth records should specify whether a Consular 
Report of Birth (Form FS 240, or long form) or Certification of Birth 
(Form DS 1350, or short form) is desired. Advance remittance of the 
exact fee is required for each service.
    (b) Authentication services. Requests for Department of State 
authentication of documents other than passport file documents must be 
accompanied by remittance of the exact total fee

[[Page 87]]

chargeable and addressed to the Authentication Officer, Department of 
State, Washington, DC 20520.

[46 FR 58071, Nov. 30, 1981, as amended at 64 FR 66770, Nov. 30, 1999]



Sec.  22.3  Remittances in the United States.

    (a) Type of remittance. Remittances shall be in the form of: (1) 
Check or bank draft drawn on a bank in the United States; (2) money 
order--postal, international or bank; or (3) U.S. currency. Remittances 
shall be made payable to the order of the Department of State. The 
Department will assume no responsibility for cash which is lost in the 
mail.
    (b) Exact payment of fees. Fees must be paid in full prior to 
issuance of requested documents. If uncertainty as to the existence of a 
record or as to the number of sheets to be copied precludes remitting 
the exact fee chargeable with the request, the Department of State will 
inform the interested party of the exact amount required.



Sec.  22.4  Requests for services, Foreign Service.

    Officers of the Foreign Service shall charge for official services 
performed abroad at the rates prescribed in this schedule, in coin of 
the United States or at its representative value in exchange (22 U.S.C. 
1202). For definition of representative value in exchange, see Sec.  
23.4 of this chapter. No fees named in this schedule shall be charged or 
collected for the official services to American vessels and seamen (22 
U.S.C. 1186). The term ``American vessels'' is defined to exclude, for 
the purposes of this schedule, undocumented American vessels and the 
fees prescribed herein shall be charged and collected for such 
undocumented vessels. However, the fees prescribed herein shall not be 
charged or collected for American public vessels, which includes any 
vessel owned or operated by a U.S. Government department or agency and 
engaged exclusively in official business on a non-commercial basis. This 
schedule of fees shall be kept posted in a conspicuous place in each 
Foreign Service consular office, subject to the examination by all 
persons interested therein (22 U.S.C. 1197).



Sec.  22.5  Remittances to Foreign Service posts.

    Remittances to Foreign Service posts from persons in the United 
States in payment of offical fees and charges or for the purpose of 
establishing deposits in advance of rendition of services shall be in a 
form acceptable to the post, drawn payable to the American Embassy (name 
of city), American Consulate General (name of city) or American 
Consulate (name of city), as the case may be. This will permit cashing 
of negotiable instruments for deposit in the Treasury when not 
negotiated locally. See Sec.  23.2 of this chapter.
    (a) Time at which fees become payable. Fees are due and payble prior 
to issue or delivery to the interested party of a signed document, a 
copy of a record, or other paper representative of a service performed.
    (b) Receipt for fees; register of services. Every officer of the 
Foreign Service responsible for the performance of services as 
enumerated in the Schedule of Fees for Consular Services, Department of 
State and Foreign Service (Sec.  22.1), shall give receipts for fees 
collected for the official services rendered, specifying the nature of 
the service and numbered to correspond with entries in a register 
maintained for the purpose (22 U.S.C. 1192, 1193, and 1194). The 
register serves as a record of official acts performed by officers of 
the Foreign Service in a governmental or notarial capacity, 
corresponding in this regard with the record which notaries are usually 
expected or required to keep of their official acts. See Sec.  92.2 of 
this chapter.
    (c) Deposits to guarantee payment of fees or incidental costs. When 
the amount of any fee is determinable only after initiation of the 
performance of a service, or if incidental costs are involved, the total 
fee and incidental costs shall be carefully estimated and an advance 
deposit required, subject to refund of any unused balance to the person 
making the deposit.



Sec.  22.6  Refund of fees.

    (a) Fees which have been collected for deposit in the Treasury are 
refundable:
    (1) As specifically authorized by law (See 22 U.S.C. 214a concerning 
passport

[[Page 88]]

fees erroneously charged persons excused from payment and 46 U.S.C. 8 
concerning fees improperly imposed on vessels and seamen);
    (2) When the principal officer at the consular post where the fee 
was collected (or the officer in charge of the consular section at a 
combined diplomatic/consular post) finds upon review of the facts that 
the collection was erroneous under applicable law; and
    (3) Where determination is made by the Department of State with a 
view to payment of a refund in the United States in cases which it is 
impracticable to have the facts reviewed and refund effected by and at 
the direction of the responsible consular office. See Sec.  13.1 of this 
chapter concerning refunds of fees improperly exacted by consular 
officers who have neglected to return the same.
    (b) Refunds of $5.00 or less will not be paid to the remitter unless 
a claim is specifically filed at the time of payment for the excess 
amount. An automatic refund on overpayments due to misinformation or 
mistakes on the part of the Department of State will be made.

[52 FR 29515, Aug. 10, 1987, as amended at 65 FR 14212, Mar. 16, 2000]



Sec.  22.7  Collection and return of fees.

    No fees other than those prescribed in the Schedule of Fees, Sec.  
22.1, or by or pursuant to an act of Congress, shall be charged or 
collected by officers of the Foreign Service for official services 
performed abroad (22 U.S.C. 1201). All fees received by any officer of 
the Foreign Service for services rendered in connection with the duties 
of office or as a consular officer shall be accounted for and paid into 
the Treasury of the United States (22 U.S.C. 99 and 812). For receipt, 
registry, and numbering provisions, see Sec.  22.5(b). Collections for 
transportation and other expenses necessary for performance of services 
or for Interested Party toll telephone calls shall be refunded to post 
allotment accounts and made available for meeting such expenses.



PART 23_FINANCE AND ACCOUNTING--Table of Contents



Sec.
23.1 Remittances made payable to the Department of State.
23.2 Endorsing remittances for deposit in the Treasury.
23.3 Refunds.
23.4 Representative value in exchange.
23.5 Claims for settlement by Department of State or General Accounting 
          Office.

    Authority: 22 U.S.C. 2651a.

    Source: 22 FR 10793, Dec. 27, 1957, unless otherwise noted.



Sec.  23.1  Remittances made payable to the Department of State.

    Except as otherwise specified in this title, remittances of moneys 
shall be drawn payable to the Department of State and sent to the 
Department for action and deposit. (See Sec. Sec.  21.2, 22.2, and 51.40 
of this chapter.)



Sec.  23.2  Endorsing remittances for deposit in the Treasury.

    The Office of Finance--Cashier Unit, the Authentication Office, the 
Passport Office or Passport Agency, American Embassy, American Legation, 
American consular office, or other office or unit of the Department of 
State authorized and required to deposit funds in the Treasury of the 
United States, is hereby authorized to endorse, or to have endorsed, to 
the order of the Treasurer of the United States by appropriate stamp, 
checks, drafts, money orders, or other forms of remittance, regardless 
of how drawn, which are for payment to the Department of State for 
deposit in the Treasury of the United States, including those payable to 
the Secretary of State.



Sec.  23.3  Refunds.

    (a) Rectifications and readjustments. See Sec.  22.6 of this chapter 
for outline of circumstances under which fees which have been collected 
for deposit in the Treasury may be refunded.
    (b) Refund of wrongful exactions. See Sec.  13.1 of this chapter 
concerning recovery from consular officers of amounts wrongfully exacted 
and withheld by them.

[22 FR 10793, Dec. 27, 1957, as amended at 65 FR 14212, Mar. 16, 2000]

[[Page 89]]



Sec.  23.4  Representative value in exchange.

    Representative value in exchange for the collection of a fee means 
foreign currency equivalent to the prescribed United States dollar fee 
at the current rate of exchange at the time and place of payment of the 
fee. ``Current rate'' of exchange for this purpose means the bank 
selling rate at which the foreign bank will sell the number of United 
States dollars required to liquidate the obligation to the United States 
for the Foreign Service fee.



Sec.  23.5  Claims for settlement by Department of State 
or General Accounting Office.

    Claims for settlement by the Department of State or by the General 
Accounting Office shall be submitted to the Department in duplicate over 
the handwritten signature, together with the post office address of the 
claimant, and with appropriate recommendations of the officer of the 
Foreign Service, for items such as:
    (a) Refunds of amounts representing payroll deductions such as for 
any retirement and disability fund;
    (b) Amounts due deceased, incompetent, or insolvent persons 
including payees or bona fide holders of unpaid Government checks;
    (c) Amounts claimed from the Government when questions of fact 
affect either the amount payable or the terms of payment, when for any 
reason settlement cannot or should not be affected at the Foreign 
Service office; and
    (d) Amounts of checks, owned by living payees or bona fide holders, 
which have been covered into outstanding liabilities. The Foreign 
Service post or the Department of State shall be consulted before 
preparing the claim to ascertain whether any special form is required to 
be used. Claims for unpaid compensation of deceased alien employees 
shall be forwarded to the respective Foreign Service post.

[[Page 90]]



                 SUBCHAPTER D_CLAIMS AND STOLEN PROPERTY





PART 33_FISHERMEN'S PROTECTIVE ACT GUARANTY FUND PROCEDURES 
UNDER SECTION 7--Table of Contents



Sec.
33.1 Purpose.
33.2 Definitions.
33.3 Eligibility.
33.4 Applications.
33.5 Guaranty agreements.
33.6 Fees.
33.7 Conditions for claims.
33.8 Claim procedures.
33.9 Amount of award.
33.10 Payments.
33.11 Records.
33.12 Penalties.

    Authority: 22 U.S.C. 1977.

    Source: 61 FR 49967, Sept. 24, 1996, unless otherwise noted.



Sec.  33.1  Purpose.

    These rules clarify procedures for the administration of Section 7 
of the Fishermen's Protective Act of 1967. Section 7 of the Act 
establishes a Fishermen's Guaranty Fund to reimburse owners and 
charterers of United States commercial fishing vessels for certain 
losses and costs caused by the seizure and detention of their vessels by 
foreign countries under certain claims to jurisdiction not recognized by 
the United States.



Sec.  33.2  Definitions.

    For the purpose of this part, the following terms mean:
    Act. The Fishermen's Protective Act of 1967 (22 U.S.C. 1971 et 
seq.).
    Capital equipment. Equipment or other property which may be 
depreciated for income tax purposes.
    Depreciated replacement costs. The present replacement cost of 
capital equipment after being depreciated on a straight line basis over 
the equipment's depreciable life, which is standardized at ten years.
    Downtime. The time a vessel normally would be in port or transiting 
to and from the fishing grounds.
    Expendable items. Any property, excluding that which may be 
depreciated for income tax purposes, which is maintained in inventory or 
expensed for tax purposes.
    Fund. The Fishermen's Guaranty Fund established in the U.S. Treasury 
under section 7(c) of the Act (22 U.S.C. 1977(c)).
    Market value. The price property would command in a market, at the 
time of property loss, assuming a seller willing to sell and buyer 
willing to buy.
    Other direct charge. Any levy which is imposed in addition to, or in 
lieu of any fine, license fee, registration fee, or other charge.
    Owner. The owner or charterer of a commercial fishing vessel.
    Secretary. The Secretary of State or the designee of the Secretary 
of State.
    Seizure. Arrest of a fishing vessel by a foreign country for 
allegedly illegal fishing.
    U.S. fishing vessel. Any private vessel documented or certified 
under the laws of the United States as a commercial fishing vessel.



Sec.  33.3  Eligibility.

    Any owner or charterer of a U.S. fishing vessel is eligible to apply 
for an agreement with the Secretary providing for a guarantee in 
accordance with section 7 of the Act.



Sec.  33.4  Applications.

    (a) Applicant. An eligible applicant for a guaranty agreement must:
    (1) Own or charter a U.S. fishing vessel; and
    (2) Submit with his application the fee specified in Sec.  33.6 
below.
    (b) Application forms. Application forms may be obtained by 
contacting the Office of Marine Conservation, Bureau of Oceans and 
International Environmental and Scientific Affairs, Room 7820, U.S. 
Department of State, Washington, DC 20520-7818; Telephone 202-647-3941.
    (c) Where to apply. Applications must be submitted to the Director, 
Office of marine Conservation, Bureau of Oceans and International 
Environmental and Scientific Affairs, Room 7820, U.S. Department of 
State, Washington, DC 20520-7818.

[[Page 91]]

    (d) Application approval. Application approval will be by execution 
of the guaranty agreement by the Secretary or by the Secretary's 
designee.



Sec.  33.5  Guaranty agreements.

    (a) Period in effect. Agreements are effective for a Fiscal Year 
beginning October 1 and ending on the next September 30. Applications 
submitted after October 1 are effective from the date the application 
and fee are mailed (determined by the postmark) through September 30.
    (b) Guaranty agreement transfer. A guaranty agreement may, with the 
Secretary's prior consent, be transferred when a vessel which is the 
subject of a guaranty agreement is transferred to a new owner if the 
transfer occurs during the agreement period.
    (c) Guaranty agreement renewal. A guaranty agreement may be renewed 
for the next agreement year by submitting an application form with the 
appropriate fee for the next year in accordance with the Secretary's 
annually published requirements regarding fees. Renewals are subject to 
the Secretary's approval.
    (d) Provisions of the agreement. The agreement will provide for 
reimbursement for certain losses caused by foreign countries' seizure 
and detention of U.S. fishing vessels on the basis of claims to 
jurisdiction which are not recognized by the United States. Recent 
amendments to the Magnuson Fishery Conservation and Management Act (16 
U.S.C. (1801 et seq.) assert U.S. jurisdiction over highly migratory 
species of tuna in the U.S. exclusive economic zone (EEZ). Accordingly, 
as a matter of international law, the United States now recognizes other 
coastal states' claims to jurisdiction over tuna in their EEZ'S. This 
change directly affect certification of claims filed under the 
Fishermen's Protective Act. Participants are advised that this means 
that the Department will no longer certify for payment claims resulting 
from the seizure of a U.S. vessel while such vessel was fishing for tuna 
within the exclusive economic zone of another country in violation of 
that country's laws. Claims for detentions or seizures based on other 
claims to jurisdiction not recognized by the United States, or on the 
basis of claims to jurisdiction recognized by the United States but 
exercised in a manner inconsistent with international law as recognized 
by the United states, may still be certified by the Department.



Sec.  33.6  Fees.

    (a) General. Fees provide for administrative costs and payment of 
claims. Fees are set annually on the basis of past and anticipated claim 
experience. The annual agreement year for which fees are payable starts 
on October 1 and ends on September 30 of the following year.
    (b) Amount and payment. The amount of each annual fee or adjusted 
fee will be established by the Office Director of the Office of Marine 
Conservation, Bureau of Oceans and International Environmental and 
Scientific Affairs, by publication of a notice in the Federal Register. 
Each notice will establish the amount of the fee, when the fee is due, 
when the fee is payable, and any special conditions surrounding 
extension of prior agreements or execution of new agreements. Unless 
otherwise specified in such notices, agreement coverage will commence 
with the postmarked date of the fee payment and application.
    (c) Adjustment and refund. Fees may be adjusted at any time to 
reflect actual seizure and detention experience for which claims are 
anticipated. Failure to submit adjusted fees will result in agreement 
termination as of the date the adjusted fee is payable. No fees will be 
refunded after an agreement is executed by the Secretary.
    (d) Disposition. All fees will be deposited in the Fishermen's 
Guaranty Fund. They will remain available without fiscal year limitation 
to carry out section 7 of the Act. Claims will be paid from fees and 
from appropriated funds, if any. Fees not required to pay administrative 
costs or claims may be invested in U.S. obligations. All earnings will 
be credited to the Fishermen's Guaranty Fund.



Sec.  33.7  Conditions for claims.

    (a) Unless there is clear and convincing credible evidence that the 
seizure did not meet the requirements of

[[Page 92]]

the Act, payment of claims will be made when:
    (1) A covered vessel is seized by a foreign country under conditions 
specified in the Act and the guaranty agreement; and
    (2) The incident occurred during the period the guaranty agreement 
was in force for the vessel involved.
    (b) Payments will be made to the owner for:
    (1) All actual costs (except those covered by section 3 of the Act 
or reimbursable from some other source) incurred by the owner during the 
seizure or detention period as a direct result thereof, including:
    (i) Damage to, or destruction of, the vessel or its equipment; or
    (ii) Loss or confiscation of the vessel or its equipment; and
    (iii) Dockage fees or utilities;
    (2) The market value of fish or shellfish caught before seizure of 
the vessel and confiscated or spoiled during the period of detention; 
and
    (3) Up to 50 percent of the vessel's gross income lost as a direct 
result of the seizure and detention.
    (c) The exceptions are that no payment will be made from the Fund 
for a seizure which is:
    (1) Covered by any other provision of law (for example, fines, 
license fees, registration fees, or other direct charges payable under 
section 3 of the Act);
    (2) Made by a country at war with the United States;
    (3) In accordance with any applicable convention or treaty, if that 
treaty or convention was made with the advice and consent of the Senate 
and was in force and effect for the United States and the seizing 
country at the time of the seizure;
    (4) Which occurs before the guaranty agreement's effective date or 
after its termination;
    (5) For which other sources of alternative reimbursement have not 
first been fully pursued (for example, the insurance coverage required 
by the agreement and valid claims under any law);
    (6) For which material requirements of the guaranty agreement, the 
Act, or the program regulations have not been fully fulfilled; or
    (7) In the view of the Department of State occurred because the 
seized vessel was undermining or diminishing the effectiveness of 
international conservation and management measures recognized by the 
United States, or otherwise contributing to stock conservation problems 
pending the establishment of such measures.



Sec.  33.8  Claim procedures.

    (a) Where and when to apply. Claims must be submitted to the Office 
Director, Office of Marine Conservation, Bureau of Oceans and 
International Environmental and Scientific Affairs, Room 7820, U.S. 
Department of State, Washington, DC 20520-7818. Claims must be submitted 
within ninety (90) days after the vessel's release. Requests for 
extension of the filing deadline must be in writing and approved by the 
Office Director, Office of Marine Conservation, Bureau of Oceans and 
International Environmental and Scientific Affairs.
    (b) Contents of claim. All material allegations of a claim must be 
supported by documentary evidence. Foreign language documents must be 
accompanied by an authenticated English translation. Claims must 
include:
    (1) The captain's sworn statement about the exact location and 
activity of the vessel when seized;
    (2) Certified copies of charges, hearings, and findings by the 
government seizing the vessel;
    (3) A detailed computation of all actual costs directly resulting 
from the seizure and detention, supported by receipts, affidavits, or 
other documentation acceptable to the Office Director, Office of Marine 
Conservation, Bureau of Oceans and International Environmental and 
Scientific Affairs;
    (4) A detailed computation of lost income claimed, including:
    (i) The date and time seized and released;
    (ii) The number of miles and running time from the point of seizure 
to the point of detention;
    (iii) The total fishing time lost (explain in detail if lost fishing 
time claimed is any greater than the elapsed time from seizure to the 
time required after release to return to the point of seizure);

[[Page 93]]

    (iv) The tonnage of catch on board at the time of seizure;
    (v) The vessel's average catch-per-day's fishing for the three 
calendar years preceding the seizure;
    (vi) The vessel's average downtime between fishing trips for the 
three calendar years preceding the seizure; and
    (vii) The price-per-pound for the catch on the first day the vessel 
returns to port after the seizure and detention unless there is a pre-
negotiated price-per-pound with a processor, in which case the pre-
negotiated price must be documented; and
    (5) Documentation for confiscated, damaged, destroyed, or stolen 
equipment, including:
    (i) The date and cost of acquisition supported by invoices or other 
acceptable proof of ownership; and
    (ii) An estimate from a commercial source of the replacement or 
repair cost.
    (c) Burden of proof. The claimant has the burden of proving all 
aspects of the claim, except in cases of dispute over the facts of the 
seizure where the claimant shall have the presumption that the seizure 
was eligible unless there is clear and convincing credible evidence that 
the seizure did not meet the eligibility standards of the Act.



Sec.  33.9  Amount of award.

    (a) Lost fishing time. Compensation is limited to 50 percent of the 
gross income lost as a direct result of the seizure and detention, based 
on the value of the average catch-per-day's fishing during the three 
most recent calendar years immediately preceding the seizure as 
determined by the Secretary, based on catch rates on comparable vessels 
in comparable fisheries. The compensable period for cases of seizure and 
detention not resulting in vessels confiscation is limited to the 
elapsed time from seizure to the time after release when the vessel 
could reasonably be expected to return to the point of seizure. The 
compensable period in cases where the vessel is confiscated is limited 
to the elapsed time from seizure through the date of confiscation, plus 
an additional period to purchase a replacement vessel and return to the 
point of seizure. In no case can the additional period exceed 120 days.
    (1) Compensation for confiscation of vessels, where no buy-back has 
occurred, will be based on market value which will be determined by 
averaging estimates of market value obtained from as many vessel 
surveyors or brokers as the Secretary deems practicable;
    (2) Compensation for capital equipment other than vessel, will be 
based on depreciated replacement cost;
    (3) Compensation for expendable items and crew's belongings will be 
50 percent of their replacement costs; and
    (4) Compensation for confiscated catch will be for full value, based 
on the price-per-pound.
    (b) Fuel expense. Compensation for fuel expenses will be based on 
the purchase price, the time required to run to and from the fishing 
grounds, the detention time in port, and the documented fuel consumption 
of the vessel.
    (c) Stolen or confiscated property. If the claimant was required to 
buy back confiscated property from the foreign country, the claimant may 
apply for reimbursement of such charges under section 3 of the Act. Any 
other property confiscated is reimbursable from this Guaranty Fund. 
Confiscated property is divided into the following categories:
    (1) Compensation for confiscation of vessels, where no buy-back has 
occurred, will be based on market value which will be determined by 
averaging estimates of market value obtained from as many vessel 
surveyors or brokers as the Secretary deems practicable;
    (2) Compensation for capital equipment other than a vessel, will be 
based on depreciated replacement cost;
    (3) Compensation for expendable items and crew's belongings will be 
50 percent of their replacement cost; and
    (4) Compensation for confiscated catch will be for full value, based 
on the price-per-pound.
    (d) Insurance proceeds. No payments will be made from the Fund for 
losses covered by any policy of insurance or other provisions of law.
    (e) [Reserved]
    (f) Appeals. All determinations under this section are final and are 
not subject to arbitration or appeal.

[[Page 94]]



Sec.  33.10  Payments.

    The Office Director, Office of Marine Conservation, Bureau of Oceans 
and International Environmental and Scientific Affairs, will pay the 
claimant the amount calculated under Sec.  33.9. Payment will be made as 
promptly as practicable, but may be delayed pending the appropriation of 
sufficient funds, should fee collections not be adequate to sustain the 
operation of the Fund. The Director shall notify the claimant of the 
amount approved for payment as promptly as practicable and the same 
shall thereafter constitute a valid, but non-interest bearing obligation 
of the Government. Delays in payments are not a direct consequence of 
seizure and detention and cannot therefore be construed as increasing 
the compensable period for lost fishing time. If there is a question 
about distribution of the proceeds of the claim, the Director may 
request proof of interest from all parties, and will settle this issue.



Sec.  33.11  Records.

    The Office Director, Office of Marine Conservation, Bureau of Oceans 
and International Environmental and Scientific Affairs will have the 
right to inspect claimants' books and records as a precondition to 
approving claims. All claims must contain written authorization of the 
guaranteed party for any international, federal, state, or local 
governmental Agencies to provide the Office Director, Office of Marine 
Conservation, Bureau of Oceans and International Environmental and 
Scientific Affairs any data or information pertinent to a claim.



Sec.  33.12  Penalties.

    Persons who willfully make any false or misleading statement or 
representation to obtain compensation from the Fund are subject to 
criminal prosecution under 22 U.S.C. 1980(g). This provides penalties up 
to $25,000 or imprisonment for up to one year, or both. Any evidence of 
criminal conduct will be promptly forwarded to the United States 
Department of Justice for action. Additionally, misrepresentation, 
concealment, or fraud, or acts intentionally designed to result in 
seizure, may void the guaranty agreement.



PART 34_DEBT COLLECTION--Table of Contents



                       Subpart A_General Provision

Sec.
34.1 Purpose.
34.2 Scope.
34.3 Exceptions.
34.4 Definitions.
34.5 Other procedures or actions.
34.6 Interest, penalties, and administrative costs.
34.7 Collection in installments.

                      Subpart B_Collection Actions

34.8 Notice and demand for payment.
34.9 Request for internal administrative review.
34.10 Collection methods.

                         Subpart C_Salary Offset

34.11 Scope.
34.12 Coordinating offset with another Federal agency.
34.13 Notice requirements before offset.
34.14 Request for an outside hearing for certain debts.
34.15 Outside hearing.
34.16 Procedures for salary offset.
34.17 Non-waiver of rights by payment.

                    Subpart D_Collection Adjustments

34.18 Waivers of indebtedness.
34.19 Compromise.
34.20 Suspension.
34.21 Termination.
34.22 Discharge.
34.23 Bankruptcy.
34.24 Refunds.

    Authority: 31 U.S.C. 3701-3719; 5 U.S.C. 5514; 31 CFR part 285; 31 
CFR parts 900-904; 5 CFR part 550, subpart K.

    Source: 71 FR 16482, Apr. 3, 2006, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  34.1  Purpose.

    These regulations prescribe the procedures to be used by the United 
States Department of State (STATE) in the collection of debts owed to 
STATE and to the United States.



Sec.  34.2  Scope.

    (a) Except as set forth in this part or otherwise provided by law, 
STATE will conduct administrative actions to collect debts (including 
offset, compromise, suspension, termination, disclosure and referral) in 
accordance

[[Page 95]]

with the Federal Claims Collection Standards (FCCS) of the Department of 
the Treasury and Department of Justice, 31 CFR parts 900-904.
    (b) This part is not applicable to STATE claims against another 
Federal agency, any foreign country or any political subdivision 
thereof, or any public international organization.



Sec.  34.3  Exceptions.

    (a) Debts arising from the audit of transportation accounts pursuant 
to 31 U.S.C. 3726 shall be determined, collected, compromised, 
terminated, or settled in accordance with the regulations published at 
41 CFR part 102-118.
    (b) Debts arising out of acquisition contracts subject to the 
Federal Acquisition Regulation (FAR) shall be determined, collected, 
compromised, terminated, or settled in accordance with those regulations 
(see 48 CFR part 32).
    (c) Debts based in whole or in part on conduct in violation of the 
antitrust laws, or in regard to which there is an indication of fraud, 
presentation of a false claim, or misrepresentation on the part of the 
debtor or any other party having an interest in the claim, shall be 
referred to the Department of Justice for compromise, suspension, or 
termination of collection action.
    (d) Tax debts are excluded from the coverage of this regulation.



Sec.  34.4  Definitions.

    For purposes of the section:
    (a) Administrative offset means withholding funds payable by the 
United States to, or held by the United States for, a person to satisfy 
a debt owed by the person to the United States.
    (b) Administrative wage garnishment means the process by which a 
Federal agency orders a non-Federal employer to withhold amounts from a 
debtor's wages to satisfy a debt owed to the United States.
    (c) Compromise means that the creditor agency accepts less than the 
full amount of an outstanding debt in full satisfaction of the entire 
amount of the debt.
    (d) Creditor agency means the Federal agency to which a debt is 
owed.
    (e) Debt or claim means an amount of money which has been determined 
to be owed to the United States from any person. A debtor's liability 
arising from a particular contract or transaction shall be considered a 
single claim for purposes of the monetary ceilings of the FCCS.
    (f) Debtor means a person who owes the Federal government money.
    (g) Delinquent debt means a debt that has not been paid by the date 
specified in STATE's written notification or applicable contractual 
agreement, unless other satisfactory arrangements have been made by that 
date, or that has not been paid in accordance with a payment agreement 
with STATE.
    (h) Discharge means the release of a debtor from personal liability 
for a debt. Further collection action is prohibited.
    (i) Disposable pay means the amount that remains from an employee's 
current basic pay, special pay, incentive pay, retired pay, retainer 
pay, or in the case of an employee not entitled to basic pay, other 
authorized pay remaining after required deductions for Federal, State 
and local income taxes; Social Security taxes, including Medicare taxes; 
Federal retirement programs; normal premiums for life and health 
insurance benefits and such other deductions that are required by law to 
be withheld, excluding garnishments.
    (j) FCCS means the Federal Claims Collection Standards published 
jointly by the Departments of the Treasury and Justice and codified at 
31 CFR parts 900-904.
    (k) Person means an individual, corporation, partnership, 
association, organization, State or local government, or any other type 
of entity other than a Federal agency, Foreign Government, or public 
international organization.
    (l) Salary offset means the withholding of amounts from the current 
pay account of a Federal employee to satisfy a debt owed by that 
employee to the United States.
    (m) Suspension means the temporary cessation of active debt 
collection pending the occurrence of an anticipated event.
    (n) Termination means the cessation of all active debt collection 
action for the foreseeable future.
    (o) Waiver means a decision to forgo collection of a debt owed to 
the United

[[Page 96]]

States, as provided for by a specific statute and according to the 
standards set out under that statute.



Sec.  34.5  Other procedures or actions.

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



Sec.  34.6  Interest, penalties, and administrative costs.

    Except as otherwise provided by statute, contract or excluded in 
accordance with the FCCS, STATE will assess:
    (a) Interest on delinquent debts in accordance with 31 CFR 901.9.
    (b) Penalties at the rate of 6 percent a year or such other rate as 
authorized by law on any portion of a debt that is delinquent for more 
than 90 days.
    (c) Administrative costs to cover the costs of processing and 
calculating delinquent debts.
    (d) Late payment charges under paragraphs (a) and (b) of this 
section shall be computed from the date of delinquency.
    (e) When a debt is paid in partial or installment payments, amounts 
received shall be applied first to outstanding penalty and 
administrative cost charges, second to accrued interest, and then to 
outstanding principal.
    (f) STATE shall consider waiver of interest, penalties and/or 
administrative costs in accordance with the FCCS, 31 CFR 901.9(g).



Sec.  34.7  Collection in installments.

    Whenever feasible, and except as required otherwise by law, debts 
owed to the United States, together with interest, penalties, and 
administrative costs as required by this regulation, should be collected 
in one lump sum. This is true whether the debt is being collected under 
administrative offset, including salary offset, or by another method, 
including voluntary payment. However, if the debtor is financially 
unable to pay the indebtedness in one lump sum, payment may be accepted 
in regular installments. If STATE agrees to accept payment in 
installments, it may require a legally enforceable written agreement 
from the debtor that specifies all of the terms of the arrangement and 
which contains a provision accelerating the debt in the event the debtor 
defaults. The size and frequency of the payments should bear a 
reasonable relation to the size of the debt and ability of the debtor to 
pay. If possible, the installment payments should be sufficient in size 
and frequency to liquidate the Government's claim within 3 years.



                      Subpart B_Collection Actions



Sec.  34.8  Notice and demand for payment.

    (a) STATE shall promptly hand deliver, send by first class mail to 
the debtor's most current address in the records of STATE, or, in 
appropriate circumstances, send by electronic mail to the debtor's most 
current address in the records of STATE, at least one written notice. 
Written demand under this subpart may be preceded by other appropriate 
actions under this part and or the FCCS, including but not limited to 
actions taken under the procedures applicable to administrative offset, 
including salary offset.
    (b) The written notice shall inform the debtor of:
    (1) The basis of the debt;
    (2) The amount of the debt;
    (3) The date by which payment should be made to avoid the imposition 
of interest, penalties and administrative costs, and the enforced 
collection actions described in paragraph (b)(7) of this section;
    (4) The applicable standards for imposing of interest, penalties and 
administrative costs to delinquent debts;
    (5) STATE's readiness to discuss alternative payment arrangements 
and how the debtor may offer to enter into a written agreement to repay 
the debt under terms acceptable to STATE;

[[Page 97]]

    (6) The name, address and telephone number of a contact person or 
office within STATE;
    (7) STATE's intention to enforce collection by taking one or more of 
the following actions if the debtor fails to pay or otherwise resolve 
the debt:
    (i) Offset from Federal payments otherwise due to the debtor, 
including income tax refunds, salary, certain benefit payments, 
retirement, vendor payments, travel reimbursement and advances, and 
other Federal payments due from STATE, other Federal agencies, or 
through centralized disbursing from the Department of the Treasury;
    (ii) Referral to private collection agency
    (iii) Report to credit bureaus
    (iv) Administrative Wage Garnishment
    (v) Litigation by the Department of Justice
    (vi) Referral to the Financial Management Service of the Department 
of the Treasury for collection
    (vii) Liquidation of collateral
    (viii) Other actions as permitted by the FCCS and applicable law;
    (8) The debtor's right to inspect and copy records related to the 
debt;
    (9) The debtor's right to an internal review of STATE's 
determination that the debtor owes a debt or the amount of the debt;
    (10) The debtor's right, if any, to request waiver of collection of 
certain debts, as applicable (see Sec.  34.18);
    (11) Requirement that the debtor advise STATE of any bankruptcy 
proceeding of the debtor; and
    (12) Provision for refund of amounts collected if later decision 
finds that the amount of the debt is not owed or is waived.
    (c) Exceptions to notice requirements. STATE may omit from a notice 
to a debtor one or more of the provisions contained in paragraphs (b)(7) 
through (b)(12) of this section if STATE determines that any provision 
is not legally required given the collection remedies to be applied to a 
particular debt, or which have already been provided by prior notice, 
applicable agreement, or contract.

[71 FR 16482, Apr. 3, 2006, as amended at 79 FR 35283, June 20, 2014]



Sec.  34.9  Requests for internal administrative review.

    (a) For all collection methods for debts owed to STATE, the debtor 
may request a review within State of the existence or the amount of the 
debt. For offset of current Federal salary under 5 U.S.C. 5514 for 
certain debts, debtors may also request an outside hearing. See subpart 
C of this part. This subpart rather than subpart C applies to 
collections by salary offset for debts arising under 5 U.S.C. 5705 
(travel advances), 5 U.S.C. 4108 (training expenses), and other statutes 
specifically providing for collection by salary offset.
    (b) A debtor requesting an internal review shall do so in writing to 
the contact office by the payment due date stated within the initial 
notice sent under 34.8(b) or other applicable provision. The debtor's 
written request shall state the basis for the dispute and include any 
relevant documentation in support.
    (1) STATE will provide for an internal review of the debt by an 
appropriate official. The review may include examination of documents, 
internal discussions with relevant officials and discussion by letter or 
orally with the debtor, at STATE's discretion. An oral hearing may be 
provided when the matter cannot be decided on the documentary record 
because it involves issues of credibility or veracity. Unless otherwise 
required by law, such oral hearing shall not be a formal evidentiary 
hearing. If an oral hearing is appropriate, the time and location of the 
hearing shall be established by STATE. An oral hearing may be conducted, 
at the debtor's option, either in-person or by telephone conference. All 
travel expenses incurred by the debtor in connection with an in-person 
hearing will be borne by the debtor. All telephonic charges incurred 
during the hearing will be the responsibility of STATE. During the 
period of review, STATE may suspend collection activity, including the 
accrual of interest and penalties, on any disputed portion of the debt 
if STATE determines that suspension is in the Department's best interest 
or would serve equity and good conscience.
    (2) If after review STATE either sustains or amends its 
determination, it shall notify the debtor of its intent to

[[Page 98]]

collect the sustained or amended debt. If previously suspended, 
collection actions will be re-instituted unless payment of the sustained 
or amended amount is received or the debtor has made a proposal for a 
payment plan to which STATE agrees, by the date specified in the 
notification of STATE's decision.



Sec.  34.10  Collection methods.

    Upon completion of notice and provision of all due process rights as 
listed in 34.8(b) of this section and upon final determination of the 
existence and amount of a debt, unless other acceptable payment 
arrangements have been made or procedures under a specific statute 
apply, STATE shall collect the debt by one or more of the following 
methods:
    (a) Administrative offset. (1) Payments otherwise due the debtor 
from the United States shall be offset from the debt in accordance with 
31 CFR 901.3. These may be funds under the control of the Department of 
State or other Federal agencies. Collection may be made through 
centralized offset by the Financial Management Service (``FMS'') of the 
Department of the Treasury.
    (2) Such payments include but are not limited to vendor payments, 
salary, retirement, lump sum payments due upon Federal employment 
separation, travel reimbursements, tax refunds, loans or other 
assistance. For offset of Federal salary payments under 5 U.S.C. 5514 
for certain types of debt see subpart C of this part.
    (3) Administrative offset under this subsection does not apply to 
debts specified in the FCCS, 31 CFR 901.3(a)(2).
    (4) Before administrative offset is instituted by another Federal 
agency or the FMS, STATE shall certify in writing to that entity that 
the debt is past due and legally enforceable and that STATE has complied 
with all applicable due process and other requirements as described in 
this part and other Federal law and regulations.
    (5) Administrative offset of anticipated or future benefit payments 
under the Civil Service Retirement and Disability Fund will be requested 
by STATE pursuant to 5 CFR 831.1801-1808.
    (6) Expedited offset. STATE may effect an offset against a debtor 
prior to sending a notice to the debtor as described in Sec.  34.8, 
when:
    (i) The offset is in the nature of a recoupment,
    (ii) Offset is executed pursuant to procedures set out in the 
Contracts Disputes Act,
    (iii) Previous notice and opportunity for review have been given, or
    (iv) There is insufficient time before payment would be made to the 
debtor/payee to allow prior notice and an opportunity for review. In 
such case, STATE shall give the debtor notice and an opportunity for 
review as soon as practicable and shall promptly refund any money 
ultimately found not to have been owed to the Government.
    (b) Referral to private collection agency. STATE may contract for 
collection services to recover delinquent debts, or transfer a 
delinquent debt to FMS for private collection action, pursuant to 31 
U.S.C. 3718, 22 U.S.C. 2716 and the FCCS, 31 CFR 901.5, as applicable. 
STATE will not use a collection agency to collect a debt owed by a 
currently employed or retired Federal employee, if collection by salary 
or annuity offset is available.
    (c) Disclosure to consumer reporting agencies. STATE may disclose 
delinquent debts to consumer reporting agencies and other automated 
databases in accordance with 31 U.S.C. 3711(e) and the FCCS, 31 CFR 
901.4, and in compliance with the Bankruptcy Code and the Privacy Act 5 
U.S.C. 552a.
    (d) Liquidation of Collateral, if applicable, in accordance with the 
FCCS, 31 CFR 901.7.
    (e) Suspension or revocation of eligibility for loans and loan 
guaranties, licenses, permits, or privileges in accordance with the 
FCCS, 31 CFR 901.6.
    (f) Litigation. Debts may be referred to the Department of Justice 
for litigation for collection in accordance with the standards set forth 
in the FCCS, 31 CFR part 904.
    (g) Transfer to FMS. Debts delinquent more than 180 days shall be 
transferred to the Financial Management Service of the Department of the 
Treasury for collection by all available means. Debts delinquent less 
that 180 days may also be so transferred.

[[Page 99]]

    (h) Administrative wage garnishment. STATE may collect debts from a 
non-Federal employee's wages by means of administrative wage garnishment 
in accordance with the requirements of 31 U.S.C. 3720D and 31 CFR 
285.11. All parts of 31 CFR 285.11 are incorporated by reference into 
these regulations, including the hearing procedures described in 31 CFR 
285.11(f).
    (i) Salary offset. See subpart C of this part.

[71 FR 16482, Apr. 3, 2006, as amended at 79 FR 39972, July 11, 2014]



                         Subpart C_Salary Offset



Sec.  34.11  Scope.

    (a) This subpart sets forth STATE's procedures for the collection of 
a Federal employee's current pay by salary offset to satisfy certain 
debts owed to the United States.
    (b) This subpart applies to:
    (1) Current employees of STATE and other agencies who owe debts to 
STATE;
    (2) Current employees of STATE who owe debts to other agencies.
    (c) This subpart does not apply to
    (1) Offset of a separating employee's final payments or Foreign 
Service annuity payments which are covered under administrative offset 
(See Sec.  34.10(a)),
    (2) Debts or claims arising under the Internal Revenue Code of 1954 
(26 U.S.C. 1 et seq.); the Social Security Act (42 U.S.C. 301 et seq.); 
the tariff laws of the United States.
    (3) Any adjustment to pay arising out of an employee's election of 
coverage or a change in coverage under a Federal benefits program 
requiring periodic deductions from pay, if the amount to be recovered 
was accumulated over 4 pay periods or less.
    (4) Any routine intra-agency adjustment of pay that is made to 
correct an overpayment of pay attributable to clerical or administrative 
errors or delays in processing pay documents, if the overpayment 
occurred within the 4 pay periods preceding the adjustment and, at the 
time of such adjustment, or as soon thereafter as practical, the 
individual is provided written notice of the nature and the amount of 
the adjustment and point of contact for contesting such adjustment.
    (5) Any adjustment to collect a debt amounting to $50 or less, if, 
at the time of such adjustment, or as soon thereafter as practical, the 
individual is provided written notice of the nature and the amount of 
the adjustment and a point of contact for contesting such adjustment.
    (d) These regulations do not preclude an employee from requesting 
waiver of the debt, if waiver is available under subpart D of this part 
or by other regulation or statute.
    (e) Nothing in these regulations precludes the compromise, 
suspension or termination of collection actions where appropriate under 
subpart D of this part or other regulations or statutes.



Sec.  34.12  Coordinating offset with another Federal agency.

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



Sec.  34.13  Notice requirements before offset.

    Except as provided in Sec.  34.16, salary offset deductions will not 
be made unless STATE first provides the employee with a written notice 
that he/she owes a debt to the Federal Government at least 30 calendar 
days before salary offset is to be initiated. When STATE is the creditor 
agency, this notice of intent to offset an employee's salary

[[Page 100]]

shall be hand-delivered or sent by electronic mail to the employee's 
STATE issued electronic mail address and will state:
    (a) That STATE has reviewed the records relating to the debt and has 
determined that the debt is owed, its origin and nature, and the amount 
due;
    (b) The intention of STATE to collect the debt by means of deduction 
from the employee's current pay until the debt and any and all 
accumulated interest, penalties and administrative costs are paid in 
full;
    (c) The amount, frequency, approximate beginning date, and duration 
of the intended deductions;
    (d) The requirement to assess and collect interest, penalties, and 
administrative costs in accordance with Sec.  34.6, unless waived in 
accordance with Sec.  34.6(f);
    (e) The employee's right to inspect and copy any STATE records 
relating to the debt, or, if the employee or their representative cannot 
personally inspect the records, to request and receive a copy of such 
records;
    (f) The opportunity to voluntarily repay the debt or to enter into a 
written agreement (under terms agreeable to STATE) to establish a 
schedule for repayment of the debt in lieu of offset;
    (g) Right to an internal review or outside hearing. (1) An internal 
review under Sec.  34.9 may be requested in cases of collections by 
salary offset for debts arising under 5 U.S.C. 5705 (travel advances), 5 
U.S.C. 4108 (training expenses), and other statutes specifically 
providing for collection by salary offset.
    (2) For all other debts, an internal review or an outside hearing 
conducted by an official not under the supervision or control of STATE 
may be requested with respect to the existence of the debt, the amount 
of the debt, or the repayment schedule (i.e., the percentage of 
disposable pay to be deducted each pay period);
    (h) That the timely filing of a request for an outside hearing or 
internal review within 30 calendar days after the date of the notice of 
intent to offset will stay the commencement of collection proceedings;
    (i) The method and time period for requesting an internal review or 
outside hearing;
    (j) That a final decision on the internal review or outside hearing 
(if one is requested) will be issued at the earliest practical date, but 
not later than 60 days after the filing of the request, unless the 
employee requests and the outside hearing official grants a delay in the 
proceedings;
    (k) That any knowingly false or frivolous statements, 
representation, or evidence may subject the employee to disciplinary 
procedures (5 U.S.C. Chapter 75, 5 CFR part 752 or other applicable 
statutes or regulations); penalties (31 U.S.C. 3729-3731 or other 
applicable statutes or regulations); or criminal penalties (18 U.S.C. 
286, 287, 1001, and 1002 or other applicable statutes or regulations);
    (l) Any other rights and remedies available to the employee under 
statutes or regulations governing the program for which the collection 
is being made;
    (m) That the amounts paid on the debt which are later waived or 
found not owed to the United States will be promptly refunded to the 
employee, unless there are applicable contractual or statutory 
provisions to the contrary; and
    (n) The name and address of the STATE official to whom 
communications should be directed.

[71 FR 16482, Apr. 3, 2006, as amended at 79 FR 35283, June 20, 2014]



Sec.  34.14  Request for an outside hearing for certain debts.

    (a) Except as provided in paragraph (d) of this section, an employee 
must file a request that is received by STATE not later than 30 calendar 
days from the date of STATE's notice described in Sec.  34.13 if an 
employee wants an outside hearing pursuant to Sec.  34.13(g)(2) 
concerning:
    (1) The existence or amount of the debt; or
    (2) STATE's proposed offset schedule.
    (b) The request must be signed by the employee and should identify 
and explain with reasonable specificity and brevity the facts, evidence 
and witnesses which the employee believes

[[Page 101]]

support his or her position. If the employee objects to the percentage 
of disposable pay to be deducted from each check, the request should 
state the objection and the reasons for it.
    (c) The employee must also specify whether an oral or paper hearing 
is requested. If an oral hearing is desired, the request should explain 
why the matter cannot be resolved by review of the documentary evidence 
alone.
    (d) If the employee files a request for an outside hearing later 
than the required 30 calendar days as described in paragraph (a) of this 
section, STATE may accept the request if the employee can show that the 
delay was because of circumstances beyond his or her control or because 
of failure to receive notice of the filing deadline (unless the employee 
has actual notice of the filing deadline).
    (e) An employee waives the right to an outside hearing and will have 
his or her pay offset if the employee fails to file a petition for a 
hearing as prescribed in paragraph (a) of this section.



Sec.  34.15  Outside hearings.

    (a) If an employee timely files a request for an outside hearing 
under Sec.  34.13(g)(2), pursuant to 5 U.S.C. 5514(a)(2), STATE shall 
select the time, date, and location of the hearing.
    (b) Outside hearings shall be conducted by a hearing official not 
under the supervision or control of STATE.
    (c) Procedure. (1) After the employee requests a hearing, the 
hearing official shall notify the employee of the form of the hearing to 
be provided. If the hearing will be oral, notice shall set forth the 
date, time and location of the hearing. If the hearing will be paper, 
the employee shall be notified that he or she should submit arguments in 
writing to the hearing official by a specified date after which the 
record shall be closed. This date shall give the employee reasonable 
time to submit documentation.
    (2) Oral hearing. An employee who requests an oral hearing shall be 
provided an oral hearing if the hearing official determines that the 
matter cannot be resolved by review of documentary evidence alone (e.g., 
when an issue of credibility or veracity is involved). The hearing is 
not an adversarial adjudication, and need not take the form of an 
evidentiary hearing.
    (3) Paper hearing. If the hearing official determines that an oral 
hearing is not necessary, he or she will make a decision based upon a 
review of the available written record.
    (4) Record. The hearing official must maintain a summary record of 
any hearing provided by this subpart. Witnesses who provide testimony 
will do so under oath or affirmation.
    (5) Content of decision. The written decision shall include:
    (i) A statement of the facts presented to support the origin, 
nature, and amount of the debt;
    (ii) The hearing official's findings, analysis, and conclusions; and
    (iii) The terms of any repayment schedules, or the date salary 
offset will commence, if applicable.
    (6) Failure to appear. In the absence of good cause shown (e.g., 
excused illness), an employee who fails to appear at a hearing shall be 
deemed, for the purpose of this subpart, to admit the existence and 
amount of the debt as described in the notice of intent. The hearing 
official shall schedule a new hearing date upon the request of the 
creditor agency representative when good cause is shown.
    (d) A hearing official's decision is considered to be an official 
certification regarding the existence and amount of the debt for 
purposes of executing salary offset under 5 U.S.C. 5514 only. It does 
not supersede the finding by STATE that a debt is owed and does not 
affect the Government's ability to recoup the indebtedness through 
alternative collection methods under Sec.  34.10.



Sec.  34.16  Procedures for salary offset.

    Unless otherwise provided by statute or contract, the following 
procedures apply to salary offset:
    (a) Method. Salary offset will be made by deduction at one or more 
officially established pay intervals from the current pay account of the 
employee without his or her consent.
    (b) Source. The source of salary offset is current disposable pay.
    (c) Types of collection. (1) Lump sum payment. Ordinarily debts will 
be collected by salary offset in one lump sum if possible. However, if 
the amount of

[[Page 102]]

the debt exceeds 15 percent of disposable pay for an officially 
established pay interval, the collection by salary offset must be made 
in installment deductions.
    (2) Installment deductions. (i) The size of installment deductions 
must bear a reasonable relation to the size of the debt and the 
employee's ability to pay. If possible, the size of the deduction will 
be that necessary to liquidate the debt in no more than 1 year. However, 
the amount deducted for any period must not exceed 15 percent of the 
disposable pay from which the deduction is made, except as provided by 
other regulations or unless the employee has agreed in writing to a 
greater amount.
    (ii) Installment payments of less than $25 per pay period will be 
accepted only in the most unusual circumstances.
    (iii) Installment deductions will be made over a period of not 
greater than the anticipated period of employment.



Sec.  34.17  Non-waiver of rights by payments.

    So long as there are no statutory or contractual provisions to the 
contrary, no employee payment (of all or a portion of a debt) collected 
under this subpart will be interpreted as a waiver of any rights that 
the employee may have under 5 U.S.C. 5514.



                    Subpart D_Collection Adjustments



Sec.  34.18  Waivers of indebtedness.

    (a) Waivers of indebtedness may be granted only as provided for 
certain types of debt by specific statutes and according to the 
standards set out under those statutes.
    (b) Authorities--(1) Debts arising out of erroneous payments of pay 
and allowances. 5 U.S.C. 5584 provides authority for waiving in whole or 
in part debts arising out of erroneous payments of pay and allowances, 
and travel, transportation and relocation expenses and allowances, if 
collection would be against equity and good conscience and not in the 
best interests of the United States.
    (i) Waiver may not be granted if there exists in connection with the 
claim an indication of fraud, misrepresentation, fault, or lack of good 
faith on the part of the employee or any other person having an interest 
in obtaining a waiver.
    (ii) Fault is considered to exist if in light of the circumstances 
the employee knew or should have known through the exercise of due 
diligence that an error existed but failed to take corrective action. 
What an employee should have known is evaluated under a reasonable 
person standard. Employees are, however, expected to have a general 
understanding of the Federal pay system applicable to them.
    (iii) An employee with notice that a payment may be erroneous is 
expected to make provisions for eventual repayment. Financial hardship 
is not a basis for granting a waiver for an employee who was on notice 
of an erroneous payment.
    (iv) If the deciding official finds no indication of fraud, 
misrepresentation, fault, or lack of good faith on the part of the 
employee or any other person having an interest in obtaining a waiver of 
the claim, the employee is not automatically entitled to a waiver. 
Before a waiver can be granted, the deciding official must also 
determine that collection of the claim against an employee would be 
against equity and good conscience and not in the best interests of the 
United States. Factors to consider when determining if collection of a 
claim against an employee would be against equity and good conscience 
and not in the best interests of the United States include, but are not 
limited to:
    (A) Whether collection of the claim would cause serious financial 
hardship to the employee from whom collection is sought.
    (B) Whether, because of the erroneous payment, the employee either 
has relinquished a valuable right or changed positions for the worse, 
regardless of the employee's financial circumstances.
    (C) The time elapsed between the erroneous payment and discovery of 
the error and notification of the employee;
    (D) Whether failure to make restitution would result in unfair gain 
to the employee;

[[Page 103]]

    (E) Whether recovery of the claim would be unconscionable under the 
circumstances.
    (2) Debts arising out of advances in pay. 5 U.S.C. 5524a provides 
authority for waiving in whole or in part a debt arising out of an 
advance in pay if it is shown that recovery would be against equity and 
good conscience or against the public interest.
    (i) Factors to be considered when determining if recovery of an 
advance payment would be against equity and good conscience or against 
the public interest include, but are not limited to:
    (A) Death of the employee;
    (B) Retirement of the employee for disability;
    (C) Inability of the employee to return to duty because of 
disability (supported by an acceptable medical certificate); and
    (D) Whether failure to repay would result in unfair gain to the 
employee.
    (ii) [Reserved]
    (3) Debts arising out of advances in situations of authorized or 
ordered departures. 5 U.S.C. 5522 provides authority for waiving in 
whole or in part a debt arising out of an advance payment of pay, 
allowances, and differentials provided under this section if it is shown 
that recovery would be against equity and good conscience or against the 
public interest.
    (i) Factors to be considered when determining if recovery of an 
advance payment would be against equity and good conscience or against 
the public interest include, but are not limited to:
    (A) Death of the employee;
    (B) Retirement of the employee for disability;
    (C) Inability of the employee to return to duty because of 
disability (supported by an acceptable medical certificate); and
    (D) Whether failure to repay would result in unfair gain to the 
employee.
    (ii) [Reserved]
    (4) Debts arising out of advances of allowances and differentials 
for employees stationed abroad. 5 U.S.C. 5922 provides authority for 
waiving in whole or in part a debt arising out of an advance of 
allowances and differentials provided under this subchapter if it is 
shown that recovery would be against equity and good conscience or 
against the public interest.
    (i) Factors to be considered when determining if recovery of an 
advance payment would be against equity and good conscience or against 
the public interest include, but are not limited to:
    (A) Death of the employee;
    (B) Retirement of the employee for disability;
    (C) Inability of the employee to return to duty because of 
disability (supported by an acceptable medical certificate); and
    (D) Whether failure to repay would result in unfair gain to the 
employee.
    (ii) [Reserved]
    (5) Debts arising out of employee training expenses. 5 U.S.C. 4108 
provides authority for waiving in whole or in part a debt arising out of 
employee training expenses if it is shown that recovery would be against 
equity and good conscience or against the public interest.
    (i) Factors to be considered when determining if recovery of a debt 
arising out of employee training expenses would be against equity and 
good conscience or against the public interest include, but are not 
limited to:
    (A) Death of the employee;
    (B) Retirement of the employee for disability;
    (C) Inability of the employee to return to duty because of 
disability (supported by an acceptable medical certificate); and
    (D) Whether failure to repay would result in unfair gain to the 
employee.
    (ii) [Reserved]
    (6) Under-withholding of life insurance premiums. 5 U.S.C. 8707(d) 
provides authority for waiving the collection of unpaid deductions 
resulting from under-withholding of Federal Employees' Group Life 
Insurance Program premiums if the individual is without fault and 
recovery would be against equity and good conscience.
    (i) Fault is considered to exist if in light of the circumstances 
the employee knew or should have known through the exercise of due 
diligence that an error existed but failed to take corrective action.
    (ii) Factors to be considered when determining whether recovery of 
unpaid deduction resulting from under-withholding would be against 
equity and

[[Page 104]]

good conscience include, but are not limited to:
    (A) Whether collection of the claim would cause serious financial 
hardship to the individual from whom collection is sought.
    (B) The time elapsed between the failure to properly withhold and 
discovery of the failure and notification of the individual;
    (C) Whether failure to make restitution would result in unfair gain 
to the individual;
    (D) Whether recovery of the claim would be unconscionable under the 
circumstances.
    (7) Overpayments of Foreign Service annuities. For waiver of debts 
arising from overpayments from the Foreign Service Retirement and 
Disability Fund under the Foreign Service Retirement and Disability 
System or the Foreign Service Pension System see 22 CFR part 17.
    (8) As otherwise provided by law.
    (c) Waiver of indebtedness is an equitable remedy and as such must 
be based on an assessment of the facts involved in the individual case 
under consideration.
    (d) The burden is on the employee to demonstrate that the applicable 
waiver standard has been met.
    (e) Requests. A debtor requesting a waiver shall do so in writing to 
the contact office by the payment due date stated within the initial 
notice sent under Sec.  34.8(b) or other applicable provision. The 
debtor's written response shall state the basis for the dispute and 
include any relevant documentation in support.
    (f) While a waiver request is pending, STATE may suspend collection, 
including the accrual of interest and penalties, on the debt if STATE 
determines that suspension is in the Department's best interest or would 
serve equity and good conscience.



Sec.  34.19  Compromise.

    STATE may attempt to effect compromise in accordance with the 
standards set forth in the FCCS, 31 CFR part 902.



Sec.  34.20  Suspension.

    The suspension of collection action shall be made in accordance with 
the standards set forth in the FCCS, 31 CFR 903.1-903.2



Sec.  34.21  Termination.

    The termination of collection action shall be made in accordance 
with the standards set forth in the FCCS, 31 CFR 903.1 and 903.3-903.4.



Sec.  34.22  Discharge.

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



Sec.  34.23  Bankruptcy.

    A debtor should notify STATE at the contact office provided in the 
original notice of the debt, if the debtor has filed for bankruptcy. 
STATE will require documentation from the applicable court indicating 
the date of filing and type of bankruptcy. Pursuant to the laws of 
bankruptcy, STATE will suspend debt collection upon such filing unless 
the automatic stay is no longer in effect or has been lifted. In 
general, collection of a debt discharged in bankruptcy shall be 
terminated unless otherwise provided for by bankruptcy law.



Sec.  34.24  Refunds.

    (a) STATE will refund promptly to the appropriate individual amounts 
offset under this regulation when:
    (1) A debt is waived or otherwise found not owing the United States 
(unless expressly prohibited by statute or regulation); or
    (2) STATE is directed by an administrative or judicial order to make 
a refund.
    (b) Refunds do not bear interest unless required or permitted by law 
or contract.



PART 35_PROGRAM FRAUD CIVIL REMEDIES--Table of Contents



Sec.
35.1 General.
35.2 Definitions.
35.3 Basis for civil penalties and assessments.
35.4 Investigation.

[[Page 105]]

35.5 Review by the reviewing official.
35.6 Prerequisites for issuing a complaint.
35.7 Complaint.
35.8 Service of complaint.
35.9 Answer.
35.10 Default upon failure to file an answer.
35.11 Referral of complaint and answer to the ALJ.
35.12 Notice of hearing.
35.13 Parties to the hearing.
35.14 Separation of functions.
35.15 Ex parte contacts.
35.16 Disqualification of reviewing official or ALJ.
35.17 Rights of parties.
35.18 Authority of the ALJ.
35.19 Prehearing conferences.
35.20 Disclosure of documents.
35.21 Discovery.
35.22 Exchange of witness lists, statements and exhibits.
35.23 Subpoenas for attendance at hearing.
35.24 Protective order.
35.25 Fees.
35.26 Form, filing and service of papers.
35.27 Computation of time.
35.28 Motions.
35.29 Sanctions.
35.30 The hearing and burden of proof.
35.31 Determining the amount of penalties and assessments.
35.32 Location of hearing.
35.33 Witnesses.
35.34 Evidence.
35.35 The record.
35.36 Post-hearing briefs.
35.37 Initial decision.
35.38 Reconsideration of initial decision.
35.39 Appeal to authority head.
35.40 Stays ordered by the Department of Justice.
35.41 Stay pending appeal.
35.42 Judicial review.
35.43 Collection of civil penalties and assessments.
35.44 Right to administrative offset.
35.45 Deposit in Treasury of United States.
35.46 Compromise or settlement.
35.47 Limitations.

    Authority: 22 U.S.C. 2651a; 31 U.S.C. 3801 et seq.; Pub. L. 114-74, 
129 Stat. 584.

    Source: 55 FR 23424, June 8, 1990, unless otherwise noted.



Sec.  35.1  General.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, Public Law 99-509, sections. 6101-6104, 100 Stat. 1874 (October 
21, 1986), codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the 
statute requires each authority head to promulgate regulations necessary 
to implement the provisions of the statute.
    (b) Purpose. This part establishes administrative procedures for 
imposing civil penalties and assessments against persons who make, 
submit, or present, or cause to be made, submitted, or presented, false 
fictitious, or fraudulent claims or written statements to authorities or 
to their agents; and specifies the hearing and appeal rights of persons 
subject to allegations of liability for such penalties and assessments.
    (c) Special considerations abroad. Where a party, witness or 
material evidence in a proceeding under these regulations is located 
abroad, the investigating official, reviewing official or ALJ, as the 
case may be, may adjust the provisions below for service, filing of 
documents, time limitations, and related matters to meet special 
problems arising out of that location.



Sec.  35.2  Definitions.

    (a) ALJ means an Administrative Law Judge in the authority appointed 
pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 
U.S.C. 3344.
    (b) Authority means the United States Department of State.
    (c) Authority head means the Under Secretary for Management.
    (d) Benefit means, in the context of ``statement,'' anything of 
value, including but not limited to, any advantage, preference, 
privilege, license, permit, favorable decision, ruling, status, or loan 
gurarantee.
    (e) Claim means any request, demand, or submission--
    (1) Made to the authority for property, services, or money 
(including money representing grants, loans, insurance, or benefits);
    (2) Made to a recipient of property, services, or money from the 
authority or to a party to a contract with the authority--
    (i) For property or services if the United States--
    (A) Provided such property or services;
    (B) Provided any portion of the funds for the purchase of such 
property or services; or
    (C) Will reimburse such recipient or party for the purchase of such 
property or services; or
    (ii) For the payment of money (including money representing grants,

[[Page 106]]

loans, insurance or benefits) if the United States--
    (A) Provided any portion of the money requested or demanded; or
    (B) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (3) Made to the authority which has the effect of decreasing an 
obligation to pay or account for property, services or money.
    (f) Complaint means the administrative complaint served by the 
reviewing official on the defendant under Sec.  35.7.
    (g) Defendant means any person alleged in a complaint under Sec.  
35.7 to be liable for a civil penalty or assessment under Sec.  35.3.
    (h) Department means the Department of State.
    (i) Government means the United States Government.
    (j) Individual means a natural person.
    (k) Initial decision means the written decision of the ALJ required 
by Sec.  35.10 or Sec.  35.37, and includes a revised initial decision 
issued following a remand or a motion for reconsideration.
    (l) Investigating official means the Inspector General of the 
Department of State or an officer or employee of the Office of Inspector 
General designated by the Inspector General and serving in a position 
for which the rate of basic pay is not less than the minimum rate of 
basic pay for grade GS-16 under the General Schedule.
    (m) Knows or has reason to know means that a person, with respect to 
a claim or statement--
    (1) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (2) Acts in deliberate ignorance of the truth or falsity of the 
claim or statement; or
    (3) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    (n) Makes, wherever it appears, shall include the terms presents, 
submits, and causes to be made, presented, or submitted. As the context 
requires, making or made, shall likewise include the corresponding forms 
of such terms.
    (o) Person means any individual, partnership, corporation, 
association or private organization, and includes the plural of the 
term.
    (p) Representative means an attorney who is a member in good 
standing of the bar of any state, territory, or possession of the United 
States, or of the District of Columbia, or the Commonwealth of Puerto 
Rico.
    (q) Representative for the Authority means the Counsel to the 
Inspector General.
    (r) Reviewing official means the Assistant Legal Adviser for 
Buildings and Acquisitions or her or his designee who is--
    (1) Not subject to supervision by, or required to report to, the 
investigating official;
    (2) Not employed in the organizational unit of the authority in 
which the investigating official is employed; and
    (3) Serving in a position for which the rate of basic pay is not 
less than the minimum rate of basic pay for grade GS-16 under the 
General Schedule.
    (s) Statement means any representation, certification, affirmation, 
document, record, or accounting or bookkeeping entry made--
    (1) With respect to a claim or to obtain the approval or payment of 
a claim (including relating to eligibility to make a claim); or
    (2) With respect to (including relating to eligibility for)--
    (i) A contract with, or a bid or proposal for a contract with; or
    (ii) A grant, loan or benefit from, the authority, or any state, 
political subdivision of a state, or other party, if the United States 
Government provides any portion of the money or property under such 
contract or for such grant, loan, or benefit, or if the Government will 
reimburse such state, political subdivision, or party for any portion of 
the money or property under such contract or for such grant, loan, or 
benefit.

[55 FR 23424, June 8, 1990, as amended at 80 FR 49139, Aug. 17, 2015]



Sec.  35.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Except as provided in paragraph (c) of this section, 
any person who makes a claim that the person knows or has reason to know 
the following shall be subject, in addition to

[[Page 107]]

any other remedy that may be prescribed by law, to a civil penalty of 
not more than $11,803 for each such claim:
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making the statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed.
    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (3) A claim shall be considered made to the authority, recipient, or 
party when such claim is actually made to an agent, fiscal intermediary, 
or other entity, including any state or political subdivision thereof, 
acting for or on behalf of the authority, recipient, or party.
    (4) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statements. (1) Except as provided in paragraph (c) of this 
section, any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statment has a duty to include in such 
statement; and
    (ii) Contains or is accompanied by an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $11,803 for each 
such statement.
    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (3) A statement shall be considered made to the authority when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any state or political subdivision thereof, acting for 
or on behalf of the authority.
    (c) No proof of specific intent to defraud is required to establish 
liability under this section.
    (d) In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held liable for a civil penalty under this section.
    (e) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.
    (f) The maximum penalty for each false claim or statement is 
$11,803, up to a maximum of $348,035.

[55 FR 23424, June 8, 1990, as amended at 81 FR 36793, June 8, 2016; 82 
FR 3178, Jan. 11, 2017; 83 FR 236, Jan. 3, 2018; 84 FR 9959, Mar. 19, 
2019; 85 FR 2022, Jan. 14, 2020; 86 FR 7806, Feb. 2, 2021]



Sec.  35.4  Investigation.

    (a) If an investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted--
    (1) The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued (and, in 
the case of a subpoena to be served outside the jurisdiction of the 
United States, the basis

[[Page 108]]

for such service), and shall identify the records or documents sought;
    (2) The investigating official may designate a person to act on his 
or her behalf to receive the documents sought; and
    (3) The person receiving such subpoena shall be required to tender 
to the investigating official or the person designated to receive the 
documents a certification that the documents sought have been produced, 
or that such documents are not available and the reasons therefore, or 
that such documents, suitably identified, have been withheld based upon 
the assertion of an identified privilege.
    (b) If the investigating official concludes that an action under the 
Program Fraud Civil Remedies Act may be warranted, the investigating 
official shall submit a report containing the findings and conclusions 
of such investigation to the reviewing official.
    (c) Nothing in this section shall preclude or limit an investigating 
official's discretion to refer allegations directly to the Department of 
Justice for suit under the False Claims Act or other civil relief, or to 
preclude or limit such official's discretion to defer or postpone a 
report or referral to the reviewing official to avoid interference with 
a criminal investigation or prosecution.
    (d) Nothing in this section modifies any responsibility of an 
investigating official to report violations of criminal law to the 
Attorney General.



Sec.  35.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec.  35.4(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec.  35.3 of this 
part, the reviewing official shall transmit to the Attorney General a 
written notice of the reviewing official's intention to issue a 
complaint under Sec.  35.7.
    (b) Such notice shall include--
    (1) A statement of the reviewing official's reasons for issuing a 
complaint;
    (2) A statement specifying the evidence that supports the 
allegations of liability;
    (3) A description of the claims or statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money or the value of property, 
services, or other benefits requested or demanded in violation of Sec.  
35.3;
    (5) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    (6) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.



Sec.  35.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec.  35.7 
only if--
    (1) The Department of Justice approves the issuance of a complaint 
in a written statement described in 31 U.S.C. 3803(b)(1); and
    (2) In the case of allegations of liability under Sec.  35.3(a) with 
respect to a claim, the reviewing official determines that, with respect 
to such claim or a group of related claims submitted at the same time 
such claim is submitted (as defined in paragraph (b) of this section), 
the amount of money or the value of property or services demanded or 
requested in violation of Sec.  35.3(a) does not exceed $150,000.
    (b) For purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand or 
submission.
    (c) Nothing in this section shall be construed to limit the 
reviewing official's authority to join in a single complaint against a 
person's claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.



Sec.  35.7  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official

[[Page 109]]

may serve a complaint on the defendant, as provided in Sec.  35.8.
    (b) The complaint shall state--
    (1) The allegations of liability against the defendant, including 
the statutory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the defendant's right to request a 
hearing by filing an answer and to be represented by a representative; 
and
    (4) That failure to file an answer within 30 days of service of the 
complaint will result in the imposition of the maximum amount of 
penalties and assessments without right to appeal, as provided in Sec.  
35.10.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the defendant with a copy of these regulations.



Sec.  35.8  Service of complaint.

    (a) Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure. Service is complete upon receipt.
    (b) Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service, may 
be made by--
    (1) Affidavit of the individual serving the complaint by delivery;
    (2) A United States Postal Service return receipt card acknowledging 
receipt;
    (3) Written acknowledgment of receipt by the defendant or his or her 
representative; or
    (4) In case of service abroad authenticated in accordance with the 
Convention on the Service Abroad of Judicial and Extra Judicial 
Documents in Civil or Commercial Matters.



Sec.  35.9  Answer.

    (a) The defendant may request a hearing by filing an answer with the 
reviewing official within 30 days of service of the complaint. An answer 
shall be deemed to be a request for hearing.
    (b) In the answer, the defendant--
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the defendant intends to rely;
    (3) May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address and telephone number of the person 
authorized by the defendant to act as defendant's representative, if 
any.
    (c) If the defendant is unable to file an answer meeting the 
requirements of paragraph (b) of this section within the time provided, 
the defendant may, before the expiration of 30 days from service of the 
complaint, file with the reviewing official a general answer denying 
liability and requesting a hearing, and a request for an extension of 
time within which to file an answer meeting the requirements of 
paragraph (b) of this section. The reviewing official shall file 
promptly with the ALJ the complaint, the general answer denying 
liability, and the request for an extension of time as provided in Sec.  
35.10. For good cause shown, the ALJ may grant the defendant up to 30 
additional days within which to file an answer meeting the requirements 
of paragraph (b) of this section.



Sec.  35.10  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time 
prescribed in Sec.  35.9(a), the reviewing official may refer the 
complaint to the ALJ.
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on defendant in the manner prescribed in Sec.  35.8, a notice that an 
initial decision will be issued under this section.
    (c) If the defendant fails to answer, the ALJ shall assume the facts 
alleged in the complaint to be true, and, if such facts established 
liability under Sec.  35.3, the ALJ shall issue an initial decision 
imposing the maximum amount of penalties and assessments allowed under 
the statute.

[[Page 110]]

    (d) Except as otherwise provided in this section, by failing to file 
a timely answer, the defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section, 
and the initial decision shall become final and binding upon the parties 
30 days after it was issued.
    (e) If, before such an initial decision becomes final, the defendant 
files a motion with the ALJ seeking to reopen on the grounds that 
extraordinary circumstances prevented the defendant from filing an 
answer, the initial decision shall be stayed pending the ALJ's decision 
on the motion.
    (f) If, on such motion, the defendant can demonstrate extraordinary 
circumstances excusing the failure to file a timely answer, the ALJ 
shall withdraw the initial decision in paragraph (c) of this section, if 
such a decision has been issued, and shall grant the defendant an 
opportunity to answer the complaint.
    (g) A decision of the ALJ denying a defendant's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec.  35.38.
    (h) The defendant may appeal to the authority head the decision 
denying a motion to reopen by filing a notice of appeal with the 
authority head within 15 days after the ALJ denies the motion. The 
timely filing of a notice of appeal shall stay the initial decision 
until the authority head decides the issue.
    (i) If the defendant files a timely notice of appeal with the 
authority head, the ALJ shall forward the record of the proceeding to 
the authority head.
    (j) The authority head shall decide expeditiously whether 
extraordinary circumstances excuse the defendant's failure to file a 
timely answer based solely on the record before the ALJ.
    (k) If the authority head decides that extraordinary circumstances 
excused the defendant's failure to file a timely answer, the authority 
head shall remand the case to the ALJ with instructions to grant the 
defendant an opportunity to answer.
    (l) If the authority head decides that the defendant's failure to 
file a timely answer is not excused, the authority head shall reinstate 
the initial decision of the ALJ, which shall become final and binding 
upon the parties 30 days after the authority head issues such decision.



Sec.  35.11  Referral of complaint and answer to the ALJ.

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



Sec.  35.12  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the defendant in the manner 
prescribed by Sec.  35.8. At the same time, the ALJ shall send a copy of 
such notice to the representative for the Authority.
    (b) Such notice shall include--
    (1) The tentative time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of 
the Government and of the defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec.  35.13  Parties to the hearing.

    (a) The parties to the hearing shall be the defendant and the 
Authority.
    (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the 
False Claims Act may participate in these proceedings to the extent 
authorized by the provisions of that Act.



Sec.  35.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the authority who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case--
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the authority head, except as a witness or a 
representative in public proceedings; or

[[Page 111]]

    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to, or subject to the 
supervision or direction of the investigating official or the reviewing 
official.
    (c) Except as provided in paragraph (a) of this section, the 
representative for the Government may be employed anywhere in the 
authority, including in the offices of either the investigating official 
or the reviewing official.



Sec.  35.15  Ex parte contacts.

    No party or person (except employees of the ALJ's office) shall 
communicate in any way with the ALJ on any matter at issue in a case, 
unless on notice and opportunity for all parties to participate. This 
provision does not prohibit a person or party from inquiring about the 
status of a case or asking routine questions concerning administrative 
functions or procedures.



Sec.  35.16  Disqualification of reviewing official or ALJ.

    (a) A reviewing official or ALJ in a particular case may disqualify 
herself or himself at any time.
    (b) A party may file with the ALJ a motion for disqualification of a 
reviewing official or an ALJ. Such motion shall be accompanied by an 
affidavit alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such objects 
shall be deemed waived
    (d) Such affidavit shall state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It shall be accompanied by a certificate of the representative of 
record that it is made in good faith.
    (e) Upon the filing of such a motion and affidavit, the ALJ shall 
proceed no further in the case until he or she resolves the matter of 
disqualification in accordance with paragraph (f) of this section.
    (f) If the ALJ--
    (1) Determines that a reviewing official is disqualified, the ALJ 
shall dismiss the complaint without prejudice;
    (2) Disqualifies himself or herself, the case shall be reassigned 
promptly to another ALJ; or
    (3) Denies a motion to disqualify, the authority head may determine 
the mater only as part of his or her review of the initial decision upon 
appeal, if any.



Sec.  35.17  Rights of parties.

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



Sec.  35.18  Authority of the ALJ.

    (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is made.
    (b) The ALJ has the authority to--
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas to be served within the United States requiring 
the attendance of witnesses and the production of documents at 
depositions or at hearings. Subpoenas to be served outside the 
jurisdiction of the United States shall state on their face the 
authority therefore;

[[Page 112]]

    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.
    (c) The ALJ does not have the authority to find treaties and other 
international agreements or federal statutes or regulations invalid.



Sec.  35.19  Prehearing conferences.

    (a) The ALJ may schedule prehearing conferences as appropriate.
    (b) Upon the motion of any party, the ALJ shall schedule at least 
one prehearing conference at a reasonable time in advance of the 
hearing.
    (c) The ALJ may use prehearing conferences to discuss the following:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    (3) Stipulations and admissions of fact or as to the contents and 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;
    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The ALJ may issue an order containing all matters agreed upon by 
the parties or ordered by the ALJ at a prehearing conference.



Sec.  35.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the defendant 
may review any relevant and material documents, transcripts, records, 
and other materials that relate to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec.  35.4(b) are based, unless such 
materials are subject to a privilege under federal law or classified 
pursuant to Executive Order. Upon payment of fees for duplication, the 
defendant may obtain copies of such documents.
    (b) Upon written request to the reviewing official, the defendant 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the reviewing 
official as described in Sec.  35.5 is not discoverable under any 
circumstances.
    (d) The defendant may file a motion to compel disclosure of the 
documents subject to the provisions of this section. Such a motion may 
only be filed with the ALJ following the filing of an answer pursuant to 
Sec.  35.9.



Sec.  35.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.

[[Page 113]]

    (b) For the purpose of this section and Sec. Sec.  35.22 and 35.23, 
the term ``documents'' includes information, documents, reports, 
answers, records, accounts, papers, and other data and documentary 
evidence. Nothing contained herein shall be interpreted to require the 
creation of a document.
    (c) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ shall regulate the timing of 
discovery.
    (d) Motions for discovery. (1) A party seeking discovery may file a 
motion with the ALJ. Such a motion shall be accompanied by a copy of the 
requested discovery, or in the case of depositions, a summary of the 
scope of the proposed deposition.
    (2) Within ten days of service, a party may file an opposition to 
the motion and/or a motion for protective order as provided in Sec.  
35.24.
    (3) The ALJ may grant a motion for discovery only if he finds that 
the discovery sought--
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged or classified information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec.  35.24.
    (e) Depositions. (1) If a motion for deposition is granted, the ALJ 
shall issue a subpoena for the deponent, which may require the deponent 
to produce documents. The subpoena shall specify the time and place at 
which the deposition will be held.
    (2) The party seeking to depose shall serve the subpoena in the 
manner prescribed in Sec.  35.8.
    (3) The deponent may file with the ALJ a motion to quash the 
subpoena or a motion for a protective order within ten days of service.
    (4) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.



Sec.  35.22  Exchange of witness lists, statements and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the ALJ, the parties shall exchange witness lists, copies 
of prior statements of proposed witnesses, and copies of proposed 
hearing exhibits, including copies of any written statements that the 
party intends to offer in lieu of live testimony in accordance with 
Sec.  35.33(b). At the time the above documents are exchanged, any party 
that intends to rely on the transcript of deposition testimony in lieu 
of live testimony at the hearing, if permitted by the ALJ, shall provide 
each party with a copy of the specific pages of the transcript it 
intends to introduce into evidence.
    (b) If a party objects, the ALJ shall not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
or any exhibit not provided to the opposing party as provided above 
unless the ALJ finds good cause for the failure or that there is no 
prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ, 
documents exchanged in accordance with paragraph (a) of this section 
shall be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec.  35.23  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request therefor 
not less than 15 days before the day fixed for the hearing unless 
otherwise allowed by the ALJ for good cause shown. Such request shall 
specify any documents to be produced and shall designate the witnesses 
and describe the address and location thereof with sufficient 
particularity to permit such witnesses to be found.

[[Page 114]]

    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec.  35.8. A subpoena on a party or upon an individual 
under the control of a party may be served within the United States by 
first class mail.
    (f) A party or the individual to whom the subpoena is directed may 
file with the ALJ a motion to quash the subpoena within ten days after 
service or on or before the time specified in the subpoena for 
compliance if it is less than ten days after service.



Sec.  35.24  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the ALJ;
    (8) That a trade secret or other confidential research, development, 
commercial information, classified material, or facts pertaining to any 
criminal investigation, proceeding, or other administrative 
investigation not be disclosed or be disclosed only in a designated way; 
or
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
ALJ.



Sec.  35.25  Fees.

    The party requesting a subpoena shall pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in United States District Court. A check 
for witness fees and mileage shall accompany the subpoena when served, 
except that when a subpoena is issued on behalf of the authority, a 
check for witness fees and mileage need not accompany the subpoena.



Sec.  35.26  Form, filing and service of papers.

    (a) Form. (1) Documents filed with the ALJ shall include an original 
and two copies.
    (2) Every pleading and paper filed in the proceeding shall contain a 
caption setting forth the title of the action, the case number assigned 
by the ALJ, a designation of the paper (e.g., motion to quash subpoena), 
and shall be in English or accompanied by an English translation.
    (3) Every pleading and paper shall be signed by, and shall contain 
the address and telephone number of the party or the person on whose 
behalf the paper was filed, or his or her representative.
    (4) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (b) Service. A party filing a document with the ALJ shall, at the 
time of filing, serve a copy of such document on every other party. 
Service upon any party of any document other than the complaint or 
notice of hearing, shall be made by delivering or mailing a copy to the 
party's last known address. When a party is represented by a 
representative, service shall be made upon such representative in lieu 
of the actual party.
    (c) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting

[[Page 115]]

forth the manner of service, shall be proof of service.



Sec.  35.27  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal Government, 
in which event it includes the next business day.
    (b) When the period of time allowed is less than seven days, 
intermediate Saturdays, Sundays, and legal holidays observed by the 
Federal Government shall be excluded from the computation.
    (c) Where a document has been served or issued by mail, or by 
airmail abroad, an additional five days will be added to the time 
permitted for any response.



Sec.  35.28  Motions.

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



Sec.  35.29  Sanctions.

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



Sec.  35.30  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the defendant is liable for a civil penalty or 
assessment under Sec.  35.3 and, if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) The authority shall prove defendant's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The defendant shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.

[[Page 116]]

    (d) The hearing shall be open to the public unless otherwise ordered 
by the ALJ for good cause shown.



Sec.  35.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the authority head, upon appeal, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Because of the intangible costs 
of fraud, the expense of investigating such conduct, and the need to 
deter others who might be similarly tempted, ordinarily double damages 
and a significant civil penalty should be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the authority head in determining the 
amount of penalties and assessments to impose with respect to the 
misconduct (i.e., the false, fictitious, or fraudulent claims or 
statements) charged in the complaint:
    (1) The number of false, fictitious, or fraudulent claims or 
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the defendant's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation;
    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon national 
defense, public health or safety, or public confidence in the management 
of government programs and operations, including particularly the impact 
on the intended beneficiaries of such programs;
    (8) Whether the defendant has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the defendant attempted to conceal the misconduct;
    (10) The degree to which the defendant has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
defendant, the extent to which the defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the defendant's sophistication with respect to it, including the extent 
of the defendant's prior participation in the program or in similar 
transactions;
    (15) Whether the defendant has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the Government of the United States or of a 
state, directly or indirectly; and
    (16) The need to deter the defendant and others from engaging in the 
same or similar misconduct.
    (c) Nothing in this section shall be construed to limit the ALJ or 
the authority head from considering any other factors that in any given 
case may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec.  35.32  Location of hearing.

    (a) The hearing may be held--
    (1) In any judicial district of the United States in which the 
defendant resides or transacts business;
    (2) In any judicial district of the United States in which the claim 
or statement in issue was made; or
    (3) In such other place within the United States as may be agreed 
upon by the defendant and the ALJ.
    (b) Each party shall have the opportunity to present argument with 
respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered 
by the ALJ.



Sec.  35.33  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the

[[Page 117]]

hearing shall be given orally by witnesses under oath or affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written statement or deposition. Any such written statement 
must be provided to all other parties along with the last known address 
of such witness, in a manner which allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written statements of witnesses proposed to testify at the hearing 
and deposition transcripts shall be exchanged as provided in Sec.  
35.22(a).
    (c) The ALJ shall exercise reasonable control over the mode and 
order of interrogating witnesses and presenting evidence in order to 
make--
    (1) The interrogation and presentation effective for the 
ascertainment of the truth;
    (2) To avoid needless consumption of time; and
    (3) To protect witnesses from harassment or undue embarrassment.
    (d) The ALJ shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceeding without regard to the scope of his or 
her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination shall be 
conducted in the manner of direct examination and may proceed by leading 
questions only if the witness is a hostile witness, an adverse party, or 
a witness identified with an adverse party.
    (f) Upon motion of any party, the ALJ shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses. This rule 
does not authorize exclusion of--
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party designated by the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.



Sec.  35.34  Evidence.

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided herein, the ALJ shall not be bound by the 
Federal Rules of Evidence. However, the ALJ may apply the Federal Rules 
of Evidence where appropriate, e.g., to exclude unreliable evidence.
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is classified 
or otherwise privileged under Federal law.
    (f) Evidence concerning offers or compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec.  35.24.



Sec.  35.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
authority head.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec.  35.24.



Sec.  35.36  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief.

[[Page 118]]

The ALJ shall fix the time for filing such briefs, not to exceed 60 days 
from the date the parties receive the transcript of the hearing or, if 
applicable, the stipulated record. Such briefs may be accompanied by 
proposed findings of fact and conclusions of law. The ALJ may permit the 
parties to file reply briefs.



Sec.  35.37  Initial decision.

    (a) The ALJ shall issue an initial decision based only on the 
record, which shall contain findings of fact, conclusions of law, and 
the amount of any penalties and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues:
    (1) Whether the claims or statements identified in the complaint, or 
any portions thereof, violate Sec.  35.3; and
    (2) If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec.  35.31.
    (c) The ALJ shall promptly serve the initial decision on all parties 
within 90 days after the time for submission of post-hearing briefs and 
reply briefs (if permitted) has expired. The ALJ shall at the same time 
serve all defendants with a statement describing the right of any 
defendant determined to be liable for a civil penalty or assessment to 
file a motion for reconsideration with the ALJ or a notice of appeal 
with the authority head. If the ALJ fails to meet the deadline contained 
in this paragraph, he or she shall notify the parties of the reason for 
the delay and shall set a new deadline.
    (d) Unless the initial decision of the ALJ is timely appealed to the 
authority head, or a motion for reconsideration of the initial decision 
is timely filed, the initial decision shall constitute the final 
decision of the authority head and shall be final and binding on the 
parties 30 days after it is issued by the ALJ.



Sec.  35.38  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail 
within the United States, receipt will be presumed to be five days from 
the date of mailing in the absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration of the initial 
decision, the initial decision shall constitute the final decision of 
the authority head and shall be final and binding on the parties 30 days 
after the ALJ denies the motion, unless the initial decision is timely 
appealed to the authority head in accordance with Sec.  35.39.
    (g) If the ALJ issues a revised initial decision, that decision 
shall constitute the final decision of the authority head and shall be 
final and binding on the parties 30 days after it is issued, unless it 
is timely appealed to the authority head in accordance with Sec.  35.39.



Sec.  35.39  Appeal to authority head.

    (a) Any defendant who has filed a timely answer and who is 
determined in an initial decision to be liable for a civil penalty or 
assessment may appeal such decision to the authority head by filing a 
notice of appeal with the authority head in accordance with this 
section.
    (b)(1) No notice of appeal may be filed until the time period for 
filing a motion for reconsideration under Sec.  35.38 has expired.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal must be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) If no motion for reconsideration is timely filed, a notice of 
appeal must be

[[Page 119]]

filed within 30 days after the ALJ issues the initial decision.
    (4) The authority head may extend the initial 30-day period for an 
additional 30 days if the defendant files with the authority head a 
request for an extension within the initial 30-day period and shows good 
cause.
    (c) If the defendant files a timely notice of appeal with the 
authority head and the time for filing motions for reconsideration under 
Sec.  35.38 has expired, the ALJ shall forward the record of the 
proceeding to the authority head.
    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (e) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the authority 
head.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the authority head shall not 
consider any objection that was not raised before the ALJ unless a 
demonstration is any objection that was not raised before the ALJ unless 
a demonstration is made of extraordinary circumstances causing the 
failure to raise the objection.
    (i) If any party demonstrates to the satisfaction of the authority 
head that additional evidence not presented at such hearing is material 
and that there were reasonable grounds for the failure to present such 
evidence at such hearing, the authority head shall remand the matter to 
the ALJ for consideration of such additional evidence.
    (j) The authority head may affirm, reduce, reverse, compromise, 
remand, or settle any penalty or assessment, determined by the ALJ in 
any initial decision.
    (k) The authority head shall promptly serve each party to the appeal 
with a copy of the decision of the authority head and a statement 
describing the right of the defendant to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the authority head 
serves the defendant with a copy of the authority head's decision, a 
determination that a defendant is liable under Sec.  35.3 is final and 
is not subject to judicial review.



Sec.  35.40  Stays ordered by the Department of Justice.

    If at any time the Attorney General or an Assistant Attorney General 
designated by the Attorney General transmits to the authority head a 
written finding that continuation of the administrative process 
described in this part with respect to a claim or statement may 
adversely affect any pending or potential criminal or civil action 
related to such claim or statement, the authority head shall stay the 
process immediately. The authority head may order the process resumed 
only upon receipt of the written authorization of the Attorney General.



Sec.  35.41  Stay pending appeal.

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



Sec.  35.42  Judicial review.

    Section 3805 of title 31, United States Code, authorizes judicial 
review by an appropriate United States District Court of a final 
decision of the authority head imposing penalties or assessments under 
this part and specifies the procedures for such review.



Sec.  35.43  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31, United States Code, authorize 
actions for collection of civil penalties and assessments imposed under 
this part and specify the procedures for such actions.



Sec.  35.44  Right to administrative offset.

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered under Sec.  35.42 or Sec.  35.43, 
or any amount agreed upon in a compromise or settlement under Sec.  
35.46, may be collected by

[[Page 120]]

administrative offset under 31 U.S.C. 3716, except that an 
administrative offset may not be made under this subsection against a 
refund of an overpayment of federal taxes, then or later owing by the 
United States to the defendant.



Sec.  35.45  Deposit in Treasury of United States.

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).



Sec.  35.46  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the ALJ issues an initial decision.
    (c) The authority head has exclusive authority to compromise or 
settle a case under this part at any time after the date on which the 
ALJ issues an initial decision, except during the pendency of any review 
under Sec.  35.42 or during the pendency of any action to collect 
penalties and assessments under Sec.  35.43.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec.  35.42 or of any action to recover penalties and assessments under 
31 U.S.C. 3806.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the authority head, or the Attorney General, as 
appropriate. The reviewing official may recommend settlement terms to 
the authority head, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing.



Sec.  35.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec.  35.8 within six years after 
the date on which such claim or statement is made.
    (b) If the defendant fails to file a timely answer, service of 
notice under Sec.  35.10(b) shall be deemed a notice of hearing for 
purposes of this section.
    (c) The statute of limitations may be extended by agreement of the 
parties.

[[Page 121]]



                           SUBCHAPTER E_VISAS





PART 40_REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND IMMIGRANTS 
UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED--Table of Contents



                      Subpart A_General Provisions

Sec.
40.1 Definitions.
40.2 Documentation of nationals.
40.3 Entry into areas under U.S. administration.
40.4 Furnishing records and information from visa files for court 
          proceedings.
40.5 Limitations on the use of National Crime Information Center (NCIC) 
          criminal history information.
40.6 Basis for refusal.
40.7-40.8 [Reserved]
40.9 Classes of inadmissible aliens.

               Subpart B_Medical Grounds of Ineligibility

40.11 Medical grounds of ineligibility.
40.12-40.19 [Reserved]

   Subpart C_Criminal and Related Grounds_Conviction of Certain Crimes

40.21 Crimes involving moral turpitude and controlled substance 
          violators.
40.22 Multiple criminal convictions.
40.23 Controlled substance traffickers. [Reserved]
40.24 Prostitution and commercialized vice.
40.25 Certain aliens involved in serious criminal activity who have 
          asserted immunity from prosecution. [Reserved]
40.26-40.29 [Reserved]

                 Subpart D_Security and Related Grounds

40.31 General. [Reserved]
40.32 Terrorist activities. [Reserved]
40.33 Foreign policy. [Reserved]
40.34 Immigrant membership in totalitarian party.
40.35 Participants in Nazi persecutions or genocide. [Reserved]
40.36-40.39 [Reserved]

                         Subpart E_Public Charge

40.41 Public charge.
40.42-40.49 [Reserved]

 Subpart F_Labor Certification and Qualification for Certain Immigrants

40.51 Labor certification.
40.52 Unqualified physicians.
40.53 Uncertified foreign health-care workers.
40.54-40.59 [Reserved]

          Subpart G_Illegal Entrants and Immigration Violators

40.61 Aliens present without admission or parole.
40.62 Failure to attend removal proceedings.
40.63 Misrepresentation; Falsely claiming citizenship.
40.64 Stowaways.
40.65 Smugglers.
40.66 Subject of civil penalty.
40.67 Student visa abusers.
40.68 Aliens subject to INA 222(g).
40.69 [Reserved]

                  Subpart H_Documentation Requirements

40.71 Documentation requirements for immigrants.
40.72 Documentation requirements for nonimmigrants.
40.73-40.79 [Reserved]

                  Subpart I_Ineligible for Citizenship

40.81 Ineligible for citizenship.
40.82 Alien who departed the United States to avoid service in the Armed 
          Forces.
40.83-40.89 [Reserved]

                   Subpart J_Aliens Previously Removed

40.91 Certain aliens previously removed.
40.92 Aliens unlawfully present.
40.93 Aliens unlawfully present after previous immigration violation.
40.94-40.99 [Reserved]

                         Subpart K_Miscellaneous

40.101 Practicing polygamists.
40.102 Guardian required to accompany excluded alien.
40.103 International child abduction.
40.104 Unlawful voters.
40.105 Former citizens who renounced citizenship to avoid taxation.
40.106-40.110 [Reserved]

                  Subpart L_Failure to Comply with INA

40.201 Failure of application to comply with INA.
40.202 Certain former exchange visitors.
40.203 Alien entitled to A, E, or G nonimmigrant classification.
40.204 [Reserved]
40.205 Applicant for immigrant visa under INA 203(c).

[[Page 122]]

40.206 Frivolous applications. [Reserved]
40.207-40.210 [Reserved]

               Subpart M_Waiver of Ground of Ineligibility

40.301 Waiver for ineligible nonimmigrants under INA 212(d)(3)(A).

    Authority: 8 U.S.C. 1104, 1182, 1183a, 1641

    Source: 56 FR 30422, July 2, 1991, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 40 appear at 71 FR 
34520 and 34521, June 15, 2006.



                      Subpart A_General Provisions



Sec.  40.1  Definitions.

    The following definitions supplement definitions contained in the 
Immigration and Nationality Act (INA). As used in the regulations in 
parts 40, 41, 42, 43 and 45 of this subchapter, the term:
    (a)(1) Accompanying or accompanied by means not only an alien in the 
physical company of a principal alien but also an alien who is issued an 
immigrant visa within 6 months of:
    (i) The date of issuance of a visa to the principal alien;
    (ii) The date of adjustment of status in the United States of the 
principal alien; or
    (iii) The date on which the principal alien personally appears and 
registers before a consular officer abroad to confer alternate foreign 
state chargeability or immigrant status upon a spouse or child.
    (2) An ``accompanying'' relative may not precede the principal alien 
to the United States.
    (b) Act means the Immigration and Nationality Act (or INA), as 
amended.
    (c) Competent officer, as used in INA 101(a)(26), means a ``consular 
officer'' as defined in INA 101(a)(9).
    (d) Consular officer, as defined in INA 101(a)(9) includes 
commissioned consular officers and the Deputy Assistant Secretary for 
Visa Services, and such other officers as the Deputy Assistant Secretary 
may designate for the purpose of issuing nonimmigrant and immigrant 
visas, but does not include a consular agent, an attach[eacute] or an 
assistant attach[eacute]. For purposes of this regulation, the term 
``other officers'' includes civil service visa examiners employed by the 
Department of State for duty at visa-issuing offices abroad, upon 
certification by the chief of the consular section under whose direction 
such examiners are employed that the examiners are qualified by 
knowledge and experience to perform the functions of a consular officer 
in the issuance or refusal of visas. The designation of visa examiners 
shall expire upon termination of the examiners' employment for such duty 
and may be terminated at any time for cause by the Deputy Assistant 
Secretary. The assignment by the Department of any foreign service 
officer to a diplomatic or consular office abroad in a position 
administratively designated as requiring, solely, partially, or 
principally, the performance of consular functions, and the initiation 
of a request for a consular commission, constitutes designation of the 
officer as a ``consular officer'' within the meaning of INA 101(a)(9).
    (e) Department means the Department of State of the United States of 
America.
    (f) Dependent area means a colony or other component or dependent 
area overseas from the governing foreign state.
    (g) DHS means the Department of Homeland Security.
    (h) Documentarily qualified means that the alien has reported that 
all the documents specified by the consular officer as sufficient to 
meet the requirements of INA 222(b) have been obtained, and the consular 
office has completed the necessary clearance procedures. This term is 
used only with respect to the alien's qualification to apply formally 
for an immigrant visa; it bears no connotation that the alien is 
eligible to receive a visa.
    (i) Entitled to immigrant classification means that the alien:
    (1) Is the beneficiary of an approved petition granting immediate 
relative or preference status;
    (2) Has satisfied the consular officer as to entitlement to special 
immigrant status under INA 101(a)(27) (A) or (B);
    (3) Has been selected by the annual selection system to apply under 
INA 203(c); or
    (4) Is an alien described in Sec.  40.51(c).

[[Page 123]]

    (j) Foreign state, for the purposes of alternate chargeability 
pursuant to INA 202(b), is not restricted to those areas to which the 
numerical limitation prescribed by INA 202(a) applies but includes 
dependent areas, as defined in this section.
    (k) INA means the Immigration and Nationality Act, as amended.
    (l) Make or file an application for a visa means:
    (1) For a nonimmigrant visa applicant, submitting for formal 
adjudication by a consular officer of an electronic application, Form 
DS-160, signed electronically by clicking the box designated ``Sign 
Application'' in the certification section of the application or, as 
directed by a consular officer, a completed Form DS-156, with any 
required supporting documents and biometric data, as well as the 
requisite processing fee or evidence of the prior payment of the 
processing fee when such documents are received and accepted for 
adjudication by the consular officer.
    (2) For an immigrant visa applicant, personally appearing before a 
consular officer and verifying by oath or affirmation the statements 
contained on Form DS-230 or Form DS-260 and in all supporting documents, 
having previously submitted all forms and documents required in advance 
of the appearance and paid the visa application processing fee.
    (m) Native means born within the territory of a foreign state, or 
entitled to be charged for immigration purposes to that foreign state 
pursuant to INA section 202(b).
    (n) Not subject to numerical limitation means that the alien is 
entitled to immigrant status as an immediate relative within the meaning 
of INA 201(b)(2)(i), or as a special immigrant within the meaning of INA 
101(a)(27) (A) and (B), unless specifically subject to a limitation 
other than under INA 201(a), (b), or (c).
    (o) Parent, father, and mother, as defined in INA 101(b)(2), are 
terms which are not changed in meaning if the child becomes 21 years of 
age or marries.
    (p) Port of entry means a port or place designated by the DHS at 
which an alien may apply to DHS for admission into the United States.
    (q) Principal alien means an alien from whom another alien derives a 
privilege or status under the law or regulations.
    (r) Regulation means a rule which is established under the 
provisions of INA 104(a) and is duly published in the Federal Register.
    (s) Son or daughter includes only a person who would have qualified 
as a ``child'' under INA 101(b)(1) if the person were under 21 and 
unmarried.
    (t) Western Hemisphere means North America (including Central 
America), South America and the islands immediately adjacent thereto 
including the places named in INA 101(b)(5).

[56 FR 30422, July 2, 1991, as amended at 56 FR 43552, Sept. 3, 1991; 59 
FR 15300, Mar. 31, 1994; 61 FR 1835, Jan. 24, 1996; 64 FR 55418, Oct. 
13, 1999; 65 FR 54413, Sept. 8, 2000; 71 FR 34520, June 15, 2006; 73 FR 
23068, Apr. 29, 2008; 75 FR 45476, Aug. 3, 2010]



Sec.  40.2  Documentation of nationals.

    (a) Nationals of the United States. A national of the United States 
shall not be issued a visa or other documentation as an alien for entry 
into the United States.
    (b) Former Nationals of the United States. A former national of the 
United States who seeks to enter the United States must comply with the 
documentary requirements applicable to aliens under the INA.



Sec.  40.3  Entry into areas under U.S. administration.

    An immigrant or nonimmigrant seeking to enter an area which is under 
U.S. administration but which is not within the ``United States'', as 
defined in INA 101(a)(38), is not required by the INA to be documented 
with a visa unless the authority contained in INA 215 has been invoked.



Sec.  40.4  Furnishing records and information from visa files 
for court proceedings.

    Upon receipt of a request for information from a visa file or record 
for use in court proceedings, as contemplated in INA 222(f), the 
consular officer must, prior to the release of the information, submit 
the request together with a full report to the Department.

[[Page 124]]



Sec.  40.5  Limitations on the use of National Crime Information Center (NCIC) 
criminal history information.

    (a) Authorized access. The FBI's National Crime Information Center 
(NCIC) criminal history records are law enforcement sensitive and can 
only be accessed by authorized consular personnel with visa processing 
responsibilities.
    (b) Use of information. NCIC criminal history record information 
shall be used solely to determine whether or not to issue a visa to an 
alien or to admit an alien to the United States. All third party 
requests for access to NCIC criminal history record information shall be 
referred to the FBI.
    (c) Confidentiality and protection of records. To protect 
applicants' privacy, authorized Department personnel must secure all 
NCIC criminal history records, automated or otherwise, to prevent access 
by unauthorized persons. Such criminal history records must be 
destroyed, deleted or overwritten upon receipt of updated versions.

[67 FR 8478, Feb. 25, 2002]



Sec.  40.6  Basis for refusal.

    A visa can be refused only upon a ground specifically set out in the 
law or implementing regulations. The term ``reason to believe'', as used 
in INA 221(g), shall be considered to require a determination based upon 
facts or circumstances which would lead a reasonable person to conclude 
that the applicant is ineligible to receive a visa as provided in the 
INA and as implemented by the regulations. Consideration shall be given 
to any evidence submitted indicating that the ground for a prior refusal 
of a visa may no longer exist. The burden of proof is upon the applicant 
to establish eligibility to receive a visa under INA 212 or any other 
provision of law or regulation.



Sec. Sec.  40.7-40.8  [Reserved]



Sec.  40.9  Classes of inadmissible aliens.

    Subparts B through L describe classes of inadmissible aliens who are 
ineligible to receive visas and who shall be ineligible for admission 
into the United States, except as otherwise provided in the Immigration 
and Nationality Act, as amended.

[61 FR 59184, Nov. 21, 1996]



               Subpart B_Medical Grounds of Ineligibility



Sec.  40.11  Medical grounds of ineligibility.

    (a) Decision on eligibility based on findings of medical doctor. A 
finding of a panel physician designated by the post in whose 
jurisdiction the examination is performed pursuant to INA 212(a)(1) 
shall be binding on the consular officer, except that the officer may 
refer a panel physician finding in an individual case to USPHS for 
review.
    (b) Waiver of ineligibility--INA 212(g). If an immigrant visa 
applicant is inadmissible under INA 212(a)(1)(A)(i), (ii), or (iii) but 
is qualified to seek the benefits of INA 212(g)(1)(A) or (B), 
212(g)(2)(C), or 212(g)(3), the consular officer shall inform the alien 
of the procedure for applying to DHS for relief under the applicable 
provision of law. A visa may not be issued to the alien until the 
consular officer has received notification from DHS of the approval of 
the alien's application under INA 212(g), unless the consular officer 
has been delegated authority by the Secretary of Homeland Security to 
grant the particular waiver under INA 212(g).
    (c) Waiver authority--INA 212(g)(2)(A) and (B). The consular officer 
may waive section 212(a)(1)(A)(ii) visa ineligibility if the alien 
qualifies for such waiver under the provisions of INA 212(g)(2)(A) or 
(B).

[56 FR 30422, July 2, 1991, as amended at 62 FR 67567, Dec. 29, 1997]



Sec. Sec.  40.12-40.19  [Reserved]



   Subpart C_Criminal and Related Grounds_Conviction of Certain Crimes



Sec.  40.21  Crimes involving moral turpitude 
and controlled substance violators.

    (a) Crimes involving moral turpitude--(1) Acts must constitute a 
crime under criminal law of jurisdiction where they occurred. A Consular 
Officer may make a

[[Page 125]]

finding of ineligibility under INA 212(a)(2)(A)(i)(I) based upon an 
alien's admission of the commission of acts which constitute the 
essential elements of a crime involving moral turpitude, only if the 
acts constitute a crime under the criminal law of the jurisdiction where 
they occurred. However, a Consular Officer must base a determination 
that a crime involves moral turpitude upon the moral standards generally 
prevailing in the United States.
    (2) Conviction for crime committed under age 18. (i) An alien will 
not be ineligible to receive a visa under INA 212(a)(2)(A)(i)(I) by 
reason of any offense committed:
    (A) Prior to the alien's fifteenth birthday, or
    (B) Between the alien's fifteenth and eighteenth birthdays unless 
such alien was tried and convicted as an adult for a felony involving 
violence as defined in section 1(1) and section 16 of Title 18 of the 
United States Code.
    (ii) An alien tried and convicted as an adult for a violent felony 
offense, as so defined, committed after having attained the age of 
fifteen years, will be subject to the provisions of INA 
212(a)(2)(A)(i)(I) regardless of whether at the time of conviction 
juvenile courts existed within the convicting jurisdiction.
    (3) Two or more crimes committed under age 18. An alien convicted of 
a crime involving moral turpitude or admitting the commission of acts 
which constitute the essential elements of such a crime and who has 
committed an additional crime involving moral turpitude shall be 
ineligible under INA 212(a)(2)(A)(i)(I), even though the crimes were 
committed while the alien was under the age of 18 years.
    (4) Conviction in absentia. A conviction in absentia of a crime 
involving moral turpitude does not constitute a conviction within the 
meaning of INA 212(a)(2)(A)(i)(I).
    (5) Effect of pardon by appropriate U.S. authorities/foreign states. 
An alien shall not be considered ineligible under INA 212(a)(2)(A)(i)(I) 
by reason of a conviction of a crime involving moral turpitude for which 
a full and unconditional pardon has been granted by the President of the 
United States, by the Governor of a State of the United States, by the 
former High Commissioner for Germany acting pursuant to Executive Order 
10062, or by the United States Ambassador to the Federal Republic of 
Germany acting pursuant to Executive Order 10608. A legislative pardon 
or a pardon, amnesty, expungement of penal record or any other act of 
clemency granted by a foreign state shall not serve to remove a ground 
of ineligibility under INA 212(a)(2)(A)(i)(I).
    (6) Political offenses. The term ``purely political offense'', as 
used in INA 212(a)(2)(A)(i)(I), includes offenses that resulted in 
convictions obviously based on fabricated charges or predicated upon 
repressive measures against racial, religious, or political minorities.
    (7) Waiver of ineligibility--INA 212(h). If an immigrant visa 
applicant is ineligible under INA 212(a)(2)(A)(i)(I) but is qualified to 
seek the benefits of INA 212(h), the consular officer shall inform the 
alien of the procedure for applying to DHS for relief under that 
provision of law. A visa may not be issued to the alien until the 
consular officer has received notification from DHS of the approval of 
the alien's application under INA 212(h).
    (b) Controlled substance violators--(1) Date of conviction not 
pertinent. An alien shall be ineligible under INA 212(a)(2)(A)(i)(II) 
irrespective of whether the conviction for a violation of or for 
conspiracy to violate any law or regulation relating to a controlled 
substance, as defined in the Controlled Substance Act (21 U.S.C. 802), 
occurred before, on, or after October 27, 1986.
    (2) Waiver of ineligibility--INA 212(h). If an immigrant visa 
applicant is ineligible under INA 212(a)(2)(A)(i)(II) but is qualified 
to seek the benefits of INA 212(h), the consular officer shall inform 
the alien of the procedure for applying to DHS for relief under that 
provision of law. A visa may not be issued to the alien until the 
consular officer has received notification from DHS of the approval of 
the alien's application under INA 212(h).

[56 FR 30422, July 2, 1991, as amended at 64 FR 55418, Oct. 13, 1999]

[[Page 126]]



Sec.  40.22  Multiple criminal convictions.

    (a) Conviction(s) for crime(s) committed under age 18. An alien 
shall not be ineligible to receive a visa under INA 212(a)(2)(B) by 
reason of any offense committed prior to the alien's fifteenth birthday. 
Nor shall an alien be ineligible under INA 212(a)(2)(B) by reason of any 
offense committed between the alien's fifteenth and eighteenth birthdays 
unless such alien was tried and convicted as an adult for a felony 
involving violence as defined in section 1(l) and section 16 of Title 18 
of the United States Code. An alien, tried and convicted as an adult for 
a violent felony offense, as so defined, committed after having attained 
the age of fifteen years, and who has also been convicted of at least 
one other such offense or any other offense committed as an adult, shall 
be subject to the provisions of INA 212(a)(2)(B) regardless of whether 
at that time juvenile courts existed within the jurisdiction of the 
conviction.
    (b) Conviction in absentia. A conviction in absentia shall not 
constitute a conviction within the meaning of INA 212(a)(2)(B).
    (c) Effect of pardon by appropriate U.S. authorities/foreign states. 
An alien shall not be considered ineligible under INA 212(a)(2)(B) by 
reason in part of having been convicted of an offense for which a full 
and unconditional pardon has been granted by the President of the United 
States, by the Governor of a State of the United States, by the former 
High Commissioner for Germany acting pursuant to Executive Order 10062, 
or by the United States Ambassador to the Federal Republic of Germany 
acting pursuant to Executive Order 10608. A legislative pardon or a 
pardon, amnesty, expungement of penal record or any other act of 
clemency granted by a foreign state shall not serve to remove a ground 
of ineligibility under INA 212(a)(2)(B).
    (d) Political offense. The term ``purely political offense'', as 
used in INA 212(a)(2)(B), includes offenses that resulted in convictions 
obviously based on fabricated charges or predicated upon repressive 
measures against racial, religious, or political minorities.
    (e) Waiver of ineligibility--INA 212(h). If an immigrant visa 
applicant is ineligible under INA 212(a)(2)(B) but is qualified to seek 
the benefits of INA 212(h), the consular officer shall inform the alien 
of the procedure for applying to DHS for relief under that provision of 
law. A visa may not be issued to the alien until the consular officer 
has received notification from DHS of the approval of the alien's 
application under INA 212(h).

[56 FR 30422, July 2, 1991, as amended at 62 FR 67567, Dec. 29, 1997]



Sec.  40.23  Controlled substance traffickers. [Reserved]



Sec.  40.24  Prostitution and commercialized vice.

    (a) Activities within 10 years preceding visa application. An alien 
shall be ineligible under INA 212(a)(2)(D) only if--
    (1) The alien is coming to the United States solely, principally, or 
incidentally to engage in prostitution, or has engaged in prostitution, 
or the alien directly or indirectly procures or attempts to procure, or 
procured or attempted to procure or to import prostitutes or persons for 
the purposes of prostitution, or receives or received, in whole or in 
part, the proceeds of prostitution; and
    (2) The alien has performed one of the activities listed in Sec.  
40.24(a)(1) within the last ten years.
    (b) Prostitution defined. The term ``prostitution'' means engaging 
in promiscuous sexual intercourse for hire. A finding that an alien has 
``engaged'' in prostitution must be based on elements of continuity and 
regularity, indicating a pattern of behavior or deliberate course of 
conduct entered into primarily for financial gain or for other 
considerations of material value as distinguished from the commission of 
casual or isolated acts.
    (c) Where prostitution not illegal. An alien who is within one or 
more of the classes described in INA 212(a)(2)(D) is ineligible to 
receive a visa under that section even if the acts engaged in are not 
prohibited under the laws of the foreign country where the acts 
occurred.
    (d) Waiver of ineligibility--INA 212(h). If an immigrant visa 
applicant is ineligible under INA 212(a)(2)(D) but is qualified to seek 
the benefits of INA

[[Page 127]]

212(h), the consular officer shall inform the alien of the procedure for 
applying to DHS for relief under that provision of law. A visa may not 
be issued to the alien until the consular officer has received 
notification from DHS of the approval of the alien's application under 
INA 212(h).



Sec.  40.25  Certain aliens involved in serious criminal activity 
who have asserted immunity from prosecution. [Reserved]



Sec. Sec.  40.26-40.29  [Reserved]



                 Subpart D_Security and Related Grounds



Sec.  40.31  General. [Reserved]



Sec.  40.32  Terrorist activities. [Reserved]



Sec.  40.33  Foreign policy. [Reserved]



Sec.  40.34  Immigrant membership in totalitarian party.

    (a) Definition of affiliate. The term affiliate, as used in INA 
212(a)(3)(D), means an oganization which is related to, or identified 
with, a proscribed association or party, including any section, 
subsidiary, branch, or subdivision thereof, in such close association as 
to evidence an adherence to or a furtherance of the purposes and 
objectives of such association or party, or as to indicate a working 
alliance to bring to fruition the purposes and objectives of the 
proscribed association or party. An organization which gives, loans, or 
promises support, money, or other thing of value for any purpose to any 
proscribed association or party is presumed to be an affiliate of such 
association or party, but nothing contained in this paragraph shall be 
construed as an exclusive definition of the term affiliate.
    (b) Service in Armed Forces. Service, whether voluntary or not, in 
the armed forces of any country shall not be regarded, of itself, as 
constituting or establishing an alien's membership in, or affiliation 
with, any proscribed party or organization, and shall not, of itself, 
constitute a ground of ineligibility to receive a visa.
    (c) Voluntary Service in a Political Capacity. Voluntary service in 
a political capacity shall constitute affiliation with the political 
party or organization in power at the time of such service.
    (d) Voluntary Membership After Age 16. If an alien continues or 
continued membership in or affiliation with a proscribed organization on 
or after reaching 16 years of age, only the alien's activities after 
reaching that age shall be pertinent to a determination of whether the 
continuation of membership or affiliation is or was voluntary.
    (e) Operation of Law Defined. The term operation of law, as used in 
INA 212(a)(3)(D), includes any case wherein the alien automatically, and 
without personal acquiescence, became a member of or affiliated with a 
proscribed party or organization by official act, proclamation, order, 
edict, or decree.
    (f) Membership in Organization Advocating Totalitarian Dictatorship 
in the United States. In accordance with the definition of totalitarian 
party contained in INA 101(a)(37), a former or present voluntary member 
of, or an alien who was, or is, voluntarily affiliated with a 
noncommunist party, organization, or group, or of any section, 
subsidiary, branch, affiliate or subdivision thereof, which during the 
time of its existence did not or does not advocate the establishment in 
the United States of a totalitarian dictatorship, is not considered 
ineligible under INA 212(a)(3)(D) to receive a visa.
    (g) Waiver of ineligibility--212(a)(3)(D)(iv). lf an immigrant visa 
applicant is ineligible under INA 212(a)(3)(D) but is qualified to seek 
the benefits of INA 212(a)(3)(D)(iv), the consular officer shall inform 
the alien of the procedure for applying to DHS for relief under that 
provision of law. A visa may not be issued to the alien until the 
consular officer has received notification from DHS of the approval of 
the alien's application under INA 212(a)(3)(D)(iv).



Sec.  40.35  Participants in Nazi persecutions or genocide.

    (a) Participation in Nazi persecutions. [Reserved]
    (b) Participation in genocide. [Reserved]

[[Page 128]]



Sec. Sec.  40.36-40.39  [Reserved]



                         Subpart E_Public Charge



Sec.  40.41  Public charge.

    (a) Basis for determination of ineligibility. Any determination that 
an alien is ineligible under INA 212(a)(4) must be predicated upon 
circumstances indicating that, taking into account any Affidavit of 
Support under section 213A of the INA that may have been filed on the 
alien's behalf, the alien is likely at any time to become a public 
charge after admission, or, if applicable, that the alien has failed to 
submit a sufficient Affidavit of Support Under Section 213A of the INA 
as set forth in either INA 212(a)(4)(C) or 212(a)(4)(D). Consular 
officers will consider whether any identified third party is willing and 
able to financially support the alien while the alien is in the United 
States. When considering the likelihood of an alien becoming a public 
charge at any time through receipt of public benefits, as defined in 
paragraph (c) of this section, consular officers will use a more likely 
than not standard and take into account the totality of the alien's 
circumstances at the time of visa application, including at a minimum: 
The alien's age; health; family status; assets, resources, and financial 
status; and education and skills. No one enumerated factor alone, apart 
from the lack of a sufficient Affidavit of Support under section 213A of 
the Act where required, will make the alien more likely than not to 
become a public charge. For immigration classifications exempt from the 
public charge ground of ineligibility, see 8 CFR 212.23(a).
    (1) The alien's age. Consular officers will consider whether the 
alien's age makes the alien more likely than not to become a public 
charge in the totality of the circumstances, such as by impacting the 
alien's ability to work. Consular officers will consider an alien's age 
between 18 and early retirement age as defined in 42 U.S.C. 416(l)(2) as 
a positive factor. Age is a negative factor for aliens who are under the 
age of 18. However, consular officers may consider other factors, such 
as the support provided to a minor child by a parent, legal guardian, or 
other source, that in the totality of the circumstances may offset the 
alien's age as a negative factor. An alien's age above early retirement 
age is a negative factor in the totality of the circumstances, if the 
consular officer believes it adversely affects the alien's ability to 
obtain or perform work, or may increase the potential for healthcare 
related costs that would be borne by the public.
    (2) The alien's health. Consular officers will consider whether the 
alien's health is a positive or negative factor in the totality of the 
circumstances, including whether the alien, has been diagnosed with a 
medical condition that is likely to require extensive medical care or 
institutionalization, or that will interfere with the alien's ability to 
provide and care for himself or herself, to attend school, or to work, 
if authorized. Consular officers will consider the report of a medical 
examination performed by the panel physician where such examination is 
required, including any medical conditions noted by the panel physician. 
An individual with a Class B medical condition, including Class B forms 
of communicable diseases of public health significance, as defined in 42 
CFR part 34, is not alone a determinative factor for public charge 
purposes. The medical condition will be taken into consideration with 
all factors under the totality of circumstances. In assessing the effect 
of the alien's health on a public charge ineligibility determination, 
the consular officer will consider evidence of health insurance or the 
ability to pay for reasonably foreseeable medical expenses in the United 
States a positive factor in the totality of the circumstances.
    (3) The alien's family status. When considering an alien's family 
status, consular officers will consider the size of the alien's 
household, as defined in paragraph (e) of this section, and whether the 
alien's household size is a positive or negative factor in the totality 
of the circumstances.
    (4) The alien's assets, resources, and financial status--(i) In 
general. Consular officers will consider, among other relevant factors, 
the following aspects of an alien's assets, resources, and financial 
status:

[[Page 129]]

    (A) If the alien's annual gross income for the alien's household 
size is at least 125 percent of the most recent Federal Poverty 
Guidelines based on the alien's household size (or 100 percent for an 
alien on active duty, other than training, in the Armed Forces), 
consular officers will consider the alien's income a positive factor;
    (B) If the alien's annual household gross income is less than 125 
percent of the most recent Federal Poverty Guidelines (100 percent for 
those on active duty, other than training, in the Armed Forces) based on 
the alien's household size, consular officers will consider a total 
value of the household assets and resources that is at least five times 
the difference between the alien's household gross income and 125 
percent of the Federal Poverty Guidelines for the alien's household size 
as a positive factor. However, if the alien is the spouse or child of a 
U.S. citizen, assets totaling three times the difference between the 
alien's household gross income and 125 percent of the Federal Poverty 
Guidelines (100 percent for those on active duty, other than training, 
in the Armed Forces) for the alien's household size is a positive 
factor. If the alien is a child who will be adopted in the United States 
and who will likely receive citizenship under section 320 of the INA, 
then assets equivalent to or greater than the difference between the 
alien's household gross income and 125 percent the Federal Poverty 
Guidelines (100 percent for those on active duty, other than training, 
in the Armed Forces) for the alien's household size is a positive 
factor.
    (ii) Factors to consider. When considering an alien's assets, 
resources, and financial status, consular officers must consider assets, 
resources, and financial status including:
    (A) The alien's household annual gross income;
    (B) The alien's cash assets and resources;
    (C) Non-cash assets and resources that can be converted into cash 
within twelve months of the visa application;
    (D) The alien's financial liabilities;
    (E) Whether the alien has applied for, been certified to receive, 
been approved to receive, or received one or more public benefits, as 
defined in paragraph (c) of this section on or after October 15, 2019, 
or whether the alien has disenrolled or requested to be disenrolled from 
such public benefits.
    (F) Whether the alien has received an immigration benefit fee waiver 
from DHS on or after October 15, 2019, unless the fee waiver was applied 
for or granted as part of an application for which a public charge 
inadmissibility under section 212(a)(4) of the Act was not required; and
    (G) Whether the alien has private health insurance or other 
financial resources sufficient to cover reasonably foreseeable costs 
related to a medical condition in the United States.
    (iii) Income from illegal activities or sources. Consular officers 
may not consider any income from illegal activities or sources, such as 
proceeds from illegal gambling or drug sales, or income from any public 
benefit listed in paragraph (c) of this section.
    (5) The alien's education and skills. When considering an alien's 
education and skills, consular officers will consider both positive and 
negative factors associated with whether the alien has adequate 
education and skills to either obtain or maintain lawful employment with 
an income sufficient to avoid being likely to become a public charge. In 
assessing whether the alien's level of education and skills makes the 
alien likely to become a public charge, the consular officer must 
consider, among other factors, the alien's history of employment, 
educational level (high school diploma, or its equivalent, or higher 
educational degree), any occupational skills, certifications or 
licenses, and English language proficiency or proficiency in languages 
in addition to English. Consular officers will take into positive 
consideration an alien who is a primary caregiver 18 years of age or 
older who has significant responsibility for actively caring for and 
managing the well-being of a minor, elderly, ill, or disabled person 
residing in the alien's household, such that the alien lacks an 
employment history or current employment, or is not employed full time. 
Only one alien within a household can be considered a primary caregiver 
of the same individual within the household.

[[Page 130]]

    (6) Prospective visa classification. When considering the likelihood 
at any time of an alien becoming a public charge, consular officers will 
consider the visa classification sought.
    (7) Affidavit of Support Under Section 213A of the Act. Any alien 
seeking an immigrant visa under INA 201(b)(2), 203(a), or 203(b), based 
upon a petition filed by a relative of the alien (or in the case of a 
petition filed under INA 203(b) by an entity in which a relative has a 
significant ownership interest), shall be required to present to the 
consular officer an Affidavit of Support Under Section 213A of the INA 
on a form that complies with terms and conditions established by the 
Secretary of Homeland Security. A properly filed, non-fraudulent, 
sufficient Affidavit of Support Under Section 213A of the INA, in those 
cases where it is required, is a positive factor in the totality of the 
circumstances if the sponsor is likely to actually provide the alien 
with the statutorily-required amount of financial support and other 
related considerations.
    (8) Heavily weighted factors. The factors below will weigh heavily 
in an ineligibility determination based on public charge.
    (i) Heavily weighted negative factors. The following factors will 
weigh heavily in favor of a finding that an alien is likely at any time 
in the future to become a public charge:
    (A) The alien is not a full-time student and is authorized to work 
in his or her country of residence or the United States, as appropriate, 
but is unable to satisfy the consular officer that he or she is 
currently employed, has recent employment history, or a reasonable 
prospect of future employment;
    (B) The alien has received or has been certified or approved to 
receive one or more public benefits, as defined in paragraph (c) of this 
section, for more than 12 months in the aggregate within any 36-month 
period (such that, for instance, receipt of two benefits in one month 
counts as two months' worth of benefits), beginning no earlier than 
October 15, 2019, or for more than 12 months in the aggregate within the 
36 month period prior to the adjudication of the alien's visa 
application, whichever is later.
    (C)(1) The alien has been diagnosed with a medical condition that is 
likely to require extensive medical treatment or institutionalization or 
that will interfere with the alien's ability to provide for himself or 
herself, attend school, or work; and
    (2) The alien has no health insurance for use in the United States 
and has neither the prospect of obtaining private health insurance for 
use in the United States, nor the financial resources to pay for 
reasonably foreseeable medical costs related to such medical condition;
    (D) The alien was previously found inadmissible or deportable on 
public charge grounds by an Immigration Judge or the Board of 
Immigration Appeals.
    (ii) Heavily weighted positive factors. The following factors will 
weigh heavily in favor of a finding that an alien is not likely at any 
time to become a public charge:
    (A) The alien's household has income, assets, resources, or support 
of at least 250 percent of the Federal Poverty Guidelines for the 
alien's household size. Consular officers may not consider any income 
from illegal activities, e.g., proceeds from illegal gambling or drug 
sales, or any income derived from any public benefit as defined in 
paragraph (c) of this section;
    (B) The alien is authorized to work and is currently employed with 
an annual income of at least 250 percent of the Federal Poverty 
Guidelines for the alien's household size. Consular officers may not 
consider any income from illegal activities, e.g., proceeds from illegal 
gambling or drug sales;
    (C) The alien has private health insurance (other than health 
insurance obtained with premium tax credits under the Affordable Care 
Act) for use in the United States covering the expected period of 
admission.
    (9) Treatment of benefits received before October 15, 2019. When 
considering whether an alien is more likely than not to become a public 
charge under this section, consular officers will consider, as a 
negative factor, but not as a heavily weighted negative factor as 
described in paragraph (a)(8) of this section, any amount of cash 
assistance for

[[Page 131]]

income maintenance, including Supplemental Security Income (SSI), 
Temporary Assistance for Needy Families (TANF), State and local cash 
assistance programs that provide benefits for income maintenance (often 
called ``General Assistance'' programs), and programs (including 
Medicaid) supporting aliens who are institutionalized for long-term 
care, received, or certified for receipt, before October 15, 2019.
    (b) Public charge. Public charge means, for the purpose of INA 
212(a)(4)(A) and (B), an alien who receives one or more public benefits, 
as defined in paragraph (c) of this section, for more than 12 months in 
the aggregate within any 36-month period (such that, for instance, 
receipt of two benefits in one month counts as two months' worth of 
benefits).
    (c) Public benefit. (1) Public benefit means any of the following 
forms of assistance received on or after October 15, 2019:
    (i) Any Federal, State, local, or tribal cash assistance for income 
maintenance (other than tax credits), including:
    (A) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.;
    (B) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et 
seq.;
    (C) Federal, State or local cash benefit programs for income 
maintenance (often called ``General Assistance'' in the State context, 
but which also exist under other names); and
    (ii) Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 
et seq.;
    (iii) Housing Choice Voucher Program, as authorized under section 
8(o) of the United States Housing Act of 1937 (42 U.S.C. 1437f);
    (iv) Project-Based Rental Assistance (including Moderate 
Rehabilitation) authorized under section 8 of the United States Housing 
Act of 1937 (42 U.S.C. 1437f);
    (v) Medicaid under 42 U.S.C. 1396 et seq., except for:
    (A) Benefits received for an emergency medical condition as 
described in section 1903(v)(2)-(3) of Title XIX of the Social Security 
Act, 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
    (B) Services or benefits funded by Medicaid but provided under the 
Individuals with Disabilities Education Act (IDEA) 20 U.S.C. 1400 et 
seq.;
    (C) School-based services or benefits provided to individuals who 
are at or below the oldest age eligible for secondary education as 
determined under State or local law; and
    (D) Benefits received by an alien under 21 years of age, or a woman 
during pregnancy (and during the 60-day period beginning on the last day 
of the pregnancy).
    (vi) Public Housing under section 9 of the U.S. Housing Act of 1937 
(42 U.S.C. 1437g).
    (2) Public benefit, as defined in this section, does not include any 
form of assistance listed in paragraphs (c)(1)(i) through (vi) of this 
section received by an alien who at the time of receipt of the public 
benefit, or at the time of visa application or visa adjudication, is or 
was:
    (i) Enlisted in the U.S. Armed Forces under the authority of 10 
U.S.C. 504(b)(1)(B) or 10 U.S.C. 504(b)(2), or
    (ii) Serving in active duty or in the Ready Reserve component of the 
U.S. Armed Forces, or
    (iii) Is the spouse or child as defined in INA101(b), of an 
individual described in paragraph (c)(2)(i) or (ii) of this section, or 
of a citizen of the United States described in paragraph (c)(2)(i) or 
(ii).
    (3) Public benefit, as defined in this section, does not include any 
form of assistance listed in paragraphs (c)(1)(i) through (vi) of this 
section received by an alien during periods in which the alien was 
present in the United States in an immigration category that is exempt 
from the public charge ground of inadmissibility, as set forth in 8 CFR 
212.23(a), or for which the alien received a waiver of public charge 
inadmissibility from DHS. Public benefit does not include health 
services for immunizations and for testing and treatment of communicable 
diseases, including communicable diseases of public health significance 
as defined in 42 CFR part 34.
    (4) Public benefit, as defined in this section, does not include any 
form of assistance listed in paragraphs (c)(1)(i)

[[Page 132]]

through (vi) of this section that were or will be received by:
    (i) Children of U.S. citizens whose lawful admission as permanent 
residents and subsequent residence in the legal and physical custody of 
their U.S. citizen parent will result automatically in the child's 
acquisition of citizenship;
    (ii) Children of U.S. citizens whose lawful admission as permanent 
residents will result automatically in the child's acquisition of 
citizenship upon finalization of adoption; or
    (iii) Children of U.S. citizens who are entering the United States 
for the purpose of attending an interview under INA 322 in accordance 
with 8 CFR part 322.
    (d) Alien's household. For purposes of public charge ineligibility 
determinations under INA 212(a)(4):
    (1) If the alien is 21 years of age or older, or under the age of 21 
and married, the alien's household includes:
    (i) The alien;
    (ii) The alien's spouse, if physically residing or intending to 
physically reside with the alien in the United States;
    (iii) The alien's children, as defined in INA 101(b)(1), if 
physically residing or intending to physically reside with the alien in 
the United States;
    (iv) The alien's other children, as defined in INA 101(b)(1), not 
physically residing or not intending to physically reside with the alien 
for whom the alien provides or is required to provide at least 50 
percent of financial support, as evidenced by a child support order or 
agreement, a custody order or agreement, or any other order or agreement 
specifying the amount of financial support to be provided by the alien;
    (v) Any other individuals (including a spouse not physically 
residing or intending to physically reside with the alien) to whom the 
alien provides, or is required to provide, at least 50 percent of the 
individual's financial support or who are listed as dependents on the 
alien's United States federal income tax return; and
    (vi) Any individual who provides to the alien at least 50 percent of 
the alien's financial support, or who lists the alien as a dependent on 
his or her federal income tax return.
    (2) If the alien is a child as defined in INA 101(b)(1), the alien's 
household includes the following individuals:
    (i) The alien;
    (ii) The alien's children as defined in INA 101(b)(1), physically 
residing or intending to physically reside with the alien in the United 
States;
    (iii) The alien's other children as defined in INA 101(b)(1) not 
physically residing or intending to physically reside with the alien for 
whom the alien provides or is required to provide at least 50 percent of 
the children's financial support, as evidenced by a child support order 
or agreement, a custody order or agreement, or any other order or 
agreement specifying the amount of financial support to be provided by 
the alien;
    (iv) The alien's parents, legal guardians, or any other individual 
providing or required to provide at least 50 percent of the alien's 
financial support to the alien as evidenced by a child support order or 
agreement, a custody order or agreement, or any other order or agreement 
specifying the amount of financial support to be provided to the alien;
    (v) The alien's parents' or legal guardians' other children as 
defined in INA 101(b)(1), physically residing or intending to physically 
reside with the alien in the United States;
    (vi) The alien's parents' or legal guardians' other children as 
defined in INA 101(b)(1), not physically residing or intending to 
physically reside with the alien for whom the parent or legal guardian 
provides or is required to provide at least 50 percent of the other 
children's financial support, as evidenced by a child support order or 
agreement, a custody order or agreement, or any other order or agreement 
specifying the amount of financial support to be provided by the parents 
or legal guardians; and
    (vii) Any other individual to whom the alien's parents or legal 
guardians provide, or are required to provide at least 50 percent of 
each individual's financial support, or who is listed as a dependent on 
the parent's or legal guardian's federal income tax return.
    (e) Receipt of public benefit. Receipt of public benefit occurs when 
a public benefit-granting agency provides a

[[Page 133]]

public benefit, as defined in paragraph (c) of this section, to the 
alien as a beneficiary, whether in the form of cash, voucher, services, 
or insurance coverage. Application or certification for a public benefit 
does not constitute receipt of public benefit, but it may be considered 
as a factor suggesting likelihood of future receipt. An alien's receipt 
of, application for, or certification for public benefit solely on 
behalf of another individual does not constitute receipt of, application 
for, or certification for such alien.
    (f) Prearranged employment. An immigrant visa applicant relying on 
an offer of prearranged employment to establish eligibility under INA 
212(a)(4), other than an offer of employment certified by the Department 
of Labor pursuant to INA 212(a)(5)(A), must provide written confirmation 
of the relevant information sworn and subscribed to before a notary 
public by the employer or an authorized employee or agent of the 
employer. The signer's printed name and position or other relationship 
with the employer must accompany the signature.

[84 FR 55012, Oct. 11, 2019]



Sec. Sec.  40.42-40.49  [Reserved]



 Subpart F_Labor Certification and Qualification for Certain Immigrants



Sec.  40.51  Labor certification.

    (a) INA 212(a)(5) applicable only to certain immigrant aliens. INA 
212(a)(5)(A) applies only to immigrant aliens described in INA 203(b)(2) 
or (3) who are seeking to enter the United States for the purpose of 
engaging in gainful employment.
    (b) Determination of need for alien's labor skills. An alien within 
one of the classes to which INA 212(a)(5) applies as described in Sec.  
40.51(a) who seeks to enter the United States for the purpose of 
engaging in gainful employment, shall be ineligible under INA 
212(a)(5)(A) to receive a visa unless the Secretary of Labor has 
certified to the Secretary of Homeland Security and the Secretary of 
State, that
    (1) There are not sufficient workers in the United States who are 
able, willing, qualified, (or equally qualified in the case of aliens 
who are members of the teaching profession or who have exceptional 
ability in the sciences or the arts) and available at the time of 
application for a visa and at the place to which the alien is destined 
to perform such skilled or unskilled labor, and
    (2) The employment of such alien will not adversely affect the wages 
and working conditions of the workers in the United States similarly 
employed.
    (c) Labor certification not required in certain cases. A spouse or 
child accompanying or following to join an alien spouse or parent who is 
a beneficiary of a petition approved pursuant to INA 203(b)(2) or (3) is 
not considered to be within the purview of INA 212(a)(5).

[56 FR 30422, July 2, 1991, as amended at 61 FR 1835, Jan. 24, 1996]



Sec.  40.52  Unqualified physicians.

    INA 212(a)(5)(B) applies only to immigrant aliens described in INA 
203(b) (2) or (3).

[61 FR 1835, Jan. 24, 1996, as amended at 62 FR 67567, Dec. 29, 1997]



Sec.  40.53  Uncertified foreign health-care workers.

    (a) Subject to paragraph (b) of this section, a consular officer 
must not issue a visa to any alien seeking admission to the United 
States for the purpose of performing services in a health care 
occupation, other than as a physician, unless, in addition to meeting 
all other requirements of law and regulation, the alien provides to the 
officer a certification issued by the Commission On Graduates of Foreign 
Nursing Schools (CGFNS) or another credentialing service that has been 
approved by the Secretary of Homeland Security for such purpose, which 
certificate complies with the provisions of sections 212(a)(5)(C) and 
212(r) of the Act, 8 U.S.C. 1182(a)(5)(C) and 8 U.S.C. 1182(r), 
respectively, and the regulations found at 8 CFR 212.15.
    (b) Paragraph (a) of this section does not apply to an alien:
    (1) Seeking to enter the United States in order to perform services 
in a non-clinical health care occupation as described in 8 CFR 
212.15(b)(1); or

[[Page 134]]

    (2) Who is the immigrant or nonimmigrant spouse or child of a 
foreign health care worker and who is seeking to accompany or follow to 
join as a derivative applicant the principal alien to whom this section 
applies; or
    (3) Who is applying for an immigrant or a nonimmigrant visa for any 
purpose other than for the purpose of seeking entry into the United 
States in order to perform health care services as described in 8 CFR 
212.15.

[67 FR 77159, Dec. 17, 2002]



Sec. Sec.  40.54-40.59  [Reserved]



          Subpart G_Illegal Entrants and Immigration Violators



Sec.  40.61  Aliens present without admission or parole.

    INA 212(a)(6)(A)(i) does not apply at the time of visa issuance.

[62 FR 67567, Dec. 29, 1997]



Sec.  40.62  Failure to attend removal proceedings.

    An alien who without reasonable cause failed to attend, or to remain 
in attendance at, a hearing initiated on or after April 1, 1997, under 
INA 240 to determine inadmissibility or deportability shall be 
ineligible for a visa under INA 212(a)(6)(B) for five years following 
the alien's subsequent departure or removal from the United States.

[62 FR 67567, Dec. 29, 1997]



Sec.  40.63  Misrepresentation; Falsely claiming citizenship.

    (a) Fraud and misrepresentation and INA 212(a)(6)(C) applicability 
to certain refugees. An alien who seeks to procure, or has sought to 
procure, or has procured a visa, other documentation, or entry into the 
United States or other benefit provided under the INA by fraud or by 
willfully misrepresenting a material fact at any time shall be 
ineligible under INA 212(a)(6)(C); Provided, That the provisions of this 
paragraph are not applicable if the fraud or misrepresentation was 
committed by an alien at the time the alien sought entry into a country 
other than the United States or obtained travel documents as a bona fide 
refugee and the refugee was in fear of being repatriated to a former 
homeland if the facts were disclosed in connection with an application 
for a visa to enter the United States: Provided further, That the fraud 
or misrepresentation was not committed by such refugee for the purpose 
of evading the quota or numerical restrictions of the U.S. immigration 
laws, or investigation of the alien's record at the place of former 
residence or elsewhere in connection with an application for a visa.
    (b) Misrepresentation in application under Displaced Persons Act or 
Refugee Relief Act. Subject to the conditions stated in INA 
212(a)(6)(c)(i), an alien who is found by the consular officer to have 
made a willful misrepresentation within the meaning of section 10 of the 
Displaced Persons Act of 1948, as amended, for the purpose of gaining 
admission into the United States as an eligible displaced person, or to 
have made a material misrepresentation within the meaning of section 
11(e) of the Refugee Relief Act of 1953, as amended, for the purpose of 
gaining admission into the United States as an alien eligible thereunder 
, shall be considered ineligible under the provisions of INA 
212(a)(6)(C).
    (c) Waiver of ineligibility--INA 212(i). If an immigrant applicant 
is ineligible under INA 212(a)(6)(C) but is qualified to seek the 
benefits of INA 212(i), the consular officer shall inform the alien of 
the procedure for applying to DHS for relief under that provision of 
law. A visa may not be issued to the alien until the consular officer 
has received notification from DHS of the approval of the alien's 
application under INA 212(i).

[56 FR 30422, July 2, 1991, as amended at 61 FR 1835, Jan. 24, 1996]



Sec.  40.64  Stowaways.

    INA 212(a)(6)(D) is not applicable at the time of visa application.



Sec.  40.65  Smugglers.

    (a) General. A visa shall not be issued to an alien who at any time 
knowingly has encouraged, induced, assisted, abetted, or aided any other 
alien to enter or to try to enter the United States in violation of law.

[[Page 135]]

    (b) Waiver of ineligibility--INA 212(d)(11). If an immigrant 
applicant is ineligible under INA 212(a)(6)(E) but is qualified to seek 
the benefits of INA 212(d)(11), the consular officer shall inform the 
alien of the procedure for applying to DHS for relief under that 
provision of law. A visa may not be issued to the alien until the 
consular officer has received notification from DHS of the approval of 
the alien's application under INA 212(d)(11).



Sec.  40.66  Subject of civil penalty.

    (a) General. An alien who is the subject of a final order imposing a 
civil penalty for a violation under INA 274C shall be ineligible for a 
visa under INA 212(a)(6)(F).
    (b) Waiver of ineligibility. If an applicant is ineligible under 
paragraph (a) of this section but appears to the consular officer to 
meet the prerequisites for seeking the benefits of INA 212(d)(12), the 
consular officer shall inform the alien of the procedure for applying to 
DHS for relief under that provision of law. A visa may not be issued to 
the alien until the consular officer has received notification from DHS 
of the approval of the alien's application under INA 212(d)(12).

[62 FR 67567, Dec. 29, 1997]



Sec.  40.67  Student visa abusers.

    An alien ineligible under the provisions of INA 212(a)(6)(G) shall 
not be issued a visa unless the alien has complied with the time 
limitation set forth therein.

[62 FR 67568, Dec. 29, 1997]



Sec.  40.68  Aliens subject to INA 222(g).

    An alien who, under the provisions of INA 222(g), has voided a 
nonimmigrant visa by remaining in the United States beyond the period of 
authorized stay is ineligible for a new nonimmigrant visa unless the 
alien complies with the requirements in 22 CFR 41.101 (b) or (c) 
regarding the place of application.

[63 FR 671, Jan. 7, 1998]



Sec.  40.69  [Reserved]



                  Subpart H_Documentation Requirements



Sec.  40.71  Documentation requirements for immigrants.

    INA 212(a)(7)(A) is not applicable at the time of visa application. 
(For waiver of documentary requirements for immigrants see 22 CFR 42.1 
and 42.2.)



Sec.  40.72  Documentation requirements for nonimmigrants.

    A passport which is valid indefinitely for the return of the bearer 
to the country whose government issued such passport shall be deemed to 
have the required minimum period of validity as specified in INA 
212(a)(7)(B).



Sec. Sec.  40.73-40.79  [Reserved]



                  Subpart I_Ineligible for Citizenship.



Sec.  40.81  Ineligible for citizenship.

    An alien will be ineligible to receive an immigrant visa under INA 
212(a)(8)(A) if the alien is ineligible for citizenship, including as 
provided in INA 314 or 315.

[64 FR 55418, Oct. 13, 1999]



Sec.  40.82  Alien who departed the United States to avoid service 
in the armed forces.

    (a) Applicability to immigrants. INA 212(a)(8)(A) applies to 
immigrant visa applicants who have departed from or remained outside the 
United States between September 8, 1939 and September 24, 1978, to avoid 
or evade training or service in the United States Armed Forces.
    (b) Applicability to nonimmigrants. INA 212(a)(8)(B) applies to 
nonimmigrant visa applicants who have departed from or remained outside 
the United States between September 8, 1939 and September 24, 1978 to 
avoid or evade training or service in the U.S. Armed Forces except an 
alien who held nonimmigrant status at the time of such departure.

[[Page 136]]



Sec. Sec.  40.83-40.89  [Reserved]



                   Subpart J_Aliens Previously Removed

    Source: 61 FR 59184, Nov. 21, 1996, unless otherwise noted.



Sec.  40.91  Certain aliens previously removed.

    (a) 5-year bar. An alien who has been found inadmissible, whether as 
a result of a summary determination of inadmissibility at the port of 
entry under INA 235(b)(1) or of a finding of inadmissibility resulting 
from proceedings under INA 240 initiated upon the alien's arrival in the 
United States, shall be ineligible for a visa under INA 212(a)(9)(A)(i) 
for 5 years following such alien's first removal from the United States.
    (b) 10-year bar. An alien who has otherwise been removed from the 
United States under any provision of law, or who departed while an order 
of removal was in effect, is ineligible for a visa under INA 
212(a)(9)(A)(ii) for 10 years following such removal or departure from 
the United States.
    (c) 20-year bar. An alien who has been removed from the United 
States two or more times shall be ineligible for a visa under INA 
212(a)(9)(A)(i) or INA 212(a)(9)(A)(ii), as appropriate, for 20 years 
following the most recent such removal or departure.
    (d) Permanent bar. If an alien who has been removed has also been 
convicted of an aggravated felony, the alien is permanently ineligible 
for a visa under INA 212(a)(9)(A)(i) or 212(a)(9)(A)(ii), as 
appropriate.
    (e) Exceptions. An alien shall not be ineligible for a visa under 
INA 212(a)(9)(A)(i) or (ii) if the Secretary of Homeland Security has 
consented to the alien's application for admission.

[62 FR 67568, Dec. 29, 1997, as amended at 63 FR 64628, Nov. 23, 1998]



Sec.  40.92  Aliens unlawfully present.

    (a) 3-year bar. An alien described in INA 212(a)(9)(B)(i)(I) shall 
be ineligible for a visa for 3 years following departure from the United 
States.
    (b) 10-year bar. An alien described in INA 212(a)(9)(B)(i)(II) shall 
be ineligible for a visa for 10 years following departure from the 
United States.
    (c) Waiver. If a visa applicant is inadmissible under paragraph (a) 
or (b) of this section but appears to the consular officer to meet the 
prerequisites for seeking the benefits of INA 212(a)(9)(B)(v), the alien 
shall be informed of the procedure for applying to DHS for relief under 
that provision of law.

[62 FR 67568, Dec. 29, 1997]



Sec.  40.93  Aliens unlawfully present after previous immigration violation.

    An alien described in INA 212(a)(9)(C)(i) is permanently ineligible 
for a visa unless the Secretary of Homeland Security consents to the 
alien's application for readmission not less than 10 years following the 
alien's last departure from the United States. Such application for 
readmission shall be made prior to the alien's reembarkation at a place 
outside the United States.

[62 FR 67568, Dec. 29, 1997]



Sec. Sec.  40.94-40.99  [Reserved]



                         Subpart K_Miscellaneous

    Source: 56 FR 30422, July 2, 1991, unless otherwise noted. 
Redesignated at 61 FR 59184, Nov. 21, 1996.



Sec.  40.101  Practicing polygamists.

    An immigrant alien shall be ineligible under INA 212(a)(9)(A) only 
if the alien is coming to the United States to practice polygamy.



Sec.  40.102  Guardian required to accompany excluded alien.

    INA 212(a)(9)(B) is not applicable at the time of visa application.



Sec.  40.103  International child abduction.

    An alien who would otherwise be ineligible under INA 212(a)(9)(C)(i) 
shall not be ineligible under such paragraph if the U.S. citizen child 
in question is physically located in a foreign state which is party to 
the Hague Convention on the Civil Aspects of International Child 
Abduction.

[61 FR 1833, Jan. 24, 1996]

[[Page 137]]



Sec.  40.104  Unlawful voters.

    (a) Subject to paragraph (b) of this section, an alien is ineligible 
for a visa if the alien has voted in violation of any Federal, State, or 
local constitutional provision, statute, ordinance, or regulation.
    (b) Such alien shall not be considered to be ineligible under 
paragraph (a) of this section if each natural parent of the alien (or, 
in the case of an adopted alien, each adoptive parent of the alien) is 
or was a citizen (whether by birth or naturalization), the alien 
permanently resided in the United States prior to attaining the age of 
16, and the alien reasonably believed at the time of such violation that 
he or she was a citizen.

[70 FR 35527, June 21, 2005]



Sec.  40.105  Former citizens who renounced citizenship to avoid taxation.

    An alien who is a former citizen of the United States, who on or 
after September 30, 1996, has officially renounced United States 
citizenship and who has been determined by the Secretary of Homeland 
Security to have renounced citizenship to avoid United States taxation, 
is ineligible for a visa under INA 212(a)(10)(E).

[62 FR 67568, Dec. 29, 1997]



Sec. Sec.  40.106-40.110  [Reserved]



                  Subpart L_Failure to Comply with INA

    Source: 56 FR 30422, July 2, 1991, unless otherwise noted. 
Redesignated at 61 FR 59184, Nov. 21, 1996.



Sec.  40.201  Failure of application to comply with INA.

    (a) Refusal under INA 221(g). The consular officer shall refuse an 
alien's visa application under INA 221(g)(2) as failing to comply with 
the provisions of INA or the implementing regulations if:
    (1) The applicant fails to furnish information as required by law or 
regulations;
    (2) The application contains a false or incorrect statement other 
than one which would constitute a ground of ineligibility under INA 
212(a)(6)(C);
    (3) The application is not supported by the documents required by 
law or regulations;
    (4) The applicant refuses to be fingerprinted as required by 
regulations;
    (5) The necessary fee is not paid for the issuance of the visa or, 
in the case of an immigrant visa, for the application therefor;
    (6) In the case of an immigrant visa application, the alien fails to 
swear to, or affirm, the application before the consular officer; or
    (7) The application otherwise fails to meet specific requirements of 
law or regulations for reasons for which the alien is responsible.
    (b) Reconsideration of refusals. A refusal of a visa application 
under paragraph (a)(1) of this section does not bar reconsideration of 
the application upon compliance by the applicant with the requirements 
of INA and the implementing regulations or consideration of a subsequent 
application submitted by the same applicant.

[56 FR 30422, July 2, 1991, as amended at 61 FR 1835, Jan. 24, 1996. 
Redesignated at 61 FR 59184, Nov. 21, 1996]



Sec.  40.202  Certain former exchange visitors.

    An alien who was admitted into the United States as an exchange 
visitor, or who acquired such status after admission, and who is within 
the purview of INA 212(e) as amended by the Act of April 7, 1970, (84 
Stat. 116) and by the Act of October 12, 1976, (90 Stat. 2301), is not 
eligible to apply for or receive an immigrant visa or a nonimmigrant 
visa under INA 101(a)(15) (H), (K), or (L), notwithstanding the approval 
of a petition on the alien's behalf, unless:
    (a) It has been established that the alien has resided and has been 
physically present in the country of the alien's nationality or last 
residence for an aggregate of at least 2 years following the termination 
of the alien's exchange visitor status as required by INA 212(e), or
    (b) The foreign residence requirement of INA 212(e) has been waived 
by the Secretary of Homeland Security in the alien's behalf.

[[Page 138]]



Sec.  40.203  Alien entitled to A, E, or G nonimmigrant classification.

    An alien entitled to nonimmigrant classification under INA 
101(a)(15) (A), (E), or (G) who is applying for an immigrant visa and 
who intends to continue the activities required for such nonimmigrant 
classification in the United States is not eligible to receive an 
immigrant visa until the alien executes a written waiver of all rights, 
privileges, exemptions and immunities which would accrue by reason of 
such occupational status.



Sec.  40.204  [Reserved]



Sec.  40.205  Applicant for immigrant visa under INA 203(c).

    An alien shall be ineligible to receive a visa under INA 203(c) if 
the alien does not have a high school education or its equivalent, as 
defined in 22 CFR 42.33(a)(2), or does not have, within the five years 
preceding the date of application for such visa, at least two years of 
work experience in an occupation which requires at least two years of 
training or experience.

[59 FR 55045, Nov. 3, 1994. Redesignated at 61 FR 59184, Nov. 21, 1996]



Sec.  40.206  Frivolous applications. [Reserved]



Sec. Sec.  40.207-40.210  [Reserved]



               Subpart M_Waiver of Ground of Ineligibility

    Source: 56 FR 30422, July 2, 1991, unless otherwise noted. 
Redesignated at 61 FR 59184, Nov. 21, 1996.



Sec.  40.301  Waiver for ineligible nonimmigrants under INA 212(d)(3)(A).

    (a) Recommendations under INA 212(d)(3)(A)(i). (1) Consular 
officers, on their own initiative in cases they believe meet one of the 
criteria in paragraphs (a)(2)(i) through (v) of this section, may submit 
a report to the Department for possible transmission to the designated 
DHS office pursuant to INA 212(d)(3)(A)(i) (8 U.S.C. 1182(d)(3)(A)(i)), 
in the case of an alien who is classifiable as a nonimmigrant but who 
the consular officer knows or believes is ineligible to receive a 
nonimmigrant visa due to inadmissibility under the provisions of INA 
212(a) (8 U.S.C. 1182(a)), other than INA 212(a)(3)(A)(i)(I), 
(3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), or (3)(E)(ii).
    (2) In response to a request from the Secretary of State, which 
shall be presumed to meet one of the criteria in paragraphs (a)(2)(i) 
through (v) of this section, or in response to a request from a visa 
applicant for a case that the consular officer has reason to believe 
meets one of the criteria in paragraphs (a)(2)(i) through (v), consular 
officers are required to submit a report to the Department for possible 
transmission to the designated DHS office pursuant to INA 212(d)(3)(A) 
in the case of an alien who is classifiable as a nonimmigrant but whom 
the consular officer knows or believes is ineligible to receive a 
nonimmigrant visa due to inadmissibility under the provisions of INA 
212(a), other than INA 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), 
(3)(C), (3)(E)(i), or (3)(E)(ii).
    (i) Foreign Relations: Refusal of the nonimmigrant visa application 
would become a bilateral irritant or be raised by a foreign government 
with a high ranking United States government official;
    (ii) National security. The nonimmigrant visa applicant's admission 
to the United States would advance a U.S. national security interest;
    (iii) Law enforcement. The nonimmigrant visa applicant's admission 
to the United States would advance an important U.S. law enforcement 
objective;
    (iv) Significant public interest. The nonimmigrant visa applicant's 
admission to the United States would advance a significant U.S. public 
interest, or
    (v) Urgent humanitarian or medical reasons. The nonimmigrant visa 
applicant's admission to the United States may be warranted due to 
urgent humanitarian or medical reasons.
    (b) Recommendation to designated DHS office. Consular officers may 
recommend directly to the designated DHS office that the alien be 
admitted temporarily despite his or her inadmissibility in any case 
where a waiver may be available, unless the consular officer

[[Page 139]]

has reason to believe that the applicant is inadmissible under INA 
212(a)(3)(A)(i), (3)(A)(ii), (3)(A)(iii), (3)(B), (3)(C), (3)(D), 
(3)(E)(i), (3)(E)(ii), (3)(E)(iii), (3)(F), or (3)(G) . The Department 
may recommend that the Secretary of Homeland Security waive 
ineligibility under any ground in section 212(a) of the INA, except for 
sections 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), 
and (3)(E)(ii).
    (c) Secretary of Homeland Security may impose conditions. When the 
Secretary of Homeland Security authorizes the temporary admission of an 
inadmissible alien as a nonimmigrant and the consular officer is so 
informed, the consular officer may proceed with the issuance of a 
nonimmigrant visa to the alien, subject to the conditions, if any, 
imposed by the Secretary of Homeland Security.

[84 FR 19714, May 6, 2019]



PART 41_VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE IMMIGRATION 
AND NATIONALITY ACT, AS AMENDED--Table of Contents



   Subpart A_Passport and Visas Not Required for Certain Nonimmigrants

Sec.
41.0 Definitions.
41.1 Exemption by law or treaty from passport and visa requirements.
41.2 Exemption or waiver by Secretary of State and Secretary of Homeland 
          Security of passport and/or visa requirements for certain 
          categories of nonimmigrants.
41.3 Waiver by joint action of consular and immigration officers of 
          passport and/or visa requirements.

                Subpart B_Classification of Nonimmigrants

41.11 Entitlement to nonimmigrant status.
41.12 Classification symbols.

                 Subpart C_Foreign Government Officials

41.21 Foreign Officials--General.
41.22 Officials of foreign governments.
41.23 Accredited officials in transit.
41.24 International organization aliens.
41.25 NATO representatives, officials, and employees.
41.26 Diplomatic visas.
41.27 Official visas.

                      Subpart D_Temporary Visitors

41.31 Temporary visitors for business or pleasure.
41.32 Nonresident alien Mexican border crossing identification cards; 
          combined border crossing identification cards and B-1/B-2 
          visitor visa.
41.33 Nonresident alien Canadian border crossing identification card 
          (BCC).

                  Subpart E_Crewman and Crew-List Visas

41.41 Crewmen.
41.42 [Reserved]

                   Subpart F_Business and Media Visas

41.51 Treaty trader, treaty investor, or treaty alien in a specialty 
          occupation.
41.52 Information media representative.
41.53 Temporary workers and trainees.
41.54 Intracompany transferees (executives, managers, and specialized 
          knowledge employees).
41.55 Aliens with extraordinary ability.
41.56 Athletes, artists and entertainers.
41.57 International cultural exchange visitors.
41.58 Aliens in religious occupations.
41.59 Professionals under the North American Free Trade Agreement.

                Subpart G_Students and Exchange Visitors

41.61 Students--academic and nonacademic.
41.62 Exchange visitors.
41.63 Two-year home-country physical presence requirement.

                        Subpart H_Transit Aliens

41.71 Transit aliens.

              Subpart I_Fiance(e)s and Other Nonimmigrants

41.81 Fianc[eacute] or spouse of a U.S. citizen and derivative children.
41.82 Certain parents and children of section 101(a)(27)(I) special 
          immigrants. [Reserved]
41.83 Certain witnesses and informants.
41.84 Victims of trafficking in persons.
41.86 Certain spouses and children of lawful permanent resident aliens.

               Subpart J_Application for Nonimmigrant Visa

41.101 Place of application.
41.102 Personal appearance of applicant.
41.103 Filing an application.
41.104 Passport requirements.
41.105 Supporting documents and fingerprinting.
41.106 Processing.

[[Page 140]]

41.107 Visa fees.
41.108 Medical examination.

                 Subpart K_Issuance of Nonimmigrant Visa

41.111 Authority to issue visa.
41.112 Validity of visa.
41.113 Procedures in issuing visas.

                   Subpart L_Refusals and Revocations

41.121 Refusal of nonimmigrant visas.
41.122 Revocation of visas.
41.123 Discontinuance of granting nonimmigrant visa pursuant to INA 
          243(d).

    Authority: 8 U.S.C. 1101; 1102; 1104; 1182; 1184; 1185 note (section 
7209 of Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295); 
1323; 1361; 2651a.

    Source: 52 FR 42597, Nov. 5, 1987, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 41 appear at 71 FR 
34521 and 34522, June 15, 2006.



   Subpart A_Passport and Visas Not Required for Certain Nonimmigrants



Sec.  41.0  Definitions.

    For purposes of this part and part 53:
    Adjacent islands means Bermuda and the islands located in the 
Caribbean Sea, except Cuba.
    Cruise ship means a passenger vessel over 100 gross tons, carrying 
more than 12 passengers for hire, making a voyage lasting more than 24 
hours any part of which is on the high seas, and for which passengers 
are embarked or disembarked in the United States or its territories.
    Ferry means any vessel operating on a pre-determined fixed schedule 
and route, which is being used solely to provide transportation between 
places that are no more than 300 miles apart and which is being used to 
transport passengers, vehicles, and/or railroad cars.
    Pleasure vessel means a vessel that is used exclusively for 
recreational or personal purposes and not to transport passengers or 
property for hire.
    United States means ``United States'' as defined in section 215(c) 
of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 
1185(c)).
    U.S. citizen means a United States citizen or a U.S. non-citizen 
national.
    United States qualifying tribal entity means a tribe, band, or other 
group of Native Americans formally recognized by the United States 
Government which agrees to meet WHTI document standards.

[73 FR 18418, Apr. 3, 2008]



Sec.  41.1  Exemption by law or treaty from passport and visa requirements.

    Nonimmigrants in the following categories are exempt from the 
passport and visa requirements of INA 212(a)(7)(B)(i)(I), (i)(II):
    (a) Alien members of the U.S. Armed Forces. An alien member of the 
U.S. Armed Forces in uniform or bearing proper military identification, 
who has not been lawfully admitted for permanent residence, coming to 
the United States under official orders or permit of such Armed Forces 
(Sec. 284, 86 Stat. 232; 8 U.S.C. 1354).
    (b) [Reserved]
    (c) Aliens entering from Guam, Puerto Rico, or the Virgin Islands. 
An alien departing from Guam, Puerto Rico, or the Virgin Islands of the 
United States, and seeking to enter the continental United States or any 
other place under the jurisdiction of the United States (Sec. 212, 66 
Stat. 188; 8 U.S.C. 1182.)
    (d) Armed Services personnel of a NATO member. Personnel belonging 
to the armed services of a government which is a Party to the North 
Atlantic Treaty and which has ratified the Agreement Between the Parties 
to the North Atlantic Treaty Regarding the Status of Their Forces, 
signed at London on June 19, 1951, and entering the United States under 
Article III of that Agreement pursuant to an individual or collective 
movement order issued by an appropriate agency of the sending state or 
of NATO (TIAS 2846; 4 U.S.T. 1792.)
    (e) Armed Services personnel attached to a NATO headquarters in the 
United States. Personnel attached to a NATO Headquarters in the United 
States set up pursuant to the North Atlantic Treaty, belonging to the 
armed services of a government which is a Party to the Treaty and 
entering the United States in connection with their official duties 
under the provisions of the Protocol on the Status of International

[[Page 141]]

Military Headquarters Set Up Pursuant to the North Atlantic Treaty (TIAS 
2978; 5 U.S.T. 875.)
    (f) Aliens entering pursuant to International Boundary and Water 
Commission Treaty. All personnel employed either directly or indirectly 
on the construction, operation, or maintenance of works in the United 
States undertaken in accordance with the treaty concluded on February 3, 
1944, between the United States and Mexico regarding the functions of 
the International Boundary and Water Commission, and entering the United 
States temporarily in connection with such employment (59 Stat. 1252; TS 
994.)

[52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991; 61 
FR 1835, Jan. 24, 1996; 71 FR 68430, Nov. 24, 2006; 73 FR 18418, Apr. 3, 
2008]



Sec.  41.2  Exemption or waiver by Secretary of State and Secretary 
of Homeland Security of passport and/or visa requirements 
for certain categories of nonimmigrants.

    Pursuant to the authority of the Secretary of State and the 
Secretary of Homeland Security under the INA, as amended, a passport 
and/or visa is not required for the following categories of 
nonimmigrants:
    (a) Canadian citizens. A visa is not required for an American Indian 
born in Canada having at least 50 percentum of blood of the American 
Indian race. A visa is not required for other Canadian citizens except 
for those who apply for admission in E, K, V, or S nonimmigrant 
classifications as provided in paragraphs (k) and (m) of this section 
and 8 CFR 212.1. A passport is required for Canadian citizens applying 
for admission to the United States, except when one of the following 
exceptions applies:
    (1) NEXUS program. A Canadian citizen who is traveling as a 
participant in the NEXUS program, and who is not otherwise required to 
present a passport and visa as provided in paragraphs (k) and (m) of 
this section and 8 CFR 212.1, may present a valid NEXUS program card 
when using a NEXUS Air kiosk or when entering the United States from 
contiguous territory or adjacent islands at a land or sea port-of-entry. 
A Canadian citizen who enters the United States by pleasure vessel from 
Canada under the remote inspection system may present a NEXUS program 
card.
    (2) FAST program. A Canadian citizen who is traveling as a 
participant in the FAST program, and who is not otherwise required to 
present a passport and visa as provided in paragraphs (k) and (m) of 
this section and 8 CFR 212.1, may present a valid FAST card at a land or 
sea port-of-entry prior to entering the United States from contiguous 
territory or adjacent islands.
    (3) SENTRI program. A Canadian citizen who is traveling as a 
participant in the SENTRI program, and who is not otherwise required to 
present a passport and visa as provided in paragraphs (k) and (m) of 
this section and 8 CFR 212.1, may present a valid SENTRI card at a land 
or sea port-of-entry prior to entering the United States from contiguous 
territory or adjacent islands.
    (4) Canadian Indians. If designated by the Secretary of Homeland 
Security, a Canadian citizen holder of an Indian and Northern Affairs 
Canada (``INAC'') card issued by the Canadian Department of Indian 
Affairs and North Development, Director of Land and Trust Services (LTS) 
in conformance with security standards agreed upon by the Governments of 
Canada and the United States, and containing a machine readable zone, 
and who is arriving from Canada, may present the card prior to entering 
the United States at a land port-of-entry.
    (5) Children. A child who is a Canadian citizen who is seeking 
admission to the United States when arriving from contiguous territory 
at a sea or land port-of-entry, may present certain other documents if 
the arrival meets the requirements described in either paragraph (i) or 
(ii) of this section.
    (i) Children under age 16. A Canadian citizen who is under the age 
of 16 is permitted to present an original or a copy of his or her birth 
certificate, a Canadian Citizenship Card, or a Canadian Naturalization 
Certificate when arriving in the United States from contiguous territory 
at land or sea ports-of-entry.
    (ii) Groups of children under age 19. A Canadian citizen who is 
under age 19 and who is traveling with a public or

[[Page 142]]

private school group, religious group, social or cultural organization, 
or team associated with a youth sport organization may present an 
original or a copy of his or her birth certificate, a Canadian 
Citizenship Card, or a Canadian Naturalization Certificate when applying 
for admission to the United States from contiguous territory at all land 
and sea ports-of-entry, when the group, organization or team is under 
the supervision of an adult affiliated with the organization and when 
the child has parental or legal guardian consent to travel. For purposes 
of this paragraph, an adult is considered to be a person who is age 19 
or older. The following requirements will apply:
    (A) The group, organization, or team must provide to CBP upon 
crossing the border, on organizational letterhead:
    (1) The name of the group, organization or team, and the name of the 
supervising adult;
    (2) A trip itinerary, including the stated purpose of the trip, the 
location of the destination, and the length of stay;
    (3) A list of the children on the trip;
    (4) For each child, the primary address, primary phone number, date 
of birth, place of birth, and the name of at least one parent or legal 
guardian.
    (B) The adult leading the group, organization, or team must 
demonstrate parental or legal guardian consent by certifying in the 
writing submitted in paragraph (a)(5)(ii)(A) of this section that he or 
she has obtained for each child the consent of at least one parent or 
legal guardian.
    (C) The procedure described in this paragraph is limited to members 
of the group, organization, or team that are under age 19. Other members 
of the group, organization, or team must comply with other applicable 
document and/or inspection requirements found in this part and 8 CFR 
parts 212 and 235.
    (6) Enhanced driver's license programs. Upon the designation by the 
Secretary of Homeland Security of an enhanced driver's license as an 
acceptable document to denote identity and citizenship for purposes of 
entering the United States, Canadian citizens may be permitted to 
present these documents in lieu of a passport when seeking admission to 
the United States according to the terms of the agreements entered 
between the Secretary of Homeland Security and the entity. The Secretary 
of Homeland Security will announce, by publication of a notice in the 
Federal Register, documents designated under this paragraph. A list of 
the documents designated under this paragraph will also be made 
available to the public.
    (b) Citizens of the British Overseas Territory of Bermuda. A visa is 
not required, except for Citizens of the British Overseas Territory of 
Bermuda who apply for admission in E, K, V, or S nonimmigrant visa 
classification as provided in paragraphs (k) and (m) of this section and 
8 CFR 212.1. A passport is required for Citizens of the British Overseas 
Territory of Bermuda applying for admission to the United States.
    (c) Bahamian nationals and British subjects resident in the Bahamas. 
A passport is required. A visa is not required if, prior to the 
embarkation of such an alien for the United States on a vessel or 
aircraft, the examining U.S. immigration officer at Freeport or Nassau 
determines that the individual is clearly and beyond a doubt entitled to 
admission.
    (d) British subjects resident in the Cayman Islands or in the Turks 
and Caicos Islands. A passport is required. A visa is not required if 
the alien arrives directly from the Cayman Islands or the Turks and 
Caicos Islands and presents a current certificate from the Clerk of 
Court of the Cayman Islands or the Turks and Caicos Islands indicating 
no criminal record.
    (e) Nationals and residents of the British Virgin Islands. (1) A 
national of the British Virgin Islands and resident therein requires a 
passport but not a visa if proceeding to the United States Virgin 
Islands.
    (2) A national of the British Virgin Islands and resident therein 
requires a passport but does not require a visa to apply for entry into 
the United States if such applicant:
    (i) Is proceeding by aircraft directly from St. Thomas, U.S. Virgin 
Islands;
    (ii) Is traveling to some other part of the United States solely for 
the purpose of business or pleasure as described in INA 101(a)(15)(B);

[[Page 143]]

    (iii) Satisfies the examining U.S. Immigration officer at that port 
of entry that he or she is admissible in all respects other than the 
absence of a visa; and
    (iv) Presents a current certificate issued by the Royal Virgin 
Islands Police Force indicating that he or she has no criminal record.
    (f) Mexican nationals. (1) A visa and a passport are not required of 
a Mexican national who is applying for admission from Mexico as a 
temporary visitor for business or pleasure at a land port-of-entry, or 
arriving by pleasure vessel or ferry, if the national is in possession 
of a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, containing a 
machine-readable biometric identifier, issued by the Department of 
State.
    (2) A visa and a passport are not required of a Mexican national who 
is applying for admission from contiguous territory or adjacent islands 
at a land or sea port-of-entry, if the national is a member of the Texas 
Band of Kickapoo Indians or Kickapoo Tribe of Oklahoma who is in 
possession of a Form I-872 American Indian Card issued by U.S. 
Citizenship and Immigration Services (USCIS).
    (3) A visa is not required of a Mexican national employed as a crew 
member on an aircraft belonging to a Mexican company authorized to 
engage in commercial transportation into the United States.
    (4) A visa is not required of a Mexican national bearing a Mexican 
diplomatic or official passport who is a military or civilian official 
of the Federal Government of Mexico entering the United States for a 
stay of up to 6 months for any purpose other than on assignment as a 
permanent employee to an office of the Mexican Federal Government in the 
United States. A visa is also not required of the official's spouse or 
any of the official's dependent family members under 19 years of age who 
hold diplomatic or official passports and are in the actual company of 
the official at the time of entry. This waiver does not apply to the 
spouse or any of the official's family members classifiable under INA 
101(a)(15) (F) or (M).
    (g) Natives and residents of the Trust Territory of the Pacific 
Islands. A visa and a passport are not required of a native and resident 
of the Trust Territory of the Pacific Islands who has proceeded in 
direct and continuous transit from the Trust Territory to the United 
States.
    (h) [Reserved]
    (i) Individual cases of unforeseen emergencies. Except as provided 
in paragraphs (a) through (h) and (j) through (l) of this section, all 
nonimmigrants are required to present a valid, unexpired visa and 
passport upon arrival in the United States. A nonimmigrant may apply for 
a waiver of the visa and passport requirement if, either prior to the 
nonimmigrant's embarkation abroad or upon arrival at a port of entry, 
the Department of Homeland Security (DHS), U.S. Customs and Border 
Protection (CBP) district director concludes that the nonimmigrant is 
unable to present the required documents because of an unforeseen 
emergency. The CBP district director may grant a waiver of the visa or 
passport requirement pursuant to INA 212(d)(4)(A), without the prior 
concurrence of the Department of State, if the CBP district director 
concludes that the nonimmigrant's claim of emergency circumstances is 
legitimate and that approval of the waiver would be appropriate under 
all of the attendant facts and circumstances.
    (j) Fiance(e) of a U.S. citizen. Notwithstanding the provisions of 
paragraphs (a) through (h) of this section, a visa is required of an 
alien described in such paragraphs who is classified, or who seeks 
classification, under INA 101(a)(15)(K).
    (k) Visa waiver program. (1) A visa is not required of any person 
who seeks admission to the United States for a period of 90 days or less 
as a visitor for business or pleasure and who is eligible to apply for 
admission to the United States as a Visa Waiver Program applicant. (For 
the list of countries whose nationals are eligible to apply for 
admission to the United States as Visa Waiver Program applicants, see 8 
CFR 217.2(a)).
    (2) An alien denied admission under the Visa Waiver Program by 
virtue of a ground of inadmissibility described in INA section 212(a) 
that is discovered at the time of the alien's application for

[[Page 144]]

admission at a port of entry or through use of an automated electronic 
database may apply for a visa as the only means of challenging such a 
determination. A consular officer must accept and adjudicate any such 
application if the alien otherwise fulfills all of the application 
requirements contained in part 41, Sec.  41.2(l)(1).
    (l) Treaty Trader and Treaty Investor. Notwithstanding the 
provisions of paragraph (a) of this section, a visa is required of a 
Canadian national who is classified, or who seeks classification, under 
INA 101(a)(15)(E).

[52 FR 42597, Nov. 5, 1987]

    Editorial Note: For Federal Register citations affecting Sec.  41.2, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and at www.govinfo.gov.



Sec.  41.3  Waiver by joint action of consular and immigration officers 
of passport and/or visa requirements.

    Under the authority of INA 212(d)(4), the documentary requirements 
of INA 212(a)(7)(B)(i)(I), (i)(II) may be waived for any alien in whose 
case the consular officer serving the port or place of embarkation, or 
the Deputy Assistant Secretary of State for Visa Services or his or her 
designee, is satisfied after consultation with, and concurrence by, the 
appropriate immigration officer, that the case falls within any of the 
following categories:
    (a) Residents of foreign contiguous territory; visa and passport 
waiver. An alien residing in foreign contiguous territory who does not 
qualify for any waiver provided in Sec.  41.1 and is a member of a 
visiting group or excursion proceeding to the United States under 
circumstances which make it impractical to procure a passport and visa 
in a timely manner.
    (b) Aliens for whom passport extension facilities are unavailable; 
passport waiver. As alien whose passport is not valid for the period 
prescribed in INA 212(a)(7)(B)(i)(I) and who is embarking for the United 
States at a port or place remote from any establishment at which the 
passport could be revalidated.
    (c) Aliens precluded from obtaining passport extensions by foreign 
government restrictions; passport waiver. An alien whose passport is not 
valid for the period prescribed in INA 212(a)(7)(B)(i)(I) and whose 
government, as a matter of policy, does not revalidate passports more 
than 6 months prior to expiration or until the passport expires.
    (d) Emergent circumstances; visa waiver. An alien well and favorably 
known at the consular office, who was previously issued a nonimmigrant 
visa which has expired, and who is proceeding directly to the United 
States under emergent circumstances which preclude the timely issuance 
of a visa.
    (e) Members of armed forces and coast guards of foreign countries; 
visa and passport waiver. An alien on active duty in the armed forces or 
coast guard of a foreign country and a member of a group of such armed 
forces or coast guard traveling to the United States, on behalf of the 
alien's government or the United Nations, under arrangements made with 
the appropriate military authorities of the United States, coordinated 
within the U.S. Government by those U.S. military authorities, and 
approved by the Department of State and the Department of Homeland 
Security for such visit.
    (f) Landed immigrants in Canada; passport waiver. An alien applying 
for a visa at a consular office in Canada:
    (1) Who is a landed immigrant in Canada;
    (2) Whose port and date of expected arrival in the United States are 
known; and
    (3) Who is proceeding to the United States under emergent 
circumstances which preclude the timely procurement of a passport or 
Canadian certificate of identity.
    (g) Authorization to individual consular office; visa and/or 
passport waiver. An alien within the district of a consular office which 
has been authorized by the Department, because of unusual circumstances 
prevailing in that district, to join with immigration officers abroad in 
waivers of documentary requirements in specific categories of cases, and 
whose case falls within one of those categories.

[52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991; 60 
FR 30188, June 8, 1995; 61 FR 1835, Jan. 24, 1996; 63 FR 48577, Sept. 
11, 1998; 79 FR 19289, Apr. 8, 2014]

[[Page 145]]



                Subpart B_Classification of Nonimmigrants



Sec.  41.11  Entitlement to nonimmigrant status.

    (a) Presumption of immigrant status and burden of proof. An 
applicant for a nonimmigrant visa, other than an alien applying for a 
visa under INA 101(a)(15) (H)(i) or (L), shall be presumed to be an 
immigrant until the consular officer is satisfied that the alien is 
entitled to a nonimmigrant status described in INA 101(a)(15) or 
otherwise established by law or treaty. The burden of proof is upon the 
applicant to establish entitlement for nonimmigrant status and the type 
of nonimmigrant visa for which application is made.
    (b) Aliens unable to establish nonimmigrant status. (1) A 
nonimmigrant visa shall not be issued to an alien who has failed to 
overcome the presumption of immigrant status established by INA 214(b).
    (2) In a borderline case in which an alien appears to be otherwise 
entitled to receive a visa under INA 101(a)(15)(B) or (F) but the 
consular officer concludes that the maintenance of the alien's status or 
the departure of the alien from the United States as required is not 
fully assured, a visa may nevertheless be issued upon the posting of a 
bond with the Secretary of Homeland Security under terms and conditions 
prescribed by the consular officer.
    (c) Visa Bond Pilot Program--(1) Summary. This paragraph (c) 
establishes a pilot program (Visa Bond Pilot Program) implementing 
section 221(g)(3) of the Immigration and Nationality Act (INA). Under 
the Visa Bond Pilot Program, consular officers will require a 
Maintenance of Status and Departure Bond (Visa Bond) be posted with the 
U.S. Department of Homeland Security, as a condition of visa issuance, 
for certain visa applicants.
    (2) Visa Bond Pilot Program parameters. Under the Visa Bond Pilot 
Program, consular officers will require Visa Bonds be posted by visa 
applicants who meet the following three criteria:
    (i) Apply for a B-1 and/or B-2 nonimmigrant visa;
    (ii) Are nationals of one of the following countries, which had an 
overstay rate of ten percent or higher in Fiscal Year 2019, according to 
the DHS FY 2019 Overstay Report, https://www.dhs.gov/publication/
entryexit-overstay-report, for B-1/B-2 visa applicants: Afghanistan, 
Angola, Bhutan, Burkina Faso, Burma, Burundi, Cabo Verde, Chad, 
Democratic Republic of the Congo (Kinshasa), Djibouti, Eritrea, the 
Gambia, Guinea-Bissau, Iran, Laos, Liberia, Libya, Mauritania, Papua New 
Guinea, Sao Tome and Principe, Sudan, Syria, and Yemen; and
    (iii) Are granted a DHS waiver of inadmissibility under INA section 
212(d)(3)(A) prior to visa issuance. Consular officers will set the Visa 
Bond amount at $5,000, $10,000, or $15,000, based on a consular 
officer's assessment of which amount is sufficient to ensure the alien 
will not remain in the United States beyond the end of the alien's 
authorized period of stay, while not exceeding what the alien can pay. 
Visas issued under the Visa Bond Pilot Program will be valid for a 
single entry to the United States within three months of the date of 
visa issuance.
    (3) Bond waiver authority. The Deputy Assistant Secretary for Visa 
Services may waive the bond requirement, for an alien, country, or a 
category of aliens, if the Deputy Assistant Secretary assesses that such 
a waiver is not contrary to the national interest. A waiver of the bond 
requirement may be recommended to the Deputy Assistant Secretary for 
Visa Services by a consular officer where the consular officer has 
reason to believe the waiver would advance a national interest or 
humanitarian interest. There will be no procedure for visa applicants to 
apply for a waiver of the bond requirement. Consular officers will 
determine whether a waiver would advance a significant national interest 
or humanitarian interest based on the applicants purpose of travel and 
employment, as described in the visa application and during the visa 
interview.
    (4) Bond procedures. A Visa Bond required under paragraph (c) of 
this section must be submitted to and approved by DHS. Upon the posting 
of such bond, DHS will notify the appropriate consular section overseas. 
Under this Visa Bond Pilot Program, Visa

[[Page 146]]

Bonds will be administered by U.S. Immigration and Customs Enforcement 
(ICE) in accordance with regulations, procedures, and instructions 
promulgated by DHS applicable to ICE Form I-352, Immigration Bond. A 
Visa Bond will be canceled when a visa holder substantially performs 
with respect to the terms and conditions of the Visa Bond as set forth 
in paragraph G(4) of Form I-352. Conversely, a Visa Bond will be 
breached when there has been a substantial violation of the terms and 
conditions set forth in paragraph G(4) of Form I-352. To demonstrate 
that they performed within the bond requirements, visa holders may, for 
example, schedule an appointment at a consular section outside the 
United States within 30 days of their departure from the United States 
and, after establishing their identity through personal appearance and 
presentation of a passport, provide information to a consular officer 
confirming they departed the United States on or before the expiration 
of their authorized period of stay. Upon doing so, visa holders will 
have substantially performed bond requirements, provided they maintained 
the conditions of their status while admitted to the United States. Visa 
holders who do not appear at a consular section still may ensure 
cancellation of the bond if the visa holder substantially complies with 
the terms and conditions of the Visa Bond as set forth in paragraph G(4) 
of Form I-352 and provides ICE probative documentation of timely 
departure, if required. Visa holders who timely file an application for 
extension of stay or change of status are not deemed to be in breach of 
bond.
    (5) Appeal of bond breach determination. A determination of a breach 
bond may be appealed in accordance with instructions on the applicable 
DHS forms governing bond breach determinations and appeal rights.
    (6) Effect on other law. Nothing in this paragraph (c) shall be 
construed as altering or affecting any other authority, process, or 
regulation provided by or established under any other provision of 
Federal law.

[52 FR 42597, Nov. 5, 1987, as amended at 61 FR 1835, Jan. 24, 1996; 85 
FR 74882, Nov. 24, 2020]

    Effective Date Note: At 85 FR 74882, Nov. 24, 2020, Sec.  41.11 was 
amended by adding paragraph (c), effective Dec. 24, 2020, through June 
24, 2021.



Sec.  41.12  Classification symbols.

    A visa issued to a nonimmigrant alien within one of the classes 
described in this section shall bear an appropriate visa symbol to show 
the classification of the alien. The symbol shall be inserted in the 
space provided on the visa. The following visa symbols shall be used:

------------------------------------------------------------------------
            Symbol                      Class            Section of law
------------------------------------------------------------------------
A1............................  Ambassador, Public     101(a)(15)(A)(i).
                                 Minister, Career
                                 Diplomat or Consular
                                 Officer, or
                                 Immediate Family.
A2............................  Other Foreign          101(a)(15)(A)(ii)
                                 Government Official    .
                                 or Employee, or
                                 Immediate Family.
A3............................  Attendant, Servant,    101(a)(15)(A)(iii
                                 or Personal Employee   ).
                                 of A1 or A2, or
                                 Immediate Family.
B1............................  Temporary Visitor for  101(a)(15)(B).
                                 Business.
B2............................  Temporary Visitor for  101(a)(15)(B).
                                 Pleasure.
B1/B2.........................  Temporary Visitor for  101(a)(15)(B).
                                 Business & Pleasure.
C1............................  Alien in Transit.....  101(a)(15)(C).
C1/D..........................  Combined Transit and   101(a)(15)(C) and
                                 Crewmember Visa.       (D).
C2............................  Alien in Transit to    101(a)(15)(C).
                                 United Nations
                                 Headquarters
                                 District Under Sec.
                                 11.(3), (4), or (5)
                                 of the Headquarters
                                 Agreement.
C3............................  Foreign Government     212(d)(8).
                                 Official, Immediate
                                 Family, Attendant,
                                 Servant or Personal
                                 Employee, in Transit.
D.............................  Crewmember (Sea or     101(a)(15)(D).
                                 Air).
E1............................  Treaty Trader, Spouse  101(a)(15)(E)(i).
                                 or Child.
E2............................  Treaty Investor,       101(a)(15)(E)(ii)
                                 Spouse or Child.       .
E3............................  Australian Treaty      101(a)(15)(E)(iii
                                 Alien coming to the    ).
                                 United States Solely
                                 to Perform Services
                                 in a Specialty
                                 Occupation.
E3D...........................  Spouse or Child of E3  101(a)(15)(E)(iii
                                                        ).
E3R...........................  Returning E3.........  101(a)(15)(E)(iii
                                                        ).
F1............................  Student in an          101(a)(15)(F)(i).
                                 academic or language
                                 training program.
F2............................  Spouse or Child of F1  101(a)(15)(F)(ii)
                                                        .

[[Page 147]]

 
F3............................  Canadian or Mexican    101(a)(15)(F)(iii
                                 national commuter      ).
                                 student in an
                                 academic or language
                                 training program.
G1............................  Principal Resident     101(a)(15)(G)(i).
                                 Representative of
                                 Recognized Foreign
                                 Government to
                                 International
                                 Organization, Staff,
                                 or Immediate Family.
G2............................  Other Representative   101(a)(15)(G)(ii)
                                 of Recognized          .
                                 Foreign Member
                                 Government to
                                 International
                                 Organization, or
                                 Immediate Family.
G3............................  Representative of      101(a)(15)(G)(iii
                                 Nonrecognized or       ).
                                 Nonmember Foreign
                                 Government to
                                 International
                                 Organization, or
                                 Immediate Family.
G4............................  International          101(a)(15)(G)(iv)
                                 Organization Officer   .
                                 or Employee, or
                                 Immediate Family.
G5............................  Attendant, Servant,    101(a)(15)(G)(v).
                                 or Personal Employee
                                 of G1 through G4, or
                                 Immediate Family.
H1B...........................  Alien in a Specialty   101(a)(15)(H)(i)(
                                 Occupation             b).
                                 (Profession).
H1B1..........................  Chilean or             101(a)(15)(H)(i)(
                                 Singaporean National   b1).
                                 to Work in a
                                 Specialty Occupation.
H1C...........................  Nurse in health        101(a)(15)(H)(i)(
                                 professional           c).
                                 shortage area.
H2A...........................  Temporary Worker       101(a)(15)(H)(ii)
                                 Performing             (a).
                                 Agricultural
                                 Services Unavailable
                                 in the United States.
H2B...........................  Temporary Worker       101(a)(15)(H)(ii)
                                 Performing Other       (b).
                                 Services Unavailable
                                 in the United States.
H3............................  Trainee..............  101(a)(15)(H)(iii
                                                        ).
H4............................  Spouse or Child of     101(a)(15)(H)(iv)
                                 Alien Classified H1B/  .
                                 B1/C, H2A/B/R, or H-
                                 3.
I.............................  Representative of      101(a)(15)(I).
                                 Foreign Information
                                 Media, Spouse and
                                 Child.
J1............................  Exchange Visitor.....  101(a)(15)(J).
J2............................  Spouse or Child of J1  101(a)(15)(J).
K1............................  Fiance(e) of United    101(a)(15)(K)(i).
                                 States Citizen.
K2............................  Child of Fiance(e) of  101(a)(15)(K)(iii
                                 U.S. Citizen.          ).
K3............................  Spouse of U.S.         101(a)(15)(K)(ii)
                                 citizen awaiting       .
                                 availability of
                                 immigrant visa.
K4............................  Child of K3..........  101(a)(15)(K)(iii
                                                        ).
L1............................  Intracompany           101(a)(15)(L).
                                 Transferee
                                 (Executive,
                                 Managerial, and
                                 Specialized
                                 Knowledge Personnel
                                 Continuing
                                 Employment with
                                 International Firm
                                 or Corporation).
L2............................  Spouse or Child of     101(a)(15)(L).
                                 Intracompany
                                 Transferee.
M1............................  Vocational Student or  101(a)(15)(M)(i).
                                 Other Nonacademic
                                 Student.
M2............................  Spouse or Child of M1  101(a)(15)(M)(ii)
                                                        .
M3............................  Canadian or Mexican    101(a)(15)(M)(iii
                                 national commuter      ).
                                 student (Vocational
                                 student or other
                                 nonacademic student).
N8............................  Parent of an Alien     101(a)(15)(N)(i).
                                 Classified SK3 or
                                 SN3.
N9............................  Child of N8 or of      101(a)(15)(N)(ii)
                                 SK1, SK2, SK4, SN1,    .
                                 SN2 or SN4.
NATO 1........................  Principal Permanent    Art. 12, 5 UST
                                 Representative of      1094; Art. 20, 5
                                 Member State to NATO   UST 1098.
                                 (including any of
                                 its Subsidiary
                                 Bodies) Resident in
                                 the U.S. and
                                 Resident Members of
                                 Official Staff;
                                 Secretary General,
                                 Assistant
                                 Secretaries General,
                                 and Executive
                                 Secretary of NATO;
                                 Other Permanent NATO
                                 Officials of Similar
                                 Rank, or Immediate
                                 Family.
NATO 2........................  Other Representative   Art. 13, 5 UST
                                 of member state to     1094; Art. 1, 4
                                 NATO (including any    UST 1794; Art.
                                 of its Subsidiary      3, 4 UST 1796.
                                 Bodies) including
                                 Representatives,
                                 Advisers, and
                                 Technical Experts of
                                 Delegations, or
                                 Immediate Family;
                                 Dependents of Member
                                 of a Force Entering
                                 in Accordance with
                                 the Provisions of
                                 the NATO Status-of-
                                 Forces Agreement or
                                 in Accordance with
                                 the provisions of
                                 the ``Protocol on
                                 the Status of
                                 International
                                 Military
                                 Headquarters'';
                                 Members of Such a
                                 Force if Issued
                                 Visas.
NATO 3........................  Official Clerical      Art. 14, 5 UST
                                 Staff Accompanying     1096.
                                 Representative of
                                 Member State to NATO
                                 (including any of
                                 its Subsidiary
                                 Bodies), or
                                 Immediate Family.
NATO 4........................  Official of NATO       Art. 18, 5 UST
                                 (Other Than Those      1098.
                                 Classifiable as
                                 NATO1), or Immediate
                                 Family.
NATO 5........................  Experts, Other Than    Art. 21, 5 UST
                                 NATO Officials         1100.
                                 Classifiable Under
                                 NATO4, Employed in
                                 Missions on Behalf
                                 of NATO, and their
                                 Dependents.

[[Page 148]]

 
NATO 6........................  Member of a Civilian   Art. 1, 4 UST
                                 Component              1794; Art. 3, 5
                                 Accompanying a Force   UST 877.
                                 Entering in
                                 Accordance with the
                                 Provisions of the
                                 NATO Status-of-
                                 Forces Agreement;
                                 Member of a Civilian
                                 Component Attached
                                 to or Employed by an
                                 Allied Headquarters
                                 Under the ``Protocol
                                 on the Status of
                                 International
                                 Military
                                 Headquarters'' Set
                                 Up Pursuant to the
                                 North Atlantic
                                 Treaty; and their
                                 Dependents.
NATO 7........................  Attendant, Servant,    Arts. 12-20, 5
                                 or Personal Employee   UST 1094-1098.
                                 of NATO1, NATO2,
                                 NATO 3, NATO4,
                                 NATO5, and NATO6
                                 Classes, or
                                 Immediate Family.
O1............................  Alien with             101(a)(15)(O)(i).
                                 Extraordinary
                                 Ability in Sciences,
                                 Arts, Education,
                                 Business or
                                 Athletics.
O2............................  Alien Accompanying     101(a)(15)(O)(ii)
                                 and Assisting in the   .
                                 Artistic or Athletic
                                 Performance by O1.
O3............................  Spouse or Child of O1  101(a)(15)(O)(iii
                                 or O2.                 ).
P1............................  Internationally        101(a)(15)(P)(i).
                                 Recognized Athlete
                                 or Member of
                                 Internationally
                                 Recognized
                                 Entertainment Group.
P2............................  Artist or Entertainer  101(a)(15)(P)(ii)
                                 in a Reciprocal        .
                                 Exchange Program.
P3............................  Artist or Entertainer  101(a)(15)(P)(iii
                                 in a Culturally        ).
                                 Unique Program.
P4............................  Spouse or Child of     101(a)(15)(P)(iv)
                                 P1, P2, or P3.         .
Q1............................  Participant in an      101(a)(15)(Q)(i).
                                 International
                                 Cultural Exchange
                                 Program.
R1............................  Alien in a Religious   101(a)(15)(R).
                                 Occupation.
R2............................  Spouse or Child of R1  101(a)(15)(R).
S5............................  Certain Aliens         101(a)(15)(S)(i).
                                 Supplying Critical
                                 Information Relating
                                 to a Criminal
                                 Organization or
                                 Enterprise.
S6............................  Certain Aliens         101(a)(15)(S)(ii)
                                 Supplying Critical     .
                                 Information Relating
                                 to Terrorism.
S7............................  Qualified Family       101(a)(15)(S).
                                 Member of S5 or S6.
T1............................  Victim of a severe     101(a)(15)(T)(i).
                                 form of trafficking
                                 in persons.
T2............................  Spouse of T1.........  101(a)(15)(T)(ii)
                                                        .
T3............................  Child of T1..........  101(a)(15)(T)(ii)
                                                        .
T4............................  Parent of a T1 under   101(a)(15)(T)(ii)
                                 21 years of age.       .
T5............................  Unmarried Sibling      101(a)(15)(T)(ii)
                                 under age 18 of T1     .
                                 under 21 years of
                                 age.
T6............................  Adult or Minor Child   101(a)(15)(T)(ii)
                                 of a Derivative        .
                                 Beneficiary of a T1.
TN............................  NAFTA Professional...  214(e)(2).
TD............................  Spouse or Child of a   214(e)(2).
                                 NAFTA Professional.
U1............................  Victim of criminal     101(a)(15)(U)(i).
                                 activity.
U2............................  Spouse of U1.........  101(a)(15)(U)(ii)
                                                        .
U3............................  Child of U1..........  101(a)(15)(U)(ii)
                                                        .
U4............................  Parent of U1 under 21  101(a)(15)(U)(ii)
                                 years of age.          .
U5............................  Unmarried Sibling      101(a)(15)(U)(ii)
                                 under age 18 of U1     .
                                 under 21 years of
                                 age.
V1............................  Spouse of a Lawful     101(a)(15)(V)(i)
                                 Permanent Resident     or
                                 Alien Awaiting         101(a)(15)(V)(ii
                                 Availability of        ).
                                 Immigrant Visa.
V2............................  Child of a Lawful      101(a)(15)(V)(i)
                                 Permanent Resident     or
                                 Alien Awaiting         101(a)(15)(V)(ii
                                 Availability Of        ).
                                 Immigrant Visa.
V3............................  Child of a V1 or V2..  203(d) &
                                                        101(a)(15)(V)(i)
                                                        or 101
                                                        (a)(15)(V)(ii).
------------------------------------------------------------------------


[78 FR 68992, Nov. 18, 2013, as amended at 85 FR 38321, June 26, 2020]



                 Subpart C_Foreign Government Officials



Sec.  41.21  Foreign Officials--General.

    (a) Definitions. In addition to pertinent INA definitions, the 
following definitions are applicable:
    (1) Accredited, as used in INA 101(a)(15)(A), 101(a)(15)(G), and 
212(d)(8), means an alien holding an official position, other than an 
honorary official position, with a government or international 
organization and possessing a travel document or other evidence of 
intention to enter or transit the United States to transact official 
business for that government or international organization.
    (2) Attendants, as used in INA 101(a)(15)(A)(iii), 101(a)(15)(G)(v), 
and 212(d)(8), and in the definition of the NATO-7 visa symbol, means 
aliens paid from the public funds of a foreign government or from the 
funds of an international organization, accompanying or following to 
join the principal alien to whom a duty or service is owed.
    (3) Immediate family, as used in INA 101(a)(15)(A), 101(a)(15)(G), 
and 212(d)(8),

[[Page 149]]

and in classification under the NATO visa symbols, means:
    (i) The spouse who resides regularly in the household of the 
principal alien and is not a member of some other household;
    (ii) Unmarried sons and daughters, whether by blood or adoption, who 
reside regularly in the household of the principal alien and who are not 
members of some other household, and provided that such unmarried sons 
and daughters are:
    (A) Under the age of 21, or
    (B) Under the age of 23 and in full-time attendance as students at 
post-secondary educational institutions; and
    (iii) Other individuals who:
    (A) Reside regularly in the household of the principal alien;
    (B) Are not members of some other household;
    (C) Are recognized as dependents of the principal alien by the 
sending government or international organization, as demonstrated by 
eligibility for rights and benefits, such as the issuance of a 
diplomatic or official passport, or travel or other allowances; and
    (D) Are individually authorized by the Department.
    (4) Servants and personal employees, as used in INA 
101(a)(15)(A)(iii), 101(a)(15)(G)(v), and 212(d)(8), and in 
classification under the NATO-7 visa symbol, means aliens employed in a 
domestic or personal capacity by a principal alien, who are paid from 
the private funds of the principal alien and seek to enter the United 
States solely for the purpose of such employment.
    (b) Exception to passport validity requirement for aliens in certain 
A, G, and NATO classes. A nonimmigrant alien for whom the passport 
requirement of INA 212(a)(7)(B)(i)(I) has not been waived and who is 
within one of the classes:
    (1) Described in INA 101(a)(15)(A)(i) and (ii); or
    (2) Described in INA 101(a)(15)(G)(i), (ii), (iii), and (iv); or
    (3) NATO-1, NATO-2, NATO-3, NATO-4, or NATO-6 may present a passport 
which is valid only for a sufficient period to enable the alien to apply 
for admission at a port of entry prior to its expiration.
    (c) Exception to passport validity requirement for foreign 
government officials in transit. An alien classified C-3 under INA 
212(d)(8) needs to present only a valid unexpired visa and a travel 
document which is valid for entry into a foreign country for at least 30 
days from the date of application for admission into the United States.
    (d) Grounds for refusal of visas applicable to certain A, C, G, and 
NATO classes. (1) An A-1 or A-2 visa may not be issued to an alien the 
Department has determined to be persona non grata.
    (2) Only the provisions of INA 212(a) cited below apply to the 
indicated classes of nonimmigrant visa applicants:
    (i) Class A-1: INA 212(a) (3)(A), (3)(B), and (3)(C);
    (ii) Class A-2: INA 212(a) (3)(A), (3)(B), and (3)(C);
    (iii) Classes C-2 and C-3: INA 212(a) (3)(A), (3)(B), (3)(C), and 
(7)(B);
    (iv) Classes G-1, G-2, G-3, and G-4: INA 212(a) (3)(A), (3)(B), and 
(3)(C);
    (v) Classes NATO-1, NATO-2, NATO-3, NATO-4, and NATO-6: INA 212(a) 
(3)(A), (3)(B), and (3)(C);
    (3) An alien within class A-3 or G-5 is subject to all grounds of 
refusal specified in INA 212 which are applicable to nonimmigrants in 
general.
    (4) Notwithstanding the visa restrictions imposed by applicable laws 
and consistent with a provision in such laws providing for a regulatory 
exception to the visa restrictions contained therein, a visa may be 
issued to a visa applicant who is otherwise ineligible for a visa under 
such laws:
    (i) To permit the United States to comply with the United Nations 
Headquarters Agreement and other applicable international obligations; 
and
    (ii) To permit the United States and Burma to operate their 
diplomatic missions, and to permit the United States to conduct other 
official United States Government business in Burma.

[52 FR 42597, Nov. 5, 1987; 53 FR 9111, Mar. 21, 1988, as amended at 56 
FR 30428, July 2, 1991; 73 FR 56729, Sept. 30, 2008; 74 FR 36113, July 
22, 2009; 78 FR 66815, Nov. 6, 2013; 81 FR 88102, Dec. 7, 2016]

[[Page 150]]



Sec.  41.22  Officials of foreign governments.

    (a) Criteria for classification of foreign government officials. (1) 
An alien is classifiable A-1 or A-2 under INA section 101(a)(15)(A) (i) 
or (ii) if the principal alien:
    (i) Has been accredited by a foreign government recognized de jure 
by the United States;
    (ii) Intends to engage solely in official activities for that 
foreign government while in the United States; and
    (iii) Has been accepted by the President, the Secretary of State, or 
a consular officer acting on behalf of the Secretary of State.
    (2) A member of the immediate family of a principal alien is 
classifiable A-1 or A-2 under INA section 101(a)(15)(A)(i) or (ii) if 
the principal alien is so classified.
    (b) Classification under INA section 101(a)(15)(A). An alien 
entitled to classification under INA section 101(a)(15)(A) shall be 
classified under this section even if eligible for another nonimmigrant 
classification. An exception may be made where an immediate family 
member is classifiable as A-1 or A-2 under paragraph (a)(2) of this 
section is also independently classifiable as a principal under INA 
section 101(a)(15)(G)(i), (ii), (iii), (iv) or in NATO-1 through NATO-6 
classification.
    (c) Classification of attendants, servants, and personal employees. 
An alien is classifiable as a nonimmigrant under INA 101(a)(15)(A)(iii) 
if the consular officer is satisfied that the alien qualifies under 
those provisions.
    (d) Referral to the Department of special cases concerning principal 
alien applicants. In any case in which there is uncertainty about the 
applicability of these regulations to a principal alien applicant 
requesting such nonimmigrant status, the matter shall be immediately 
referred to the Department for consideration as to whether acceptance of 
accreditation will be granted.
    (e) Change of classification to that of a foreign government 
official. In the case of an alien in the United States seeking a change 
of nonimmigrant classification under INA 248 to a classification under 
INA 101(a)(15)(A) (i) or (ii), the question of acceptance of 
accreditation is determined by the Department.
    (f) Termination of status. The Department may, in its discretion, 
cease to recognize as entitled to classification under INA 101(a)(15)(A) 
(i) or (ii) any alien who has nonimmigrant status under that provision.
    (g) Classification of foreign government official. A foreign 
government official or employee seeking to enter the United States 
temporarily other than as a representative or employee of a foreign 
government is not classifiable under the provisions of INA 
101(a)(15)(A).
    (h) Courier and acting courier on official business--(1) Courier of 
career. An alien regularly and professionally employed as a courier by 
the government of the country to which the alien owes allegiance is 
classifiable as a nonimmigrant under INA 101(a)(15)(A)(i), if the alien 
is proceeding to the United States on official business for that 
government.
    (2) Official acting as courier. An alien not regularly and 
professionally employed as a courier by the government of the country to 
which the alien owes allegiance is classifiable as a nonimmigrant under 
INA 101(a)(15)(A)(ii), if the alien is holding an official position and 
is proceeding to the United States as a courier on official business for 
that government.
    (3) Nonofficial serving as courier. An alien serving as a courier 
but not regularly and professionally employed as such who holds no 
official position with, or is not a national of, the country whose 
government the alien is serving, shall be classified as a nonimmigrant 
under INA 101(a)(15)(B).
    (i) Official of foreign government not recognized by the United 
States. An official of a foreign government not recognized de jure by 
the United States, who is proceeding to or through the United States on 
an official mission or to an international organization shall be 
classified as a nonimmigrant under INA 101(a)(15) (B), (C), or (G)(iii).

[52 FR 42597, Nov. 5, 1987, as amended at 78 FR 33700, June 5, 2013; 81 
FR 88103, Dec. 7, 2016]

[[Page 151]]



Sec.  41.23  Accredited officials in transit.

    An accredited official of a foreign government intending to proceed 
in immediate and continuous transit through the United States on 
official business for that government is entitled to the benefits of INA 
212(d)(8) if that government grants similar privileges to officials of 
the United States, and is classifiable C-3 under the provisions of INA 
101(a)(15)(C). Members of the immediate family, attendants, servants, or 
personal employees of such an official receive the same classification 
as the principal alien.



Sec.  41.24  International organization aliens.

    (a) Definition of international organization. ``International 
organization'' means:
    (1) Any public international organization which has been designated 
by the President by Executive Order as entitled to enjoy the privileges, 
exemptions, and immunities provided for in the International 
Organizations Immunities Act (59 Stat. 669, 22 U.S.C. 288); and
    (2) For the purpose of special immigrant status under INA 
101(a)(27)(I), INTELSAT or any successor or separated entity thereof.
    (b) Aliens coming to international organizations. (1) An alien is 
classifiable under INA 101(a)(15)(G) if the consular officer is 
satisfied that the alien is within one of the classes described in that 
section and seeks to enter or transit the United States in pursuance of 
official duties. If the purpose of the entry or transit is other than 
pursuance of official duties, the alien is not classifiable under INA 
section 101(a)(15)(G).
    (2) An alien applying for a visa under the provisions of INA section 
101(a)(15)(G) may not be refused solely on the grounds that the 
applicant is not a national of the country whose government the 
applicant represents.
    (3) An alien seeking to enter the United States as a foreign 
government representative to an international organization, who is also 
proceeding to the United States on official business as a foreign 
government official within the meaning of INA section 101(a)(15)(A), 
shall be issued a visa under that section, if otherwise qualified.
    (4) An alien not classifiable under INA section 101(a)(15)(A) or in 
NATO-1 through NATO-6 classification but entitled to classification 
under INA section 101(a)(15)(G) shall be classified under section 
101(a)(15)(G), even if also eligible for another nonimmigrant 
classification. An alien classified under INA section 101(a)(15)(G) as 
an immediate family member of a principal alien classifiable G-1, G-2, 
G-3 or G-4, may continue to be so classified even if he or she obtains 
employment subsequent to his or her initial entry into the United States 
that would allow classification under INA section 101(a)(15)(A). Such 
alien shall not be classified in a category other than A or G, even if 
also eligible for another nonimmigrant classification.
    (c) Officers and employees of privatized INTELSAT, their family 
members and domestic servants. (1) Officers and employees of privatized 
INTELSAT who both were employed by INTELSAT, and held status under INA 
101(a)(15)(G)(iv) for at least six months prior to privatization on July 
17, 2001, will continue to be so classifiable for so long as they are 
officers or employees of INTELSAT or a successor or separated entity 
thereof.
    (2) Aliens who had had G-4 status as officers and employees of 
INTELSAT but became officers or employees of a successor or separated 
entity of INTELSAT after at least six months of such employment, but 
prior to and in anticipation of privatization and subsequent to March 
17, 2000, will also continue to be classifiable under INA 
101(a)(15)(G)(iv) for so long as that employment continues.
    (3) Family members of officers and employees described in paragraphs 
(c)(1) and (2) of this section who qualify as ``immediate family'' under 
Sec.  41.21(a)(3) and who are accompanying or following to join the 
principal are also classifiable under INA 1010(a)(15)(G)(iv) for so long 
as the principal is so classified.
    (4) Attendants, servants, and personal employees of officers and 
employees described in paragraphs (c)(1) and (2) of this section are not 
eligible for classification under INA 101(a)(15)(G)(v), given that the 
officers

[[Page 152]]

and employees described in paragraphs (c)(1) and (2) of this section are 
not officers or employees of an ``international organization'' for 
purposes of INA 101(a)(15)(G).

[52 FR 42597, Nov. 5, 1987, as amended at 67 FR 1414, Jan. 11, 2002; 67 
FR 18822, Apr. 17, 2002; 78 FR 33700, June 5, 2013; 81 FR 88103, Dec. 7, 
2016]



Sec.  41.25  NATO representatives, officials, and employees.

    (a) Classification. An alien shall be classified under the symbol 
NATO-1, NATO-2, NATO-3, NATO-4, or NATO-5 if the consular officer is 
satisfied that the alien is seeking admission to the United States under 
the applicable provision of the Agreement on the Status of the North 
Atlantic Treaty Organization, National Representatives and International 
Staff, or is a member of the immediate family of an alien classified 
NATO-1 through NATO-5. (See Sec.  41.12 for classes of aliens entitled 
to classification under each symbol.)
    (b) Armed services personnel. Armed services personnel entering the 
United States in accordance with the provisions of the Agreement Between 
the Parties to the North Atlantic Treaty Regarding the Status of Their 
Forces or in accordance with the provisions of the Protocol on the 
Status of International Military Headquarters Set Up Pursuant to the 
North Atlantic Treaty may enter the United States under the appropriate 
treaty waiver of documentary requirements contained in Sec.  41.1 (d) or 
(e). If a visa is issued it is classifiable under the NATO-2 symbol.
    (c) Dependents of armed services personnel. Dependents of armed 
services personnel referred to in paragraph (b) of this section shall be 
classified under the symbol NATO-2.
    (d) Members of civilian components and dependents. Alien members of 
a civilian component accompanying a force entering in accordance with 
the provisions of the NATO Status-of-Forces Agreement, and dependents, 
or alien members of a civilian component attached to or employed by an 
Allied Headquarters under the Protocol on the Status of International 
Military Headquarters, and dependents shall be classified under the 
symbol NATO-6.
    (e) Attendant, servant, or personal employee of an alien classified 
NATO-1 through NATO-6. An alien attendant, servant, or personal employee 
of an alien classified NATO-1 through NATO-6, and any member of the 
immediate family of such attendant, servant, or personal employee, shall 
be classified under the symbol NATO-7.



Sec.  41.26  Diplomatic visas.

    (a) Definitions. (1) Diplomatic passport means a national passport 
bearing that title and issued by a competent authority of a foreign 
government.
    (2) Diplomatic visa means any nonimmigrant visa, regardless of 
classification, which bears that title and is issued in accordance with 
the regulations of this section.
    (3) Equivalent of a diplomatic passport means a passport that:
    (i) Is issued by a competent authority that does not issue 
diplomatic passports and
    (ii) Has been designated by the Secretary as the equivalent of a 
diplomatic passport.
    (b) Place of application. With the exception of certain aliens in 
the United States issued nonimmigrant visas by the Department under the 
provisions of Sec.  41.111(b), application for a diplomatic visa shall 
be made at a diplomatic mission or at a consular office authorized to 
issue diplomatic visas, regardless of the nationality or residence of 
the applicant.
    (c) Classes of aliens eligible to receive diplomatic visas. A 
nonimmigrant alien who presents a diplomatic passport or its equivalent 
shall, if otherwise qualified, be eligible to receive a diplomatic visa 
if:
    (1) The nonimmigrant alien is within one of the following 
categories, irrespective of the classification of the visa under Sec.  
41.12:
    (i) Heads of states and their alternates;
    (ii) Members of a reigning royal family;
    (iii) Governors-general, governors, high commissioners, and similar 
high administrative or executive officers of a territorial unit, and 
their alternates;
    (iv) Cabinet ministers and their assistants holding executive or 
administrative positions not inferior to that of

[[Page 153]]

the head of a departmental division, and their alternates;
    (v) Presiding officers of chambers of national legislative bodies;
    (vi) Justices of the highest national court of a foreign country;
    (vii) Ambassadors, public ministers, other officers of the 
diplomatic service and consular officers of career;
    (viii) Military officers holding a rank not inferior to that of a 
brigadier general in the United States Army or Air Force and Naval 
officers holding a rank not inferior to that of a rear admiral in the 
United States Navy;
    (ix) Military, naval, air and other attach[eacute] and assistant 
attach[eacute] assigned to a foreign diplomatic mission;
    (x) Officers of foreign-government delegations to international 
organizations so designated by Executive Order;
    (xi) Officers of foreign-government delegations to, and officers of, 
international bodies of an official nature, other than international 
organizations so designated by Executive Order;
    (xii) Officers of a foreign government proceeding to the United 
States on a temporary basis or through the United States in the 
performance of their official duties;
    (xiii) Officers of foreign-government delegations proceeding to or 
from a specific international conference of an official nature;
    (xiv) Members of the immediate family of a principal alien who is 
within one of the classes described in paragraphs (c)(1)(i) through (xi) 
of this section;
    (xv) Members of the immediate family accompanying or following to 
join the principal alien who is within one of the classes described in 
paragraphs (c)(1)(xii) and (c)(1)(xiii) of this section;
    (xvi) Diplomatic couriers proceeding to or through the United States 
in the performance of their official duties; or
    (2) The alien is classifiable as a G-4 and is accompanying any of 
these officers:
    (i) The Secretary General of the United Nations;
    (ii) An Under Secretary General of the United Nations;
    (iii) An Assistant Secretary General of the United Nations;
    (iv) The Administrator or the Deputy Administrator of the United 
Nations Development Program;
    (v) An Assistant Administrator of the United Nations Development 
Program;
    (vi) The Executive Director of the:
    (A) United Nations Children's Fund;
    (B) United Nations Institute for Training and Research;
    (C) United Nations Industrial Development Organization;
    (vii) The Executive Secretary of the:
    (A) United Nations Economic Commission for Africa;
    (B) United Nations Economic Commission for Asia and the Far East;
    (C) United Nations Economic Commission for Latin America;
    (D) United Nations Economic Commission for Europe;
    (viii) The Secretary General of the United Nations Conference on 
Trade and Development;
    (ix) The Director General of the Latin American Institute for 
Economic and Social Planning;
    (x) The United Nations High Commissioner for Refugees;
    (xi) The United Nations Commissioner for Technical Cooperation;
    (xii) The Commissioner General of the United Nations Relief and 
Works Agency for Palestine Refugees in the Near East;
    (xiii) Members of the immediate family accompanying or following to 
join any principal nonimmigrant alien listed in paragraphs (c)(2)(i) 
through (xii) of this section.
    (3) Other individual aliens or classes of aliens are eligible to 
receive diplomatic visas upon authorization of the Department, the Chief 
of a U.S. Diplomatic Mission, the Deputy Chief of Mission, the Counselor 
for Consular Affairs or the principal officer of a consular post not 
under the jurisdiction of a diplomatic mission.

[52 FR 42597, Nov. 5, 1987; 53 FR 9111, Mar. 21, 1988, as amended at 86 
FR 10456, Feb. 22, 2021]



Sec.  41.27  Official visas.

    (a) Definition. Official visa means any nonimmigrant visa, 
regardless of classification, which bears that title and is issued in 
accordance with these regulations.

[[Page 154]]

    (b) Place of application. Official visas are ordinarily issued only 
when application is made in the consular district of the applicant's 
residence. When directed by the Department, or in the discretion of the 
consular officer, official visas may be issued when application is made 
in a consular district in which the alien is physically present but does 
not reside. Certain aliens in the United States may be issued official 
visas by the Department under the provisions of Sec.  41.111(b).
    (c) Classes of aliens eligible to receive official visas. (1) A 
nonimmigrant within one of the following categories who is not eligible 
to receive a diplomatic visa shall, if otherwise qualified, be eligible 
to receive an official visa irrespective of classification of the visa 
under Sec.  41.12:
    (i) Aliens within a category described in Sec.  41.26(c)(1) who are 
ineligible to receive a diplomatic visa because they are not in 
possession of a diplomatic passport or its equivalent;
    (ii) Aliens classifiable under INA section 101(a)(15)(A)(i) or (ii), 
8 U.S.C. 1101(a)(15)(A)(i) or (ii);
    (iii) Aliens who are classifiable under INA section 
101(a)(15)(G)(i), (ii), or (iv), 8 U.S.C. 1101(a)(15)(G)(i), (ii), or 
(iv);
    (iv) Aliens who are classifiable under INA section 
101(a)(15)(G)(iii), 8 U.S.C. 1101(a)(15)(G)(iii), as representatives of 
a foreign government traveling to an international organization so 
designated by Executive Order, where such foreign government is not a 
member of the international organization;
    (v) Aliens classifiable under INA section 101(a)(15)(C), 8 U.S.C. 
1101(a)(15)(C), as nonimmigrants described in INA section 212(d)(8), 8 
U.S.C. 1182(d)(8);
    (vi) Members and members-elect of national legislative bodies;
    (vii) Justices of the lesser national and the highest state courts 
of a foreign country;
    (viii) Officers and employees of national legislative bodies 
proceeding to or through the United States in the performance of their 
official duties;
    (ix) Administrative, service, and similar employees attached to 
foreign-government delegations to, and employees of, international 
bodies of an official nature, other than international organizations so 
designated by Executive Order, proceeding to or through the United 
States in the performance of their official duties;
    (x) Administrative, service, and similar employees of a foreign 
government proceeding to the United States on temporary duty or through 
the United States on a temporary basis in the performance of their 
official duties;
    (xi) Administrative, service, and similar employees attached to 
foreign-government delegations proceeding to or from a specific 
international conference of an official nature;
    (xii) Officers and employees of foreign governments recognized de 
jure by the United States who are stationed in foreign contiguous 
territories or adjacent islands;
    (xiii) Members of the immediate family when accompanying or 
following to join a principal alien who is within one of the classes 
referred to or described in paragraphs (c)(1)(i) through (xii) of this 
section;
    (2) Other individual aliens or classes of aliens are eligible to 
receive official visas upon the authorization of the Department, the 
Chief of a U.S. Diplomatic Mission, the Deputy Chief of Mission, the 
Counselor for Consular Affairs, or the principal officer of a consular 
post not under the jurisdiction of a diplomatic mission.

[52 FR 42597, Nov. 5, 1987; 53 FR 9111, Mar. 21, 1988, as amended at 86 
FR 10456, Feb. 22, 2021]



                      Subpart D_Temporary Visitors



Sec.  41.31  Temporary visitors for business or pleasure.

    (a) Classification. An alien is classifiable as a nonimmigrant 
visitor for business (B-1) or pleasure (B-2) if the consular officer is 
satisfied that the alien qualifies under the provisions of INA 
101(a)(15)(B), and that:
    (1) The alien intends to leave the United States at the end of the 
temporary stay (consular officers are authorized, if departure of the 
alien as required by law does not seem fully assured, to require the 
posting of a bond with the Secretary of Homeland Security in a 
sufficient sum to ensure that at the end of the temporary visit, or upon 
failure to maintain temporary visitor status, or any status subsequently 
acquired under INA 248, the

[[Page 155]]

alien will depart from the United States);
    (2) The alien has permission to enter a foreign country at the end 
of the temporary stay; and
    (3) Adequate financial arrangements have been made to enable the 
alien to carry out the purpose of the visit to and departure from the 
United States.
    (b) Definitions. (1) The term ``business,'' as used in INA 
101(a)(15)(B), refers to conventions, conferences, consultations and 
other legitimate activities of a commercial or professional nature. It 
does not include local employment or labor for hire. For the purposes of 
this section building or construction work, whether on-site or in plant, 
shall be deemed to constitute purely local employment or labor for hire; 
provided that the supervision or training of others engaged in building 
or construction work (but not the actual performance of any such 
building or construction work) shall not be deemed to constitute purely 
local employment or labor for hire if the alien is otherwise qualified 
as a B-1 nonimmigrant. An alien seeking to enter as a nonimmigrant for 
employment or labor pursuant to a contract or other prearrangement is 
required to qualify under the provisions of Sec.  41.53. An alien of 
distinguished merit and ability seeking to enter the United States 
temporarily with the idea of performing temporary services of an 
exceptional nature requiring such merit and ability, but having no 
contract or other prearranged employment, may be classified as a 
nonimmigrant temporary visitor for business.
    (2)(i) The term pleasure, as used in INA 101(a)(15)(B) for the 
purpose of visa issuance, refers to legitimate activities of a 
recreational character, including tourism, amusement, visits with 
friends or relatives, rest, medical treatment, and activities of a 
fraternal, social, or service nature, and does not include obtaining a 
visa for the primary purpose of obtaining U.S. citizenship for a child 
by giving birth in the United States.
    (ii) Any visa applicant who seeks medical treatment in the United 
States under this provision shall be denied a visa under INA section 
214(b) if unable to establish, to the satisfaction of a consular 
officer, a legitimate reason why he or she wishes to travel to the 
United States for medical treatment, that a medical practitioner or 
facility in the United States has agreed to provide treatment, and that 
the applicant has reasonably estimated the duration of the visit and all 
associated costs. The applicant also shall be denied a visa under INA 
section 214(b) if unable to establish to the satisfaction of the 
consular officer that he or she has the means derived from lawful 
sources and intent to pay for the medical treatment and all incidental 
expenses, including transportation and living expenses, either 
independently or with the pre-arranged assistance of others.
    (iii) Any B nonimmigrant visa applicant who a consular officer has 
reason to believe will give birth during her stay in the United States 
is presumed to be traveling for the primary purpose of obtaining U.S. 
citizenship for the child.

[52 FR 42597, Nov. 5, 1987; 53 FR 9172, Mar. 21, 1988, as amended at 85 
FR 4225, Jan. 24, 2020]



Sec.  41.32  Nonresident alien Mexican border crossing identification cards; 
combined border crossing identification cards and B-1/B-2 visitor visas.

    (a) Combined B-1/B-2 visitor visa and border crossing identification 
card (B-1/B-2 Visa/BCC)--(1) Authorization for issuance. Consular 
officers assigned to a consular office in Mexico designated by the 
Deputy Assistant Secretary for Visa Services for such purpose may issue 
a border crossing identification card, as that term is defined in INA 
101(a)(6), in combination with a B-1/B-2 nonimmigrant visitor visa (B-1/
B-2 Visa/BCC), to a nonimmigrant alien who:
    (i) Is a citizen and resident of Mexico;
    (ii) Seeks to enter the United States as a temporary visitor for 
business or pleasure as defined in INA 101(a)(15)(B) for periods of stay 
not exceeding six months;
    (iii) Is otherwise eligible for a B-1 or a B-2 temporary visitor 
visa.
    (2) Procedure for application. Mexican applicants shall apply for a 
B-1/B-2 Visa/BCC at any U.S. consular office in Mexico designated by the 
Deputy Assistant Secretary of State for Visa

[[Page 156]]

Services pursuant to paragraph (a) of this section to accept such 
applications. The application shall be submitted electronically on Form 
DS-160 or, as directed by a consular officer, on Form DS-156. If 
submitted electronically, it must be signed electronically by clicking 
the box designated ``Sign Application'' in the certification section of 
the application.
    (3) Personal appearance. Each applicant shall appear in person 
before a consular officer to be interviewed regarding eligibility for a 
visitor visa, unless the consular officer waives personal appearance.
    (4) Issuance and format. A B-1/B-2 Visa/BCC issued on or after April 
1, 1998, shall consist of a card, Form DSP-150, containing a machine-
readable biometric identifier. It shall contain the following data:
    (i) Post symbol;
    (ii) Number of the card;
    (iii) Date of issuance;
    (iv) Indicia ``B-1/B-2 Visa and Border Crossing Card'';
    (v) Name, date of birth, and sex of the person to whom issued; and
    (vi) Date of expiration.
    (b) Validity. A BCC previously issued by a consular officer in 
Mexico on Form I-186, Nonresident Alien Mexican Border Crossing Card, or 
Form I-586, Nonresident Alien Border Crossing Card, is valid until the 
expiration date on the card (if any) unless previously revoked, but not 
later than the date, currently October 1, 2001, on which a machine-
readable, biometric identifier in the card is required in order for the 
card to be usable for entry. The BCC portion of a B-1/B-2 Visa/BCC 
issued to a Mexican national pursuant to provisions of this section 
contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 
1998 is valid until the date of expiration, unless previously revoked, 
but not later than the date, currently October 1, 2001, on which a 
machine-readable, biometric identifier in the card is required in order 
for the card to be usable for entry.
    (c) Revocation. A consular or immigration officer may revoke a BCC 
issued on Form I-186 or Form I-586, or a B-1/B-2 Visa/BCC under the 
provisions of Sec.  41.122, or if the consular or immigration officer 
determines that the alien to whom any such document was issued has 
ceased to be a resident and/or a citizen of Mexico. Upon revocation, the 
consular or immigration officer shall notify the issuing consular or 
immigration office. If the revoked document is a card, the consular or 
immigration officer shall take possession of the card and physically 
cancel it under standard security conditions. If the revoked document is 
a stamp in a passport the consular or immigration officer shall write or 
stamp ``canceled'' on the face of the document.
    (d) Voidance. (1) The voiding pursuant to INA 222(g) of the visa 
portion of a B-1/B-2 Visa/BCC issued at any time by a consular officer 
in Mexico under provisions of this section contained in the 22 CFR, 
parts 1 to 299, edition revised as of April 1, 1998, also voids the BCC 
portion of that document.
    (2) A BCC issued at any time by a consular officer in Mexico under 
any provisions of this section contained in the 22 CFR, parts 1 to 299, 
edition revised as of April 1, 1998, is void if a consular or 
immigration officer determines that the alien has violated the 
conditions of the alien's admission into the United States, including 
the period of stay authorized by the Secretary of Homeland Security.
    (3) A consular or immigration officer shall immediately take 
possession of a card determined to be void under paragraphs (d) (1) or 
(2) of this section and physically cancel it under standard security 
conditions. If the document voided in paragraphs (d) (1) or (2) is in 
the form of a stamp in a passport the officer shall write or stamp 
``canceled'' across the face of the document.
    (e) Replacement. When a B-1/B-2 Visa/BCC issued under the provisions 
of this section, or a BCC or B-1/B-2 Visa/BCC issued under any 
provisions of this section contained in the 22 CFR, parts 1 to 299, 
edition revised as of April 1, 1998, has been lost, mutilated, 
destroyed, or expired, the person to whom such card was issued may apply 
for a new B-1/B-2 Visa/BCC as provided in this section.

[64 FR 45163, Aug. 19, 1999, as amended at 71 FR 30591, May 30, 2006; 71 
FR 34521, June 15, 2006; 73 FR 23068, Apr. 29, 2008]

[[Page 157]]



Sec.  41.33  Nonresident alien Canadian border crossing 
identification card (BCC).

    (a) Validity of Canadian BCC. A Canadian BCC or the BCC portion of a 
Canadian B-1/B-2 Visa/BCC issued to a permanent resident of Canada 
pursuant to provisions of this section contained in the 22 CFR, parts 1 
to 299, edition revised as of April 1, 1998, is valid until the date of 
expiration, if any, unless previously revoked, but not later than the 
date, currently October 1, 2001, on which a machine readable biometric 
identifier is required in order for a BCC to be usable for entry.
    (b) Revocation of Canadian BCC. A consular or immigration officer 
may revoke a BCC or a B-1/B-2 Visa/BCC issued in Canada at any time 
under the provisions of Sec.  41.122, or if the consular or immigration 
officer determines that the alien to whom any such document was issued 
has ceased to be a permanent resident of Canada. Upon revocation, the 
consular or immigration officer shall notify the issuing consular office 
and if the revoked document is a card, the consular or immigration 
officer shall take possession of the card and physically cancel it under 
standard security conditions. If the revoked document is a stamp in a 
passport the consular or immigration officer shall write or stamp 
``canceled'' on the face of the document.
    (c) Voidance. (1) The voiding pursuant to INA 222(g) of the visa 
portion of a B-1/B-2 Visa/BCC issued at any time by a consular officer 
in Canada under provisions of this section contained in the 22 CFR, 
parts 1 to 299, edition revised as of April 1, 1998, also voids the BCC 
portion of that document.
    (2) A BCC issued at any time by a consular officer in Canada under 
any provisions of this section contained in the 22 CFR, parts 1 to 299, 
edition revised as of April 1, 1998, is void if a consular or 
immigration officer finds that the alien has violated the conditions of 
the alien's admission into the United States, including the period of 
stay authorized by the Secretary of Homeland Security.
    (3) A consular or immigration officer shall immediately take 
possession of a card determined to be void under paragraphs (c) (1) or 
(2) of this section and physically cancel it under standard security 
conditions. If the document voided under paragraphs (c) (1) or (2) is in 
the form of a stamp in a passport the officer shall write or stamp 
``canceled'' across the face of the document.

[64 FR 45164, Aug. 19, 1999]



                  Subpart E_Crewman and Crew-List Visas



Sec.  41.41  Crewmen.

    (a) Alien classifiable as crewman. An alien is classifiable as a 
nonimmigrant crewman upon establishing to the satisfaction of the 
consular officer the qualifications prescribed by INA 101(a)(15)(D), 
provided that the alien has permission to enter some foreign country 
after a temporary landing in the United States, unless the alien is 
barred from such classification under the provisions of INA 214(f).
    (b) Alien not classifiable as crewman. An alien employed on board a 
vessel or aircraft in a capacity not required for normal operation and 
service, or an alien employed or listed as a regular member of the crew 
in excess of the number normally required, shall not be classified as a 
crewman.

[52 FR 42597, Nov. 5, 1987, as amended at 66 FR 10364, Feb. 15, 2001]



Sec.  41.42  [Reserved]



                   Subpart F_Business and Media Visas



Sec.  41.51  Treaty trader, treaty investor, or treaty alien 
in a specialty occupation.

    (a) Treaty trader--(1) Classification. An alien is classifiable as a 
nonimmigrant treaty trader (E-1) if the consular officer is satisfied 
that the alien qualifies under the provisions of INA 101(a)(15)(E)(i) 
and that the alien:
    (i) Will be in the United States solely to carry on trade of a 
substantial nature, which is international in scope, either on the 
alien's behalf or as an employee of a foreign person or organization 
engaged in trade, principally between the United States and the foreign 
state of which the alien is a national, (consideration being given to 
any conditions in the country of which

[[Page 158]]

the alien is a national which may affect the alien's ability to carry on 
such substantial trade); and
    (ii) Intends to depart from the United States upon the termination 
of E-1 status.
    (2) Employee of treaty trader. An alien employee of a treaty trader 
may be classified E-1 if the employee is in or is coming to the United 
States to engage in duties of an executive or supervisory character, or, 
if employed in a lesser capacity, the employee has special 
qualifications that make the services to be rendered essential to the 
efficient operation of the enterprise. The employer must be:
    (i) A person having the nationality of the treaty country, who is 
maintaining the status of treaty trader if in the United States or, if 
not in the United States, would be classifiable as a treaty trader; or
    (ii) An organization at least 50% owned by persons having the 
nationality of the treaty country who are maintaining nonimmigrant 
treaty trader status if residing in the United States or, if not 
residing in the United States, who would be classifiable as treaty 
traders.
    (3) Spouse and children of treaty trader. The spouse and children of 
a treaty trader accompanying or following to join the principal alien 
are entitled to the same classification as the principal alien. The 
nationality of a spouse or child of a treaty trader is not material to 
the classification of the spouse or child under the provisions of INA 
101(a)(15)(E).
    (4) Representative of foreign information media. Representatives of 
foreign information media shall first be considered for possible 
classification as nonimmigrants under the provisions of INA 
101(a)(15)(I), before consideration is given to their possible 
classification as treaty traders under the provisions of INA 
101(a)(15)(E) and of this section.
    (5) Treaty country. A treaty country is for purposes of this section 
a foreign state with which a qualifying Treaty of Friendship, Commerce, 
and Navigation or its equivalent exists with the United States. A treaty 
country includes a foreign state that is accorded treaty visa privileges 
under INA 101(a)(15)(E) by specific legislation (other than the INA).
    (6) Nationality of the treaty country. The authorities of the 
foreign state of which the alien claims nationality determine the 
nationality of an individual treaty trader. In the case of an 
organization, ownership must be traced as best as is practicable to the 
individuals who ultimately own the organization.
    (7) Trade. The term ``trade'' as used in this section means the 
existing international exchange of items of trade for consideration 
between the United States and the treaty country. Existing trade 
includes successfully negotiated contracts binding upon the parties that 
call for the immediate exchange of items of trade. This exchange must be 
traceable and identifiable. Title to the trade item must pass from one 
treaty party to the other.
    (8) Item of trade. Items that qualify for trade within these 
provisions include but are not limited to goods, services, technology, 
monies, international banking, insurance, transportation, tourism, 
communications, and some news gathering activities.
    (9) Substantial trade. Substantial trade for the purposes of this 
section entails the quantum of trade sufficient to ensure a continuous 
flow of trade items between the United States and the treaty country. 
This continuous flow contemplates numerous exchanges over time rather 
than a single transaction, regardless of the monetary value. Although 
the monetary value of the trade item being exchanged is a relevant 
consideration, greater weight is given to more numerous exchanges of 
larger value. In the case of smaller businesses, an income derived from 
the value of numerous transactions that is sufficient to support the 
treaty trader and his or her family constitutes a favorable factor in 
assessing the existence of substantial trade.
    (10) Principal trade. Trade shall be considered to be principal 
trade between the United States and the treaty country when over 50% of 
the volume of international trade of the treaty trader is conducted 
between the United States and the treaty country of the treaty trader's 
nationality.

[[Page 159]]

    (11) Executive or supervisory character. The executive or 
supervisory element of the employee's position must be a principal and 
primary function of the position and not an incidental or collateral 
function. Executive and/or supervisory duties grant the employee 
ultimate control and responsibility for the enterprise's overall 
operation or a major component thereof.
    (i) An executive position provides the employee great authority to 
determine policy of and direction for the enterprise.
    (ii) A position primarily of supervisory character grants the 
employee supervisory responsibility for a significant proportion of an 
enterprise's operations and does not generally involve the direct 
supervision of low-level employees.
    (12) Special qualifications. Special qualifications are those skills 
and/or aptitudes that an employee in a lesser capacity brings to a 
position or role that are essential to the successful or efficient 
operation of the enterprise.
    (i) The essential nature of the alien's skills to the employing firm 
is determined by assessing the degree of proven expertise of the alien 
in the area of operations involved, the uniqueness of the specific skill 
or aptitude, the length of experience and/or training with the firm, the 
period of training or other experience necessary to perform effectively 
the projected duties, and the salary the special qualifications can 
command. The question of special skills and qualifications must be 
determined by assessing the circumstances on a case-by-case basis.
    (ii) Whether the special qualifications are essential will be 
assessed in light of all circumstances at the time of each visa 
application on a case-by-case basis. A skill that is unique at one point 
may become commonplace at a later date. Skills required to start up an 
enterprise may no longer be essential after initial operations are 
complete and are running smoothly. Some skills are essential only in the 
short-term for the training of locally hired employees. Long-term 
essentiality might, however, be established in connection with 
continuous activities in such areas as product improvement, quality 
control, or the provision of a service not generally available in the 
United States.
    (13) Labor disputes. Citizens of Canada or Mexico shall not be 
entitled to classification under this section if the Secretary of 
Homeland Security and the Secretary of Labor have certified that:
    (i) There is in progress a strike or lockout in the course of a 
labor dispute in the occupational classification at the place or 
intended place of employment; and
    (ii) The alien has failed to establish that the alien's entry will 
not affect adversely the settlement of the strike or lockout or the 
employment of any person who is involved in the strike or lockout.
    (b) Treaty investor--(1) Classification. An alien is classifiable as 
a nonimmigrant treaty investor (E'2) if the consular officer is 
satisfied that the alien qualifies under the provisions of INA 
101(a)(15)(E)(ii) and that the alien:
    (i) Has invested or is actively in the process of investing a 
substantial amount of capital in bona fide enterprise in the United 
States, as distinct from a relatively small amount of capital in a 
marginal enterprise solely for the purpose of earning a living; and
    (ii) Is seeking entry solely to develop and direct the enterprise; 
and
    (iii) Intends to depart from the United States upon the termination 
of E'2 status.
    (2) Employee of treaty investor. An alien employee of a treaty 
investor may be classified E-2 if the employee is in or is coming to the 
United States to engage in duties of an executive or supervisory 
character, or, if employed in a lesser capacity, the employee has 
special qualifications that make the services to be rendered essential 
to the efficient operation of the enterprise. The employer must be:
    (i) A person having the nationality of the treaty country, who is 
maintaining the status of treaty investor if in the United States or, if 
not in the United States, who would be classifiable as a treaty 
investor; or
    (ii) An organization at least 50% owned by persons having the 
nationality of the treaty country who are maintaining nonimmigrant 
treaty investor status if residing in the United States or, if not 
residing in the United

[[Page 160]]

States, who would be classifiable as treaty investors.
    (3) Spouse and children of treaty investor. The spouse and children 
of a treaty investor accompanying or following to join the principal 
alien are entitled to the same classification as the principal alien. 
The nationality of a spouse or child of a treaty investor is not 
material to the classification of the spouse or child under the 
provisions of INA 101(a)(15)(E).
    (4) Representative of foreign information media. Representatives of 
foreign information media shall first be considered for possible 
classification as nonimmigrants under the provisions of INA 
101(a)(15)(I), before consideration is given to their possible 
classification as nonimmigrants under the provisions of INA 
101(a)(15)(E) and of this section.
    (5) Treaty country. A treaty country is for purposes of this section 
a foreign state with which a qualifying Treaty of Friendship, Commerce, 
and Navigation or its equivalent exists with the United States. A treaty 
country includes a foreign state that is accorded treaty visa privileges 
under INA 101(a)(15)(E) by specific legislation (other than the INA).
    (6) Nationality of the treaty country. The authorities of the 
foreign state of which the alien claims nationality determine the 
nationality of an individual treaty investor. In the case of an 
organization, ownership must be traced as best as is practicable to the 
individuals who ultimately own the organization.
    (7) Investment. Investment means the treaty investor's placing of 
capital, including funds and other assets, at risk in the commercial 
sense with the objective of generating a profit. The treaty investor 
must be in possession of and have control over the capital invested or 
being invested. The capital must be subject to partial or total loss if 
investment fortunes reverse. Such investment capital must be the 
investor's unsecured personal business capital or capital secured by 
personal assets. Capital in the process of being invested or that has 
been invested must be irrevocably committed to the enterprise. The alien 
has the burden of establishing such irrevocable commitment given to the 
particular circumstances of each case. The alien may use any legal 
mechanism available, such as by placing invested funds in escrow pending 
visa issuance, that would not only irrevocably commit funds to the 
enterprise but that might also extend some personal liability protection 
to the treaty investor.
    (8) Bona fide enterprise. The enterprise must be a real and active 
commercial or entrepreneurial undertaking, producing some service or 
commodity for profit and must meet applicable legal requirements for 
doing business in the particular jurisdiction in the United States.
    (9) Substantial amount of capital. A substantial amount of capital 
constitutes that amount that is:
    (i)(A) Substantial in the proportional sense, i.e., in relationship 
to the total cost of either purchasing an established enterprise or 
creating the type of enterprise under consideration;
    (B) Sufficient to ensure the treaty investor's financial commitment 
to the successful operation of the enterprise; and
    (C) Of a magnitude to support the likelihood that the treaty 
investor will successfully develop and direct the enterprise.
    (ii) Whether an amount of capital is substantial in the 
proportionality sense is understood in terms of an inverted sliding 
scale; i.e., the lower the total cost of the enterprise, the higher, 
proportionately, the investment must be to meet these criteria.
    (10) Marginal enterprise. A marginal enterprise is an enterprise 
that does not have the present or future capacity to generate more than 
enough income to provide a minimal living for the treaty investor and 
his or her family. An enterprise that does not have the capacity to 
generate such income but that has a present or future capacity to make a 
significant economic contribution is not a marginal enterprise. The 
projected future capacity should generally be realizable within five 
years from the date the alien commences normal business activity of the 
enterprise.
    (11) Solely to develop and direct. The business or individual treaty 
investor does or will develop and direct the enterprise by controlling 
the enterprise

[[Page 161]]

through ownership of at least 50% of the business, by possessing 
operational control through a managerial position or other corporate 
device, or by other means.
    (12) Executive or supervisory character. The executive or 
supervisory element of the employee's position must be a principal and 
primary function of the position and not an incidental or collateral 
function. Executive and/or supervisory duties grant the employee 
ultimate control and responsibility for the enterprise's overall 
operation or a major component thereof.
    (i) An executive position provides the employee great authority to 
determine policy of and direction for the enterprise.
    (ii) A position primarily of supervisory character grants the 
employee supervisory responsibility for a significant proportion of an 
enterprise's operations and does not generally involve the direct 
supervision of low-level employees.
    (13) Special qualifications. Special qualifications are those skills 
and/or aptitudes that an employee in a lesser capacity brings to a 
position or role that are essential to the successful or efficient 
operation of the enterprise.
    (i) The essential nature of the alien's skills to the employing firm 
is determined by assessing the degree of proven expertise of the alien 
in the area of operations involved, the uniqueness of the specific skill 
or aptitude, the length of experience and/or training with the firm, the 
period of training or other experience necessary to perform effectively 
the projected duties, and the salary the special qualifications can 
command. The question of special skills and qualifications must be 
determined by assessing the circumstances on a case-by-case basis.
    (ii) Whether the special qualifications are essential will be 
assessed in light of all circumstances at the time of each visa 
application on a case-by-case basis. A skill that is unique at one point 
may become commonplace at a later date. Skills required to start up an 
enterprise may no longer be essential after initial operations are 
complete and are running smoothly. Some skills are essential only in the 
short-term for the training of locally hired employees. Long-term 
essentiality might, however, be established in connection with 
continuous activities in such areas as product improvement, quality 
control, or the provision of a service not generally available in the 
United States.
    (14) Labor disputes. Citizens of Canada or Mexico shall not be 
entitled to classification under this section if the Secretary of 
Homeland Security and the Secretary of Labor have certified that:
    (i) There is in progress a strike or lockout in the course of a 
labor dispute in the occupational classification at the place or 
intended place of employment; and
    (ii) The alien has failed to establish that the alien's entry will 
not affect adversely the settlement of the strike or lockout or the 
employment of any person who is involved in the strike or lockout.
    (c) Nonimmigrant E-3 treaty aliens in specialty occupations--(1) 
Classification. An alien is classifiable as a nonimmigrant treaty alien 
in a specialty occupation if the consular officer is satisfied that the 
alien qualifies under the provisions of INA 101(a)(15)(E)(iii) and that 
the alien:
    (i) Possesses the nationality of the country statutorily designated 
for treaty aliens in specialty occupation status;
    (ii) Satisfies the requirements of INA 214(i)(1) and the 
corresponding regulations defining specialty occupation promulgated by 
the Department of Homeland Security;
    (iii) Presents to a consular officer a copy of the Labor Condition 
Application signed by the employer and approved by the Department of 
Labor, and meeting the attestation requirements of INA Section 
212(t)(1);
    (iv) Presents to a consular officer evidence of the alien's academic 
or other qualifying credentials as required under INA 214(i)(1), and a 
job offer letter or other documentation from the employer establishing 
that upon entry into the United States the applicant will be engaged in 
qualifying work in a specialty occupation, as defined in paragraph 
(c)(1)(ii) of this section, and that the alien will be paid the actual 
or prevailing wage referred to in INA 212(t)(1);

[[Page 162]]

    (v) Has a visa number allocated under INA 214(g)(11)(B); and,
    (vi) Intends to depart upon the termination of E-3 status.
    (2) Spouse and children of treaty alien in a specialty occupation. 
The spouse and children of a treaty alien in a specialty occupation 
accompanying or following to join the principal alien are, if otherwise 
admissible, entitled to the same classification as the principal alien. 
A spouse or child of a principal E-3 treaty alien need not have the same 
nationality as the principal in order to be classifiable under the 
provisions of INA 101(a)(15)(E). Spouses and children of E-3 principals 
are not subject to the numerical limitations of INA 214(g)(11)(B).

[70 FR 52293, Sept. 2, 2005]



Sec.  41.52  Information media representative.

    (a) Representative of foreign press, radio, film, or other 
information media. An alien is classifiable as a nonimmigrant 
information media representative if the consular officer is satisfied 
that the alien qualifies under the provisions of INA 101(a)(15)(I) and 
is a representative of a foreign press, radio, film, or other 
information medium having its home office in a foreign country, the 
government of which grants reciprocity for similar privileges to 
representatives of such a medium having home offices in the United 
States.
    (b) Classification when applicant eligible for both I visa and E 
visa. An alien who will be engaged in foreign information media 
activities in the United States and meets the criteria set forth in 
paragraph (a) of this section shall be classified as a nonimmigrant 
under INA 101(a)(15)(I) even if the alien may also be classifiable as a 
nonimmigrant under the provisions of INA 101(a)(15)(E).
    (c) Spouse and children of information media representative. The 
spouse or child of an information media representative is classifiable 
under INA 101(a)(15)(I) if accompanying or following to join the 
principal alien.



Sec.  41.53  Temporary workers and trainees.

    (a) Requirements for H classification. An alien shall be 
classifiable under INA 101(a)(15)(H) if:
    (1) The consular officer is satisfied that the alien qualifies under 
that section; and either
    (2) With respect to the principal alien, the consular officer has 
received official evidence of the approval by DHS, or by the Department 
of Labor in the case of temporary agricultural workers, of a petition to 
accord such classification or of the extension by DHS of the period of 
authorized entry in such classification; or
    (3) The consular officer is satisfied the alien is the spouse or 
child of an alien so classified and is accompanying or following to join 
the principal alien.
    (b) Petition approval. The approval of a petition by the Department 
of Homeland Security or by the Department of Labor does not establish 
that the alien is eligible to receive a nonimmigrant visa.
    (c) Validity of visa. The period of validity of a visa issued on the 
basis of paragraph (a) to this section must not exceed the period 
indicated in the petition, notification, or confirmation required in 
paragraph (a)(2) of this section.
    (d) Alien not entitled to H classification. The consular officer 
must suspend action on this alien's application and submit a report to 
the approving DHS office if the consular officer knows or has reason to 
believe that an alien applying for a visa under INA 101(a)(15)(H) is not 
entitled to the classification as approved.
    (e) ``Trainee'' defined. The term Trainee, as used in INA 
101(a)(15)(H)(iii), means a nonimmigrant alien who seeks to enter the 
United States temporarily at the invitation of an individual, 
organization, firm, or other trainer for the purpose of receiving 
instruction in any field of endeavor (other than graduate medical 
education or training), including agriculture, commerce, communication, 
finance, government, transportation, and the professions.
    (f) Former exchange visitor. Former exchange visitors who are 
subject to the 2-year residence requirement of INA 212(e) are ineligible 
to apply for visas

[[Page 163]]

under INA 101(a)(15)(H) until they have fulfilled the residence 
requirement or obtained a waiver of the requirement.

[57 FR 31449, July 16, 1992, as amended at 61 FR 1833, Jan. 24, 1996; 65 
FR 52306, Aug. 29, 2000]



Sec.  41.54  Intracompany transferees (executives, managers, 
and specialized knowledge employees).

    (a) Requirements for L classification. An alien shall be 
classifiable under the provisions of INA section 101(a)(15)(L) if:
    (1) The consular officer is satisfied that the alien qualifies under 
that section; and either
    (2) In the case of an individual petition, the consular officer has 
received official evidence of the approval by DHS of a petition to 
accord such classification or of the extension by DHS of the period of 
authorized stay in such classification; or
    (3) In the case of a blanket petition,
    (i) The alien has presented to the consular officer official 
evidence of the approval by DHS of a blanket petition listing only those 
intracompany relationships and positions found to qualify under INA 
section 101(a)(15)(L);
    (ii) The alien is otherwise eligible for L-1 classification pursuant 
to the blanket petition; and,
    (iii) The alien requests that he or she be accorded such 
classification for the purpose of being transferred to, or remaining in, 
qualifying positions identified in such blanket petition; or
    (4) The consular officer is satisfied the alien is the spouse or 
child of an alien so classified and is accompanying or following to join 
the principal alien.
    (b) Petition approval. The approval of a petition by DHS does not 
establish that the alien is eligible to receive a nonimmigrant visa.
    (c) Alien not entitled to L-1 classification under individual 
petition. The consular officer must suspend action on the alien's 
application and submit a report to the approving DHS office if the 
consular officer knows or has reason to believe that an alien applying 
for a visa as the beneficiary of an approved individual petition under 
INA section 101(a)(15)(L) is not entitled to such classification as 
approved.
    (d) Labor disputes. Citizens of Canada or Mexico shall not be 
entitled to classification under this section if the Secretary of 
Homeland Security and the Secretary of Labor have certified that:
    (1) There is in progress a strike or lockout in the course of a 
labor dispute in the occupational classification at the place or 
intended place of employment; and,
    (2) The alien has failed to establish that the alien's entry will 
not affect adversely the settlement of the strike or lockout or the 
employment of any person who is involved in the strike or lockout.
    (e) Alien not entitled to L-1 classification under blanket petition. 
The consular officer shall deny L classification based on a blanket 
petition if the documentation presented by the alien claiming to be a 
beneficiary thereof does not establish to the satisfaction of the 
consular officer that
    (1) The alien has been continuously employed by the same employer, 
an affiliate or a subsidiary thereof, for one year within the three 
years immediately preceding the application for the L visa;
    (2) The alien was rendering services in a capacity that is 
managerial, executive, or involves specialized knowledge throughout that 
year; or
    (3) The alien is destined to render services in such a capacity, as 
identified in the petition and in an organization listed in the 
petition.
    (f) Former exchange visitor. Former exchange visitors who are 
subject to the two-year foreign residence requirement of INA section 
212(e) are ineligible to apply for visas under INA section 101(a)(15)(L) 
until they have fulfilled the residence requirement or obtained a waiver 
of the requirement.

[77 FR 8120, Feb. 14, 2012]



Sec.  41.55  Aliens with extraordinary ability.

    (a) Requirements for O classification. An alien shall be 
classifiable under the provisions of INA 101(a)(15)(O) if:
    (1) The consular officer is satisfied that the alien qualifies under 
the provisions of that section; and either
    (2) With respect to the principal alien, the consular officer has 
received official evidence of the approval by

[[Page 164]]

DHS of a petition to accord such classification or of the extension by 
DHS of the period of authorized stay in such classification; or
    (3) The consular officer is satisfied the alien is the spouse or 
child of an alien so classified and is accompanying or following to join 
the principal alien.
    (b) Approval of visa. The approval of a petition by DHS does not 
establish that the alien is eligible to receive a nonimmigrant visa.
    (c) Validity of visa. The period of validity of a visa issued on the 
basis of paragraph (a) to this section must not exceed the period 
indicated in the petition, notification, or confirmation required in 
paragraph (a)(2) of this section.
    (d) Alien not entitled to O classification. The consular officer 
must suspend action on the alien's application and submit a report to 
the approving DHS office if the consular officer knows or has reason to 
believe that an alien applying for a visa under INA 101(a)(15)(O) is not 
entitled to the classification as approved.

[57 FR 31450, July 16, 1992, as amended at 61 FR 1833, Jan. 24, 1996]



Sec.  41.56  Athletes, artists and entertainers.

    (a) Requirements for P classification. An alien shall be 
classifiable under the provisions of INA 101(a)(15)(P) if:
    (1) The consular officer is satisfied that the alien qualifies under 
the provisions of that section; and either
    (2) With respect to the principal alien, the consular officer has 
received official evidence of the approval by DHS of a petition to 
accord such classification or of the extension by DHS of the period of 
authorized stay in such classification; or
    (3) The consular officer is satisfied the alien is the spouse or 
child of an alien so classified and is accompanying or following to join 
the principal alien.
    (b) Approval of visa. The approval of a petition by DHS does not 
establish that the alien is eligible to receive a nonimmigrant visa.
    (c) Validity of visa. The period of validity of a visa issued on the 
basis of paragraph (a) to this section must not exceed the period 
indicated in the petition, confirmation, or extension of stay required 
in paragraph (a)(2) of this section.
    (d) Alien not entitled to P classification. The consular officer 
must suspend action on the alien's application and submit a report to 
the approving DHS office if the consular officer knows or has reason to 
believe that an alien applying for a visa under INA 101(a)(15)(P) is not 
entitled to the classification as approved.

[57 FR 31450, July 16, 1992, as amended at 61 FR 1833, Jan. 24, 1996]



Sec.  41.57  International cultural exchange visitors.

    (a) International cultural exchange visitors--(1) Requirements for 
classification under INA section 101(a)(15)(Q)(i). A consular officer 
may classify an alien under the provisions of INA 101(a)(15)(Q)(i) if:
    (i) The consular officer is satisfied that the alien qualifies under 
the provisions of that section, and
    (ii) The consular officer has received official evidence of the 
approval by DHS of a petition or the extension by DHS of the period of 
authorized stay in such classification.
    (2) Approval of petition. DHS approval of a petition does not 
establish that the alien is eligible to receive a nonimmigrant visa.
    (3) Validity of visa. The period of validity of a visa issued on the 
basis of this paragraph (a) must not exceed the period indicated in the 
petition, notification, or confirmation required in paragraph (a)(2) of 
this section.
    (4) Alien not entitled to Q classification. The consular officer 
must suspend action on the alien's application and submit a report to 
the approving DHS office if the consular officer knows or has reason to 
believe that an alien does not qualify under INA section 
101(a)(15)(Q)(i).
    (b) [Reserved]

[65 FR 14770, Mar. 17, 2000, as amended at 66 FR 52502, Oct. 16, 2001; 
85 FR 38321, June 26, 2020]



Sec.  41.58  Aliens in religious occupations.

    (a) Requirements for ``R'' classification. An alien shall be 
classifiable under the provisions of INA 101(a)(15)(R) if:

[[Page 165]]

    (1) The consular officer is satisfied that the alien qualifies under 
the provisions of that section; and
    (2) With respect to the principal alien, the consular officer has 
received official evidence of the approval by USCIS of a petition to 
accord such classification or the extension by USCIS of the period of 
authorized stay in such classification; or
    (3) The alien is the spouse or child of an alien so classified and 
is accompanying or following to join the principal alien.
    (b) Petition approval. The approval of a petition by USCIS does not 
establish that the alien is eligible to receive a nonimmigrant visa.
    (c) Validity of visa. The period of validity of a visa issued on the 
basis of paragraph (a) to this section must not precede or exceed the 
period indicated in the petition, notification, or confirmation required 
in paragraph (a)(2) of this section.
    (d) Aliens not entitled to classification under INA 101(a)(15)(R). 
The consular officer must suspend action on the alien's application and 
submit a report to the approving USCIS office if the consular officer 
knows or has reason to believe that an alien applying for a visa under 
INA 101(a)(15)(R) is not entitled to the classification as approved.

[74 FR 51237, Oct. 6, 2009]



Sec.  41.59  Professionals under the North American Free Trade Agreement.

    (a) Requirements for classification as a NAFTA professional. An 
alien shall be classifiable under the provisions of INA 214(e) if:
    (1) The consular officer is satisfied that the alien qualifies under 
the provisions of that section; and
    (2) The alien shall have presented to the consular officer 
sufficient evidence of an offer of employment in the United States 
requiring employment of a person in a professional capacity consistent 
with NAFTA Chapter 16 Annex 1603 Appendix 1603.D.1 and sufficient 
evidence that the alien possesses the credentials of that profession as 
listed in said appendix; or
    (3) The alien is the spouse or child of an alien so classified in 
accordance with paragraph (a)(2) of this section and is accompanying or 
following to join the principal alien.
    (b) Visa validity. The period of validity of a visa issued pursuant 
to paragraph (a) of this section may not exceed the period established 
on a reciprocal basis.
    (c) Temporary entry. Temporary entry means an entry into the United 
States without the intent to establish permanent residence. The alien 
must satisfy the consular officer that the proposed stay is temporary. A 
temporary period has a reasonable, finite end that does not equate to 
permanent residence. The circumstances surrounding an application should 
reasonably and convincingly indicate that the alien's temporary work 
assignment in the United States will end predictably and that the alien 
will depart upon completion of the assignment.
    (d) Labor disputes. Citizens of Canada or Mexico shall not be 
entitled to classification under this section if the Secretary of 
Homeland Security and the Secretary of Labor have certified that:
    (1) There is in progress a strike or lockout in the course of a 
labor dispute in the occupational classification at the place or 
intended place of employment; and
    (2) The alien has failed to establish that the alien's entry will 
not affect adversely the settlement of the strike or lockout or the 
employment of any person who is involved in the strike or lockout.

[58 FR 68527, Dec. 28, 1993, as amended at 63 FR 10305, Mar. 3, 1998; 79 
FR 7583, Feb. 10, 2014]



                Subpart G_Students and Exchange Visitors



Sec.  41.61  Students--academic and nonacademic.

    (a) Definitions--(1) Academic, in INA 101(a)(15)(F), refers to an 
established college, university, seminary, conservatory, academic high 
school, elementary school, or other academic institution, or a language 
training program.
    (2) Nonacademic, in INA 101(a)(15)(M), refers to an established 
vocational or other recognized nonacademic institution (other than a 
language training program).

[[Page 166]]

    (b) Classification. (1) An alien is classifiable under INA 
101(a)(15)(F) (i) or (iii) or INA 101(a)(15)(M) (i) or (iii) if the 
consular officer is satisfied that the alien qualifies under one of 
those sections, and:
    (i) The alien has been accepted for attendance for the purpose of 
pursuing a full course of study, or, for students classified under INA 
101(a)(15) (F)(iii) and (M)(iii) Border Commuter Students, full or part-
time course of study, in an academic institution approved by the 
Secretary of Homeland Security for foreign students under INA 
101(a)(15)(F)(i) or a nonacademic institution approved under 
101(a)(15)(M)(i). The alien has presented a SEVIS Form I-20, Form I-20A-
B/I-20ID. Certificate of Eligibility For Nonimmigrant Student Status--
For Academic and Language Students, or Form I-20M-N/I-20ID, Certificate 
of Eligibility for Nonimmigrant Student Status--For Vocational Students, 
properly completed and signed by the alien and a designated official as 
prescribed in regulations found at 8 CFR 214.2(F) and 214.2(M);
    (ii) The alien possesses sufficient funds to cover expenses while in 
the United States or can satisfy the consular officer that other 
arrangements have been made to meet those expenses;
    (iii) The alien, unless coming to participate exclusively in an 
English language training program, has sufficient knowledge of the 
English language to undertake the chosen course of study or training. If 
the alien's knowledge of English is inadequate, the consular officer may 
nevertheless find the alien so classifiable if the accepting institution 
offers English language training, and has accepted the alien expressly 
for a full course of study (or part-time course of study for Border 
Commuter Students) in a language with which the alien is familiar, or 
will enroll the alien in a combination of courses and English 
instruction which will constitute a full course of study if required; 
and
    (iv) The alien intends, and will be able, to depart upon termination 
of student status.
    (2) An alien otherwise qualified for classification as a student, 
who intends to study the English language exclusively, may be classified 
as a student under INA 101(a) (15) (F) (i) even though no credits are 
given by the accepting institution for such study. The accepting 
institution, however, must offer a full course of study in the English 
language and must accept the alien expressly for such study.
    (3) The alien spouse and minor children of an alien who has been or 
will be issued a visa under INA 101(a) (15) (F) (i) or 101(a) (15) (M) 
(i) may receive nonimmigrant visas under INA 101(a) (15) (F) (ii) or 
101(a) (15) (M) (ii) if the consular officer is satisfied that they will 
be accompanying or following to join the principal alien; that 
sufficient funds are available to cover their expenses in the United 
States; and, that they intend to leave the United States upon the 
termination of the status of the principal alien.
    (c) Posting of bond. In borderline cases involving an alien 
otherwise qualified for classification under INA 101(a) (15) (F), the 
consular officer is authorized to require the posting of a bond with the 
Secretary of Homeland Security in a sum sufficient to ensure that the 
alien will depart upon the conclusion of studies or in the event of 
failure to maintain student status.
    (d) Electronic verification and notification. A student's acceptance 
documentation must be verified by a consular official's review of the 
SEVIS data in the Consolidated Consular Database or via direct access to 
SEVIS or ISEAS prior to the issuance of an F-1, F-2, M-1 or M-3 visa. 
Evidence of the payment of any applicable fees, if not presented with 
other documentation, may also be verified through the Consolidated 
Consular Database or direct access to SEVIS. Upon issuance of an F or M 
visa, notification of such issuance must be entered into the SEVIS 
database.

[52 FR 42597, Nov. 5, 1987, as amended at 67 FR 58695, Sept. 18, 2002; 
68 FR 28131, May 23, 2003]



Sec.  41.62  Exchange visitors.

    (a) J-1 classification. An alien is classifiable as an exchange 
visitor if qualified under the provisions of INA 101(a) (15) (J) and the 
consular officer is satisfied that the alien:

[[Page 167]]

    (1) Has been accepted to participate, and intends to participate, in 
an exchange visitor program designated by the Bureau of Education and 
Cultural Affairs, Department of State, as evidenced by the presentation 
of a properly executed Form DS-2019, Certificate of Eligibility for 
Exchange Visitor (J-1) Status;
    (2) Has sufficient funds to cover expenses or has made other 
arrangements to provide for expenses;
    (3) Has sufficient knowledge of the English language to undertake 
the program for which selected, or, except for an alien coming to 
participate in a graduate medical education or training program, the 
sponsoring organization is aware of the language deficiency and has 
nevertheless indicated willingness to accept the alien; and
    (4) Meets the requirements of INA 212(j) if coming to participate in 
a graduate medical education or training program.
    (5) Electronic verification and notification. An exchange visitor's 
acceptance documentation and payment of any applicable fees must be 
verified by a consular official's review of the SEVIS database or via 
direct access to SEVIS or ISEAS prior to the issuance of a J-1 or J-2 
visa. Evidence of the payment of any applicable fees, if not presented 
with other documentation, may also be verified through the Consolidated 
Consular Database or direct access to SEVIS. Upon issuance of a J-1 or 
J-2 visa, notification of such issuance must be entered into the SEVIS 
database.
    (b) J-2 Classification. The spouse or minor child of an alien 
classified J-1 is classifiable J-2.
    (c) Applicability of INA 212(e). (1) An alien is subject to the 2-
year foreign residence requirement of INA 212(e) if:
    (i) The alien's participation in one or more exchange programs was 
wholly or partially financed, directly or indirectly, by the U.S. 
Government or by the government of the alien's last legal permanent 
residence; or
    (ii) At the time of the issuance of an exchange visitor visa and 
admission to the United States, or, if not required to obtain a 
nonimmigrant visa, at the time of admission as an exchange visitor, or 
at the time of acquisition of such status after admission, the alien is 
a national and resident or, if not a national, a legal permanent 
resident (or has status equivalent thereto) of a country which the 
Secretary of State has designated, through publication by public notice 
in the Federal Register, as clearly requiring the services of persons 
engaged in the field of specialized knowledge or skill in which the 
alien will engage during the exchange visitor program; or
    (iii) The alien acquires exchange visitor status in order to receive 
graduate medical education or training in the United States.
    (2) For the purposes of this paragraph the terms financed directly 
and financed indirectly are defined as set forth in section Sec.  514.1 
of chapter V.
    (3) The country in which 2 years' residence and physical presence 
will satisfy the requirements of INA 212(e) in the case of an alien 
determined to be subject to such requirements is the country of which 
the alien is a national and resident, or, if not a national, a legal 
permanent resident (or has status equivalent thereto).
    (4) If an alien is subject to the 2-year foreign residence 
requirement of INA 212(e), the spouse or child of that alien, 
accompanying or following to join the alien, is also subject to that 
requirement if admitted to the United States pursuant to INA 101(a) (15) 
(J) or if status is acquired pursuant to that section after admission.
    (d) Notification to alien concerning 2-year foreign residence 
requirement. Before the consular officer issues an exchange visitor 
visa, the consular officer must inform the alien whether the alien will 
be subject to the 2-year residence and physical presence requirement of 
INA 212(e) if admitted to the United States under INA 101(a) (15) (J) 
and, if so, the country in which 2 years' residence and physical 
presence will satisfy the requirement.

[52 FR 42597, Nov. 5, 1987, as amended at 67 FR 58695, Sept. 18, 2002; 
68 FR 28132, May 23, 2003; 72 FR 10061, Mar. 7, 2007]



Sec.  41.63  Two-year home-country physical presence requirement.

    (a) Statutory basis for rule. Section 212(e) of the Immigration and 
Nationality Act, as amended, provides in substance as follows:

[[Page 168]]

    (1) No person admitted under Section 101(a) (15)(J) or acquiring 
such status after admission:
    (i) Whose participation in the program for which he came to the 
United States was financed in whole or in part, directly or indirectly, 
by an agency of the United States Government or by the government of the 
country of his nationality or of his last legal permanent residence;
    (ii) Who at the time of admission or acquisition of status under 
101(a)(15)(J) was a national or legal permanent resident of a country 
which the Secretary of State, pursuant to regulations prescribed by him, 
had designated as clearly requiring the services of persons engaged in 
the field of specialized knowledge or skill in which the alien was 
engaged [See the most recent ``Revised Exchange Visitor Skills List'', 
at http://exchanges.state.gov/education/jexchanges/participation/
skills_list.pdf; or
    (iii) Who came to the United States or acquired such status in order 
to receive graduate medical education or training, shall be eligible to 
apply for an immigrant visa, or for permanent residence, or for a 
nonimmigrant visa under section 101(a)(15)(H) or section 101(a)(15)(L) 
until is established that such person has resided and been physically 
present in the country of his nationality or his last legal permanent 
residence for an aggregate of at least two years following departure 
from the United States.
    (2) Upon the favorable recommendation of the Secretary of State, 
pursuant to the request of an interested United States Government agency 
(or in the case of an alien who is a graduate of a foreign medical 
school pursuing a program in graduate medical education or training, 
pursuant to the request of a State Department of Public Health, or its 
equivalent), or of the Secretary of Homeland Security after the latter 
has determined that departure from the United States would impose 
exceptional hardship upon the alien's spouse or child (if such spouse or 
child is a citizen of the United States or a legal permanent resident 
alien), or that the alien cannot return to the country of his 
nationality or last legal permanent residence because he would be 
subject to persecution on account of race, religion, or political 
opinion, the Secretary of Homeland Security may waive the requirement of 
such two-year foreign residence abroad in the case of any alien whose 
admission to the United States is found by the Secretary of Homeland 
Security to be in the public interest except that in the case of a 
waiver requested by a State Department of Public Health, or its 
equivalent, the waiver shall be subject to the requirements of section 
214(l) of the Immigration and Nationality Act (8 U.S.C. 1184).
    (3) Except in the case of an alien who is a graduate of a foreign 
medical school pursuing a program in graduate medical education or 
training, the Secretary of Homeland Security, upon the favorable 
recommendation of the Secretary of State, may also waive such two-year 
foreign residence requirement in any case in which the foreign country 
of the alien's nationality or last legal permanent residence has 
furnished the Secretary of State a statement in writing that it has no 
objection to such waiver in the case of such alien. Notwithstanding the 
foregoing, an alien who is a graduate of a foreign medical school 
pursuing a program in graduate medical education or training may obtain 
a waiver of such two-year foreign residence requirements if said alien 
meets the requirements of section 214(l) of the Immigration and 
Nationality Act (8 U.S.C. 1184) and paragraphs (a) (2) and (e) of this 
section.
    (b) Request for waiver on the basis of exceptional hardship or 
probable persecution on account of race, religion, or political opinion. 
(1) An exchange visitor who seeks a waiver of the two-year home-country 
residence and physical presence requirement on the grounds that such 
requirement would impose exceptional hardship upon the exchange 
visitor's spouse or child (if such spouse or child is a citizen of the 
United States or a legal permanent resident alien), or on the grounds 
that such requirement would subject the exchange visitor to persecution 
on account of race, religion, or political opinion, shall submit the 
application for waiver (DHS Form I-612) to the jurisdictional office of 
the Department of Homeland Security.

[[Page 169]]

    (2)(i) If the Secretary of Homeland Security (Secretary of DHS) 
determines that compliance with the two-year home-country residence and 
physical presence requirement would impose exceptional hardship upon the 
spouse or child of the exchange visitor, or would subject the exchange 
visitor to persecution on account of race, religion, or political 
opinion, the Secretary of DHS shall transmit a copy of his determination 
together with a summary of the details of the expected hardship or 
persecution, to the Waiver Review Division, in the Department of State's 
Bureau of Consular Affairs.
    (ii) With respect to those cases in which the Secretary of DHS has 
determined that compliance with the two-year home-country residence and 
physical presence requirement would impose exceptional hardship upon the 
spouse or child of the exchange visitor, the Waiver Review Division 
shall review the program, policy, and foreign relations aspects of the 
case, make a recommendation, and forward it to the appropriate office at 
DHS. If it deems it appropriate, the Waiver Review Division may request 
the views of each of the exchange visitors' sponsors concerning the 
waiver application. Except as set forth in paragraph (g)(4) of this 
section, the recommendation of the Waiver Review Division shall 
constitute the recommendation of the Department of State.
    (iii) With respect to those cases in which the Secretary of DHS has 
determined that compliance with the two-year home-country residence and 
physical presence requirement would subject the exchange visitor to 
persecution on account of race, religion, or political opinion, the 
Waiver Review Division shall review the program, policy, and foreign 
relations aspects of the case, including consultation if deemed 
appropriate with the Bureau of Human Rights and Humanitarian Affairs of 
the United States Department of State, make a recommendation, and 
forward such recommendation to the Secretary of DHS. Except as set forth 
in paragraph (g)(4) of this section, the recommendation of the Waiver 
Review Division shall constitute the recommendation of the Department of 
State and such recommendation shall be forwarded to DHS.
    (c) Requests for waiver made by an interested United States 
Government Department of State. (1) A United States Government agency 
may request a waiver of the two-year home-country residence and physical 
presence requirement on behalf of an exchange visitor if such exchange 
visitor is actively and substantially involved in a program or activity 
sponsored by or of interest to such agency.
    (2) A United States Government agency requesting a waiver shall 
submit its request in writing and fully explain why the grant of such 
waiver request would be in the public interest and the detrimental 
effect that would result to the program or activity of interest to the 
requesting agency if the exchange visitor is unable to continue his or 
her involvement with the program or activity.
    (3) A request by a United States Government agency shall be signed 
by the head of the agency, or his or her designee, and shall include 
copies of all IAP 66 or DS-2019 forms issued to the exchange visitor, 
his or her current address, and his or her country of nationality or 
last legal permanent residence.
    (4) A request by a United States Government agency, excepting the 
Department of Veterans Affairs, on behalf of an exchange visitor who is 
a foreign medical graduate who entered the United States to pursue 
graduate medical education or training, and who is willing to provide 
primary care or specialty medicine in a designated primary care Health 
Professional shortage Area, or a Medically Underserved Area, or 
psychiatric care in a Mental Health Professional Shortage Area, shall, 
in additional to the requirement set forth in paragraphs (c)(2) and (3) 
of this section, include:
    (i) A copy of the employment contract between the foreign medical 
graduate and the health care facility at which he or she will be 
employed. Such contract shall specify a term of employment of not less 
than three years and that the foreign medical graduate is to be employed 
by the facility for the purpose of providing not less than 40 hours per 
week of primary medical care, i.e., general or family practice,

[[Page 170]]

general internal medicine, pediatrics, or obstetrics and gynecology, in 
a designated primary care Health Professional Shortage Area or 
designated Medically Underserved Area (``MUA'') or psychiatric care in a 
designated Mental Health Professional Shortage Area. Further, such 
employment contract shall not include a non-compete clause enforceable 
against the foreign medical graduate.
    (ii) A statement, signed and dated by the head of the health care 
facility at which the foreign medical graduate will be employed, that 
the facility is located in an area designated by the Secretary of Health 
and Human Services as a Medically Underserved Area or Primary Medical 
Care Health Professional Shortage Area or Mental Health Professional 
Shortage Area and provides medical care to both Medicaid or Medicare 
eligible patients and indigent uninsured patients. The statement shall 
also list the primary care Health Professional Shortage Area, Mental 
Health Professional Shortage Area, or Medically Underserved Area/
Population identifier number of the designation (assigned by the 
Secretary of Health and Human Services), and shall include the FIPS 
county code and census tract or block numbering area number (assigned by 
the Bureau of the Census) or the 9-digit zipcode of the area where the 
facility is located.
    (iii) A statement, signed and dated by the foreign medical graduate 
exchange visitor that shall read as follows:

    I, __________ (name of exchange visitor) hereby declare and certify, 
under penalty of the provisions of 18 U.S.C. 1001, that I do not now 
have pending nor am I submitting during the pendency of this request, 
another request to any United States Government department or agency or 
any State Department of Public Health, or equivalent, other than 
__________ (insert name of United States Government Agency requesting 
waiver) to act on my behalf in any matter relating to a waiver of my 
two-year home-country physical presence requirement.

    (iv) Evidence that unsuccessful efforts have been made to recruit an 
American physician for the position to be filled.
    (5) Except as set forth in paragraph (g)(4) of this section, the 
recommendation of the Waiver Review Division shall constitute the 
recommendation of the Department of State and such recommendation shall 
be forwarded to the Secretary of DHS.
    (d) Requests for waiver made on the basis of a statement from the 
exchange visitor's home-country that it has no objection to the waiver. 
(1) Applications for waiver of the two-year home-country residence and 
physical presence requirement may be supported by a statement of no 
objection by the exchange visitor's country of nationality or last legal 
permanent residence. The statement of no objection shall be directed to 
the Secretary of State through diplomatic channels; i.e., from the 
country's Foreign Office to the Department of State through the U.S. 
Mission in the foreign country concerned, or through the foreign 
country's head of mission or duly appointed designee in the United 
States to the Secretary of State in the form of a diplomatic note. This 
note shall include applicant's full name, date and place of birth, and 
present address. If deemed appropriate, the Department of State may 
request the views of each of the exchange visitor's sponsors concerning 
the waiver application.
    (2) The Waiver Review Division shall review the program, policy, and 
foreign relations aspects of the case and forward its recommendation to 
the Secretary of DHS. Except as set forth in Sec.  41.63(g)(4), infra, 
the recommendation of the Waiver Review Division shall constitute the 
recommendation of the Department of State.
    (3) An exchange visitor who is a graduate of a foreign medical 
school and who is pursuing a program in graduate medical education or 
training in the United States is prohibited under section 212(e) of the 
Immigration and Nationality Act from applying for a waiver solely on the 
basis of no objection from his or her country of nationality or last 
legal permanent residence. However, an alien who is a graduate of a 
foreign medical school pursuing a program in graduate medical education 
or training may obtain a waiver of such two-year foreign residence 
requirements if said alien meets the requirements of section 214(l) of 
the Immigration and Nationality Act (8 U.S.C. 1184)

[[Page 171]]

and paragraphs (a)(2) and (e) of this section.
    (e) Requests for waiver from a State Department of Public Health, or 
its equivalent, on the basis of Public Law 103-416. (1) Pursuant to 
Public Law 103-416, in the case of an alien who is a graduate of a 
medical school pursuing a program in graduate medical education or 
training, a request for a waiver of the two-year home-country residence 
and physical presence requirement may be made by a State department of 
Public Health, or its equivalent. Such waiver shall be subject to the 
requirements of section 214(l) of the Immigration and Nationality Act (8 
U.S.C. 1194(l)) and this Sec.  41.63.
    (2) With respect to such waiver under Public Law 104-416, if such 
alien is contractually obligated to return to his or her home country 
upon completion of the graduate medical education or training, the 
Secretary of State is to be furnished with a statement in writing that 
the country to which such alien is required to return has no objection 
to such waiver. The no objection statement shall be furnished to the 
Secretary of State in the manner and form set forth in paragraph (d) of 
this section and, additionally, shall bear a notation that it is being 
furnished pursuant to Public Law 103-416.
    (3) The State Department of Public Health, or equivalent agency, 
shall include in the waiver application the following:
    (i) A completed DS-3035. Copies of these forms may be obtained from 
the Visa Office or online at http://www.travel.state.gov.
    (ii) A letter from the Director of the designated State Department 
of Public Health, or its equivalent, which identifies the foreign 
medical graduate by name, country of nationality or country of last 
legal permanent residence, and date of birth, and states that it is in 
the public interest that a waiver of the two-year home residence 
requirement be granted;
    (iii) An employment contract between the foreign medical graduate 
and the health care facility named in the waiver application, to include 
the name and address of the health care facility, and the specific 
geographical area or areas in which the foreign medical graduate will 
practice medicine. The employment contract shall include a statement by 
the foreign medical graduate that he or she agrees to meet the 
requirements set forth in section 214(l) of the Immigration and 
Nationality Act. The term of the employment contract shall be at least 
three years and the geographical areas of employment shall only be in 
areas, within the respective state, designated by the Secretary of 
Health and Human Services as having a shortage of health care 
professionals, unless the waiver request is for an alien who will 
practice medicine in a facility that serves patients who reside in one 
or more geographic areas so designated by the Secretary of Health and 
Human Services without regard to whether such facility is located within 
such a designated geographic area. For the latter situation, which will 
be referred to as ``non-designated requests'', the contract should also 
state that the term of the employment contract shall be at least three 
years and employment shall only be in a facility that serves patients 
who reside in one or more geographic areas so designed by the Secretary 
of Health and Human Services as having a shortage of health care 
professionals.
    (iv) Evidence establishing that the geographic area or areas in the 
state in which the foreign medical graduate will practice medicine or 
where patients who will be served by the foreign medical graduates 
reside, are areas which have been designated by the Secretary of Health 
and Human Services as having a shortage of health care professionals. 
For purposes of this paragraph, the geographic area or areas must be 
designated by the Department of Health and Human Services as a Health 
Professional Shortage Area (``HPSA'') or as a Medically Underserved 
Area/Medically Underserved Population (``MUA/MUP'').
    (v) Copies of all forms IAP 66 or DS-2019 issued to the foreign 
medical graduate seeking the waiver;
    (vi) A copy of the foreign medical graduate's curriculum vitae;
    (vii) If the foreign medical graduate is otherwise contractually 
required to return to his or her home country at the conclusion of the 
graduate medical education or training, a copy of the

[[Page 172]]

statement of no objection from the foreign medical graduate's country of 
nationality or last residence; and,
    (viii) Because of the numerical limitations on the approval of 
waivers under Public Law 103-416, i.e., no more than the maximum number 
of waivers for each State each fiscal year as mandated by law, each 
application from a State Department of Public Health, or its equivalent, 
shall be numbered sequentially, beginning on October 1 of each year. The 
``non-designated'' requests will also be numbered sequentially with 
appropriate identifier.
    (4) The Waiver Review Division shall review the program, policy, and 
foreign relations aspects of the case and forward its recommendation to 
the Secretary of DHS. Except as set forth in paragraph (g)(4) of this 
section, the recommendation of the Waiver Review Division shall 
constitute the recommendation of the Department of State.
    (f) Changed circumstances. An applicant for a waiver on the grounds 
of exceptional hardship or probable persecution on account of race, 
religion, or political opinion, has a continuing obligation to inform 
the Department of Homeland Security of changed circumstances material to 
his or her pending application.
    (g) The Waiver Review Board. (1) The Waiver Review Board (``Board'') 
shall consist of the following persons or their designees:
    (i) The Principal Deputy Assistant Secretary of the Bureau of 
Consular Affairs;
    (ii) The Director of Office of Public Affairs for the Bureau of 
Consular Affairs;
    (iii) The Legislative Management Officer for Consular Affairs, 
Bureau of Legislative Affairs;
    (iv) The Director of the Office of Exchange Coordination and 
Designation in the Bureau of Educational and Cultural Affairs; and
    (v) The Director of the Office of Policy and Evaluation in the 
Bureau of Educational and Cultural Affairs.
    (2) A person who has had substantial prior involvement in a 
particular case referred to the Board may not be appointed to, or serve 
on, the Board for that particular case unless the Bureau of Consular 
Affairs determines that the individual's inclusion on the Board is 
otherwise necessary or practicably unavoidable.
    (3) The Principal Deputy Assistant Secretary of Consular Affairs, or 
his or her designee, shall serve as Board Chairman. No designee under 
this paragraph (g)(3) shall serve for more than 2 years.
    (4) Cases will be referred to the Board at the discretion of the 
Chief, Waiver Review Division, of the Visa Office. The Chief, Waiver 
Review Division, or his or her designee may, at the Chairman's 
discretion, appear and present facts related to the case but shall not 
participate in Board deliberations.
    (5) The Chairman of the Board shall be responsible for convening the 
Board and distributing all necessary information to its members. Upon 
being convened, the Board shall review the case file and weigh the 
request against the program, policy, and foreign relations aspects of 
the case.
    (6) The Bureau of Consular Affairs shall appoint, on a case-by-case 
basis, from among the attorneys in the State Department's Office of 
Legal Advisor one attorney to serve as legal advisor to the Board.
    (7) At the conclusion of its review of the case, the Board shall 
make a written recommendation either to grant or to deny the waiver 
application. The written recommendation of a majority of the Board shall 
constitute the recommendation of the Board. Such recommendation shall be 
promptly transmitted by the Chairman to the Chief, Waiver Review 
Division.
    (8) At the conclusion of its review of the case, the Board shall 
make a written recommendation either to grant or to deny the waiver 
application. The written recommendation of a majority of the Board shall 
constitute the recommendation of the Board. Such recommendation shall be 
promptly transmitted by the Chairman to the Chief, Waiver Review 
Division.

[58 FR 15196, Mar. 19, 1993; 58 FR 18305, Apr. 8, 1993; 58 FR 48448, 
Sept. 16, 1993; 60 FR 16787, 16788, Apr. 3, 1995; 60 FR 53125, Oct. 12, 
1995; 62 FR 19222, Apr. 21, 1997; 62 FR 28803, May 28, 1997. 
Redesignated and amended at 64 FR 54539, 54540, Oct. 7, 1999; 67 FR 
77160, Dec. 17, 2002; 72 FR 10061, Mar. 7, 2007]

[[Page 173]]



                        Subpart H_Transit Aliens



Sec.  41.71  Transit aliens.

    (a) Transit aliens--general. An alien is classifiable as a 
nonimmigrant transit alien under INA 101(a) (15) (C) if the consular 
officer is satisfied that the alien:
    (1) Intends to pass in immediate and continuous transit through the 
United States;
    (2) Is in possession of a common carrier ticket or other evidence of 
transportation arrangements to the alien's destination;
    (3) Is in possession of sufficient funds to carry out the purpose of 
the transit journey, or has sufficient funds otherwise available for 
that purpose; and
    (4) Has permission to enter some country other than the United 
States following the transit through the United States, unless the alien 
submits satisfactory evidence that such advance permission is not 
required.
    (b) Certain aliens in transit to United Nations. An alien within the 
provisions of paragraph (3), (4), or (5) of section 11 of the 
Headquarters Agreement with the United Nations, to whom a visa is to be 
issued for the purpose of applying for admission solely in transit to 
the United Nations Headquarters District, may upon request or at the 
direction of the Secretary of State be issued a nonimmigrant visa 
bearing the symbol C-2. If such a visa is issued, the recipient shall be 
subject to such restrictions on travel within the United States as may 
be provided in regulations prescribed by the Secretary of Homeland 
Security.



              Subpart I_Fiance(e)s and Other Nonimmigrants



Sec.  41.81  Fianc[eacute](e) or spouse of a U.S. citizen 
and derivative children.

    (a) Fianc[eacute](e). An alien is classifiable as a nonimmigrant 
fianc[eacute](e) under INA 101(a)(15)(K)(i) if:
    (1) The consular officer is satisfied that the alien is qualified 
under that provision and the consular officer has received a petition 
filed by a U.S. citizen to confer nonimmigrant status as a 
fianc[eacute](e) on the alien, which has been approved by the DHS under 
INA 214(d), or a notification of such approval from that Service;
    (2) The consular officer has received from the alien the alien's 
sworn statement of ability and intent to conclude a valid marriage with 
the petitioner within 90 days of arrival in the United States; and
    (3) The alien has met all other qualifications in order to receive a 
nonimmigrant visa, including the requirements of paragraph (d) of this 
section.
    (b) Spouse. An alien is classifiable as a nonimmigrant spouse under 
INA 101(a)(15)(K)(ii) when all of the following requirements are met:
    (1) The consular officer is satisfied that the alien is qualified 
under that provision and the consular officer has received a petition 
approved by the DHS pursuant to INA 214(p)(1), that was filed by the 
U.S. citizen spouse of the alien in the United States.
    (2) If the alien's marriage to the U.S. citizen was contracted 
outside of the United States, the alien is applying in the country in 
which the marriage took place, or if there is no consular post in that 
country, then at a consular post designated by the Deputy Assistant 
Secretary of State for Visa Services to accept immigrant visa 
applications for nationals of that country.
    (3) If the marriage was contracted in the United States, the alien 
is applying in a country as provided in part 42, Sec.  42.61 of this 
chapter.
    (4) The alien otherwise has met all applicable requirements in order 
to receive a nonimmigrant visa, including the requirements of paragraph 
(d) of this section.
    (c) Child. An alien is classifiable under INA 101(a)(15)(K)(iii) if:
    (1) The consular officer is satisfied that the alien is the child of 
an alien classified under INA 101(a)(15)(K)(i) or (ii) and is 
accompanying or following to join the principal alien; and
    (2) The alien otherwise has met all other applicable requirements in 
order to receive a nonimmigrant visa, including the requirements of 
paragraph (d) of this section.
    (d) Eligibility as an immigrant required. The consular officer, 
insofar as is practicable, must determine the eligibility of an alien to 
receive a nonimmigrant

[[Page 174]]

visa under paragraphs (a), (b) or (c) of this section as if the alien 
were an applicant for an immigrant visa, except that the alien must be 
exempt from the vaccination requirement of INA 212(a)(1) and the labor 
certification requirement of INA 212(a)(5).

[66 FR 19393, Apr. 16, 2001]



Sec.  41.82  Certain parents and children of section 101(a)(27)(I) 
special immigrants. [Reserved]



Sec.  41.83  Certain witnesses and informants.

    (a) General. An alien shall be classifiable under the provisions of 
INA 101(a)(15)(S) if:
    (1) The consular officer is satisfied that the alien qualifies under 
the provisions of that section; and
    (2)(i) The consular officer has received verification from the 
Department of State, Visa Office, that:
    (A) in the case of INA 101(a)(15)(S)(i) the DHS has certified that 
the alien is accorded such classification, or
    (B) in the case of INA 101(a)(15)(S)(ii) the Assistant Secretary of 
State for Consular Affairs on behalf of the Secretary of State and the 
DHS have certified that the alien is accorded such classification;
    (ii) and the alien is granted an INA 212(d)(1) waiver of any INA 
212(a) ground of ineligibility known at the time of verification.
    (b) Certification of S visa status. The certification of status 
under INA 101(a)(15)(S)(i) by the Secretary of Homeland Security or of 
status under INA 101(a)(15)(S)(ii) by the Secretary of State and the 
Secretary of Homeland Security acting jointly does not establish that 
the alien is eligible to receive a nonimmigrant visa.
    (c) Validity of visa. The period of validity of a visa authorized on 
the basis of paragraph (a) of this section shall not exceed the period 
indicated in the certification required in paragraph (b) and shall not 
in any case exceed the period of three years.

[61 FR 1838, Jan. 24, 1996, as amended at 71 FR 34521, June 15, 2006]



Sec.  41.84  Victims of trafficking in persons.

    (a) Eligibility. An alien may be classifiable as a parent, spouse or 
child under INA 101(a)(15)(T)(ii) if:
    (1) The consular officer is satisfied that the alien has the 
required relationship to an alien who has been granted status by the 
Secretary for Homeland Security under INA 101(a)(15)(T)(i);
    (2) The consular officer is satisfied that the alien is otherwise 
admissible under the immigration laws of the United States; and
    (3) The consular officer has received an DHS-approved I-914, 
Supplement A, evidencing that the alien is the spouse, child, or parent 
of an alien who has been granted status under INA 101(a)(15)(T)(i).
    (b) Visa validity. A qualifying family member may apply for a 
nonimmigrant visa under INA(a)(15)(T)(ii) only during the period in 
which the principal applicant is in status under INA 101(a)(15)(T)(i). 
Any visa issued pursuant to such application shall be valid only for a 
period of three years or until the expiration of the principal alien's 
status as an alien classified under INA 101(a)(15)(T)(i), whichever is 
shorter.

[68 FR 37964, June 26, 2003]



Sec.  41.86  Certain spouses and children of lawful permanent resident aliens.

    (a) Definition of ``remains pending''. For the purposes of this 
section, a visa application ``remains pending'' if the applicant has 
applied for an immigrant visa in accordance with the definition in part 
40, Sec.  40.1(l)(2) and the visa has neither been issued, nor refused 
for any reason under applicable law and regulation.
    (b) Entitlement to classification. A consular officer may classify 
an alien as a nonimmigrant under INA 101(a)(15)(V) if:
    (1) The consular officer has received notification from the 
Department of State or the Department of Justice that a petition to 
accord status to the alien as a spouse or child pursuant to INA 
203(a)(2)(A) was filed on or before December 21, 2000; or
    (2) The alien is eligible to derive benefits pursuant to INA 203(d) 
as a child

[[Page 175]]

of an alien described in paragraph (b)(1) of this section and such alien 
has qualified for V classification; and
    (3) It has been three years or more since the filing date of the 
petition described in paragraph (b)(1) of this section and applicable to 
paragraph (b)(2) of this section and either:
    (i) The petition has not been approved; or
    (ii) If it has been approved, either no immigrant visa number is 
immediately available or the alien's application for adjustment of 
status or the alien's application for a visa remains pending.
    (c) Eligibility as an immigrant required. The consular officer, 
insofar as practicable, must determine the eligibility of an alien 
described in paragraph (b) of this section to receive a nonimmigrant 
visa under INA 101(a)(15)(V), other than an alien who previously has 
been granted V status in the United States by DHS, as if the alien were 
an applicant for an immigrant visa, except that the alien is exempt from 
the vaccination requirement of INA 212(a)(1), the labor certification 
requirement of INA 212(a)(5) and the unlawful presence ineligibility of 
INA 212(a)(9)(B).
    (d) Place of application. Notwithstanding the requirements of Sec.  
41.101, in determining the place of application for an alien seeking a 
visa pursuant to INA 101(a)(15)(V) the requirements of part 42, 
Sec. Sec.  42.61(a) and (b)(1) of this chapter will apply.

[66 FR 19393, Apr. 16, 2001]



               Subpart J_Application for Nonimmigrant Visa



Sec.  41.101  Place of application.

    (a) Application for regular visa made at jurisdictional consular 
office of alien's residence or physical presence. (1) An alien applying 
for a nonimmigrant visa shall make application at a consular office 
having jurisdiction over the alien's place of residence, or if the alien 
is a resident of Taiwan, at the American Institute in Taiwan, unless--
    (i) The alien is physically present in the United States and is 
entitled to apply for issuance or reissuance of a visa under the 
provisions of Sec.  41.111(b); or
    (ii) A consular office having jurisdiction over the area in which 
the alien is physically present but not resident has agreed, as a matter 
of discretion or at the direction of the Department, to accept the 
alien's application; or
    (iii) The alien is subject to INA 222(g) and must apply as set forth 
in paragraph (b) or (c) of this section.
    (2) The Deputy Assistant Secretary of State for Visa Services is 
authorized to designate the geographical area for which each consular 
office possesses jurisdiction to process nonimmigrant visa applications.
    (b) Place of application for persons subject to INA 222(g). 
Notwithstanding the requirements of paragraph (a) of this section, an 
alien whose prior nonimmigrant visa has been voided pursuant to INA 
222(g), who is applying for a new nonimmigrant visa, shall make 
application at a consular office which has jurisdiction in or for the 
country of the alien's nationality unless extraordinary circumstances 
have been determined to exist with respect to that alien as set forth in 
paragraph (c) of this section.
    (c) Exceptions based on extraordinary circumstances. (1) An alien 
physician serving in underserved areas of the United States under the 
provisions of INA 214(l) for whom an application for a waiver of the 2-
year foreign residence requirement and/or a petition to accord H-1B 
status was filed prior to the end of the alien's authorized period of 
stay and was subsequently approved, but whose authorized stay expired 
during the adjudication of such application(s), shall make application 
in accordance with paragraph (a) of this section.
    (2) Any other individual or group whose circumstances are determined 
to be extraordinary, in accordance with paragraph (d)(1) of this 
section, by the Deputy Assistant Secretary for Visa Services upon the 
favorable recommendation of an immigration or consular officer, shall 
make application in accordance with paragraph (a) of this section.
    (3) An alien who has, or immediately prior to the alien's last entry 
into the United States had, a residence in a country other than the 
country of the

[[Page 176]]

alien's nationality shall apply at a consular office with jurisdiction 
in or for the country of residence.
    (4) An alien who is a national and resident of a country in which 
there is no United States consular office shall apply at a consular 
office designated by the Deputy Assistant Secretary for Visa Services to 
accept immigrant visa applications from persons of that nationality.
    (5) An alien who possesses more than one nationality and who has, or 
immediately prior to the alien's last entry into the United States had, 
a residence in one of the countries of the alien's nationality shall 
apply at a consular office in the country of such residence.
    (d) Definitions relevant to INA 222(g). (1) Extraordinary 
circumstances--Extraordinary circumstances may be found where compelling 
humanitarian or national interests exist or where necessary for the 
effective administration of the immigration laws. Extraordinary 
circumstances shall not be found upon the basis of convenience or 
financial burden to the alien, the alien's relative, or the alien's 
employer.
    (2) Nationality--For purposes of paragraph (b) of this section, a 
stateless person shall be considered to be a national of the country 
which issued the alien's travel document.
    (e) Regular visa defined. ``Regular visa'' means a nonimmigrant visa 
of any classification which does not bear the title ``Diplomatic'' or 
``Official.'' A nonimmigrant visa is issued as a regular visa unless the 
alien falls within one of the classes entitled to a diplomatic or an 
official visa as described in Sec.  41.26(c) or Sec.  41.27(c).
    (f) [Reserved]

[52 FR 42597, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988, as amended at 61 
FR 1522, Jan. 22, 1996; 61 FR 53058, Oct. 10, 1996; 61 FR 56439, Nov. 1, 
1996; 63 FR 671, Jan. 7, 1998; 63 FR 36366, July 6, 1998; 65 FR 14771, 
Mar. 17, 2000; 66 FR 38542, July 25, 2001; 67 FR 66046, Oct. 30, 2002; 
85 FR 38321, June 26, 2020]



Sec.  41.102  Personal appearance of applicant.

    (a) Except when the requirement of personal appearance has been 
waived pursuant to paragraph (b), (c), or (d) of this section, each 
applicant for a nonimmigrant visa who is at least 14 years of age and 
not more than 79 years of age must personally appear before and be 
interviewed by a consular officer, who shall determine on the basis of 
the applicant's representations, the visa application and other relevant 
documentation:
    (1) The proper nonimmigrant classification, if any, of the alien; 
and
    (2) The alien's eligibility to receive a visa.
    (b) Waivers of personal appearance by consular officers. Except as 
provided in paragraph (e) of this section or as otherwise instructed by 
the Deputy Assistant Secretary of State for Visa Services, a consular 
officer may waive the requirement of personal appearance if the consular 
officer concludes the alien presents no national security concerns 
requiring an interview and:
    (1) Is within a class of nonimmigrants classifiable under the visa 
symbols A-1, A-2, C-2, C-3 (except attendants, servants, or personal 
employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, 
NATO-3, NATO-4, NATO-5, NATO-6, or is a Taipei Economic and Cultural 
Representative Office (TECRO) nonimmigrant classifiable under visa 
symbol E-1, and is seeking a visa in such classification; or
    (2) Is an applicant for a diplomatic or official visa as described 
in Sec.  41.26 or Sec.  41.27 of this chapter; or
    (3) Is an applicant who is within 12 months of the expiration of the 
applicant's previously issued visa and:
    (i) Is seeking re-issuance of a nonimmigrant visa in the same 
classification;
    (ii) Is applying at the consular post of the applicant's usual 
residence; and
    (iii) Is an applicant for whom the consular officer has no 
indication of visa ineligibility or of noncompliance with U.S. 
immigration laws and regulations.
    (c) Waivers of personal appearance in the national interest. Except 
as provided in paragraph (e) of this section, the Secretary may waive 
the requirement of personal appearance of an individual applicant or a 
class of applicants if the Secretary determines that such waiver is in 
the national interest of the United States.

[[Page 177]]

    (d) Waivers of personal appearance in unusual or emergent 
circumstances. Except as provided in paragraph (e) of this section, the 
Deputy Assistant Secretary for Visa Services may waive the requirement 
of personal appearance of an individual applicant or a class of 
applicants if the Deputy Assistant Secretary determines that such waiver 
is necessary as a result of unusual or emergent circumstances.
    (e) Cases in which personal appearance may not be waived. Except for 
a nonimmigrant applicant whose personal appearance is waived under 
paragraphs (b)(1), (b)(2), or (c) of this section, the personal 
appearance requirement may not be waived for:
    (1) Any nonimmigrant applicant who is not a national or resident of 
the country in which he or she is applying.
    (2) Any nonimmigrant applicant who was previously refused a visa, is 
listed in CLASS, or otherwise requires a Security Advisory Opinion, 
unless:
    (i) The visa was refused and the refusal was subsequently overcome; 
or
    (ii) The alien was found inadmissible, but the inadmissibility was 
waived.
    (3) Any nonimmigrant applicant who is from a country designated by 
the Secretary of State as a state sponsor of terrorism, regardless of 
age, or who is a member of a group or sector designated by the Secretary 
of State under section 222(h)(2)(F) of the Immigration and Nationality 
Act.

[80 FR 69589, Nov. 10, 2015]



Sec.  41.103  Filing an application.

    (a) Filing an application--(1) Filing of application required. Every 
alien seeking a nonimmigrant visa must make an electronic application on 
Form DS-160 or, as directed by a consular officer, an application on 
Form DS-156. The Form DS-160 must be signed electronically by clicking 
the box designated ``Sign Application'' in the certification section of 
the application.
    (2) Filing of an electronic application (Form DS-160) or Form DS-156 
by alien under 16 or physically incapable. The application for an alien 
under 16 years of age or one physically incapable of completing an 
application may be completed and executed by the alien's parent or 
guardian, or if the alien has no parent or guardian, by any person 
having legal custody of, or a legitimate interest in, the alien.
    (3) Waiver of filing of application when personal appearance is 
waived. Even if personal appearance of a visa applicant is waived 
pursuant to 22 CFR 41.102, the requirement for filing an application is 
not waived.
    (b) Application--(1) Preparation of Electronic Nonimmigrant Visa 
Application (Form DS-160) or, alternatively, Form DS-156. The consular 
officer shall ensure that the application is fully and properly 
completed in accordance with the applicable regulations and 
instructions.
    (2) Additional requirements and information as part of application. 
Applicants who are required to appear for a personal interview must 
provide a biometric, which will serve to authenticate identity and 
additionally verify the accuracy and truthfulness of the statements in 
the application at the time of interview. The consular officer may 
require the submission of additional necessary information or question 
an alien on any relevant matter whenever the consular officer believes 
that the information provided in the application is inadequate to permit 
a determination of the alien's eligibility to receive a nonimmigrant 
visa. Additional statements made by the alien become a part of the visa 
application. All documents required by the consular officer under the 
authority of Sec.  41.105(a) are considered papers submitted with the 
alien's application within the meaning of INA 221(g)(1).
    (3) Signature. The Form DS-160 shall be signed electronically by 
clicking the box designated ``Sign Application'' in the certification 
section of the application. This electronic signature attests to the 
applicant's familiarity with and intent to be bound by all statements in 
the NIV application under penalty of perjury. Alternatively, except as 
provided in paragraph (a)(2) of this section, the Form DS-156 shall be 
signed by the applicant, with intent to be bound by all statement in the 
NIV application under penalty of perjury.
    (4) Registration. The Form DS-160 or the Form DS-156, when duly 
executed, constitutes the alien's registration for the purposes of INA 
221(b).

[73 FR 23068, Apr. 29, 2008]

[[Page 178]]



Sec.  41.104  Passport requirements.

    (a) Passports defined. ``Passport'' as defined in INA 101(a)(30) is 
not limited to a national passport or to a single document. A passport 
may consist of two or more documents which, when considered together, 
fulfill the requirements of a passport, provided that the documentary 
evidence of permission to enter a foreign country has been issued by a 
competent authority and clearly meets the requirements of INA 
101(a)(30).
    (b) Passport requirement. Except for certain persons in the A, C-3, 
G, and NATO classifications and persons for whom the passport 
requirement has been waived pursuant to the provisions of INA 212(d)(4), 
every applicant for a nonimmigrant visa is required to present a 
passport, as defined above and in INA 101(a)(30), which is valid for the 
period required by INA 212(a)(7)(B)(i)(I).
    (c) A single passport including more than one person. The passport 
requirement for a nonimmigrant visa may be met by the presentation of a 
passport including more than one person, if such inclusion is authorized 
under the laws or regulations of the issuing authority and if a 
photograph of each visa applicant 16 years of age or over has been 
attached to the passport by the issuing authority.
    (d) Applicants for diplomatic visas. Every applicant for a 
diplomatic visa must present a diplomatic passport, or the equivalent 
thereof, having the period of validity required by INA 
212(a)(7)(B)(i)(I), unless such requirement has been waived pursuant to 
the authority contained in INA 212(d)(4) or unless the case falls within 
the provisions of Sec.  41.21(b).

[52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991; 61 
FR 1522, Jan. 22, 1996; 61 FR 53058, Oct. 10, 1996; 66 FR 38543, July 
25, 2001; 67 FR 66046, Oct. 30, 2002]



Sec.  41.105  Supporting documents and fingerprinting.

    (a) Supporting documents--(1) Authority to require documents. The 
consular officer is authorized to require documents considered necessary 
to establish the alien's eligibility to receive a nonimmigrant visa. All 
documents and other evidence presented by the alien, including briefs 
submitted by attorneys or other representatives, shall be considered by 
the consular officer.
    (2) Unobtainable documents. If the consular officer is satisfied 
that a document or record required under the authority of this section 
is unobtainable, the consular officer may accept satisfactory 
alternative pertinent evidence. A document or other record shall be 
considered unobtainable if it cannot be procured without causing the 
applicant or a member of the applicant's family actual hardship as 
distinct from normal delay and inconvenience.
    (3) Photographs required. Every applicant for a nonimmigrant visa 
must furnish a photograph in such numbers as the consular officer may 
require. Photographs must be a reasonable likeness, 1\1/2\ by 1\1/2\ 
inches in size, unmounted, and showing a full, front-face view of the 
applicant against a light background. At the discretion of the consular 
officer, head coverings may be permitted provided they do not interfere 
with the full, front-face view of the applicant. The applicant must sign 
(full name) on the reverse side of the photographs. The consular officer 
may use a previously submitted photograph, if he is satisfied that it 
bears a reasonable likeness to the applicant.
    (4) Police certificates. A police certificate is a certification by 
the police or other appropriate authorities stating what, if anything, 
their records show concerning the alien. An applicant for a nonimmigrant 
visa is required to present a police certificate if the consular officer 
has reason to believe that a police or criminal record exists, except 
that no police certificate is required in the case of an alien who is 
within a class of nonimmigrants classifiable under visa symbols A-1, A-
2, C-3, G-1 through G-4, NATO-1 through NATO-4 or NATO-6.
    (b) Fingerprinting. Every applicant for a nonimmigrant visa must 
furnish fingerprints, as required by the consular officer.

[52 FR 42597, Nov. 5, 1987; 53 FR 9112, 9172, Mar. 21, 1988, as amended 
at 61 FR 1522, Jan. 22, 1996; 61 FR 53058, Oct. 10, 1996; 64 FR 13510, 
Mar. 19, 1999; 67 FR 8478, Feb. 25, 2002; 72 FR 74175, Dec. 31, 2007; 73 
FR 49092, Aug. 20, 2008]

[[Page 179]]



Sec.  41.106  Processing.

    Consular officers must ensure that the Form DS-160 or, 
alternatively, Form DS-156 is properly and promptly processed in 
accordance with the applicable regulations and instructions.

[73 FR 23069, Apr. 29, 2008]



Sec.  41.107  Visa fees.

    (a) Fees based on reciprocity. The fees for the issuance of visas, 
including official visas, to nonimmigrant nationals or stateless 
residents of each foreign country shall be collected in the amounts 
prescribed by the Secretary of State unless, on the basis of 
reciprocity, no fee is chargeable. If practicable, fees will correspond 
to the total amount of all visa, entry, residence, or other similar 
fees, taxes or charges assessed or levied against nationals of the 
United States by the foreign countries of which such nonimmigrants are 
nationals or stateless residents.
    (b) Fees when more than one alien included in visa. A single 
nonimmigrant visa may be issued to include all eligible family members 
if the spouse and unmarried minor children of a principal alien are 
included in one passport. Each alien must execute a separate 
application. The name of each family member shall be inserted in the 
space provided in the visa stamp. The visa fee to be collected shall 
equal the total of the fees prescribed by the Secretary of State for 
each alien included in the visa, unless upon a basis of reciprocity a 
lesser fee is chargeable.
    (c) Certain aliens exempted from fees. (1) Upon a basis of 
reciprocity, or as provided in section 13(a) of the Headquarters 
Agreement with the United Nations (61 Stat. 716; 22 U.S.C. 287, Note), 
no fee shall be collected for the application for or issuance of a 
nonimmigrant visa to an alien who is within a class of nonimmigrants 
classifiable under the visa symbols A, G, C-2, C-3, or NATO, or B-1 
issued for participation in an official observer mission to the United 
Nations, or who is issued a diplomatic visa as defined in Sec.  41.26.
    (2) The consular officer shall waive the nonimmigrant visa 
application and issuance fees for an alien who will be engaging in 
charitable activities for a charitable organization upon the written 
request of the charitable organization claiming that it will find the 
fees a financial burden, if the consular officer is satisfied that:
    (i) The organization seeking relief from the fees is, if based in 
the United States, tax-exempt as a charitable organization under the 
provisions of section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 
501(c)(3)); if a foreign organization based outside the United States in 
a country having laws according recognition to charitable institutions, 
that it establishes that it is recognized as a charitable institution by 
that government; and if a foreign organization based in a country 
without such laws, that it is engaged in activities substantially 
similar to those underlying section 501(c)(3), and
    (ii) The charitable activities in which the alien will engage are 
specified and will be a part of, or will be related to and in support 
of, the organization's provision of services, including but not limited 
to health care, food and housing, job training, and similar direct 
services and assistance to the poor and needy, and
    (iii) The request includes the location of the proposed activities, 
the number and identifying data of each of the alien(s) who will be 
applying for visas, and
    (iv) The proposed duration of the alien(s)'s temporary stay in the 
United States is reasonably consistent with the charitable purpose for 
which the alien(s) seek to enter the United States.
    (3) Foreign national employees of the U. S. Government who are 
travelling to the United States on official business in connection with 
that employment.
    (d) Refund of fees. A fee collected for the issuance of a 
nonimmigrant visa is refundable only if the principal officer at a post 
or the officer in charge of a consular section determines that the visa 
was issued in error or could not be used as a result of action taken by 
the U.S. Government for which the alien was not responsible and over 
which the alien had no control.
    (e)(1) Visa processing surcharge. In addition to the collection of 
the fee prescribed in paragraph (a) of this section,

[[Page 180]]

a consular officer shall collect or ensure the collection of a surcharge 
for the processing of applications for machine readable nonimmigrant 
visas and for machine readable combined border crossing cards in the 
amount specified by the Secretary of State from such applicants as the 
Secretary of State shall designate. Such surcharge is refundable only 
if, as a result of action taken by the U.S. Government for which the 
alien was not responsible and over which the alien had no control, the 
alien's application is not processed.
    (2) Notwithstanding paragraph (e)(1) of this section, a consular 
officer shall collect or insure the collection of a processing fee for a 
machine-readable combined border crossing card and nonimmigrant visa in 
an amount determined by the Secretary and set forth in 22 CFR 22.1 to be 
sufficient only to cover the cost for manufacturing the combined card 
and visa if:
    (i) The alien is a Mexican citizen under the age of 15;
    (ii) The alien is applying in Mexico; and
    (iii) The alien has at least one parent or guardian who has a visa 
or is applying for a machine-readable combined border crossing card and 
visa.

[52 FR 42597, Nov. 5, 1987, as amended at 59 FR 25325, May 16, 1994; 63 
FR 24108, May 1, 1998; 63 FR 52970, Oct. 2, 1998; 65 FR 52307, Aug. 29, 
2000; 66 FR 17511, Apr. 2, 2001; 66 FR 38543, July 25, 2001; 67 FR 
38893, June 6, 2002; 67 FR 66046, Oct. 30, 2002]



Sec.  41.108  Medical examination.

    (a) Requirements for medical examination. An applicant for a 
nonimmigrant visa shall be required to take a medical examination if:
    (1) The alien is an applicant for a K nonimmigrant visa as a 
fiance(e) of a U.S. citizen or as the child of such an applicant; or,
    (2) The alien is seeking admission for medical treatment and the 
consular officer considers a medical examination advisable; or,
    (3) The consular officer has reason to believe that a medical 
examination might disclose that the alien is medically ineligible to 
receive a visa.
    (b) Examination by panel physician. The required examination, which 
must be carried out in accordance with United States Public Health 
Service regulations, shall be conducted by a physician selected by the 
alien from a panel of physicians approved by the consular officer or, if 
the alien is in the United States, by a medical officer of the United 
States Public Health Service or by a contract physician from a list of 
physicians approved by the DHS for the examination of INA 245 adjustment 
of status applicants.
    (c) Panel physician facility requirements. A consular officer may 
not include the name of a physician on the panel of physicians referred 
to in paragraph (b) of this section unless the physician has facilities 
to perform required serological and X-ray tests or is in a position to 
refer applicants to a qualified laboratory for such tests.



                 Subpart K_Issuance of Nonimmigrant Visa



Sec.  41.111  Authority to issue visa.

    (a) Issuance outside the United States. Any consular officer is 
authorized to issue regular and official visas. Diplomatic visas may be 
issued only by:
    (1) A consular officer attached to a U.S. diplomatic mission, if 
authorized to do so by the Chief of Mission; or
    (2) A consular officer assigned to a consular office under the 
jurisdiction of a diplomatic mission, if so authorized by the Department 
or the Chief, Deputy Chief, or Counselor for Consular Affairs of that 
mission, or, if assigned to a consular post not under the jurisdiction 
of a diplomatic mission, by the principal officer of that post.
    (b) Issuance in the United States in certain cases. The Deputy 
Assistant Secretary for Visa Services and such officers of the 
Department as the former may designate are authorized, in their 
discretion, to issue nonimmigrant visas, including diplomatic visas, to:
    (1) Qualified aliens who are currently maintaining status and are 
properly classifiable in the A, C-2, C-3, G or NATO category and intend 
to reenter the United States in that status after a temporary absence 
abroad and who also present evidence that:
    (i) They have been lawfully admitted in that status or have, after 
admission, had their classification changed to that status; and

[[Page 181]]

    (ii) Their period of authorized stay in the United States in that 
status has not expired; and
    (2) Other qualified aliens who:
    (i) Are currently maintaining status in the E, H, I, L, O, or P 
nonimmigrant category;
    (ii) Intend to reenter the United States in that status after a 
temporary absence abroad; and
    (iii) Who also present evidence that:
    (A) They were previously issued visas at a consular office abroad 
and admitted to the United States in the status which they are currently 
maintaining; and
    (B) Their period of authorized admission in that status has not 
expired.

[52 FR 42597, Nov. 5, 1987, as amended at 66 FR 12738, Feb. 28, 2001]



Sec.  41.112  Validity of visa.

    (a) Significance of period of validity of visa. The period of 
validity of a nonimmigrant visa is the period during which the alien may 
use it in making application for admission. The period of visa validity 
has no relation to the period of time the immigration authorities at a 
port of entry may authorize the alien to stay in the United States.
    (b) Validity of visa and number of applications for admission. (1) 
Except as provided in paragraphs (c) and (d) of this section, a 
nonimmigrant visa shall have the validity prescribed in schedules 
provided to consular officers by the Department, reflecting insofar as 
practicable the reciprocal treatment accorded U.S. nationals, U.S. 
permanent residents, or aliens granted refugee status in the U.S. by the 
government of the country of which the alien is a national, permanent 
resident, refugee or stateless resident.
    (2) Notwithstanding paragraph (b)(1) of this section, United States 
nonimmigrant visas shall have a maximum validity period of 10 years.
    (3) An unexpired visa is valid for application for admission even if 
the passport in which the visa is stamped has expired, provided the 
alien is also in possession of a valid passport issued by the 
authorities of the country of which the alien is a national.
    (c) Limitation on validity. If warranted in an individual case, a 
consular officer may issue a nonimmigrant visa for:
    (1) A period of validity that is less than that prescribed on a 
basis of reciprocity,
    (2) A number of applications for admission within the period of the 
validity of the visa that is less than that prescribed on a basis of 
reciprocity,
    (3) Application for admission at a specified port or at specified 
ports of entry, or
    (4) Use on and after a given date subsequent to the date of 
issuance.
    (d) Automatic extension of validity at ports of entry. (1) Provided 
that the requirements set out in paragraph (d)(2) of this section are 
fully met, the following provisions apply to nonimmigrant aliens seeking 
readmission at ports of entry:
    (i) The validity of an expired nonimmigrant visa issued under INA 
101(a)(15) may be considered to be automatically extended to the date of 
application for readmission; and
    (ii) In cases where the original nonimmigrant classification of an 
alien has been changed by DHS to another nonimmigrant classification, 
the validity of an expired or unexpired nonimmigrant visa may be 
considered to be automatically extended to the date of application for 
readmission, and the visa may be converted as necessary to that changed 
classification.
    (2) The provisions in paragraph (d)(1) of this section are 
applicable only in the case of a nonimmigrant alien who:
    (i) Is in possession of a Form I-94, Arrival-Departure Record, 
endorsed by DHS to show an unexpired period of initial admission or 
extension of stay, or, in the case of a qualified F or J student or 
exchange visitor or the accompanying spouse or child of such an alien, 
is in possession of a current Form I-20, Certificate of Eligibility for 
Nonimmigrant Student Status, or Form IAP-66, Certificate of Eligibility 
for Exchange Visitor Status, issued by the school the student has been 
authorized to attend by DHS, or by the sponsor of the exchange program 
in which the alien has been authorized to participate by DHS, and 
endorsed by the

[[Page 182]]

issuing school official or program sponsor to indicate the period of 
initial admission or extension of stay authorized by DHS;
    (ii) Is applying for readmission after an absence not exceeding 30 
days solely in contiguous territory, or, in the case of a student or 
exchange visitor or accompanying spouse or child meeting the 
stipulations of paragraph (d)(2)(i) of this section, after an absence 
not exceeding 30 days in contiguous territory or adjacent islands other 
than Cuba;
    (iii) Has maintained and intends to resume nonimmigrant status;
    (iv) Is applying for readmission within the authorized period of 
initial admission or extension of stay;
    (v) Is in possession of a valid passport;
    (vi) Does not require authorization for admission under INA 
212(d)(3); and
    (vii) Has not applied for a new visa while abroad.
    (3) The provisions in paragraphs (d)(1) and (d)(2) of this section 
shall not apply to the nationals of countries identified as supporting 
terrorism in the Department's annual report to Congress entitled 
Patterns of Global Terrorism.

[52 FR 42597, Nov. 5, 1987; 53 FR 9112, 9172, Mar. 21, 1988, as amended 
at 55 FR 36028, Oct. 31, 1990; 62 FR 24332, May 5, 1997; 66 FR 38543, 
July 25, 2001; 67 FR 10323, Mar. 7, 2002; 67 FR 66046, Oct. 30, 2002]



Sec.  41.113  Procedures in issuing visas.

    (a) Evidence of visa. Except as provided in paragraph (b) of this 
section, a nonimmigrant visa shall be evidenced by a physical visa 
placed in the alien's passport or by an electronic visa located in the 
Department's records. The appropriate symbol as prescribed in Sec.  
41.12, showing the classification of the alien, shall be entered on the 
visa.
    (b) Cases in which a physical visa is not placed in passport. In the 
following cases a physical visa shall be placed on the prescribed Form 
DS-232. In issuing such a visa, a notation shall be made on the Form DS-
232 on which the visa is placed, specifying the pertinent subparagraph 
of this paragraph under which the action is taken.
    (1) The alien's passport was issued by a government with which the 
United States does not have formal diplomatic relations, unless the 
Department has specifically authorized the placing of the visa in such 
passport;
    (2) The passport requirement has been waived; or
    (3) In other cases as authorized by the Department.
    (c) Visa format. A machine-readable visa shall be in the format 
designated by the Department, and contain, at a minimum, the following 
data:
    (1) Full name of the applicant;
    (2) Visa type/class;
    (3) Location of the visa issuing office;
    (4) Passport number;
    (5) Sex;
    (6) Date of birth;
    (7) Nationality;
    (8) Number of applications for admission authorized, or the letter 
``M'' for multiple applications for admission authorized;
    (9) Date of issuance;
    (10) Date of expiration;
    (11) Visa control number.
    (d) Insertion of name, petition, and derivative status notation. (1) 
The surname and given name of the visa recipient shall be shown on the 
visa in the space provided.
    (2) If the visa is being issued upon the basis of a petition 
approved by the Secretary of Homeland Security, the number of the 
petition, if any, the period for which the 'alien's admission has been 
authorized, and the name of the petitioner shall be reflected in the 
annotation field on the visa.
    (3) In the case of an alien who derives status from a principal 
alien, the name of the principal alien and of the petitioner shall be 
reflected in the annotation field of the visa.
    (e) Period of validity. If a nonimmigrant visa is issued for an 
unlimited number of applications for admission within the period of 
validity, the letter ``M'' shall be shown under the word ``entries''. 
Otherwise the number of permitted applications for admission shall be 
identified numerically. The date of issuance and the date of expiration 
of the visa shall be shown at the appropriate places in the visa by day, 
month, and year in that order. The standard three letter abbreviation 
for the month shall be used in all cases.
    (f) Restriction to specified port(s) of entry. If a nonimmigrant 
visa is valid

[[Page 183]]

for admission only at one or more specified ports of entry, the names of 
those ports shall be entered in the annotation field. In cases where 
there is insufficient room to list the port(s) of entry, they shall be 
listed by hand on a clean passport page. Reference shall be made in the 
visa's annotation field citing the passport page upon which the port(s) 
of entry are listed.
    (g) Delivery of visa. In issuing a nonimmigrant visa, the consular 
officer should deliver the passport containing the visa, or the 
prescribed Form DS-232 which bears the visa, to the alien or to the 
alien's authorized representative. Any relevant evidence furnished by 
the alien in accordance with Sec.  41.103(b) should be retained, as 
required or necessary.
    (h) Disposition of supporting documents. Original supporting 
documents furnished by the alien should be returned for presentation, if 
necessary, to the immigration authorities at the port of entry. 
Duplicate copies may be retained in the consular system, as required or 
necessary.
    (i) Review of nonimmigrant visa issuances. Nonimmigrant visa 
issuances must be reviewed, in accordance with guidance by the Secretary 
of State, by consular supervisors, or a designated alternate, to ensure 
compliance with applicable laws and procedures.

[80 FR 67315, Nov. 2, 2015]



                   Subpart L_Refusals and Revocations



Sec.  41.121  Refusal of nonimmigrant visas.

    (a) Grounds for refusal. Nonimmigrant visa refusals must be based on 
legal grounds, such as one or more provisions of INA 212(a), INA 212(e), 
INA 214(b) or (f) or (l) (as added by Section 625 of Pub. L. 104-208), 
INA 221(g), INA 222(g), or other applicable law. Certain classes of 
nonimmigrant aliens are exempted from specific provisions of INA 212(a) 
under INA 102 and, upon a basis of reciprocity, under INA 212(d)(8). 
When a visa application has been properly completed and executed in 
accordance with the provisions of the INA and the implementing 
regulations, the consular officer must issue the visa, refuse the visa, 
or, pursuant to an outstanding order under INA 243(d), discontinue 
granting the visa.
    (b) Refusal procedure. (1) When a consular officer knows or has 
reason to believe a visa applicant is ineligible and refuses the 
issuance of a visa, he or she must inform the alien of the ground(s) of 
ineligibility (unless disclosure is barred under INA 212(b)(2) or (3)) 
and whether there is, in law or regulations, a mechanism (such as a 
waiver) to overcome the refusal. The officer shall note the reason for 
the refusal on the application. Upon refusing the nonimmigrant visa, the 
consular officer shall retain the original of each document upon which 
the refusal was based, as well as each document indicating a possible 
ground of ineligibility, and should return all other supporting 
documents supplied by the applicant.
    (2) If an alien, who has not yet filed a visa application, seeks 
advice from a consular officer, who knows or has reason to believe that 
the alien is ineligible to receive a visa on grounds which cannot be 
overcome by the presentation of additional evidence, the officer shall 
so inform the alien. The consular officer shall inform the applicant of 
the provision of law or regulations upon which a refusal of a visa, if 
applied for, would be based (subject to the exception in paragraph 
(b)(1) of this section). If practicable, the consular officer should 
request the alien to execute a nonimmigrant visa application in order to 
make a formal refusal. If the individual fails to execute a visa 
application in these circumstances, the consular officer shall treat the 
matter as if a visa had been refused and create a record of the presumed 
ineligibility which shall be filed in the consular office.
    (c) Nonimmigrant refusals must be reviewed, in accordance with 
guidance by the Secretary of State, by consular supervisors, or a 
designated alternate, to ensure compliance with laws and procedures. If 
the ground(s) of ineligibility upon which the visa was refused cannot be 
overcome by the presentation of additional evidence, the refusal must be 
reviewed without delay; that is, on the day of the refusal or as soon as 
it is administratively possible. If the ground(s) of ineligibility may 
be

[[Page 184]]

overcome by the presentation of additional evidence, and the applicant 
has indicated the intention to submit such evidence, a review of the 
refusal may be deferred for not more than 120 days. If the reviewing 
officer disagrees with the decision and he or she has a consular 
commission and title, the reviewing officer can assume responsibility 
and readjudicate the case. If the reviewing officer does not have a 
consular commission and title, he or she must consult with the 
adjudicating officer, or with the Visa Office, to resolve any 
disagreement.
    (d) Review of refusal by Department. The Department may request a 
consular officer in a specific case or in specified classes of cases to 
submit a report if a visa has been refused. The Department will review 
each report and may furnish an advisory opinion to the consular officer 
for assistance in considering the case further. If the officer believes 
that action contrary to an advisory opinion should be taken, the case 
shall be resubmitted to the Department with an explanation of the 
proposed action. Rulings of the Department concerning an interpretation 
of law, as distinguished from an application of the law to the facts, 
shall be binding upon consular officers.

[52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991; 63 
FR 671, Jan. 7, 1998; 66 FR 10364, Feb. 15, 2001; 71 FR 50339, Aug. 25, 
2006; 84 FR 16612, Apr. 22, 2019]



Sec.  41.122  Revocation of visas.

    (a) Grounds for revocation by consular officers. A consular officer, 
the Secretary, or a Department official to whom the Secretary has 
delegated this authority is authorized to revoke a nonimmigrant visa at 
any time, in his or her discretion.
    (b) Provisional revocation--(1) General. A provisional revocation is 
subject to reversal through internal procedures established by the 
Department of State. Upon reversal of the revocation, the visa 
immediately resumes the validity provided for on its face. Provisional 
revocation shall have the same force and effect as any other visa 
revocation under INA 221(i), unless and until the revocation has been 
reversed. Neither the provisional revocation of a visa nor the reversal 
of a provisional revocation limits, in any way, the revocation authority 
provided for under INA 221(i), with respect to the particular visa or 
any other visa.
    (2) Pending visa eligibility determination. A consular officer, the 
Secretary, or any Department official to whom the Secretary has 
delegated this authority may provisionally revoke a nonimmigrant visa 
while considering information related to whether a visa holder is 
eligible for the visa.
    (3) Automatic provisional revocation based on failure to comply with 
all EVUS requirements. Visas held by individuals subject to the 
Electronic Visa Update System (EVUS) who have not complied with the 
conditions described in 8 CFR 215.24 or whose notification of compliance 
has expired or been rescinded are automatically provisionally revoked 
and are no longer valid for travel to the United States, without further 
notice to the visa holder. The automatic provisional revocation pursuant 
to this paragraph (b)(3) shall be automatically reversed upon compliance 
with EVUS requirements set out at 8 CFR part 215, subpart B, as 
confirmed by receipt of a notification of compliance. A visa revoked on 
grounds other than failure to comply with EVUS shall remain revoked, 
notwithstanding compliance with EVUS.
    (c) Notice of revocation. Unless otherwise instructed by the 
Department, a consular officer shall, if practicable, notify the alien 
to whom the visa was issued that the visa was revoked or provisionally 
revoked. Regardless of delivery of such notice, once the revocation has 
been entered into the Department's Consular Lookout and Support System 
(CLASS), the visa is no longer to be considered valid for travel to the 
United States. The date of the revocation shall be indicated in CLASS 
and on any notice sent to the alien to whom the visa was issued. This 
paragraph (c) does not apply to provisional revocations under paragraph 
(b)(3) of this section.
    (d) Procedure for physically canceling visas. Except for provisional 
revocations pursuant to paragraph (b)(3) of this section, a nonimmigrant 
visa that is revoked shall be canceled by writing or stamping the word 
``REVOKED'' plainly across the face of the visa, if

[[Page 185]]

the visa is available to the consular officer. The failure or inability 
to physically cancel the visa does not affect the validity of the 
revocation.
    (e) Revocation of visa by immigration officer. An immigration 
officer is authorized to revoke a valid visa by physically canceling it 
in accordance with the procedure described in paragraph (d) of this 
section if:
    (1) The alien obtains an immigrant visa or an adjustment of status 
to that of permanent resident;
    (2) The alien is ordered excluded from the United States under INA 
236, as in effect prior to April 1, 1997, or removed from the United 
States pursuant to INA 235;
    (3) The alien is notified pursuant to INA 235 by an immigration 
officer at a port of entry that the alien appears to be inadmissible to 
the United States, and the alien requests and is granted permission to 
withdraw the application for admission;
    (4) A final order of deportation or removal or a final order 
granting voluntary departure with an alternate order of deportation or 
removal is entered against the alien;
    (5) The alien has been permitted by DHS to depart voluntarily from 
the United States;
    (6) DHS has revoked a waiver of inadmissibility granted pursuant to 
INA 212(d)(3)(A) in relation to the visa that was issued to the alien;
    (7) The visa is presented in connection with an application for 
admission to the United States by a person other than the alien to whom 
the visa was issued;
    (8) The visa has been physically removed from the passport in which 
it was issued; or
    (9) The visa has been issued in a combined Mexican or Canadian B-1/
B-2 visa and border crossing identification card, and the immigration 
officer makes the determination specified in Sec.  41.32(c) with respect 
to the alien's Mexican citizenship and/or residence or the determination 
specified in Sec.  41.33(b) with respect to the alien's status as a 
permanent resident of Canada.

[76 FR 23479, Apr. 27, 2011, as amended at 81 FR 72523, Oct. 20, 2016]



Sec.  41.123  Discontinuance of granting nonimmigrant visa 
pursuant to INA 243(d).

    (a) Grounds for discontinuance of granting a visa. Consular officers 
in a country subject to an order by the Secretary under INA 243(d) shall 
discontinue granting nonimmigrant visas for categories of nonimmigrant 
visas specified in the order of the Secretary (or his or her designee), 
and pursuant to procedures dictated by the Department.
    (b) Discontinuance procedure--(1) Applications refused or 
discontinued only. Starting on the day the Secretary's (or designee's) 
order to discontinue granting visas takes effect (effective date), no 
visas falling within the scope of the order, as described by the order, 
may be issued in the referenced country to an applicant who falls within 
the scope of the order, except as otherwise expressly provided in the 
order or related Department instructions. Beginning on the effective 
date, a consular officer must refuse the visa if the individual is not 
eligible for the visa under INA 212(a), INA 221(g), or other applicable 
law, but if the applicant is otherwise eligible, must process the 
application by discontinuing granting, regardless of when the 
application was filed, if the applicant falls within the scope of the 
order and no exception applies. The application processing fee will not 
be refunded. The requirement to discontinue issuance may not be waived, 
and continues until the sanction is terminated as described below.
    (2) Geographic applicability. Visa sanctions under INA 243(d) only 
apply to visa issuance in the country that is sanctioned. If a consular 
officer has a reason to believe that a visa applicant potentially 
subject to INA 243(d) sanctions is applying at a post outside the 
sanctioned country to evade visa sanctions under INA 243(d) (e.g., the 
applicant provides no credible explanation for applying outside the 
country), the consular officer will transfer the case to the consular 
post in the consular district where INA 243(d) sanctions apply, review 
any other applicable Department instructions, and proceed accordingly. 
When cases are transferred to a consular district where INA 243(d) 
sanctions apply, the adjudication will

[[Page 186]]

be subject to the discontinuation of issuance under the sanctions.
    (c) Termination of sanction. The Department shall notify consular 
officers in an affected country when the sanction under INA 243(d) has 
been lifted. After notification, normal consular operations may resume 
consistent with these regulations and guidance from the Department. Once 
the sanction under INA 243(d) is lifted, no new application processing 
fee is required in cases where issuance has been discontinued pursuant 
to an INA 243(d) order, and consular officers in the affected post must 
adjudicate the visa consistent with regulations and Department guidance. 
Consular officers may require applicants to update the visa application 
forms, must conduct any necessary adjudicatory steps, and may re-
interview the applicant to determine eligibility.

[84 FR 16612, Apr. 22, 2019]



PART 42_VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION 
AND NATIONALITY ACT, AS AMENDED--Table of Contents



     Subpart A_Visa and Passport Not Required for Certain Immigrants

Sec.
42.1 Aliens not required to obtain immigrant visas.
42.2 Aliens not required to present passports.

        Subpart B_Classification and Foreign State Chargeability

42.11 Classification symbols.
42.12 Rules of chargeability.

Subpart C_Immigrants Not Subject to Numerical Limitations of INA 201 and 
                                   202

42.21 Immediate relatives.
42.22 Returning resident aliens.
42.23 Certain former U.S. citizens.
42.24 Adoption under the Hague Convention on Protection of Children and 
          Co-operation in Respect of Intercountry Adoption and the 
          Intercountry Adoption Act of 2000.

          Subpart D_Immigrants Subject to Numerical Limitations

42.31 Family-sponsored immigrants.
42.32 Employment-based preference immigrants.
42.33 Diversity immigrants.
42.34 Special immigrant visas--certain U.S. Government employees.

                           Subpart E_Petitions

42.41 Effect of approved petition.
42.42 Petitions for immediate relative or preference status.
42.43 Suspension or termination of action in petition cases.

             Subpart F_Numerical Controls and Priority Dates

42.51 Department control of numerical limitations.
42.52 Post records of visa applications.
42.53 Priority date of individual applicants.
42.54 Order of consideration.
42.55 Reports on numbers and priority dates of applications on record.

                Subpart G_Application for Immigrant Visas

42.61 Place of application.
42.62 Personal appearance and interview of applicant.
42.63 Definitions.
42.64 Passport requirements.
42.65 Supporting documents.
42.66 Medical examination.
42.67 Execution of application, registration, and fingerprinting.
42.68 Informal evaluation of family members if principal applicant 
          precedes them.

                  Subpart H_Issuance of Immigrant Visas

42.71 Authority to issue visas; visa fees.
42.72 Validity of visas.
42.73 Procedure in issuing visas.
42.74 Issuance of new, replacement, or duplicate visas.

     Subpart I_Refusal, Revocation, and Termination of Registration

42.81 Procedure in refusing immigrant visas.
42.82 Revocation of visas.
42.83 Termination of registration.
42.84 Discontinuance of granting immigrant visa pursuant to INA 243(d).

    Authority: 8 U.S.C. 1104 and 1182; Pub. L. 105-277, 112 Stat. 2681; 
Pub. L. 108-449, 118 Stat. 3469; The Convention on Protection of 
Children and Co-operation in Respect of Intercountry Adoption (done at 
the Hague, May 29, 1993), S. Treaty Doc. 105-51 (1998), 1870 U.N.T.S. 
167 (Reg. No. 31922 (1993)); 42 U.S.C. 14901-14954 (Pub. L. 106-279, 114 
Stat. 825); 8 U.S.C. 1101 (Pub. L. 111-287, 124 Stat. 3058); 8 U.S.C. 
1154 (Pub. L. 109-162, 119 Stat.

[[Page 187]]

2960); 8 U.S.C. 1201 (Pub. L. 114-70, 129 Stat. 561).

    Source: 52 FR 42613, Nov. 5, 1987, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 42 appear at 71 FR 
34522, June 15, 2006.



     Subpart A_Visa and Passport Not Required for Certain Immigrants



Sec.  42.1  Aliens not required to obtain immigrant visas.

    An immigrant within any of the following categories is not required 
to obtain an immigrant visa:
    (a) Aliens lawfully admitted for permanent residence. An alien who 
has previously been lawfully admitted for permanent residence and who is 
not required under the regulations of the Department of Homeland 
Security to present a valid immigrant visa upon returning to the United 
States.
    (b) Alien members of U.S. Armed Forces. An alien member of the U.S. 
Armed Forces bearing military identification, who has previously been 
lawfully admitted for permanent residence and is coming to the United 
States under official orders or permit of those Armed Forces.
    (c) Aliens entering from Guam, Puerto Rico, or the Virgin Islands. 
An alien who has previously been lawfully admitted for permanent 
residence who seeks to enter the continental United States or any other 
place under the jurisdiction of the United States directly from Guam, 
Puerto Rico, or the Virgin Islands of the United States.
    (d) Child born after issuance of visa to accompanying parent. An 
alien child born after the issuance of an immigrant visa to an 
accompanying parent, who will arrive in the United States with the 
parent, and apply for admission during the period of validity of the 
visa issued to the parent.
    (e) Child born of a national or lawful permanent resident mother 
during her temporary visit abroad. An alien child born during the 
temporary visit abroad of a mother who is a national or lawful permanent 
resident of the United States if applying for admission within 2 years 
of birth and accompanied by either parent applying and eligible for 
readmission as a permanent resident upon that parent's first return to 
the United States after the child's birth.
    (f) American Indians born in Canada. An American Indian born in 
Canada and having at least 50 per centum of blood of the American Indian 
race.



Sec.  42.2  Aliens not required to present passports.

    An immigrant within any of the following categories is not required 
to present a passport in applying for an immigrant visa:
    (a) Certain relatives of U.S. citizens. An alien who is the spouse, 
unmarried son or daughter, or parent, of a U.S. citizen, unless the 
alien is applying for a visa in the country of which the applicant is a 
national and the possession of a passport is required for departure.
    (b) Returning aliens previously lawfully admitted for permanent 
residence. An alien previously lawfully admitted for permanent residence 
who is returning from a temporary visit abroad, unless the alien is 
applying for a visa in the country of which the applicant is a national 
and the possession of a passport is required for departure.
    (c) Certain relatives of aliens lawfully admitted for permanent 
residence. An alien who is the spouse, unmarried son or daughter, or 
parent of an alien lawfully admitted for permanent residence, unless the 
alien is applying for a visa in the country of which the applicant is a 
national and the possession of a passport is required for departure.
    (d) Stateless persons. An alien who is a stateless person, and 
accompanying spouse and unmarried son or daughter.
    (e) Nationals of Communist-controlled countries. An alien who is a 
national of a Communist-controlled country and who is unable to obtain a 
passport from the government of that country, and accompanying spouse 
and unmarried son or daughter.
    (f) Alien members of U.S. Armed Forces. An alien who is a member of 
the U.S. Armed Forces.
    (g) Beneficiaries of individual waivers. (1) An alien who would be 
within one of the categories described in paragraphs (a) through (d) of 
this section except that the alien is applying for a visa in a country 
of which the applicant is a national and possession of a passport is 
required for departure, in whose case

[[Page 188]]

the passport requirement has been waived by the Secretary of State, as 
evidence by a specific instruction from the Department.
    (2) An alien unable to obtain a passport and not within any of the 
foregoing categories, in whose case the passport requirement imposed by 
Sec.  42.64(b) or by DHS regulations has been waived by the Secretary of 
Homeland Security and the Secretary of State as evidenced by a specific 
instruction from the Department.

[52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49680, Oct. 1, 1991]



        Subpart B_Classification and Foreign State Chargeability



Sec.  42.11  Classification symbols.

    A visa issued to an immigrant alien within one of the classes 
described below shall bear an appropriate visa symbol to show the 
classification of the alien.

                               Immigrants
------------------------------------------------------------------------
       Symbol                    Class                 Section of law
------------------------------------------------------------------------
                           Immediate Relatives
------------------------------------------------------------------------
IR1.................  Spouse of U.S. Citizen.....  201(b).
IR2.................  Child of U.S. Citizen......  201(b).
IR3.................  Orphan Adopted Abroad by     201(b) &
                       U.S. Citizen.                101(b)(1)(F).
IH3.................  Child from Hague Convention  201(b) &
                       Country Adopted Abroad by    101(b)(1)(G).
                       U.S. Citizen.
IR4.................  Orphan to be Adopted in      201(b) &
                       U.S. by U.S. Citizen.        101(b)(1)(F).
IH4.................  Child from Hague Convention  201(b) &
                       Country to be Adopted in     101(b)(1)(G).
                       U.S. by U.S. Citizen.
IR5.................  Parent of U.S. Citizen at    201(b).
                       Least 21 Years of Age.
CR1.................  Spouse of U.S. Citizen       201(b) & 216.
                       (Conditional Status).
CR2.................  Child of U.S. Citizen        201(b) & 216.
                       (Conditional Status).
IW1.................  Certain Spouses of Deceased  201(b).
                       U.S. Citizens.
IW2.................  Child of IW1...............  201(b).
IB1.................  Self-petition Spouse of      204(a)(1)(A)(iii).
                       U.S. Citizen.
IB2.................  Self-petition child of U.S.  204(a)(1)(A)(iv).
                       Citizen.
IB3.................  Child of IB1...............  204(a)(1)(A)(iii).
IB5.................  Self-petition Parent of      204(a)(1)(A)(vii)
                       U.S. Citizen.
VI5.................  Parent of U.S. Citizen Who   201(b) & sec. 2 of
                       Acquired Permanent           the Virgin Islands
                       Resident Status Under the    Nonimmigrant Alien
                       Virgin Islands               Adjustment Act,
                       Nonimmigrant Alien           (Pub. L. 97-271).
                       Adjustment Act.
------------------------------------------------------------------------
                      Vietnam Amerasian Immigrants
------------------------------------------------------------------------
AM1.................  Vietnam Amerasian Principal  584(b)(1)(A) of the
                                                    Foreign Operations,
                                                    Export Financing,
                                                    and Related Programs
                                                    Appropriations Act,
                                                    1988 (as contained
                                                    in section 101(e) of
                                                    Pub. L. 100-102) as
                                                    amended.
AM2.................  Spouse or Child of AM1.....  584(b)(1)(A) and
                                                    584(b)(1)(B) of the
                                                    Foreign Operations,
                                                    Export Financing,
                                                    and Related Programs
                                                    Appropriations Act,
                                                    1988 (as contained
                                                    in section 101(e) of
                                                    Public Law 100-102)
                                                    as amended.
AM3.................  Natural Mother of AM1 (and   584(b)(1)(A) and
                       Spouse or Child of Such      584(b)(1)(C) of the
                       Mother) or Person Who has    Foreign Operations,
                       Acted in Effect as the       Export Financing,
                       Mother, Father, or Next-of-  and Related Programs
                       Kin of AM1 (and Spouse or    Appropriations Act,
                       Child of Such Person).       1988 (as contained
                                                    in section 101(e) of
                                                    Public Law 100-102)
                                                    as amended.
------------------------------------------------------------------------
                           Special Immigrants
------------------------------------------------------------------------
SB1.................  Returning Resident.........  101(a)(27)(A).
SC1.................  Person Who Lost U.S.         101(a)(27)(B) &
                       Citizenship by Marriage.     324(a).
SC2.................  Person Who Lost U.S.         101(a)(27)(B) & 327.
                       Citizenship by Serving in
                       Foreign Armed Forces.
SI1.................  Certain Aliens Employed by   Section 1059 of Pub.
                       the U.S. Government in       L. 109-163 as
                       Iraq or Afghanistan as       amended by Pub. L.
                       Translators or               110-36.
                       Interpreters.
SI2.................  Spouse of SI1..............  Section 1059 of Pub.
                                                    L. 109-163 as
                                                    amended by Pub. L.
                                                    110-36.

[[Page 189]]

 
SI3.................  Child of SI1...............  Section 1059 of Pub.
                                                    L. 109-163 as
                                                    amended by Pub. L.
                                                    110-36.
SM1.................  Alien Recruited Outside the  101(a)(27)(K).
                       United States Who Has
                       Served or is Enlisted to
                       Serve in the U.S. Armed
                       Forces for 12 Years.
SM2.................  Spouse of SM1..............  101(a)(27)(K).
SM3.................  Child of SM1...............  101(a)(27)(K).
SQ1.................  Certain Iraqis or Afghans    Section 602(b),
                       Employed by or on Behalf     Division F, Title
                       of the U.S. Government.      VI, Omnibus
                                                    Appropriations Act
                                                    of 2009, Pub. L. 111-
                                                    8 and Section 1244
                                                    of Pub. L. 110-181.
SQ2.................  Spouse of SQ1..............  Section 602(b),
                                                    Division F, Title
                                                    VI, Omnibus
                                                    Appropriations Act
                                                    of 2009, Pub. L. 111-
                                                    8 and Section 1244
                                                    of Pub. L. 110-181.
SQ3.................  Child of SQ1...............  Section 602(b),
                                                    Division F, Title
                                                    VI, Omnibus
                                                    Appropriations Act
                                                    of 2009, Pub. L. 111-
                                                    8 and Section 1244
                                                    of Pub. L. 110-181.
SU2.................  Spouse of U1...............  INA 245(m)(3) & INA
                                                    101(a)(15)(U)(ii).
SU3.................  Child of U1................  INA 245(m)(3) & INA
                                                    101(a)(15)(U)(ii).
SU5.................  Parent of U1...............  INA 245(m)(3) & INA
                                                    101(a)(15)(U)(ii).
------------------------------------------------------------------------
                      Family-Sponsored Preferences
------------------------------------------------------------------------
                          Family 1st Preference
------------------------------------------------------------------------
F11.................  Unmarried Son or Daughter    203(a)(1).
                       of U.S. Citizen.
F12.................  Child of F11...............  203(d) & 203(a)(1).
B11.................  Self-petition Unmarried Son  204(a)(1)(A)(iv) &
                       or Daughter of U.S.          203(a)(1).
                       Citizen.
B12.................  Child of B11...............  203(d),
                                                    204(a)(1)(A)(iv) &
                                                    203(a)(1).
------------------------------------------------------------------------
         Family 2nd Preference (Subject to Country Limitations)
------------------------------------------------------------------------
F21.................  Spouse of Lawful Permanent   203(a)(2)(A).
                       Resident.
F22.................  Child of Lawful Permanent    203(a)(2)(A).
                       Resident.
F23.................  Child of F21 or F22........  203(d) &
                                                    203(a)(2)(A).
F24.................  Unmarried Son or Daughter    203(a)(2)(B).
                       of Lawful Permanent
                       Resident.
F25.................  Child of F24...............  203(d) &
                                                    203(a)(2)(B).
C21.................  Spouse of Lawful Permanent   203(a)(2)(A) & 216.
                       Resident (Conditional).
C22.................  Child of Alien Resident      203(a)(2)(A) & 216.
                       (Conditional).
C23.................  Child of C21 or C22          203(d) & 203(a)(2)(A)
                       (Conditional).               & 216.
C24.................  Unmarried Son or Daughter    203(a)(2)(B) & 216.
                       of Lawful Permanent
                       Resident (Conditional).
C25.................  Child of F24 (Conditional).  203(d) & 203(a)(2)(B)
                                                    & 216.
B21.................  Self-petition Spouse of      204(a)(1)(B)(ii).
                       Lawful Permanent Resident.
B22.................  Self-petition Child of       204(a)(1)(B)(iii).
                       Lawful Permanent Resident.
B23.................  Child of B21 or B22........  203(d) &
                                                    204(a)(1)(B)(ii).
B24.................  Self-petition Unmarried Son  204(a)(1)(B)(iii).
                       or Daughter of Lawful
                       Permanent Resident.
B25.................  Child of B24...............  203(d) &
                                                    204(a)(1)(B)(iii).
------------------------------------------------------------------------
         Family 2nd Preference (Exempt from Country Limitations)
------------------------------------------------------------------------
FX1.................  Spouse of Lawful Permanent   202(a)(4)(A) &
                       Resident.                    203(a)(2)(A).
FX2.................  Child of Lawful Permanent    202(a)(4)(A) &
                       Resident.                    203(a)(2)(A).
FX3.................  Child of FX1 or FX2........  202(a)(4)(A) &
                                                    203(a)(2)(A) &
                                                    203(d).
CX1.................  Spouse of Lawful Permanent   202(a)(4)(A) &
                       Resident (Conditional).      203(a)(2)(A) & 216.
CX2.................  Child of Lawful Permanent    202(a)(4)(A) &
                       Resident (Conditional).      203(a)(2)(A) & 216.
CX3.................  Child of CX1 or CX2          202(a)(4)(A) &
                       (Conditional).               203(a)(2)(A) &
                                                    203(d) & 216.
BX1.................  Self-petition Spouse of      204(a)(1)(B)(ii).
                       Lawful Permanent Resident.
BX2.................  Self-petition Child of       204(a)(1)(B)(iii).
                       Lawful Permanent Resident.
BX3.................  Child of BX1 or BX2........  204(a)(1)(B)(ii) &
                                                    203(d).
------------------------------------------------------------------------
                          Family 3rd Preference
------------------------------------------------------------------------
F31.................  Married Son or Daughter of   203(a)(3).
                       U.S. Citizen.
F32.................  Spouse of F31..............  203(d) & 203(a)(3).
F33.................  Child of F31...............  203(d) & 203(a)(3).
C31.................  Married Son or Daughter of   203(a)(3) & 216.
                       U.S. Citizen (Conditional).
C32.................  Spouse of C31 (Conditional)  203(d) & 203(a)(3) &
                                                    216.

[[Page 190]]

 
C33.................  Child of C31 (Conditional).  203(d) & 203(a)(3) &
                                                    216.
B31.................  Self-petition Married Son    204(a)(1)(A)(iv) &
                       or Daughter of U.S.          203(a)(3).
                       Citizen.
B32.................  Spouse of B31..............  203(d),
                                                    204(a)(1)(A)(iv) &
                                                    203(a)(3).
B33.................  Child of B31...............  203(d),
                                                    204(a)(1)(A)(iv) &
                                                    203(a)(3).
------------------------------------------------------------------------
                          Family 4th Preference
------------------------------------------------------------------------
F41.................  Brother or Sister of U.S.    203(a)(4).
                       Citizen at Least 21 Years
                       of Age.
F42.................  Spouse of F41..............  203(d) & 203(a)(4).
F43.................  Child of F41...............  203(d) & 203(a)(4).
------------------------------------------------------------------------
                      Employment-Based Preferences
              Employment 1st Preference (Priority Workers)
------------------------------------------------------------------------
E11.................  Alien with Extraordinary     203(b)(1)(A).
                       Ability.
E12.................  Outstanding Professor or     203(b)(1)(B).
                       Researcher.
E13.................  Multinational Executive or   203(b)(1)(C).
                       Manager.
E14.................  Spouse of E11, E12, or E13.  203(d) & 203(b)(1)(A)
                                                    & 203(b)(1)(B) &
                                                    203(b)(1)(C).
E15.................  Child of E11, E12, or E13..  203(d) & 203(b)(1)(A)
                                                    & 203(b)(1)(B) &
                                                    203(b)(1)(C).
------------------------------------------------------------------------
  Employment 2nd Preference (Professionals Holding Advanced Degrees or
                     Persons of Exceptional Ability)
------------------------------------------------------------------------
E21.................  Professional Holding         203(b)(2).
                       Advanced Degree or Alien
                       of Exceptional Ability.
E22.................  Spouse of E21..............  203(d) & 203(b)(2).
E23.................  Child of E21...............  203(d) & 203(b)(2).
------------------------------------------------------------------------
  Employment 3rd Preference (Skilled Workers, Professionals, and Other
                                Workers)
------------------------------------------------------------------------
E31.................  Skilled Worker.............  203(b)(3)(A)(i).
E32.................  Professional Holding         203(b)(3)(A)(ii).
                       Baccalaureate Degree.
E34.................  Spouse of E31 or E32.......  203(d) &
                                                    203(b)(3)(A)(i) &
                                                    203(b)(3)(A)(ii).
E35.................  Child of E31 or E32........  203(d) &
                                                    203(b)(3)(A)(i) &
                                                    203(b)(3)(A)(ii).
EW3.................  Other Worker (Subgroup       203(b)(3)(A)(iii).
                       Numerical Limit).
EW4.................  Spouse of EW3..............  203(d) &
                                                    203(b)(3)(A)(iii).
EW5.................  Child of EW3...............  203(d) &
                                                    203(b)(3)(A)(iii).
------------------------------------------------------------------------
         Employment 4th Preference (Certain Special Immigrants)
------------------------------------------------------------------------
BC1.................  Broadcaster in the U.S.      101(a)(27)(M) &
                       employed by the              203(b)(4).
                       International Broadcasting
                       Bureau of the Broadcasting
                       Board of Governors or a
                       grantee of such
                       organization.
BC2.................  Accompanying spouse of BC1.  101(a)(27)(M) &
                                                    203(b)(4).
BC3.................  Accompanying child of BC1..  101(a)(27)(M) &
                                                    203(b)(4).
SD1.................  Minister of Religion.......  101(a)(27)(C)(ii)(I)
                                                    & 203(b)(4).
SD2.................  Spouse of SD1..............  101(a)(27)(C)(ii)(I)
                                                    & 203(b)(4).
SD3.................  Child of SD1...............  101(a)(27)(C)(ii)(I)
                                                    & 203(b)(4).
SE1.................  Certain Employees or Former  101(a)(27)(D) &
                       Employees of the U.S.        203(b)(4).
                       Government Abroad.
SE2.................  Spouse of SE1..............  101(a)(27)(D) &
                                                    203(b)(4).
SE3.................  Child of SE1...............  101(a)(27)(D) &
                                                    203(b)(4).
SF1.................  Certain Former Employees of  101(a)(27)(E) & 203
                       the Panama Canal Company     (b)(4).
                       or Canal Zone Government.
SF2.................  Spouse or Child of SF1.....  101(a)(27)(E) & 203
                                                    (b)(4).
SG1.................  Certain Former Employees of  101(a)(27)(F) & 203
                       the U.S. Government in the   (b)(4).
                       Panama Canal Zone.
SG2.................  Spouse or Child of SG1.....  101(a)(27)(F) & 203
                                                    (b)(4).
SH1.................  Certain Former Employees of  101(a)(27)(G) & 203
                       the Panama Canal Company     (b)(4).
                       or Canal Zone Government
                       on April 1, 1979.
SH2.................  Spouse or Child of SH1.....  101(a)(27)(G) &
                                                    203(b)(4).
SJ1.................  Certain Foreign Medical      101(a)(27)(H).
                       Graduates (Adjustments
                       Only).
SJ2.................  Accompanying Spouse or       101(a)(27)(H) &
                       Child of SJ1.                203(b)(4).
SK1.................  Certain Retired              101(a)(27)(I)(iii) &
                       International Organization   203(b)(4).
                       employees.
SK2.................  Spouse of SK1..............  101(a)(27)(I)(iv) &
                                                    203(b)(4).
SK3.................  Certain Unmarried Sons or    101(a)(27)(I)(i) &
                       Daughters of an              203(b)(4).
                       International Organization
                       Employee.
SK4.................  Certain Surviving Spouses    101(a)(27)(I)(ii) &
                       of a deceased                203(b)(4).
                       International Organization
                       Employee.
SL1.................  Juvenile Court Dependent     101(a)(27)(J) &
                       (Adjustment Only).           203(b)(4).
SN1.................  Certain retired NATO6        101(a)(27)(L) &
                       civilians.                   203(b)(4).

[[Page 191]]

 
SN2.................  Spouse of SN1..............  101(a)(27)(L) &
                                                    203(b)(4).
SN3.................  Certain unmarried sons or    101(a)(27)(L) &
                       daughters of NATO6           203(b)(4).
                       civilian employees.
SN4.................  Certain surviving spouses    101(a)(27)(L) &
                       of deceased NATO6 civilian   203(b)(4).
                       employees.
SP..................  Alien Beneficiary of a       Section 421 of Public
                       petition or labor            Law 107-56.
                       certification application
                       filed prior to September
                       11, 2001, if the petition
                       or application was
                       rendered void due to a
                       terrorist act of September
                       11, 2001. Spouse, child of
                       such alien, or the
                       grandparent of a child
                       orphaned by a terrorist
                       act of September 11, 2001.
SR1.................  Certain Religious Workers..  101(a)(27)(C)(ii)(II)
                                                    & (III) as amended,
                                                    & 203(b)(4).
SR2.................  Spouse of SR1..............  101(a)(27)(C)(ii)(II)
                                                    & (III) as amended,
                                                    & 203(b)(4).
SR3.................  Child of SR1...............  101(a)(27)(C)(ii)(II)
                                                    & (III) as amended,
                                                    & 203(b)(4).
------------------------------------------------------------------------
   Employment 5th Preference (Employment Creation Conditional Status)
------------------------------------------------------------------------
C51.................  Employment Creation OUTSIDE  203(b)(5)(A).
                       Targeted Areas.
C52.................  Spouse of C51..............  203(d) &
                                                    203(b)(5)(A).
C53.................  Child of C51...............  203(d) &
                                                    203(b)(5)(A).
T51.................  Employment Creation IN       203(b)(5)(B).
                       Targeted Rural/High
                       Unemployment Area.
T52.................  Spouse of T51..............  203(d) & 203
                                                    (b)(5)(B).
T53.................  Child of T51...............  203(d) &
                                                    203(b)(5)(B).
R51.................  Investor Pilot Program, Not  203(b)(5) & Sec. 610
                       in Targeted Area.            of the Departments
                                                    of Commerce,
                                                    Justice, and State,
                                                    the Judiciary and
                                                    Related Agencies
                                                    Appropriations Act,
                                                    1993 (Pub. L. 102-
                                                    395), as amended.
R52.................  Spouse of R51..............  203(d) & 203(b)(5) &
                                                    Sec. 610 of the
                                                    Departments of
                                                    Commerce, Justice,
                                                    and State, the
                                                    Judiciary and
                                                    Related Agencies
                                                    Appropriations Act,
                                                    1993 (Pub. L. 102-
                                                    395), as amended.
R53.................  Child of R51...............  203(d) & 203(b)(5) &
                                                    Sec. 610 of the
                                                    Departments of
                                                    Commerce, Justice,
                                                    and State, the
                                                    Judiciary and
                                                    Related Agencies
                                                    Appropriations Act,
                                                    1993 (Pub. L. 102-
                                                    395), as amended.
I51.................  Investor Pilot Program, in   203(b)(5) & Sec. 610
                       Targeted Area.               of the Departments
                                                    of Commerce,
                                                    Justice, and State,
                                                    the Judiciary and
                                                    Related Agencies
                                                    Appropriations Act,
                                                    1993 (Pub. L. 102-
                                                    395), as amended.
I52.................  Spouse of I51..............  203(d) & 203(b)(5) &
                                                    Sec. 610 of the
                                                    Departments of
                                                    Commerce, Justice,
                                                    and State, the
                                                    Judiciary and
                                                    Related Agencies
                                                    Appropriations Act,
                                                    1993 (Pub. L. 102-
                                                    395), as amended.
I53.................  Child of I51...............  203(d) & 203(b)(5) &
                                                    Sec. 610 of the
                                                    Departments of
                                                    Commerce, Justice,
                                                    and State, the
                                                    Judiciary and
                                                    Related Agencies
                                                    Appropriations Act,
                                                    1993 (Pub. L. 102-
                                                    395), as amended.
------------------------------------------------------------------------
                  Other Numerically Limited Categories
                          Diversity Immigrants
------------------------------------------------------------------------
DV1.................  Diversity Immigrant........  203(c).
DV2.................  Spouse of DV1..............  203(d) & 203(c).
DV3.................  Child of DV1...............  203(d) & 203(c).
------------------------------------------------------------------------


[74 FR 61521, Nov. 25, 2009, as amended at 79 FR 32482, June 5, 2014]

[[Page 192]]



Sec.  42.12  Rules of chargeability.

    (a) Applicability. An immigrant shall be charged to the numerical 
limitation for the foreign state or dependent area of birth, unless the 
case falls within one of the exceptions to the general rule of 
chargeability provided by INA 202(b) and paragraphs (b) through (e) of 
this section to prevent the separation of families or the alien is 
classifiable under:
    (1) INA 201(b);
    (2) INA 101(a)(27) (A) or (B);
    (3) Section 112 of Public Law 101-649;
    (4) Section 124 of Public Law 101-649;
    (5) Section 132 of Public Law 101-649;
    (6) Section 134 of Public Law 101-649; or
    (7) Section 584(b)(1) as contained in section 101(e) of Public Law 
100-202.
    (b) Exception for child. If necessary to prevent the separation of a 
child from the alien parent or parents, an immigrant child, including a 
child born in a dependent area, may be charged to the same foreign state 
to which a parent is chargeable if the child is accompanying or 
following to join the parent, in accordance with INA 202(b)(1).
    (c) Exception for spouse. If necessary to prevent the separation of 
husband and wife, an immigrant spouse, including a spouse born in a 
dependent area, may be charged to a foreign state to which a spouse is 
chargeable if accompanying or following to join the spouse, in 
accordance with INA 202(b)(2).
    (d) Exception for alien born in the United States. An immigrant who 
was born in the United States shall be charged to the foreign state of 
which the immigrant is a citizen or subject. If not a citizen or subject 
of any country, the alien shall be charged to the foreign state of last 
residence as determined by the consular officer, in accordance with INA 
202(b)(3).
    (e) Exception for alien born in foreign state in which neither 
parent was born or had residence at time of alien's birth. An alien who 
was born in a foreign state, as defined in Sec.  40.1, in which neither 
parent was born, and in which neither parent had a residence at the time 
of the applicant's birth, may be charged to the foreign state of either 
parent as provided in INA 202(b)(4). The parents of such an alien are 
not considered as having acquired a residence within the meaning of INA 
202(b)(4), if, at the time of the alien's birth within the foreign 
state, the parents were visiting temporarily or were stationed there in 
connection with the business or profession and under orders or 
instructions of an employer, principal, or superior authority foreign to 
such foreign state.

[52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49681, Oct. 1, 1991]



Subpart C_Immigrants Not Subject to Numerical Limitations of INA 201 and 
                                   202

    Source: 56 FR 49676, Oct. 1, 1991, unless otherwise noted.



Sec.  42.21  Immediate relatives.

    (a) Entitlement to status. An alien who is a spouse or child of a 
United States citizen, or a parent of a U.S. citizen at least 21 years 
of age, shall be classified as an immediate relative under INA 201(b) if 
the consular officer has received from DHS an approved Petition to 
Classify Status of Alien Relative for Issuance of an Immigrant Visa, 
filed on the alien's behalf by the U.S. citizen and approved in 
accordance with INA 204, and the officer is satisfied that the alien has 
the relationship claimed in the petition. An immediate relative shall be 
documented as such unless the U.S. citizen refuses to file the required 
petition, or unless the immediate relative is also a special immigrant 
under INA 101(a)(27) (A) or (B) and not subject to any numerical 
limitation.
    (b) Spouse of a deceased U.S. citizen. The spouse of a deceased U.S. 
citizen, and each child of the spouse, will be entitled to immediate 
relative status after the date of the citizen's death provided the 
spouse or child meets the criteria of INA 201(b)(2)(A)(i) or of section 
423(a)(1) of Public Law 107-56 (USA Patriot Act) and the Consular 
Officer has received an approved petition from the DHS which accords 
such status, or official notification of such approval, and the Consular 
Officer is satisfied that the alien meets those criteria.
    (c) Child of a U.S. citizen victim of terrorism. The child of a U.S. 
citizen slain in the terrorist actions of September 11, 2001, shall 
retain the status of an immediate relative child (regardless of

[[Page 193]]

changes in age or marital status) if the child files a petition for such 
status within two years of the citizen's death pursuant to section 
423(a)(2) of Public Law 107-56, and the consular officer has received an 
approved petition according such status or official notification of such 
approval.

[56 FR 49676, Oct. 1, 1991, as amended at 64 FR 55419, Oct. 13, 1999; 67 
FR 1415, Jan. 11, 2002]



Sec.  42.22  Returning resident aliens.

    (a) Requirements for returning resident status. An alien shall be 
classifiable as a special immigrant under INA 101(a)(27)(A) if the 
consular officer is satisfied from the evidence presented that:
    (1) The alien had the status of an alien lawfully admitted for 
permanent residence at the time of departure from the United States;
    (2) The alien departed from the United States with the intention of 
returning and has not abandoned this intention; and
    (3) The alien is returning to the United States from a temporary 
visit abroad and, if the stay abroad was protracted, this was caused by 
reasons beyond the alien's control and for which the alien was not 
responsible.
    (b) Documentation needed. Unless the consular officer has reason to 
question the legality of the alien's previous admission for permanent 
residence or the alien's eligibility to receive an immigrant visa, only 
those records and documents required under INA 222(b) which relate to 
the period of residence in the United States and the period of the 
temporary visit abroad shall be required. If any required record or 
document is unobtainable, the provisions of Sec.  42.65(d) shall apply.
    (c) Returning resident alien originally admitted under the Act of 
December 28, 1945. An alien admitted into the United States under 
Section 1 of the Act of December 28, 1945 (``GI Brides Act'') shall not 
be refused an immigrant visa after a temporary absence abroad solely 
because of a mental or physical defect or defects that existed at the 
time of the original admission.

[56 FR 49676, Oct. 1, 1991, as amended at 63 FR 48578, Sept. 11, 1998]



Sec.  42.23  Certain former U.S. citizens.

    (a) [Reserved]
    (b) Military expatriates. An alien shall be classifiable as a 
special immigrant under INA 101(a)(27)(B) if the consular officer is 
satisfied by appropriate evidence that the alien was formerly a U.S. 
citizen and that the alien lost citizenship under the circumstances set 
forth in INA 327.

[56 FR 49676, Oct. 1, 1991, as amended at 85 FR 38322, June 26, 2020]



Sec.  42.24  Adoption under the Hague Convention on Protection of Children 
and Co-operation in Respect of Intercountry Adoption 
and the Intercountry Adoption Act of 2000.

    (a) Except as described in paragraph (n), for purposes of this 
section, the definitions in 22 CFR 96.2 apply.
    (b) On or after the Convention effective date, as defined in 22 CFR 
96.17, a child habitually resident in a Convention country who is 
adopted by a United States citizen deemed to be habitually resident in 
the United States in accordance with applicable DHS regulations must 
qualify for visa status under the provisions of INA section 101(b)(1)(G) 
as provided in this section. Such a child shall not be accorded status 
under INA section 101(b)(1)(F), provided that a child may be accorded 
status under INA section 101(b)(1)(F) if Form I-600A or I-600 was filed 
before the Convention effective date. Although this part 42 generally 
applies to the issuance of immigrant visas, this section 42.24 may also 
provide the basis for issuance of a nonimmigrant visa to permit a 
Convention adoptee to travel to the United States for purposes of 
naturalization under INA section 322.
    (c) The provisions of this section govern the operations of consular 
officers in processing cases involving children for whom classification 
is sought under INA section 101(b)(1)(G), unless the Secretary of State 
has personally waived any requirement of the IAA or these regulations in 
a particular case in the interests of justice or to prevent grave 
physical harm to the child, to the extent consistent with the 
Convention.
    (d) An alien child shall be classifiable under INA section 
101(b)(1)(G) only if, before the child is adopted or legal custody for 
the purpose of adoption is

[[Page 194]]

granted, a petition for the child has been received and provisionally 
approved by a DHS officer or, where authorized by DHS, by a consular 
officer, and a visa application for the child has been received and 
annotated in accordance with paragraph (h) of this section by a consular 
officer. No alien child shall be issued a visa pursuant to INA section 
101(b)(1)(G) unless the petition and visa application are finally 
approved.
    (e) If a petition for a child under INA section 101(b)(1)(G) is 
properly filed with a consular officer, the consular officer will review 
the petition for the purpose of determining whether it can be 
provisionally approved in accordance with applicable DHS requirements. 
If a properly completed application for waiver of inadmissibility is 
received by a consular officer at the same time that a petition for a 
child under INA section 101(b)(1)(G) is received, provisional approval 
cannot take place unless the waiver is approved, and therefore the 
consular officer, pursuant to 8 CFR 204.313(i)(3) and 8 CFR 212.7, will 
forward the petition and the waiver application to DHS for decisions as 
to approval of the waiver and provisional approval of the petition. If a 
petition for a child under INA section 101(b)(1)(G) is received by a DHS 
officer, the consular officer will conduct any reviews, determinations 
or investigations requested by DHS with regard to the petition and 
classification determination in accordance with applicable DHS 
procedures.
    (f) A petition shall be provisionally approved by the consular 
officer if, in accordance with applicable DHS requirements, it appears 
that the child will be classifiable under INA section 101(b)(1)(G) and 
that the proposed adoption or grant of legal custody will be in 
compliance with the Convention. If the consular officer knows or has 
reason to believe the petition is not provisionally approvable, the 
consular officer shall forward it to DHS pursuant to 8 CFR 
204.313(i)(3).
    (g) After a petition has been provisionally approved, a completed 
visa application form, any supporting documents required pursuant to 
Sec.  42.63 and Sec.  42.65, and any required fees must be submitted to 
the consular officer in accordance with Sec.  42.61 for a provisional 
review of visa eligibility. The requirements in Sec. Sec.  42.62, 42.64, 
42.66 and 42.67 shall also be satisfied to the extent practicable.
    (h) A consular officer shall provisionally determine visa 
eligibility based on a review of the visa application, submitted 
supporting documents, and the provisionally approved petition. In so 
doing, the consular officer shall follow all procedures required to 
adjudicate the visa to the extent possible in light of the degree of 
compliance with Sec. Sec.  42.62 through 42.67. If it appears, based on 
the available information, that the child would not be ineligible under 
INA section 212 or other applicable law to receive a visa, the consular 
officer shall so annotate the visa application. If evidence of an 
ineligibility is discovered during the review of the visa application, 
and the ineligibility was not waived in conjunction with provisional 
approval of the petition, the prospective adoptive parents shall be 
informed of the ineligibility and given an opportunity to establish that 
it will be overcome. If the visa application cannot be annotated as 
described above, the consular officer shall deny the visa in accordance 
with Sec.  42.81, regardless of whether the application has yet been 
executed in accordance with Sec.  42.67(a); provided however that, in 
cases in which a waiver may be available under the INA and the consular 
officer determines that the visa application appears otherwise 
approvable, the consular officer shall inform the prospective adoptive 
parents of the procedure for applying to DHS for a waiver. If in 
addition the consular officer comes to know or have reason to believe 
that the petition is not clearly approvable as provided in 8 CFR 
204.313(i)(3), the consular officer shall forward the petition to DHS 
pursuant to that section.
    (i) If the petition has been provisionally approved and the visa 
application has been annotated in accordance with subparagraph (h), the 
consular officer shall notify the country of origin that the steps 
required by Article 5 of the Convention have been taken.
    (j) After the consular officer has received appropriate notification 
from the country of origin that the adoption or grant of legal custody 
has occurred

[[Page 195]]

and any remaining requirements established by DHS or Sec. Sec.  42.61 
through 42.67 have been fulfilled, the consular officer, if satisfied 
that the requirements of the IAA and the Convention have been met with 
respect to the adoption or grant of legal custody, shall affix to the 
adoption decree or grant of legal custody a certificate so indicating. 
This certificate shall constitute the certification required by IAA 
section 301(a) and INA section 204(d)(2). For purposes of determining 
whether to issue a certificate, the fact that a consular officer 
notified the country of origin pursuant to paragraph (i) of this section 
that the steps required by Article 5 of the Convention had been taken 
and the fact that the country of origin has provided appropriate 
notification that the adoption or grant of legal custody has occurred 
shall together constitute prima facie evidence of compliance with the 
Convention and the IAA.
    (k) If the consular officer is unable to issue the certificate 
described in paragraph (j) of this section, the consular officer shall 
notify the country of origin of the consular officer's decision.
    (l) After the consular officer determines whether to issue the 
certificate described in paragraph (j) of this section, the consular 
officer shall finally adjudicate the petition and visa application in 
accordance with standard procedures.
    (m) If the consular officer is unable to give final approval to the 
visa application or the petition, then the consular officer shall 
forward the petition to DHS, pursuant to Sec.  42.43 or 8 CFR 
204.313(i)(3), as applicable, for appropriate action in accordance with 
applicable DHS procedures, and/or refuse the visa application in 
accordance with Sec.  42.81. The consular officer shall notify the 
country of origin that the visa has been refused.
    (n) Notwithstanding paragraphs (d) through (m) of this section, an 
alien described in paragraph (n)(1) of this section may qualify for visa 
status under INA section 101(b)(1)(G)(iii) without meeting the 
requirements set forth in paragraphs (d) through (m) of this section.
    (1) Per Section 4(b) of the Intercountry Adoption Simplification 
Act, Public Law 111-287 (IASA), an alien otherwise described in INA 
section 101(b)(1)(G)(iii) who attained the age of 18 on or after April 
1, 2008 shall be deemed to meet the age requirement imposed by INA 
section 101(b)(1)(G)(iii)(III), provided that a petition is filed for 
such child in accordance with DHS requirements not later than November 
30, 2012.
    (2) For any alien described in paragraph (n)(1) of this section, the 
``competent authority'' referred to in INA section 
101(b)(1)(G)(i)(V)(aa) is a court or governmental agency of a foreign 
country of origin having jurisdiction and authority to make decisions in 
matters of child welfare, including adoption. If the competent authority 
over matters of child welfare no longer has jurisdiction or authority 
over the alien due to his or her age, then the passport issuing 
authority of the country of origin may be considered the competent 
authority for the purposes of INA section 101(b)(1)(G)(i)(V)(aa).

[72 FR 61305, Oct. 30, 2007, as amended at 76 FR 67363, Nov. 1, 2011; 78 
FR 32990, June 3, 2013]



          Subpart D_Immigrants Subject to Numerical Limitations

    Source: 56 FR 49676, Oct. 1, 1991, unless otherwise noted.



Sec.  42.31  Family-sponsored immigrants.

    (a) Entitlement to status. An alien shall be classifiable as a 
family-sponsored immigrant under INA 203(a) (1), (2), (3) or (4) if the 
consular officer has received from DHS a Petition to Classify Status of 
Alien Relative for Issuance of Immigrant Visa approved in accordance 
with INA 204 to accord the alien such preference status, or official 
notification of such an approval, and the consular officer is satisfied 
that the alien has the relationship to the petitioner indicated in the 
petition. In the case of a petition according an alien status under INA 
203(a) (1) or (3) or status as an unmarried son or daughter under INA 
203(a)(2), the petitioner must be a ``parent'' as defined in INA 
101(b)(2) and 22 CFR 40.1. In the case of a petition to accord an alien 
status under INA 203(a)(4) filed on or after January 1, 1977, the 
petitioner

[[Page 196]]

must be at least twenty-one years of age.
    (b) Entitlement to derivative status. Pursuant to INA 203(d), and 
whether or not named in the petition, the child of a family-sponsored 
first, second, third or fourth preference immigrant or the spouse of a 
family-sponsored third or fourth preference immigrant, if not otherwise 
entitled to an immigrant status and the immediate issuance of a visa, is 
entitled to a derivative status corresponding to the classification and 
priority date of the beneficiary of the petition.

[56 FR 49676, Oct. 1, 1991, as amended at 61 FR 1836, Jan. 24, 1996]



Sec.  42.32  Employment-based preference immigrants.

    Aliens subject to the worldwide level specified in section 201(d) 
for employment-based immigrants in a fiscal year shall be allotted visas 
as indicated below.
    (a) First preference--Priority workers--(1) Entitlement to status. 
An alien shall be classifiable as an employment-based first preference 
immigrant under INA 203(b)(1) if the consular office has received from 
DHS a Petition for Immigrant Worker approved in accordance with INA 204 
to accord the alien such Preference status, or official notification of 
such an approval, and the consular officer is satisfied that the alien 
is within one of the classes described in INA 203(b)(1).
    (2) Entitlement to derivative status. Pursuant to INA 203(d), and 
whether or not named in the petition, the child or spouse of an 
employment-based first preference immigrant, if not otherwise entitled 
to an immigrant status and the immediate issuance of a visa, is entitled 
to a derivative status corresponding to the classification and priority 
date of the beneficiary of the petition.
    (b) Second preference--Professionals with advanced degrees or 
persons of exceptional ability--(1) Entitlement to status. An alien 
shall be classifiable as an employment-based second preference immigrant 
under INA 203(b)(2) if the consular officer has received from DHS a 
Petition for Immigrant Worker approved in accordance with INA 204 to 
accord the alien such preference status, or official notification of 
such an approval, and the consular officer is satisfied that the alien 
is within one of the classes described in INA 203(b)(2).
    (2) Entitlement to derivative status. Pursuant to INA 203(d), and 
whether or not named in the petition, the child or spouse of an 
employment-based second preference immigrant, if not otherwise entitled 
to an immigrant status and the immediate issuance of a visa, is entitled 
to a derivative status corresponding to the classification and priority 
date of the beneficiary of the petition.
    (c) Third preference--Skilled workers, professionals, other 
workers--(1) Entitlement to status. An alien shall be classifiable as an 
employment-based third preference immigrant under INA 203(b)(3) if the 
consular officer has received from DHS a Petition for Immigrant Worker 
approved in accordance with INA 204 to accord the alien such preference 
status, or official notification of such an approval, and the consular 
officer is satisfied that the alien is within one of the classes 
described in INA 203(b)(3).
    (2) Entitlement to derivative status. Pursuant to INA 203(d), and 
whether or not named in the petition, the child or spouse of an 
employment-based third preference immigrant, if not otherwise entitled 
to an immigrant status and the immediate issuance of a visa, is entitled 
to a derivative status corresponding to the classification and priority 
date of the beneficiary of the petition.
    (d) Fourth preference--Special immigrants--(1) Religious workers--
(i) Classification based on qualifications under INA 101(A)(27)(C). An 
alien shall be classifiable under INA 203(b)(4) as a special immigrant 
described in INA 101(a)(27)(C) if:
    (A) The consular officer has received a petition approved by DHS to 
accord such classification, or an official notification of such 
approval; and
    (B) The consular officer is satisfied from the evidence presented 
that the alien qualifies under that section; or
    (C) The consular officer is satisfied the alien is the spouse or 
child of a religious worker so classified and is accompanying or 
following to join the principal alien.

[[Page 197]]

    (ii) Timeliness of application. An immigrant visa issued under INA 
203(b)(4) to an alien described in INA 101(a)(27)(C), other than a 
minister of religion, who qualifies as a ``religious worker'' as defined 
in 8 CFR 204.5, shall bear the usual validity except that in no case 
shall it be valid later than September 30, 2003.
    (2) See 22 CFR 42.34.
    (3) Panama Canal employees--(i) Entitlement to status. An alien who 
is subject to the numerical limitations specified in section 3201(c) of 
the Panama Canal Act of 1979, Public Law 96-70, is classifiable under 
INA 203(b)(4) as a special immigrant described in INA 101(a)(27) (E), 
(F) or (G) if the consular officer has received a petition approved by 
DHS to accord such classification, or official notification of such an 
approval, and the consular officer is satisfied that the alien is within 
one of the classes described in INA 101(a)(27) (E), (F), or (G).
    (ii) Entitlement to derivative status. Pursuant to INA 203(d), and 
whether or not named in the petition, the spouse or child of any alien 
classified under INA 203(b)(4) as a special immigrant qualified under 
this section, if not otherwise entitled to an immigrant status and the 
immediate issuance of a visa, is entitled to a derivative status 
corresponding to the classification and priority date of the beneficiary 
of the petition.
    (4) Spouse and children of certain foreign medical graduates. The 
accompanying spouse and children of a graduate of a foreign medical 
school or of a person qualified to practice medicine in a foreign state 
who has adjusted status as a special immigrant under the provisions of 
INA 101(a)(27)(H) are classifiable under INA 203(b)(4) as special 
immigrants defined in INA 101(a)(27)(H) if the consular officer has 
received an approved petition from DHS which accords such status and the 
consular officer is satisfied that the alien is within the class 
described in INA 101(a)(27)(H).
    (5) Certain international organization and NATO civilian employees--
(i) Entitlement to status. An alien is classifiable under INA 203(b)(4) 
as a special immigrant defined in INA 101(a)(27)(I) or (L) if the 
consular officer has received a petition approved by the DHS to accord 
such classification, or official notification of such approval, and the 
consular officer is satisfied from the evidence presented that the alien 
is within one of the classes described therein.
    (ii) Timeliness of application. An alien accorded status under INA 
203(b)(4) because of qualification under INA 101(a)(27)(I) or (L) must 
appear for the final visa interview and issuance of the immigrant visa 
within six months of establishing entitlement to status.
    (6) Certain juvenile court dependents. An alien shall be 
classifiable under INA 203(b)(4) as a special immigrant defined in INA 
101(a)(27)(J) if the consular officer has received from DHS an approved 
petition to accord such status, or an official notification of such an 
approval, and the consular officer is satisfied the alien is within the 
class described in that section.
    (7) Certain members of the United States Armed Forces recruited 
abroad--(i) Entitlement to status. An alien is classifiable under INA 
203(b)(4) as a special immigrant described in INA 101(a)(27)(K) if the 
consular office has received a petition approved by the DHS to accord 
such classification, or official notification of such an approval, and 
the consular officer is satisfied from the evidence presented that the 
alien is within the class described in INA 101(a)(27)(K).
    (ii) Entitlement to derivative status. Pursuant to INA 203(d), and 
whether or not named in the petition, the spouse or child of any alien 
classified under INA 203(b)(4) as a special immigrant qualified under 
this section, if not otherwise entitled to an immigrant status and the 
immediate issuance of a visa, is entitled to a derivative status 
corresponding to the classification and priority date of the beneficiary 
of the petition.
    (8) Certain United States international broadcasting employees--(i) 
Entitlement to status. An alien is classifiable as a special immigrant 
under INA 203(b)(4) as described in INA 101(a)(27)(M), if the consular 
office has received a petition approved by the DHS to accord such 
classification, or official notification of such an approval, and the 
consular officer is satisfied from the evidence presented that the alien 
is within the class described in INA 101(a)(27)(M).

[[Page 198]]

    (ii) Entitlement to derivative status. Pursuant to INA 203(d), and 
whether or not named in the petition, the spouse or child of any alien 
classified under INA 203(b)(4) as a special immigrant qualified under 
this section, if not otherwise entitled to an immigrant status and the 
immediate issuance of a visa, is entitled to derivative status 
corresponding to the classification and priority date of the beneficiary 
of the petition.
    (9) Certain victims of the September 11, 2001 terrorist attacks--(i) 
Entitlement to status. An alien shall be classifiable as a special 
immigrant under INA 203(b)(4) as specified in section 421 of Public Law 
107-56, if:
    (A) The consular officer has received a petition approved by the DHS 
to accord such classification, or official notification of such an 
approval, and the consular officer is satisfied from the evidence 
presented that the alien is entitled to that classification; or
    (B) The alien is the spouse or child of an alien so classified in 
paragraph (d)(9)(i) of this section and is accompanying or following to 
join the principal alien.
    (ii) Ineligibility exemption. An alien classified under paragraph 
(d)(9)(i) of this section shall not be subject to the provisions of INA 
212(a)(4).
    (iii) Priority date. Aliens entitled to status under paragraph 
(d)(9)(i) of this section shall be assigned a priority date as of the 
date the petition was filed under INA 204 for classification under 
section INA 203(b)(4) and visas shall be issued in the chronological 
order of application submission. However, in the event that the annual 
limit for immigrants under INA 203 is reached, the alien may retain the 
earlier priority date of the petition that was revoked.
    (e) Fifth preference--Employment-creation immigrants--(1) 
Entitlement to status. An alien shall be classifiable as a fifth 
preference employment-creation immigrant if the consular officer has 
received from DHS an approved petition to accord such status, or 
official notification of such an approval, and the consular officer is 
satisfied that the alien is within the class described in INA 203(b)(5).
    (2) Entitlement to derivative status. Pursuant to INA 203(d), and 
whether or not named in the petition, the spouse or child of an 
employment-based fifth preference immigrant, if not otherwise entitled 
to an immigrant status and the immediate issuance of a visa, is entitled 
to a derivative status corresponding to the classification and priority 
date of the beneficiary of the petition.

[56 FR 49676, Oct. 1, 1991, as amended at 56 FR 51172, Oct. 10, 1991; 56 
FR 55077, Oct. 24, 1991; 60 FR 35839, July 12, 1995; 63 FR 4394, Jan. 
29, 1998; 63 FR 68393, Dec. 11, 1998; 65 FR 80745, Dec. 22, 2000; 66 FR 
15350, Mar. 19, 2001; 68 FR 24639, May 8, 2003; 85 FR 36326, June 16, 
2020]



Sec.  42.33  Diversity immigrants.

    (a) General--(1) Eligibility to compete for consideration under 
section 203(c). An alien will be eligible to compete for consideration 
for visa issuance under INA 203(c) during a fiscal year only if he or 
she is a native of a low-admission foreign state, as determined by the 
Secretary of Homeland Security pursuant to INA 203(c)(1)(E), with 
respect to the fiscal year in question; and if he or she has at least a 
high school education or its equivalent or, within the five years 
preceding the date of application for a visa, has two years of work 
experience in an occupation requiring at least two years training or 
experience. The eligibility for a visa under INA 203(c) ceases at the 
end of the fiscal year in question. Under no circumstances may a 
consular officer issue a visa or other documentation to an alien after 
the end of the fiscal year during which an alien possesses diversity 
visa eligibility.
    (2) Definition of high school education or its equivalent. For the 
purposes of this section, the phrase high school education or its 
equivalent means the successful completion of a twelve-year course of 
elementary and secondary education in the United States or successful 
completion in another country of a formal course of elementary and 
secondary education comparable to completion of twelve years' elementary 
and secondary education in the United States.
    (3) Determinations of work experience. For all cases registered for 
the 2003 Diversity Visa Program and Diversity

[[Page 199]]

Visa Programs occurring in subsequent fiscal years, consular officers 
must use the Department of Labor's O*Net On Line to determine qualifying 
work experience.
    (4) Limitation on number of petitions per year. No more than one 
petition may be submitted by or on behalf of, any alien for 
consideration during any single fiscal year. If two or more petitions 
for any single fiscal year are submitted by, or on behalf of, any alien, 
all such petitions will be void pursuant to INA 204(a)(1)(I)(i) and the 
alien by or for whom the petition has been submitted will not be 
eligible for consideration for diversity visa issuance during the fiscal 
year in question.
    (5) Northern Ireland. For purposes of determining eligibility to 
file a petition for consideration under INA 203(c) for a fiscal year, 
the districts comprising that portion of the United Kingdom of Great 
Britain and Northern Ireland, known as ``Northern Ireland'', will be 
treated as a separate foreign state. The districts comprising ``Northern 
Ireland'' are Antrim, Ards, Armagh, Ballymena, Ballymoney, Banbridge, 
Belfast, Carrickfergus, Castlereagh, Coleraine, Cookstown, Craigavon, 
Down, Dungannon, Fermanagh, Larne, Limavady, Lisburn, Londonderry, 
Magherafelt, Moyle, Newry and Mourne, Newtownabbey, North Down, Omagh, 
and Strabane.
    (b) Petition requirement. An alien claiming to be entitled to 
compete for consideration under INA 203(c) must file a petition with the 
Department of State for such consideration. At the alien petitioner's 
request, another person may file a petition on behalf of the alien. The 
petition will consist of an electronic entry form that the alien 
petitioner or a person acting on the behalf of the alien petitioner must 
complete on-line and submit to the Department of State via a Web site 
established by the Department of State for the purpose of receiving such 
petitions. The Department will specify the address of the Web site prior 
to the commencement of the 30-day or greater period described in 
paragraph (b)(3) of this section using the notice procedure prescribed 
in that paragraph.
    (1) Information to be provided in the petition. The website will 
include the electronic entry form mentioned in paragraph (b) of this 
section. The entry form will require the person completing the form to 
provide the following information, typed in the Roman alphabet, 
regarding the alien petitioner:
    (i) The petitioner's full name;
    (ii) The petitioner's date and place of birth (including city and 
country, province or other political subdivision of the country);
    (iii) The petitioner's gender;
    (iv) The country of which the petitioner claims to be a native, if 
other than the country of birth;
    (v) The name[s], date[s] and place[s] of birth and gender of the 
petitioner's spouse and child[ren], if any, (including legally adopted 
and step-children), regardless of whether or not they are living with 
the petitioner or intend to accompany or follow to join the petitioner 
should the petitioner immigrate to the United States pursuant to INA 
203(c), but excluding a spouse or a child[ren] who is already a U.S. 
citizen or U.S. lawful permanent resident;
    (vi) A current mailing address for the petitioner;
    (vii) The location of the consular office nearest to the 
petitioner's current residence or, if in the United States, nearest to 
the petitioner's last foreign residence prior to entry into the United 
States;
    (viii) The unique serial or issuance number associated with the 
petitioner's valid, unexpired passport, country or authority of passport 
issuance, and expiration date, unless the petitioner would be exempt 
from the passport requirement pursuant to 22 CFR 42.2(d), (e), or 
(g)(2).
    (ix) Failure to accurately include any information or documents 
required by paragraphs (b)(1)(i) through (viii) or paragraph (b)(2) of 
this section will result in disqualification of the entry for that 
fiscal year.
    (2) Requirements for photographs. The petition will also require 
inclusion of a photograph of the petitioner and of his or her spouse and 
all unmarried children under the age of 21 years. The photographs must 
meet the following specifications:
    (i) A digital image of the applicant from either a digital camera 
source or

[[Page 200]]

a scanned photograph via scanner. If scanned, the original photographic 
print must have been 2 by 2 (50mm x 50mm). Scanner 
hardware and digital image resolution requirements will be further 
specified in the public notice described in paragraph (b)(3) of this 
section.
    (ii) The image must be in the Joint Photographic Experts Group 
(JPEG) File Interchange Format (JFIF) format.
    (iii) The image must be in color.
    (iv) The image must have been taken no more than six months prior to 
the date of the petition submission.
    (v) The person being photographed must be directly facing the camera 
with the head neither tilted up, down, or to the side. The head must 
cover about 50% of the area of the photograph.
    (vi) The photograph must be taken with the person in front of a 
neutral, light-colored background. Photos taken with very dark or 
patterned, busy backgrounds will not be accepted.
    (vii) The person's face must be in focus.
    (viii) The person in the photograph must not wear eyeglasses, 
sunglasses, or other paraphernalia that obstruct the view of the face.
    (ix) A photograph with the person wearing a head covering or a hat 
is only acceptable if the covering or hat is worn specifically due to 
that person's religious beliefs, and even then, the hat or covering may 
not obscure any portion of the face. A photograph of a person wearing 
tribal, military, airline or other headgear not specifically religious 
in nature will not be accepted.
    (3) Submission of petition. A petition for consideration for visa 
issuance under INA 203(c) must be submitted to the Department of State 
by electronic entry to an Internet website designated by the Department 
for that purpose. No fee will be collected at the time of submission of 
a petition, but a processing fee may be collected at a later date, as 
provided in paragraph (i) of this section. The Department will establish 
a period of not less than thirty days during each fiscal year within 
which aliens may submit petitions for approval of eligibility to apply 
for visa issuance during the following fiscal year. Each fiscal year the 
Department will give timely notice of both the website address and the 
exact dates of the petition submission period, as well as other 
pertinent information, through publication in the Federal Register and 
such other methods as will ensure the widest possible dissemination of 
the information, both abroad and within the United States.
    (c) Processing of petitions. Entries received during the petition 
submission period established for the fiscal year in question and 
meeting all of the requirements of paragraph (b) of this section will be 
assigned a number in a separate numerical sequence established for each 
regional area specified in INA 203(c)(1)(F). Upon completion of the 
numbering of all petitions, all numbers assigned for each region will be 
separately rank-ordered at random by a computer using standard computer 
software for that purpose. The Department will then select in the rank 
orders determined by the computer program a quantity of petitions for 
each region estimated to be sufficient to ensure, to the extent 
possible, usage of all immigrant visas authorized under INA 203(c) for 
the fiscal year in question. The Department will consider petitions 
selected in this manner to have been approved for the purposes of this 
section.
    (d) Validity of approved petitions. A petition approved pursuant to 
paragraph (c) of this section will be valid for a period not to exceed 
Midnight of the last day of the fiscal year for which the petition was 
approved. At that time, the Department of State will consider approval 
of the petition to cease to be valid pursuant to INA 
204(a)(1)(I)(ii)(II), which prohibits issuance of visas based upon 
petitions submitted and approved for a fiscal year after the last day of 
that fiscal year.
    (e) Order of consideration. Consideration for visa issuance to 
aliens whose petitions have been approved pursuant to paragraph (c) of 
this section will be in the regional rank orders established pursuant 
that paragraph.
    (f) Allocation of visa numbers. To the extent possible, diversity 
immigrant visa numbers will be allocated in accordance with INA 
203(c)(1)(E) and will

[[Page 201]]

be allotted only during the fiscal year for which a petition to accord 
diversity immigrant status was submitted and approved. Under no 
circumstances will immigrant visa numbers be allotted after midnight of 
the last day of the fiscal year for which the petition was submitted and 
approved.
    (g) Further processing. The Department will inform applicants whose 
petitions have been approved pursuant to paragraph (c) of this section 
of the steps necessary to meet the requirements of INA 222(b) in order 
to apply formally for an immigrant visa.
    (h) Maintenance of certain information. (1) The Department will 
compile and maintain the following information concerning petitioners to 
whom immigrant visas are issued under INA 203(c):
    (i) Age;
    (ii) Country of birth;
    (iii) Marital status;
    (iv) Sex;
    (v) Level of education; and
    (vi) Occupation and level of occupational qualification.
    (2) The Department will not maintain the names of visa recipients in 
connection with this information and the information will be compiled 
and maintained in such form that the identity of visa recipients cannot 
be determined therefrom.
    (i) Diversity Visa Lottery fee. Consular officers shall collect, or 
ensure the collection of, the Diversity Visa Lottery fee from those 
persons who apply for a diversity immigrant visa, described in INA 
203(c), after being selected by the diversity visa lottery program. The 
Diversity Visa Lottery fee, as prescribed by the Secretary of State, is 
set forth in the Schedule of Fees, 22 CFR 22.1.

[68 FR 49355, Aug. 18, 2003, as amended at 73 FR 7670, Feb. 11, 2008; 77 
FR 18914, Mar. 29, 2012; 81 FR 63695, Sept. 16, 2016; 84 FR 25991, June 
5, 2019]



Sec.  42.34  Special immigrant visas--certain U.S. Government employees.

    (a) General. (1) An alien is classifiable under INA 203(b)(4) as a 
special immigrant described in INA 101(a)(27)(D) provided:
    (i) The alien has performed faithful service to the United States 
Government abroad, or of the American Institute in Taiwan, for a total 
of fifteen years, or more;
    (ii) The principal officer of a Foreign Service establishment (or, 
in the case of the American Institute in Taiwan, the Director), 
recommends granting special immigrant status to such alien in 
exceptional circumstances;
    (iii) The Secretary of State, or designee, approves such 
recommendation and finds that it is in the national interest to grant 
such status.
    (b) Petition requirement. An alien who seeks classification as a 
special immigrant under INA 203(b)(4) based on service as an employee to 
the U.S. government abroad or American Institute in Taiwan must file a 
Form DS-1884, Petition to Classify Special Immigrant under INA 203(b)(4) 
as an Employee or Former Employee of the U.S. Government Abroad, with 
the Department of State. An alien may file such a petition only after, 
but within one year of, notification from the Department that the 
Secretary of State or designee has approved a recommendation from the 
principal officer that special immigrant status be accorded the alien in 
exceptional circumstances, and has found it in the national interest to 
do so.
    (1) Petition fees. The Secretary of State shall establish a fee for 
the filing of a petition to accord status under INA 203(b)(4) which 
shall be collected following notification that the Secretary of State, 
or designee, has approved the recommendation that the alien be granted 
status as a special immigrant under INA 101(a)(27)(D).
    (2) Establishing priority date. The priority date of an alien 
seeking status under INA 203(b)(4) as a special immigrant described in 
101(a)(27)(D) shall be the date on which the petition to accord such 
classification, the DS-1884, is filed. The filing date of the petition 
is the date on which a properly completed form and the required fee are 
accepted by a Foreign Service post. Pursuant to INA 203(d), and whether 
or not named in the petition, the spouse or child of an alien classified 
under INA 203(b)(4), if not otherwise entitled to an immigrant status 
and the immediate issuance of a visa, is entitled to the classification 
and priority date of the beneficiary of the petition.

[[Page 202]]

    (3) Delegation of authority to approve petitions. The authority to 
approve petitions to accord status under INA 203(b)(4) to an alien 
described in INA 101(a)(27)(D) is hereby delegated to the chief consular 
officer at the post of recommendation or, in the absence of the consular 
officer, to any alternate approving officer designated by the principal 
officer. Such authority may not be exercised until the Foreign Service 
post has received formal notification of the Secretary of State or 
designee's approval of special immigrant status for the petitioning 
alien.
    (4) Petition validity. Except as noted in this paragraph, the 
validity of a petition approved for classification under INA 203(b)(4) 
shall be six months beyond the date of the Secretary of State's approval 
thereof or the availability of a visa number, whichever is later.
    (5) Extension of special immigrant status and petition validity. If 
the principal officer of a post concludes that circumstances in a 
particular case are such that an extension of validity of the Secretary 
of State or designee's approval of the principal officer's 
recommendation or of the petition would be in the national interest, the 
principal officer shall recommend to the Secretary of State or designee 
that such validity be extended for not more than one additional year.
    (c) Definitions--(1) Full-time service. An alien must have been 
employed for a total of at least 15 full-time years, or the equivalent 
thereof, in the service of the U.S. government abroad. The number of 
hours per week that qualify an employee as full-time is dependent on 
local law and prevailing practice in the country where the alien is or 
was employed, as reflected in the employment documentation submitted 
with the application for special immigrant status. An alien may qualify 
as a special immigrant under INA 101(a)(27)(D) on the basis of 
employment abroad with one or more than one agency of the U.S. 
government provided the total amount of full-time service with the U.S. 
government is 15 years or more, or the equivalent thereof.
    (2) Faithful service. An alien must have performed faithfully in the 
position held. The principal officer has the primary responsibility for 
determining whether the alien's service meets this requirement. A record 
of disciplinary actions that have been taken against the alien does not 
automatically disqualify the alien. The principal officer must assess 
the disciplinary action in light of the extent and gravity of the 
misconduct and when it occurred and determine whether the record as a 
whole, notwithstanding disciplinary actions, is one of faithful service.
    (3) Continuity. The alien's period of service need not have been 
continuous.
    (4) Abroad. The service must have occurred anywhere outside the 
United States, as the term ``United States'' is defined in INA 
101(a)(38).
    (5) Employment at the American Institute in Taiwan. INA 
101(a)(27)(D) permits both present and former employees of the American 
Institute in Taiwan to apply for special immigrant status. An alien's 
service before and after the founding of the American Institute in 
Taiwan is counted toward the minimum 15 years of service requirement.
    (6) Honorably retired. Separations within the meaning of ``honorably 
retired'' include, for example, those resulting from mandatory or 
voluntary retirement, reduction-in-force, or resignation for personal 
reasons. Separations not within the meaning of ``honorably retired'' 
would include a termination for cause or an involuntary termination or 
resignation in lieu of a termination for cause.
    (7) Definition of exceptional circumstances. The principal officer 
must determine that an alien demonstrates at least one form of 
``exceptional circumstances'' to support an application for special 
immigrant status.
    (i) Prima facie indicators of exceptional circumstances. In the 
following situations an alien's service with the U.S. government 
generally will be deemed to have met exceptional circumstances.
    (A) Diplomatic relations between the alien's country of nationality 
and the United States have been severed;
    (B) Diplomatic relations between the country in which the alien was 
employed and the United States have been severed;

[[Page 203]]

    (C) The country in which the alien was employed and the United 
States have strained relations and the employee may be subjected to 
retribution by the local, State, Federal, or other official government 
body merely because of association with the U.S. government, or the 
alien may be pressured to divulge information contrary to U.S. national 
interests; or
    (D) The alien was hired as an employee at the Consulate General at 
Hong Kong on or before July 1, 1999.
    (ii) Strong indicators of exceptional circumstances. (A) It is 
believed that continued service to the U.S. government might endanger 
the life of the alien;
    (B) The alien has, fulfilled responsibilities or given service in a 
manner that approaches the heroic;
    (C) The alien has been awarded a global or a regional ``Foreign 
Service National of the Year'' Award;
    (D) The alien has disclosed waste, fraud or abuse, a substantial and 
specific danger to public health or safety, or a violation of law, rule, 
or regulation within the Department or other U.S. government agency, if 
such disclosure results in significant action by the Department or other 
U.S. government agency against an offending party, such as termination 
or severance of a contractual relationship, or criminal charges against 
any person or entity;
    (E) The employee has served the U.S. government for a period of 
twenty years or more.
    (8) Immediate intent to immigrate. (i) The recommendation of the 
principal officer must certify that the employee being recommended is 
prepared to pursue an immigrant visa application within one year of the 
Department's notification to the post of approval of special immigrant 
status and, if the employee is not honorably retired, that the employee 
intends permanent separation from U.S. government employment abroad no 
later than the date of departure for the United States following 
issuance of an immigrant visa.
    (ii) Employees of Hong Kong Consulate General hired on or before 
July 1, 1999, are not required to establish immediate intent to 
immigrate. Employees of the Hong Kong Consulate General who received or 
were approved for special immigrant status before July 1, 1999, also may 
continue employment with the U.S. government.

[85 FR 36326, June 16, 2020]



                           Subpart E_Petitions



Sec.  42.41  Effect of approved petition.

    Consular officers are authorized to grant to an alien the immediate 
relative or preference status accorded in a petition approved in the 
alien's behalf upon receipt of the approved petition or official 
notification of its approval. The status shall be granted for the period 
authorized by law or regulation. The approval of a petition does not 
relieve the alien of the burden of establishing to the satisfaction of 
the consular officer that the alien is eligible in all respects to 
receive a visa.

[56 FR 49682, Oct. 1, 1991]



Sec.  42.42  Petitions for immediate relative or preference status.

    Petition for immediate relative or preference status. The consular 
officer may not issue a visa to an alien as an immediate relative 
entitled to status under 201(b), a family-sponsored immigrant entitled 
to preference status under 203(a)(1)-(4), or an employment-based 
preference immigrant entitled to status under INA 203(b)(1)-(5), unless 
the officer has received a petition filed and approved in accordance 
with INA 204 or official notification of such filing and approval.

[56 FR 49682, Oct. 1, 1991]



Sec.  42.43  Suspension or termination of action in petition cases.

    (a) Suspension of action. The consular officer shall suspend action 
in a petition case and return the petition, with a report of the facts, 
for reconsideration by DHS if the petitioner requests suspension of 
action, or if the officer knows or has reason to believe that approval 
of the petition was obtained by fraud, misrepresentation, or other 
unlawful means, or that the beneficiary is not entitled, for some other 
reason, to the status approved.
    (b) Termination of action. (1) The consular officer shall terminate 
action in a petition case upon receipt from DHS

[[Page 204]]

of notice of revocation of the petition in accordance with DHS 
regulations.
    (2) The consular officer shall terminate action in a petition case 
subject to the provisions of INA 203(g) in accordance with the 
provisions of Sec.  42.83.

[56 FR 49682, Oct. 1, 1991]



             Subpart F_Numerical Controls and Priority Dates

    Source: 56 FR 51174, Oct. 10, 1991, unless otherwise noted.



Sec.  42.51  Department control of numerical limitations.

    (a) Centralized control. Centralized control of the numerical 
limitations on immigration specified in INA 201, 202, and 203 is 
established in the Department. The Department shall limit the number of 
immigrant visas that may be issued and the number of adjustments of 
status that may be granted to aliens subject to these numerical 
limitations to a number:
    (1) Not to exceed 27 percent of the world-wide total made available 
under INA 203 (a), (b) and (c) in any of the first three quarters of any 
fiscal year; and
    (2) Not to exceed, in any month of a fiscal year, 10% of the world-
wide total made available under INA 203 (a), (b) and (c) plus any 
balance remaining from authorizations for preceding months in the same 
fiscal year.
    (b) Allocation of numbers. Within the foregoing limitations, the 
Department shall allocate immigrant visa numbers for use in connection 
with the issuance of immigrant visas and adjustments based on the 
chronological order of the priority dates of visa applicants classified 
under INA 203 (a) and (b) reported by consular officers pursuant to 
Sec.  42.55(b) and of applicants for adjustment of status as reported by 
officers of the DHS, taking into account the requirements of INA 202(e) 
in such allocations. In the case of applicants under INA 203(c), visa 
numbers shall be allocated within the limitation for each specified 
geographical region in the random order determined in accordance with 
sec. 42.33(c) of this part.
    (c) Recaptured visa numbers. An immigrant visa number shall be 
returned to the Department for reallocation within the fiscal year in 
which the visa was issued when:
    (1) An immigrant having an immigrant visa is excluded from the 
United States and deported;
    (2) An immigrant does not apply for admission to the United States 
before the expiration of the validity of the visa;
    (3) An alien having a preference immigrant visa is found not to be a 
preference immigrant; or
    (4) An immigrant visa is revoked pursuant to Sec.  42.82.

[56 FR 51174, Oct. 10, 1991, as amended at 59 FR 15302, Mar. 31, 1994; 
63 FR 48578, Sept. 11, 1998]



Sec.  42.52  Post records of visa applications.

    (a) Waiting list. Records of individual visa applicants entitled to 
an immigrant classification and their priority dates shall be maintained 
at posts at which immigrant visas are issued. These records shall 
indicate the chronological and preferential order in which consideration 
may be given to immigrant visa applications within the several immigrant 
classifications subject to the numerical limitations specified in INA 
201, 202, and 203. Similar records shall be kept for the classes 
specified in INA 201(b)(2) and 101(a)(27) (A) and (B) which are not 
subject to numerical limitations. The records which pertain to 
applicants subject to numerical limitations constitute ``waiting lists'' 
within the meaning of INA 203(e)(3) as redesignated by the Immigration 
Act of 1990.
    (b) Entitlement to immigrant classification. An alien shall be 
entitled to immigrant classification if the alien:
    (1) Is the beneficiary of an approved petition according immediate 
relative or preference status;
    (2) Has satisfied the consular officer that the alien is entitled to 
special immigrant status under INA(101)(a)(27) (A) or (B);
    (3) Is entitled to status as a Vietnam Amerasian under section 
584(b)(1) of section 101(e) of Public Law 100-202 as amended by Public 
Law 101-167 and re-amended by Public Law 101-513; or

[[Page 205]]

    (4) Beginning in FY-95, is entitled to status as a diversity 
immigrant under INA 203(c).
    (c) Record made when entitlement to immigrant classification is 
established. (1) A record that an alien is entitled to an immigrant visa 
classification shall be made whenever the consular officer is 
satisfied--or receives evidence--that the alien is within the criteria 
set forth in paragraph (b) of this section.
    (2) A separate record shall be made of family members entitled to 
derivative immigrant status whenever the consular officer determines 
that a spouse or child is chargeable to a different foreign state or 
other numerical limitation than the principal alien. The provisions of 
INA 202(b) are to be applied as appropriate when either the spouse or 
parent is reached on the waiting list.
    (3) A separate record shall be made of a spouse or child entitled to 
derivative immigrant status whenever the consular officer determines 
that the principal alien intends to precede the family.

[56 FR 51174, Oct. 9, 1991, as amended at 61 FR 1836, Jan. 24, 1996; 78 
FR 31399, May 24, 2013]



Sec.  42.53  Priority date of individual applicants.

    (a) Preference applicant. The priority date of a preference visa 
applicant under INA 203 (a) or (b) shall be the fiing date of the 
approved petition that accorded preference status.
    (b) Former Western Hemisphere applicant with priority date prior to 
January 1, 1977. Notwithstanding the provisions of paragraph (a) of this 
section, an alien who, prior to January 1, 1977, was subject to the 
numerical limitation specified in section 21(e) of the Act of October 3, 
1965, and who was registered as a Western Hemisphere immigrant with a 
priority date prior to January 1, 1977, shall retain that priority date 
as a preference immigrant upon approval of a petition according status 
under INA 203 (a) or (b).
    (c) Derivative priority date for spouse or child of principal alien. 
A spouse or child of a principal alien acquired prior to the principal 
alien's admission shall be entitled to the priority date of the 
principal alien, whether or not named in the immigrant visa application 
of the principal alien. A child born of a marriage which existed at the 
time of a principal alien's admission to the United States is considered 
to have been acquired prior to the principal alien's admission.



Sec.  42.54  Order of consideration.

    (a) General. Consular officers shall request applicants to take the 
steps necessary to meet the requirements of INA 222(b) in order to apply 
formally for a visa as follows:
    (1) In the chronological order of the priority dates of all 
applicants within each of the immigrant classifications specified in INA 
203 (a) and (b); and
    (2) In the random order established by the Secretary of State for 
each region for the fiscal year for applicants entitled to status under 
INA 203(c).
    (b) [Reserved]

[56 FR 51174, Oct. 10, 1991, as amended at 59 FR 15302, Mar. 31, 1994; 
61 FR 1836, Jan. 24, 1996; 63 FR 48578, Sept. 11, 1998]



Sec.  42.55  Reports on numbers and priority dates of applications on record.

    (a) Consular officers shall report periodically, as the Department 
may direct, the number and priority dates of all applicants subject to 
the numerical limitations prescribed in INA 201, 202, and 203 whose 
immigrant visa applications have been recorded in accordance with Sec.  
42.52(c).
    (b) Documentarily qualified applicants. Consular officers shall also 
report periodically, as the Department may direct, the number and 
priority dates of all applicants described in paragraph (a) of this 
section who have informed the consular office that they have obtained 
the documents required under INA 222(b), for whom the necessary 
clearance procedures have been completed.

[56 FR 51174, Oct. 10, 1991, as amended at 61 FR 1836, Jan. 24, 1996]



                Subpart G_Application for Immigrant Visas



Sec.  42.61  Place of application.

    (a) Alien to apply in consular district of residence. Unless 
otherwise directed by the Department, an alien applying for

[[Page 206]]

an immigrant visa shall make application at the consular office having 
jurisdiction over the alien's place of residence; except that, unless 
otherwise directed by the Department, an alien physically present in an 
area but having no residence therein may make application at the 
consular office having jurisdiction over that area if the alien can 
establish that he or she will be able to remain in the area for the 
period required to process the application. Finally, a consular office 
may, as a matter of discretion, or shall, at the direction of the 
Department, accept an immigrant visa application from an alien who is 
neither a resident of, nor physically present in, the area designated 
for that office for such purpose. For the purposes of this section, an 
alien physically present in the United States shall be considered to be 
a resident of the area of his or her last residence prior to entry into 
the United States.
    (b) Transfer of immigrant visa cases. (1) All documents, papers, and 
other evidence relating to an applicant whose case is pending or has 
been refused at one post may be transferred to another post at the 
applicant's request and risk when there is reasonable justification for 
the transfer and the transferring post has no reason to believe that the 
alien will be unable to appear at the receiving post.
    (2) Any approved petition granting immediate relative or preference 
status should be included among the documents when a case is transferred 
from one post to another.
    (3) In no case may a visa number be transferred from one post to 
another. A visa number which cannot be used as a result of the transfer 
must be returned to the Department immediately.

[52 FR 42613, Nov. 5, 1987, as amended at 59 FR 39955, Aug. 4, 1994]



Sec.  42.62  Personal appearance and interview of applicant.

    (a) Personal appearance of applicant before consular officer. Every 
alien applying for an immigrant visa, including an alien whose 
application is executed by another person pursuant to Sec.  42.63(a)(2), 
shall be required to appear personally before a consular officer for the 
execution of the application or, if in Taiwan, before a designated 
officer of the American Institute in Taiwan, except that the personal 
appearance of any child under the age of 14 may be waived at the 
officer's discretion.
    (b) Interview by consular officer. Every alien executing an 
immigrant visa application must be interviewed by a consular officer who 
shall determine on the basis of the applicant's representations and the 
visa application and other relevant ducumentation--
    (1) The proper immigrant classification, if any, of the visa 
applicant, and
    (2) The applicant's eligibility to receive a visa.

The officer has the authority to require that the alien answer any 
question deemed material to these determinations.

[52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49682, Oct. 1, 1991]



Sec.  42.63  Definitions.

    (a) Application forms--(1) Application on Form DS-230 or Form DS-260 
required. Every alien applying for an immigrant visa must make 
application, as directed by the consular officer, on Form DS-230, 
Application for Immigrant Visa and Alien Registration, or on Form DS-
260, Electronic Application for Immigrant Visa and Alien Registration. 
This requirement may not be waived. Form DS-230 consists of parts I and 
II which, together, are meant in any reference to this Form.
    (2) Application of alien under 14 or physically incapable. The 
application on Form DS-230 or on Form DS-260 for an alien under 14 years 
of age or one physically incapable of completing an application may be 
executed by the alien's parent or guardian, or, if the alien has no 
parent or guardian, by any person having legal custody of, or a 
legitimate interest in, the alien.
    (b) Preparation of forms. The consular officer shall ensure that 
Form DS-230 or Form DS-260 and all other forms an alien is required to 
submit are fully and properly completed in accordance with the 
applicable regulations and instructions.
    (c) Additional information as part of application. The officer may 
require the submission of additional information or question the alien 
on any relevant matter whenever the officer believes that the 
information provided in Form

[[Page 207]]

DS-230 or Form DS-260 is inadequate to determine the alien's eligibility 
to receive an immigrant visa. Additional statements made by the alien 
become a part of the visa application. All documents required under the 
authority of Sec.  42.62 are considered papers submitted with the 
alien's application within the meaning of INA 221(g)(1).

[75 FR 45476, Aug. 3, 2010]



Sec.  42.64  Passport requirements.

    (a) Passport defined. Passport, as defined in INA 101(a)(30), is not 
limited to a national passport or to a single document. A passport may 
consist of two or more documents which, when considered together, 
fulfill the requirements of a passport, provided that documentary 
evidence of permission to enter a foreign country has been issued by a 
competent authority and clearly meets the requirements of INA 
101(a)(30).
    (b) Passport validity requirements. Except as provided in Sec.  
42.2, every applicant for an immigrant visa shall present a passport, as 
defined in INA 101(a)(30), that is valid for at least 60 days beyond the 
period of validity of the visa. The 60-day additional validity 
requirement does not apply to an applicant who would be excepted as 
provided in Sec.  42.2 were it not for the fact that the applicant is 
applying in the country of which the applicant is a national and the 
possession of a passport is required for departure. Such an applicant 
may be issued a visa valid for 6 months or for such shorter period as 
will assure its expiration in unison with the passport.
    (c) A single passport including more than one person. The passport 
requirement of this section may be met by the presentation of a passport 
including more than one person, if such inclusion is authorized under 
the laws or regulations of the issuing authority and if a photograph of 
each person 16 years of age or over is attached to the passport by the 
issuing authority.

[52 FR 42613, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988, as amended at 63 
FR 48578, Sept. 11, 1998]



Sec.  42.65  Supporting documents.

    (a) Authority to require documents. The consular officer is 
authorized to require documents considered necessary to establish the 
alien's eligibility to receive an immigrant visa. All such documents 
submitted and other evidence presented by the alien, including briefs 
submitted by attorneys or other representatives, shall be considered by 
the officer.
    (b) Basic documents required. An alien applying for an immigrant 
visa shall be required to furnish, if obtainable: A copy of a police 
certificate or certificates; a certified copy of any existing prison 
record, military record, and record of birth; and a certified copy of 
all other records or documents which the consular officer considers 
necessary.
    (c) Definitions. (1) Police certificate means a certification by the 
police or other appropriate authorities reporting information entered in 
their records relating to the alien. In the case of the country of an 
alien's nationality and the country of an alien's current residence (as 
of the time of visa application) the term ``appropriate police 
authorities'' means those of a country, area or locality in which the 
alien has resided for at least six months. In the case of all other 
countries, areas, or localities, the term ``appropriate police 
authorities'' means the authorities of any country, area, or locality in 
which the alien has resided for at least one year. A consular officer 
may require a police certificate regardless of length of residence in 
any country if he or she has reason to believe that a police record 
exists in the country, area, or locality concerned.
    (2) Prison record means an official document containing a report of 
the applicant's record of confinement and conduct in a penal or 
correctional institution.
    (3) Military record means an official document containing a complete 
record of the applicant's service and conduct while in military service, 
including any convictions of crime before military tribunals as 
distinguished from other criminal courts. A certificate of discharge 
from the military forces or an enrollment book belonging to the 
applicant shall not be acceptable in lieu of the official military 
record, unless it shows the alien's complete record while in military 
service. The

[[Page 208]]

applicant may, however, be required to present for inspection such a 
discharge certificate or enrollment book if deemed necessary by the 
consular officer to establish the applicant's eligibility to receive a 
visa.
    (4) A certified copy of an alien's record of birth means a 
certificate issued by the official custodian of birth records in the 
country of birth showing the date and place of birth and the parentage 
of the alien, based upon the original registration of birth.
    (5) Other records or documents include any records or documents 
establishing the applicant's relationship to a spouse or children, if 
any, and any records or documents pertinent to a determination of the 
applicant's identity, classification, or any other matter relating to 
the applicant's visa eligibility.
    (d) Unobtainable documents. (1) If the consular officer is 
satisfied, or the catalogue of available documents prepared by the 
Department indicates, that any document or record required under this 
section is unobtainable, the officer may permit the immigrant to submit 
other satisfactory evidence in lieu of such document or record. A 
document or other record shall be considered unobtainable if it cannot 
be procured without causing to the applicant or a family member actual 
hardship as opposed to normal delay and inconvenience.
    (2) If the consular officer determines that a supporting document, 
as described in paragraph (b) of this section, is in fact unobtainable, 
although the catalogue of available documents shows it is available, the 
officer shall affix to the visa application a signed statement 
describing in detail the reasons for considering the record or document 
unobtainable and for accepting the particular secondary evidence 
attached to the visa.
    (e) Authenticity of records and documents. If the consular officer 
has reason to believe that a required record or document submitted by an 
applicant is not authentic or has been altered or tampered with in any 
material manner, the officer shall take such action as may be necessary 
to determine its authenticity or to ascertain the facts to which the 
record or document purports to relate.
    (f) Photographs. Every alien shall furnish color photographs of the 
number and specifications prescribed by the Department, except that, in 
countries where facilities for producing color photographs are 
unavailable as determined by the consular officer, black and white 
photographs may be substituted.

[52 FR 42613, Nov. 5, 1987, as amended at 55 FR 29015, July 17, 1990; 56 
FR 49682, Oct. 1, 1991]



Sec.  42.66  Medical examination.

    (a) Medical examination required of all applicants. Before the 
issuance of an immigrant visa, the consular officer shall require every 
alien, regardless of age, to undergo a medical examination in order to 
determine eligibility to receive a visa.
    (b) Examination by physician from approved panel. The required 
examination shall be conducted in accordance with requirements and 
procedures established by the United States Public Health Service and by 
a physician selected by the alien from a panel of physicians approved by 
the consular officer.
    (c) Facilities required for panel physician. A consular officer 
shall not include the name of a physician on the panel of physicians 
referred to in paragraph (b) of this section unless the physician has 
facilities to perform required serological and X-ray tests or is in a 
position to refer applicants to a qualified laboratory for such tests.



Sec.  42.67  Execution of application, registration, and fingerprinting.

    (a) Execution of visa application--(1) Application fee. A fee is 
prescribed for each application for an immigrant visa. It shall be 
collected prior to the execution of the application and a receipt shall 
be issued.
    (2) Oath and signature on Form DS-230. The applicant shall be 
required to read the Form DS-230, Application for Immigrant Visa and 
Alien Registration, when it is completed, or it shall be read to the 
applicant in the applicant's language, or the applicant shall otherwise 
be informed of its full contents. Applicants shall be asked whether they 
are willing to subscribe thereto. If the applicant is not willing to 
subscribe to

[[Page 209]]

the application unless changes are made in the information stated 
therein, the required changes shall be made. The application shall then 
be sworn to or affirmed and signed by or on behalf of the applicant 
before a consular officer, or a designated officer of the American 
Institute of Taiwan, who shall then sign the application over the 
officer's title.
    (3) Oath and signature on Form DS-260. The applicant shall be 
required to read the Form DS-260, Electronic Application for Immigrant 
Visa and Alien Registration, when it has been completed, or it shall be 
read to the applicant in the applicant's language, or the applicant 
shall otherwise be informed of its full contents, before the applicant 
electronically signs and submits the application to the Department. At 
the time of the applicant's interview the applicant shall be asked 
whether they are willing to subscribe thereto to the information 
provided on Form DS-260. If the alien is not willing to subscribe to the 
application unless changes are made in the information stated therein, 
the required changes shall be made. The application shall then be sworn 
to or affirmed and signed, biometrically, by or on behalf of the 
applicant before a consular officer, or a designated officer of the 
American Institute of Taiwan, who shall then electronically sign the 
application.
    (b) Registration. The alien shall be considered to be registered for 
the purposes of INA 221(b) and 203(g) upon the filing of Form DS-230 or 
Form DS-260, when duly executed, or the transmission by the Department 
to the alien of a notification of the availability of an immigrant visa, 
whichever occurs first.
    (c) Fingerprinting. Every applicant for an immigrant visa must 
furnish fingerprints prior to the execution of Form DS-230 or Form DS-
260.

[75 FR 45476, Aug. 3, 2010]



Sec.  42.68  Informal evaluation of family members if principal applicant 
precedes them.

    (a) Preliminary determination of visa eligibility. If a principal 
applicant proposes to precede the family to the United States, the 
consular officer may arrange for an informal examination of the other 
members of the principal applicant's family in order to determine 
whether there exists at that time any mental, physical, or other ground 
of ineligibility on their part to receive a visa.
    (b) When family member ineligible. In the event the consular officer 
finds that any member of such family would be ineligible to receive an 
immigrant visa, the principal applicant shall be informed and required 
to acknowledge receipt of this information in writing.
    (c) No guarantee of future eligibility. A determination in 
connection with an informal examination that an alien appears to be 
eligible for a visa carries no assurance that the alien will be issued 
an immigrant visa in the future. The principal applicant shall be so 
informed and required to acknowledge receipt of this information in 
writing. The question of visa eligibility can be determined definitively 
only at the time the family member applies for a visa.



                  Subpart H_Issuance of Immigrant Visas



Sec.  42.71  Authority to issue visas; visa fees.

    (a) Authority to issue visas. Consular officers may issue immigrant 
visas at designated consular offices abroad pursuant to the authority 
contained in INA 101(a)(16), 221(a), and 224.
    (b) Immigrant visa fees--(1) Payment of fees. The Secretary of State 
prescribes a fee for the processing of immigrant visa applications. 
Except as provided in paragraph (b)(2) of this section, an individual 
registered for immigrant visa processing at a post designated for this 
purpose by the Deputy Assistant Secretary for Visa Services must pay the 
fee upon being notified that a visa is expected to become available in 
the near future, and upon being requested to obtain the supporting 
documentation needed to apply formally for a visa, in accordance with 
instructions received with such notification. The fee must be paid 
before an applicant at a post so designated will receive an appointment 
to appear and make application before a consular officer. Applicants at 
a post not yet so designated will pay the fee immediately prior to

[[Page 210]]

formal application for a visa. A fee collected for the processing of an 
immigrant visa application is refundable only if the principal officer 
of a post or the officer in charge of a consular section determines that 
the application was not adjudicated as a result of action by the U.S. 
Government over which the alien had no control and for which the alien 
was not responsible, which precluded the applicant from benefitting from 
the processing, or as provided in paragraph (b)(2).
    (2) Waiver or refund of fees for replacement immigrant visas. The 
consular officer shall waive the application processing fee for a 
replacement immigrant visa or, upon request, refund such a fee where 
already paid, if the consular officer is satisfied that the alien, the 
alien's parent(s), or the alien's representative has established that:
    (i) The prior immigrant visa was issued on or after March 27, 2013, 
to an alien who has been lawfully adopted, or who is coming to the 
United States to be adopted, by a United States citizen;
    (ii) The alien was unable to use the original immigrant visa during 
the period of its validity as a direct result of extraordinary 
circumstances, including the denial of an exit permit; and
    (iii) The inability to use the visa was attributable to factors 
beyond the control of the adopting parent or parents and of the alien.

[84 FR 35298, July 23, 2019]



Sec.  42.72  Validity of visas.

    (a) Period of validity. With the exception indicated herein, the 
period of validity of an immigrant visa shall not exceed six months, 
beginning with the date of issuance. Any visa issued to a child lawfully 
adopted by a U.S. citizen and spouse while such citizen is serving 
abroad in the U.S. Armed Forces, is employed abroad by the U.S. 
Government, or is temporarily abroad on business, however, shall be 
valid until such time, for a period not to exceed 3 years, as the 
adoptive citizen parent returns to the United States in the course of 
that parent's military service, U.S. Government employment, or business.
    (b) Extension of period of validity. If the visa was originally 
issued for a period of validity less than the maximum authorized by 
paragraph (a) of this section, the consular officer may extend the 
validity of the visa up to but not exceeding the maximum period 
permitted. If an immigrant applies for an extension at a consular office 
other than the issuing office, the consular officer shall, unless the 
officer is satisfied beyond doubt that the alien is eligible for the 
extension, communicate with the issuing office to determine if there is 
any objection to an extension. In extending the period of validity, the 
officer shall make an appropriate notation on the visa of the new 
expiration date, sign the document with title indicated, and impress the 
seal of the office thereon.
    (c) [Reserved]
    (d) Age and marital status in relation to validity of certain 
immigrant visas. In accordance with Sec.  42.64(b), the validity of a 
visa may not extend beyond a date sixty days prior to the expiration of 
the passport. The period of validity of a visa issued to an immigrant as 
a child shall not extend beyond the day immediately proceding the date 
on which the alien becomes 21 years of age. The consular officer shall 
warn an alien, when appropriate, that the alien will be admissible as 
such an immigrant only if unmarried and under 21 years of age at the 
time of application for admission at a U.S. port of entry. The consular 
officer shall also warn an alien issued a visa as a first or second 
preference immigrant as an unmarried son or daughter of a citizen or 
lawful permanent resident of the United States that the alien will be 
admissible as such an immigrant only if unmarried at the time of 
application for admission at a U.S. port of entry.

[52 FR 42613, Nov. 5, 1987, as amended at 56 FR 32323, July 16, 1991; 61 
FR 1836, Jan. 24, 1996; 62 FR 27694, May 21, 1997; 64 FR 28916, May 28, 
1999; 67 FR 38894, June 6, 2002; 68 FR 13628, Mar. 20, 2003]



Sec.  42.73  Procedure in issuing visas.

    (a) Evidence of visa. An immigrant visa shall be evidenced by a 
physical visa or by an electronic visa located in the Department's 
records. The appropriate symbol as prescribed in Sec.  42.11, showing 
the classification of the alien, shall be entered on the visa.
    (b) Visa format. A machine-readable visa shall be in the format 
designated

[[Page 211]]

by the Department, and contain, at a minimum, the following data:
    (1) Full name of the immigrant;
    (2) Visa symbol;
    (3) Location of the visa issuing office;
    (4) Passport number;
    (5) The registration number (A-number) assigned to the immigrant;
    (6) Sex;
    (7) Date of birth;
    (8) Nationality;
    (9) Date of issuance;
    (10) Date of expiration;
    (11) Visa control number;
    (12) Any annotations entered to reflect waivers or other information 
useful to an immigration officer at a port of entry (POE) upon the 
immigrant's application for admission to the United States;
    (13) A digitized photo of the immigrant; and
    (14) Machine-readable data that can be processed by an immigration 
officer at a POE.
    (c) Disposition of supporting documents. Post shall, wherever 
possible, return original supporting documents furnished by the alien. 
Duplicate copies may be retained in the consular system, as required or 
necessary.

[84 FR 35299, July 23, 2019]



Sec.  42.74  Issuance of new, replacement, or duplicate visas.

    (a) New immigrant visa for a special immigrant under INA 
101(a)(27)(A) and (B). The consular officer may issue a new immigrant 
visa to a qualified alien entitled to status under INA 101(a)(27)(A) or 
(B), who establishes:
    (1)(i) That the original visa has been lost, mutilated or has 
expired; or
    (ii) That the alien will be unable to use it during the period of 
its validity; provided that:
    (A) The alien pays anew the application processing fees prescribed 
in the Schedule of Fees (22 CFR 22.1); and
    (B) The consular officer ascertains whether the original issuing 
office knows of any reason why a new visa should not be issued.
    (2) [Reserved]
    (b) Replacement immigrant visa for an immediate relative or for an 
alien subject to numerical limitation. A consular officer may issue a 
replacement visa under the original number of a qualified alien entitled 
to status as an immediate relative (INA 201(b)(2)), a family or 
employment preference immigrant (INA 203(a) or (b)), or a diversity 
immigrant (INA 203(c)), if--
    (1) The alien is unable to use the visa during the period of its 
validity due to reasons beyond the alien's control;
    (2) The visa is issued during the same fiscal year in which the 
original visa was issued, or in the following year in the case of an 
immediate relative only, if the original number had been reported as 
recaptured;
    (3) The number has not been returned to the Department as a 
``recaptured visa number'' in the case of a preference or diversity 
immigrant;
    (4) The alien pays anew the application processing fees prescribed 
in the Schedule of Fees; and
    (5) The consular officer ascertains whether the original issuing 
office knows of any reason why a new visa should not be issued.
    (c) Replacement visa for adoptees. A consular officer may issue a 
replacement immigrant visa to a qualified alien, if the conditions in 
paragraphs (a)(1) and (3) of this section are met, and if the consular 
officer determines--
    (1) A prior immigrant visa was issued on or after March 27, 2013, to 
a child who has been lawfully adopted, or who is coming to the United 
States to be adopted, by a United States citizen;
    (2) The inability to use the visa was attributable to factors beyond 
the control of the adoptee or the adopting parent(s); and
    (3) The application processing fee has been waived pursuant to Sec.  
42.71(b)(2) or has been paid anew.
    (d) Duplicate visas issued within the validity period of the 
original visa. If the validity of a visa previously issued has not yet 
terminated and the original visa has been lost or mutilated, a duplicate 
visa may be issued containing all of the information appearing on the 
original visa, including the original issuance and expiration dates. The 
applicant shall execute a new application and provide copies of the 
supporting documents submitted in support of the original application. 
The alien must pay anew the application processing fees prescribed in 
the Schedule of Fees.

[84 FR 35299, July 23, 2019]

[[Page 212]]



     Subpart I_Refusal, Revocation, and Termination of Registration



Sec.  42.81  Procedure in refusing immigrant visas.

    (a) Grounds for refusal. When a visa application has been properly 
completed and executed before a consular officer in accordance with the 
provisions of the INA and the implementing regulations, the consular 
officer must issue the visa, refuse the visa under INA 212(a) or 221(g) 
or other applicable law or, pursuant to an outstanding order under INA 
243(d), discontinue granting the visa.
    (b) Refusal procedure. A consular officer may not refuse an 
immigrant visa until either Form DS-230, Application for Immigrant Visa 
and Alien Registration, or Form DS-260, Electronic Application for 
Immigrant Visa and Alien Registration, has been executed by the 
applicant. When an immigrant visa is refused, an appropriate record 
shall be made in duplicate on a form prescribed by the Department. The 
form shall be signed and dated by the consular officer. The consular 
officer shall inform the applicant of the provision of law or 
implementing regulation on which the refusal is based and of any 
statutory provision of law or implementing regulation under which 
administrative relief is available. Each document related to the refusal 
shall then be attached to Form DS-230 for retention in the refusal 
files. Alternatively, each document related to the refusal shall be 
electronically scanned and electronically attached to Form DS-260 for 
retention in the electronic refusal files. Any documents not related to 
the refusal shall be returned to the applicant. The original copy of a 
document that was scanned and attached to the DS-260 for the refusal 
file shall be returned to the applicant. If the ground of ineligibility 
may be overcome by the presentation of additional evidence and the 
applicant indicates an intention to submit such evidence, all documents 
may, with the consent of the alien, be retained in the consular files 
for a period not to exceed one year. If the refusal as not been overcome 
within one year, any documents not relating to the refusal shall be 
removed from the file and returned to the alien.
    (c) Review of refusal at consular office. If the grounds of 
ineligibility upon which the visa was refused cannot be overcome by the 
presentation of additional evidence, the principal consular officer at a 
post, or a specifically designated alternate, shall review the case 
without delay, record the review decision, and sign and date the 
prescribed form. If the grounds of ineligibility may be overcome by the 
presentation of additional evidence and the applicant indicates the 
intention to submit such evidence, a review of the refusal may be 
deferred. If the principal consular officer or alternate does not concur 
in the refusal, that officer shall either (1) refer the case to the 
Department for an advisory opinion, or (2) assume responsibility for 
final action on the case.
    (d) Review of refusal by Department. The Department may request a 
consular officer in an individual case or in specified classes of cases 
to submit a report if an immigrant visa has been refused. The Department 
will review each report and may furnish an advisory opinion to the 
consular officer for assistance in considering the case further. If the 
officer believes that action contrary to an advisory opinion should be 
taken, the case shall be resubmitted to the Department with an 
explanation of the proposed action. Rulings of the Department concerning 
an interpretation of law, as distinguished from an application of the 
law to the facts, are binding upon consular officers.
    (e) Reconsideration of refusal. If a visa is refused, and the 
applicant within one year from the date of refusal adduces further 
evidence tending to overcome the ground of ineligibility on which the 
refusal was based, the case shall be reconsidered. In such circumstance, 
an additional application fee shall not be required.

[52 FR 42613, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988, as amended at 66 
FR 10364, Feb. 15, 2001; 71 FR 34522, June 15, 2006; 75 FR 45477, Aug. 
3, 2010; 84 FR 16612, Apr. 22, 2019]



Sec.  42.82  Revocation of visas.

    (a) Grounds for revocation by consular officers. A consular officer, 
the Secretary, or any Department official to whom the Secretary has 
delegated this authority is authorized to revoke an

[[Page 213]]

immigrant visa at any time, in his or her discretion.
    (b) Provisional revocation. A consular officer, the Secretary, or 
any Department official to whom the Secretary has delegated this 
authority may provisionally revoke an immigrant visa while considering 
information related to whether a visa holder is eligible for the visa. 
Provisional revocation shall have the same force and effect as any other 
visa revocation under INA 221(i).
    (c) Notice of revocation. Unless otherwise instructed by the 
Department, a consular officer shall, if practicable, notify the alien 
to whom the visa was issued that the visa was revoked or provisionally 
revoked. Regardless of delivery of such notice, once the revocation has 
been entered into the Department's Consular Lookout and Support System 
(CLASS), the visa is no longer to be considered valid for travel to the 
United States. The date of the revocation shall be indicated in CLASS 
and on any notice sent to the alien to whom the visa was issued.
    (d) Procedure for physically canceling visas. An immigrant visa that 
is revoked shall be canceled by writing or stamping the word ``REVOKED'' 
plainly across the face of the visa, if the visa is available to the 
consular officer. The failure or inability to physically cancel the visa 
does not affect the validity of the revocation.

[76 FR 23479, Apr. 27, 2011]



Sec.  42.83  Termination of registration.

    (a) Termination following failure of applicant to apply for visa. In 
accordance with INA 203(g), an alien's registration for an immigrant 
visa shall be terminated if, within one year after transmission of a 
notification of the availability of an immigrant visa, the applicant 
fails to apply for an immigrant visa.
    (b) Termination following visa refusal. An alien's registration for 
an immigrant visa shall be terminated if, within one year following the 
refusal of the immigrant visa application under INA 221(g), the alien 
has failed to present to a consular officer evidence purporting to 
overcome the basis for refusal.
    (c) Notice of termination. Upon the termination of registration 
under paragraph (a) of this section, the National Visa Center (NVC) 
shall notify the alien of the termination. The NVC shall also inform the 
alien of the right to have the registration reinstated if the alien, 
before the end of the second year after the missed appointment date if 
paragraph (a) applies, establishes to the satisfaction of the consular 
officer at the post where the alien is registered that the failure to 
apply for an immigrant visa was due to circumstances beyond the alien's 
control. If paragraph (b) applies, the consular officer at the post 
where the alien is registered shall, upon the termination of 
registration, notify the alien of the termination and the right to have 
the registration reinstated if the alien, before the end of the second 
year after the INA 221(g) refusal, establishes to the satisfaction of 
the consular officer at such post that the failure to present evidence 
purporting to overcome the ineligibility under INA 221(g) was due to 
circumstances beyond the alien's control.
    (d) Reinstatement of registration. If the consular officer is 
satisfied that an alien, as provided for in paragraph (c) of this 
section, has established that failure to apply as scheduled for an 
immigrant visa or to present evidence purporting to overcome 
ineligibility under INA 221(g) was due to circumstances beyond the 
alien's control, the consular officer shall reinstate the alien's 
registration for an immigrant visa. Any petition approved under INA 
204(b) which had been automatically revoked as a result of the 
termination of registration shall be considered to be automatically 
reinstated if the registration is reinstated.
    (e) Interpretation of ``circumstances beyond alien's control''. For 
the purpose of this section, the term ``circumstances beyond the alien's 
control'' includes, but is not limited to, an illness or other physical 
disability preventing the alien from traveling, a refusal by the 
authorities of the country of an alien's residence to grant the alien 
permission to depart as an immigrant, and foreign military service.

[52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49682, Oct. 1, 1991; 73 
FR 11028, Feb. 29, 2008]

[[Page 214]]



Sec.  42.84  Discontinuance of granting immigrant visa pursuant to INA 243(d).

    (a) Grounds for discontinuance of granting a visa. Consular officers 
in a country subject to an order by the Secretary under INA 243(d) shall 
discontinue granting immigrant visas for categories of immigrant visas 
specified in the order of the Secretary (or his or her designee), and 
pursuant to procedures dictated by the Department.
    (b) Discontinuance procedure--(1) Applications refused or 
discontinued only. Starting on the day the Secretary's (or designee's) 
order to discontinue granting visas takes effect (effective date), no 
visas falling within the scope of the order, as described by the order, 
may be issued in the referenced country to an applicant who falls within 
the scope of the order, except as otherwise expressly provided in the 
order or related Department instructions. Beginning on the effective 
date, a consular officer must refuse the visa if the individual is not 
eligible for the visa under INA 212(a), INA 221(g), or other applicable 
law, but if the applicant is otherwise eligible must process the 
application by discontinuing granting, regardless of when the 
application was filed, if the applicant falls within the scope of the 
order and no exception applies. The application processing fee will not 
be refunded. The requirement to discontinue issuance may not be waived, 
and continues until the sanction is terminated as described below. In 
the case of diversity immigrant selectees applying under INA 203(c), if 
the discontinuance of granting has not been lifted by the end of the 
fiscal year, the applicant will not be eligible for a diversity visa for 
that fiscal year, regardless of the status of the diversity immigrant 
visa application at the time 243(d) sanctions were imposed.
    (2) Geographic applicability. Visa sanctions under INA 243(d) only 
apply to visa issuance in the country that is sanctioned. If a consular 
officer has a reason to believe that a visa applicant potentially 
subject to INA 243(d) sanctions is applying at a post outside the 
sanctioned country to evade visa sanctions under INA 243(d), (e.g., the 
applicant provides no credible explanation for applying outside the 
country) the consular officer will transfer the case to the consular 
post in the consular district where INA 243(d) sanctions apply, review 
any other applicable Department instructions and proceed accordingly. 
When cases are transferred to a consular district where INA 243(d) 
sanctions apply, the adjudication will be subject to the discontinuation 
of issuance under the sanctions.
    (c) Termination of sanction. The Department shall notify consular 
officers in an affected country the sanction under INA 243(d) has been 
lifted. After notification, normal consular operations may resume 
consistent with these regulations and guidance from the Department. Once 
the sanction under INA 243(d) is lifted, no new application processing 
fees are required in cases where issuance has been discontinued pursuant 
to an INA 243(d) order, and consular officers in the affected post must 
adjudicate the visa application consistent with regulations and 
Department guidance. Consular officers may require applicants to update 
the visa application forms, must conduct any necessary adjudicatory 
steps, and may re-interview to determine eligibility. In numerically 
controlled immigrant visa categories, an applicant's immigrant visa 
priority date may no longer be current once sanctions under INA 243(d) 
are lifted, in which case the applicant must await visa availability.

[84 FR 16613, Apr. 22, 2019]

                         PARTS 43	45 [RESERVED]



PART 46_CONTROL OF ALIENS DEPARTING FROM THE UNITED STATES--Table of Contents



Sec.
46.1 Definitions.
46.2 Authority of departure-control officer to prevent alien's departure 
          from the United States.
46.3 Aliens whose departure is deemed prejudicial to the interests of 
          the United States.
46.4 Procedure in case of alien prevented from departing from the United 
          States.
46.5 Hearing procedure before special inquiry officer.
46.6 Departure from the Canal Zone, the Trust Territory of the Pacific 
          Islands, or outlying possessions of the United States.

[[Page 215]]

46.7 Instructions from the Administrator required in certain cases.

    Authority: Secs. 104, 215, 66 Stat. 174, 190; 8 U.S.C. 1104, 1185.



Sec.  46.1  Definitions.

    For the purposes of this part:
    (a) The term alien means any person who is not a citizen or national 
of the United States.
    (b) The term Commissioner means the Commissioner of Immigration and 
Naturalization.
    (c) The term regional commissioner means an officer of the 
Immigration and Naturalization Service duly appointed or designated as a 
regional commissioner, or an officer who has been designated to act as a 
regional commissioner.
    (d) The term district director means an officer of the Immigration 
and Naturalization Service duly appointed or designated as a district 
director, or an officer who has been designated to act as a district 
director.
    (e) The term United States means the several States, the District of 
Columbia, the Canal Zone, Puerto Rico, the Virgin Islands, Guam, 
American Samoa, Swains Island, the Trust Territory of the Pacific 
Islands, and all other territory and waters, continental and insular, 
subject to the jurisdiction of the United States.
    (f) The term continental United States means the District of 
Columbia and the several States, except Alaska and Hawaii.
    (g) The term geographical part of the United States means (1) the 
continental United States, (2) Alaska, (3) Hawaii, (4) Puerto Rico, (5) 
the Virgin Islands, (6) Guam, (7) the Canal Zone, (8) American Samoa, 
(9) Swains Island, or (10) the Trust Territory of the Pacific Islands.
    (h) The term depart from the United States means depart by land, 
water, or air (1) from the United States for any foreign place, or (2) 
from one geographical part of the United States for a separate 
geographical part of the United States: Provided, That a trip or journey 
upon a public ferry, passenger vessel sailing coastwise on a fixed 
schedule, excursion vessel, or aircraft, having both termini in the 
continental United States or in any one of the other geographical parts 
of the United States and not touching any territory or waters under the 
jurisdiction or control of a foreign power, shall not be deemed a 
departure from the United States.
    (i) The term departure-control officer means any immigration officer 
as defined in the regulations of the Immigration and Naturalization 
Service who is designated to supervise the departure of aliens, or any 
officer or employee of the United States designated by the Governor of 
the Canal Zone, the High Commissioner of the Trust Territory of the 
Pacific Islands, or the governor of an outlying possession of the United 
States, to supervise the departure of aliens.
    (j) The term port of departure means a port in the continental 
United States, Alaska, Guam, Hawaii, Puerto Rico or the Virgin Islands, 
designated as a port of entry by the Attorney General or by the 
Commissioner, or in exceptional circumstances such other place as the 
departure-control officer may, in his discretion, designate in an 
individual case, or a port in American Samoa, Swains Island, the Canal 
Zone, or the Trust Territory of the Pacific Islands, designated as a 
port of entry by the chief executive officer thereof.
    (k) The term special inquiry officer shall have the meaning ascribed 
thereto in section 101(b)(4) of the Immigration and Nationality Act.

[22 FR 10827, Dec. 27, 1957, as amended at 25 FR 7022, July 23, 1960]



Sec.  46.2  Authority of departure-control officer to prevent alien's 
departure from the United States.

    (a) No alien shall depart, or attempt to depart, from the United 
States if his departure would be prejudicial to the interests of the 
United States under the provisions of Sec.  46.3. Any departure-control 
officer who knows or has reason to believe that the case of an alien in 
the United States comes within the provisions of Sec.  46.3 shall 
temporarily prevent the departure of such alien from the United States 
and shall serve him with a written temporary order directing him not to 
depart, or attempt to depart, from the United States until notified of 
the revocation of the order.

[[Page 216]]

    (b) The written order temporarily preventing an alien, other than an 
enemy alien, from departing from the United States shall become final 15 
days after the date of service thereof upon the alien, unless prior 
thereto the alien requests a hearing as hereinafter provided. At such 
time as the alien is served with an order temporarily preventing his 
departure from the United States, he shall be notified in writing 
concerning the provisions of this paragraph, and shall be advised of his 
right to request a hearing if entitled thereto under Sec.  46.4. In the 
case of an enemy alien, the written order preventing departure shall 
become final on the date of its service upon the alien.
    (c) Any alien who seeks to depart from the United States may be 
required, in the discretion of the departure-control officer, to be 
examined under oath and to submit for official inspection all documents, 
articles, and other property in his possession which are being removed 
from the United States upon, or in connection with, the alien's 
departure. The departure-control officer may permit such other persons, 
including officials of the Department of State and interpreters, to 
participate in such examination or inspection and may exclude from 
presence at such examination or inspection any person whose presence 
would not further the objectives of such examination or inspection. The 
departure-control officer shall temporarily prevent the departure of any 
alien who refuses to submit to such examination or inspection, and may, 
if necessary to cause the alien to submit to such examination or 
inspection, take possession of the alien's passport or other travel 
document or issue a subpoena requiring the alien to submit to such 
examination or inspection.

[22 FR 10827, Dec. 27, 1957, as amended at 45 FR 64174, Sept. 29, 1980]



Sec.  46.3  Aliens whose departure is deemed prejudicial to the interests 
of the United States.

    The departure from the United States of any alien within one or more 
of the following categories shall be deemed prejudicial to the interest 
of the United States:
    (a) Any alien who is in possession of, and who is believed likely to 
disclose to unauthorized persons, information concerning the plans, 
preparations, equipment, or establishments for the national defense and 
security of the United States.
    (b) Any alien who seeks to depart from the United States to engage 
in, or who is likely to engage in, activities of any kind designed to 
obstruct, impede, retard, delay or counteract the effectiveness of the 
national defense of the United States or the measures adopted by the 
United States or the United Nations for the defense of any other 
country.
    (c) Any alien who seeks to depart from the United States to engage 
in, or who is likely to engage in, activities which would obstruct, 
impede, retard, delay, or counteract the effectiveness of any plans made 
or action taken by any country cooperating with the United States in 
measures adopted to promote the peace, defense, or safety of the United 
States or such other country.
    (d) Any alien who seeks to depart from the United States for the 
purpose of organizing, directing, or participating in any rebellion, 
insurrection, or violent uprising in or against the United States or a 
country allied with the United States, or of waging war against the 
United States or its allies, or of destroying, or depriving the United 
States of sources of supplies or materials vital to the national defense 
of the United States, or to the effectiveness of the measures adopted by 
the United States for its defense, or for the defense of any other 
country allied with the United States.
    (e) Any alien who is subject to registration for training and 
service in the Armed Forces of the United States and who fails to 
present a Registration Certificate (SSS Form No. 2) showing that he has 
complied with his obligation to register under the Universal Military 
Training and Service Act, as amended.
    (f) Any alien who is a fugitive from justice on account of an 
offense punishable in the United States.
    (g) Any alien who is needed in the United States as a witness in, or 
as a party to, any criminal case under investigation or pending in a 
court in the

[[Page 217]]

United States: Provided, That any alien who is a witness in, or a party 
to, any criminal case pending in any criminal court proceeding may be 
permitted to depart from the United States with the consent of the 
appropriate prosecuting authority, unless such alien is otherwise 
prohibited from departing under the provisions of this part.
    (h) Any alien who is needed in the United States in connection with 
any investigation or proceeding being, or soon to be, conducted by any 
official executive, legislative, or judicial agency in the United States 
or by any governmental committee, board, bureau, commission, or body in 
the United States, whether national, state, or local.
    (i) Any alien whose technical or scientific training and knowledge 
might be utilized by an enemy or a potential enemy of the United States 
to undermine and defeat the military and defensive operations of the 
United States or of any nation cooperating with the United States in the 
interests of collective security.
    (j) Any alien, where doubt exists whether such alien is departing or 
seeking to depart from the United States voluntarily except an alien who 
is departing or seeking to depart subject to an order issued in 
extradition, exclusion, or deportation proceedings.
    (k) Any alien whose case does not fall within any of the categories 
described in paragraphs (a) to (j), inclusive, of this section, but 
which involves circumstances of a similar character rendering the 
alien's departure prejudicial to the interests of the United States.

(Sec. 215, Immigration and Nationality Act, 66 Stat. 190, 8 U.S.C. 1185; 
Proc. No. 3004 of January 17, 1953)

[22 FR 10828, Dec. 27, 1957, as amended at 42 FR 19479, Apr. 14, 1977; 
45 FR 64174, Sept. 29, 1980]



Sec.  46.4  Procedure in case of alien prevented from departing 
from the United States.

    (a) Any alien, other than an enemy alien, whose departure has been 
temporarily prevented under the provisions of Sec.  46.2 may, within 15 
days of the service upon him of the written order temporarily preventing 
his departure, request a hearing before a special inquiry officer. The 
alien's request for a hearing shall be made in writing and shall be 
addressed to the district director having administrative jurisdiction 
over the alien's place of residence. If the alien's request for a 
hearing is timely made, the district director shall schedule a hearing 
before a special inquiry officer, and notice of such hearing shall be 
given to the alien. The notice of hearing shall, as specifically as 
security considerations permit, inform the alien of the nature of the 
case against him, shall fix the time and place of the hearing, and shall 
inform the alien of his right to be represented, at no expense to the 
Government, by counsel of his own choosing.
    (b) Every alien for whom a hearing has been scheduled under 
paragraph (a) of this section shall be entitled (1) to appear in person 
before the special inquiry officer, (2) to be represented by counsel of 
his own choice, (3) to have the opportunity to be heard and to present 
evidence, (4) to cross-examine the witnesses who appear at the hearing, 
except that if, in the course of the examination, it appears that 
further examination may divulge information of a confidential or 
security nature, the special inquiry officer may, in his discretion, 
preclude further examination of the witness with respect to such 
matters, (5) to examine any evidence in possession of the Government 
which is to be considered in the disposition of the case, provided that 
such evidence is not of a confidential or security nature the disclosure 
of which would be prejudicial to the interests of the United States, (6) 
to have the time and opportunity to produce evidence and witnesses on 
his own behalf, and (7) to reasonable continuances upon request, for 
good cause shown.
    (c) Any special inquiry officer who is assigned to conduct the 
hearing provided for in this section shall have the authority to: (1) 
Administer oaths and affirmations, (2) present and receive evidence, (3) 
interrogate, examine, and cross-examine under oath or affirmation both 
the alien and witnesses, (4) rule upon all objections to the 
introduction of evidence or motions made during the course of the 
hearing, (5) take or cause depositions to be taken, (6) issue subpoenas, 
and (7) take any

[[Page 218]]

further action consistent with applicable provisions of law, executive 
orders, proclamations, and regulations.

[22 FR 10828, Dec. 27, 1957, as amended at 27 FR 1358, Feb. 14, 1962]



Sec.  46.5  Hearing procedure before special inquiry officer.

    (a) The hearing before the special inquiry officer shall be 
conducted in accordance with the following procedure:
    (1) The special inquiry officer shall advise the alien of the rights 
and privileges accorded him under the provisions of Sec.  46.4.
    (2) The special inquiry officer shall enter of record (i) a copy of 
the order served upon the alien temporarily preventing his departure 
from the United States, and (ii) a copy of the notice of hearing 
furnished the alien.
    (3) The alien shall be interrogated by the special inquiry officer 
as to the matters considered pertinent to the proceeding, with 
opportunity reserved to the alien to testify thereafter in his own 
behalf, if he so chooses.
    (4) The special inquiry officer shall present on behalf of the 
Government such evidence, including the testimony of witnesses and the 
certificates or written statements of Government officials or other 
persons, as may be necessary and available. In the event such 
certificates or statements are received in evidence, the alien may 
request and, in the discretion of the special inquiry officer, be given 
an opportunity to interrogate such officials or persons, by deposition 
or otherwise, at a time and place and in a manner fixed by the special 
inquiry officer: Provided, That when in the judgment of the special 
inquiry officer any evidence relative to the disposition of the case is 
of a confidential or security nature the disclosure of which would be 
prejudicial to the interests of the United States, such evidence shall 
not be presented at the hearing but shall be taken into consideration in 
arriving at a decision in the case.
    (5) The alien may present such additional evidence, including the 
testimony of witnesses, as is pertinent and available.
    (b) A complete verbatim transcript of the hearing, except statements 
made off the record, shall be recorded. The alien shall be entitled, 
upon request, to the loan of a copy of the transcript, without cost, 
subject to reasonable conditions governing its use.
    (c) Following the completion of the hearing, the special inquiry 
officer shall make and render a recommended decision in the case, which 
shall be governed by and based upon the evidence presented at the 
hearing and any evidence of a confidential or security nature which the 
Government may have in its possession. The decision of the special 
inquiry officer shall recommend (1) that the temporary order preventing 
the departure of the alien from the United States be made final, or (2) 
that the temporary order preventing the departure of the alien from the 
United States be revoked. This recommended decision of the special 
inquiry officer shall be made in writing and shall set forth the 
officer's reasons for such decision. The alien concerned shall at his 
request be furnished a copy of the recommended decision of the special 
inquiry officer, and shall be allowed a reasonable time, not to exceed 
10 days, in which to submit representations with respect thereto in 
writing.
    (d) As soon as practicable after the completion of the hearing and 
the rendering of a decision by the special inquiry officer, the district 
director shall forward the entire record of the case, including the 
recommended decision of the special inquiry officer and any written 
representations submitted by the alien, to the regional commissioner 
having jurisdiction over his district. After reviewing the record, the 
regional commissioner shall render a decision in the case, which shall 
be based upon the evidence in the record and on any evidence or 
information of a confidential or security nature which he deems 
pertinent. Whenever any decision is based in whole or in part on 
confidential or security information not included in the record, the 
decision shall state that such information was considered. A copy of the 
regional commissioner's decision shall be furnished the alien, or his 
attorney or representative. No administrative appeal shall lie from the 
regional commissioner's decision.
    (e) Notwithstanding any other provision of this part, the 
Administrator of

[[Page 219]]

the Bureau of Security and Consular Affairs referred to in section 
104(b) of the Immigration and Nationality Act, or such other officers of 
the Department of State as he may designate, after consultation with the 
Commissioner, or such other officers of the Immigration and 
Naturalization Service as he may designate, may at any time permit the 
departure of an individual alien or of a group of aliens from the United 
States if he determines that such action would be in the national 
interest. If the Administrator specifically requests the Commissioner to 
prevent the departure of a particular alien or of a group of aliens, the 
Commissioner shall not permit the departure of such alien or aliens 
until he has consulted with the Administrator.
    (f) In any case arising under Sec. Sec.  46.1 to 46.7, the 
Administrator shall, at his request, be kept advised, in as much detail 
as he may indicate is necessary, of the facts and of any action taken or 
proposed.

[22 FR 10828, Dec. 27, 1957, as amended at 26 FR 3069, Apr. 11, 1961; 27 
FR 1358, Feb. 14, 1962]



Sec.  46.6  Departure from the Canal Zone, the Trust Territory 
of the Pacific Islands, or outlying possessions of the United States.

    (a) In addition to the restrictions and prohibitions imposed by the 
provisions of this part upon the departure of aliens from the United 
States, any alien who seeks to depart from the Canal Zone, the Trust 
Territory of the Pacific Islands, or an outlying possession of the 
United States shall comply with such other restrictions and prohibitions 
as may be imposed by regulations prescribed, with the concurrence of the 
Administrator of the Bureau of Security and Consular Affairs and the 
Commissioner, by the Governor of the Canal Zone, the High Commissioner 
of the Trust Territory of the Pacific Islands, or by the governor of an 
outlying possession of the United States, respectively. No alien shall 
be prevented from departing from such zone, territory, or possession 
without first being accorded a hearing as provided in Sec. Sec.  46.4 
and 46.5.
    (b) The Governor of the Canal Zone, the High Commissioner of the 
Trust Territory of the Pacific Islands, or the governor of any outlying 
possession of the United States shall have the authority to designate 
any employee or class of employees of the United States as hearing 
officers for the purpose of conducting the hearing referred to in 
paragraph (a) of this section. The hearing officer so designated shall 
exercise the same powers, duties, and functions as are conferred upon 
special inquiry officers under the provisions of this part. The chief 
executive officer of such zone, territory, or possession shall, in lieu 
of the regional commissioner, review the recommended decision of the 
hearing officer, and shall render a decision in any case referred to 
him, basing it on evidence in the record and on any evidence or 
information of a confidential or a security nature which he deems 
pertinent.

[22 FR 10829, Dec. 27, 1957, as amended at 26 FR 3069, Apr. 11, 1961]



Sec.  46.7  Instructions from the Administrator required in certain cases.

    In the absence of appropriate instructions from the Administrator of 
the Bureau of Security and Consular Affairs, departure-control officers 
shall not exercise the authority conferred by Sec.  46.2 in the case of 
any alien who seeks to depart from the United States in the status of a 
nonimmigrant under section 101(a)(15) (A) or (G) of the Immigration and 
Nationality Act, or in the status of a nonimmigrant under section 11(3), 
11 (4), or 11(5) of the Agreement between the United Nations and the 
United States of America regarding the Headquarters of the United 
Nations (61 Stat. 756):Provided, That in cases of extreme urgency, where 
the national security so requires, a departure-control officer may 
preliminarily exercise the authority conferred by Sec.  46.2 pending the 
outcome of consultation with the Administrator, which shall be 
undertaken immediately. In all cases arising under this section, the 
decision of the Administrator shall be controlling: Provided, That any 
decision to prevent the departure of an alien shall be based upon a 
hearing and record as prescribed in this part.

[26 FR 3069, Apr. 11, 1961; 26 FR 3188, Apr. 14, 1961]

                           PART 47 [RESERVED]

[[Page 220]]



                 SUBCHAPTER F_NATIONALITY AND PASSPORTS





PART 50_NATIONALITY PROCEDURES--Table of Contents



Sec.
50.1 Definitions.

Subpart A_Procedures for Determination of United States Nationality of a 
                              Person Abroad

50.2 Determination of U.S. nationality of persons abroad.
50.3 Application for registration.
50.4 Application for passport.
50.5 Application for registration of birth abroad.
50.6 Registration at the Department of birth abroad.
50.7 Consular Report of Birth Abroad of a Citizen of the United States 
          of America.
50.8 Certification of Report of Birth Abroad of a United States Citizen.
50.9 Card of identity.
50.10 Certificate of nationality.
50.11 Certificate of identity for travel to the United States to apply 
          for admission.

            Subpart B_Retention and Resumption of Nationality

50.20 Retention of nationality.
50.30 Resumption of nationality.

                      Subpart C_Loss of Nationality

50.40 Certification of loss of U.S. nationality.
50.50 Renunciation of nationality.
50.51 Review of finding of loss of nationality.

    Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104 and 1401 through 1504.

    Source: 31 FR 13537, Oct. 20, 1966, unless otherwise noted.



Sec.  50.1  Definitions.

    The following definitions shall be applicable to this part:
    (a) United States means the continental United States, the State of 
Hawaii, the Commonwealth of Puerto Rico, the Virgin Islands of the 
United States, the Canal Zone, American Samoa, Guam and any other 
islands or territory over which the United States exercises 
jurisdiction.
    (b) Department means the Department of State of the United States of 
America.
    (c) Secretary means the Secretary of State.
    (d) National means a citizen of the United States or a noncitizen 
owing permanent allegiance to the United States.
    (e) Passport means a travel document issued under the authority of 
the Secretary of State attesting to the identity and nationality of the 
bearer.
    (f) Passport Agent means a person designated by the Department to 
accept passport applications.
    (g) Designated nationality examiner means a United States citizen 
employee of the Department of State assigned or employed abroad 
(permanently or temporarily) and designated by the Deputy Assistant 
Secretary of State for Overseas Citizen Services, to grant, issue and 
verify U.S. passports. A designated nationality examiner may adjudicate 
claims of acquisition and loss of United States nationality and 
citizenship as required for the purpose of providing passport and 
related services. The authority of designated nationality examiners 
shall include the authority to examine, adjudicate, approve and deny 
passport applications and applications for related services. The 
authority of designated nationality examiners shall expire upon 
termination of the employee's assignment for such duty and may also be 
terminated at any time by the Deputy Assistant Secretary for Overseas 
Citizen Services.

[31 FR 13537, Oct. 20, 1966, as amended at 31 FR 14521, Nov. 11, 1966; 
61 FR 43311, Aug. 22, 1996]



Subpart A_Procedures for Determination of United States Nationality of a 
                              Person Abroad



Sec.  50.2  Determination of U.S. nationality of persons abroad.

    The Department shall determine claims to United States nationality 
when made by persons abroad on the basis of an application for 
registration, for a passport, or for a Consular Report of Birth Abroad 
of a Citizen of the

[[Page 221]]

United States of America. Such determinations of nationality may be made 
abroad by a consular officer or a designated nationality examiner. A 
designated nationality examiner may accept and approve/disapprove 
applications for registration and accept and approve/disapprove 
applications for passports and issue passports. Under the supervision of 
a consular officer, designated nationality examiners shall accept, 
adjudicate, disapprove and provisionally approve applications for the 
Consular Report of Birth Abroad. A Consular Report of Birth Abroad may 
only be issued by a consular officer, who will review a designated 
nationality examiner's provisional approval of an application for such 
report and issue the report if satisfied that the claim to nationality 
has been established.

[31 FR 13537, Oct. 20, 1966, as amended at 61 FR 43311, Aug. 22, 1996]



Sec.  50.3  Application for registration.

    (a) A person abroad who claims U.S. nationality, or a representative 
on his behalf, may apply at a consular post for registration to 
establish his claim to U.S. nationality or to make his residence in the 
particular consular area a matter of record.
    (b) The applicant shall execute the registration form prescribed by 
the Department and shall submit the supporting evidence required by 
subpart C of part 51 of this chapter. A diplomatic or consular officer 
or a designated nationality examiner shall determine the period of time 
for which the registration will be valid.

[31 FR 13537, Oct. 20, 1966, as amended at 61 FR 43312, Aug. 22, 1996]



Sec.  50.4  Application for passport.

    A claim to U.S. nationality in connection with an application for 
passport shall be determined by posts abroad in accordance with the 
regulations contained in part 51 of this chapter.



Sec.  50.5  Application for registration of birth abroad.

    Upon application by the parent(s) or the child's legal guardian, a 
consular officer or designated nationality examiner may accept and 
adjudicate the application for a Consular Report of Birth Abroad of a 
Citizen of the United States of America for a child born in their 
consular district. In specific instances, the Department may authorize 
consular officers and other designated employees to adjudicate the 
application for a Consular Report of Birth Abroad of a child born 
outside his/her consular district. Under the supervision of a consular 
officer, designated nationality examiners shall accept, adjudicate, 
disapprove and provisionally approve applications for the Consular 
Report of Birth Abroad. The applicant shall be required to submit proof 
of the child's birth, identity and citizenship meeting the evidence 
requirements of subpart C of part 51 of this subchapter and shall 
include:
    (a) Proof of child's birth. Proof of child's birth usually consists 
of, but is not limited to, an authentic copy of the record of the birth 
filed with local authorities, a baptismal certificate, a military 
hospital certificate of birth, or an affidavit of the doctor or the 
person attending the birth. If no proof of birth is available, the 
person seeking to register the birth shall submit his affidavit 
explaining why such proof is not available and setting forth the facts 
relating to the birth.
    (b) Proof of child's citizenship. Evidence of parent's citizenship 
and, if pertinent, evidence of parent's physical presence in the United 
States as required for transmittal of claim of citizenship by the 
Immigration and Nationality Act of 1952 shall be submitted.

[31 FR 13537, Oct. 20, 1966, as amended at 61 FR 43312, Aug. 22, 1996]



Sec.  50.6  Registration at the Department of birth abroad.

    In the time of war or national emergency, passport agents may be 
designated to complete consular reports of birth for children born at 
military facilities which are not under the jurisdiction of a consular 
office. An officer of the Armed Forces having authority to administer 
oaths may take applications for registration under this section.

[[Page 222]]



Sec.  50.7  Consular Report of Birth Abroad of a Citizen 
of the United States of America.

    (a) Upon application and the submission of satisfactory proof of 
birth, identity and nationality, and at the time of the reporting of the 
birth, the consular officer may issue to the parent or legal guardian, 
when approved and upon payment of a prescribed fee, a Consular Report of 
Birth Abroad of a Citizen of the United States of America.
    (b) Amended and replacement Consular Reports of Birth Abroad of a 
Citizen of the United States of America may be issued by the Department 
of State's Passport Office upon written request and payment of the 
required fee.
    (c) When it reports a birth under Sec.  50.6, the Department shall 
furnish the Consular Report of Birth Abroad of a Citizen of the United 
States of America to the parent or legal guardian upon application and 
payment of required fees.
    (d) A Consular Report of Birth Abroad may be cancelled in accordance 
with applicable provisions in 22 CFR 51.60 through 51.74.

[61 FR 43312, Aug. 22, 1996, as amended at 64 FR 19714, Apr. 22, 1999; 
83 FR 21874, May 11, 2018]



Sec.  50.8  Certification of Report of Birth Abroad of a United States Citizen.

    At any time subsequent to the issuance of a Consular Report of Birth 
Abroad of a Citizen of the United States of America, when requested and 
upon payment of the required fee, the Department of State's Passport 
Office may issue to the citizen, the citizen's parent or legal guardian 
a certificate entitled ``Certification of Report of Birth Abroad of a 
United States Citizen.''

[61 FR 43312, Aug. 22, 1996]



Sec.  50.9  Card of identity.

    When authorized by the Department, consular offices or designated 
nationality examiners may issue a card of identity for travel to the 
United States to nationals of the United States being deported from a 
foreign country, to nationals/citizens of the United States involved in 
a common disaster abroad, or to a returning national of the United 
States to whom passport services have been denied or withdrawn under the 
provisions of this part or parts 51 or 53 of this subchapter.

[61 FR 43312, Aug. 22, 1996]



Sec.  50.10  Certificate of nationality.

    (a) Any person who acquired the nationality of the United States at 
birth and who is involved in any judicial or administrative proceedings 
in a foreign state and needs to establish his U.S. nationality may apply 
for a certificate of nationality in the form prescribed by the 
Department.
    (b) An applicant for a certificate of nationality must submit 
evidence of his nationality and documentary evidence establishing that 
he is involved in judicial or administrative proceedings in which proof 
of his U.S. nationality is required.



Sec.  50.11  Certificate of identity for travel to the United States 
to apply for admission.

    (a) A person applying abroad for a certificate of identity under 
section 360(b) of the Immigration and Nationality Act shall complete the 
application form prescribed by the Department and submit evidence to 
support his claim to U.S. nationality.
    (b) When a diplomatic or consular officer denies an application for 
a certificate of identity under this section, the applicant may submit a 
written appeal to the Secretary through the U.S. embassy or consulate 
where the individual applied for the certificate of identity, stating 
the pertinent facts, the grounds upon which U.S. nationality is claimed, 
and his or her reasons for considering that the denial was not 
justified.

[31 FR 14521, Nov. 11, 1966, as amended at 83 FR 21874, May 11, 2018]



            Subpart B_Retention and Resumption of Nationality



Sec.  50.20  Retention of nationality.

    (a) Section 351(b) of the Immigration and Nationality Act. (1) A 
person who desires to claim U.S. nationality under the provisions of 
section 351(b) of the Immigration and Nationality Act must, within the 
time period specified

[[Page 223]]

in the statute, assert a claim to U.S. nationality and subscribe to an 
oath of allegiance before a diplomatic or consular officer.
    (2) In addition, the person shall submit to the Department a 
statement reciting the person's identity and acquisition or derivation 
of U.S. nationality, the facts pertaining to the performance of any act 
which would otherwise have been expatriative, and his desire to retain 
his U.S. nationality.

[31 FR 13537, Oct. 20, 1966, as amended at 61 FR 29652, 29653, June 12, 
1996]



Sec.  50.30  Resumption of nationality.

    (a) Section 324(c) of the Immigration and Nationality Act. (1) A 
woman formerly a citizen of the United States at birth who wishes to 
regain her citizenship under section 324(c) of the Immigration and 
Nationality Act may apply abroad to a diplomatic or consular officer on 
the form prescribed by the Department to take the oath of allegiance 
prescribed by section 337 of that Act.
    (2) The applicant shall submit documentary evidence to establish her 
eligibility to take the oath of allegiance. If the diplomatic or 
consular officer or the Department determines, when the application is 
submitted to the Department for decision, that the applicant is 
ineligible for resumption of citizenship because of section 313 of the 
Immigration and Nationality Act, the oath shall not be administered.
    (b) The Act of June 25, 1936. (1) A woman who has been restored to 
citizenship by the Act of June 25, 1936, as amended by the Act of July 
2, 1940, but who failed to take the oath of allegiance prior to December 
24, 1952, as prescribed by the nationality laws, may apply abroad to any 
diplomatic or consular officer to take the oath of allegiance as 
prescribed by section 337 of the Immigration and Nationality Act.
    (2) The applicant shall submit documentary evidence to establish her 
eligibility to take the oath of allegiance. If the diplomatic or 
consular officer or the Department determines, when the application is 
submitted to the Department, that the applicant is ineligible for 
resumption of citizenship under section 313 of the Immigration and 
Nationality Act, the oath shall not be administered.
    (c) Certification of repatriation. Upon request and payment of the 
prescribed fee, a diplomatic or consular officer or the Department shall 
issue a certified copy of the application and oath administered to a 
woman repatriated under this section.
    (d) Section 324(d)(1) of the Immigration and Nationality Act. (1) A 
former citizen of the United States who did not retain U.S. citizenship 
by failure to fulfill residency requirements as set out in Section 
201(g) of the 1940 Nationality Act or former 301(b) of the 1952 
Immigration and Nationality Act, may regain his/her U.S. citizenship 
pursuant to Section 324(d) INA, by applying abroad at a diplomatic or 
consular post, or in the U.S. at any Immigration and Naturalization 
Service office in the form and manner prescribed by the Department of 
State and the Immigration and Naturalization Service (INS).
    (2) The applicant shall submit documentary evidence to establish 
eligibility to take the oath of allegiance, which includes proof of 
birth abroad to a U.S. citizen parent between May 24, 1934 and December 
24, 1952. If the diplomatic, consular, INS, or passport officer 
determines that the applicant is ineligible to regain citizenship under 
section 313 INA, the oath shall not be administered.

[31 FR 13537, Oct. 20, 1966, as amended at 61 FR 29653, June 12, 1996]



                      Subpart C_Loss of Nationality



Sec.  50.40  Certification of loss of U.S. nationality.

    (a) Administrative presumption. In adjudicating potentially 
expatriating acts pursuant to INA 349(a), the Department has adopted an 
administrative presumption regarding certain acts and the intent to 
commit them. U.S. citizens who naturalize in a foreign country; take a 
routine oath of allegiance; or accept non-policy level employment with a 
foreign government need not submit evidence of intent to retain U.S. 
nationality. In these three classes of cases, intent to retain U.S. 
citizenship will be presumed. A person who affirmatively asserts to a 
consular officer, after he or she has committed a potentially 
expatriating act, that it was his or her intent to relinquish U.S.

[[Page 224]]

citizenship will lose his or her U.S. citizenship. In other loss of 
nationality cases, the consular officer will ascertain whether or not 
there is evidence of intent to relinquish U.S. nationality.
    (b) Whenever a person admits that he or she had the intent to 
relinquish citizenship by the voluntary and intentional performance of 
one of the acts specified in Section 349(a) of the Immigration and 
Nationality Act, and the person consents to the execution of an 
affidavit to that effect, the diplomatic or consular officer shall 
attach such affidavit to the certificate of loss of nationality.
    (c) Whenever a diplomatic or consular officer has reason to believe 
that a person, while in a foreign country, has lost his U.S. nationality 
under any provision of chapter 3 of title III of the Immigration and 
Nationality Act of 1952, or under any provision of chapter IV of the 
Nationality Act of 1940, as amended, he shall prepare a certificate of 
loss of nationality containing the facts upon which such belief is based 
and shall forward the certificate to the Department.
    (d) If the diplomatic or consular officer determines that any 
document containing information relevant to the statements in the 
certificate of loss of nationality should not be attached to the 
certificate, the person may summarize the pertinent information in the 
appropriate section of the certificate and send the documents together 
with the certificate to the Department.
    (e) If the certificate of loss of nationality is approved by the 
Department, a copy shall be forwarded to the Immigration and 
Naturalization Service, Department of Justice. The diplomatic or 
consular office in which the certificate was prepared shall then forward 
a copy of the certificate to the person to whom it relates or his 
representative.

[31 FR 13537, Oct. 20, 1966. Redesignated and amended at 61 FR 29652, 
June 12, 1996; 63 FR 20315, Apr. 24, 1998]



Sec.  50.50  Renunciation of nationality.

    (a) A person desiring to renounce U.S. nationality under section 
349(a)(5) of the Immigration and Nationality Act shall appear before a 
diplomatic or consular officer of the United States in the manner and 
form prescribed by the Department. The renunciant must include on the 
form he signs a statement that he absolutely and entirely renounces his 
U.S. nationality together with all rights and privileges and all duties 
of allegiance and fidelity thereunto pertaining.
    (b) The diplomatic or consular officer shall forward to the 
Department for approval the oath of renunciation together with a 
certificate of loss of nationality as provided by section 358 of the 
Immigration and Nationality Act. If the officer's report is approved by 
the Department, copies of the certificate shall be forwarded to the 
Immigration and Naturalization Service, Department of Justice, and to 
the person to whom it relates or his representative.

[31 FR 13537, Oct. 20, 1966, as amended at 61 FR 29653, June 12, 1996]



Sec.  50.51  Review of finding of loss of nationality.

    (a) There are no prescribed ``procedures for administrative appeal'' 
of issuance of a Certificate of Loss of Nationality for purposes of 
Sec.  358 of the Immigration and Nationality Act (8 U.S.C. 1501) and no 
mandatory administrative review procedure prior to resort to judicial 
processes under Sec.  360 of the Immigration and Nationality Act (8 
U.S.C. 1503). Nevertheless, the Department may in its discretion review 
determinations of loss of nationality at any time after approval of 
issuance of the Certificate of Loss of Nationality to ensure consistency 
with governing law (see INA Sec. Sec.  349 and 356, 8 U.S.C. 1481 and 
1488). Such reconsideration may be initiated at the request of the 
person concerned or another person determined in accordance with 
guidance issued by the Department to have a legitimate interest.
    (b) The primary grounds on which the Department will consider 
reversing a finding of loss of nationality and vacating a Certificate of 
Loss of Nationality are:
    (1) The law under which the finding of loss was made has been held 
unconstitutional; or
    (2) A major change in the interpretation of the law of expatriation 
is made as a result of a U.S. Supreme Court decision; or

[[Page 225]]

    (3) A major change in the interpretation of the law of expatriation 
is made by the Department, or is made by a court or another agency and 
adopted by the Department; and/or
    (4) The person presents substantial new evidence, not previously 
considered, of involuntariness or absence of intent at the time of the 
expatriating act.
    (c) When the Department reverses a finding of loss of nationality, 
the person concerned shall be considered not to have lost U.S. 
nationality as of the time the expatriating act was committed, and the 
Certificate of Loss of Nationality shall be vacated.
    (d) Requesting the Department to reverse a finding of loss of 
nationality and vacate a Certificate of Loss of Nationality is not a 
prescribed ``procedure for administrative appeal'' for purposes of Sec.  
358 of the Immigration and Nationality Act (8 U.S.C. 1501). The 
Department's decision in response to such a request is not a prescribed 
``procedure for administrative appeal'' for purposes of Sec.  358 of the 
Immigration and Nationality Act (8 U.S.C. 1501). The issuance of a 
Certificate of Loss of Nationality by the Department is a ``final 
administrative determination'' and ``final administrative denial'' for 
purposes of Sec. Sec.  358 and 360 of the Immigration and Nationality 
Act (8 U.S.C. 1501 and 1503), respectively.

[73 FR 41258, July 18, 2008]



PART 51_PASSPORTS--Table of Contents



Sec.
51.1 Definitions.

                            Subpart A_General

51.2 Passport issued to nationals only.
51.3 Types of passports.
51.4 Validity of passports.
51.5 Adjudication and issuance of passports.
51.6 Verification of passports and release of information from passport 
          records.
51.7 Passport property of the U.S. Government.
51.8 Submission of currently valid passport.
51.9 Amendment of passports.
51.10 Replacement passports.

                          Subpart B_Application

51.20 General.
51.21 Execution of passport application.
51.22 Passport agents and passport acceptance agents.
51.23 Identity of applicant.
51.24 Affidavit of identifying witness.
51.25 Name of applicant to be used in passport.
51.26 Photographs.
51.27 Incompetents.
51.28 Minors.

          Subpart C_Evidence of U.S. Citizenship or Nationality

51.40 Burden of proof.
51.41 Documentary evidence.
51.42 Persons born in the United States applying for a passport for the 
          first time.
51.43 Persons born outside the United States applying for a passport for 
          the first time.
51.44 Proof of resumption or retention of U.S. citizenship.
51.45 Department discretion to require evidence of U.S. citizenship or 
          non-citizen nationality.
51.46 Return or retention of evidence of U.S. citizenship or non-citizen 
          nationality.

                             Subpart D_Fees

51.50 Form of payment.
51.51 Passport fees.
51.52 Exemption from payment of passport fees.
51.53 Refunds.
51.54 Replacement passports without payment of applicable fees.
51.55 Execution fee not refundable.
51.56 Expedited passport processing.

     Subpart E_Denial, Revocation, and Restriction of Passports and 
            Cancellation of Consular Reports of Birth Abroad

51.60 Denial and restriction of passports.
51.61 Denial of passports to certain convicted drug traffickers.
51.62 Revocation or limitation of passports and cancellation of Consular 
          Reports of Birth Abroad.
51.63 Passports invalid for travel into or through restricted areas; 
          prohibition on passports valid only for travel to Israel.
51.64 Special validation of passports for travel to restricted areas.
51.65 Notification of denial, revocation or cancellation of passports 
          and Consular Reports of Birth Abroad.
51.66 Surrender of passport and/or Consular Report of Birth Abroad.

   Subpart F_Procedures for Review of Certain Denials and Revocations

51.70 Request for hearing to review certain denials and revocations.
51.71 The hearing.

[[Page 226]]

51.72 Transcript and record of the hearing.
51.73 Privacy of hearing.
51.74 Final decision.

     Authority: 8 U.S.C. 1504; 18 U.S.C. 1621; 22 U.S.C. 211a, 212, 
212b, 213, 213n (Pub. L. 106-113 Div. B, Sec. 1000(a)(7) [Div. A, Title 
II, Sec. 236], 113 Stat. 1536, 1501A-430); 214, 214a, 217a, 218, 2651a, 
2671(d)(3), 2705, 2714, 2714a, 2721, & 3926; 26 U.S.C. 6039E; 31 U.S.C. 
9701; 42 U.S.C. 652(k) [Div. B, Title V of Pub. L. 103-317, 108 Stat. 
1760]; E.O. 11295, Aug. 6, 1966, FR 10603, 3 CFR, 1966-1970 Comp., p. 
570; Pub. L. 114-119, 130 Stat. 15; Sec. 1 of Pub. L. 109-210, 120 Stat. 
319; Sec. 2 of Pub. L. 109-167, 119 Stat. 3578; Sec. 5 of Pub. L. 109-
472, 120 Stat. 3554; Pub. L. 108-447, Div. B, Title IV, Dec. 8, 2004, 
118 Stat. 2809; Pub. L. 108-458, 118 Stat. 3638, 3823 (Dec. 17, 2004).

    Source: 72 FR 64931, Nov. 19, 2007, unless otherwise noted.



Sec.  51.1  Definitions.

    The following definitions are applicable to this part:
    Department means the United States Department of State.
    Electronic passport means a passport containing an electronically 
readable device, an electronic chip encoded with the bearer's personal 
information printed on the data page, a digitized version of the 
bearer's photograph, a unique chip number, and a digital signature to 
protect the integrity of the stored information.
    Minor means an unmarried, unemancipated person under 18 years of 
age.
    Non-personal services contractor, for purposes of this part, is an 
individual working under a non-personal services contract as defined in 
48 CFR 37.101.
    Passport means a travel document regardless of format issued under 
the authority of the Secretary of State attesting to the identity and 
nationality of the bearer.
    Passport acceptance agent means a U.S. national designated by the 
Department to accept passport applications and to administer oaths and 
affirmations in connection with such applications.
    Passport agent means a U.S. citizen employee of the Department of 
State, including consular officers, diplomatic officers and consular 
agents abroad, and such U.S. citizen Department of State employees or 
contractors as the Assistant Secretary for Consular Affairs may 
designate for the purpose of administering oaths and affirmations for 
passport applications.
    Passport application means the application form for a United States 
passport, as prescribed by the Department pursuant to 22 U.S.C. 213 and 
all documents, photographs, and statements submitted with the form or 
thereafter in support of the application.
    Passport authorizing officer means a U.S. citizen employee who is 
authorized by the Department to approve the issuance of passports.
    Personal services contractor, for purposes of this part, means a 
contractor who is working under a personal services contract as 
described in 48 CFR 37.104.
    Secretary means the Secretary of State.
    Special issuance passport means a regular passport for which no 
passport fee is collected pursuant to Sec.  51.52, and a service, 
official or diplomatic passport as defined in Sec.  51.3.
    United States when used in a geographical sense means the 
continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin 
Islands of the United States, and all other United States territories 
and possessions.
    U.S. citizen means a person who acquired U.S. citizenship at birth 
or upon naturalization as provided by law and who has not subsequently 
lost such citizenship.
    U.S. national means a U.S. citizen or a U.S. non-citizen national.
    U.S. non-citizen national means a person on whom U.S. nationality, 
but not U.S. citizenship, has been conferred at birth under 8 U.S.C. 
1408, or under other law or treaty, and who has not subsequently lost 
such non-citizen nationality.

[72 FR 64931, Nov. 19, 2007; 73 FR 5435, Jan. 30, 2008, as amended at 81 
FR 67157, Sept. 30, 2016]



                            Subpart A_General



Sec.  51.2  Passport issued to nationals only.

    (a) A passport may be issued only to a U.S. national.
    (b) Unless authorized by the Department, no person may bear more 
than one valid passport of the same type.

[[Page 227]]



Sec.  51.3  Types of passports.

    (a) Regular passport. A regular passport is issued to a national of 
the United States.
    (b) Service passport. When authorized by the Department, a service 
passport may be issued to a non-personal services contractor traveling 
abroad to carry out duties in support of and pursuant to a contract with 
the U.S. government, when exceptional circumstances make a service 
passport necessary to enable the individual to carry out his or her 
contractual duties.
    (c) Official passport. When authorized by the Department, an 
official passport may be issued to:
    (1) An officer or employee of the U.S. government traveling abroad 
to carry out official duties, and family members of such persons;
    (2) A U.S. government personal services contractor traveling abroad 
to carry out official duties on behalf of the U.S. government;
    (3) A non-personal services contractor traveling abroad to carry out 
duties in support of and pursuant to a contract with the U.S. government 
when the contractor is unable to carry out such duties using a regular 
or service passport; or
    (4) An official or employee of a state, local, tribal, or 
territorial government traveling abroad to carry out official duties in 
support of the U.S. government.
    (d) Diplomatic passport. A diplomatic passport is issued to a 
Foreign Service Officer or to a person having diplomatic status or 
comparable status because he or she is traveling abroad to carry out 
diplomatic duties on behalf of the U.S. government. When authorized by 
the Department, spouses and family members of such persons may be issued 
diplomatic passports. When authorized by the Department, a diplomatic 
passport may be issued to a U.S. government contractor if the contractor 
meets the eligibility requirements for a diplomatic passport and the 
diplomatic passport is necessary to complete his or her contractual 
duties in support of the U.S. government.
    (e) Passport card. A passport card is issued to a national of the 
United States on the same basis as a regular passport. It is valid only 
for departure from and entry to the United States through land and sea 
ports of entry between the United States and Mexico, Canada, the 
Caribbean and Bermuda. It is not a globally interoperable international 
travel document.

[81 FR 67157, Sept. 30, 2016]



Sec.  51.4  Validity of passports.

    (a) Signature of bearer. A passport book is valid only when signed 
by the bearer in the space designated for signature, or, if the bearer 
is unable to sign, signed by a person with legal authority to sign on 
his or her behalf. A passport card is valid without the signature of the 
bearer.
    (b) Period of validity of a regular passport and a passport card. 
(1) A regular passport or passport card issued to an applicant 16 years 
of age or older is valid for ten years from date of issue unless the 
Department limits the validity period to a shorter period.
    (2) A regular passport or passport card issued to an applicant under 
16 years of age is valid for five years from date of issue unless the 
Department limits the validity period to a shorter period.
    (3) A regular passport for which payment of the fee has been excused 
is valid for a period of five years from the date issued unless limited 
by the Department to a shorter period.
    (c) Period of validity of a service passport. The period of validity 
of a service passport, unless limited by the Department to a shorter 
period, is five years from the date of issue, or so long as the bearer 
maintains the status pursuant to which the service passport is issued, 
whichever is shorter. A service passport which has not expired must be 
returned to the Department upon the termination of the bearer's status 
or at such other time as the Department may determine.
    (d) Period of validity of an official passport. The period of 
validity of an official passport, unless limited by the Department to a 
shorter period, is five years from the date of issue, or so long as the 
bearer maintains his or her official status, whichever is shorter. An 
official passport which has not expired must be returned to the 
Department upon the termination of the bearer's

[[Page 228]]

official status or at such other time as the Department may determine.
    (e) Period of validity of a diplomatic passport. The period of 
validity of a diplomatic passport, unless limited by the Department to a 
shorter period, is five years from the date of issue, or so long as the 
bearer maintains his or her diplomatic status, whichever is shorter. A 
diplomatic passport which has not expired must be returned to the 
Department upon the termination of the bearer's diplomatic status or at 
such other time as the Department may determine.
    (f) Limitation of validity. The validity period of any passport may 
be limited by the Department to less than the normal validity period. 
The bearer of a limited passport may apply for a new passport, using the 
proper application and submitting the limited passport, applicable fees, 
photographs, and additional documentation, if required, to support the 
issuance of a new passport.
    (g) Invalidity. A United States passport is invalid as soon as:
    (1) The Department approves the revocation notification pursuant to 
Sec.  51.65(a); or
    (2) The passport has been reported as lost or stolen to the 
Department, a U.S. passport agency or a diplomatic or consular post 
abroad and the Department has recorded the reported loss or theft; or
    (3) The passport is cancelled by the Department (physically, 
electronically, or otherwise) upon issuance of a new passport of the 
same type to the bearer; or
    (4) The Department has sent a written notice to the bearer that the 
passport has been invalidated because the Department has not received 
the applicable fees; or
    (5) The passport has been materially changed in physical appearance 
or composition, or contains a damaged, defective or otherwise 
nonfunctioning chip, or includes unauthorized changes, obliterations, 
entries or photographs, or has observable wear or tear that renders it 
unfit for use as a travel document, and the Department either takes 
possession of the passport or sends a written notice to the bearer); or
    (6) The bearer of a special issuance passport no longer maintains 
the status pursuant to which the passport was issued; or
    (7) The Department has sent a written notice to the bearer, directly 
or through the bearer's employing agency, stating that a special 
issuance passport has been cancelled by the Department.
    (8) The Department approves a Certificate of Loss of Nationality for 
the passport holder pursuant to Sec.  50.40 of this chapter and 8 U.S.C. 
1481.

[81 FR 67158, Sept. 30, 2016, as amended at 83 FR 21874, May 11, 2018]



Sec.  51.5  Adjudication and issuance of passports.

    (a) A passport authorizing officer may adjudicate applications and 
authorize the issuance of passports.
    (b) A passport authorizing officer will examine the passport 
application and all documents, photographs and statements submitted in 
support of the application in accordance with guidance issued by the 
Department.



Sec.  51.6  Verification of passports and release of information 
from passport records.

    (a) Verification. When required by a foreign government, a consular 
officer abroad may verify a U.S. passport.
    (b) Release of information. Information in passport records is 
subject to the provisions of the Freedom of Information Act (FOIA) and 
the Privacy Act. Release of this information may be requested in 
accordance with part 171 or part 172 of this title.



Sec.  51.7  Passport property of the U.S. Government.

    (a) A passport at all times remains the property of the United 
States and must be returned to the U.S. Government upon demand.
    (b) Law enforcement authorities who take possession of a passport 
for use in an investigation or prosecution must return the passport to 
the Department on completion of the investigation and/or prosecution.

[[Page 229]]



Sec.  51.8  Submission of currently valid passport.

    (a) When applying for a new passport, an applicant must submit for 
cancellation any currently valid passport of the same type.
    (b) If an applicant is unable to produce a passport under paragraph 
(a) of this section, he or she must submit a signed statement in the 
form prescribed by the Department setting forth the circumstances 
regarding the disposition of the passport.
    (c) The Department may deny or limit a passport if the applicant has 
failed to provide a sufficient and credible explanation for lost, 
stolen, altered or mutilated passport(s) previously issued to the 
applicant, after being given a reasonable opportunity to do so.



Sec.  51.9  Amendment of passports.

    Except for the convenience of the U.S. Government, no passport may 
be amended.



Sec.  51.10  Replacement passports.

    A passport issuing office may issue a replacement passport without 
payment of applicable fees for the reasons specified in Sec.  51.54.



                          Subpart B_Application



Sec.  51.20  General.

    (a) An application for a passport, a replacement passport, or other 
passport related service must be completed using the forms the 
Department prescribes.
    (b) The passport applicant must truthfully answer all questions and 
must state every material matter of fact pertaining to his or her 
eligibility for a passport. All information and evidence submitted in 
connection with an application is considered part of the application. A 
person providing false information as part of a passport application, 
whether contemporaneously with the form or at any other time, is subject 
to prosecution under applicable Federal criminal statutes.

[72 FR 64931, Nov. 19, 2007, as amended at 80 FR 72592, Nov. 20, 2015]



Sec.  51.21  Execution of passport application.

    (a) Application by personal appearance. Except as provided in Sec.  
51.28, to assist in establishing identity, a minor, a person who has 
never been issued a passport in his or her own name, a person who has 
not been issued a passport for the full validity period of 10 years in 
his or her own name within 15 years of the date of a new application, or 
a person who is otherwise not eligible to apply for a passport by mail 
under paragraphs (b) and (c) of this section, must apply for a passport 
by appearing in person before a passport agent or passport acceptance 
agent (see Sec.  51.22). The applicant must verify the application by 
oath or affirmation before the passport agent or passport acceptance 
agent, sign the completed application, provide photographs as prescribed 
by the Department, provide any other information or documents requested 
and pay the applicable fees prescribed in the Schedule of Fees for 
Consular Services (see 22 CFR 22.1).
    (b) Application by mail--persons in the United States. (1) A person 
in the United States who previously has been issued a passport valid for 
10 years in his or her own name may apply for a new passport by filling 
out, signing and mailing an application on the form prescribed by the 
Department if:
    (i) The most recently issued previous passport was issued when the 
applicant was 16 years of age or older;
    (ii) The application is made not more than 15 years following the 
issue date of the previous passport, except as provided in paragraph (e) 
of this section; and
    (iii) The most recently issued previous passport of the same type is 
submitted with the new application.
    (2) The applicant must also provide photographs as prescribed by the 
Department and pay the applicable fees prescribed in the Schedule of 
Fees for Consular Services (22 CFR 22.1).
    (c) Application by mail--persons abroad. (1) A person in a foreign 
country where the Department has authorized a post to receive passport 
applications by mail who previously has been issued a passport valid for 
10 years in his or her own name may apply for a new passport in that 
country by filling

[[Page 230]]

out, signing and mailing an application on the form prescribed by the 
Department if:
    (i) The most recently issued previous passport was issued when the 
applicant was 16 years of age or older;
    (ii) The application is made not more than 15 years following the 
issue date of the previous passport, except as provided in paragraph (e) 
of this section; and
    (iii) The most recently issued previous passport of the same type is 
submitted with the new application.
    (2) The applicant must also provide photographs as prescribed by the 
Department and pay the applicable fees prescribed in the Schedule of 
Fees for Consular Services (22 CFR 22.1).
    (d) Nothing in this part shall prohibit or limit the Department from 
authorizing an overseas post to accept a passport application or 
applications from persons outside the country or outside the person's 
country of residence in circumstances which prevent provision of these 
services to the person where they are located or in other unusual 
circumstances as determined by the Department.
    (e) A senior passport authorizing officer may authorize acceptance 
of an application by mail where the application is made more than 15 
years following the issue date of the previous passport as appropriate 
and in accordance with guidance issued by the Department.

[72 FR 64931, Nov. 19, 2007; 73 FR 4078, Jan. 24, 2008]



Sec.  51.22  Passport agents and passport acceptance agents.

    (a) U.S. citizen employees of the Department authorized to serve as 
passport agents. The following employees of the Department are 
authorized by virtue of their positions to serve as passport agents 
unless the Department in an individual case withdraws authorization:
    (1) A passport authorizing officer;
    (2) A consular officer, or a U.S. citizen consular agent abroad;
    (3) A diplomatic officer specifically authorized by the Department 
to accept passport applications; and
    (4) Such U.S. citizen Department of State employees and contractors 
as the Assistant Secretary for Consular Affairs may designate for the 
purpose of administering oaths and affirmations for passport 
applications.
    (b) Persons designated by the Department to serve as passport 
acceptance agents. When designated by the Department, the following 
persons are authorized to serve as passport acceptance agents unless the 
Department in an individual case withdraws authorization.
    (1) An employee of the clerk of any Federal court;
    (2) An employee of the clerk of any state court of record;
    (3) A postal employee at a United States post office that has been 
selected to accept passport applications;
    (4) An employee of the Department of Defense at a military 
installation that has been authorized to accept passport applications;
    (5) An employee of a federal agency that has been selected to accept 
passport applications; and
    (6) Any other person specifically designated by the Department.
    (c) Qualifications of persons designated by the Department to serve 
as passport acceptance agents. Before the Department will designate a 
person described in Sec.  51.22(b) as a passport acceptance agent, his 
or her employer must certify that the person:
    (1) Is a U.S. citizen or a U.S. non-citizen national;
    (2) Is 18 years of age or older;
    (3) Is a permanent employee, excluding ad hoc, contractual, and 
volunteer employees; and
    (4) Does not have a record of either:
    (i) A Federal or State felony conviction; or
    (ii) A misdemeanor conviction for crimes involving moral turpitude 
or breach of trust, including but not limited to embezzlement, identity 
theft, misappropriation, document fraud, drug offenses, or dishonesty in 
carrying out a responsibility involving public trust.
    (d) Training. A passport acceptance agent described in Sec.  
51.22(b) must be trained to apply procedures and practices as detailed 
in guidance provided by the Department. Training must be successfully 
completed before accepting passport applications.

[[Page 231]]

    (e) Responsibilities. The responsibilities of a passport acceptance 
agent described in Sec.  51.22(b) include but are not limited to the 
following:
    (1) Certifying the identity of each applicant. Passport acceptance 
agents must certify that they have personally witnessed the applicant 
signing his or her application, and that the applicant has:
    (i) Personally appeared;
    (ii) Presented proper identification, as documented on the 
application;
    (iii) Submitted photographs that are a true likeness; and
    (iv) Taken the oath administered by the acceptance agent.
    (2) Safeguarding passport application information under the Privacy
    Act of 1974. Passport acceptance agents described in Sec.  51.22(b) 
must not retain copies of executed applications, nor release passport 
application information to anyone other than the applicant and the 
Department.
    (3) Avoiding conflict of interest. Passport acceptance agents 
described in Sec.  51.22(b) must not participate in any relationship 
that could be perceived as a conflict of interest, including but not 
limited to providing commercial services related to the passport 
process.
    (f) Documentation. Passport acceptance facilities within the United
    States must maintain a current listing of all passport acceptance 
agents designated under Sec.  51.22(b) working at its facility. This 
list must be updated at least annually and a copy provided to the 
officer specified by the Department at the appropriate passport issuing 
office.
    (1) The current listing of all designated passport acceptance agents 
must include the passport acceptance agents':
    (i) Names; and
    (ii) Signatures.
    (2) Any addition to or deletion from the current listing of 
designated passport acceptance agents is subject to prior approval by 
the Department.



Sec.  51.23  Identity of applicant.

    (a) The applicant has the burden of establishing his or her 
identity.
    (b) The applicant must establish his or her identity by the 
submission of a previous passport, other state, local, or federal 
government officially issued identification with photograph, or other 
identifying evidence which may include an affidavit of an identifying 
witness.
    (c) The Department may require such additional evidence of identity 
as it deems necessary.



Sec.  51.24  Affidavit of identifying witness.

    (a) An identifying witness must execute an affidavit in the form 
prescribed by the Department before the person who accepts the passport 
application.
    (b) A person who has received or expects to receive a fee for his or 
her services in connection with executing the application or obtaining 
the passport may not serve as an identifying witness.



Sec.  51.25  Name of applicant to be used in passport.

    (a) The passport shall be issued in the full name of the applicant, 
generally the name recorded in the evidence of nationality and identity.
    (b) The applicant must explain any material discrepancies between 
the name on the application and the name recorded in the evidence of 
nationality and identity. The name provided by the applicant on the 
application may be used if the applicant submits the documentary 
evidence prescribed by the Department.
    (c) A name change will be recognized for purposes of issuing a 
passport if the name change occurs in one of the following ways.
    (1) Court order or decree. An applicant whose name has been changed 
by court order or decree must submit with his or her application a copy 
of the order or decree.
    Acceptable types of court orders and decrees include but are not 
limited to:
    (i) A name change order;
    (ii) A divorce decree specifically declaring the return to a former 
name;
    (2) Certificate of naturalization issued in a new name.
    (3) Marriage. An applicant who has adopted a new name following 
marriage must present a copy of the marriage certificate.

[[Page 232]]

    (4) Operation of state law. An applicant must present operative 
government-issued legal documentation declaring the name change or 
issued in the new name.
    (5) Customary usage. An applicant who has adopted a new name other 
than as prescribed in paragraphs (c)(1) through (4) of this section must 
submit evidence of public and exclusive use of the adopted name for a 
long period of time, in general five years, as prescribed in guidance 
issued by the Department. The evidence must include three or more public 
documents, including one government-issued identification with 
photograph and other acceptable public documents prescribed by the 
Department.



Sec.  51.26  Photographs.

    The applicant must submit with his or her application photographs as 
prescribed by the Department that are a good likeness of and 
satisfactorily identify the applicant.



Sec.  51.27  Incompetents.

    A legal guardian or other person with the legal capacity to act on 
behalf of a person declared incompetent may execute a passport 
application on the incompetent person's behalf.



Sec.  51.28  Minors.

    (a) Minors under age 16--(1) Personal appearance. Minors under 16 
years of age applying for a passport must appear in person, unless the 
personal appearance of the minor is specifically excused by a senior 
passport authorizing officer, pursuant to guidance issued by the 
Department. In cases where personal appearance is excused, the person(s) 
executing the passport application on behalf of the minor shall appear 
in person and verify the application by oath or affirmation before a 
person authorized by the Secretary to administer oaths or affirmations, 
unless these requirements are also excused by a senior passport 
authorizing officer pursuant to guidance issued by the Department.
    (2) Execution of passport application by both parents or by each 
legal guardian. Except as specifically provided in this section, both 
parents or each of the minor's legal guardians, if any, whether applying 
for a passport for the first time or for a renewal, must execute the 
application on behalf of a minor under age 16 and provide documentary 
evidence of parentage or legal guardianship showing the minor's name, 
date and place of birth, and the names of the parent or parents or legal 
guardian.
    (3) Execution of passport application by one parent or legal 
guardian. A passport application may be executed on behalf of a minor 
under age 16 by only one parent or legal guardian if such person 
provides:
    (i) A notarized written statement or affidavit from the non-applying 
parent or legal guardian, if applicable, consenting to the issuance of 
the passport, or
    (ii) Documentary evidence that such person is the sole parent or has 
sole custody of the minor. Such evidence includes, but is not limited 
to, the following:
    (A) A birth certificate providing the minor's name, date and place 
of birth and the name of only the applying parent;
    (B) A Consular Report of Birth Abroad of a Citizen of the United 
States of America or a Certification of Report of Birth of a United 
States Citizen providing the minor's name, date and place of birth and 
the name of only the applying parent;
    (C) A copy of the death certificate for the non-applying parent or 
legal guardian;
    (D) An adoption decree showing the name of only the applying parent;
    (E) An order of a court of competent jurisdiction granting sole 
legal custody to the applying parent or legal guardian containing no 
travel restrictions inconsistent with issuance of the passport; or, 
specifically authorizing the applying parent or legal guardian to obtain 
a passport for the minor, regardless of custodial arrangements; or 
specifically authorizing the travel of the minor with the applying 
parent or legal guardian;
    (F) An order of a court of competent jurisdiction terminating the 
parental rights of the non-applying parent or declaring the non-applying 
parent or legal guardian to be incompetent.
    (G) An order of a court of competent jurisdiction providing for 
joint legal

[[Page 233]]

custody or requiring the permission of both parents or the court for 
important decisions will be interpreted as requiring the permission of 
both parents or the court, as appropriate. Notwithstanding the existence 
of any such court order, a passport may be issued when compelling 
humanitarian or emergency reasons relating to the welfare of the minor 
exist.
    (4) Execution of passport application by a person acting in loco 
parentis. (i) A person may apply in loco parentis on behalf of a minor 
under age 16 by submitting a notarized written statement or a notarized 
affidavit from both parents or each legal guardian, if any, specifically 
authorizing the application.
    (ii) If only one parent or legal guardian provides the notarized 
written statement or notarized affidavit, the applicant must provide 
documentary evidence that an application may be made by one parent or 
legal guardian, consistent with Sec.  51.28(a)(3)
    (5) Exigent or special family circumstances. A passport may be 
issued when only one parent, legal guardian or person acting in loco 
parentis executes the application, in cases of exigent or special family 
circumstances.
    (i) ``Exigent circumstances'' are defined as time-sensitive 
circumstances in which the inability of the minor to obtain a passport 
would jeopardize the health and safety or welfare of the minor or would 
result in the minor being separated from the rest of his or her 
traveling party. ``Time sensitive'' generally means that there is not 
enough time before the minor's emergency travel to obtain either the 
required consent of both parents/legal guardians or documentation 
reflecting a sole parent's/legal guardian's custody rights.
    (ii) ``Special family circumstances'' are defined as circumstances 
in which the minor's family situation makes it exceptionally difficult 
for one or both of the parents to execute the passport application; and/
or compelling humanitarian circumstances where the minor's lack of a 
passport would jeopardize the health, safety, or welfare of the minor; 
or, pursuant to guidance issued by the Department, circumstances in 
which return of a minor to the jurisdiction of his or her home state or 
habitual residence is necessary to permit a court of competent 
jurisdiction to adjudicate or enforce a custody determination. A 
passport issued due to such special family circumstances may be limited 
for direct return to the United States in accordance with Sec.  
51.60(e).
    (iii) A parent, legal guardian, or person acting in loco parentis 
who is applying for a passport for a minor under age 16 under this 
paragraph must submit a written statement with the application 
describing the exigent or special family circumstances he or she 
believes should be taken into consideration in applying an exception.
    (iv) Determinations under Sec.  51.28(a)(5) must be made by a senior 
passport authorizing officer pursuant to guidance issued by the 
Department.
    (6) Nothing contained in this section shall prohibit any Department 
official adjudicating a passport application filed on behalf of a minor 
from requiring an applicant to submit other documentary evidence deemed 
necessary to establish the applying adult's entitlement to obtain a 
passport on behalf of a minor under the age of 16 in accordance with the 
provisions of this regulation.
    (b) Minors 16 years of age and above. (1) A minor 16 years of age 
and above applying for a passport must appear in person and may execute 
the application for a passport on his or her own behalf unless the 
personal appearance of the minor is specifically excused by a senior 
passport authorizing officer pursuant to guidance issued by the 
Department, or unless, in the judgment of the person before whom the 
application is executed, it is not advisable for the minor to execute 
his or her own application. In such case, it must be executed by a 
parent or legal guardian of the minor, or by a person in loco parentis, 
unless the personal appearance of the parent, legal guardian or person 
in loco parentis is excused by the senior passport authorizing officer 
pursuant to guidance issued by the Department.
    (2) The passport authorizing officer may at any time require a minor 
16 years of age and above to submit the notarized consent of a parent, a 
legal

[[Page 234]]

guardian, or a person in loco parentis to the issuance of the passport.
    (c) Rules applicable to all minors--(1) Objections. At any time 
prior to the issuance of a passport to a minor, the application may be 
disapproved and a passport may be denied upon receipt of a written 
objection from a parent or legal guardian of the minor, or from another 
party claiming authority to object, so long as the objecting party 
provides sufficient documentation of his or her custodial rights or 
other authority to object.
    (2) An order from a court of competent jurisdiction providing for 
joint legal custody or requiring the permission of both parents or the 
court for important decisions will be interpreted as requiring the 
permission of both parents or the court as appropriate.
    (3) The Department will consider a court of competent jurisdiction 
to be a U.S. state or federal court or a foreign court located in the 
minor's home state or place of habitual residence.
    (4) The Department may require that conflicts regarding custody 
orders, whether domestic or foreign, be settled by the appropriate court 
before a passport may be issued.
    (5) Access by parents and legal guardians to passport records for 
minors. Either parent or any legal guardian of a minor may upon written 
request obtain information regarding the application for and issuance of 
a passport to a minor, unless the requesting parent's parental rights 
have been terminated by an order of a court of competent jurisdiction, a 
copy of which has been provided to the Department. The Department may 
deny such information to a parent or legal guardian if it determines 
that the minor objects to disclosure and the minor is 16 years of age or 
older or if the Department determines that the minor is of sufficient 
age and maturity to invoke his or her own privacy rights.



          Subpart C_Evidence of U.S. Citizenship or Nationality



Sec.  51.40  Burden of proof.

    The applicant has the burden of proving that he or she is a U.S. 
citizen or non-citizen national.



Sec.  51.41  Documentary evidence.

    The applicant must provide documentary evidence that he or she is a 
U.S. citizen or non-citizen national.



Sec.  51.42  Persons born in the United States applying for a passport 
for the first time.

    (a) Primary evidence of birth in the United States. A person born in 
the United States generally must submit a birth certificate. The birth 
certificate must show the full name of the applicant, the applicant's 
place and date of birth, the full name of the parent(s), and must be 
signed by the official custodian of birth records, bear the seal of the 
issuing office, and show a filing date within one year of the date of 
birth.
    (b) Secondary evidence of birth in the United States. If the 
applicant cannot submit a birth certificate that meets the requirement 
of paragraph (a) of this section, he or she must submit secondary 
evidence sufficient to establish to the satisfaction of the Department 
that he or she was born in the United States. Secondary evidence 
includes but is not limited to hospital birth certificates, baptismal 
certificates, medical and school records, certificates of circumcision, 
other documentary evidence created shortly after birth but generally not 
more than 5 years after birth, and/or affidavits of persons having 
personal knowledge of the facts of the birth.



Sec.  51.43  Persons born outside the United States applying for a passport 
for the first time.

    (a) General. A person born outside the United States must submit 
documentary evidence that he or she meets all the statutory requirements 
for acquisition of U.S. citizenship or non-citizen nationality under the 
provision of law or treaty under which the person is claiming U.S. 
citizenship or non-citizen nationality.
    (b) Documentary evidence. (1) Types of documentary evidence of 
citizenship for a person born outside the United States include:
    (i) A certificate of naturalization.
    (ii) A certificate of citizenship.
    (iii) A Consular Report of Birth Abroad.

[[Page 235]]

    (2) An applicant without one of these documents must produce 
supporting documents as required by the Department, showing acquisition 
of U.S. citizenship under the relevant provisions of law.



Sec.  51.44  Proof of resumption or retention of U.S. citizenship.

    An applicant who claims to have resumed or retained U.S. citizenship 
must submit with the application a certificate of naturalization or 
evidence that he or she took the steps necessary to resume or retain 
U.S. citizenship in accordance with the applicable provision of law.



Sec.  51.45  Department discretion to require evidence of U.S. citizenship 
or non-citizen nationality.

    The Department may require an applicant to provide any evidence that 
it deems necessary to establish that he or she is a U.S. citizen or non-
citizen national, including evidence in addition to the evidence 
specified in 22 CFR 51.42 through 51.44.



Sec.  51.46  Return or retention of evidence of U.S. citizenship 
or non-citizen nationality.

    The Department will generally return to the applicant evidence 
submitted in connection with an application for a passport. The 
Department may, however, retain evidence when it deems it necessary for 
anti-fraud or law enforcement or other similar purposes.



                             Subpart D_Fees



Sec.  51.50  Form of payment.

    Passport fees must be paid in U.S. currency or in other forms of 
payments permitted by the Department.



Sec.  51.51  Passport fees.

    The Department collects the following passport fees in the amounts 
prescribed in the Schedule of Fees for Consular Services (22 CFR 22.1):
    (a) An application fee, which must be paid at the time of 
application, except as provided in Sec.  51.52, and is not refundable, 
except as provided in Sec.  51.53.
    (b) An execution fee, except as provided in Sec.  51.52, when the 
applicant is required to execute the application in person before a 
person authorized to administer oaths for passport purposes. The 
execution fee is collected at the time of application and is not 
refundable (see Sec.  51.55). When execution services are provided by an 
official of a State or local government or of the United States Postal 
Service (USPS), the State or local government or USPS may retain the fee 
if authorized to do so by the Department.
    (c) A fee for expedited passport processing, if applicable (see 
Sec.  51.56).
    (d) A surcharge in the amount of twenty-two dollars ($22) on the 
filing of each application for a passport book, in the amount of twenty-
two dollars ($22) on the filing of each application for a passport card 
for an applicant age 16 or over, and in the amount of fifteen dollars 
($15) on the filing of each application for a passport card for an 
applicant under age 16, in order to cover the costs of meeting the 
increased demand for passports as a result of actions taken to comply 
with section 7209(b) of the Intelligence Reform and Terrorism Prevention 
Act of 2004, Public Law 108-458 (8 U.S.C. 1185 note). The surcharge will 
be recovered by the Department of State from within the passport 
application fee reflected in the Schedule of Fees for Consular Services.
    (e) An ``enhanced border security'' surcharge on the filing of each 
application for a regular passport in an amount set administratively by 
the Department and published in the Schedule of Fees for Consular 
Services.
    (f) Any other fee that the Department is authorized or required by 
law to charge for passport services.
    (g) The foregoing fees are applicable regardless of the validity 
period of the passport.

[72 FR 64931, Nov. 19, 2007; 73 FR 5435, Jan. 30, 2008, as amended at 75 
FR 36535, June 28, 2010]



Sec.  51.52  Exemption from payment of passport fees.

    (a) A person who is exempt from the payment of passport fees under 
this section may obtain a passport book only for no charge. A passport 
card will not be issued for no charge to the individuals exempt from the 
payment of passport fees under this section.

[[Page 236]]

    (b) The following persons are exempt from payment of passport fees 
except for the passport execution fee, unless their applications are 
executed before a federal official, in which case they are also exempt 
from payment of the passport execution fee:
    (1) An officer or employee of the United States traveling on 
official business and the members of his or her immediate family. The 
applicant must submit evidence of the official purpose of the travel 
and, if applicable, authorization for the members of his or her 
immediate family to accompany or reside with him or her abroad.
    (2) An American seaman who requires a passport in connection with 
his or her duties aboard a United States flag vessel.
    (3) A widow, widower, child, parent, brother or sister of a deceased 
member of the United States Armed Forces proceeding abroad to visit the 
grave of such service member or to attend a funeral or memorial service 
for such member.
    (4) Other persons whom the Department determines should be exempt 
from payment of passport fees for compelling circumstances, pursuant to 
guidance issued by the Department; or
    (5) Other categories of persons exempted by law.

[72 FR 74173, Dec. 31, 2007]



Sec.  51.53  Refunds.

    (a) The Department will refund the passport application fee and the 
security surcharge to any person exempt from payment of passport fees 
under 22 CFR 51.52 from whom the fee was erroneously collected.
    (b) The Department will refund an expedited passport processing fee 
if the Department fails to provide expedited passport processing as 
provided in 22 CFR 51.56.
    (c) For procedures on refunds of $5.00 or less, see 22 CFR 22.6(b).



Sec.  51.54  Replacement passports without payment of applicable fees.

    A passport issuing office may issue a replacement passport for the 
following reasons without payment of applicable fees:
    (a) To correct an error or rectify a mistake of the Department;
    (b) When the bearer has changed his or her name or other personal 
identifier listed on the data page of the passport, and applies for a 
replacement passport within one year of the date of the passport's 
original issuance.
    (c) When the bearer of an emergency full fee passport issued for a 
limited validity period applies for a full validity passport within one 
year of the date of the passport's original issuance.
    (d) When a passport is retained by U.S. law enforcement or judiciary 
for evidentiary purposes and the bearer is still eligible to have a 
passport.
    (e) When a passport is issued to replace a passport with a failed 
electronic chip for the balance of the original validity period.



Sec.  51.55  Execution fee not refundable.

    The fee for the execution of a passport application is not 
refundable.



Sec.  51.56  Expedited passport processing.

    (a) Within the United States, an applicant for passport service 
(including issuance or replacement of a passport) may request expedited 
processing. The Department may decline the request.
    (b) Expedited passport processing shall mean completing processing 
within the number of business days published on the Department's Web 
site, http://www.travel.state.gov, commencing when the application 
reaches a Passport Agency or, if the application is already with a 
Passport Agency, commencing when the request for expedited processing is 
approved. The processing will be considered completed when the passport 
is ready to be picked up by the applicant or is mailed to the applicant, 
or a letter of passport denial is transmitted to the applicant.
    (c) A fee is charged for expedited passport processing (see 22 CFR 
51.51(c)). The fee does not cover any costs of mailing above the normal 
level of service regularly provided by the Department. The cost of 
expedited mailing must be paid by the applicant.

[[Page 237]]

    (d) The Department will not charge the fee for expedited passport 
processing if the Department's error, mistake or delay caused the need 
for expedited processing.

[72 FR 64931, Nov. 19, 2007, as amended at 74 FR 47727, Sept. 17, 2009; 
80 FR 72592, Nov. 20, 2015]



     Subpart E_Denial, Revocation, and Restriction of Passports and 
            Cancellation of Consular Reports of Birth Abroad



Sec.  51.60  Denial and restriction of passports.

    (a) The Department may not issue a passport, except a passport for 
direct return to the United States, in any case in which the Department 
determines or is informed by competent authority that:
    (1) The applicant is in default on a loan received from the United 
States under 22 U.S.C. 2671(b)(2)(B) for the repatriation of the 
applicant and, where applicable, the applicant's spouse, minor 
child(ren), and/or other immediate family members, from a foreign 
country (see 22 U.S.C. 2671(d)); or
    (2) The applicant has been certified by the Secretary of Health and 
Human Services as notified by a state agency under 42 U.S.C. 652(k) to 
be in arrears of child support in an amount determined by statute.
    (3) [Reserved]
    (4) The applicant is a covered sex offender as defined in 22 U.S.C. 
212b(c)(1), unless the passport, no matter the type, contains the 
conspicuous identifier placed by the Department as required by 22 U.S.C. 
212b.
    (b) The Department may refuse to issue a passport in any case in 
which the Department determines or is informed by competent authority 
that:
    (1) The applicant is the subject of an outstanding Federal warrant 
of arrest for a felony, including a warrant issued under the Federal 
Fugitive Felon Act (18 U.S.C. 1073); or
    (2) The applicant is subject to a criminal court order, condition of 
probation, or condition of parole, any of which forbids departure from 
the United States and the violation of which could result in the 
issuance of a Federal warrant of arrest, including a warrant issued 
under the Federal Fugitive Felon Act; or
    (3) The applicant is subject to a U.S. court order committing him or 
her to a mental institution; or
    (4) The applicant has been legally declared incompetent by a court 
of competent jurisdiction in the United States; or
    (5) The applicant is the subject of a request for extradition or 
provisional request for extradition which has been presented to the 
government of a foreign country; or
    (6) The applicant is the subject of a subpoena received from the 
United States pursuant to 28 U.S.C. 1783, in a matter involving Federal 
prosecution for, or grand jury investigation of, a felony; or
    (7) The applicant is a minor and the passport may be denied under 22 
CFR 51.28; or
    (8) The applicant is subject to an order of restraint or 
apprehension issued by an appropriate officer of the United States Armed 
Forces pursuant to chapter 47 of title 10 of the United States Code; or
    (9) The applicant is the subject of an outstanding state or local 
warrant of arrest for a felony; or
    (10) The applicant is the subject of a request for extradition or 
provisional arrest submitted to the United States by a foreign country.
    (c) The Department may refuse to issue a passport in any case in 
which:
    (1) The applicant has not repaid a loan received from the United 
States under 22 U.S.C. 2670(j) for emergency medical attention, dietary 
supplements, and other emergency assistance, including, if applicable, 
assistance provided to his or her child(ren), spouse, and/or other 
immediate family members in a foreign country; or
    (2) The applicant has not repaid a loan received from the United 
States under 22 U.S.C. 2671(b)(2)(B) or 22 U.S.C. 2671(b)(2)(A) for the 
repatriation or evacuation of the applicant and, if applicable, the 
applicant's child(ren), spouse, and/or other immediate family members 
from a foreign country to the United States; or
    (3) The applicant has previously been denied a passport under this 
section or

[[Page 238]]

22 CFR 51.61, or the Department has revoked the applicant's passport or 
issued a limited passport for direct return to the United States under 
22 CFR 51.62, and the applicant has not shown that there has been a 
change in circumstances since the denial, revocation or issuance of a 
limited passport that warrants issuance of a passport; or
    (4) The Secretary determines that the applicant's activities abroad 
are causing or are likely to cause serious damage to the national 
security or the foreign policy of the United States.
    (d) The Department may refuse to issue a passport in a case in which 
the Department is informed by an appropriate foreign government 
authority or international organization that the applicant is the 
subject of a warrant of arrest for a felony.
    (e) The Department may refuse to issue a passport, except a passport 
for direct return to the United States, in any case in which the 
Department determines or is informed by a competent authority that the 
applicant is a minor who has been abducted, wrongfully removed or 
retained in violation of a court order or decree and return to his or 
her home state or habitual residence is necessary to permit a court of 
competent jurisdiction to determine custody matters.
    (f) The Department may refuse to issue a passport to an applicant 
who fails to provide his or her Social Security account number on his or 
her passport application or who willfully, intentionally, negligently, 
or recklessly includes an incorrect or invalid Social Security account 
number.
    (g) The Department shall not issue a passport card to an applicant 
who is a covered sex offender as defined in 22 U.S.C. 212b(c)(1).
    (h) The Department may not issue a passport, except a limited 
validity passport for direct return to the United States or in instances 
where the Department finds that emergency circumstances or humanitarian 
reasons exist, in any case in which:
    (1) The Department is notified by the Attorney General that, during 
the covered period as defined by 22 U.S.C. 212a:
    (i) The applicant was convicted of a violation of 18 U.S.C. 2423, 
and
    (ii) The individual used a passport or passport card or otherwise 
crossed an international border in committing the underlying offense.
    (2) The applicant is certified by the Secretary of the Treasury as 
having a seriously delinquent tax debt as described in 26 U.S.C. 7345.
    (i) In appropriate circumstances, where an individual's passport 
application is denied or passport revoked consistent with this part, the 
Department may issue a limited validity passport good only for direct 
return to the United States.

[72 FR 64931, Nov. 19, 2007, as amended at 81 FR 60609, Sept. 1, 2016; 
81 FR 66185, Sept. 27, 2016; 83 FR 21874, May 11, 2018; 84 FR 67185, 
Dec. 9, 2019]



Sec.  51.61  Denial of passports to certain convicted drug traffickers.

    (a) A passport may not be issued in any case in which the Department 
determines or is informed by competent authority that the applicant is 
subject to imprisonment or supervised release as the result of a felony 
conviction for a Federal or state drug offense, if the individual used a 
U.S. passport or otherwise crossed an international border in committing 
the offense, including a felony conviction arising under:
    (1) The Controlled Substances Act (21 U.S.C. 801 et seq.) or the 
Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.); or
    (2) Any Federal law involving controlled substances as defined in 
section 802 of the Controlled Substances Act (21 U.S.C. 801 et seq.); or
    (3) The Bank Secrecy Act (31 U.S.C. 5311 et seq.) or the Money 
Laundering Act (18 U.S.C. 1956 et seq.) if the Department is in receipt 
of information that supports the determination that the violation 
involved is related to illicit production of or trafficking in a 
controlled substance; or
    (4) Any state law involving the manufacture, distribution, or 
possession of a controlled substance.
    (b) A passport may be refused in any case in which the Department 
determines or is informed by competent authority that the applicant is 
subject to imprisonment or supervised release as the result of a 
misdemeanor conviction of a Federal or state drug offense if the

[[Page 239]]

individual used a U.S. passport or otherwise crossed an international 
border in committing the offense, other than a first conviction for 
possession of a controlled substance, including a misdemeanor conviction 
arising under:
    (1) The Federal statutes described in Sec.  51.61(a); or
    (2) Any State law involving the manufacture, distribution, or 
possession of a controlled substance.
    (c) Notwithstanding paragraph (a) of this section, the Department 
may issue a passport when the competent authority confirms, or the 
Department otherwise finds, that emergency circumstances or humanitarian 
reasons exist.



Sec.  51.62  Revocation or limitation of passports and cancellation 
of Consular Reports of Birth Abroad.

    (a) The Department may revoke or limit a passport when:
    (1) The bearer of the passport may be denied a passport under 22 CFR 
51.60 or 51.61 or any other applicable provision contained in this part;
    (2) The passport was illegally, fraudulently or erroneously obtained 
from the Department; or was created through illegality or fraud 
practiced upon the Department; or
    (3) The passport has been fraudulently altered or misused.
    (b) The Department may revoke a passport when the Department has 
determined that the bearer of the passport is not a U.S. national, or 
the Department is on notice that the bearer's certificate of citizenship 
or certificate of naturalization has been cancelled.
    (c) The Department may cancel a Consular Report of Birth Abroad 
when:
    (1) The Consular Report of Birth Abroad was illegally, fraudulently 
or erroneously obtained from the Department, or was created through 
illegality or fraud practiced upon the Department;
    (2) The Consular Report of Birth Abroad has been fraudulently 
altered or misused; or
    (3) The Department has determined that the bearer of the Consular 
Report of Birth Abroad is not a U.S. national, or the Department is on 
notice that the bearer's certificate of citizenship has been cancelled.
    (d) The Department shall revoke a U.S. passport in any case in which 
the Department is notified by the Attorney General, that during the 
covered period as defined by 22 U.S.C. 212a:
    (1) The applicant was convicted of a violation of 18 U.S.C. 2423, 
and
    (2) The individual used a passport or otherwise crossed an 
international border in committing the underlying offense.
    (3) Notwithstanding paragraphs (d)(1) and (2) of this section, the 
Department may issue a limited validity passport for direct return to 
the United States.

[83 FR 21874, May 11, 2018]



Sec.  51.63  Passports invalid for travel into or through restricted areas; 
prohibition on passports valid only for travel to Israel.

    (a) The Secretary may restrict the use of a passport for travel to 
or use in a country or area which the Secretary has determined is:
    (1) A country with which the United States is at war; or
    (2) A country or area where armed hostilities are in progress; or
    (3) A country or area in which there is imminent danger to the 
public health or physical safety of United States travelers.
    (b) Any determination made and restriction imposed under paragraph 
(a) of this section, or any extension or revocation of the restriction, 
shall be published in the Federal Register.
    (c) A passport may not be designated as valid only for travel to 
Israel.



Sec.  51.64  Special validation of passports for travel to restricted areas.

    (a) A U.S. national may apply to the Department for a special 
validation of his or passport to permit its use for travel to, or use 
in, a restricted country or area. The application must be accompanied by 
evidence that the applicant falls within one of the categories in 
paragraph (c) of this section.
    (b) The Department may grant a special validation if it determines 
that the validation is in the national interest of the United States.
    (c) A special validation may be determined to be in the national 
interest if:
    (1) The applicant is a professional reporter or journalist, the 
purpose of

[[Page 240]]

whose trip is to obtain, and make available to the public, information 
about the restricted area; or
    (2) The applicant is a representative of the International Committee 
of the Red Cross or the American Red Cross traveling pursuant to an 
officially-sponsored Red Cross mission; or
    (3) The applicant's trip is justified by compelling humanitarian 
considerations; or
    (4) The applicant's request is otherwise in the national interest.



Sec.  51.65  Notification of denial, revocation or cancellation of passports 
and Consular Reports of Birth Abroad.

    (a) The Department will send notice in writing to any person whose 
application for issuance of a passport or Consular Report of Birth 
Abroad has been denied, whose passport has been revoked, or whose 
Consular Report of Birth Abroad has been cancelled. The notification 
will set forth the specific reasons for the denial, revocation or 
cancellation and, if applicable, the procedures for review available 
under 22 CFR 51.70 through 51.74.
    (b) An application for a passport or Consular Report of Birth Abroad 
will be denied if an applicant fails to meet his or her burden of proof 
under the applicable regulations or otherwise does not provide 
documentation sufficient to establish entitlement to a passport or a 
Consular Report of Birth Abroad, or does not provide additional 
information as requested by the Department within the time provided in 
the notification by the Department that additional information is 
required. Thereafter, if an applicant wishes the Department to 
adjudicate his or her claim of entitlement to a passport or Consular 
Report of Birth Abroad, he or she must submit a new application, 
supporting documents, and photograph, along with all applicable fees.
    (c) The Department may, in its sole discretion, administratively re-
open a previously filed passport or Consular Report of Birth Abroad 
application in order to issue a passport or Consular Report of Birth 
Abroad.

[83 FR 21874, May 11, 2018]



Sec.  51.66  Surrender of passport and/or Consular Report of Birth Abroad.

    The bearer of a passport that is revoked or of a Consular Report of 
Birth Abroad that is cancelled must surrender it to the Department or 
its authorized representative upon demand.

[83 FR 21875, May 11, 2018]



   Subpart F_Procedures for Review of Certain Denials and Revocations



Sec.  51.70  Request for hearing to review certain denials and revocations.

    (a) A person whose passport has been denied or revoked under 22 CFR 
51.60(b)(1) through (10), 51.60(c), 51.60(d), 51.61(b), 51.62(a)(1), or 
51.62(a)(2), or whose Consular Report of Birth Abroad is cancelled under 
Sec.  51.62(c)(1) or Sec.  51.62(c)(2), may request a hearing to review 
the basis for the denial, revocation, or cancellation, provided that the 
Department receives such a request, in writing, from such person or his 
or her attorney within 60 days of his or her receipt of the notice of 
the denial, revocation, or cancellation. Failure to timely request a 
hearing means the denial, revocation, or cancellation is the 
Department's final action.
    (b) The provisions of Sec. Sec.  51.70 through 51.74 do not apply to 
any action of the Department denying, restricting, revoking, cancelling 
or invalidating a passport or Consular Report of Birth Abroad, or in any 
other way adversely affecting the ability of a person to receive or use 
a passport or Consular Report of Birth Abroad, for reasons not set forth 
in Sec.  51.70(a), including, as applicable, those listed at:
    (1) Section 51.60(a) (instances where the Department may not issue a 
passport, except for direct return to the United States);
    (2) Section 51.60(f) (failure to provide a social security number, 
or purposefully providing an incorrect number);
    (3) Section 51.60(g) (denial of passport cards to certain convicted 
sex offenders);
    (4) Section 51.61(a) (denial of passports to certain convicted drug 
traffickers);
    (5) Section 51.62(b) (revocation of passports for non-U.S. nationals 
or

[[Page 241]]

where a certificate of citizenship or naturalization has been 
cancelled);
    (6) Section 51.62(c)(3) (cancellation of a Consular Report of Birth 
Abroad upon the Department's determination that the bearer is not a U.S. 
national or where a certificate of citizenship has been cancelled);
    (7) Section 51.62(d) (revocation of passports issued to certain 
convicted sex offenders);
    (8) Section 51.64 (specially validated passports);
    (9) Any other provision not listed at Sec.  51.70(a).
    (c) If a timely request for a hearing is made by a person seeking a 
hearing in accordance with these regulations, the Department will make 
reasonable efforts to hold the hearing within 90 days of the date the 
Department receives the request.
    (d) Within a reasonable period of time prior to the hearing, the 
Department will give the person requesting the hearing written notice of 
the date, time and place of the hearing and copies of the evidence 
relied on in denying, revoking, or cancelling the passport or Consular 
Report of Birth Abroad.
    (e) The person requesting the hearing may obtain one continuance, 
not to exceed an additional 90 days, upon written request. The request 
for a continuance must be received by the Department as soon as 
practicable and in no case less than five business days prior to the 
scheduled hearing date. Any further continuances are within the sole 
discretion of the Department.

[83 FR 21875, May 11, 2018]



Sec.  51.71  The hearing.

    (a) The Department will name a hearing officer, who will generally 
be a Department employee from the Bureau of Consular Affairs. The 
hearing officer will make only preliminary findings of fact and submit 
recommendations based on the record of the hearing, as defined in 22 CFR 
51.72, to the Deputy Assistant Secretary for Passport Services, or his 
or her designee, in the Bureau of Consular Affairs.
    (b) The hearing shall take place in Washington, DC or, if the person 
requesting the hearing is overseas, at the appropriate U.S. diplomatic 
or consular post. The person requesting the hearing must appear in 
person or with or through his or her attorney. Failure to appear at the 
scheduled hearing will constitute an abandonment of the request for a 
hearing, and the Department's revocation, cancellation or denial will be 
considered the Department's final action.
    (c) Any attorney appearing at a hearing must be admitted to practice 
in any state of the United States, the District of Columbia, or any 
territory or possession of the United States, or be admitted to practice 
before the courts of the country in which the hearing is to be held.
    (d) There is no right to subpoena witnesses or to conduct discovery. 
However, the person requesting the hearing may testify in person, offer 
evidence in his or her own behalf, present witnesses, and make arguments 
at the hearing. The person requesting the hearing is responsible for all 
costs associated with the presentation of his or her case, including the 
cost of interpreters, who must be certified in accordance with standards 
established for federal courts under 28 U.S.C. 1827. The Department may 
present witnesses, offer evidence, and make arguments in its behalf. The 
Department is responsible for all costs associated with the presentation 
of its case.
    (e) The hearing is informal and permissive. As such, the provisions 
of 5 U.S.C. 554 et seq. do not apply to the hearing. Formal rules of 
evidence also do not apply; however, the hearing officer may impose 
reasonable restrictions on relevancy, materiality, and competency of 
evidence presented. Testimony will be under oath or by affirmation under 
penalty of perjury. The hearing officer may not consider any information 
that is not also made available to the person requesting the hearing, 
the Department, and made a part of the record of the proceeding.
    (f) If any witness is unable to appear, the hearing officer may, in 
his or her discretion, accept an affidavit or sworn deposition testimony 
of the witness, the cost for which will be the responsibility of the 
requesting party, subject to such limits as the hearing officer deems 
appropriate.

[[Page 242]]

    (g) The person requesting the hearing and the Department of State 
may submit written briefs or argument prior to the hearing, but it is 
not required. The hearing officer will specify the date and schedule for 
the parties to submit written briefs, should they choose to do so.
    (h) The purpose of the hearing is to provide the person requesting 
the hearing an opportunity to challenge the basis for the Department's 
decision to deny or revoke the passport, or cancel the Consular Report 
of Birth Abroad. The burden of production is on the Department, and the 
Department shall provide the evidence it relied upon in revoking or 
denying the passport, or cancelling the Consular Report of Birth Abroad, 
prior to the hearing. The burden of persuasion is on the person 
requesting the hearing, to prove by a preponderance of the evidence that 
the Department improperly revoked the passport or denied the passport 
application, or cancelled the Consular Report of Birth Abroad, based on 
the facts and law in effect at the time such action was taken.

[83 FR 21875, May 11, 2018]



Sec.  51.72  Transcript and record of the hearing.

    A qualified reporter, provided by the Department, will make a 
complete verbatim transcript of the hearing. The person requesting the 
hearing or his or her attorney may review and purchase a copy of the 
transcript directly from the reporter. The hearing transcript and all 
the information and documents received by the hearing officer, whether 
or not deemed relevant, will constitute the record of the hearing. The 
hearing officer's preliminary findings and recommendations are 
deliberative, and shall not be considered part of the record unless 
adopted by the Deputy Assistant Secretary for Passport Services, or his 
or her designee.

[83 FR 21875, May 11, 2018]



Sec.  51.73  Privacy of hearing.

    Only the person requesting the hearing, his or her attorney, an 
interpreter, the hearing officer, the reporter transcribing the hearing, 
and employees of the Department concerned with the presentation of the 
case may be present at the hearing. Witnesses may be present only while 
actually giving testimony or as otherwise directed by the hearing 
officer.

[83 FR 21876, May 11, 2018]



Sec.  51.74  Final decision.

    After reviewing the record of the hearing and the preliminary 
findings of fact and recommendations of the hearing officer, and 
considering legal and policy considerations he or she deems relevant, 
the Deputy Assistant Secretary for Passport Services, or his or her 
designee, will decide whether to uphold the denial or revocation of the 
passport or cancellation of the Consular Report of Birth Abroad. The 
Department will promptly notify the person requesting the hearing of the 
decision in writing. If the decision is to uphold the denial, 
revocation, or cancellation, the notice will contain the reason(s) for 
the decision. The decision is final and is not subject to further 
administrative review.

[83 FR 21876, May 11, 2018]



PART 53_PASSPORT REQUIREMENT AND EXCEPTIONS--Table of Contents



Sec.
53.1 Passport requirement; definitions.
53.2 Exceptions.
53.3 Attempt of a citizen to enter without a valid passport.
53.4 Optional use of a valid passport.

    Authority: 8 U.S.C. 1185; 8 U.S.C. 1185 note (section 7209 of Pub. 
L. 108-458); E.O. 13323, 69 FR 241 (Dec. 30, 2003).

    Source: 71 FR 68430, Nov. 24, 2006, unless otherwise noted.



Sec.  53.1  Passport requirement; definitions.

    (a) It is unlawful for a citizen of the United States, unless 
excepted under 22 CFR 53.2, to enter or depart, or attempt to enter or 
depart, the United States, without a valid U.S. passport.
    (b) For purposes of this part ``United States'' means ``United 
States'' as defined in section 215(c) of the Immigration and Nationality 
Act of 1952, as amended (8 U.S.C. 1185(c)).

[[Page 243]]



Sec.  53.2  Exceptions.

    (a) U.S. citizens, as defined in Sec.  41.0 of this chapter, are not 
required to bear U.S. passports when traveling directly between parts of 
the United States as defined in Sec.  51.1 of this chapter.
    (b) A U.S. citizen is not required to bear a valid U.S. passport to 
enter or depart the United States:
    (1) When traveling as a member of the Armed Forces of the United 
States on active duty and when he or she is in the uniform of, or bears 
documents identifying him or her as a member of, such Armed Forces, when 
under official orders or permit of such Armed Forces, and when carrying 
a military identification card; or
    (2) When traveling entirely within the Western Hemisphere on a 
cruise ship, and when the U.S. citizen boards the cruise ship at a port 
or place within the United States and returns on the return voyage of 
the same cruise ship to the same United States port or place from where 
he or she originally departed. That U.S. citizen may present a 
government-issued photo identification document in combination with 
either an original or a copy of his or her birth certificate, a Consular 
Report of Birth Abroad issued by the Department, or a Certificate of 
Naturalization issued by U.S. Citizenship and Immigration Services 
before entering the United States; if the U.S. citizen is under the age 
of 16, he or she may present either an original or a copy of his or her 
birth certificate, a Consular Report of Birth Abroad issued by the 
Department, or a Certificate of Naturalization issued by U.S. 
Citizenship and Immigration Services; or
    (3) When traveling as a U.S. citizen seaman, carrying an unexpired 
Merchant Marine Document (MMD) in conjunction with maritime business. 
The MMD is not sufficient to establish citizenship for purposes of 
issuance of a United States passport under part 51 of this chapter; or
    (4) Trusted traveler programs--(i) NEXUS Program. When traveling as 
a participant in the NEXUS program, he or she may present a valid NEXUS 
program card when using a NEXUS Air kiosk or when entering the United 
States from contiguous territory or adjacent islands at a land or sea 
port-of-entry. A U.S. citizen who enters the United States by pleasure 
vessel from Canada under the remote inspection system may also present a 
NEXUS program card;
    (ii) FAST program. A U.S. citizen who is traveling as a participant 
in the FAST program may present a valid FAST card when entering the 
United States from contiguous territory or adjacent islands at a land or 
sea port-of-entry;
    (iii) SENTRI program. A U.S. citizen who is traveling as a 
participant in the SENTRI program may present a valid SENTRI card when 
entering the United States from contiguous territory or adjacent islands 
at a land or sea port-of-entry; The NEXUS, FAST, and SENTRI cards are 
not sufficient to establish citizenship for purposes of issuance of a 
U.S. passport under part 51 of this chapter; or
    (5) When arriving at land ports of entry and sea ports of entry from 
contiguous territory or adjacent islands, Native American holders of 
American Indian Cards (Form I-872) issued by U.S. Citizenship and 
Immigration Services (USCIS) may present those cards; or
    (6) When arriving at land or sea ports of entry from contiguous 
territory or adjacent islands, U.S. citizen holders of a tribal document 
issued by a United States qualifying tribal entity or group of United 
States qualifying tribal entities as provided in 8 CFR 235.1(e) may 
present that document. Tribal documents are not sufficient to establish 
citizenship for purposes of issuance of a United States passport under 
part 51 of this chapter; or
    (7) When bearing documents or combinations of documents the 
Secretary of Homeland Security has determined under Section 7209(b) of 
Public Law 108-458 (8 U.S.C. 1185 note) are sufficient to denote 
identity and citizenship. Such documents are not sufficient to establish 
citizenship for purposes of issuance of a U.S. passport under part 51 of 
this chapter; or
    (8) When the U.S. citizen is employed directly or indirectly on the 
construction, operation, or maintenance of works undertaken in 
accordance with the treaty concluded on February 3, 1944, between the 
United States and

[[Page 244]]

Mexico regarding the functions of the International Boundary and Water 
Commission (IBWC), TS 994, 9 Bevans 1166, 59 Stat. 1219, or other 
related agreements, provided that the U.S. citizen bears an official 
identification card issued by the IBWC and is traveling in connection 
with such employment; or
    (9) When the Department of State waives, pursuant to EO 13323 of 
December 30, 2003, Section 2, the requirement with respect to the U.S. 
citizen because there is an unforeseen emergency; or
    (10) When the Department of State waives, pursuant to EO 13323 of 
December 30, 2003, Sec 2, the requirement with respect to the U.S. 
citizen for humanitarian or national interest reasons; or
    (11) When the U.S. citizen is a child under the age of 19 arriving 
from contiguous territory in the following circumstances:
    (i) Children under age 16. A United States citizen who is under the 
age of 16 is permitted to present either an original or a copy of his or 
her birth certificate, a Consular Report of Birth Abroad, or a 
Certificate of Naturalization issued by U.S. Citizenship and Immigration 
Services when entering the United States from contiguous territory at 
land or sea ports-of-entry; or
    (ii) Groups of children under age 19. A U.S. citizen who is under 
age 19 and who is traveling with a public or private school group, 
religious group, social or cultural organization, or team associated 
with a youth sport organization may present either an original or a copy 
of his or her birth certificate, a Consular Report of Birth Abroad, or a 
Certificate of Naturalization issued by U.S. Citizenship and Immigration 
Services when arriving in the United States from contiguous territory at 
all land or sea ports of entry, when the group, organization or team is 
under the supervision of an adult affiliated with the organization and 
when the child has parental or legal guardian consent to travel. For 
purposes of this paragraph, an adult is considered to be a person who is 
age 19 or older. The following requirements will apply:
    (A) The group, organization, or team must provide to CBP upon 
crossing the border on organizational letterhead:
    (1) The name of the group, organization or team, and the name of the 
supervising adult;
    (2) A list of the children on the trip; and
    (3) For each child, the primary address, primary phone number, date 
of birth, place of birth, and the name of at least one parent or legal 
guardian.
    (B) The adult leading the group, organization, or team must 
demonstrate parental or legal guardian consent by certifying in the 
writing submitted in paragraph (b)(11)(ii)(A) of this section that he or 
she has obtained for each child the consent of at least one parent or 
legal guardian.
    (C) The procedure described in this paragraph is limited to members 
of the group, organization, or team who are under age 19. Other members 
of the group, organization, or team must comply with other applicable 
document and/or inspection requirements found in 8 CFR parts 211, 212, 
or 235.

[73 FR 18419, Apr. 3, 2008]



Sec.  53.3  Attempt of a citizen to enter without a valid passport.

    The appropriate officer at the port of entry shall report to the 
Department of State any citizen of the United States who attempts to 
enter the United States contrary to the provisions of this part, so that 
the Department of State may apply the waiver provisions of Sec.  53.2(h) 
and Sec.  53.2(i) to such citizen, if appropriate.



Sec.  53.4  Optional use of a valid passport.

    Nothing in this part shall be construed to prevent a citizen from 
using a valid U.S. passport in a case in which that passport is not 
required by this part 53, provided such travel is not otherwise 
prohibited.

[[Page 245]]



               SUBCHAPTER G_PUBLIC DIPLOMACY AND EXCHANGES





PART 61_WORLD-WIDE FREE FLOW OF AUDIO-VISUAL MATERIALS--Table of Contents



Sec.
61.1 Purpose.
61.2 Definitions.
61.3 Certification and authentication criteria.
61.4 Certification procedures--Exports.
61.5 Authentication procedures--Imports.
61.6 Consultation with subject matter specialists.
61.7 Review and appeals procedures.
61.8 Coordination with U.S. Customs Service.
61.9 General information.

    Authority: 5 U.S.C. 301; 19 U.S.C. 2051, 2052; 22 U.S.C. 1431 et 
seq.; Public Law 101-138; E.O. 11311, 31 FR 13413, 3 CFR 1966-1900 
comp., page 593.

    Source: 59 FR 18965, Apr. 21, 1994, unless otherwise noted. 
Redesignated at 64 FR 54539, Oct. 7, 1999.

    Editorial Note: Nomenclature changes to part 61 appear at 64 FR 
54539, Oct. 7, 1999.



Sec.  61.1  Purpose.

    The Department of State administers the ``Beirut Agreement of 
1948'', a multinational treaty formally known as the Agreement for 
Facilitating the International Circulation of Visual and Auditory 
Material of an Educational, Scientific and Cultural Character. This 
Agreement facilitates the free flow of educational, scientific and 
cultural audio-visual materials between nations by providing favorable 
import treatment through the elimination or reduction of import duties, 
licenses, taxes, or restrictions. The United States and other 
participating governments facilitate this favorable import treatment 
through the issuance or authentication of a certificate that the audio-
visual material for which favorable treatment is sought conforms with 
criteria set forth in the Agreement.



Sec.  61.2  Definitions.

    Department--means the Department of State.
    Applicant-- means: (1) The United States holder of the ``basic 
rights'' in the material submitted for export certification; or (2) the 
holder of a foreign certificate seeking import authentication.
    Application form--means the Application for Certificate of 
International Educational Character (Form IAP-17) which is required for 
requesting Department certification of United States produced audio-
visual materials under the provisions of the Beirut Agreement.
    Attestation Officer--means the Chief Attestation Officer of the 
United States and any member of his or her staff with authority to issue 
Certificates or Importation Documents.
    Audio-visual materials--means: (1) Films, filmstrips and microfilm 
in exposed and developed negative form, or in positive form, viz., 
masters or prints, teletranscriptions, kinescopes, videotape; (2) 
electronic sound recordings and sound/picture recordings of all types 
and forms or pressings and transfers thereform; (3) slides and 
transparencies; moving and static models, wallcharts, globes, maps and 
posters.
    Authentication--means the process through which an applicant obtains 
a United States Importation Document for Audio-visual Materials (Form 
IA-862).
    Basic rights--means the world-wide non-restrictive ownership rights 
in audio-visual materials from which the assignment of subsidiary rights 
(such as language versions, television, limited distribution, 
reproduction, etc.) are derived.
    Beirut Agreement--means the ``Agreement for Facilitating the 
International Circulation of Visual and Auditory Materials of an 
Educational, Scientific, or Cultural Character.''
    Certificate--means a document attesting that the named material 
complies with the standards set forth in Article I of the Beirut 
Agreement issued by: (1) The appropriate government agency of the State 
wherein the material to which the certificate relates originated, or (2) 
by the United Nations Educational, Scientific or Cultural Organization.
    Certification--means the process of obtaining a certificate 
attesting that audio-visual materials of United States

[[Page 246]]

origin being exported from the United States comply with the standards 
set forth in Article I of the Beirut Agreement, as interpreted pursuant 
to Section 207 of Public Law 101-138.
    Collateral instructional material--means a teacher's manual, study 
guide, or similar instructional material prepared or reviewed by a bona 
fide subject matter specialist. Such material must delineate the 
informational or instructional objectives of the audio-visual material 
and illustrate or explain how to utilize such material to attain the 
stated objectives.
    Committee on attestation--means the committee which advises the 
Attestation Officer on matters of policy and the evaluation of specific 
materials.
    Exports--means educational, scientific, and cultural audio-visual 
material of United States origin, being sent from the United States.
    Importation document--means the United States Importation Document 
for Audio-visual Materials (Form IA-862) issued by the Chief Attestation 
Officer of the United States which attests that materials of foreign 
origin entering the United States comply with the standards set forth in 
Article I of the Beirut Agreement (as interpreted pursuant to section 
207 of Public Law 101-138) and is therefore entitled to duty-free entry 
into the United States pursuant to the provisions of United States 
Customs Bureau Harmonized Tariff System Item No. 9817.00.4000.
    Imports--means educational, scientific, and cultural audio-visual 
material of foreign origin being brought into the United States.
    Instruct or inform--means to teach, train or impart knowledge 
through the development of a subject or aspect of a subject to aid the 
viewer or listener in a learning process. The instructional or 
informational character of audio-visual material may be evidenced by the 
presence of collateral instructional material.
    Knowledge--means a body of facts and principles acquired by 
instruction, study, research, or experience.
    Review Board--means the panel appointed by the Secretary of State to 
review appeals filed by applicants from decisions rendered by an 
Attestation Officer.
    Secretary of State--means the Secretary of State of the State 
Department.
    Serial certification--means certification by the Department of 
materials produced in series form and which, for time-sensitive reasons, 
cannot be reviewed prior to production; but samples are provided on 
application, and the materials are subject to post-certification review.
    Subject matter specialist--means an individual who has acquired 
special skill in or knowledge of a particular subject through 
professional training or practical experience.

[59 FR 18965, Apr. 21, 1994, as amended at 60 FR 29989, June 7, 1995. 
Redesignated at 64 FR 54539, Oct. 7, 1999]



Sec.  61.3  Certification and authentication criteria.

    (a) The Department shall certify or authenticate audio-visual 
materials submitted for review as educational, scientific and cultural 
in character and in compliance with the standards set forth in Article I 
of the Beirut Agreement when: (1) Their primary purpose or effect is to 
instruct or inform through the development of a subject or aspect of a 
subject, or when their content is such as to maintain, increase or 
diffuse knowledge, and augment international understanding and goodwill; 
and
    (2) The materials are representative, authentic, and accurate; and
    (3) The technical quality is such that it does not interfere with 
the use made of the material.
    (b) The Department will not certify or authenticate any audio-visual 
material submitted for review which:
    (1) Does not primarily instruct or inform through the development of 
a subject or aspect of a subject and its content is not such as to 
maintain, increase or diffuse knowledge.
    (2) Contains widespread and gross misstatements of fact.
    (3) Is not technically sound.
    (4) Has as its primary purpose or effect to amuse or entertain.
    (5) Has as its primary purpose or effect to inform concerning timely 
current events (newsreels, newscasts, or other forms of ``spot'' news).

[[Page 247]]

    (6) Stimulates the use of a special process or product, advertises a 
particular organization or individual, raises funds, or makes 
unsubstantiated claims of exclusivity.
    (c) In its administration of this section, the Department shall not 
fail to qualify audio-visual material because:
    (1) It advocates a particular position or viewpoint, whether or not 
it presents or acknowledges opposing viewpoints;
    (2) It might lend itself to misinterpretation, or to 
misrepresentation of the United States or other countries, or their 
people or institutions;
    (3) It is not representative, authentic, or accurate or does not 
represent the current state of factual knowledge of a subject or aspect 
of a subject unless the material contains widespread and gross 
misstatements of fact;
    (4) It does not augment international understanding and goodwill, 
unless its primary purpose or effect is not to instruct or inform 
through the development of a subject or an aspect of a subject and its 
content is not such as to maintain, increase, or diffuse knowledge; or
    (5) In the opinion of the Department the material is propaganda.
    (d) The Department may certify or authenticate materials which have 
not been produced at the time of application upon an affirmative 
determination that:
    (1) The materials will be issued serially,
    (2) Representative samples of the serial material have been provided 
at the time of application,
    (3) Future titles and release dates have been provided to the 
Department at the time of application,
    (4) The applicant has affirmed that:
    (i) Future released materials in the series will conform to the 
substantive criteria for certification delineated at paragraphs (a) 
through (c) of this section;
    (ii) Such materials will be similar to the representative samples 
provided to the Department on application; and
    (iii) The applicant will provide the Department with copies of the 
items themselves or descriptive materials for post-certification review.
    (e) If the Department determines through a post-certification review 
that the materials do not comply with the substantive criteria for 
certification delineated at paragraphs (a) through (c) of this section, 
the applicant will no longer be eligible for serial certifications. 
Ineligibility for serial certifications will not affect an applicant's 
eligibility for certification of materials reviewed prior to production.

[59 FR 18965, Apr. 21, 1994, as amended at 60 FR 29989, June 7, 1995. 
Redesignated at 64 FR 54539, Oct. 7, 1999]



Sec.  61.4  Certification procedures--Exports.

    (a) Applicants seeking certification of U.S. produced audio-visual 
materials shall submit to the Department a completed Application Form 
for each subject or series for which certification is sought. Collateral 
instructional material, if any, and a copy or example of the material 
must accompany the Application Form.
    (b) Upon an affirmative determination by the Department that the 
submitted materials satisfy the Certification and Authentication 
Criteria set forth in Sec.  502.3 of this part, a Certificate shall be 
issued. A copy of such Certificate must accompany each export shipment 
of the certified material.



Sec.  61.5  Authentication procedures--Imports.

    (a) Applicants seeking Department authentication of foreign produced 
audio-visual materials shall submit to the Department a bona fide 
foreign certificate, a copy or example of the material for which 
authentication is sought, and related collateral instructional material, 
if any.
    (b) Upon an affirmative determination by the Department that the 
submitted materials satisfy the Certification and Authentication 
Criteria set forth in Sec.  502.3 of this part, an Importation Document 
shall be issued. A copy of such Importation Document must be presented 
to United States Customs at the port of entry.



Sec.  61.6  Consultation with subject matter specialists.

    (a) The Department may, in its discretion, solicit the opinion of 
subject

[[Page 248]]

matter specialists for the purpose of assisting the Department in its 
determination of whether materials for which export certification or 
import authentication is sought contain widespread and gross 
misstatements of fact.
    (b) As necessary, the Department may determine eligibility of 
material for certification or authentication based in part on the 
opinions obtained from subject matter specialists and the Committee on 
Attestation.



Sec.  61.7  Review and appeal procedures.

    (a) An applicant may request a formal review of any adverse ruling 
rendered by the Attestation Officer. Such request for review must be 
made in writing and received no more than 30 days from the date of the 
Attestation Officer's decision.
    (b) The request for review must set forth all arguments which the 
applicant wishes to advance in support of his or her position and any 
data upon which such argument is based. A copy of the material for which 
certification or authentication has been denied must accompany the 
request for review. The request for review should be addressed as 
follows: Attestation Program Review Board ECA/GCV--Attestation Officer, 
Department of State, 301 4th Street, SW., Washington, DC 20547.
    (c) The Review Board shall render the applicant a written decision, 
reversing or affirming the ruling of the Attestation Officer, within 30 
days from receipt of the request for review. Such decision shall 
constitute final administrative action.



Sec.  61.8  Coordination with United States Customs Service.

    (a) Nothing in this part shall preclude examination of imported 
materials pursuant to the Customs laws and regulations of the United 
States as codified at 19 U.S.C. 1305 and 19 CFR 10.121, or the 
application of the laws and regulations governing the importation or 
prohibition against importation of certain materials including seditious 
or salacious materials as set forth at 19 U.S.C. 1305.
    (b) Department authentications of a foreign certificate for entry 
under HTS Item No. 9817.00.4000 will be reflected by the issuance of an 
Importation Document. A copy of each Importation Document issued by the 
Department will be simultaneously furnished the United States Customs 
Service.
    (c) Customs User Fee: Articles delivered by mail, which are eligible 
for duty-free entry under the regulations in this part are, 
additionally, not subjected to the standard Customs User Fee normally 
imposed by the United States Customs Service, provided there has been a 
timely filing with the appropriate United States Customs Service office 
of the documentation required by the regulations in this part.



Sec.  61.9  General information.

    General information and application forms may be obtained by writing 
to the Attestation Office as follows: ECA/GCV--Attestation Officer, 
Department of State, 301 4th Street, SW., Washington, DC 20547; or 
calling (202) 475-0221.

[59 FR 18965, Apr. 21, 1994. Redesignated and amended at 64 FR 54539, 
Oct. 7, 1999]



PART 62_EXCHANGE VISITOR PROGRAM--Table of Contents



                      Subpart A_General Provisions

Sec.
62.1 Purpose.
62.2 Definitions.
62.3 Sponsor eligibility.
62.4 Categories of participant eligibility.
62.5 Designation application procedure.
62.6 Designation.
62.7 Redesignation.
62.8 General program requirements.
62.9 General obligations of sponsors.
62.10 Program administration.
62.11 Duties of Responsible Officers and Alternate Responsible Officers.
62.12 Control of Forms DS-2019.
62.13 Notification requirements.
62.14 Insurance.
62.15 Reporting requirements.
62.16 Employment.
62.17 Fees and charges.

                  Subpart B_Specific Program Provisions

62.20 Professors and research scholars.
62.21 Short-term scholars.
62.22 Trainees and interns.
62.23 College and university students.
62.24 Teachers.
62.25 Secondary school students.
62.26 Specialists.
62.27 Alien physicians.
62.28 International visitors.

[[Page 249]]

62.29 Government visitors.
62.30 Camp counselors.
62.31 Au pairs.
62.32 Summer work travel.

                  Subpart C_Status of Exchange Visitors

62.40 Termination of program participation.
62.41 Change of category.
62.42 Transfer of program.
62.43 Extension of program.
62.45 Reinstatement to valid program status.

                           Subpart D_Sanctions

62.50 Sanctions.

            Subpart E_Termination and Revocation of Programs

62.60 Termination of designation.
62.61 Revocation.
62.62 Termination of, or denial of redesignation for, a class of 
          designated programs.
62.63 Responsibilities of the sponsor upon termination or revocation.

Subparts F-G [Reserved]

Appendixes A-D to Part 62--Certification of Responsible Officers and 
          Sponsors
Appendix E to Part 62--Unskilled Occupations
Appendix F to Part 62--Information To Be Collected on Secondary School 
          Student Host Family Applications

    Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 1431 
et seq.; 22 U.S.C. 2451 et seq.; 22 U.S.C. 2651(a); Pub. L. 105-277, 
Div. G, 112 Stat. 2681 et seq.; Reorganization Plan No. 2 of 1977, 3 
CFR, 1977 Comp. p. 200; E.O. 12048 of March 27, 1978; 3 CFR, 1978 Comp. 
p. 168; Pub. L. 104-208, Div. C, 110 Stat. 3009-546, as amended; Pub. L. 
107-56, 416, 115 Stat. 354; and Pub. L. 107-173, 116 Stat. 543.

    Source: 58 FR 15196, Mar. 19, 1993, unless otherwise noted. 
Redesignated at 64 FR 54539, Oct. 7, 1999.

    Editorial Note: Nomenclature changes to part 62 appear at 64 FR 
54539, Oct. 7, 1999, and 67 FR 17612, 17613, Apr. 11, 2002.



                      Subpart A_General Provisions



Sec.  62.1  Purpose.

    (a) The regulations set forth in this part implement the Mutual 
Educational and Cultural Exchange Act of 1961 (the ``Act''), as amended, 
Public Law 87-256, 22 U.S.C. 2451, et seq. (1988). The purpose of the 
Act is to increase mutual understanding between the people of the United 
States and the people of other countries by means of educational and 
cultural exchanges. Educational and cultural exchanges assist the 
Department of State in furthering the foreign policy objectives of the 
United States. These exchanges are defined by section 102 of the Act, 22 
U.S.C. 2452, and section 101(a)(15)(J) of the Immigration and 
Nationality Act, as amended, 8 U.S.C. 1101(a)(15)(J).
    (b) The Secretary of State of the Department of State facilitates 
activities specified in the Act, in part, by designating public and 
private entities to act as sponsors of the Exchange Visitor Program. 
Sponsors may act independently or with the assistance of third parties. 
The purpose of the Program is to provide foreign nationals with 
opportunities to participate in educational and cultural programs in the 
United States and return home to share their experiences, and to 
encourage Americans to participate in educational and cultural programs 
in other countries. Exchange visitors enter the United States on a J 
visa. The regulations set forth in this subpart are applicable to all 
sponsors.
    (c) The Assistant Secretary for Educational and Cultural Affairs of 
the Department of State may, in his or her sole discretion and to the 
extent consistent with the authorities described in paragraph (a) of 
this section and other applicable law, waive or modify any provision of 
this part with respect to programs that are established pursuant to 
memoranda of understanding, letters of intent or similar arrangements 
between the United States and foreign governments. When establishing 
such a program, the Department will publish a notice in the Federal 
Register describing the program and any resulting modifications to or 
waivers of provisions of this part. If such an arrangement will not 
result in a waiver of or other modification to the provisions of this 
part, then the Department need not publish a notice.

[79 FR 60307, Oct. 6, 2014]



Sec.  62.2  Definitions.

    The following definitions apply to this part:
    Academic institution. Any publicly or privately operated primary, 
secondary, or post-secondary institution in the

[[Page 250]]

United States or abroad that offers primarily academic programs. For the 
purpose of these regulations, an institution that offers primarily 
vocational or technical programs is not an academic institution unless 
the specific program or programs in which the exchange visitor is to 
participate or has participated has been determined by the U.S. 
Department of State on an exceptional basis to be comparable to those 
offered in academic institutions.
    Accompanying spouse and dependents. The alien spouse and/or minor 
unmarried child(ren), if any, of an exchange visitor who are 
accompanying or following to join the exchange visitor and who seek to 
enter or have entered the United States temporarily on non-immigrant J-2 
visas or seek to acquire or have acquired such status after admission. 
For the purpose of these regulations, a minor is a person under the age 
of 21 years old.
    Accredited academic institution. Any academic institution that is 
duly accredited by the appropriate academic accrediting authority of the 
U.S. jurisdiction in which such institution is located. In addition, all 
post-secondary institutions also must be accredited by a nationally 
recognized accrediting agency or association as recognized by the 
Secretary of Education.
    Act. The Mutual Educational and Cultural Exchange Act of 1961, as 
amended.
    Actual and current U.S. address. The physical, geographic location 
at which an exchange visitor and accompanying spouse and dependents 
reside while participating in an exchange program.
    Alternate Responsible Officer. An employee or officer of a sponsor 
who has been nominated by the sponsor and approved by the Department of 
State to assist the Responsible Officer in carrying out the 
responsibilities outlined in Sec.  62.11. An Alternate Responsible 
Officer must be a United States person.
    Certificate of Good Standing. A document issued by a state Secretary 
of State, Secretary of Commonwealth, or other official in the state 
where the business entity is registered. A Certificate of Good Standing 
confirms that a corporation, partnership or other legal entity is in 
existence or authorized to transact business. A Certificate of Good 
Standing is also known as a Certificate of Authorization or a 
Certificate of Existence.
    Clerical work. Routine administrative work generally performed in an 
office or office-like setting, such as data entry, filing, typing, mail 
sorting and distribution, and other general administrative or support 
tasks.
    Consortium. A not-for-profit corporation, partnership, joint venture 
or other association formed by two or more accredited academic 
institutions for the purpose of sharing educational resources, 
conducting research, and/or developing new programs to enrich or expand 
the opportunities offered by its members. An academic institution in the 
United States that participates in a consortium is not barred from 
having separate exchange visitor program designations of its own.
    Country of nationality or last legal permanent residence. Either the 
country of which the exchange visitor is a national at the time status 
as an exchange visitor is acquired or the last foreign country in which 
the visitor had a legal permanent residence before acquiring status as 
an exchange visitor.
    Cross-cultural activity. An activity designed to promote exposure 
and interchange between exchange visitors and Americans so as to 
increase their mutual understanding of each other's society, culture, 
and institutions.
    Department of State. The U.S. Department of State.
    Designation. The written authorization issued by the Department of 
State to an exchange visitor program applicant to conduct an exchange 
visitor program as a sponsor. The term includes the written 
authorization issued to a current sponsor that applies to continue its 
designation (i.e., redesignation).
    Employee. An individual who provides services or labor for an 
employer for wages or other remuneration. A third party, as defined in 
this section, or an independent contractor, as defined in 8 CFR 
274a.1(j), is not an employee.
    Exchange visitor. A foreign national who has been selected by a 
sponsor to participate in an exchange visitor program, and who is 
seeking to enter or

[[Page 251]]

has entered the United States temporarily on a non-immigrant J-1 visa or 
who has obtained J status in the United States based on a Form DS-2019 
issued by the sponsor. The term does not include the accompanying spouse 
and dependents of the exchange visitor.
    Exchange Visitor Program. The international exchange program 
administered by the Department of State to implement the Act by means of 
educational and cultural exchange programs. When ``exchange visitor 
program'' is set forth in lower case, it refers to the individual 
program of a sponsor that has been designated by the Department of 
State.
    Exchange visitor's government. The government of the exchange 
visitor's country of nationality or last legal permanent residence.
    Financed directly. Financed in whole or in part by the U.S. 
Government or the exchange visitor's government with funds contributed 
directly to the exchange visitor in connection with his or her 
participation in an exchange visitor program.
    Form DS-2019, A Certificate of Eligibility for Exchange Visitor (J-
Nonimmigrant) Status. A controlled document of the Department of State 
that a sponsor issues to a potential Exchange Visitor Program 
participant (J-1) and his or her accompanying spouse and dependents (J-
2) as permitted by regulations. This form, together with other necessary 
Department of State documents, permits the named foreign national, if 
required, to schedule an interview at a U.S. embassy or consulate to 
seek to obtain a J visa to enter the United States as an Exchange 
Visitor Program participant or as an accompanying spouse and dependent.
    Form DS-3036, Exchange Visitor Program Application. A controlled 
document of the Department of State that an organization uses to apply 
to become a designated sponsor of the Exchange Visitor Program and that 
a designated sponsor uses to request redesignation or amendment of an 
existing exchange visitor program.
    Form DS-3037, Update of Information on a Sponsor's Exchange Visitor 
Program. A controlled document of the Department of State that a sponsor 
uses to update information on its exchange visitor programs in SEVIS.
    Form DS-3097, Annual Report. A controlled document of the Department 
of State in which a sponsor reports program activity and evaluation on a 
yearly basis.
    Form DS-7002, Training/Internship Placement Plan (T/IPP). A 
controlled document of the Department of State used in connection only 
with a Trainee or Intern under 22 CFR Sec.  62.22, or a Student Intern 
under Sec.  62.23 respectively, to outline an exchange visitor's program 
activities.
    Full course of study. Full-time enrollment in an academic program of 
classroom participation and study and/or doctoral thesis research at an 
accredited academic institution as follows:
    (1) Secondary school students must satisfy the attendance and course 
requirements of the state in which the school they attend is located; 
and
    (2) College and university students must register for and complete a 
full course of study, as defined by the accredited academic institution 
in which the student is registered, unless exempted in accordance with 
Sec.  62.23(e).
    Graduate medical education or training. Participation in a program 
in which a foreign medical school graduate will receive graduate medical 
education or training, which generally consists of a residency or 
fellowship program involving health care services to patients, but does 
not include programs involving observation, consultation, teaching or 
research in which there is no or only incidental patient care. This 
program may consist of a medical specialty, a directly related medical 
subspecialty, or both.
    Home-country physical presence requirement. The requirement that an 
exchange visitor, and any accompanying spouse and dependents, who are 
within the purview of section 212(e) of the Immigration and Nationality 
Act, as amended, or Public Law 94-484 (substantially quoted in 22 CFR 
41.63), must reside and be physically present in the country of 
nationality or last legal permanent residence for an aggregate of at 
least two years following departure from the United States before the 
exchange visitor is eligible to apply for

[[Page 252]]

an immigrant visa or permanent residence, a non-immigrant K visa as the 
fianc[eacute](e) of a U.S. citizen, a non-immigrant H visa as a 
temporary worker or trainee, or a non-immigrant L visa as an 
intracompany transferee, or a non-immigrant H or L visa as the spouse or 
minor child of a person who has been granted status in H or L non-
immigrant classification as a temporary worker or trainee or an 
intracompany transferee.
    Host organization. A third party in the United States that conducts 
training and/or internship programs on behalf of a designated sponsor 
pursuant to an executed written agreement between the two parties.
    Internship program. A structured and guided work-based learning 
program for an Intern as set forth in an individualized Training/
Internship Placement Plan (Form DS-7002) that reinforces an intern's 
academic study; recognizes the need for work-based experience; provides 
on-the-job exposure to American techniques, methodologies, and 
technologies; and enhances the Intern's knowledge of American culture 
and society.
    J visa. A non-immigrant visa issued pursuant to 8 U.S.C. 
1101(a)(15)(J). A J-1 visa is issued to an exchange visitor. A J-2 visa 
is issued to the exchange visitor's accompanying spouse and dependents, 
if qualified under Sec.  214b of the Immigration and Nationality Act, as 
amended.
    Management review. A program-specific management audit in a format 
approved by the Department of State that is conducted by an independent 
auditor who is not an employee or third party contractor of the sponsor, 
to identify weaknesses in operating procedures in the conduct of an 
organization's business and in meeting regulatory requirements in the 
administration of a sponsor's exchange visitor program.
    Office of Designation. The Department of State, Bureau of 
Educational and Cultural Affairs office assigned to administer 
designations of sponsors.
    Office of Exchange Coordination and Compliance. The Department of 
State, Bureau of Educational and Cultural Affairs office assigned to 
oversee sponsor compliance with 22 CFR part 62 and, as appropriate, 
impose sanctions.
    Office of Private Sector Exchange Administration. The Department of 
State, Bureau of Educational and Cultural Affairs office assigned to 
monitor administration of each sponsor's exchange visitor program.
    On-the-job training. An individual's observation of and 
participation in given tasks demonstrated by experienced workers for the 
purpose of acquiring competency in such tasks.
    Prescribed course of study. A non-degree academic program with a 
specific educational objective. Such course of study may include 
intensive English language training, classroom instruction, research 
projects, and/or academic training to the extent permitted in Sec.  
62.23.
    Reciprocity. The participation of a U.S. citizen or U.S. national in 
an educational and cultural program in a foreign country in exchange for 
the participation of a foreign national in the Exchange Visitor Program. 
Where used herein, ``reciprocity'' will be interpreted broadly; unless 
otherwise specified, reciprocity does not require a one-for-one exchange 
or that exchange visitors be engaged in the same activity.
    Responsible Officer. An employee or officer of a sponsor who has 
been nominated by the sponsor, and approved by the Department of State, 
to carry out the duties outlined in Sec.  62.11. A Responsible Officer 
must be a citizen of the United States or a lawful permanent resident of 
the United States.
    Secretary of State. The Secretary of State or an employee of the 
U.S. Department of State acting under a delegation of authority from the 
Secretary of State.
    SEVIS (Student and Exchange Visitor Information System). The 
statutorily mandated system designed to collect information on non-
immigrant students (F and M visas), exchange visitors (J visas), and 
their spouses and dependents (F-2, M-2, and J-2 visas). SEVIS enables 
schools and program sponsors to transmit information and event 
notifications electronically, via the Internet, to the Department of 
Homeland Security and the Department of State throughout a student's

[[Page 253]]

or exchange visitor's stay in the United States.
    Site of activity. The physical, geographic location(s) where an 
exchange visitor participates in his or her exchange program.
    Sponsor. A legal entity designated by the Secretary of State to 
conduct an exchange visitor program.
    Staffing/employment agency. A U.S. business that hires individuals 
for the express purpose of supplying workers to other businesses. 
Typically, the other businesses where workers are placed pay an hourly 
fee per employee to the staffing/employment agency, of which the worker 
receives a percentage.
    Student internship program. A structured and guided work-based 
learning program for a post-secondary student intern as set forth in an 
individualized Training/Internship Placement Plan (Form DS-7002) that 
partially or fully fulfills a student's post-secondary academic degree 
requirements; recognizes the need for work-based experience; provides 
on-the-job exposure to American techniques, methodologies, and 
technologies; and enhances the student intern's knowledge of American 
culture and society.
    Third party. A person or legal entity with whom a sponsor has 
executed a written agreement for the person or entity to act on behalf 
of a sponsor in the conduct of the sponsor's exchange visitor program. 
All entities that act on behalf of the sponsor in the conduct of the 
sponsor's exchange visitor program must execute written agreements with 
the sponsor that outline the full relationship between the entity and 
the sponsor on all matters involving the administration of the exchange 
visitor program. A sponsor's use of a third party does not relieve the 
sponsor of its obligations to comply, and to ensure third party 
compliance, with the provisions of this part. Failure by any third party 
to comply with the regulations set forth in this part or with any 
additional terms and conditions governing administration of the Exchange 
Visitor Program that the Department of State may from time to time 
impose will be imputed to the sponsor. Sponsors are required to ensure 
that third parties know and comply with all applicable provisions of 
these regulations.
    Training program. A structured and guided work-based learning 
program for a trainee as set forth in an individualized Training/
Internship Placement Plan (Form DS-7002), that develops new and advanced 
skills in a trainee's occupational field through exposure to American 
techniques, methodologies, and technologies; and enhances a trainee's 
understanding of American culture and society.
    United States person (individual). A person who is born within or is 
a national of the United States or any of its territories or outlying 
possessions. A U.S. person is a citizen or an individual who has been 
lawfully admitted for permanent residence, within the meaning of section 
101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101).
    United States Person (legal entity).
    (1) A general or limited partnership created or organized under the 
laws of the United States, or of any state, the District of Columbia, or 
any territory or outlying possession of the United States, of which a 
majority of the partners are United States persons:
    (i) Which has its principal place of business in the United States; 
and
    (ii) In instances where the partnership is additionally governed by 
a Board, the majority of whose officers are United States persons.
    (2) A for-profit corporation, association, or other legal entity 
created or organized under the laws of the United States, or of any 
state, the District of Columbia, or a territory or outlying possession 
of the United States, whose principal place of business is located in 
the United States, and
    (i) Whose shares or voting interests are publicly traded on a U.S. 
stock exchange; or
    (ii) A majority of whose officers, a majority of whose shareholders, 
and a majority of whose members of its Board of Directors are United 
States persons and collectively hold a majority of the shares or stock 
(i.e., the de jure controlling interest); or
    (3) A non-profit corporation, association, or other legal entity 
created or organized under the laws of the United

[[Page 254]]

States, or any state, the District of Columbia, or any territory or 
outlying possession of the United States; and
    (i) Whose principal place of business is located in the United 
States; and
    (ii) A majority of whose officers and a majority of whose members of 
its Board of Directors, Board of Trustees or other like body vested with 
its management are United States persons; or
    (4) An accredited college, university, or other post-secondary 
academic institution in the United States created or organized under the 
laws of the United States, or of any state, county, municipality, or 
other political subdivision thereof, the District of Columbia, or of any 
territory or outlying possession of the United States; or
    (5) An agency of the United States, or of any state or local 
government, the District of Columbia, or any territory or outlying 
possession of the United States.
    Validation. The process by which a Responsible Officer or Alternate 
Responsible Officer updates the SEVIS record of an exchange visitor to 
show he or she has entered the United States, and that the exchange 
visitor reported to his or her sponsor and is participating in the 
exchange visitor program at the site of activity identified on his or 
her Form DS-2019.

[79 FR 60307, Oct. 6, 2014]



Sec.  62.3  Sponsor eligibility.

    (a) The following types of entities are eligible to apply for 
designation as a sponsor of an exchange visitor program:
    (1) U.S. local, state, and federal government agencies to include 
the District of Columbia; and government agencies of any U.S. 
territories and outlying possessions;
    (2) International agencies or organizations of which the United 
States is a member and that have an office in the United States; or
    (3) Reputable organizations that are United States Persons.
    (b) To be eligible for designation as a sponsor, an entity is 
required to:
    (1) Demonstrate, to the Department of State's satisfaction, its 
ability to comply and remain in continual compliance with all applicable 
provisions of this part;
    (2) Meet at all times its financial obligations and responsibilities 
attendant to successful sponsorship of its exchange visitor program; and
    (3) Demonstrate that the organization or its proposed Responsible 
Officer has no fewer than three years' experience in international 
exchange.

[79 FR 60307, Oct. 6, 2014]



Sec.  62.4  Categories of participant eligibility.

    Sponsors select foreign nationals to participate in exchange visitor 
program(s) in the United States. Participation is limited to foreign 
nationals who meet the following criteria for each of the following 
categories:
    (a) Student. A foreign national who is:
    (1) Studying in the United States and:
    (i) Pursuing a full course of study at a secondary accredited 
academic institution;
    (ii) Pursuing a full course of study leading to or culminating in 
the award of a U.S. degree from a post-secondary accredited academic 
institution; or
    (iii) Engaged full-time in a prescribed course of study of up to 24 
months (non-degree) duration conducted by:
    (A) A post-secondary accredited academic institution; or
    (B) An institute approved by or acceptable to the post-secondary 
accredited academic institution, where the student is to be enrolled 
upon completion of the non-degree program;
    (2) Engaged in academic training as permitted in Sec.  62.23(f);
    (3) Engaged in English language training at:
    (i) A post-secondary accredited academic institution, or
    (ii) An institute approved by or acceptable to the post-secondary 
accredited academic institution where the college or university student 
is to be enrolled upon completion of the language training; or
    (4) Engaged full-time in a student internship program conducted by a 
post-secondary accredited academic institution.
    (b) Short-term scholar. A foreign national who is a professor, 
research scholar, or person with similar education or accomplishments 
who enters the United States for a short-term visit

[[Page 255]]

for the purpose of lecturing, observing, consulting, training, or 
demonstrating special skills at research institutions, museums, 
libraries, post-secondary accredited academic institutions, or similar 
types of institutions.
    (c) Trainee. A foreign national participating in a structured and 
guided work-based training program in his or her specific occupational 
field (in an occupational category for which a sponsor has obtained 
designation) who has either:
    (1) A degree or professional certificate from a foreign 
ministerially-recognized post-secondary academic institution and at 
least one year of prior related work experience in his or her 
occupational field acquired outside the United States; or
    (2) Five years of work experience in his or her occupational field 
acquired outside the United States.
    (d) Teacher. A foreign national with the equivalent of a U.S. 
Bachelor's degree in either education or the subject matter (or related 
subjects) he or she intends to teach and a minimum of the equivalent of 
two years of post-degree full-time teaching experience, who is employed 
as a teacher at the time of application for the program, for the purpose 
of teaching full-time in a primary or secondary accredited academic 
institution.
    (e) Professor. A foreign national whose primary purpose is teaching, 
lecturing, observing, or consulting at post-secondary accredited 
academic institutions, museums, libraries, or similar types of 
institutions. A professor also may conduct research where authorized by 
the sponsor.
    (f) Research scholar. A foreign national whose primary purpose is 
conducting research, observing, or consulting in connection with a 
research project at research institutions, corporate research 
facilities, museums, libraries, post-secondary accredited academic 
institutions, or similar types of institutions. A research scholar also 
may teach or lecture where authorized by the sponsor.
    (g) Specialist. A foreign national who is an expert in a field of 
specialized knowledge or skills who enters the United States for the 
purpose of observing, consulting, or demonstrating special knowledge or 
skills.
    (h) Other person of similar description. A foreign national of 
description similar to those set forth in paragraphs (a) through (g) of 
this section coming to the United States as a participant in an exchange 
visitor program designated by the Department of State under this 
category, for the purpose of teaching, instructing or lecturing, 
studying, observing, conducting research, consulting, demonstrating 
special skills, or receiving training. The programs designated by the 
Department of State in this category consist of:
    (1) Alien physician. A foreign national who is a graduate of a 
school of medicine who comes to the United States under a program in 
which he or she will receive graduate medical education or training 
conducted by accredited U.S. schools of medicine or scientific 
institutions.
    (2) International visitor. A foreign national who is a recognized or 
potential leader, selected by the Department of State for the purpose of 
consulting, observing, conducting research, training, or demonstrating 
special skills in the United States.
    (3) Government visitor. A foreign national who is an influential or 
distinguished person, selected by a U.S. federal, state, or local 
government agency for the purpose of consulting, observing, training, or 
demonstrating special skills in the United States.
    (4) Camp counselor. A foreign national selected to be a counselor in 
a summer camp in the United States (e.g., during the U.S. summer 
months).
    (5) Au pair. A foreign national who comes to the United States for 
the purpose of residing with an American host family and participating 
directly in their home life, while providing limited childcare services, 
and fulfilling an educational requirement.
    (6) Summer Work and Travel. A foreign national who is a bona fide 
foreign post-secondary student, who at the time of application is 
enrolled in and actively pursuing a degree or a full-time course of 
study at a foreign ministerially-recognized post-secondary academic 
institution and whose purpose is work and travel in the United

[[Page 256]]

States for up to four months during his or her break between academic 
years.
    (7) Intern. A foreign national participating in a structured and 
guided work-based internship program in his or her specific academic 
field and who either:
    (i) Is currently enrolled full-time in and actively pursuing studies 
at a foreign ministerially-recognized degree- or certificate-granting 
post-secondary academic institution outside the United States, or
    (ii) Graduated from such an institution no more than 12 months prior 
to the exchange visitor program begin date reflected on Form DS-2019.

[79 FR 60307, Oct. 6, 2014]



Sec.  62.5  Designation application procedure.

    (a) An entity meeting the eligibility requirements set forth in 
Sec.  62.3 may apply to the Department of State for designation as an 
Exchange Visitor Program sponsor. An applicant must first complete and 
submit Form DS-3036 in SEVIS. The complete application must consist of:
    (1) A completed copy of Form DS-3036 signed by the applicant's Chief 
Executive Officer, President, or other executive with legal authority to 
make commitments on behalf of the sponsor (as identified in the 
organization's governing documents);
    (2) Required supporting documentation and certifications as set 
forth in paragraph (c); and
    (3) Confirmation of payment of the required non-refundable 
application fee through pay.gov as set forth in Sec.  62.17.
    (b) A complete application must set forth, in detail, the 
applicant's proposed exchange program activity and must demonstrate, to 
the Department of State's satisfaction, the applicant's ability to 
comply and remain in continual compliance with all the provisions of 
this part, and, in particular, to meet the sponsor eligibility 
requirements set forth in Sec.  62.3 and the general obligations of 
sponsors set forth in Sec.  62.9.
    (c) An application must be accompanied by the following supporting 
documentation and certifications, as relevant:
    (1) Evidence of sponsor eligibility as set forth in Sec.  62.3(a), 
including evidence of legal status (e.g., charter, proof of 
incorporation, by laws, partnership agreement);
    (2) Evidence of experience in operating a successful business, 
including a minimum of three years of experience in international 
exchange by the organization or by the proposed Responsible Officer;
    (3) Evidence of the applicant's ability to meet at all times its 
financial obligations and responsibilities attendant to successful 
sponsorship of its exchange visitor program, and evidence that it can 
comply with Sec.  62.9(e) and provide any supplemental or explanatory 
financial information the Department of State may request. In addition:
    (i) An established entity must present a current audit report with 
audit notes prepared by an independent certified public accounting firm.
    (ii) A newly formed entity must present a compilation (i.e., a 
balance sheet, statement of cash flows and all disclosures, revenues, 
expenditures, and notes to financial statements) prepared by an 
independent certified public accounting firm demonstrating that the 
entity has been capitalized with sufficient funds to cover general 
operating expenses and costs associated with an exchange program.
    (4) A current Certificate of Good Standing (see Sec.  62.2);
    (5) An Employer Identification Number (EIN), which specifies the 
date of issuance;
    (6) Evidence of current accreditation if the applicant is a 
secondary or post-secondary academic institution;
    (7) Evidence of current licensure, if required by local, state, or 
federal law, to carry out the activity for which the applicant is 
seeking designation;
    (8) A statement signed by the Chief Executive Officer, President, or 
other executive with legal authority to make commitments on behalf of 
the sponsor (as identified in the organization's governing documents), 
certifying that:
    (i) The applicant is a United States Person as defined in Sec.  
62.2;
    (ii) The proposed Responsible Officer and all proposed Alternate 
Responsible Officers are United States citizens or

[[Page 257]]

lawful permanent residents of the United States;
    (iii) The sponsor has completed a criminal background check on the 
potential Responsible Officer and all Alternate Responsible Officers, 
and has determined their suitability for these positions; the criminal 
background checks must be no older than four years at any time for re-
designated sponsors and must be newly conducted as part of the 
designation application for new sponsors and the redesignation 
application for sponsors designated for only one year; and
    (iv) The Responsible Officer will be provided sufficient staff and 
resources to fulfill his or her duties and obligations on behalf of the 
applicant;
    (9) A completed SEVIS-generated Citizenship Certification for the 
proposed Responsible Officer and all proposed Alternate Responsible 
Officer(s) along with evidence that they are citizens of the United 
States or lawful permanent residents (e.g., copy of passport, birth 
certificate, green card); and
    (10) Such additional information or documentation that the 
Department of State may deem necessary to evaluate the application. In 
addition, the Department may decide, in its discretion, to conduct a 
pre-designation site visit of a first-time applicant.

[79 FR 60307, Oct. 6, 2014]



Sec.  62.6  Designation.

    (a) Upon its favorable determination that an applicant meets all 
statutory and regulatory requirements, the Department of State may, in 
its sole discretion, designate the applicant as an Exchange Visitor 
Program sponsor.
    (b) Initial designations are effective for one or two years at the 
sole discretion of the Department of State.
    (c) Designation will confer upon a sponsor the authority to engage 
in one or more activities specified in Sec.  62.4. A sponsor may engage 
only in the activity or activities specifically authorized in its 
written letter of designation.
    (d) The Department of State may, in its sole discretion, require a 
sponsor to secure a payment bond in favor of the Department of State 
guaranteeing the sponsor's obligations hereunder.
    (e) Designations are not transferable or assignable.

[79 FR 60307, Oct. 6, 2014]



Sec.  62.7  Redesignation.

    (a) Sponsors must file for redesignation no more than six months and 
no fewer than three months before the designation expiration date as set 
forth in the sponsor's letter of designation or its most recent letter 
of redesignation.
    (b) A sponsor seeking redesignation as an Exchange Visitor Program 
sponsor must first complete and submit Form DS-3036 in SEVIS. The 
complete application must consist of:
    (1) A completed copy of Form DS-3036, signed by the sponsor's Chief 
Financial Officer, President or other executive with legal authority to 
make commitments on behalf of the sponsor (as identified in the 
organization's governing documents);
    (2) Required supporting documentation and certifications as set 
forth in paragraph (c); and
    (3) Confirmation of payment of the required non-refundable 
application fee through pay.gov as set forth in Sec.  62.17.
    (c) The complete application must include the following supporting 
documentation and certifications:
    (1) A copy of the most recent year-end financial statements;
    (2) A copy of the most recent letter of accreditation if the sponsor 
is a secondary or post-secondary academic institution;
    (3) A list of the names, addresses and citizenship or legal 
permanent resident status of the current members of its Board of 
Directors or the Board of Trustees or other like body, vested with the 
management of the organization or partnership, and/or the percentage of 
stocks/shares held, as applicable;
    (4) For a non-profit organization, a signed copy of the sponsor's 
most recent Form 990 filed with the Internal Revenue Service;
    (5) A statement signed by the Chief Executive Officer, President, or 
other executive with legal authority to make commitments on behalf of 
the sponsor (as identified in the organization's governing documents) 
certifying that the sponsor has completed timely criminal background 
checks since the date of the last designation or redesignation

[[Page 258]]

letter on the Responsible Officer and all Alternate Responsible Officers 
and has determined their suitability for these positions; and
    (6) Such additional information or documentation that the Department 
of State may deem necessary to evaluate the application.
    (d) Upon its favorable determination that a sponsor meets all 
statutory and regulatory requirements, the Department of State may, in 
its sole discretion, redesignate the organization as an Exchange Visitor 
Program sponsor for one or two years. A sponsor seeking re-designation 
may continue to operate its program(s) until such time as the Department 
of State notifies it of a decision to approve, amend or terminate its 
designation.

[79 FR 60307, Oct. 6, 2014]



Sec.  62.8  General program requirements.

    (a) Size of program. A sponsor, other than a federal government 
agency, must have no fewer than five actively participating exchange 
visitors during the annual reporting cycle (e.g., academic, calendar or 
fiscal year), as stated in its letter of designation or redesignation. 
The Department of State may, in its sole discretion, waive this 
requirement.
    (b) Minimum duration of program. A sponsor, other than a federal 
government agency, must provide each exchange visitor, except those 
sponsored in the short-term scholar category, with a minimum period of 
participation in the United States of no less than three weeks.
    (c) Reciprocity. In conducting its exchange visitor program, 
sponsors must make a good faith effort to develop and implement, to the 
fullest extent possible, reciprocal exchanges of persons.
    (d) Cross-cultural activities. In addition to category specific 
requirements, sponsors must:
    (1) Offer or make available to exchange visitors and the 
accompanying spouses and dependents, if any, a variety of appropriate 
cross-cultural activities. The extent and type of the cross-cultural 
activities will be determined by the needs and interests of the 
particular category of exchange visitor. Sponsors will be responsible 
for determining the appropriate types and numbers of such cross-cultural 
programs, unless otherwise specified by the Department. The Department 
of State encourages sponsors to give their exchange visitors the 
broadest exposure to American society, culture and institutions; and
    (2) Encourage exchange visitors to participate voluntarily in 
activities that are for the purpose of sharing the language, culture, or 
history of their home country with Americans, provided such activities 
do not delay the completion of the exchange visitors' program.

[79 FR 60307, Oct. 6, 2014]



Sec.  62.9  General obligations of sponsors.

    (a) Adherence to Department of State regulations. Sponsors are 
required to adhere to all regulations set forth in this part.
    (b) Legal status. A sponsor must maintain the legal status it had 
when it was designated. A sponsor's change in legal status (e.g., from 
partnership to corporation, non-profit to for-profit) requires the 
submission of a new application for designation of the successor legal 
entity within 45 days of the change in legal status.
    (c) Accreditation and licensure. A sponsor must remain in compliance 
with all local, state, and federal laws, and professional requirements 
necessary to carry out the activities for which it is designated, 
including accreditation and licensure, if applicable.
    (d) Representations and disclosures. Sponsors must:
    (1) Provide accurate, complete, and timely information, to the 
extent lawfully permitted, to the Department of State and the Department 
of Homeland Security regarding their exchange visitor program(s), 
exchange visitors, and accompanying spouses and dependents (if any);
    (2) Provide accurate information to the public when advertising 
their exchange visitor program(s) or responding to public inquiries;
    (3) Provide accurate program information and materials to 
prospective exchange visitors, host organizations, and host employers, 
if applicable, at the time of recruitment and before exchange visitors 
enter into agreements

[[Page 259]]

and/or pay non-refundable fees. This information must clearly explain 
program activities and terms and conditions of program, including the 
terms and conditions of any employment activities (job duties, number of 
work hours, wages and compensation, and any typical deductions for 
housing and transportation), have itemized list of all fees charged to 
the exchange visitor (i.e., fees paid to the sponsor or a third party, 
including the host employer), insurance costs, other typical costs, 
conditions, and restrictions of the exchange visitor program(s), and the 
type, duration, nature and importance of the cultural components of the 
program. Program recruitment information and materials also must make 
clear to prospective exchange visitors in the exchange categories with a 
work component that their stipend or wages might not cover all of their 
expenses and that they should bring additional personal funds.
    (4) Not use the program number(s) assigned by the Department of 
State at the time of designation on any advertising materials or 
publications, including sponsor Web sites; and
    (5) Not represent that its exchange visitor program is endorsed, 
sponsored, or supported by the Department of State or the U.S. 
Government, except for U.S. Government sponsors or exchange visitor 
programs financed directly by the U.S. Government to promote 
international educational exchanges. A sponsor may, however, represent 
that it is designated by the Department of State as a sponsor of an 
exchange visitor program.
    (e) Financial responsibility. (1) Sponsors must maintain the 
financial capability to meet at all times their financial obligations 
and responsibilities attendant to successful sponsorship of their 
exchange visitor program.
    (2) The Department of State may require non-government sponsors to 
provide evidence satisfactory to the Department of State that funds 
necessary to fulfill all obligations and responsibilities attendant to 
sponsorship of their exchange visitor programs are readily available and 
in the sponsor's control, including such supplementary or explanatory 
financial information as the Department of State may deem appropriate, 
such as, for example, audited financial statements.
    (3) The Department of State may require a non-government sponsor to 
secure payment bonds in favor of the Department of State guaranteeing 
all financial obligations arising from its exchange visitor program when 
the Department has reasonable doubt about the sponsor's ability to meet 
its program and other financial obligations.
    (f) Staffing and support services. Sponsors must ensure that:
    (1) Adequate staffing and sufficient support services are provided 
to administer their exchange visitor program; and
    (2) Their employees, officers, agents, third parties, volunteers or 
other individuals or entities associated with the administration of 
their exchange visitor program are adequately qualified, appropriately 
trained, and comply with the Exchange Visitor Program regulations and 
immigration laws pertaining to the administration of their exchange 
visitor program(s).
    (g) Appointment of Responsible Officers and Alternate Responsible 
Officers. (1) Sponsors must appoint and maintain a Responsible Officer 
and between one and ten Alternate Responsible Officers to assist the 
Responsible Officer in performing the duties set forth in Sec.  62.11. 
Upon written sponsor request, the Department of State may, in its sole 
discretion, permit a sponsor to appoint more than ten Alternate 
Responsible Officers. A sponsor redesignated for two years must ensure 
that the proposed Responsible Officer and Alternate Responsible 
Officer(s) have undergone a criminal background check within the past 
four years to determine their suitability for these positions. 
Responsible Officers and Alternate Responsible Officers must be U.S. 
persons.
    (2) Responsible Officers and Alternate Responsible Officers must be 
employees or officers of the sponsor. Upon written sponsor request, the 
Department of State may, in its sole discretion, authorize the 
appointment of an individual who is not an employee or officer to serve 
as an Alternate Responsible Officer.
    (3) In the event of the departure of a Responsible Officer or 
Alternate Responsible Officer, the sponsor must file

[[Page 260]]

a request in SEVIS for the approval of a replacement and forward the 
required documentation to the Department of State within ten calendar 
days from the date of the Responsible Officer's or Alternate Responsible 
Officer's departure.
    (4) Requests to replace the Responsible Officer or add an Alternate 
Responsible Officer must be submitted in SEVIS, and a signed Form DS-
3037 must be either mailed or emailed to the Department of State with 
the required completed Citizenship Certification, along with 
certification that the individual has undergone a criminal background 
check conducted at the time of such Certification.
    (5) The Department of State reserves the right to deny the 
appointment of a Responsible Officer or an Alternate Responsible 
Officer.

[79 FR 60307, Oct. 6, 2014]



Sec.  62.10  Program administration.

    Sponsors are responsible for the effective administration of their 
exchange visitor program(s). These responsibilities include:
    (a) Selection of exchange visitors. Sponsors must establish and 
utilize a method to screen and select prospective exchange visitors to 
ensure that they are eligible for program participation, and that:
    (1) The program is suitable to the exchange visitor's background, 
needs, and experience; and
    (2) The exchange visitor possesses sufficient proficiency in the 
English language, as determined by an objective measurement of English 
language proficiency, successfully to participate in his or her program 
and to function on a day-to-day basis. A sponsor must verify an 
applicant's English language proficiency through a recognized English 
language test, by signed documentation from an academic institution or 
English language school, or through a documented interview conducted by 
the sponsor either in-person or by videoconferencing, or by telephone if 
videoconferencing is not a viable option.
    (b) Pre-arrival information. At the pre-arrival stage, sponsors must 
provide exchange visitors clear information and materials on, but not 
limited to, the following topics: Program activities, cultural goals and 
components of the program, employment information and terms and 
conditions of employment (including employer name and address, position 
duration, job duties, number of work hours, wages, other compensation 
and benefits, deductions from wages, including those taken for housing 
and transportation), insurance costs, and other conditions and 
restrictions of their exchange visitor. In addition, sponsors must 
provide clear information and materials on:
    (1) The purpose of the Exchange Visitor Program;
    (2) The home-country physical presence requirement;
    (3) Travel to and entry into the United States (e.g., procedures to 
be followed by exchange visitors and accompanying spouses and dependents 
in paying SEVIS fees and obtaining visas for entry to the United States, 
including the information and documentation needed for the interview; 
travel arrangements to the United States, and what to expect at the port 
of entry, including the necessity of having and presenting travel 
documents at the port of entry);
    (4) Housing, including specific information on what housing is 
provided by the program or otherwise available and the expected cost to 
the exchange visitor;
    (5) An itemized list of all fees to be paid by a potential exchange 
visitor (i.e., fees paid to the sponsor or a third party);
    (6) Description and amount of other costs that the exchange visitor 
will likely incur (e.g., insurance, living expenses, transportation 
expenses) while in the United States;
    (7) Health care and insurance description, costs, and requirements 
for exchange visitors and their accompanying spouse and dependents, as 
applicable;
    (8) Arrival notification requirements (e.g., procedures that 
exchange visitors, spouses and dependents are to follow upon entry into 
the United States in reporting their arrival to the sponsor and 
reporting to the location of their program); and
    (9) Other information that will assist exchange visitors to prepare 
for their

[[Page 261]]

stay in the United States (e.g., how and when to apply for a social 
security number, if applicable; how to apply for a driver's license; how 
to open a bank account; employee rights and laws, including workman's 
compensation; and how to remain in lawful non-immigrant status.
    (c) Orientation. A sponsor must offer and record participation in an 
appropriate orientation for all exchange visitors. Sponsors are 
encouraged to provide orientation for the exchange visitor's 
accompanying spouse and dependents, especially for those exchange 
visitors who are expected to be in the United States for more than one 
year. Orientation must include, but is not limited to, information 
concerning:
    (1) Life and customs in the United States;
    (2) Local community resources (e.g., public transportation, medical 
centers, schools, libraries, recreation centers, and banks), to the 
fullest extent possible;
    (3) Available healthcare, emergency assistance, and health insurance 
coverage;
    (4) A description of the exchange visitor program in which the 
exchange visitor is participating such as information on the length and 
location of the program; a summary of the significant components of the 
program; information on any payment (i.e., stipend or wage) an exchange 
visitor will receive; and deductions from wages, including for housing 
and transportation;
    (5) Sponsor rules that exchange visitors are required to follow 
while participating in their exchange visitor program;
    (6) Name and address of the sponsor and the name, email address, and 
telephone number of the Responsible Officer and Alternate Responsible 
Officer(s);
    (7) The Office of Designation's address, telephone number, facsimile 
number, Web site and email address, and a copy of the Exchange Visitor 
Program brochure or other Department of State materials as appropriate 
or required;
    (8) Wilberforce Pamphlet on the Rights and Protections for Temporary 
Workers; and
    (9) The requirement that an exchange visitor must report to the 
sponsor or sponsor designee within ten calendar days any changes in his 
or her telephone number, email address, actual and current U.S. address 
(i.e., physical residence), and site of activity (if the exchange 
visitor is permitted to make such change without prior sponsor 
authorization).
    (d) Monitoring of exchange visitors. Exchange visitors' 
participation in their exchange program must be monitored by employees 
of the sponsor. Monitoring activities must not include any retaliation 
or discrimination against exchange visitors who make adverse comments 
related to the program. No sponsor or employee of a sponsor may threaten 
program termination, remove from the program, ban from the program, 
adversely annotate an exchange visitor's SEVIS record, or otherwise 
retaliate against an exchange visitor solely because he/she has filed a 
complaint; instituted or caused to be instituted any proceeding; 
testified or is about to testify; consulted with an advocacy 
organization, community organization, legal assistance program or 
attorney about a grievance or other work-related legal matter; or 
exercised or asserted on behalf of himself/herself any right or 
protection. Sponsors must:
    (1) Ensure that the activities in which exchange visitors are 
engaged are consistent with the category and activity listed on their 
Forms DS-2019;
    (2) Monitor the physical location (site of activity), and the 
progress and welfare of exchange visitors to the extent appropriate for 
the category;
    (3) Require that exchange visitors report to the sponsor within ten 
calendar days any changes in their telephone numbers, email addresses, 
actual and current U.S. addresses (i.e., physical residence), and 
site(s) of activity (if the exchange visitor is permitted to make such 
change without prior sponsor authorization);
    (4) Report in SEVIS within ten business days of notification by an 
exchange visitor any change in the exchange visitor's actual and current 
U.S. address, telephone number, email address, and/or primary site of 
activity; and

[[Page 262]]

    (5) Report the email address for each accompanying spouse and 
dependent.
    (e) Requests by the Department of State. Sponsors must, to the 
extent lawfully permitted, furnish the Department of State within the 
Department-requested timeframe all information, reports, documents, 
books, files, and other records or information requested by the 
Department of State on all matters related to their exchange visitor 
program. Sponsors must include sponsor's program number on all 
responses.
    (f) Inquiries and investigations. Sponsors must cooperate with any 
inquiry or investigation that may be undertaken by the Department of 
State or the Department of Homeland Security.
    (g) Retention of records. Sponsors must retain all records related 
to their exchange visitor program and exchange visitors (to include 
accompanying spouse and dependents, if any) for a minimum of three years 
following the completion of each exchange visitor program.

[79 FR 60307, Oct. 6, 2014]



Sec.  62.11  Duties of Responsible Officers and Alternate Responsible Officers.

    Responsible Officers must train and supervise Alternate Responsible 
Officers and ensure that these officials are in compliance with the 
Exchange Visitor Program regulations. Responsible Officers and Alternate 
Responsible Officers must:
    (a) Be thoroughly familiar with the Exchange Visitor Program 
regulations, relevant immigration laws, and all federal and state 
regulations and laws pertaining to the administration of their exchange 
visitor program(s), including the Department of State's and the 
Department of Homeland Security's policies, manuals, instructions, and 
guidance on SEVIS and all other operations relevant to the Exchange 
Visitor Program; if Responsible Officers and Alternate Responsible 
Officers work with programs with an employment component, they also must 
have a detailed knowledge of federal, state, and local laws pertaining 
to employment, including the Fair Labor Standards Act;
    (b) Monitor that the exchange visitor obtains sufficient advice and 
assistance to facilitate the successful completion of his or her 
exchange visitor program;
    (c) Conduct all official communications relating to their sponsor's 
exchange visitor program with the Department of State and the Department 
of Homeland Security. A sponsor must include its exchange visitor 
program number on all correspondence submitted to the Department of 
State and to the Department of Homeland Security;
    (d) Monitor to ensure that that sponsor spam filters do not block 
receipt of SEVIS or Department of State and Department of Homeland 
Security notices; and
    (e) Control and issue Forms DS-2019 as set forth in Sec.  62.12.

[79 FR 60307, Oct. 6, 2014]



Sec.  62.12  Control of Forms DS-2019.

    (a) Issuance of Forms DS-2019. Sponsors must:
    (1) Grant access only to Responsible Officers and Alternate 
Responsible Officers and ensure that they have access to and use SEVIS 
to update required information;
    (2) Ensure that Responsible Officers and Alternate Responsible 
Officers input into SEVIS accurate, current, and updated information in 
accordance with these regulations; and
    (3) Issue Forms DS-2019 only for the following authorized purposes:
    (i) To facilitate the initial entry of the exchange visitor and 
accompanying spouse and dependents, if any, into the United States;
    (ii) To extend the duration of participation of an exchange visitor, 
when permitted by the regulations and authorized by the Department of 
State;
    (iii) To facilitate program transfers, when permitted by the 
regulations and/or authorized in writing by the Department of State;
    (iv) To replace lost, stolen, or damaged Forms DS-2019;
    (v) To facilitate the re-entry into the United States of an exchange 
visitor and accompanying spouse and dependents, if any, who travel 
outside the United States during the exchange visitor's program;
    (vi) To facilitate a change of category, when requested in SEVIS and 
authorized by the Department of State;
    (vii) To update information when significant changes take place in 
regard

[[Page 263]]

to the exchange visitor's program (e.g., a substantial change in 
funding, a change in the primary site of activity or a change in actual 
and current U.S. address);
    (viii) To facilitate the correction of a minor or technical 
infraction; or
    (ix) To facilitate a ``reinstatement'' or a ``reinstatement update 
SEVIS status'' when permitted by the Department of State.
    (b) Verification. (1) Prior to issuing Forms DS-2019, sponsors must 
verify that each prospective exchange visitor:
    (i) Is eligible and qualified for, and accepted into, the program in 
which he or she will participate;
    (ii) Possesses adequate financial resources to participate in and 
complete his or her exchange visitor program; and
    (iii) Possesses adequate financial resources to support an 
accompanying spouse and dependents, if any.
    (2) Sponsors must ensure that:
    (i) Only Responsible Officers or Alternate Responsible Officers who 
are physically present in the United States or in a U.S. territory may 
print and sign Forms DS-2019; and
    (ii) Only the Responsible Officer or the Alternate Responsible 
Officer, whose name is printed on the Form DS-2019, is permitted to sign 
the document. The Form DS-2019 must be signed in blue ink to denote that 
it is the original document.
    (c) Distribution of Forms DS-2019. Sponsors must ensure that 
completed Forms DS-2019 are distributed directly to the exchange visitor 
and accompanying spouse and dependents, if any, or to an individual 
designated by the exchange visitor only via the sponsor's employees, 
officers, or third parties in the administration of its exchange visitor 
program.
    (d) Allotment requests. (1) Annual Form DS-2019 allotment. Sponsors 
must submit an electronic request via SEVIS to the Department of State 
for an annual allotment of Forms DS-2019 based on the annual reporting 
cycle (e.g., academic, calendar or fiscal year) stated in their letter 
of designation or redesignation. Sponsors should allow up to four weeks 
for the processing of allotment requests. The Department of State has 
the sole discretion to determine the number of Forms DS-2019 to be 
issued to a sponsor.
    (2) Expansion of Program. A request for program expansion must 
include information such as, but not limited to, the source of program 
growth, staff increases, confirmation of adequately trained employees, 
noted programmatic successes, current financial information, additional 
overseas affiliates, additional third party entities, explanations of 
how the sponsor will accommodate the anticipated program growth, and any 
other information requested by the Department. The Department of State 
will take into consideration the current size of a sponsor's program and 
the projected expansion of the program in the coming 12 months and may 
consult with the Responsible Officer and/or Alternate Responsible 
Officer prior to determining the number of Forms DS-2019 to issue to a 
sponsor.
    (e) Safeguards and controls. (1) Responsible Officers and Alternate 
Responsible Officers must secure their SEVIS logon Identification 
Numbers (IDs) and passwords at all times (i.e., not share IDs and 
passwords with any other person or permit access to and use of SEVIS by 
any other person).
    (2) Sponsors, their employees, officers, agents, or other third 
parties acting on behalf of the sponsor, may not forward to any 
unauthorized party (via facsimile or other electronic means) copies or 
Portable Document Formats (PDFs) of signed or unsigned Forms DS-2019. 
However, sponsors must forward such copies and/or PDFs to the Department 
of State or the Department of Homeland Security upon request.
    (3) Sponsors must use the reprint function in SEVIS in the event the 
exchange visitor's Form DS-2019 has been lost or stolen.
    (4) Sponsors must destroy any damaged and/or unusable Form DS-2019 
on the sponsor's premises after making a record of such forms (e.g., 
forms with errors or forms damaged by a printer).

[79 FR 60307, Oct. 6, 2014]

[[Page 264]]



Sec.  62.13  Notification requirements.

    (a) Valid program status of exchange visitor. Sponsors must notify 
the Department of State via SEVIS of the following:
    (1) Validation of program participation. Sponsors must promptly 
validate an exchange visitor's participation in their program. This will 
change the status of the exchange visitor's SEVIS record from 
``Initial'' to ``Active.'' SEVIS records with program durations (e.g., 
the period between the ``Program Begin Date'' and ``Program End Date'') 
of 30 days or more must be validated within 30 days following the 
``Program Begin Date'' identified in SEVIS. SEVIS records with program 
durations that are less than 30 days must be validated prior to the 
``Program End Date'' reflected in SEVIS. As part of the validation 
process, sponsors may amend the program begin date and must update the 
SEVIS record to reflect the actual and current U.S. address and site of 
activity in SEVIS. The status of SEVIS records that are not validated 
according to this schedule will automatically change to ``Invalid'' or 
``No Show''. Accompanying spouses and dependents' SEVIS records are 
automatically validated upon validation of the exchange visitors' SEVIS 
records.
    (2) Failure of an exchange visitor to begin program. Sponsors must 
report in SEVIS, no later than 30 calendar days after the ``Program 
Begin Date'' listed in SEVIS, the failure of an exchange visitor to 
report to his or her sponsor upon entry in the United States (i.e., 
failure of exchange visitor to begin an exchange visitor program as 
scheduled). This will change the status of the exchange visitor's SEVIS 
record from ``Initial'' to ``No Show.''
    (3) End of an exchange visitor's program. Sponsors must report in 
SEVIS any withdrawal from or early completion of an exchange visitor's 
program that occurs prior to the ``Program End Date'' listed in SEVIS on 
the exchange visitor's Form DS-2019. Sponsors must not alter the 
``Program End Date'' field, but should enter the date of program 
completion in the ``Effective Date of Completion'' field. This will 
change the status of the exchange visitor's SEVIS record from ``Active'' 
to ``Inactive.'' Such notification in SEVIS ends a sponsor's 
programmatic obligations to the exchange visitor and/or his or her 
accompanying spouse and dependents.
    (4) Accompanying spouse and dependent records. Sponsors must report 
in SEVIS if accompanying spouses and/or dependents depart from the 
United States prior to the exchange visitors' departure dates.
    (5) Termination of an exchange visitor's program. Sponsors must 
promptly report in SEVIS the involuntary termination of an exchange 
visitor's program. Sponsors must not alter the ``Program End Date'' 
field, but should enter the date of program termination in the 
``Effective Date of Termination'' field. This will change the status of 
the SEVIS record from ``Active'' to ``Terminated''. Such notification in 
SEVIS ends a sponsor's programmatic obligation to the exchange visitor 
and his or her accompanying spouse and dependents, if any, and prevents 
the sponsor from thereafter extending the exchange visitor's duration of 
participation, transferring the exchange visitor to another program, or 
changing the exchange visitor's category. Sponsors must not terminate 
the program of an exchange visitor who voluntarily ends his or her 
program.
    (b) Change of circumstance of an exchange visitor. Sponsors must 
promptly notify the Department of State via SEVIS of any of the 
following circumstances:
    (1) Change in the actual and current U.S. address. Sponsors must 
ensure that the actual and current U.S. addresses of an exchange visitor 
are reported in SEVIS:
    (i) Sponsors must report the U.S. mailing address (i.e., provide a 
P.O. Box number) in SEVIS in those limited cases where mail cannot be 
delivered to the exchange visitor's actual and current U.S. address 
(e.g., the exchange visitor resides in a campus setting); and
    (ii) If a U.S. mailing address is reported to SEVIS, sponsors must 
also maintain records in SEVIS of actual and current U.S. addresses 
(e.g., dormitory, building and room number) for such exchange visitors.
    (2) Change in site of activity. Sponsors must report in SEVIS any 
change

[[Page 265]]

to an exchange visitor's site of activity by entering the new site 
within ten business days of notification of such a change where sponsor 
rules or regulations permit such a change. Sponsors must promptly enter 
any change in the site of activity in those instances where the sponsor 
is responsible for the placement. Sponsors must identify the ``primary'' 
site of activity of an exchange visitor if multiple sites of activity 
are reported in SEVIS.
    (c) Change in sponsor's circumstance. Sponsors must report within 
ten business days in SEVIS or directly to the Department of State, if 
appropriate, any material changes to their exchange visitor program as 
follows:
    (1) Change of business and/or mailing address, telephone number, 
facsimile number, or email address;
    (2) Change in the composition of the sponsor organization that 
affects its status as a United States Person as defined in Sec.  62.2, 
which includes a new Employment Identification Number (EIN);
    (3) Change of Responsible Officer or Alternate Responsible Officer;
    (4) Major change of ownership or control of the sponsor's 
organization as defined in Sec.  62.60(e);
    (5) Change of the sponsor's principal place of business to a 
location outside the United States;
    (6) Change in financial circumstances that may render the sponsor 
unable to comply with its obligations as set forth in Sec.  62.9(e);
    (7) Loss of licensure or accreditation;
    (8) Loss or theft of Forms DS-2019, in which case a sponsor must 
notify the Department of State promptly by telephone or email of the 
SEVIS identification numbers of such Forms DS-2019 that have been lost 
or stolen;
    (9) A decision by the sponsor to voluntarily cancel (withdraw) its 
exchange visitor program designation; or
    (10) Any other material facts or events that may have an impact on 
the sponsor's ability to properly administer or conduct its exchange 
visitor program.
    (d) Serious problem or controversy. Sponsors must inform the 
Department of State on or before the next business day by telephone 
(confirmed promptly in writing by facsimile or email) of any 
investigations of an exchange visitor's site of activity or serious 
problem or controversy that could be expected to bring the Department of 
State, the Exchange Visitor Program, or the sponsor's exchange visitor 
program into notoriety or disrepute, including any potential litigation 
related to a sponsor's exchange visitor program, in which the sponsor or 
an exchange visitor may be a named party.

[79 FR 60307, Oct. 6, 2014]



Sec.  62.14  Insurance.

    (a) Sponsors must require that all exchange visitors have insurance 
in effect that covers the exchange visitors for sickness or accidents 
during the period of time that they participate in the sponsor's 
exchange visitor program. In addition, sponsors must require that 
accompanying spouses and dependents of exchange visitors have insurance 
for sickness and accidents. Sponsors must inform all exchange visitors 
that they, and any accompanying spouse and dependent(s), also may be 
subject to the requirements of the Affordable Care Act.
    (b) The period of required coverage is the actual duration of the 
exchange visitor's participation in the sponsor's exchange visitor 
program as recorded in SEVIS in the ``Program Begin Date,'' and as 
applicable, the ``Program End Date,'' ``Effective Program End Date,'' or 
``Effective Date of Termination'' fields. Sponsors are not authorized to 
charge fees to their sponsored exchange visitors for the provision of 
insurance coverage beyond any demonstrable and justifiable staff time. 
Sponsors are not required to, but may, offer supplemental ``entry to 
exit'' coverage (i.e., coverage from the time the exchange visitor 
departs his or her home country until he or she returns). If the sponsor 
provides health insurance, or arranges for health insurance to be 
offered the exchange visitor, via payroll deduction at the host 
organization, the exchange visitor must voluntarily authorize this 
action in writing and also be given the opportunity to make other 
arrangements to obtain insurance. These authorizations must be kept on 
file by the sponsor. Minimum coverage must provide:

[[Page 266]]

    (1) Medical benefits of at least $100,000 per accident or illness;
    (2) Repatriation of remains in the amount of $25,000;
    (3) Expenses associated with the medical evacuation of exchange 
visitors to his or her home country in the amount of $50,000; and
    (4) Deductibles not to exceed $500 per accident or illness.
    (c) Insurance policies secured to fulfill the requirements of this 
section:
    (1) May require a waiting period for pre-existing conditions that is 
reasonable as determined by current industry standards;
    (2) May include provisions for co-insurance under the terms of which 
the exchange visitor may be required to pay up to 25% of the covered 
benefits per accident or illness; and
    (3) Must not unreasonably exclude coverage for perils inherent to 
the activities of the exchange program in which the exchange visitor 
participates.
    (d) Any policy, plan, or contract secured to fill the above 
requirements must, at a minimum, be:
    (1) Underwritten by an insurance corporation having an A.M. Best 
rating of ``A-'' or above; a McGraw Hill Financial/Standard & Poor's 
Claims-paying Ability rating of ``A-'' or above; a Weiss Research, Inc. 
rating of ``B + '' or above; a Fitch Ratings, Inc. rating of ``A-'' or 
above; a Moody's Investor Services rating of ``A3'' or above; or such 
other rating as the Department of State may from time to time specify; 
or
    (2) Backed by the full faith and credit of the government of the 
exchange visitor's home country; or
    (3) Part of a health benefits program offered on a group basis to 
employees or enrolled students by a designated sponsor; or
    (4) Offered through or underwritten by a federally qualified Health 
Maintenance Organization or eligible Competitive Medical Plan as 
determined by the Centers for Medicare and Medicaid Services of the U.S. 
Department of Health and Human Services.
    (e) Federal, state or local government agencies; state colleges and 
universities; and public community colleges may, if permitted by law, 
self-insure any or all of the above-required insurance coverage.
    (f) At the request of a non-governmental sponsor of an exchange 
visitor program, and upon a showing that such sponsor has funds readily 
available and under its control sufficient to meet the requirements of 
this section, the Department of State may permit the sponsor to self-
insure or to accept full financial responsibility for such requirements.
    (g) The Department of State may, in its sole discretion, condition 
its approval of self-insurance or the acceptance of full financial 
responsibility by the non-governmental sponsor by requiring such sponsor 
to secure a payment bond in favor of the Department of State 
guaranteeing the sponsor's obligations hereunder.
    (h) Accompanying spouses and dependents are required to be covered 
by insurance in the amounts set forth in paragraph (b) of this section. 
Sponsors must inform exchange visitors of this requirement, in writing, 
in advance of the exchange visitor's arrival in the United States.
    (i) Exchange visitors who willfully fail to maintain the insurance 
coverage set forth above while a participant in an exchange visitor 
program or who make material misrepresentations to the sponsor 
concerning such coverage will be deemed to be in violation of these 
regulations and will be subject to termination as an exchange visitor.
    (j) Sponsors must terminate an exchange visitor's participation in 
their program if the sponsor determines that the exchange visitor or any 
accompanying spouse or dependent willfully fails to remain in compliance 
with this section.

[79 FR 60307, Oct. 6, 2014]



Sec.  62.15  Reporting requirements.

    (a) Sponsors must submit annual reports to the Department of State 
that are generated through SEVIS on Form DS-3097. Such reports must be 
filed on an academic, calendar, or fiscal year basis, as directed by the 
Department of State in the sponsor's letter of designation or 
redesignation, and must contain the following:

[[Page 267]]

    (1) Program report and evaluation. A summary of the activities in 
which exchange visitors were engaged, including an evaluation of program 
effectiveness, program difficulties, and number of staff used in the 
administration of the exchange visitor program;
    (2) Reciprocity. A description of the nature and extent of 
reciprocity occurring in the sponsor's exchange visitor program during 
the reporting year;
    (3) Cross-cultural activities. A description of the cross-cultural 
activities the sponsor provided for its exchange visitors during the 
reporting year;
    (4) Proof of insurance. Certification of compliance with insurance 
coverage requirements set forth in Sec.  62.14;
    (5) Certification. The following certification:

    ``I certify that the information in this report is complete and 
correct to the best of my knowledge and belief; and, that the above 
named program sponsor has complied with all health and accident 
insurance requirements for exchange visitors and their accompanying 
spouses and dependents (22 CFR 62.14).''

    (i) For exchange visitor programs classified as ``Government 
Programs,'' this certification will be signed by the Responsible 
Officer.
    (ii) For exchange visitor programs classified as P-1 or P-2 
``Academic Programs'' this certification will be signed by the 
institution's Chief Executive Officer or Responsible Officer.
    (iii) For exchange visitor programs classified as P-3 and P-4 
``Private Sector Programs,'' this certification will be signed by the 
organization's Chief Executive Officer or Responsible Officer.
    (6) Program participation. A numerical count of all exchange 
visitors participating in the sponsor's program for the reporting year 
(i.e., by category, form usage, active status at one point during the 
annual cycle, and by other status).
    (b) Sponsors of P-3 and P-4 ``Private Sector'' programs must file a 
program specific management review (in a format and on a schedule 
approved by the Department of State).

[79 FR 60307, Oct. 6, 2014]



Sec.  62.16  Employment.

    (a) An exchange visitor may receive compensation from the sponsor or 
the sponsor's appropriate designee, such as the host organization, when 
employment activities are part of the exchange visitor's program.
    (b) An exchange visitor who engages in unauthorized employment shall 
be deemed to be in violation of his or her program status and is subject 
to termination as a participant in an exchange visitor program.
    (c) The acceptance of employment by the accompanying spouse and 
dependents of an exchange visitor is governed by Department of Homeland 
Security regulations.

[79 FR 60307, Oct. 6, 2014]



Sec.  62.17  Fees and charges.

    (a) Remittances. Fees prescribed within the framework of 31 U.S.C. 
9701 must be submitted as directed by the Department and must be in the 
amount prescribed by law or regulation.
    (b) Amounts of fees. The following fees are prescribed.
    (1) For filing an application for program designation and/or 
redesignation (Form DS-3036)--$3,982.00.
    (2) For filing an application for exchange visitor status changes 
(i.e., extension beyond the maximum duration, change of category, 
reinstatement, reinstatement-update SEVIS status, ECFMG sponsorship 
authorization, and permission to issue)--$367.00.

[78 FR 28139, May 14, 2013]



                  Subpart B_Specific Program Provisions



Sec.  62.20  Professors and research scholars.

    (a) Introduction. These regulations govern Exchange Visitor Program 
participants in the categories of professor and research scholar, 
except:
    (1) Alien physicians in graduate medical education or training, who 
are governed by regulations set forth at Sec.  62.27; and
    (2) Short-term scholars, who are governed by regulations set forth 
at Sec.  62.21.
    (b) Purpose. The purpose of the Exchange Visitor Program, in part, 
is to foster the exchange of ideas between

[[Page 268]]

Americans and foreign nationals and to stimulate international 
collaborative teaching, lecturing and research efforts. The exchange of 
professors and research scholars promotes the exchange of ideas, 
research, mutual enrichment, and linkages between research and 
educational institutions in the United States and foreign countries. It 
does so by providing foreign professors and research scholars the 
opportunity to engage in research, teaching and lecturing with their 
American colleagues, to participate actively in cross-cultural 
activities with Americans, and ultimately to share with their countrymen 
their experiences and increased knowledge of the United States and their 
substantive fields.
    (c) Designation. The Department of State may, in its sole 
discretion, designate bona fide exchange visitor programs, which offer 
foreign nationals the opportunity to engage in research, teaching, 
lecturing, observing, or consulting at research institutions, corporate 
research facilities, museums, libraries, post-secondary accredited 
educational institutions, or similar types of institutions in the United 
States.
    (d) Visitor eligibility. An individual may be selected for 
participation in the Exchange Visitor Program as a professor or research 
scholar subject to the following conditions:
    (1) The participant must not be a candidate for a tenure track 
position;
    (2) The participant has not been physically present in the United 
States as a nonimmigrant pursuant to the provisions of 8 U.S.C. 
1101(a)(15)(J) for all or part of the twelve-month period immediately 
proceeding the date of program commencement set forth on his or her Form 
DS-2019, unless:
    (i) The participant is transferring to the sponsor's program 
pursuant to provisions set forth in Sec.  62.42;
    (ii) The participant's presence in the United States was of less 
than six months duration; or
    (iii) The participant's presence in the United States was pursuant 
to a short-term scholar exchange activity as authorized by Sec.  62.21; 
and
    (3) The participant is not subject to the prohibition against repeat 
participation set forth at Sec.  62.20(i)(2).
    (e) Issuance of Form DS-2019. The Form DS-2019 must be issued only 
after the professor or research scholar has been accepted by the 
institution where he or she will participate in an exchange visitor 
program.
    (f) Location of the exchange. Professors or research scholars must 
conduct their exchange activity at the site(s) of activity identified in 
SEVIS, which may be either the location of the exchange visitor program 
sponsor or the site of a third party facilitating the exchange with 
permission of the Responsible Officer. An exchange visitor may also 
engage in activities at other locations if such activities constitute 
occasional lectures or consultations permitted by paragraph (g) of this 
section. All such sites of activity must be entered into SEVIS while the 
exchange visitor's SEVIS record is in Initial or Active status.
    (g) Occasional lectures or consultations. Professors and research 
scholars may participate in occasional lectures and short-term 
consultations, if authorized to do so by his or her sponsor. Such 
lectures and consultations must be incidental to the exchange visitor's 
primary program activities. If wages or other remuneration are received 
by the exchange visitor for such activities, the exchange visitor must 
act as an independent contractor, as such term is defined in 8 CFR 
274a.1(j), and the following criteria and procedures must be satisfied:
    (1) Criteria. The occasional lectures or short-term consultations 
must:
    (i) Be directly related to the objectives of the exchange visitor's 
program;
    (ii) Be incidental to the exchange visitor's primary program 
activities;
    (iii) Not delay the completion date of the exchange visitor's 
program; and
    (iv) Be documented in SEVIS.
    (2) Procedures. (i) To obtain authorization to engage in occasional 
lectures or short-term consultations involving wages or other 
remuneration, the exchange visitor must present to the responsible 
officer:
    (A) A letter from the offeror setting forth the terms and conditions 
of the offer to lecture or consult, including the duration, number of 
hours, field or subject, amount of compensation, and description of such 
activity; and

[[Page 269]]

    (B) A letter from the exchange visitor's department head or 
supervisor recommending such activity and explaining how the activity 
would enhance the exchange visitor's program.
    (ii) The responsible officer must review the letters required in 
paragraph (g)(2)(i) of this section and make a written determination 
whether such activity is warranted, will not interrupt the exchange 
visitor's original objective, and satisfies the criteria set forth in 
paragraph (g)(1) of this section.
    (h) Change of activity. At the discretion and approval of the 
responsible officer, professors may freely engage in research and 
research scholars may freely engage in teaching and lecturing. Because 
these activities are intertwined, such a change of activity is not 
considered a change of category necessitating formal approval by the 
Department of State and does not require the issuance of a new Form DS-
2019 to reflect a change in category. Such change in activity does not 
extend the exchange visitor's maximum duration of program participation.
    (i) Duration of participation. The permitted duration of program 
participation for a professor or research scholar is as follows:
    (1) General limitation. A professor or research scholar may be 
authorized to participate in the Exchange Visitor Program for the length 
of time necessary to complete his or her program, provided such time 
does not exceed five years. The five-year period of permitted program 
participation is continuous and begins with the initial program begin 
date documented in SEVIS or the date such status was acquired via a 
petition submitted and approved by the Department of Homeland Security 
(DHS) as documented in SEVIS and ends five years from such date.
    (2) Repeat participation. Exchange participants who have entered the 
United States under the Exchange Visitor Program as a professor or 
research scholar, or who have acquired such status while in the United 
States, and who have completed his or her program are not eligible for 
participation as a professor or research scholar for a period of two 
years following the end date of such program participation as identified 
in SEVIS.
    (3) Extensions. A responsible officer may not extend the period of 
program duration beyond the five-year period of maximum program duration 
authorized for professor and research scholar participants. The 
Department may, in its sole discretion, authorize an extension beyond 
the permitted five-year period, as submitted by a ``G-7'' program 
sponsor, upon successful demonstration of the following:
    (i) The participant for whom an extension is requested is engaged in 
a research project under the direct sponsorship of a Federally Funded 
National Research and Development Center (``FFNRDC'') or a U.S. Federal 
Laboratory;
    (ii) The FFNRDC or U.S. Federal Laboratory requesting the extension 
on behalf of the participant has determined, through peer review, that 
the participant's continued involvement in the project is beneficial to 
its successful conclusion; and
    (iii) The Secretary of the Department of Homeland Security has 
determined in his/her discretion that the extension may be approved;
    (iv) The extension request is for not more than five years.

[70 FR 28817, May 19, 2005; 70 FR 36344, June 23, 2005]



Sec.  62.21  Short-term scholars.

    (a) Introduction. These regulations govern scholars coming to the 
United States for a period of up to four months to lecture, observe, 
consult, and to participate in seminars, workshops, conferences, study 
tours, professional meetings, or similar types of educational and 
professional activities.
    (b) Purpose. The Exchange Visitor Program promotes the interchange 
of knowledge and skills among foreign and American scholars. It does so 
by providing foreign scholars the opportunity to exchange ideas with 
their American colleagues, participate in educational and professional 
programs, confer on common problems and projects, and promote 
professional relationships and communications.
    (c) Designation. The Department of State may, in its sole 
discretion, designate bona fide programs which offer foreign nationals 
the opportunity to

[[Page 270]]

engage in short-term visits for the purpose of lecturing, observing, 
consulting, training, or demonstrating special skills at research 
institutions, museums, libraries, post-secondary accredited educational 
institutions, or similar types of institutions.
    (d) Visitor eligibility. A person participating in the Exchange 
Visitor Program under this section shall satisfy the definition of a 
short-term scholar as set forth in Sec.  62.4.
    (e) Cross-cultural activities and orientation. Due to the nature of 
such exchanges, sponsors of programs for short-term scholars shall be 
exempted from the requirements of providing cross-cultural activities 
and orientation as set forth in Sec.  62.8(d) and Sec.  62.10(c). 
However, sponsors are encouraged to provide such programs for short-term 
scholars whenever appropriate.
    (f) Location of exchange. The short-term scholar shall participate 
in the Exchange Visitor Program at the conferences, workshops, seminars, 
or other events or activities stated on his or her Form DS-2019. A 
participant may also lecture or consult at institutions not listed on 
the Form DS-2019 if his or her Responsible Officer issues a written 
authorization of such activity. Such written authorization must be 
attached to the participant's Form DS-2019.
    (g) Duration of participation. The short-term scholar shall be 
authorized to participate in the Exchange Visitor Program for the length 
of time necessary to complete the program, which time shall not exceed 
six months. Programs under this section are exempted from Sec.  62.8(b) 
governing the minimum duration of a program. Extensions beyond the 
duration of participation are not permitted under this category.

[58 FR 15196, Mar. 19, 1993; 58 FR 48448, Sept. 16, 1993, as amended at 
61 FR 39585, July 30, 1996; 64 FR 17975, Apr. 13, 1999. Redesignated at 
64 FR 54539, Oct. 7, 1999]



Sec.  62.22  Trainees and interns.

    (a) Introduction. These regulations govern Exchange Visitor Programs 
under which foreign nationals with significant experience in their 
occupational field have the opportunity to receive training in the 
United States in such field. These regulations also establish a new 
internship program under which foreign national students and recent 
graduates of foreign post-secondary academic institutions have the 
opportunity to receive training in the United States in their field of 
academic study. These regulations include specific requirements to 
ensure that both trainees and interns receive hands-on experience in 
their specific fields of study/expertise and that they do not merely 
participate in work programs. Regulations dealing with training 
opportunities for certain foreign students who are studying at post-
secondary accredited educational institutions in the United States are 
located at Sec.  62.23 (``College and University Students''). 
Regulations governing alien physicians in graduate medical education or 
training are located at Sec.  62.27 (``Alien Physicians'').
    (b) Purpose. (1)(i) The primary objectives of the programs offered 
under these regulations are to enhance the skills and expertise of 
exchange visitors in their academic or occupational fields through 
participation in structured and guided work-based training and 
internship programs and to improve participants' knowledge of American 
techniques, methodologies, and technology. Such training and internship 
programs are also intended to increase participants' understanding of 
American culture and society and to enhance Americans' knowledge of 
foreign cultures and skills through an open interchange of ideas between 
participants and their American associates. A key goal of the Fulbright-
Hays Act, which authorizes these programs, is that participants will 
return to their home countries and share their experiences with their 
countrymen.
    (ii) Exchange Visitor Program training and internship programs must 
not be used as substitutes for ordinary employment or work purposes; nor 
may they be used under any circumstances to displace American workers. 
The requirements in these regulations for trainees are designed to 
distinguish between bona fide training, which is permitted, and merely 
gaining additional work experience, which is not permitted. The 
requirements in these regulations for interns are designed to 
distinguish between a period of work-

[[Page 271]]

based learning in the intern's academic field, which is permitted (and 
which requires a substantial academic framework in the participant's 
field), and unskilled labor, which is not.
    (2) In addition, a specific objective of the new internship program 
is to provide foreign nationals who are currently enrolled full-time and 
pursuing studies at a degree- or certificate-granting post-secondary 
academic institution or graduated from such an institution no more than 
12 months prior to their exchange visitor program begin date a period of 
work-based learning to allow them to develop practical skills that will 
enhance their future careers. Bridging the gap between formal education 
and practical work experience and gaining substantive cross-cultural 
experience are major goals in educational institutions around the world. 
By providing training opportunities for current foreign students and 
recent foreign graduates at formative stages of their development, the 
U.S. Government will build partnerships, promote mutual understanding, 
and develop networks for relationships that will last through 
generations as these foreign nationals move into leadership roles in a 
broad range of occupational fields in their own societies. These results 
are closely tied to the goals, themes, and spirit of the Fulbright-Hays 
Act.
    (c) Designation. (1) The Department may, in its sole discretion, 
designate as sponsors those entities it deems to meet the eligibility 
requirements set forth in Subpart A of 22 CFR part 62 and to have the 
organizational capacity successfully to administer and facilitate 
training and internship programs.
    (2) Sponsors must provide training and internship programs only in 
the occupational category or categories for which the Department has 
designated them as sponsors. The Department may designate training and 
internship programs in any of the following occupational categories:
    (i) Agriculture, Forestry, and Fishing;
    (ii) Arts and Culture;
    (iii) Construction and Building Trades;
    (iv) Education, Social Sciences, Library Science, Counseling and 
Social Services;
    (v) Health Related Occupations;
    (vi) Hospitality and Tourism;
    (vii) Information Media and Communications;
    (viii) Management, Business, Commerce and Finance;
    (ix) Public Administration and Law; and
    (x) The Sciences, Engineering, Architecture, Mathematics, and 
Industrial Occupations.
    (d) Selection criteria. (1) In addition to satisfying the general 
requirements set forth in Sec.  62.10(a), sponsors must ensure that 
trainees and interns have verifiable English language skills sufficient 
to function on a day-to-day basis in their training environment. 
Sponsors must verify an applicant's English language proficiency through 
a recognized English language test, by signed documentation from an 
academic institution or English language school, or through a documented 
interview conducted by the sponsor either in-person or by 
videoconferencing, or by telephone if videoconferencing is not a viable 
option.
    (2) Sponsors of training programs must verify that all potential 
trainees are foreign nationals who have either a degree or professional 
certificate from a foreign post-secondary academic institution and at 
least one year of prior related work experience in their occupational 
field acquired outside the United States or five years of work 
experience in their occupational field acquired outside the United 
States.
    (3) Sponsors of internship programs must verify that all potential 
interns are foreign nationals who are currently enrolled full-time and 
pursuing studies in their advanced chosen career field at a degree- or 
certificate-granting post-secondary academic institution outside the 
United States or graduated from such an institution no more than 12 
months prior to their exchange visitor program begin date.
    (e) Issuance of Forms DS-2019. In addition to the requirements set 
forth in Subpart A, sponsors must ensure that:
    (1) They do not issue Forms DS-2019 to potential participants in 
training

[[Page 272]]

and internship programs until they secure placements for trainees or 
interns and complete and secure requisite signatures on Form DS-7002, 
Training/Internship Placement Plan (T/IPP);
    (2) Trainees and interns have sufficient finances to support 
themselves for their entire stay in the United States, including housing 
and living expenses; and
    (3) The training and internship programs expose participants to 
American techniques, methodologies, and technology and expand upon the 
participants' existing knowledge and skills. Programs must not duplicate 
the participants' prior work experience or training received elsewhere.
    (f) Obligations of training and internship program sponsors. (1) 
Sponsors designated by the Department to administer training and 
internship programs must:
    (i) Ensure that trainees and interns are appropriately selected, 
placed, oriented, supervised, and evaluated;
    (ii) Be available to trainees and interns (and host organizations, 
as appropriate) to assist as facilitators, counselors, and information 
resources;
    (iii) Ensure that training and internship programs provide a balance 
between the trainees' and interns' learning opportunities and their 
contributions to the organizations in which they are placed;
    (iv) Ensure that the training and internship programs are full-time 
(minimum of 32 hours a week); and
    (v) Ensure that any host organizations and third parties involved in 
the recruitment, selection, screening, placement, orientation, 
evaluation for, or the provision of training and internship programs are 
sufficiently educated on the goals, objectives, and regulations of the 
Exchange Visitor Program and adhere to all regulations set forth in this 
part as well as all additional terms and conditions governing Exchange 
Visitor Program administration that the Department may from time to time 
impose.
    (2) Sponsors must certify that they or any host organization acting 
on the sponsor's behalf:
    (i) Have sufficient resources, plant, equipment, and trained 
personnel available to provide the specified training and internship 
program;
    (ii) Provide continuous on-site supervision and mentoring of 
trainees and interns by experienced and knowledgeable staff;
    (iii) Ensure that trainees and interns obtain skills, knowledge, and 
competencies through structured and guided activities such as classroom 
training, seminars, rotation through several departments, on-the-job 
training, attendance at conferences, and similar learning activities, as 
appropriate in specific circumstances;
    (iv) Conduct periodic evaluations of trainees and interns, as set 
forth in Sec.  62.22(l);
    (v) Do not displace full- or part-time or temporary or permanent 
American workers or serve to fill a labor need and ensure that the 
positions that trainees and interns fill exist primarily to assist 
trainees and interns in achieving the objectives of their participation 
in training and internship programs; and
    (vi) Certify that training and internship programs in the field of 
agriculture meet all the requirements of the Fair Labor Standards Act, 
as amended (29 U.S.C. 201 et seq.) and the Migrant and Seasonal 
Agricultural Worker Protection Act, as amended (29 U.S.C. 1801 et seq.).
    (3) Sponsors or any third parties acting on their behalf must 
complete thorough screening of potential trainees or interns, including 
a documented interview conducted by the sponsor either in-person or by 
videoconferencing, or by telephone if videoconferencing is not a viable 
option.
    (4) Sponsors must retain all documents referred to in Sec.  62.22(f) 
for at least three years following the completion of all training and 
internship programs. Documents and any requisite signatures may be 
retained in either hard copy or electronic format.
    (g) Use of third parties--(1) Sponsors use of third parties. 
Sponsors may engage third parties (including, but not limited to host 
organizations, partners, local businesses, governmental entities, 
academic institutions, and other foreign or domestic agents) to assist 
them in the conduct of their designated training and internship 
programs. Such

[[Page 273]]

third parties must have an executed written agreement with the sponsor 
to act on behalf of the sponsor in the conduct of the sponsor's program. 
This agreement must outline the obligations and full relationship 
between the sponsor and third party on all matters involving the 
administration of their exchange visitor program. A sponsor's use of a 
third party does not relieve the sponsor of its obligations to comply 
with and to ensure third party compliance with Exchange Visitor Program 
regulations. Any failure by any third party to comply with the 
regulations set forth in this part or with any additional terms and 
conditions governing Exchange Visitor Program administration that the 
Department may from time to time impose will be imputed to the sponsors 
engaging such third party.
    (2) Screening and vetting third parties operating outside the United 
States. Sponsors must ascertain that third parties operating outside the 
United States are legitimate entities within the context of their home 
country environment. For third parties that operate as businesses, 
sponsors must obtain relevant home country documentation, such as a 
business registration or certification. Such home country documentation 
must include an English Language translation for any business 
registration or certification documents submitted in a foreign language. 
Written agreements between sponsors and third parties operating outside 
the United States must include annually updated price lists for training 
and internship programs offered by each third party, and must indicate 
that such overseas third parties are sufficiently trained in all aspects 
of the programs they represent, including the regulations set forth in 
this part.
    (3) Screening and vetting host organizations. Sponsors must 
adequately screen all potential host organizations at which a trainee or 
intern will be placed by obtaining the following information:
    (i) Employer Identification Number (EIN) used for tax purposes;
    (ii) Third party verification of telephone number, address, and 
professional activities, e.g., via advertising, brochures, Web site, 
and/or feedback from prior participants; and
    (iii) Verification of Worker's Compensation Insurance Policy or 
equivalent in each state or, if applicable, evidence of state exemption 
from requirement of coverage.
    (4) Site visits of host organizations. Sponsors must conduct site 
visits of host organizations that have not previously participated 
successfully in the sponsor's training and internship programs and that 
have fewer than 25 employees or less than three million dollars in 
annual revenue. Placements at academic institutions or at federal, 
state, or local government offices are specifically excluded from this 
requirement. The purpose of the site visits is for the sponsors to 
ensure that host organizations possess and maintain the ability and 
resources to provide structured and guided work-based learning 
experiences according to individualized T/IPPs and that host 
organizations understand and meet their obligations set forth in this 
part.
    (h) Host organization obligations. Sponsors must ensure that:
    (1) Host organizations sign a completed Form DS-7002 to verify that 
all placements are appropriate and consistent with the objectives of the 
trainees or interns as outlined in their program applications and as set 
forth in their T/IPPs. All parties involved in internship programs 
should recognize that interns are seeking entry-level training and 
experience. Accordingly, all placements must be tailored to the skills 
and experience level of the individual intern;
    (2) Host organizations notify sponsors promptly of any concerns 
about, changes in, or deviations from T/IPPs during training and 
internship programs and contact sponsors immediately in the event of any 
emergency involving trainees or interns;
    (3) Host organizations abide by all federal, state, and local 
occupational health and safety laws; and
    (4) Host organizations abide by all program rules and regulations 
set forth by the sponsors, including the completion of all mandatory 
program evaluations.
    (i) Training/internship placement plan (Form DS-7002). (1) Sponsors 
must fully complete and obtain all requisite signatures on a Form DS-
7002 for each

[[Page 274]]

trainee or intern before issuing a Form DS-2019. Sponsors must provide 
each signatory an executed copy of the Form DS-7002. Upon request, 
trainees and interns must present their fully executed Form DS-7002 to 
Consular Officials during their visa interview.
    (2) To further distinguish between bona fide training for trainees 
or work-based learning for interns, which are permitted, and unskilled 
or casual labor positions which are not, all T/IPPs must:
    (i) State the specific goals and objectives of the training and 
internship program (for each phase or component, if applicable);
    (ii) Detail the knowledge, skills, or techniques to be imparted to 
the trainee or intern (for each phase or component, if applicable); and
    (iii) Describe the methods of performance evaluation and the 
supervision for each phase or component, if applicable.
    (3) A T/IPP for trainees must be divided into specific and various 
phases or components, and for each phase or component must:
    (i) Describe the methodology of training and
    (ii) Provide a chronology or syllabus.
    (4) A T/IPP for interns must:
    (i) Describe the role of the intern in the organization and, if 
applicable, identify various departments or functional areas in which 
the intern will work; and
    (ii) Identify the specific tasks and activities the intern will 
complete.
    (j) Program exclusions. Sponsors designated by the Department to 
administer training and internship programs must not:
    (1) Place trainees or interns in unskilled or casual labor 
positions, in positions that require or involve child care or elder 
care; or in clinical or any other kind of work that involves patient 
care or patient contact, including any work that would require trainees 
or interns to provide therapy, medication, or other clinical or medical 
care (e.g., sports or physical therapy, psychological counseling, 
nursing, dentistry, veterinary medicine, social work, speech therapy, 
early childhood education);
    (2) Place trainees or interns in positions, occupations, or 
businesses that could bring the Exchange Visitor Program or the 
Department into notoriety or disrepute; or
    (3) Engage or otherwise cooperate or contract with a Staffing/
Employment Agency to recruit, screen, orient, place, evaluate, or train 
trainees or interns, or in any other way involve such agencies in an 
Exchange Visitor Program training and internship program.
    (4) Issue a T/IPP for any trainee or intern for which the duties 
involve more than 20 per cent clerical work.
    (5) Have less than three departmental or functional rotations for 
``Hospitality and Tourism'' training and internship programs of six 
months or longer.
    (k) Duration. The duration of participation in a training and 
internship program must be established before a sponsor issues a Form 
DS-2019 and must not exceed the sponsor's authorized designation as set 
forth in the sponsor's letter of designation or most recent letter of 
redesignation. Except as noted below, the maximum duration of a training 
program is 18 months, and the maximum duration of an internship program 
is 12 months. For training programs in the field of agriculture and in 
the occupational category of Hospitality and Tourism, the maximum 
duration of program participation is 12 months. If an original T/IPP 
specifies that at least six months of a program includes related 
classroom participation and studies, training programs in the field of 
agriculture may be designated for a total duration of 18 months. Program 
extensions are permitted within the maximum duration as set forth in the 
letter of designation/redesignation provided that the need for an 
extended training or internship program is documented by the full 
completion and execution of a new Form DS-7002. 12-month training 
programs in the field of agriculture may not be extended to 18 months by 
adding six months of classroom participation and studies at the end of 
the original 12-month program duration. Per above, the six months of 
related classroom participation and studies must have been part of the 
trainee's original T/IPP.

[[Page 275]]

    (l) Evaluations. In order to ensure the quality of training and 
internship programs, sponsors must develop procedures for evaluating all 
trainees and interns. All required evaluations must be completed prior 
to the conclusion of a training and internship program, and both the 
trainees and interns and their immediate supervisors must sign the 
evaluation forms. For programs exceeding six months' duration, at a 
minimum, midpoint and concluding evaluations are required. For programs 
of six months or less, at a minimum, concluding evaluations are 
required. Sponsors must retain trainee and intern evaluations 
(electronic or hard copy) for a period of at least three years following 
the completion of each training and internship program.
    (m) Issuance of certificate of eligibility for exchange visitor (J-
1) status. Sponsors must not deliver or cause to be delivered any 
Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-
2019) to potential trainees or interns unless the individualized Form 
DS-7002 required by Sec.  62.22(i) has been completed and signed by all 
requisite parties.
    (n) Additional training and internship program participation. 
Foreign nationals who enter the United States under the Exchange Visitor 
Program to participate in training and internship programs are eligible 
to participate in additional training and internship programs under 
certain conditions. For both trainees and interns, additional training 
and internship programs must address the development of more advanced 
skills or a different field of expertise. Interns may apply for 
additional internship programs if they:
    (1) Are currently enrolled full-time and pursuing studies at degree- 
or certificate-granting post-secondary academic institutions outside the 
United States; or,
    (2) Have graduated from such institutions no more than 12 months 
prior to the start of their proposed exchange visitor program. A new 
internship is also permissible when a student has successfully completed 
a recognized course of study (i.e., associate, bachelors, masters, 
Ph.D., or their recognized equivalents) and has enrolled and is pursuing 
studies at the next higher level of academic study. Trainees are 
eligible for additional training programs after a period of at least two 
years residency outside the United States following completion of their 
training program. Participants who have successfully completed 
internship programs and no longer meet the selection criteria for an 
internship program may participate in a training program if they have 
resided outside the United States or its territories for at least two 
years. If participants meet these selection criteria and fulfill these 
conditions, there will be no limit to the number of times they may 
participate in a training and internship program.

[75 FR 48559, Aug. 11, 2010]



Sec.  62.23  College and university students.

    (a) Purpose. A program under this section provides foreign students 
the opportunity to participate in a designated exchange visitor program 
while studying at a degree-granting post-secondary accredited academic 
institution or participating in a student internship program which 
fulfills the student's academic study. A student sponsored in this 
category may participate in a degree, non-degree, or student internship 
program. Such an exchange is intended to promote mutual understanding by 
fostering the exchange of ideas between foreign students and their 
American counterparts.
    (b) Designation. The Department of State may, in its sole 
discretion, designate bona fide programs which offer foreign students 
the opportunity to study in the United States at a post-secondary 
accredited academic institution or to participate in a student 
internship program.
    (c) Selection criteria. A sponsor selects the college and university 
students who participate in its exchange visitor program. A sponsor must 
secure sufficient background information on the students to ensure that 
they have the academic credentials required for its program. A student 
is eligible for participation in the Exchange Visitor Program if at any 
time during his or her educational program in the United States:
    (1) The student or his or her program is financed directly or 
indirectly by:

[[Page 276]]

    (i) The United States Government;
    (ii) The government of the student's home country; or
    (iii) An international organization of which the United States is a 
member by treaty or statute;
    (2) The program is carried out pursuant to an agreement between the 
United States Government and a foreign government;
    (3) The program is carried out pursuant to written agreement 
between:
    (i) American and foreign academic institutions;
    (ii) An American academic institution and a foreign government; or
    (iii) A state or local government in the United States and a foreign 
government;
    (4) The student is supported substantially by funding from any 
source other than personal or family funds; or
    (5) The student is participating in a student internship program as 
described in paragraph (i) of this section.
    (d) Admissions requirement. In addition to satisfying the 
requirements of Sec.  62.10(a), a sponsor must ensure that the student 
has been admitted to, or accepted for a student internship program 
offered by, the post-secondary accredited academic institution listed on 
the Form DS-2019 before issuing the Form.
    (e) Full course of study requirement. A student, other than a 
student intern described in paragraph (h)(3)(i) of this section, must 
pursue a full course of study at a post-secondary accredited academic 
institution in the United States as defined in Sec.  62.2, except under 
the following circumstances:
    (1) Vacation. During official school breaks and summer vacations if 
the student is eligible and intends to register for the next term. A 
student attending a school on a quarter or trimester calendar may be 
permitted to take the annual vacation during any one of the quarters or 
trimesters instead of during the summer.
    (2) Medical illness. If the student is compelled to reduce or 
interrupt a full course of study due to an illness or medical condition 
and the student presents to the responsible officer a written statement 
from a physician requiring or recommending an interruption or reduction 
in studies.
    (3) Bona fide academic reason. If the student is compelled to pursue 
less than a full course of study for a term and the student presents to 
the responsible officer a written statement from the academic dean or 
advisor recommending the student to reduce his or her academic load to 
less than a full course of study due to an academic reason.
    (4) Non-degree program. If the student is engaged full time in a 
prescribed course of study in a non-degree program of up to 24 months 
duration conducted by a post-secondary accredited academic institution.
    (5) Academic training. If the student is participating in authorized 
academic training in accordance with paragraph (f) of this section.
    (6) Final term. If the student needs less than a full course of 
study to complete the academic requirements in his or her final term.
    (f) Academic training--(1) Purpose. The primary purpose of academic 
training is to permit a student, other than a student intern described 
in paragraph (i) of this section, to participate in an academic training 
program during his or her studies, without wages or other remuneration, 
with the approval of the academic dean or advisor and the responsible 
officer.
    (2) Conditions. A student, other than a student intern described in 
paragraph (i) of this section, may be authorized to participate in an 
academic training program for wages or other remuneration:
    (i) During his or her studies; or
    (ii) Commencing not later than 30 days after completion of his or 
her studies, if the criteria, time limitations, procedures, and 
evaluations listed below in paragraphs (f)(3) through (f)(6) are 
satisfied:
    (3) Criteria. (i) The student is primarily in the United States to 
study rather than engage in academic training;
    (ii) The student is participating in academic training that is 
directly related to his or her major field of study at the post-
secondary accredited academic institution listed on his or her Form DS-
2019;

[[Page 277]]

    (iii) The student is in good academic standing with the post-
secondary accredited academic institution; and
    (iv) The student receives written approval in advance from the 
responsible officer for the duration and type of academic training.
    (4) Time limitations. The student is authorized to participate in 
academic training for the length of time necessary to complete the goals 
and objectives of the training, provided that the amount of time for 
academic training:
    (i) Is approved by the academic dean or advisor and approved by the 
responsible officer;
    (ii) For undergraduate and pre-doctoral training, does not exceed 18 
months, inclusive of any prior academic training in the United States, 
or the period of full course of study in the United States, whichever is 
less; except that additional time for academic training is allowed to 
the extent necessary for the exchange visitor to satisfy the mandatory 
requirements of his or her degree program in the United States;
    (iii) For post-doctoral training, does not exceed a total of 36 
months, inclusive of any prior academic training in the United States as 
an exchange visitor, or the period of the full course of study in the 
United States, whichever is less.
    (5) Procedures. To obtain authorization to engage in academic 
training:
    (i) The student must present to the responsible officer a letter of 
recommendation from the student's academic dean or advisor setting 
forth:
    (A) The goals and objectives of the specific academic training 
program;
    (B) A description of the academic training program, including its 
location, the name and address of the training supervisor, number of 
hours per week, and dates of the training;
    (C) How the academic training relates to the student's major field 
of study; and
    (D) Why it is an integral or critical part of the academic program 
of the student.
    (ii) The responsible officer must:
    (A) Determine if and to what extent the student has previously 
participated in academic training as a student, in order to ensure the 
student does not exceed the period permitted in paragraph (f) of this 
section;
    (B) Review the letter of recommendation required in paragraph 
(f)(5)(i) of this section; and
    (C) Make a written determination of whether the academic training 
currently being requested is warranted and the criteria and time 
limitations set forth in paragraph (f)(3) and (4) of this section are 
satisfied.
    (6) Evaluation requirements. The sponsor must evaluate the 
effectiveness and appropriateness of the academic training in achieving 
the stated goals and objectives in order to ensure the quality of the 
academic training program.
    (g) Student employment. A student, other than a student intern 
described in paragraph (i) of this section, may engage in part-time 
employment when the following criteria and conditions are satisfied.
    (1) The student employment:
    (i) Is pursuant to the terms of a scholarship, fellowship, or 
assistantship;
    (ii) Occurs on the premises of the post-secondary accredited 
academic institution the visitor is authorized to attend; or
    (iii) Occurs off-campus when necessary because of serious, urgent, 
and unforeseen economic circumstances which have arisen since acquiring 
exchange visitor status.
    (2) A student may engage in employment as provided in paragraph 
(g)(1) of this section if the:
    (i) Student is in good academic standing at the post-secondary 
accredited academic institution;
    (ii) Student continues to engage in a full course of study, except 
for official school breaks and the student's annual vacation;
    (iii) Employment totals no more than 20 hours per week, except 
during official school breaks and the student's annual vacation; and
    (iv) The responsible officer has approved the specific employment in 
advance and in writing. Such approval may be valid for up to 12 months, 
but is automatically withdrawn if the student's program is transferred 
or terminated.

[[Page 278]]

    (h) Duration of participation--(1) Degree student. A student who is 
in a degree program may be authorized to participate in the Exchange 
Visitor Program as long as he or she is either:
    (i) Studying at the post-secondary accredited academic institution 
listed on his or her Form DS-2019 and:
    (A) Pursuing a full course of study as set forth in paragraph (e) of 
this section, and
    (B) Maintaining satisfactory advancement towards the completion of 
the student's academic program; or
    (ii) Participating in an authorized academic training program as 
permitted in paragraph (f) of this section.
    (2) Non-degree student. A student who is in a non-degree program may 
be authorized to participate in the Exchange Visitor Program for up to 
24 months. Such a student must be:
    (i) Studying at the post-secondary accredited academic institution 
listed on his or her Form DS-2019 and:
    (A) Participating full-time in a prescribed course of study; and
    (B) Maintaining satisfactory advancement towards the completion of 
his or her academic program; or
    (ii) Participating in an authorized academic training program as 
permitted in paragraph (f) of this section.
    (3) Student intern. A student intern participating in a student 
internship program may be authorized to participate in the Exchange 
Visitor Program for up to 12 months for each degree/major as permitted 
in paragraph (i) of this section as long as the student intern is:
    (i) Engaged full-time in a student internship program sponsored by 
the post-secondary accredited academic institution that issued Form DS-
2019; and
    (ii) Maintaining satisfactory advancement towards the completion of 
his or her student internship program.
    (i) Student intern. The student intern is a foreign national 
enrolled in and pursuing a degree at an accredited post-secondary 
academic institution outside the United States and is participating in a 
student internship program in the United States that will fulfill the 
educational objectives for his or her current degree program at his or 
her home institution. The student intern must meet the following 
requirements:
    (1) Criteria. (i) In addition to satisfying the general requirements 
set forth in Sec.  62.10(a), a sponsor must ensure that the student 
intern has verifiable English language skills sufficient to function on 
a day-to-day basis in the internship environment. English language 
proficiency must be verified through a sponsor-conducted interview, by a 
recognized English language test, or by signed documentation from an 
academic institution or English language school.
    (ii) The student intern is primarily in the United States to engage 
in a student internship program rather than to engage in employment or 
provide services to an employer;
    (iii) The student intern has been accepted into a student internship 
program at the post-secondary accredited academic institution listed on 
his or her Form DS-2019;
    (iv) The student intern is in good academic standing with the post-
secondary academic institution outside the United States from which he 
or she is enrolled in and pursuing a degree; and
    (v) The student intern will return to the academic program and 
fulfill and obtain a degree from such academic institution after 
completion of the student internship program.
    (2) Program requirements. In addition to the requirements set forth 
in Subpart A, a sponsor must ensure that:
    (i) It does not issue Form DS-2019 to a potential participant in a 
student internship program until it has secured a placement for the 
student intern and it completes and secures the requisite signatures on 
Form DS-7002 (T/IPP);
    (ii) A student intern has sufficient finances to support himself or 
herself and dependants for their entire stay in the United States, 
including housing and living expenses; and
    (iii) The student internship program exposes participants to 
American techniques, methodologies, and technology and expands upon the 
participants' existing knowledge and skills. A program must not 
duplicate the student intern's prior experience.

[[Page 279]]

    (3) Obligations of student internship program sponsors. (i) A 
sponsor designated by the Department to administer a student internship 
program must:
    (A) Ensure that the student internship program is full-time (minimum 
of 32 hours a week); and
    (B) Ensure that any host organization or other third party involved 
in the recruitment, selection, screening, placement, orientation, 
evaluation, or provision of a student internship program is sufficiently 
educated on the goals, objectives, and regulations of the Exchange 
Visitor Program and adheres to all regulations set forth in this part as 
well as all additional terms and conditions governing Exchange Visitor 
Program administration that the Department may from time to time impose.
    (ii) A sponsor must ensure that it or any host organization acting 
on the sponsor's behalf:
    (A) Has sufficient resources, plant, equipment, and trained 
personnel available to provide the specified student internship program;
    (B) Does not displace full- or part-time or temporary or permanent 
American workers or serve to fill a labor need and ensures that the 
position that the student interns fills exists solely to assist the 
student intern in achieving the objectives of his or her participation 
in a student internship program; and
    (C) Certifies that student internship programs in the field of 
agriculture meet all the requirements of the Fair Labor Standards Act, 
as amended (29 U.S.C. 201 et seq.) and the Migrant and Seasonal 
Agricultural Worker Protection Act, as amended (29 U.S.C. 1801 et seq.).
    (iii) Screening and vetting host organizations. A sponsor must 
adequately screen all potential host organizations at which a student 
intern will be placed by obtaining the following information:
    (A) The Dun & Bradstreet identification number (unless the host 
organization is an academic institution, government entity, or family 
farm);
    (B) Employer Identification Number (EIN) used for tax purposes;
    (C) Verification of telephone number, address, and professional 
activities via advertising, brochures, Web site, and/or feedback from 
prior participants; and
    (D) Verification of Workman's Compensation Insurance Policy.
    (iv) Site visits. A sponsor must conduct a site visit of any host 
organization that has not previously participated successfully in the 
sponsor's student internship program, has fewer than 25 employees, or 
has less than three million dollars in annual revenue. Any placement at 
an academic institution or at a Federal, State, or local government 
office is specifically excluded from this requirement. The purpose of 
the site visit is for the sponsor to ensure that each host organization 
possesses and maintains the ability and resources to provide structured 
and guided work-based learning experiences according to individualized 
T/IPPs, and that each host organization understands and meets its 
obligations set forth in this part.
    (4) Use of third parties. A sponsor may engage a third party 
(including, but not limited to a host organization, partner, local 
business, governmental entity, academic institution, or any other 
foreign or domestic agent) to assist it in the conduct of its designated 
student internship program. Such a third party must have an executed 
written agreement with the sponsor to act on behalf of the sponsor in 
the conduct of the sponsor's program. This agreement must outline the 
full relationship between the sponsor and third party on all matters 
involving the administration of its exchange visitor program. A 
sponsor's use of a third party does not relieve the sponsor of its 
obligations to comply with and to ensure third party compliance with 
Exchange Visitor Program regulations. Any failure by any third party to 
comply with the regulations set forth in this part or with any 
additional terms and conditions governing Exchange Visitor Program 
administration that the Department may from time to time impose will be 
imputed to the sponsor.
    (5) Evaluation requirements. In order to ensure the quality of a 
student internship program, a sponsor must develop procedures for 
evaluating all student interns. All required evaluations

[[Page 280]]

must be completed prior to the conclusion of a student internship 
program, and the student intern and his or her immediate supervisor must 
sign the evaluation forms. At a minimum, all programs require a 
concluding evaluation, and programs lasting longer than six months also 
require a midpoint evaluation. For programs exceeding six months' 
duration, at a minimum, midpoint and concluding evaluations are 
required. A sponsor must retain student intern evaluations (electronic 
or hard copy) for a period of at least three years following the 
completion of each student internship program.
    (6) Employment, wages, or remuneration. A student intern is 
permitted to engage in full-time employment during the student 
internship program as outlined on his or her T/IPP, with or without 
wages or other compensation. Employment is not required for 
participation in the program. A student intern may be employed, however, 
only with the approval of the responsible officer and the student's home 
institution's dean or academic advisor.
    (7) Training/Internship Placement Plan (Form DS-7002). (i) A sponsor 
must fully complete and obtain requisite signatures for a Form DS-7002 
for each student intern before issuing a Form DS-2019. A sponsor must 
provide to each signatory an executed copy of the Form DS-7002. Upon 
request, a student intern must present his or her fully executed Form 
DS-7002 to a Consular Official during the visa interview.
    (ii) To further distinguish between work-based learning for student 
interns, which is permitted, and ordinary employment or unskilled labor 
which is not, a T/IPP must:
    (A) State the specific goals and objectives of the student 
internship program (for each phase or component, if applicable);
    (B) Detail the knowledge, skills, or techniques to be imparted to 
the student intern (for each phase or component, if applicable); and
    (C) Describe the methods of performance evaluation and the frequency 
of supervision (for each phase or component, if applicable).
    (8) Program exclusions. A sponsor designated by the Department to 
administer a student internship program must:
    (i) Not place a student intern in an unskilled or casual labor 
position, in a position that requires or involves child care or elder 
care, a position in the field of aviation, or, in clinical positions or 
engaging in any other kind of work that involves patient care or 
contact, including any work that would require student interns to 
provide therapy, medication, or other clinical or medical care (e.g., 
sports or physical therapy, psychological counseling, nursing, 
dentistry, veterinary medicine, social work, speech therapy, or early 
childhood education);
    (ii) Not place a student intern in a position, occupation, or 
business that could bring the Exchange Visitor Program or the Department 
into notoriety or disrepute;
    (iii) Not engage or otherwise cooperate or contract with a staffing/
employment agency to recruit, screen, orient, place, evaluate, or train 
student interns, or in any other way involve such agencies in an 
Exchange Visitor Program student internship program;
    (iv) Ensure that the duties of a student intern as outlined in the 
T/IPP will not involve more than 20 per cent clerical work, and that all 
tasks assigned to a student intern are necessary for the completion of 
the student internship program; and
    (v) Ensure that all ``Hospitality and Tourism'' student internship 
programs of six months or longer contain at least three departmental or 
functional rotations.

[73 FR 35068, June 20, 2008]



Sec.  62.24  Teachers.

    (a) Purpose. The regulations in this section govern exchange 
visitors who teach full-time in accredited public and private U.S. 
primary and secondary schools (K-12), including pre-kindergarten 
language immersion programs offered as regular courses of study by 
accredited primary schools. Programs in this category promote the 
interchange of U.S. and foreign teachers and enhance mutual 
understanding between the people of the United States and other 
countries. Exchange teachers sharpen their professional skills and 
participate in cross-cultural activities

[[Page 281]]

in schools and communities, and they return home after the exchange to 
share their experiences and increased knowledge of the United States and 
the U.S. educational system. Such exchanges enable foreign teachers to 
understand better U.S. culture, society and teaching practices at the 
primary and secondary levels, and enhance U.S. students' knowledge of 
foreign cultures, customs and teaching approaches.
    (b) Designation. The Department may, in its discretion, designate 
bona fide programs satisfying the objectives in paragraph (a) of this 
section as exchange visitor programs in the Teacher category.
    (c) Definitions. In addition to those definitions set forth in Sec.  
62.2, the following definitions apply to the Teacher category of the 
Exchange Visitor Program:
    (1) Accredited primary or accredited secondary school: Any publicly 
or privately operated primary or secondary institution for educating 
children in the United States that offers mainly academic programs and 
is duly accredited by the appropriate academic accrediting authority of 
the jurisdiction in which such institution is located.
    (2) Full-time teaching: A minimum of 32 hours per week of teaching 
or teaching-related administrative activities.
    (3) Home country school: An exchange teacher's school in his or her 
country of nationality or last legal country of residence.
    (4) Host school: The U.S.-accredited primary or secondary school in 
which a sponsor places an exchange teacher pursuant to the exchange 
teacher's written acceptance of the placement.
    (5) International school: A school that is so designated by its 
school district, state, or other applicable governing authority, or one 
whose curriculum focuses predominantly on international aspects of the 
subject matter taught and/or language immersion, or one that 
predominantly follows a national curriculum of a foreign country.
    (6) Language immersion program: A program that is a regular course 
of study offered by an accredited school having sustained and enriched 
instruction, in a language not native to the majority of the student 
population, that occurs for at least fifty percent of the school day.
    (7) Virtual exchange: A technology-enabled, sustained, people-to-
people cross-cultural educational program that may supplement the goals 
of an in-person exchange and integrates global knowledge, cultural 
awareness, and/or foreign language into the classroom or other setting.
    (d) Teacher eligibility. Foreign nationals are eligible to 
participate in exchange visitor programs as full-time teachers if, at 
the time of initial application to the sponsor, an individual making 
such application demonstrates to the satisfaction of the sponsor that he 
or she:
    (1) Either:
    (i) Meets the qualifications for teaching at the primary, including 
pre-kindergarten, or secondary levels in schools in his or her home 
country; is working as a teacher in his or her home country at the time 
of application; and has at least two years of full-time teaching 
experience; or
    (ii) Is not working as a teacher in his or her home country at the 
time of application, but otherwise meets the qualifications for teaching 
at the primary (including pre-kindergarten) or secondary levels in 
schools in the home country; has had at least two years of full-time 
teaching experience within the past eight years; and, within 12 months 
of his or her application submission date for the program, has or will 
have completed an advanced degree (beyond a degree equivalent to a U.S. 
bachelor's degree) in education or in an academic subject matter that he 
or she intends to teach or that is directly related to his or her 
teaching subject field;
    (2) Possesses, at a minimum, a degree equivalent to a U.S. 
bachelor's degree in either education or the academic subject field in 
which he or she intends to teach;
    (3) Satisfies the teaching eligibility standards of the U.S. state 
in which he or she will teach (e.g., meets minimum educational 
requirements, has passed teacher training coursework at a sufficiently 
proficient level, has provided an evaluation of foreign teaching 
preparation coursework, has demonstrated

[[Page 282]]

the requisite prior teaching experience), to include any required 
criminal background or other checks;
    (4) Is of good reputation and character; and
    (5) Agrees to come to the United States temporarily as a full-time 
teacher of record in an accredited primary or secondary school. Exchange 
teachers may teach a variety of subjects and levels at their host school 
or schools, if qualified, but at the pre-kindergarten level, may teach 
only in language immersion programs.
    (e) Teacher selection. Sponsors must screen foreign teachers 
carefully before accepting them for the program. In addition to the 
requirements set forth in Sec.  62.10 and all security checks required 
by U.S. state departments of education and host schools, sponsors also 
must:
    (1) Verify the qualifications of each foreign teacher to determine 
whether he or she satisfies the criteria set forth in paragraph (d) of 
this section;
    (2) Secure references from one colleague and one current or former 
supervisor of each foreign teacher, attesting to that teacher's good 
reputation, character and teaching skills;
    (3) Verify that each selected foreign teacher applicant possesses 
sufficient proficiency in the English language to function in U.S. 
classrooms and to function on a day-to-day basis, in accordance with the 
provision for selection of exchange visitors set forth at Sec.  
62.10(a)(2); and
    (4) Verify that each foreign teacher who is eligible for the program 
under paragraph (d)(1)(ii) of this section has a letter from the head of 
a school in another country, preferably that teacher's home country, 
which states that school's willingness to work with the exchange teacher 
on the cross-cultural activity component set forth in paragraph 
(h)(1)(ii). The foreign school with which the exchange teacher plans to 
work must be at the same academic level as the foreign teacher's 
proposed host school. The letter submitted as part of the foreign 
teacher's application package must be signed by the head of the school 
or another individual in an appropriate position of authority to speak 
for the school within the foreign country's school system; the official 
signing the letter must list both email and telephone contact 
information. The letter may be submitted in English or in the original 
language of the home country with an English translation; the name, 
title/organization and contact information of the translator must be 
noted on the translation.
    (f) Teaching position. Sponsors must ensure that:
    (1) Forms DS-2019 are not issued until foreign teacher applicants 
have received and accepted written offers of full-time teaching 
positions from the accredited primary (including pre-kindergarten level) 
or secondary schools in which they will teach;
    (2) Program dates coincide with the U.S. academic year cycle to 
ensure a smooth transition as exchange teachers arrive and depart, 
unless the sponsor notifies, and receives approval from, the Department 
for other exchange dates before the sponsor issues any Form DS-2019; 
sponsors should ensure that these dates are included in the exchange 
teacher's contract;
    (3) Exchange teachers comply with any applicable collective 
bargaining agreement;
    (4) Exchange teacher appointments to positions within accredited 
primary or secondary schools are temporary, even if the teaching 
positions are permanent, and do not lead to tenure; exchange teachers 
must be employees of either the host or home school during their 
exchange.
    (5) Teaching positions, including duties, responsibilities, hours of 
employment, and compensation, are commensurate with those of similarly-
situated U.S. teachers in the school district or host school where that 
exchange teacher is assigned to teach; an exchange teacher, unless he or 
she is on a program where the Department is the sponsor, must be 
employed by and under the direct supervision and guidance of his or her 
host school and, where applicable, host school district; and
    (6) A pre-kindergarten level exchange teacher is assigned to teach 
full-time in an accredited host school (or in several schools within the 
same host school district, including at several academic levels, with 
prior permission from the Department). If an exchange

[[Page 283]]

teacher is placed in a private school where there is no host school 
district, then he or she must teach a full-time schedule of at least 32 
hours in a school or schools located no more than 25 miles from the main 
host school; in such a situation, sponsors must ensure that reasonable 
and effective modes of transportation exist to such additional sites of 
activity. An exchange teacher may teach at the pre-kindergarten level 
only in a language immersion program offered as regular course of study 
by an accredited primary school.
    (g) Program disclosure. (1) As part of recruitment, in addition to 
the information required by Sec.  62.10(b)-(c), sponsors must provide on 
their main Web sites and in their recruiting materials a general summary 
of fees and other costs for the program. This summary should include, 
but not be limited to, the sponsor fee; foreign or domestic third party 
or partner fees; visa fee; the Student and Exchange Visitor Information 
System (SEVIS) fee; insurance costs; estimates for food, housing and 
local transportation costs; expected work-related deductions; and 
estimates or ranges for all other fees charged for and significant 
general costs related to participation in the teacher exchange program.
    (2) At the time a foreign teacher is selected for the program, and 
before the exchange visitor signs any contracts with the host school, 
sponsors and/or the host school must provide each individual exchange 
teacher the following information, either within the teacher's contract 
or in a separate document: The name, location, and brief description of 
the host school; the terms and conditions of compensation (with 
deductions from gross salary); any provisions affecting the ability of 
the exchange teacher to be accompanied abroad by a spouse or dependents 
(including any related assistance and allowances); a summary of the 
significant components of the program (including a statement of the 
teaching requirements and related professional obligations, as well as 
the required cross-cultural activity component as set forth in paragraph 
(h) of this section); specific information on the fees and costs for 
which the exchange teacher will be responsible while on exchange in that 
school district in accordance with paragraph (g)(1); anticipated housing 
options and cost implications; specific local transportation options 
between the exchange teacher's residence and the host school and 
transportation cost estimates; insurance costs for accident or illness 
coverage, repatriation of remains and medical evacuation as required by 
Sec.  62.14; estimated personal expense money for initial costs the 
exchange teacher may incur upon arrival in the United States prior to 
receiving his or her first paycheck; certification or licensure 
procedures and costs at the host school; administrative fees; and any 
placement fees. Exchange teacher compensation, unless provided directly 
to the exchange teacher through government funding, through continued 
support from the exchange teacher's home school, or from both the 
teacher's home and host school in a shared cost arrangement, must be 
paid directly by the host school or host school district in which the 
exchange teacher is placed.
    (h) Cross-cultural activity component. In addition to the 
requirements of Sec.  62.10:
    (1) Sponsors must require each exchange teacher to complete, within 
the United States, and during each academic year of program 
participation, at least one cross-cultural activity from each of the 
following two categories:
    (i) An activity for the teacher's classroom, larger host school or 
host school district population, or the community at large designed to 
give an overview of the history, traditions, heritage, culture, economy, 
educational system and/or other attributes of his or her home country. 
Sponsors of exchange teachers placed at international schools must 
require their exchange teachers to conduct at least one cross-cultural 
activity per academic year outside the host school in nearby schools or 
communities where international opportunities may be more limited than 
those found in their host school; and
    (ii) An activity that involves U.S. student dialogue with schools or 
students in another country, preferably in the exchange teacher's home 
school,

[[Page 284]]

through virtual exchange or other means, in order to supplement the 
goals of the in-person exchange.
    (2) Sponsors must collect annual reports from their exchange 
teachers detailing the cross-cultural activity component of their 
exchange program. The annual report does not have to be in a specific 
format, but must include the exchange teacher's full name and the 
program sponsor's name. The report section about the cross-cultural 
activity component must contain the following information:
    (i) The date(s) of each activity;
    (ii) The location of each activity;
    (iii) The audience for and participants in each activity;
    (iv) A general overview of each activity, including the topic; and
    (v) The estimated impact of each activity.
    (i) Location of the exchange. Exchange teachers must participate in 
exchange visitor programs at the accredited primary or secondary schools 
listed on their Forms DS-2019 or at location(s) where the institutions 
are involved in official school activities (e.g., school field trips, 
teacher development programs);
    (j) Duration of participation. Exchange teachers may be authorized 
to participate in the Exchange Visitor Program for the length of time 
necessary to complete the program, which may not exceed three years 
unless a specific extension of one or two years is authorized by the 
Department as set forth in paragraph (k) of this section.
    (k) Program extensions. (1) Sponsors may request from the Department 
an extension of an exchange teacher's exchange by either one or two 
years, but not by a semester or by other fractions of academic years.
    (2) The sponsor's request for extension must include:
    (i) A letter of reference on official letterhead written by the host 
school or host school district administrator responsible for overseeing 
the exchange teacher that describes the exchange teacher's performance 
during the previous three years of the exchange and how the host school 
has benefited from the exchange teacher's presence; and
    (ii) a document describing how the exchange teacher over the 
previous three years has engaged his or her classroom, the wider host 
school or host school district, or community through the cross-cultural 
activity component, if these activities are not already detailed in the 
exchange teacher's annual reports.
    (3) Sponsors must submit their extension request and supporting 
documentation for the extension to the Department no later than three 
months prior to the beginning of the desired extension period for the 
exchange teacher.
    (4) Sponsor requests for extension must include proof of payment of 
the required non-refundable extension fee as set forth in Sec.  62.17.
    (5) The Department, at its discretion, may authorize a sponsor to 
extend an exchange teacher's participation for either one or two 
additional years beyond the initial three-year exchange period. Sponsors 
must comply with all Department guidance on creating an extension record 
for the teacher within SEVIS.
    (6) Sponsors that applied for a two-year extension on behalf of a 
host school and its exchange teacher and received permission from the 
Department only for a one-year extension may apply again to extend the 
program of that host school's exchange teacher for one additional year 
by following the procedures set forth in paragraphs (k)(2)-(4) of this 
section. The sponsor should include with such additional extension 
request a copy of the prior extension request submitted to enable the 
initial one-year extension.
    (l) Repeat participation. Foreign nationals who have successfully 
completed teacher exchange programs are eligible to participate in 
additional teacher exchange programs, provided that they have resided 
outside the United States for at least two years following the 
successful completion of their most recent teacher exchange program and 
continue to meet the eligibility requirements set forth in paragraph (d) 
of this section.

[81 FR 4955, Jan. 29, 2016]



Sec.  62.25  Secondary school students.

    (a) Purpose. This section governs Department of State designated 
exchange visitor programs under which foreign

[[Page 285]]

secondary school students are afforded the opportunity to study in the 
United States at accredited public or private secondary schools for an 
academic semester or an academic year, while living with American host 
families or residing at accredited U.S. boarding schools.
    (b) Program sponsor eligibility. Eligibility for designation as a 
secondary school student exchange visitor program sponsor is limited to 
organizations:
    (1) With tax-exempt status as conferred by the Internal Revenue 
Service pursuant to section 501(c)(3) of the Internal Revenue Code; and
    (2) Which are United States citizens as such term is defined in 
Sec.  62.2.
    (c) Program eligibility. Secondary school student exchange visitor 
programs designated by the Department of State must:
    (1) Require all exchange students to be enrolled and participating 
in a full course of study at an accredited academic institution;
    (2) Allow entry of exchange students for not less than one academic 
semester (or quarter equivalency) and not more than two academic 
semesters (or quarter equivalency) duration; and
    (3) Ensure that the program is conducted on a U.S. academic calendar 
year basis, except for students from countries whose academic year is 
opposite that of the United States. Exchange students may begin an 
exchange program in the second semester of a U.S. academic year only if 
specifically permitted to do so, in writing, by the school in which the 
exchange student is enrolled. In all cases, sponsors must notify both 
the host family and school prior to the exchange student's arrival in 
the United States whether the placement is for an academic semester, an 
academic year, or a calendar year.
    (d) Program administration. Sponsors must ensure that all 
organizational officers, employees, representatives, agents, and 
volunteers acting on their behalf:
    (1) Are adequately trained. Sponsors must administer training for 
local coordinators that specifically includes, at a minimum, instruction 
in: Conflict resolution; procedures for handling and reporting emergency 
situations; awareness or knowledge of child safety standards; 
information on sexual conduct codes; procedures for handling and 
reporting allegations of sexual misconduct or any other allegations of 
abuse or neglect; and the criteria to be used to screen potential host 
families and exercise good judgment when identifying what constitutes 
suitable host family placements. In addition to their own training, 
sponsors must ensure that all local coordinators complete the Department 
of State mandated training module prior to their appointment as a local 
coordinator or assumption of duties. The Department of State training 
module will include instruction designed to provide a comprehensive 
understanding of the Exchange Visitor Program; its public diplomacy 
objectives; and the Secondary School Student category rules and 
regulations. Sponsors must demonstrate the individual's successful 
completion of all initial training requirements and that annual 
refresher training is also successfully completed.
    (2) Are adequately supervised. Sponsors must create and implement 
organization-specific standard operating procedures for the supervision 
of local coordinators designed to prevent or deter fraud, abuse, or 
misconduct in the performance of the duties of these employees/agents/
volunteers. They must also have sufficient internal controls to ensure 
that such employees/agents/volunteers comply with such standard 
operating procedures.
    (3) Have been vetted annually through a criminal background check 
(which must include a search of the Department of Justice's National Sex 
Offender Public Registry);
    (4) Place no exchange student with his or her relatives;
    (5) Make no exchange student placement beyond 120 miles of the home 
of the local coordinator authorized to act on the sponsor's behalf in 
both routine and emergency matters arising from that exchange student's 
participation in the Exchange Visitor Program;
    (6) Make no monetary payments or other incentives to host families;

[[Page 286]]

    (7) Provide exchange students with reasonable access to their 
natural parents and family by telephone and e-mail;
    (8) Make certain that the exchange student's government issued 
documents (i.e., passports, Forms DS-2019) are not removed from his/her 
possession;
    (9) Conduct the host family orientation after the host family has 
been fully vetted and accepted;
    (10) Refrain, without exception, from acting as:
    (i) Both a host family and a local coordinator or area supervisor 
for an exchange student;
    (ii) A host family for one sponsor and a local coordinator for 
another sponsor; or
    (iii) A local coordinator for any exchange student over whom he/she 
has a position of trust or authority such as the student's teacher or 
principal. This requirement is not applicable to a boarding school 
placement.
    (11) Maintain, at minimum, a monthly schedule of personal contact 
with the exchange student. The first monthly contact between the local 
coordinator and the exchange student must be in person. All other 
contacts may take place in-person, on the phone, or via electronic mail 
and must be properly documented. The sponsor is responsible for ensuring 
that issues raised through such contacts are promptly and appropriately 
addressed.
    (12) That a sponsor representative other than the local coordinator 
who recruited, screened and selected the host family visit the exchange 
student/host family home within the first or second month following the 
student's placement in the home.
    (13) Maintain, at a minimum, a monthly schedule of personal contact 
with the host family. At least once during the fall semester and at 
least once during the spring semester, (i.e., twice during the academic 
year) the contact by the local coordinator with the host family must be 
in person. All other contacts may take place in person, on the phone, or 
via electronic mail and must be properly documented. The sponsor is 
responsible for ensuring the issues raised through such contacts are 
promptly and appropriately addressed.
    (14) That host schools are provided contact information for the 
local organizational representative (including name, direct phone 
number, and e-mail address), the program sponsor, and the Department's 
Office of Designation; and
    (15) Adhere to all regulatory provisions set forth in this part and 
all additional terms and conditions governing program administration 
that the Department may impose.
    (e) Student selection. In addition to satisfying the requirements of 
Sec.  62.10(a), sponsors must ensure that all participants in a 
designated secondary school student exchange visitor program:
    (1) Are secondary school students in their home countries who have 
not completed more than 11 years of primary and secondary study, 
exclusive of kindergarten; or are at least 15 years of age, but not more 
than 18 years and six months of age as of the program start date;
    (2) Demonstrate maturity, good character, and scholastic aptitude; 
and
    (3) Have not previously participated in an academic year or semester 
secondary school student exchange program in the United States or 
attended school in the United States in either F-1 or J-1 visa status.
    (f) Student enrollment. (1) Sponsors must secure prior written 
acceptance for the enrollment of any exchange student in a United States 
public or private secondary school. Such prior acceptance must:
    (i) Be secured from the school principal or other authorized school 
administrator of the school or school system that the exchange student 
will attend; and
    (ii) Include written arrangements concerning the payment of tuition 
or waiver thereof if applicable.
    (2) Under no circumstance may a sponsor facilitate the entry into 
the United States of an exchange student for whom a written school 
placement has not been secured.
    (3) Under no circumstance may a sponsor charge a student private 
school

[[Page 287]]

tuition if such arrangements are not finalized in writing prior to the 
issuance of Form DS-2019.
    (4) Sponsors must maintain copies of all written acceptances for a 
minimum of three years and make such documents available for Department 
of State inspection upon request.
    (5) Sponsors must provide the school with a translated ``written 
English language summary'' of the exchange student's complete academic 
course work prior to commencement of school, in addition to any 
additional documents the school may require. Sponsors must inform the 
prospective host school of any student who has completed secondary 
school in his/her home country.
    (6) Sponsors may not facilitate the enrollment of more than five 
exchange students in one school unless the school itself has requested, 
in writing, the placement of more than five students from the sponsor.
    (7) Upon issuance of a Form DS-2019 to a prospective participant, 
the sponsor accepts full responsibility for securing a school and host 
family placement for the student, except in cases of voluntary student 
withdrawal or visa denial.
    (g) Student orientation. In addition to the orientation requirements 
set forth at Sec.  62.10, all sponsors must provide exchange students, 
prior to their departure from their home countries, with the following 
information:
    (1) A summary of all operating procedures, rules, and regulations 
governing student participation in the exchange visitor program along 
with a detailed summary of travel arrangements;
    (2) A copy of the Department's welcome letter to exchange students;
    (3) Age and language appropriate information on how to identify and 
report sexual abuse or exploitation;
    (4) A detailed profile of the host family with whom the exchange 
student will be placed. The profile must state whether the host family 
is either a permanent placement or a temporary-arrival family;
    (5) A detailed profile of the school and community in which the 
exchange student will be placed. The profile must state whether the 
student will pay tuition; and
    (6) An identification card, that lists the exchange student's name, 
United States host family placement address and telephone numbers 
(landline and cellular), sponsor name and main office and emergency 
telephone numbers, name and telephone numbers (landline and cellular) of 
the local coordinator and area representative, the telephone number of 
Department's Office of Designation, and the Secondary School Student 
program toll free emergency telephone number. The identification card 
must also contain the name of the health insurance provider and policy 
number. Such cards must be corrected, reprinted, and reissued to the 
student if changes in contact information occur due to a change in the 
student's placement.
    (h) Student extra-curricular activities. Exchange students may 
participate in school sanctioned and sponsored extra-curricular 
activities, including athletics, if such participation is:
    (1) Authorized by the local school district in which the student is 
enrolled; and
    (2) Authorized by the state authority responsible for determination 
of athletic eligibility, if applicable. Sponsors shall not knowingly be 
party to a placement (inclusive of direct placements) based on athletic 
abilities, whether initiated by a student, a natural or host family, a 
school, or any other interested party.
    (3) Any placement in which either the student or the sending 
organization in the foreign country is party to an arrangement with any 
other party, including receiving school personnel, whereby the student 
will attend a particular school or live with a particular host family 
must be reported to the particular school and the National Federation of 
State High School Associations prior to the first day of classes.
    (i) Student employment. Exchange students may not be employed on 
either a full or part-time basis but may accept sporadic or intermittent 
employment such as babysitting or yard work.
    (j) Host family application and selection. Sponsors must adequately 
screen and select all potential host families and at a minimum must:

[[Page 288]]

    (1) Provide potential host families with a detailed summary of the 
Exchange Visitor Program and of their requirements, obligations and 
commitment to host;
    (2) Utilize a standard application form developed by the sponsor 
that includes, at a minimum, all data fields provided in Appendix F, 
``Information to be Collected on Secondary School Student Host Family 
Applications''. The form must include a statement stating that: ``The 
income data collected will be used solely for the purposes of 
determining that the basic needs of the exchange student can be met, 
including three quality meals and transportation to and from school 
activities.'' Such application form must be signed and dated at the time 
of application by all potential host family applicants. The host family 
application must be designed to provide a detailed summary and profile 
of the host family, the physical home environment (to include 
photographs of the host family home's exterior and grounds, kitchen, 
student's bedroom, bathroom, and family or living room), family 
composition, and community environment. Exchange students are not 
permitted to reside with their relatives.
    (3) Conduct an in-person interview with all family members residing 
in the home where the student will be living;
    (4) Ensure that the host family is capable of providing a 
comfortable and nurturing home environment and that the home is clean 
and sanitary; that the exchange student's bedroom contains a separate 
bed for the student that is neither convertible nor inflatable in 
nature; and that the student has adequate storage space for clothes and 
personal belongings, reasonable access to bathroom facilities, study 
space if not otherwise available in the house and reasonable, unimpeded 
access to the outside of the house in the event of a fire or similar 
emergency. An exchange student may share a bedroom, but with no more 
than one other individual of the same sex.
    (5) Ensure that the host family has a good reputation and character 
by securing two personal references from within the community from 
individuals who are not relatives of the potential host family or 
representatives of the sponsor (i.e., field staff or volunteers), 
attesting to the host family's good reputation and character;
    (6) Ensure that the host family has adequate financial resources to 
undertake hosting obligations and is not receiving needs-based 
government subsidies for food or housing;
    (7) Verify that each member of the host family household 18 years of 
age and older, as well as any new adult member added to the household, 
or any member of the host family household who will turn eighteen years 
of age during the exchange student's stay in that household, has 
undergone a criminal background check (which must include a search of 
the Department of Justice's National Sex Offender Public Registry);
    (8) Maintain a record of all documentation on a student's exchange 
program, including but not limited to application forms, background 
checks, evaluations, and interviews, for all selected host families for 
a period of three years following program completion; and
    (9) Ensure that a potential single adult host parent without a child 
in the home undergoes a secondary level review by an organizational 
representative other than the individual who recruited and selected the 
applicant. Such secondary review should include demonstrated evidence of 
the individual's friends or family who can provide an additional support 
network for the exchange student and evidence of the individual's ties 
to his/her community. Both the exchange student and his or her natural 
parents must agree in writing in advance of the student's placement with 
a single adult host parent without a child in the home.
    (k) Host family orientation. In addition to the orientation 
requirements set forth in Sec.  62.10, sponsors must:
    (1) Inform all host families of the philosophy, rules, and 
regulations governing the sponsor's exchange visitor program, including 
examples of ``best practices'' developed by the exchange community;
    (2) Provide all selected host families with a copy of the 
Department's letter of appreciation to host families;

[[Page 289]]

    (3) Provide all selected host families with a copy of Department of 
State-promulgated Exchange Visitor Program regulations;
    (4) Advise all selected host families of strategies for cross-
cultural interaction and conduct workshops to familiarize host families 
with cultural differences and practices; and
    (5) Advise host families of their responsibility to inform the 
sponsor of any and all material changes in the status of the host family 
or student, including, but not limited to, changes in address, finances, 
employment and criminal arrests.
    (l) Host family placement. (1) Sponsors must secure, prior to the 
student's departure from his or her home country, a permanent or arrival 
host family placement for each exchange student participant. Sponsors 
may not:
    (i) Facilitate the entry into the United States of an exchange 
student for whom a host family placement has not been secured;
    (ii) Place more than one exchange student with a host family without 
the express prior written consent of the host family, the natural 
parents, and the students being placed. Under no circumstance may more 
than two exchange students be placed with a host family, or in the home 
of a local coordinator, regional coordinator, or volunteer. Sponsors may 
not place students from the same countries or with the same native 
languages in a single home.
    (2) Prior to the student's departure from his or her home country, 
sponsors must advise both the exchange student and host family, in 
writing, of the respective family compositions and backgrounds of each, 
whether the host family placement is a permanent or arrival placement, 
and facilitate and encourage the exchange of correspondence between the 
two.
    (3) In the event of unforeseen circumstances that necessitate a 
change of host family placement, the sponsor must document the reason(s) 
necessitating such change and provide the Department of State with an 
annual statistical summary reflecting the number and reason(s) for such 
change in host family placement in the program's annual report.
    (m) Advertising and marketing for the recruitment of host families. 
In addition to the requirements set forth in Sec.  62.9 in advertising 
and promoting for host family recruiting, sponsors must:
    (1) Utilize only promotional materials that professionally, 
ethically, and accurately reflect the sponsor's purposes, activities, 
and sponsorship;
    (2) Not publicize the need for host families via any public media 
with announcements, notices, advertisements, etc. that are not 
sufficiently in advance of the exchange student's arrival, appeal to 
public pity or guilt, imply in any way that an exchange student will be 
denied participation if a host family is not found immediately, or 
identify photos of individual exchange students and include an appeal 
for an immediate family;
    (3) Not promote or recruit for their programs in any way that 
compromises the privacy, safety or security of participants, families, 
or schools. Specifically, sponsors shall not include personal student 
data or contact information (including addresses, phone numbers or email 
addresses) or photographs of the student on Web sites or in other 
promotional materials; and
    (4) Ensure that access to exchange student photographs and 
personally identifying information, either online or in print form, is 
only made available to potential host families who have been fully 
vetted and selected for program participation. Such information, if 
available online, must also be password protected.
    (n) Reporting requirements. Along with the annual report required by 
regulations set forth at Sec.  62.15, sponsors must file with the 
Department of State the following information:
    (1) Sponsors must immediately report to the Department any incident 
or allegation involving the actual or alleged sexual exploitation or any 
other allegations of abuse or neglect of an exchange student. Sponsors 
must also report such allegations as required by local or state statute 
or regulation. Failure to report such incidents to the Department and, 
as required by state law or regulation, to local law enforcement 
authorities shall be grounds for the suspension and revocation of the

[[Page 290]]

sponsor's Exchange Visitor Program designation;
    (2) A report of all final academic year and semester program 
participant placements by August 31 for the upcoming academic year or 
January 15 for the Spring semester and calendar year. The report must be 
in the format directed by the Department and must include at a minimum, 
the exchange student's full name, Form DS-2019 number (SEVIS ID ), host 
family placement (current U.S. address), school (site of activity) 
address, the local coordinator's name and zip code, and other 
information the Department may request; and
    (3) A report of all situations which resulted in the placement of an 
exchange student with more than one host family or in more than one 
school. The report must be in a format directed by the Department and 
include, at a minimum, the exchange student's full name, Form DS-019 
number (SEVIS ID ), host family placements (current U.S. address), 
schools (site of activity address), the reason for the change in 
placement, and the date of the move. This report is due by July 31 for 
the previous academic school year.

[75 FR 65981, Oct. 27, 2010]



Sec.  62.26  Specialists.

    (a) Introduction. These regulations govern experts in a field of 
specialized knowledge or skill coming to the United States for 
observing, consulting, or demonstrating special skills, except:
    (1) Research scholars and professors, who are governed by 
regulations set forth at Sec.  62.20;
    (2) Short-term scholars, who are governed by regulations set forth 
at Sec.  62.21; and
    (3) Alien physicians in graduate medical education or training, who 
are governed by regulations set forth in Sec.  62.27.
    (b) Purpose. The Exchange Visitor Program promotes the interchange 
of knowledge and skills among foreign and American specialists, who are 
defined as experts in a field of specialized knowledge or skills, and 
who visit the United States for the purpose of observing, consulting, or 
demonstrating their special skills. It does so by providing foreign 
specialists the opportunity to observe American institutions and methods 
of practice in their professional fields, and to share their specialized 
knowledge with their American colleagues. The exchange of specialists 
promotes mutual enrichment, and furthers linkages among scientific 
institutions, government agencies, museums, corporations, libraries, and 
similar types of institutions. Such exchanges also enable visitors to 
better understand American culture and society and enhance American 
knowledge of foreign cultures and skills. This category is intended for 
exchanges with experts in such areas, for example, as mass media 
communication, environmental science, youth leadership, international 
educational exchange, museum exhibitions, labor law, public 
administration, and library science. This category is not intended for 
experts covered by the exchange visitor categories listed in paragraphs 
(a) (1) through (3) of this section.
    (c) Designation. The Department of State may, in its discretion, 
designate bona fide programs satisfying the objectives in section (b) 
above as an exchange visitor program in the specialist category.
    (d) Visitor eligibility. A foreign national shall be eligible to 
participate in an exchange visitor program as a specialist if the 
individual:
    (1) Is an expert in a field of specialized knowledge or skill;
    (2) Seeks to travel to the United States for the purpose of 
observing, consulting, or demonstrating his or her special knowledge or 
skills; and
    (3) Does not fill a permanent or long-term position of employment 
while in the United States.
    (e) Visitor selection. Sponsors shall adequately screen and select 
specialists prior to accepting them for the program, providing a formal 
selection process, including at a minimum:
    (1) Evaluation of the qualifications of foreign nationals to 
determine whether they meet the definition of specialist as set forth in 
Sec.  62.4(g); and
    (2) Screening foreign nationals to ensure that the requirements of 
Sec.  62.10(a) are satisfied.
    (f) Program disclosure. Before the program begins, the sponsor shall 
provide

[[Page 291]]

the specialist, in addition to what is required in Sec.  62.10(b), with:
    (1) Information on the length and location(s) of his or her exchange 
visitor program;
    (2) A summary of the significant components of the program; and
    (3) A written statement which clearly states the stipend, if any, to 
be paid to the specialist.
    (g) Issuance of Form IAP-66. The Form DS-2019 shall be issued only 
after the specialist has been accepted by the organization(s) with which 
he or she will participate in an exchange visitor program.
    (h) Location of the exchange. The specialist shall participate in an 
exchange visitor program at the location(s) listed on his or her Form 
DS-2019.
    (i) Duration of participation. The specialist shall be authorized to 
participate in the Exchange Visitor Program for the length of time 
necessary to complete the program, which shall not exceed one year.



Sec.  62.27  Alien physicians.

    (a) Purpose. Pursuant to the Mutual Educational and Cultural 
Exchange Act, as amended by the Health Care Professions Act, Public Law 
94-484, the Department of State facilitates exchanges for foreign 
medical graduates seeking to pursue graduate medical education or 
training at accredited schools of medicine or scientific institutions. 
The Department of State also facilitates exchanges of foreign medical 
graduates seeking to pursue programs involving observation, 
consultation, teaching, or research activities.
    (b) Clinical exchange programs. The Educational Commission for 
Foreign Medical Graduates must sponsor alien physicians who wish to 
pursue programs of graduate medical education or training conducted by 
accredited U.S. schools of medicine or scientific institutions. Such 
Foreign Medical Graduates shall:
    (1) Have adequate prior education and training to participate 
satisfactorily in the program for which they are coming to the United 
States;
    (2) Be able to adapt to the educational and cultural environment in 
which they will be receiving their education or training;
    (3) Have the background, needs, and experiences suitable to the 
program as required in Sec.  62.10(a)(1);
    (4) Have competency in oral and written English;
    (5) Have passed either Parts I and II of the National Board of 
Medical Examiners Examination, the Foreign Medical Graduate Examination 
in the Medical Sciences, the United States Medical Licensing 
Examination, Step I and Step II, or the Visa Qualifying Examination 
(VQE) prepared by the National Board of Medical Examiners, administered 
by the Educational Commission for Foreign Medical Graduates. [NB--
Graduates of a school of medicine accredited by the Liaison Committee on 
Medical Education are exempted by law from the requirement of passing 
either Parts I and II of the National Board of Medical Examiners 
Examination or the Visa Qualifying Examination (VQE)]; and
    (6) Provide a statement of need from the government of the country 
of their nationality or last legal permanent residence. Such statement 
must provide written assurance, satisfactory to the Secretary of Health 
and Human Services, that there is a need in that country for persons 
with the skills the alien physician seeks to acquire and shall be 
submitted to the Educational Commission for Foreign Medical Graduates by 
the participant's government. The statement of need must bear the seal 
of the concerned government and be signed by a duly designated official 
of the government. The text of such statement of need shall read as 
follows:

    Name of applicant for Visa: ___. There currently exists in (Country) 
a need for qualified medical practitioners in the speciality of ___. 
(Name of applicant for Visa) has filed a written assurance with the 
government of this country that he/she will return to this country upon 
completion of training in the United States and intends to enter the 
practice of medicine in the specialty for which training is being 
sought. Stamp (or Seal and signature) of issuing official of named 
country.
Dated:__________________________________________________________________
________________________________________________________________________
Official of Named Country.

    (7) Submit an agreement or contract from a U.S. accredited medical 
school, an affiliated hospital, or a scientific institution to provide 
the accredited

[[Page 292]]

graduate medical education. The agreement or contract must be signed by 
both the alien physician and the official responsible for the training.
    (c) Non-clinical exchange programs. (1) A United States university 
or academic medical center which has been designated an exchange visitor 
program by the Secretary of State of the Department of State is 
authorized to issue From DS-2019 to alien physicians to enable them to 
come to the United States for the purposes of observation, consultation, 
teaching, or research if:
    (i) The responsible officer or duly designated alternate of the 
exchange visitor program involved signs and appends to the Form DS-2019 
a certification which states ``this certifies that the program in which 
(name of physician) is to be engaged is solely for the purpose of 
observation, consultation, teaching, or research and that no element of 
patient care is involved'' or
    (ii) The dean of the involved accredited United States medical 
school or his or her designee certifies to the following five points and 
such certification is appended to the Form DS-2019 issued to the 
perspective exchange visitor alien physician:
    (A) The program in which (name of physician) will participate is 
predominantly involved with observation, consultation, teaching, or 
research.
    (B) Any incidental patient contact involving the alien physician 
will be under the direct supervision of a physician who is a U.S. 
citizen or resident alien and who is licensed to practice medicine in 
the State of ___.
    (C) The alien physician will not be given final responsibility for 
the diagnosis and treatment of patients.
    (D) Any activities of the alien physician will conform fully with 
the State licensing requirements and regulations for medical and health 
care professionals in the State in which the alien physician is pursuing 
the program.
    (E) Any experience gained in this program will not be creditable 
towards any clinical requirements for medical specialty board 
certification.
    (2) The Educational Commission for Foreign Medical Graduates may 
also issue Form DS-2019 to alien physicians who are coming to the United 
States to participate in a program of observation, consultation, 
teaching, or research provided the required letter of certification as 
outlined in this paragraph is appended to the Form DS-2019.
    (d) Public health and preventive medicine programs. A United States 
university, academic medical center, school of public health, or other 
public health institution which has been designated as an exchange 
visitor program sponsor by the Secretary of State of the Department of 
State is authorized to issue Forms DS-2019 to alien physicians to enable 
them to come to the United States for the purpose of entering into those 
programs which do not include any clinical activities involving direct 
patient care. Under these circumstances, the special eligibility 
requirements listed in paragraphs (b) and (c) of this section need not 
be met. The responsible officer or alternate responsible officer of the 
exchange visitor program involved shall append a certification to the 
Form DS-2019 which states.

    This certifies that the program in which (name of physician) is to 
be engaged does not include any clinical activities involving direct 
patient care.

    (e) Duration of participation. (1) The duration of an alien 
physician's participation in a program of graduate medical education or 
training as described in paragraph (b) of this section is limited to the 
time typically required to complete such program. Duration shall be 
determined by the Secretary of State of the Department of State at the 
time of the alien physician's entry into the United States. Such 
determination shall be based on criteria established in coordination 
with the Secretary of Health and Human Services and which take into 
consideration the requirements of the various medical specialty boards 
as evidenced in the Director of Medical Specialties published by Marquis 
Who's Who for the American Board of Medical Specialties.
    (2) Duration of participation is limited to seven years unless the 
alien physician has demonstrated to the satisfaction of the Secretary of 
State that the country to which the alien physician will return at the 
end of additional specialty education or training

[[Page 293]]

has an exceptional need for an individual with such additional 
qualification.
    (3) Subject to the limitations set forth above, duration of 
participation may, for good cause shown, be extended beyond the period 
of actual training or education to include the time necessary to take an 
examination required for certification by a specialty board.
    (4) The Secretary of State may include within the duration of 
participation a period of supervised medical practice in the United 
States if such practice is an eligibility requirement for certification 
by a specialty board.
    (i) Alien physicians shall be permitted to undertake graduate 
medical education or training in a specialty or subspecialty program 
whose board requirements are not published in the Director of Medical 
Specialists if the Board requirements are certified to the Secretary of 
State and to the Educational Commission for Foreign Medical Graduates by 
the Executive Secretary of the cognizant component board of the American 
Board of Medical Specialties.
    (ii) The Secretary of State may, for good cause shown, grant an 
extension of the program to permit an alien physician to repeat one year 
of clinical medical training.
    (5) The alien physician must furnish the Attorney General each year 
with an affidavit (Form I-644) that attests the alien physician:
    (i) Is in good standing in the program of graduate medical education 
or training in which the alien physician is participating; and
    (ii) Will return to the country of his nationality or last legal 
permanent resident upon completion of the education or training for 
which he came to the United States.
    (f) Change of program. The alien physician may, once and not later 
than two years after the date the alien physician enters the United 
States as an exchange visitor or acquires exchange visitor status, 
change his designated program of graduate medical education or training 
if the Secretary of State approves the change and if the requirements of 
paragraphs (b) and (e) of this section are met for the newly designated 
specialty.
    (g) Applicability of section 212(e) of the Immigration and 
Nationality Act. (1) Any exchange visitor physician coming to the United 
States on or after January 10, 1977 for the purpose of receiving 
graduate medical education or training is automatically subject to the 
two-year home-country physical presence requirement of section 212(e) of 
the Immigration and Nationality Act, as amended. Such physicians are not 
eligible to be considered for section 212(e) waivers on the basis of 
``No Objection'' statements issued by their governments.
    (2) Alien physicians coming to the United States for the purpose of 
observation, consultation, teaching, or research are not automatically 
subject to the two-year home-country physical presence requirement of 
section 212(e) of the Immigration and Nationality Act, as amended, but 
may be subject to this requirement if they are governmentally financed 
or pursuing a field of study set forth on their countries' Exchange 
Visitor Skills List. Such alien physicians are eligible for 
consideration of waivers under section 212(e) of the Immigration and 
Nationality Act, as amended, on the basis of ``No Objection'' statements 
submitted by their governments in their behalf through diplomatic 
channels to the Secretary of State of the Department of State.

[58 FR 15196, Mar. 19, 1993; 58 FR 48448, Sept. 16, 1993. Redesignated 
at 64 FR 54539, Oct. 7, 1999]



Sec.  62.28  International visitors.

    (a) Purpose. The international visitor category is for the exclusive 
use of the Department of State. Programs under this section are for 
foreign nationals who are recognized or potential leaders and are 
selected by the Department of State to participate in observation tours, 
discussions, consultation, professional meetings, conferences, 
workshops, and travel. These programs are designed to enable the 
international visitors to better understand American culture and society 
and contribute to enhanced American knowledge of foreign cultures. The 
category is for people-to-people programs which seek to develop and 
strengthen professional and personal ties between key foreign

[[Page 294]]

nationals and Americans and American institutions.
    (b) Selection. The Department of State and third parties assisting 
the Department of State shall adequately screen and select prospective 
international visitors to determine compliance with Sec.  62.10(a) and 
the visitor eligibility requirements set forth below.
    (c) Visitor eligibility. An individual participating in an exchange 
visitor program as an international visitor shall be:
    (1) Selected by the Department of State;
    (2) Engaged in consultation, observation, research, training, or 
demonstration of special skills; and
    (3) A recognized or potential leader in a field of specialized 
knowledge or skill.
    (d) Program disclosure. At the beginning of the program, the sponsor 
shall provide the international visitor with:
    (1) Information on the length and location(s) of his or her exchange 
visitor program; and
    (2) A summary of the significant components of the program.
    (e) Issuance of Form DS-2019. The Form DS-2019 shall be issued only 
after the international visitor has been selected by the Department of 
State.
    (f) Location of the exchange. The international visitor shall 
participate in an exchange visitor program at locations approved by the 
Department of State.
    (g) Duration of participation. The international visitor shall be 
authorized to participate in the Exchange Visitor Program for the length 
of time necessary to complete the program, which shall not exceed one 
year.



Sec.  62.29  Government visitors.

    (a) Purpose. The government visitor category is for the exclusive 
use of the U.S. federal, state, or local government agencies. Programs 
under this section are for foreign nationals who are recognized as 
influential or distinguished persons, and are selected by U.S. federal, 
state, or local government agencies to participate in observation tours, 
discussions, consultation, professional meetings, conferences, 
workshops, and travel. These are people-to-people programs designed to 
enable government visitors to better understand American culture and 
society, and to contribute to enhanced American knowledge of foreign 
cultures. The objective is to develop and strengthen professional and 
personal ties between key foreign nationals and Americans and American 
institutions. The government visitor programs are for such persons as 
editors, business and professional persons, government officials, and 
labor leaders.
    (b) Designation. The Department of State may, in its sole 
discretion, designate as sponsors U.S. federal, state, and local 
government agencies which offer foreign nationals the opportunity to 
participate in people-to-people programs which promote the purpose as 
set forth in (a) above.
    (c) Selection. Sponsors shall adequately screen and select 
prospective government visitors to determine compliance with Sec.  
62.10(a) and the visitor eligibility requirements set forth below.
    (d) Visitor eligibility. An individual participating in an exchange 
visitor program as a government visitor shall be:
    (1) Selected by a U.S. federal, state, and local government agency;
    (2) Engaged in consultation, observation, training, or demonstration 
of special skills; and
    (3) An influential or distinguished person.
    (e) Program disclosure. Before the beginning of the program, the 
sponsor shall provide the government visitor with:
    (1) Information on the length and location(s) of his or her exchange 
visitor program;
    (2) A summary of the significant components of the program; and
    (3) A written statement which clearly states the stipend, if any, to 
be paid to the government visitor.
    (f) Issuance of Form DS-2019. The Form DS-2019 shall be issued only 
after the government visitor has been selected by a U.S. federal, state, 
or local government agency and accepted by the private and/or public 
organization(s) with whom he or she will participate in the exchange 
visitor program.
    (g) Location of the exchange. The government visitor shall 
participate in an

[[Page 295]]

exchange visitor program at the locations listed on his or her Form DS-
2019.
    (h) Duration of participation. The government visitor shall be 
authorized to participate in the Exchange Visitor Program for the length 
of time necessary to complete the program, which shall not exceed 
eighteen months.



Sec.  62.30  Camp counselors.

    (a) Introduction. In order to promote diverse opportunities for 
participation in educational and cultural exchange programs, the 
Department of State designates exchange sponsors to facilitate the entry 
of foreign nationals to serve as counselors in U.S. summer camps. These 
programs promote international understanding by improving American 
knowledge of foreign cultures while enabling foreign participants to 
increase their knowledge of American culture. The foreign participants 
are best able to carry out this objective by serving as counselors per 
se, that is, having direct responsibility for supervision of groups of 
American youth and of activities that bring them into interaction with 
their charges. While it is recognized that some non-counseling chores 
are an essential part of camp life for all counselors, this program is 
not intended to assist American camps in bringing in foreign nationals 
to serve as administrative personnel, cooks, or menial laborers, such as 
dishwashers or janitors.
    (b) Participant eligibility. Participation in camp counselor 
exchange programs is limited to foreign nationals who:
    (1) Are at least 18 years of age;
    (2) Are bona fide youth workers, students, teachers, or individuals 
with specialized skills; and
    (c) Participant selection. In addition to satisfying the 
requirements in Sec.  62.10(a), sponsors shall adequately screen all 
international candidates for camp counselor programs and at a minimum:
    (1) Conduct an in-person interview; and
    (2) Secure references from a participant's employer or teacher 
regarding his or her suitability for participation in a camp counselor 
exchange.
    (d) Participant orientation. Sponsors shall provide participants, 
prior to their departure from the home country, detailed information 
regarding:
    (1) Duties and responsibilities relating to their service as a camp 
counselor;
    (2) Contractual obligations relating to their acceptance of a camp 
counselor position; and
    (3) Financial compensation for their service as a camp counselor.
    (e) Participant placements. Sponsors shall place eligible 
participants at camping facilities which are:
    (1) Accredited;
    (2) A member in good standing of the American Camping Association;
    (3) Officially affiliated with a nationally recognized non-profit 
organization; or
    (4) Have been inspected, evaluated, and approved by the sponsor.
    (f) Participant compensation. Sponsors shall ensure that 
international participants receive pay and benefits commensurate with 
those offered to their American counterparts.
    (g) Participant supervision. Sponsors shall provide all participants 
with a phone number which allows 24 hour immediate contact with the 
sponsor.
    (h) Program administration. Sponsors shall:
    (1) Comply with all provisions set forth in subpart A of this part;
    (2) Not facilitate the entry of any participant for a program of 
more than four months duration; and
    (3) Under no circumstance facilitate the entry into the United 
States of a participant for whom a camp placement has not been pre-
arranged.
    (i) Placement report. In lieu of listing the name and address of the 
camp facility at which the participant is placed on Form DS-2019, 
sponsors shall submit to the Department of State, no later than July 1st 
of each year, a report of all participant placements. Such report shall 
reflect the participant's name, camp placement, and the number of times 
the participant has previously participated in a camp counselor 
exchange.
    (j) In order to ensure that as many different individuals as 
possible are recruited for participation in camp counselor programs, 
sponsors shall limit the number of participants who have previously 
participated more than once

[[Page 296]]

in any camp counselor exchange to not more than ten percent of the total 
number of participants that the sponsor placed in the immediately 
preceding year.

[58 FR 15196, Mar. 19, 1993, as amended at 59 FR 16984, Apr. 11, 1994. 
Redesignated at 64 FR 54539, Oct. 7, 1999]



Sec.  62.31  Au pairs.

    (a) Introduction. This section governs Department of State-
designated exchange visitor programs under which foreign nationals are 
afforded the opportunity to live with an American host family and 
participate directly in the home life of the host family. All au pair 
participants provide child care services to the host family and attend a 
U.S. post-secondary educational institution. Au pair participants 
provide up to forty-five hours of child care services per week and 
pursue not less than six semester hours of academic credit or its 
equivalent during their year of program participation. Au pairs 
participating in the EduCare program provide up to thirty hours of child 
care services per week and pursue not less than twelve semester hours of 
academic credit or its equivalent during their year of program 
participation.
    (b) Program designation. The Department of State may, in its sole 
discretion, designate bona fide programs satisfying the objectives set 
forth in paragraph (a) of this section. Such designation shall be for a 
period of two years and may be revoked by the Department of State for 
good cause.
    (c) Program eligibility. Sponsors designated by the Department of 
State to conduct an au pair exchange program shall;
    (1) Limit the participation of foreign nationals in such programs to 
not more than one year;
    (2) Limit the number of hours an EduCare au pair participant is 
obligated to provide child care services to not more than 10 hours per 
day or more than 30 hours per week and limit the number of hours all 
other au pair participants are obligated to provide child care services 
to not more than 10 hours per day or more than 45 hours per week;
    (3) Require that EduCare au pair participants register and attend 
classes offered by an accredited U.S. post-secondary institution for not 
less than twelve semester hours of academic credit or its equivalent and 
that all other au pair participants register and attend classes offered 
by an accredited U.S. post-secondary institution for not less than six 
semester hours of academic credit or its equivalent;
    (4) Require that all officers, employees, agents, and volunteers 
acting on their behalf are adequately trained and supervised;
    (5) Require that the au pair participant is placed with a host 
family within one hour's driving time of the home of the local 
organizational representative authorized to act on the sponsor's behalf 
in both routine and emergency matters arising from the au pair's 
participation in their exchange program;
    (6) Require that each local organizational representative maintain a 
record of all personal monthly contacts (or more frequently as required) 
with each au pair and host family for which he or she is responsible and 
issues or problems discussed;
    (7) Require that all local organizational representatives contact au 
pair participants and host families twice monthly for the first two 
months following a placement other than the initial placement for which 
the au pair entered the United States.
    (8) Require that local organizational representatives not devoting 
their full time and attention to their program obligations are 
responsible for no more than fifteen au pairs and host families; and
    (9) Require that each local organizational representative is 
provided adequate support services by a regional organizational 
representative.
    (d) Au pair selection. In addition to satisfying the requirements of 
Sec.  62.10(a), sponsors shall ensure that all participants in a 
designated au pair exchange program:
    (1) Are between the ages of 18 and 26;
    (2) Are a secondary school graduate, or equivalent;
    (3) Are proficient in spoken English;
    (4) Are capable of fully participating in the program as evidenced 
by the satisfactory completion of a physical;

[[Page 297]]

    (5) Have been personally interviewed, in English, by an 
organizational representative who shall prepare a report of the 
interview which shall be provided to the host family; and
    (6) Have successfully passed a background investigation that 
includes verification of school, three, non-family related personal and 
employment references, a criminal background check or its recognized 
equivalent and a personality profile. Such personality profile will be 
based upon a psychometric test designed to measure differences in 
characteristics among applicants against those characteristics 
considered most important to successfully participate in the au pair 
program.
    (e) Au pair placement. Sponsors shall secure, prior to the au pair's 
departure from the home country, a host family placement for each 
participant. Sponsors shall not:
    (1) Place an au pair with a family unless the family has 
specifically agreed that a parent or other responsible adult will remain 
in the home for the first three days following the au pair's arrival;
    (2) Place an au pair with a family having a child aged less than 
three months unless a parent or other responsible adult is present in 
the home;
    (3) Place an au pair with a host family having children under the 
age of two, unless the au pair has at least 200 hours of documented 
infant child care experience. An au pair participating in the EduCare 
program shall not be placed with a family having pre-school children in 
the home unless alternative full-time arrangements for the supervision 
of such pre-school children are in place;
    (4) Place an au pair with a host family having a special needs 
child, as so identified by the host family, unless the au pair has 
specifically identified his or her prior experience, skills, or training 
in the care of special needs children and the host family has reviewed 
and acknowledged in writing the au pair's prior experience, skills, or 
training so identified;
    (5) Place an au pair with a host family unless a written agreement 
between the au pair and the host family detailing the au pair's 
obligation to provide child care has been signed by both the au pair and 
the host family prior to the au pair's departure from his or her home 
country. Such agreement shall clearly state whether the au pair is an 
EduCare program participant or not. Such agreement shall limit the 
obligation to provide child care services to not more than 10 hours per 
day or more than 45 hours per week unless the au pair is an EduCare 
participant. Such agreement shall limit the obligation of an EduCare 
participant to provide child care service to not more than 10 hours per 
day or more than 30 hours per week.
    (6) Place the au pair with a family who cannot provide the au pair 
with a suitable private bedroom; and
    (7) Place an au pair with a host family unless the host family has 
interviewed the au pair by telephone prior to the au pair's departure 
from his or her home country.
    (f) Au pair orientation. In addition to the orientation requirements 
set forth at Sec.  62.10, all sponsors shall provide au pairs, prior to 
their departure from the home country, with the following information:
    (1) A copy of all operating procedures, rules, and regulations, 
including a grievance process, which govern the au pair's participation 
in the exchange program;
    (2) A detailed profile of the family and community in which the au 
pair will be placed;
    (3) A detailed profile of the educational institutions in the 
community where the au pair will be placed, including the financial cost 
of attendance at these institutions;
    (4) A detailed summary of travel arrangements; and
    (5) A copy of the Department of State's written statement and 
brochure regarding the au pair program.
    (g) Au pair training. Sponsors shall provide the au pair participant 
with child development and child safety instruction, as follows:
    (1) Prior to placement with the host family, the au pair participant 
shall receive not less than eight hours of child safety instruction no 
less than 4 of which shall be infant-related; and

[[Page 298]]

    (2) Prior to placement with the American host family, the au pair 
participant shall receive not less than twenty-four hours of child 
development instruction of which no less than 4 shall be devoted to 
specific training for children under the age of two.
    (h) Host family selection. Sponsors shall adequately screen all 
potential host families and at a minimum shall:
    (1) Require that the host parents are U.S. citizens or legal 
permanent residents;
    (2) Require that host parents are fluent in spoken English;
    (3) Require that all adult family members resident in the home have 
been personally interviewed by an organizational representative;
    (4) Require that host parents and other adults living full-time in 
the household have successfully passed a background investigation 
including employment and personal character references;
    (5) Require that the host family have adequate financial resources 
to undertake all hosting obligations;
    (6) Provide a written detailed summary of the exchange program and 
the parameters of their and the au pair's duties, participation, and 
obligations; and
    (7) Provide the host family with the prospective au pair 
participant's complete application, including all references.
    (i) Host family orientation. In addition to the requirements set 
forth at Sec.  62.10 sponsors shall:
    (1) Inform all host families of the philosophy, rules, and 
regulations governing the sponsor's exchange program and provide all 
families with a copy of the Department of State's written statement and 
brochure regarding the au pair program;
    (2) Provide all selected host families with a complete copy of 
Department of State-promulgated Exchange Visitor Program regulations, 
including the supplemental information thereto;
    (3) Advise all selected host families of their obligation to attend 
at least one family day conference to be sponsored by the au pair 
organization during the course of the placement year. Host family 
attendance at such a gathering is a condition of program participation 
and failure to attend will be grounds for possible termination of their 
continued or future program participation; and
    (4) Require that the organization's local counselor responsible for 
the au pair placement contacts the host family and au pair within forth-
eight hours of the au pair's arrival and meets, in person, with the host 
family and au pair within two weeks of the au pair's arrival at the host 
family home.
    (j) Wages and hours. Sponsors shall require that au pair 
participants:
    (1) Are compensated at a weekly rate based upon 45 hours of child 
care services per week and paid in conformance with the requirements of 
the Fair Labor Standards Act as interpreted and implemented by the 
United States Department of Labor. EduCare participants shall be 
compensated at a weekly rate that is 75% of the weekly rate paid to non-
EduCare participants;
    (2) Do not provide more than 10 hours of child care per day, or more 
than 45 hours of child care in any one week. EduCare participants may 
not provide more than 10 hours of child care per day or more than 30 
hours of child care in any one week;
    (3) Receive a minimum of one and one half days off per week in 
addition to one complete weekend off each month; and
    (4) Receive two weeks of paid vacation.
    (k) Educational component. Sponsors must:
    (1) Require that during their initial period of program 
participation, all EduCare au pair participants complete not less than 
12 semester hours (or their equivalent) of academic credit in formal 
educational settings at accredited U.S. post-secondary institutions and 
that all other au pair participants complete not less than six semester 
hours (or their equivalent) of academic credit in formal educational 
settings at accredited U.S. post-secondary institutions. As a condition 
of program participation, host family participants must agree to 
facilitate the enrollment and attendance of au pairs in accredited U.S. 
post secondary institutions and to pay the cost of such academic

[[Page 299]]

course work in an amount not to exceed $1,000 for EduCare au pair 
participants and in an amount not to exceed $500 for all other au pair 
participants.
    (2) Require that during any extension of program participation, all 
participants (i.e., Au Pair or EduCare) satisfy an additional 
educational requirement, as follows:
    (i) For a nine or 12-month extension, all au pair participants and 
host families shall have the same obligation for coursework and payment 
therefore as is required during the initial period of program 
participation.
    (ii) For a six-month extension, EduCare au pair participants must 
complete not less than six semester hours (or their equivalent) of 
academic credit in formal educational settings at accredited U.S. post-
secondary institutions. As a condition of participation, host family 
participants must agree to facilitate the enrollment and attendance of 
au pairs at accredited U.S. post secondary institutions and to pay the 
cost of such academic coursework in an amount not to exceed $500. All 
other au pair participants must complete not less than three semester 
hours (or their equivalent) of academic credit in formal educational 
settings at accredited U.S. post-secondary institutions. As a condition 
of program participation, host family participants must agree to 
facilitate the enrollment and attendance of au pairs at accredited U.S. 
post secondary institutions and to pay the cost of such academic 
coursework in an amount not to exceed $250.
    (l) Monitoring. Sponsors shall fully monitor all au pair exchanges, 
and at a minimum shall:
    (1) Require monthly personal contact by the local counselor with 
each au pair and host family for which the counselor is responsible. 
Counselors shall maintain a record of this contact;
    (2) Require quarterly contact by the regional counselor with each au 
pair and host family for which the counselor is responsible. Counselors 
shall maintain a record of this contact;
    (3) Require that all local and regional counselors are appraised of 
their obligation to report unusual or serious situations or incidents 
involving either the au pair or host family; and
    (4) Promptly report to the Department of State any incidents 
involving or alleging a crime of moral turpitude or violence.
    (m) Reporting requirements. Along with the annual report required by 
regulations set forth at Sec.  62.17, sponsors shall file with the 
Department of State the following information:
    (1) A summation of the results of an annual survey of all host 
family and au pair participants regarding satisfaction with the program, 
its strengths and weaknesses;
    (2) A summation of all complaints regarding host family or au pair 
participation in the program, specifying the nature of the complaint, 
its resolution, and whether any unresolved complaints are outstanding;
    (3) A summation of all situations which resulted in the placement of 
au pair participant with more than one host family;
    (4) A report by a certified public accountant, conducted pursuant to 
a format designated by the Department of State, attesting to the 
sponsor's compliance with the procedures and reporting requirements set 
forth in this subpart;
    (5) A report detailing the name of the au pair, his or her host 
family placement, location, and the names of the local and regional 
organizational representatives; and
    (6) A complete set of all promotional materials, brochures, or 
pamphlets distributed to either host family or au pair participants.
    (n) Sanctions. In addition to the sanctions provisions set forth at 
Sec.  62.50, the Department of State may undertake immediate program 
revocation procedures upon documented evidence that a sponsor has failed 
to:
    (1) Comply with the au pair placement requirements set forth in 
paragraph (e) of this section;
    (2) Satisfy the selection requirements for each individual au pair 
as set forth in paragraph (d) of this section; and
    (3) Enforce and monitor host family's compliance with the stipend 
and hours requirements set forth in paragraph (j) of this section.

[[Page 300]]

    (o) Extension of program. The Department, in its sole discretion, 
may approve extensions for au pair participants beyond the initial 12-
month program. Applications to the Department for extensions of six, 
nine, or 12 months, must be received by the Department not less than 30 
calendar days prior to the expiration of the exchange visitor's initial 
authorized stay in either the Au Pair or EduCare program (i.e., 30-
calendar days prior to the program end date listed on the exchange 
visitor's Form DS-2019). The request for an extension beyond the maximum 
duration of the initial 12-month program must be submitted 
electronically in the Department of Homeland Security's Student and 
Exchange Visitor Information System (SEVIS). Supporting documentation 
must be submitted to the Department on the sponsor's organizational 
letterhead and contain the following information:
    (1) Au pair's name, SEVIS identification number, date of birth, the 
length of the extension period being requested;
    (2) Verification that the au pair completed the educational 
requirements of the initial program; and
    (3) Payment of the required non-refundable fee (see 22 CFR 62.90) 
via Pay.gov.
    (p) Repeat participation. A foreign national who enters the United 
States as an au pair Exchange Visitor Program participant and who has 
successfully completed his or her program is eligible to participate 
again as an au pair participant, provided that he or she has resided 
outside the United States for at least two years following completion of 
his or her initial au pair program.

[60 FR 8552, Feb. 15, 1995, as amended at 62 FR 34633, June 27, 1997; 64 
FR 53930, Oct. 5, 1999. Redesignated at 64 FR 54539, Oct. 7, 1999; 66 FR 
43087, Aug. 17, 2001; 71 FR 33238, June 8, 2006; 73 FR 34862, June 19, 
2008]



Sec.  62.32  Summer work travel.

    (a) Introduction. The regulations in this section (in combination 
with any other provisions of 22 CFR part 62, as applicable) govern 
participation in Summer Work Travel programs conducted by Department of 
State-designated sponsors pursuant to the authority granted the 
Department of State under Public Law 105-277.
    (b) Purpose. The purpose of this program is to provide foreign 
college and university students with opportunities to interact with U.S. 
citizens, experience U.S. culture while sharing their own cultures with 
Americans they meet, travel in the United States, and work in jobs that 
require minimal training and are seasonal or temporary in order to earn 
funds to help defray a portion of their expenses. Employment is of a 
seasonal nature when the required service is tied to a certain time of 
the year by an event or pattern and requires labor levels above and 
beyond existing worker levels. Employment is of a temporary nature when 
an employer's need for the duties to be performed is a one-time 
occurrence, a peak load need, or an intermittent need. It is the nature 
of employers' needs, not the nature of the duties that is controlling.
    (c) Duration of participation. Summer Work Travel participants are 
authorized to participate in the Exchange Visitor Program for up to four 
months during the long break between academic years as determined by the 
Department of State. Extensions of program participation are not 
permitted.
    (d) Participant screening and selection. In addition to satisfying 
the requirements set forth at Sec.  62.10(a), sponsors are solely 
responsible for adequately screening and making the final selection. The 
screening process requires that sponsors (or vetted foreign entities 
acting on their behalf) at a minimum must:
    (1) Conduct and document interviews with potential participants 
either in-person or by video-conference;
    (2) Verify proficiency in conversational English and reading 
comprehension through either recognized language tests administered by 
academic institutions or English language schools or through the 
required documented interviews;
    (3) Select applicants who demonstrate their intention to participate 
in the cultural aspects of the Summer Work Travel Program.
    (4) Confirm that at the time of application, applicants (including 
final year students) are enrolled full-time and

[[Page 301]]

pursuing studies at accredited post-secondary, classroom-based, academic 
institutions physically located outside of the United States and have 
successfully completed at least one semester, or equivalent, of post-
secondary academic study.
    (e) Participant orientation. In addition to satisfying the 
requirements set forth at Sec.  62.10(b) and (c), sponsors must provide 
program participants, prior to participants' departures from their home 
countries, the following information and/or documentation:
    (1) A copy of the Department of State's Summer Work Travel 
Participant Letter;
    (2) A copy of the Department of State's Summer Work Travel Program 
Brochure;
    (3) The Department of State's toll-free help line telephone number;
    (4) The sponsor's 24/7 immediate contact telephone number;
    (5) Information advising participants of their obligations to notify 
their sponsors within ten days after they arrive in the United States 
and within ten days after they initially secure or change residences;
    (6) Information advising participants that they may not begin 
working at initial, replacement, or additional jobs until their sponsors 
have verified the terms and conditions of such employment and fully 
vetted their host employers as set forth at paragraph (n) of this 
section;
    (7) For participants with jobs secured prior to departing from 
selected home countries, documentation explaining the terms and 
conditions of such jobs and providing information about available 
housing and transportation to and from work;
    (8) Information explaining the cultural component of the Summer Work 
Travel Program, including guidance on how to best experience U.S. 
culture and/or descriptions of cultural opportunities arranged by the 
sponsor; and
    (9) Information explaining that sponsors will terminate the programs 
of participants who fail to comply with enumerated program regulations 
(i.e., reporting their arrivals, reporting changes of residence, not 
starting work at unverified jobs, responding to sponsor monthly 
outreach/monitoring efforts).
    (f) Cultural exchange. (1) Sponsors must ensure that all 
participants have opportunities to work alongside U.S. citizens and 
interact regularly with U.S. citizens to experience U.S. culture during 
the workday portion of their Summer Work Travel programs; and
    (2) Sponsors must ensure that all participants have opportunities to 
engage in cultural activities or events outside of work by planning, 
initializing, and carrying out events or other activities that provide 
participants' exposure to U.S. culture.
    (g) Participant placement. (1) Sponsors and third parties acting on 
their behalf may not pay or otherwise provide any incentive to employers 
to accept program participants for job placements with such employers.
    (2) Sponsors must confirm initial, replacement, and additional jobs 
placements of all Summer Work Travel Program participants before 
participants may start work by verifying, at a minimum, the terms and 
conditions of such employment and fully vetting their host employers as 
set forth at paragraph (n) of this section. Once participants have 
arrived in the United States and identified initial, replacement, or 
additional jobs, sponsors must vet such jobs within 72 hours.
    (3) Sponsors must not pose obstacles to job changes, but must offer 
reasonable assistance to participants wishing to change jobs regardless 
of whether their jobs were secured by the sponsors (direct-placed) or by 
the participants (self-placed).
    (4) Sponsors may place participants only in jobs that:
    (i) Are seasonal or temporary as defined in paragraph (b) of this 
section; and
    (ii) Provide opportunities for regular communication and interaction 
with U.S. citizens and allow participants to experience U.S. culture.
    (5) Sponsors may not place participants in jobs:
    (i) That require licensing;
    (ii) That are on the program exclusion list set forth at paragraph 
(h) of this section; or

[[Page 302]]

    (iii) For which there is another specific J visa category (e.g., 
Camp Counselor, Trainee, Intern).
    (6) Sponsors may not place participants with staffing agencies 
unless the placements meet the following three criteria:
    (i) Participants must be employees of and paid by the staffing 
agencies;
    (ii) Staffing agencies must provide full-time, primary, on-site 
supervision of the participants;
    (iii) Staffing agencies must effectively control the work sites, 
e.g., have hands-on management responsibility for the participants.
    (7) Sponsors may not place participants with employers that fill 
non-seasonal or non-temporary job openings with exchange visitors with 
staggered vacation schedules.
    (8) Sponsors must use extra caution when placing students in 
positions at employers in lines of business that are frequently 
associated with trafficking persons (e.g., modeling agencies, 
housekeeping, janitorial services).
    (9) Sponsors must consider the availability of suitable, affordable 
housing (e.g., that meets local codes and ordinances) and reliable, 
affordable, and convenient transportation to and from work when making 
job placements.
    (i) If employers do not provide or arrange housing and/or 
transportation, or if participants decline employer-provided housing or 
transportation, sponsors must actively and immediately assist 
participants with arranging appropriate housing and transportation.
    (ii) If employers provide housing and/or transportation to and from 
work, job offers must include details of all such arrangements, 
including the cost to participants; whether such arrangements deduct 
such costs from participants' wages; and the market value of housing 
and/or transportation in accordance with the Fair Labor Standards Act 
regulations set forth at 29 CFR part 531, if they are considered part of 
the compensation packages.
    (10) For participants who are nationals of non-Visa Waiver Program 
countries and participants who are nationals of Visa Waiver Program 
countries with job placements screened in advance by the sponsors 
(direct placement) or jobs found by the participants (self-placement), 
prior to issuing Form DS-2019, sponsors must vet the potential employers 
as set forth at paragraph (n) of this section, confirm the terms and 
conditions of the job offers, and input complete and correct data into 
the Student and Exchange Visitor Information System (SEVIS) pursuant to 
the requirements set forth in Sec.  62.70(f).
    (11) Sponsors of applicants who are nationals of Visa Waiver Program 
countries and who have not secured jobs prior to departing from their 
home countries must:
    (i) Ensure that such participants receive pre-departure information 
that explains how to seek employment and secure lodging in the United 
States, and clearly identifies the criteria for appropriate jobs set 
forth at paragraph (g) of this section and the categories of employment 
and positions that are on the program exclusion list set forth at 
paragraph (h) of this section;
    (ii) Ensure that such participants have sufficient financial 
resources to support themselves during their searches for employment;
    (iii) Assist participants who have not found suitable employment 
within one week of commencing their job searches;
    (iv) Instruct participants of their obligation to notify their 
sponsors when they obtain job offers (and that they cannot start such 
jobs until the sponsors vet them); and
    (v) Promptly (i.e., within 72 hours) confirm the initial jobs of 
such participants, at a minimum, by verifying the terms and conditions 
of such employment and fully vetting their host employers as set forth 
at paragraph (n) of this section.
    (h) Program exclusions. Sponsors must not place participants:
    (1) In positions that could bring notoriety or disrepute to the 
Exchange Visitor Program;
    (2) In sales positions that require participants to purchase 
inventory that they must sell in order to support themselves;
    (3) In domestic help positions in private homes (e.g., child care, 
elder care, gardener, chauffeur);
    (4) As pedicab or rolling chair drivers or operators;

[[Page 303]]

    (5) As operators or drivers of vehicles or vessels for which 
drivers' licenses are required regardless of whether they carry 
passengers or not;
    (6) In positions related to clinical care that involves patient 
contact;
    (7) In any position in the adult entertainment industry (including, 
but not limited to jobs with escort services, adult book/video stores, 
and strip clubs);
    (8) In positions requiring work hours that fall predominantly 
between 10:00 p.m. and 6:00 a.m.;
    (9) In positions declared hazardous to youth by the Secretary of 
Labor at Subpart E of 29 CFR part 570;
    (10) In positions that require sustained physical contact with other 
people and/or adherence to the Centers for Disease Control and 
Prevention's Universal Blood and Body Fluid Precautions guidelines 
(e.g., body piercing, tattooing, massage, manicure);
    (11) In positions that are substantially commission-based and thus 
do not guarantee that participants will be paid minimum wage in 
accordance with federal and state standards;
    (12) In positions involved in gaming and gambling that include 
direct participation in wagering and/or betting;
    (13) In positions in chemical pest control, warehousing, catalogue/
online order distribution centers;
    (14) In positions with travelling fairs or itinerant 
concessionaires;
    (15) In positions for which there is another specific J category 
(e.g., camp counselor, intern, trainee); or
    (16) After November 1, 2012, in positions in the North American 
Industry Classification System's (NAICS) Goods-Producing Industries 
occupational categories industry sectors 11, 21, 23, 31-33 numbers (set 
forth at http://www.bls.gov/iag/tgs/iag_index_naics.htm).
    (i) Participant compensation. (1) Sponsors must inform program 
participants of Federal, State, and Local Minimum Wage requirements, and 
ensure that at a minimum, participants are compensated at the higher of:
    (i) The applicable Federal, State, or Local Minimum Wage (including 
overtime); or
    (ii) Pay and benefits commensurate with those offered to their 
similarly situated U.S. counterparts.
    (2) Sponsors must demonstrate that participants are also compensated 
according to the above standards in the following (and similar) 
situations:
    (i) The host employers provide housing and/or transportation as part 
of participants' compensation, but the compensation package does not 
explain that the lower hourly wage reflects such benefits; or
    (ii) The employers compensate participants on a ``piece'' basis 
(e.g., number of rooms cleaned). If at the end of each pay period, the 
participant's earnings under the piece rate do not equal at least the 
amount the participant would have earned had the participant been paid 
the predominant local wage as provided in subparagraph (1), the 
participant's pay must be supplemented at that time so that the 
participant's earnings are at least as much as the required local wage 
as provided in subparagraph (1).
    (3) Sponsors must ensure that appropriate assistance is provided to 
participants on an as-needed basis and that sponsors are available to 
participants (and host employers) to assist as facilitators, counselors, 
and information resources.
    (j) Monitoring. Sponsors must:
    (1) Maintain, at a minimum, monthly personal contacts with program 
participants. Such contact may be in-person, by telephone, or via 
exchanges of electronic mail (including a response from the participant) 
and must be properly documented. Sponsors must promptly and 
appropriately address issues affecting the participants' health, safety, 
and welfare identified through such contacts; and
    (2) Provide appropriate assistance to participants on an as-needed 
basis and be available to participants (and host employers) to assist as 
facilitators, counselors, and information resources.
    (k) Internal controls. Sponsors must utilize organization-specific 
standard operating procedures for training and supervising all 
organization employees. In addition, sponsors must establish internal 
controls to ensure that employers and/or foreign entities comply with 
the terms of agreements with such

[[Page 304]]

third parties involved in the administration of the sponsors' exchange 
visitor programs (i.e., affect the core programmatic functions).
    (l) Sponsors' use of third parties. (1) If sponsors utilize foreign 
third party entities to assist in fulfilling the core programmatic 
functions of screening and orientation that may be conducted outside the 
United States, they must first obtain written and executed agreements 
with such third parties. For the purpose of this section, U.S. entities 
operating outside the United States (or its possessions or territories) 
are considered foreign entities. At a minimum, these written agreements 
must:
    (i) Outline the obligations and full relationship between the 
sponsors and such third parties on all matters involving the 
administration of the sponsors' exchange visitor programs;
    (ii) Delineate the parties' respective responsibilities;
    (iii) Include annually updated price lists for Summer Work Travel 
Programs marketed by the foreign entities including itemizations of all 
costs charged to participants;
    (iv) Contain representations that such foreign entities will not 
engage in, permit the use of, or otherwise cooperate or contract with 
other third parties (including staffing or employment agencies or 
subcontractors) for the purpose of outsourcing any core programmatic 
functions of screening and orientation covered by the agreement; and
    (v) Confirm that the foreign entities agree not to pay or provide 
incentives to employers in the United States to accept program 
participants for job placements.
    (2) If sponsors utilize domestic third party entities to assist in 
fulfilling the core programmatic functions of orientation and promoting 
mutual understanding, they must first obtain written and executed 
agreements with such third parties. Domestic third parties engaged by 
sponsors may not engage or subcontract any other parties to assist in 
fulfilling these core programmatic functions. Only host employers may 
assist in providing orientation to program participants. At a minimum, 
these written agreements must:
    (i) Outline the obligations and full relationship between the 
sponsors and such third parties on all matters involving the 
administration of the sponsors' exchange visitor programs; and
    (ii) Delineate the parties' respective responsibilities.
    (m) Vetting third party foreign entities. Sponsors must undertake 
appropriate due diligence in the review of potential overseas agents or 
partners (i.e., foreign entities) who assist in fulfilling the sponsors' 
core programmatic functions that may be conducted outside the United 
States (i.e., screening and orientation) and must, at a minimum, 
annually review and maintain the following documentation for potential 
or existing foreign entities:
    (1) Proof of business licensing and/or registration to enable them 
to conduct business in the venue(s) where they operate;
    (2) Disclosure of any previous bankruptcy and of any pending legal 
actions or complaints against such an entity on file with local 
authorities;
    (3) Written references from three current business associates or 
partner organizations;
    (4) Summary of previous experience conducting J-1 Exchange Visitor 
Program activities;
    (5) Criminal background check reports (including original and 
English translations) for all owners and officers of the organizations;
    (6) A copy of the sponsor-approved advertising materials the foreign 
entities intend to use to market the sponsors' programs (including 
original and English translations); and
    (7) A copy of the foreign entity's notarized recent financial 
statements.
    (n) Vetting domestic third party entities. Annually, sponsors must 
undertake appropriate due diligence in the vetting of domestic third 
parties who assist in the promotion of mutual understanding and 
potential host employers.
    (1) Sponsors must ensure that third parties assisting in promoting 
mutual understanding (i.e., providing opportunities for participants to 
engage in cultural activities) are reputable individuals or 
organizations that are qualified to perform the activities agreed to and

[[Page 305]]

that they have sufficient liability insurance, if appropriate. All third 
parties that are registered business entities must be vetted according 
to the host employer procedures set forth in paragraphs (n)(2)(i) 
through (iii) of this section.
    (2) Sponsors must ensure that potential host employers are 
legitimate and reputable businesses by, at a minimum:
    (i) Making direct contact in person or by telephone with potential 
employers to verify the business owners' and/or managers' names, 
telephone numbers, email addresses, street addresses, and professional 
activities;
    (ii) Utilizing publicly available information, for example, but not 
limited to, state registries, advertisements, brochures, Web sites, and/
or feedback from prior participants to confirm that all job offers have 
been made by viable business entities;
    (iii) Obtaining potential host employers' Employer Identification 
Numbers and copies of their current business licenses; and
    (iv) Verifying the potential host employers' Worker's Compensation 
Insurance Policy or equivalent in each state where a participant will be 
placed or, if applicable, evidence of that state's exemption from 
requirement of such coverage.
    (3) At the beginning of each placement season, sponsors must 
confirm:
    (i) The number of job placements available with host employers;
    (ii) That host employers will not displace domestic U.S. workers at 
worksites where they will place program participants; and
    (iii) That host employers have not experienced layoffs in the past 
120 days and do not have workers on lockout or on strike.
    (o) Host employer cooperation. Sponsors may place participants only 
with host employers that agree to:
    (1) Make good faith efforts to provide participants the number of 
hours of paid employment per week as identified on their job offers and 
agreed to when the sponsors vetted the jobs;
    (2) Pay eligible participants for overtime worked in accordance with 
applicable State or Federal law;
    (3) Notify sponsors promptly when participants arrive at the work 
sites to begin their programs; when there are any changes or deviations 
in the job placements during the participants' programs; when 
participants are not meeting the requirements of their job placements; 
or when participants leave their positions ahead of their planned 
departures;
    (4) Contact sponsors immediately in the event of any emergency 
involving participants or any situations that impact their health, 
safety, or welfare; and
    (5) In those instances when the employer provides housing or 
transportation, agree to provide suitable and acceptable accommodations 
and/or reliable, affordable, and convenient transportation.
    (p) Reporting requirements. Sponsors must electronically comply with 
the following reporting requirements utilizing Department-provided 
templates:
    (1) Submit placement reports on January 31 and July 31 of each year, 
identifying all Summer Work Travel Program participants who began 
exchange programs during the preceding six-month period. The reports 
must include the exchange visitors' names, SEVIS Identification Numbers, 
countries of citizenship or legal permanent residence, names of host 
employers, and the length of time it took non-pre-placed participants to 
secure job placements. For participants who change jobs or have multiple 
jobs during their programs, the report must include all such placements;
    (2) Maintain listings of all active foreign agents or partners on 
the Foreign Entity Report by promptly informing the Department of any 
additions, deletions, or changes to foreign entity information by 
submitting new versions of their reports that reflect all current 
information. Reports must include the names, addresses, and contact 
information, including physical and mailing addresses, telephone 
numbers, and email addresses of all foreign entities that assist the 
sponsors in fulfilling the provision of core programmatic services. 
Sponsors must utilize only vetted foreign entities identified in the 
Foreign Entity Report to assist in fulfilling the sponsors' core 
programmatic functions outside the United States, and they must inform 
the Department

[[Page 306]]

promptly when and why they have cancelled contractual arrangements with 
foreign entities; and
    (3) Submit annual participant price lists to the Department on 
January 31 of each year in a format approved by the Department to 
provide itemized breakdowns of the costs that exchange visitors must pay 
to both foreign agents and sponsors to participate in the Summer Work 
Travel Program on a country-specific (and, if appropriate, foreign 
agent-specific) basis.

[77 FR 27609, May 11, 2012]



                  Subpart C_Status of Exchange Visitors



Sec.  62.40  Termination of program participation.

    (a) A sponsor shall terminate an exchange visitor's participation in 
its program when the exchange visitor:
    (1) Fails to pursue the activities for which he or she was admitted 
to the United States;
    (2) Is unable to continue, unless otherwise exempted pursuant to 
these regulations;
    (3) Violates the Exchange Visitor Program regulations and/or the 
sponsor's rules governing the program, if, in the sponsor's opinion, 
termination is warranted;
    (4) Willfully fails to maintain the insurance coverage required 
under Sec.  62.14 of these regulations; or
    (b) An exchange visitor's participation in the Exchange Visitor 
Program is subject to termination when he or she engages in unauthorized 
employment. Upon establishing such violation, the Department of State 
shall terminate the exchange visitor's participation in the Exchange 
Visitor Program.



Sec.  62.41  Change of category.

    (a) The Department of State may, in its discretion, permit an 
exchange visitor to change his or her category of exchange 
participation. Any change in category must be clearly consistent with 
and closely related to the participant's original exchange objective and 
necessary due to unusual or exceptional circumstances.
    (b) A request for change of category along with supporting 
justification must be submitted to the Department of State by the 
participant's sponsor. Upon Department of State approval the sponsor 
shall issue to the exchange visitor a duly executed Form DS-2019 
reflecting such change of category and provide a notification copy of 
such form to the Department of State.
    (c) Requests for change of category from research scholar to student 
will be evaluated recognizing the fact that, in some cases, research 
skills can be substantially enhanced by doctoral study.
    (d) An exchange visitor who applies for a change of category 
pursuant to these regulations is considered to be maintaining lawful 
status during the pendency of the application.
    (e) An exchange visitor who applies for a change of category and who 
subsequently receives notice from the Department of State that the 
request has been denied is considered to be maintaining lawful status 
for an additional period of thirty days from the day of such notice, 
during which time the exchange visitor is expected to depart the 
country, or for a period of thirty days from expiration of the exchange 
visitors' Form DS-2019, whichever is later.



Sec.  62.42  Transfer of program.

    (a) Program sponsors may, pursuant to the provisions set forth in 
this section, permit an exchange visitor to transfer from one designated 
program to another designated program.
    (b) The responsible officer of the program to which the exchange 
visitor is transferring:
    (1) Shall verify the exchange visitor's visa status and program 
eligibility;
    (2) Execute the Form DS-2019; and
    (3) Secure the written release of the current sponsor.
    (c) Upon return of the completed Form DS-2019, the responsible 
officer of the program to which the exchange visitor has transferred 
shall provide:
    (1) The exchange visitor his or her copy of the Form DS-2019; and
    (2) A notification copy of such form to the Department of State.

[[Page 307]]



Sec.  62.43  Extension of Program.

    (a) Responsible officers may extend an exchange visitor's 
participation in the Exchange Visitor Program up to the limit of the 
permissible period of participation authorized for his or her specific 
program category.
    (b) A responsible officer extending the program of an exchange 
visitor shall issue to the exchange visitor a duly executed Form DS-2019 
reflecting such extension and provide a notification copy of such form 
to the Department of State.
    (c) The responsible officer seeking a program extension on behalf of 
an exchange visitor in excess of that authorized for his or her specific 
category of participation shall:
    (1) Adequately document the reasons which justify such extension; 
and
    (2) Secure the prior written approval of the Department of State for 
such extension.
    (d) In addition to individual requests, the Department of State 
shall entertain requests for groups of similarly situated exchange 
visitors.



Sec.  62.45  Reinstatement to valid program status.

    (a) Definitions. For purpose of this section--
    You means the Responsible Officer or Alternate Responsible Officer;
    Exchange visitor means the person who enters the United States on a 
J visa in order to participate in an exchange program designated by the 
Secretary of State of the Department of State.
    Fails or failed maintain valid program status means the status of an 
exchange visitor who has completed, concluded, ceased, interrupted, 
graduated from, or otherwise terminated the exchange visitor's 
participation in the exchange program, or who remains in the United 
States beyond the end date on the exchange visitor's current Form DS-
2019.
    Unauthorized employment means any employment not properly authorized 
by you or by the Attorney General, i.e., the Immigration and 
Naturalization Service, prior to commencement of employment. 
Unauthorized employment does not include activities that are normally 
approvable, as described in paragraph (c)(3) of this section.
    We, our, or us means the office of Exchange Visitor Program Services 
of the Department of State.
    (b) Who is authorized to correct minor or technical infractions of 
the Exchange Visitor Program regulations? (1) If the exchange visitor 
committed a technical or minor infraction of the regulations, you are 
authorized to correct the exchange visitor's records with respect to 
such technical or minor infractions of the regulations in this part. 
Your correction of such an infraction(s) returns the exchange visitor to 
the status quo ante, i.e., it is as if the infraction never occurred.
    (2) You may only correct the exchange visitor's record with respect 
to a technical or minor infraction of the regulations in this part if 
the exchange visitor is pursuing or intending to pursue the exchange 
visitor's original program objective.
    (3) You may not correct the exchange visitor's records with respect 
to a technical or minor infraction of the regulations in this part if 
the exchange visitor has willfully failed to maintain insurance coverage 
during the period for which the record is being corrected; if the 
exchange visitor has engaged in unauthorized employment during that 
period, as defined in paragraph (a) of this section, of if the exchange 
visitor was involuntarily suspended or terminated from his or her 
program during the period.
    (4) If the exchange visitor has failed to maintain valid program 
status because of a substantive violation of the regulations in this 
part, you must apply to us for reinstatement.
    (c) What violations or infractions of the regulations in this part 
do we consider to be technical or minor ones, and how do you correct the 
record? We consider the following to be examples of technical or minor 
infractions which you are authorized to correct:
    (1) Failure to extend the Form DS-2019 in a timely manner (i.e., 
prior to the end date on the current Form DS-2019) due to inadvertence 
or neglect on your part or on the part of the exchange visitor.
    (2) Failure on the part of the exchange visitor to conclude a 
transfer of program prior to the end date on the

[[Page 308]]

current Form DS-2019 due to administrative delay or oversight, 
inadvertence or neglect on your part or on the part of the exchange 
visitor;
    (3) Failure to receive your prior approval and/or an amended Form 
DS-2019 before accepting an honorarium or other type of payment for 
engaging in a normally approvable and appropriate activity. Example, a 
lecture, consultation, or other activity appropriate to the category 
which is provided by a professor, research scholar, short-term scholar 
or specialist without prior approval or an amended Form DS-2019 issued 
prior to the occurrence of the activity.
    (4) You correct the record status quo ante by issuing a Form DS-2019 
or by writing an authorization letter to reflect the continuity in the 
program or the permission to engage in the activity that a timely issued 
document would have reflected.
    (i) Forms DS-2019 should be:
    (A) Issued to show continued authorized stay without interruption;
    (B) Marked in the ``purpose'' box with the appropriate purpose 
(i.e., extension, transfer, etc.) and with the additional notation of 
``correct the record'' typed in;
    (C) Dated as of the date the Form was actually executed; and,
    (D) Submitted to the Department of State in the same way as any 
other notification.
    (ii) Letters or other authorization documents should be:
    (A) Issued according to the regulations in this part appropriate to 
the category and the activity;
    (B) Marked or annotated to show ``correct the record,''
    (C) Dated as of the date the letter or document was actually 
executed; and,
    (D) Attached to the exchange visitor's Form DS-2019 and/or retained 
in the sponsor's file as required by the regulations in this part for 
that particular type of letter or document.
    (d) How do you determine if an infraction, other than those examples 
listed above is a technical or minor infraction? It is impossible to 
list every example of a technical or minor infraction. To guide you in 
making a determination, you are to examine the following criteria:
    (1) Regardless of the reason, has the exchange visitor failed to 
maintain valid program status for more than 120 calendar days after the 
end date on the current Form DS-2019?
    (2) Has the exchange visitor, by his or her actions, failed to 
maintain, at all relevant times, his or her original program objective?
    (3) Has the exchange visitor willfully failed to comply with our 
insurance coverage requirements (Sec.  62.14)?
    (4) Has the exchange visitor engaged in unauthorized employment, as 
that term is defined in paragraph (a) of this section?
    (5) Has the exchange visitor category been involuntarily suspended 
or terminated from his or her program?
    (6) Has an exchange visitor in the student category failed to 
maintain a full course of study (as defined in Sec.  62.2) without prior 
consultation with you and the exchange visitor's academic advisor?
    (7) Has the exchange visitor failed to pay the fee mandated by 
Public Law 104-208 (the ``CIPRIS'' fee)?
    (8) If the answer to any of the above questions is ``yes,'' then the 
infraction is not a technical or minor one and you are not authorized to 
reinstate the exchange visitor to valid program status.
    (e) Which violations or infractions do we consider to be substantive 
ones requiring you to apply to us for reinstatement? The following are 
substantive violations or infractions of the regulations in this part by 
the exchange visitor which require you to apply to us for reinstatement 
to valid program status:
    (1) Failure to maintain valid program status for more than 120 days 
after the end date on the current Form DS-2019;
    (2) If a student, failure to maintain a full course of study (as 
defined in Sec.  62.2) without prior consultation with you and the 
exchange visitor's academic advisor.
    (f) Which, if any, violations of the regulations in this part or 
other conditions preclude reinstatement and will result in a denial if 
application is made? We will not consider requests for reinstatement 
(nor should you) when an exchange visitor has:
    (1) Knowingly or willfully failed to obtain or maintain the required 
health

[[Page 309]]

insurance (Sec.  62.14) at all times while in the United States;
    (2) Engaged in unauthorized employment, as that term is defined in 
paragraph (a) of this section;
    (3) Been suspended or terminated from the most recent exchange 
visitor program;
    (4) Failed to maintain valid program status for more than 270 
calendar days;
    (5) Received a favorable recommendation from the Department of State 
on an application for waiver of section 212(e) of the Immigration and 
Nationality Act [8 U.S.C. 1182(e)]; or,
    (6) Failed to pay the fee mandated by Public Law 104-208 (the 
``CIPRIS'' fee.)
    (g) What if you cannot determine which category (technical, 
substantive, or non-reinstatable) the violation or infraction falls 
within? If you cannot determine which category the violation or 
condition falls within, then you must, on behalf of the exchange 
visitor, apply to us for reinstatement.
    (h) If you determine that the exchange visitor's violation of the 
regulations in this part is a substantive one, how do you apply for a 
reinstatement to valid program status? (1) If you determine that the 
violation of the regulations in this part is a substantive one, and that 
the exchange visitor has failed to maintain valid program status for 120 
days or less, you must apply to us for reinstatement of the exchange 
visitor to valid program status. Your application must include:
    (i) All copies of the exchange visitor's Forms DS-2019 issued to 
date;
    (ii) A new, completed Form DS-2019, showing in Block 3 the date of 
the period for which reinstatement is sought, i.e., the new program end 
date;
    (iii) A copy of the receipt showing that the Public Law 104-208 fee 
has been paid; and,
    (iv) A written statement (and documentary information supporting 
such statement):
    (A) Declaring that the exchange visitor is pursuing or was at all 
times intending to pursue the original exchange visitor program activity 
for which the exchange visitor was admitted to the United States; and,
    (B) Showing that the exchange visitor failed to maintain valid 
program status due to circumstances beyond the control of the exchange 
visitor, or from administrative delay or oversight, inadvertence, or 
excusable neglect on your part or the exchange visitor's part; or,
    (C) Showing that it would be an unusual hardship to the exchange 
visitor if we do not grant the reinstatement to valid program status.
    (2) If you determine that the violation of the regulations is a 
substantive one, and that the exchange visitor has failed to maintain 
valid program status for more than 120 days, then you must apply to us 
for reinstatement of the exchange visitor to valid program status. Your 
application must include:
    (i) Copies of all the exchange visitor's Forms DS-2019 issued to 
date;
    (ii) A new, completed Form DS-2019, showing in Block 3 the date for 
which reinstatement is sought, i.e., the new program end date;
    (iii) A copy of the receipt showing that the Pub. L. 104-208 fee has 
been paid; and,
    (iv) A written statement (together with documentary evidence 
supporting such statement):
    (A) Declaring that the exchange visitor is pursuing or was at all 
times intending to pursue the exchange visitor program activity for 
which the exchange visitor was admitted to the United States; and,
    (B) Showing that the exchange visitor failed to maintain valid 
program status due to circumstances beyond the control of the exchange 
visitor, or from administrative delay or oversight, inadvertence, or 
excusable neglect on your part or the exchange visitor's part; and,
    (C) Showing that it would be an unusual hardship to the exchange 
visitor if we do not grant the reinstatement to valid program status.
    (i) How will we notify you of our decision on your request for 
reinstatement? (1) If we deny your request for reinstatement, we will 
notify you by letter.
    (2) If we approve your request for reinstatement, we will notify 
you:
    (i) By stamping Box 6 on the new Form DS-2019 to show that 
reinstatement was granted, effective as of the

[[Page 310]]

date on which the application for reinstatement was received by the 
Exchange Visitor Program Services office; and
    (ii) By returning the new Form DS-2019 for the exchange visitor.
    (j) How long will it take us to act on your request for 
reinstatement? We will act on your request for reinstatement within 
forty-five days from the date on which we receive the request and 
supporting documentation.
    (k) Are you required to notify us each time that you correct a 
record? No special notification is necessary. Submission of the 
notification copy of Form DS-2019 to the Department of State serves as 
notice that a record has been corrected. Following the regulations in 
this part in issuing a letter or document serves as correction in the 
sponsor's file for those items not normally sent to the Department of 
State under existing notification procedures.

[64 FR 44126, Aug. 13, 1999. Redesignated at 64 FR 54539, Oct. 7, 1999]



                           Subpart D_Sanctions



Sec.  62.50  Sanctions.

    (a) Reasons for sanctions. The Department of State (Department) may 
impose sanctions against a sponsor upon a finding by its Office of 
Exchange Coordination and Designation (Office) that the sponsor has:
    (1) Violated one or more provisions of this Part;
    (2) Evidenced a pattern of failure to comply with one or more 
provisions of this Part;
    (3) Committed an act of omission or commission, which has or could 
have the effect of endangering the health, safety, or welfare of an 
exchange visitor; or
    (4) Otherwise conducted its program in such a way as to undermine 
the foreign policy objectives of the United States, compromise the 
national security interests of the United States, or bring the 
Department or the Exchange Visitor Program into notoriety or disrepute.
    (b) Lesser sanctions. (1) In order to ensure full compliance with 
the regulations in this Part, the Department, in its discretion and 
depending on the nature and seriousness of the violation, may impose any 
or all of the following sanctions (``lesser sanctions'') on a sponsor 
upon a finding that the sponsor engaged in any of the acts or omissions 
set forth in paragraph (a) of this section:
    (i) A written reprimand to the sponsor, with a warning that repeated 
or persistent violations of the regulations in this part may result in 
suspension or revocation of the sponsor's Exchange Visitor Program 
designation, or other sanctions as set forth herein;
    (ii) A declaration placing the exchange visitor sponsor's program on 
probation, for a period of time determined by the Department in its 
discretion, signifying a pattern of violation of regulations such that 
further violations could lead to suspension or revocation of the 
sponsor's Exchange Visitor Program designation, or other sanctions as 
set forth herein;
    (iii) A corrective action plan designed to cure the sponsor's 
violations; or
    (iv) Up to a 15 percent (15%) reduction in the authorized number of 
exchange visitors in the sponsor's program or in the geographic area of 
its recruitment or activity. If the sponsor continues to violate the 
regulations in this Part, the Department may impose subsequent 
additional reductions, in ten-percent (10%) increments, in the 
authorized number of exchange visitors in the sponsor's program or in 
the geographic area of its recruitment or activity.
    (2) Within ten (10) days after service of the written notice to the 
sponsor imposing any of the sanctions set forth in paragraph (b)(1) of 
this section, the sponsor may submit to the Office a statement in 
opposition to or mitigation of the sanction. Such statement may not 
exceed 20 pages in length, double-spaced and, if appropriate, may 
include additional documentary material. Sponsors shall include with all 
documentary material an index of the documents and a summary of the 
relevance of each document presented. Upon review and consideration of 
such submission, the Office may, in its discretion, modify, withdraw, or 
confirm such sanction. All materials the sponsor submits will become a 
part of the sponsor's file with the Office.

[[Page 311]]

    (3) The decision of the Office is the final Department decision with 
regard to lesser sanctions in paragraphs (b)(1)(i) through (iv) of this 
section.
    (c) Suspension. (1) Upon a finding that a sponsor has committed a 
serious act of omission or commission which has or could have the effect 
of endangering the health, safety, or welfare of an exchange visitor, or 
of damaging the national security interests of the United States, the 
Office may serve the sponsor with written notice of its decision to 
suspend the designation of the sponsor's program for a period not to 
exceed one hundred twenty (120) days. Such notice must specify the 
grounds for the sanction and the effective date thereof, advise the 
sponsor of its right to oppose the suspension, and identify the 
procedures for submitting a statement of opposition thereto. Suspension 
under this paragraph need not be preceded by the imposition of any other 
sanction or notice.
    (2)(i) Within five (5) days after service of such notice, the 
sponsor may submit to the Principal Deputy Assistant Secretary for 
Educational and Cultural Affairs (Principal Deputy Assistant Secretary, 
or PDAS) a statement in opposition to the Office's decision. Such 
statement may not exceed 20 pages in length, double-spaced and, if 
appropriate, may include additional documentary material. A sponsor 
shall include with all documentary material an index of the documents 
and a summary of the relevance of each document presented. The 
submission of a statement in opposition to the Office's decision will 
not serve to stay the effective date of the suspension.
    (ii) Within five (5) days after receipt of, and upon consideration 
of, such opposition, the Principal Deputy Assistant Secretary shall 
confirm, modify, or withdraw the suspension by serving the sponsor with 
a written decision. Such decision must specify the grounds therefore, 
and advise the sponsor of the procedures for requesting review of the 
decision.
    (iii) All materials the sponsor submits will become a part of the 
sponsor's file with the Office.
    (3) The procedures for review of the decision of the Principal 
Deputy Assistant Secretary are set forth in paragraphs (d)(3) and (4), 
(g), and (h) of this section, except that the submission of a request 
for review will not serve to stay the suspension.
    (d) Revocation of designation. (1) Upon a finding of any act or 
omission set forth at paragraph (a) of this section, the Office may 
serve a sponsor with not less than thirty (30) days' written notice of 
its intent to revoke the sponsor's Exchange Visitor Program designation. 
Such notice must specify the grounds for the proposed sanction and its 
effective date, advise the sponsor of its right to oppose the proposed 
sanction, and identify the procedures for submitting a statement of 
opposition thereto. Revocation of designation under this paragraph need 
not be preceded by the imposition of any other sanction or notice.
    (2)(i) Within ten (10) days after service of such written notice of 
intent to revoke designation, the sponsor may submit to the Principal 
Deputy Assistant Secretary a statement in opposition to or mitigation of 
the proposed sanction, which may include a request for a meeting.
    (ii) The submission of such statement will serve to stay the 
effective date of the proposed sanction pending the decision of the 
Principal Deputy Assistant Secretary.
    (iii) The Principal Deputy Assistant Secretary shall provide a copy 
of the statement in opposition to or mitigation of the proposed sanction 
to the Office. The Office shall submit a statement in response, and 
shall provide the sponsor with a copy thereof.
    (iv) A statement in opposition to or mitigation of the proposed 
sanction, or statement in response thereto, may not exceed 25 pages in 
length, double-spaced and, if appropriate, may include additional 
documentary material. Any additional documentary material may include an 
index of the documents and a summary of the relevance of each document 
presented.
    (v) Upon consideration of such statements, the Principal Deputy 
Assistant Secretary shall modify, withdraw, or confirm the proposed 
sanction by serving the sponsor with a written decision. Such decision 
shall specify the grounds therefor, identify its effective date, advise 
the sponsor of its right to

[[Page 312]]

request a review, and identify the procedures for requesting such 
review.
    (vi) All materials the sponsor submits will become a part of the 
sponsor's file with the Office.
    (3) Within ten (10) days after service of such written notice of the 
decision of the Principal Deputy Assistant Secretary, the sponsor may 
submit a request for review with the Principal Deputy Assistant 
Secretary. The submission of such request for review will serve to stay 
the effective date of the decision pending the outcome of the review.
    (4) Within ten (10) days after receipt of such request for review, 
the Department shall designate a panel of three Review Officers pursuant 
to paragraph (g) of this section, and the Principal Deputy Assistant 
Secretary shall forward to each panel member all notices, statements, 
and decisions submitted or provided pursuant to the preceding paragraphs 
of paragraph (d) of this section. Thereafter, the review will be 
conducted pursuant to paragraphs (g) and (h) of this section.
    (e) Denial of application for redesignation. Upon a finding of any 
act or omission set forth at paragraph (a) of this section, the Office 
may serve a sponsor with not less than thirty (30) days' written notice 
of its intent to deny the sponsor's application for redesignation. Such 
notice must specify the grounds for the proposed sanction and its 
effective date, advise the sponsor of its right to oppose the proposed 
sanction, and identify the procedures for submitting a statement of 
opposition thereto. Denial of redesignation under this section need not 
be preceded by the imposition of any other sanction or notice. The 
procedures for opposing a proposed denial of redesignation are set forth 
in paragraphs (d)(2), (d)(3), (d)(4), (g), and (h) of this section.
    (f) Responsible officers. The Office may direct a sponsor to suspend 
or revoke the appointment of a responsible officer or alternate 
responsible officer for any of the reasons set forth in paragraph (a) of 
this section. The procedures for suspending or revoking a responsible 
officer or alternate responsible officer are set forth at paragraphs 
(d), (g), and (h) of this section.
    (g) Review officers. A panel of three Review Officers shall hear a 
sponsor's request for review pursuant to paragraphs (c), (d), (e), and 
(f) of this section. The Under Secretary of State for Public Diplomacy 
and Public Affairs shall designate one senior official from an office 
reporting to him/her, other than from the Bureau of Educational and 
Cultural Affairs, as a member of the Panel. The Assistant Secretary of 
State for Consular Affairs and the Legal Adviser shall each designate 
one senior official from their bureaus as members of the Panel.
    (h) Review. The Review Officers may affirm, modify, or reverse the 
sanction imposed by the Principal Deputy Assistant Secretary. The 
following procedures shall apply to the review:
    (1) Upon its designation, the panel of Review Officers shall 
promptly notify the Principal Deputy Assistant Secretary and the sponsor 
in writing of the identity of the Review Officers and the address to 
which all communications with the Review Officers shall be directed.
    (2) Within fifteen (15) days after service of such notice, the 
sponsor may submit to the Review Officers four (4) copies of a statement 
identifying the grounds on which the sponsor asserts that the decision 
of the Principal Deputy Assistant Secretary should be reversed or 
modified. Any such statement may not exceed 25 pages in length, double-
spaced; and any attachments thereto shall not exceed 50 pages. A sponsor 
shall include with all attachments an index of the documents and a 
summary of the relevance of each document presented. The Review Officers 
shall transmit one (1) copy of any such statement to the Principal 
Deputy Assistant Secretary, who shall, within fifteen (15) days after 
receipt of such statement, submit four (4) copies of a statement in 
response. Any such statement may not exceed 25 pages in length, double-
spaced; and any attachments thereto shall not exceed 50 pages. The 
Principal Deputy Assistant Secretary shall include with all attachments 
an index of the documents and a summary of the relevance of each 
document presented. The Review Officers shall transmit one (1) copy of 
any such statement to the sponsor. No other

[[Page 313]]

submissions may be made unless specifically authorized by the Review 
Officers.
    (3) If the Review Officers determine, in their sole discretion, that 
a meeting for the purpose of clarification of the written submissions 
should be held, they shall schedule a meeting to be held within twenty 
(20) days after the receipt of the last written submission. The meeting 
will be limited to no more than two (2) hours. The purpose of the 
meeting will be limited to the clarification of the written submissions. 
No transcript may be taken and no evidence, either through documents or 
by witnesses, will be received. The sponsor and the representative of 
the Principal Deputy Assistant Secretary may attend the meeting on their 
own behalf and may be accompanied by counsel.
    (4) Following the conclusion of the meeting, or the submission of 
the last written submission if no meeting is held, the Review Officers 
shall promptly review the submissions of the sponsor and the Principal 
Deputy Assistant Secretary, and shall issue a signed written decision 
within thirty (30) days, stating the basis for their decision. A copy of 
the decision will be delivered to the Principal Deputy Assistant 
Secretary and the sponsor.
    (5) If the Review Officers decide to affirm or modify the sanction, 
a copy of their decision shall also be delivered to the Department of 
Homeland Security and to the Bureau of Consular Affairs of the 
Department of State. The Office, at its discretion, may further 
distribute the decision.
    (6) Unless otherwise indicated, the sanction, if affirmed or 
modified, is effective as of the date of the Review Officers' written 
decision, except in the case of suspension of program designation, which 
is effective as of the date specified pursuant to paragraph (c) of this 
section.
    (i) Effect of suspension, revocation, or denial of redesignation. A 
sponsor against which an order of suspension, revocation, or denial of 
redesignation has become effective may not thereafter issue any 
Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-
2019) or advertise, recruit for, or otherwise promote its program. Under 
no circumstances shall the sponsor facilitate the entry of an exchange 
visitor into the United States. An order of suspension, revocation, or 
denial of redesignation will not in any way diminish or restrict the 
sponsor's legal or financial responsibilities to existing program 
applicants or participants.
    (j) Miscellaneous--(1) Computation of time. In computing any period 
of time prescribed or allowed by these regulations, the day of the act 
or event from which the designated period of time begins to run is not 
included. The last day of the period so computed is included unless it 
is a Saturday, a Sunday, or a Federal legal holiday, in which event the 
period runs until the end of the next day which is not one of the 
aforementioned days. When the period of time prescribed or allowed is 
fewer than eleven (11) days, intermediate Saturdays, Sundays, or Federal 
legal holidays are excluded in the computation.
    (2) Service of notice to sponsor. Service of notice to a sponsor 
pursuant to this section may be accomplished through written notice by 
mail, delivery, or facsimile, upon the president, chief executive 
officer, managing director, General Counsel, responsible officer, or 
alternate responsible officer of the sponsor.

[72 FR 72247, Dec. 20, 2007]



            Subpart E_Termination and Revocation of Programs

    Source: 72 FR 72249, Dec. 20, 2007, unless otherwise noted.



Sec.  62.60  Termination of designation

    Designation will be terminated upon the occurrence of any of the 
circumstances set forth in this section.
    (a) Voluntary termination. A sponsor notifies the Department of its 
intent to terminate its designation voluntarily and withdraws its 
program in SEVIS via submission of a ``cancel program'' request. The 
sponsor's designation shall terminate upon submission of such 
notification. Such sponsor may apply for a new program designation.
    (b) Inactivity. A sponsor fails to comply with the minimum program 
size or duration requirements, as specified in

[[Page 314]]

Sec.  62.8 (a) and (b), in any 12-month period. Such sponsor may apply 
for a new program designation.
    (c) Failure to file annual reports. A sponsor fails to file annual 
reports for two (2) consecutive years. Such sponsor is eligible to apply 
for a new program designation.
    (d) Failure to file an annual management audit. A sponsor fails to 
file an annual management audit, if such audits are required in the 
relevant program category. Such sponsor is eligible to apply for a new 
program designation upon the filing of the past due management audit.
    (e) Change in ownership or control. An exchange visitor program 
designation is not assignable or transferable. A major change in 
ownership or control automatically terminates the designation. However, 
the successor sponsor may apply for designation of the new entity, and 
it may continue to administer the exchange visitor activities of the 
previously-designated program while the application for designation is 
pending before the Department of State:
    (1) With respect to a for-profit corporation, a major change in 
ownership or control is deemed to have occurred when one third (33.33%) 
or more of its stock is sold or otherwise transferred within a 12-month 
period;
    (2) With respect to a not-for-profit corporation, a major change of 
control is deemed to have occurred when 51 percent (51%) or more of the 
board of trustees or other like body, vested with its management, is 
replaced within a 12-month period.
    (f) Non-compliance with other requirements. A sponsor fails to 
remain in compliance with Federal, State, local, or professional 
requirements necessary to carry out the activity for which it is 
designated, including loss of accreditation, or licensure.
    (g) Failure to apply for redesignation. A sponsor fails to apply for 
redesignation, pursuant to the terms and conditions of Sec.  62.7, prior 
to the conclusion of its current designation period. If so terminated, 
the former sponsor may apply for a new program designation, but the 
program activity will be suspended during the pendency of the 
application.



Sec.  62.61  Revocation.

    The Department may terminate a sponsor's program designation by 
revocation for cause as specified in Sec.  62.50. Such sponsor may not 
apply for a new designation for five (5) years following the effective 
date of the revocation.



Sec.  62.62  Termination of, or denial of redesignation for, 
a class of designated programs.

    The Department may, in its sole discretion, determine that a class 
of designated programs compromises the national security of the United 
States or no longer furthers the public diplomacy mission of the 
Department of State. Upon such a determination, the Office shall:
    (a) Give all sponsors of such class of designated programs not less 
than thirty (30) days' written notice of the revocation of Exchange 
Visitor Program designations for such programs, specifying therein the 
grounds and effective date for such revocations; or
    (b) Give any sponsor of such class of designated programs not less 
than thirty (30) days' written notice of its denial of the sponsor's 
application for redesignation, specifying therein the grounds for such 
denial and effective date of such denial. Revocation of designation or 
denial of redesignation on the above-specified grounds for a class of 
designated programs is the final decision of the Department.



Sec.  62.63  Responsibilities of the sponsor upon termination or revocation.

    Upon termination or revocation of its program designation, a sponsor 
must:
    (a) Fulfill its responsibilities to all exchange visitors who are in 
the United States at the time of the termination or revocation; and
    (b) Notify exchange visitors who have not entered the United States 
that the program has been terminated or revoked, unless a transfer to 
another designated program can be obtained.

Subparts F-G [Reserved]

[[Page 315]]



                Sec. Appendixes A-D to Part 62 [Reserved]



            Sec. Appendix E to Part 62--Unskilled Occupations

    For purposes of 22 CFR 514.22(c)(1), the following are considered to 
be ``unskilled occupations'':

(1) Assemblers
(2) Attendants, Parking Lot
(3) Attendants (Service Workers such as Personal Services Attendants, 
          Amusement and Recreation Service Attendants)
(4) Automobile Service Station Attendants
(5) Bartenders
(6) Bookkeepers
(7) Caretakers
(8) Cashiers
(9) Charworkers and Cleaners
(10) Chauffeurs and Taxicab Drivers
(11) Cleaners, Hotel and Motel
(12) Clerks, General
(13) Clerks, Hotel
(14) Clerks and Checkers, Grocery Stores
(15) Clerk Typist
(16) Cooks, Short Order
(17) Counter and Fountain Workers
(18) Dining Room Attendants
(19) Electric Truck Operators
(20) Elevator Operators
(21) Floorworkers
(22) Groundskeepers
(23) Guards
(24) Helpers, any industry
(25) Hotel Cleaners
(26) Household Domestic Service Workers
(27) Housekeepers
(28) Janitors
(29) Key Punch Operators
(30) Kitchen Workers
(31) Laborers, Common
(32) Laborers, Farm
(33) Laborers, Mine
(34) Loopers and Toppers
(35) Material Handlers
(36) Nurses' Aides and Orderlies
(37) Packers, Markers, Bottlers and Related
(38) Porters
(39) Receptionists
(40) Sailors and Deck Hands
(41) Sales Clerks, General
(42) Sewing Machine Operators and Handstitchers
(43) Stock Room and Warehouse Workers
(44) Streetcar and Bus Conductors
(45) Telephone Operators
(46) Truck Drivers and Tractor Drivers
(47) Typist, Lesser Skilled
(48) Ushers, Recreation and Amusement
(49) Yard Workers



  Sec. Appendix F to Part 62--Information To Be Collected on Secondary 
                 School Student Host Family Applications

    Basic Family Information:
    a. Host Family Member--Full name and relationship (children and 
adults) either living full-time or part-time in the home or who 
frequently stay at the home)
    b. Date of Birth (DOB) of all family members
    c. Street Address
    d. Contact information (telephone; e-mail address) of host parents
    e. Employment--employer name, job title, and point of contact for 
each working resident of the home
    f. Is the residence the site of a functioning business? (e.g., 
daycare, farm)
    g. Description of each household member (e.g., level of education, 
profession, interests, community involvement, and relevant behavioral or 
other characteristics of such household members that could affect the 
successful integration of the exchange visitor into the household)
    h. Has any member of your household ever been charged with any 
crime?
    Household Pets:
    a. Number of Pets
    b. Type of Pets
    Financial Resources:
    a. Average Annual Income Range: Less than $25,000; $25,000-$35,000; 
$35,000-$45,000; $45,000-$55,000; $55,000-$65,000; $65,000-$75,000; and 
$75,000 and above. Note: The form must include a statement stating that: 
``The income data collected will be used solely for the purposes of 
ensuring that the basic needs of the exchange students can be met, 
including three quality meals and transportation to and from school 
activities''
    b. Describe if anyone residing in the home receives any kind of 
public assistance (financial needs-based government subsidies for food 
or housing)
    c. Identify those personal expenses expected to be covered by the 
student
    Diet:
    a. Does anyone in the family follow any dietary restrictions? (Y/N)
    If yes, describe:
    b. Do you expect the student to follow any dietary restrictions? (Y/
N)
    If yes, describe:
    c. Would you feel comfortable hosting a student who follows a 
particular dietary restriction (ex. Vegetarian, Vegan, etc.)? (Y/N)
    d. Would the family provide three (3) square meals daily?
    High School Information:
    a. Name and address of school (private or public school)
    b. Name, address, e-mail and telephone number of school official

[[Page 316]]

    c. Approximate size of the school student body
    d. Approximate distance between the school and your home
    e. Approximate start date of the school year
    f. How will the exchange student get to the school (e.g. bus, 
carpool, walk)?
    g. Would the family provide special transportation for 
extracurricular activities after school or in the evenings, if required?
    h. Which, if any, of your family's children, presently attend the 
school in which the exchange visitor is enrolled?
    If applicable list sports/clubs/activities, if any, your child(ren) 
participate(s) in at the school
    i. Does any member of your household work for the high school in a 
coaching/teaching/or administrative capacity?
    j. Has any member of your household had contact with a coach 
regarding the hosting of an exchange student with particular athletic 
ability?
    If yes, please describe the contact and sport.
    Community Information:
    a. In what type of community do you live (e.g.: Urban, Suburban, 
Rural, Farm)
    b. Population of community
    c. Nearest Major City (Distance and population)
    d. Nearest Airport (Distance)
    e. City or town website
    f. Briefly describe your neighborhood and community
    g. What points of interest are near your area (parks, museums, 
historical sites)?
    h. Areas in or near neighborhood to be avoided?
    Home Description:
    a. Describe your type of home (e.g., single family home, 
condominium, duplex, apartment, mobile home) and include photographs of 
the host family home's exterior and grounds, kitchen, student's bedroom, 
student's bathroom, and family and living areas.
    b. Describe Primary Rooms and Bedrooms
    c. Number of Bathrooms
    d. Will the exchange student share a bedroom? (Y/N)
    If yes, with which household resident?
    e. Describe the student's bedroom
    f. Describe amenities to which the student has access
    g. Utilities
    Family Activities:
    a. Language spoken in home
    b. Please describe activities and/or sports each family member 
participates in: (e.g., camping, hiking, dance, crafts, debate, drama, 
art, music, reading, soccer, baseball, horseback riding)
    c. Describe your expectations regarding the responsibilities and 
behavior of the student while in your home (e.g., homework, household 
chores, curfew (school night and weekend), access to refrigerator and 
food, drinking of alcoholic beverages, driving, smoking, computer/
Internet/E-Mail)
    Would you be willing voluntarily to inform the exchange visitor in 
advance of any religious affiliations of household members? (Y/N)
    Would any member of the household have difficulty hosting a student 
whose religious beliefs were different from their own? (Y/N) Note: A 
host family may want the exchange visitor to attend one or more 
religious services or programs with the family. The exchange visitor 
cannot be required to do so, but may decide to experience this facet of 
U.S. culture at his or her discretion.
    How did you learn about being a host family?
    References:

[75 FR 65984, Oct. 27, 2010]



PART 63_PAYMENTS TO AND ON BEHALF OF PARTICIPANTS IN THE INTERNATIONAL 
EDUCATIONAL AND CULTURAL EXCHANGE PROGRAM--Table of Contents



Sec.
63.1 Definitions.
63.2 Applicability of this part under special circumstances.
63.3 Grants to foreign participants to observe, consult, demonstrate 
          special skills, or engage in specialized programs.
63.4 Grants to foreign participants to lecture, teach, and engage in 
          research.
63.5 Grants to foreign participants to study.
63.6 Assignment of United States Government employees to consult, 
          lecture, teach, engage in research, or demonstrate special 
          skills.
63.7 Grants to United States participants to consult, lecture, teach, 
          engage in research, demonstrate special skills, or engage in 
          specialized programs.
63.8 Grants to United States participants to study.
63.9 General provisions.

    Authority: Sec. 4, 63 Stat. 111, as amended, 75 Stat. 527-538; 22 
U.S.C. 2658, 2451 note; Reorganization Plan No. 2 of 1977; Executive 
Order 12048 of March 27, 1978.

    Source: 44 FR 18019, Mar. 26, 1979, unless otherwise noted. 
Redesignated at 64 FR 54540, Oct. 7, 1999.

    Editorial Note: Nomenclature changes to part 63 appear at 64 FR 
54540, Oct. 7, 1999.

[[Page 317]]



Sec.  63.1  Definitions.

    For the purpose of this part the following terms shall have the 
meaning here given:
    (a) International educational and cultural exchange program of the 
Department of State. A program to promote mutual understanding between 
the people of the United States and those of other countries and to 
strengthen cooperative international relations in connection with which 
payments are made direct by the Department of State, as well as similar 
programs carried out by other Government departments and agencies and by 
private organizations with funds appropriated or allocated to the 
Department of State when the regulations in this part apply under the 
provisions of Sec.  515.2 (a) and (b).
    (b) Program and Agency. For convenience, the international 
educational and cultural exchange program of the Department of State 
will hereinafter be referred to as the ``program,'' and the Department 
of State will hereinafter be referred to as the ``Agency.''
    (c) Participant. Any person taking part in the program for purposes 
listed in Sec.  515.3 through Sec.  515.8 including both citizens of the 
United States and citizens and nationals of the other countries with 
which the program is conducted.
    (d) Transportation. All necessary travel on railways, airplanes, 
steamships, buses, streetcars, taxicabs, and other usual means of 
conveyance.
    (e) Excess baggage. Baggage in excess of the weight or size carried 
free by public carriers on first class service.
    (f) Per diem allowance. Per diem in lieu of subsistence includes all 
charges for meals and lodging; fees and tips; telegrams and telephone 
calls reserving hotel accommodations; laundry, cleaning and pressing of 
clothing; transportation between places of lodging or business and 
places where meals are taken.



Sec.  63.2  Applicability of this part under special circumstances.

    (a) Funds administered by another department or agency. The 
regulations in this part shall apply to payments made to or on behalf of 
participants from funds appropriated or allocated to the Agency and 
transferred by the Agency to some other department, agency or 
independent establishment of the Government unless the terms of the 
transfer provide that such regulations shall not apply in whole or in 
part or with such modification as may be prescribed in each case to meet 
the exigencies of the particular situation.
    (b) Funds administered by private organizations. The regulations in 
this part shall apply to payments made to or on behalf of participants 
from funds appropriated or allocated to the Agency and administered by 
an institution, facility, or organization in accordance with the terms 
or a contract or grant made by the Agency with or to such private 
organizations, unless the terms of such contract or grant provide that 
the regulations in this part are not to be considered applicable or that 
they are to be applied with such modifications as may be prescribed in 
each case to meet the exigencies of the particular situation.
    (c) Appropriations or allocations. The regulations in this part 
shall apply to payments made by the Agency with respect to 
appropriations or allocations which are or may hereafter be made 
available to the Agency for the program so far as the regulations in 
this part are not inconsistent therewith.



Sec.  63.3  Grants to foreign participants to observe, consult, 
demonstrate special skills, or engage in specialized programs.

    A citizen or national of a foreign country who has been awarded a 
grant to observe, consult with colleagues, demonstrate special skills, 
or engage in specialized programs, may be entitled to any or all of the 
following benefits when authorized by the Agency.
    (a) Transportation. Accommodations, as authorized, on steamship, 
airplane, railway, or other means of conveyance. For travel in a 
privately owned vehicle, reimbursement will be in accordance with the 
provisions of the Federal Travel Regulations.
    (b) Excess baggage. Excess baggage as deemed necessary by the 
Agency.

[[Page 318]]

    (c) Per diem allowance. Per diem allowances in lieu of subsistence 
expenses while participating in the program in the United States, its 
territories or possessions and while traveling within or between the 
United States, its territories or possessions shall be established by 
the Secretary of State from time to time, within limitations prescribed 
by law. The participant shall be considered as remaining in a travel 
status during the entire period covered by his or her grant unless 
otherwise designated.
    (d) Allowance. A special allowance in lieu of per diem while 
traveling to and from the United States may be established by the 
Secretary of State, within limitations prescribed by law.
    (e) Tuition and related expenses. Tuition and related expenses in 
connection with attendance at seminars and workshops, professional 
meetings, or other events in keeping with the purpose of the grant.
    (f) Books and educational materials allowance. A reasonable 
allowance for books and educational materials.
    (g) Advance of funds. Advance of funds including per diem.

[44 FR 18019, Mar. 26, 1979, as amended at 49 FR 12214, Mar. 29, 1984. 
Redesignated at 64 FR 54540, Oct. 7, 1999]



Sec.  63.4  Grants to foreign participants to lecture, teach, 
and engage in research.

    A citizen or national of a foreign country who has been awarded a 
grant to lecture, teach, and engage in research may be entitled to any 
or all of the following benefits when authorized by the Agency:
    (a) Transportation. Accommodations, as authorized on steamship, 
airplane, railway, or other means of conveyance. For travel in a 
privately owned vehicle, reimbursement will be in accordance with the 
provisions of the Federal Travel Regulations.
    (b) Excess baggage. Excess baggage as deemed necessary by the 
Agency.
    (c) Per diem allowance. Per diem allowance in lieu of subsistence 
expenses while participating in the program in the United States, its 
territories or possessions and while traveling within or between the 
United States, its territories or possessions shall be established by 
the Secretary of State from time to time, within limitations prescribed 
by law.
    (d) Allowance. A special allowance in lieu of per diem while 
traveling to and from the United States may be established by the 
Secretary of State, within limitations prescribed by law.
    (e) Tuition and related expenses. Tuition and related expenses in 
connection with attendance at educational institutions, seminars and 
workshops, professional meetings or other events in keeping with the 
purpose of the grant.
    (f) Books and educational materials allowance. A reasonable 
allowance for books and educational materials.
    (g) Advance of funds. Advance of funds including per diem.



Sec.  63.5  Grants to foreign participants to study.

    A citizen or national of a foreign country who has been awarded a 
grant to study may be entitled to any or all of the following benefits 
when authorized by the Agency:
    (a) Transportation. Accommodations, as authorized, on steamship, 
airplane, railway, or other means of conveyance. For travel in a 
privately owned vehicle, reimbursement will be accordance with the 
provisions of the Federal Travel Regulations.
    (b) Excess baggage. Excess baggage as deemed necessary by the 
Agency.
    (c) Per diem allowance. Per diem allowance in lieu of subsistence 
expenses while traveling (1) from point of entry in the United States, 
its territories or possessions to orientation centers and while in 
attendance at such centers for purposes of orientation, not to exceed 30 
days, (2) to educational institutions of affiliation, and (3) to point 
of departure and while participating in authorized field trips or 
conferences, shall be established by the Secretary of State from time to 
time, within limitations prescribed by law.
    (d) Allowances. (1) A maintenance allowance while present and in 
attendance at an educational institution, facility or organization, and
    (2) A travel allowance in lieu of per diem while traveling to and 
from the United States may be established by the Secretary of State, 
within limitations prescribed by law.

[[Page 319]]

    (e) Tuition. Tuition and related fees for approved courses of study.
    (f) Books and educational materials allowance. A reasonable 
allowance for books and educational materials.
    (g) Tutoring assistance. Special tutoring assistance in connection 
with approved courses of study.
    (h) Advance of funds. Advance of funds including per diem.



Sec.  63.6  Assignment of United States Government employees to consult, 
lecture, teach, engage in research, or demonstrate special skills.

    An employee of the United States Government who has been assigned 
for service abroad to consult, lecture, teach, engage in research, or 
demonstrate special skills, may be entitled to any or all of the 
following benefits when authorized by the Agency.
    (a) Transportation. Transportation and miscellaneous expenses in the 
United States and abroad, including baggage charges, and per diem in 
lieu of subsistence at the maximum rates allowable while in a travel 
status in accordance with the provisions of the Federal Travel 
Regulations. The participant shall be considered as remaining in a 
travel status during the entire period covered by his or her assignment 
unless otherwise designated.
    (b) Advance of funds. Advances of per diem as provided by law.
    (c) Compensation. Compensation in accordance with Civil Service 
rules; or in accordance with the grade in which the position occupied 
may be administratively classified; or Foreign Service Act, as amended.
    (d) Allowances for cost of living and living quarters. Allowances 
for living quarters, heat, fuel, light, and to compensate for the 
increased cost of living in accordance with the Federal Travel 
Regulations (Government Civilians, Foreign Areas), when not in a travel 
status as provided in paragraph (a) of this section.
    (e) Books and educational materials allowance. A reasonable 
allowance for books and educational materials. Such books and materials, 
unless otherwise specified, shall be selected by the employee and 
purchased and shipped by the Agency or its agent. At the conclusion of 
the assignment, the books and educational materials shall be transferred 
to and become the property of an appropriate local institution or be 
otherwise disposed of as directed by the Agency.
    (f) Families and effects. Cost of transportation of immediate family 
and household goods and effects when going to and returning from posts 
of assignment in foreign countries in accordance with the provisions of 
the Foreign Service Regulations of the United States of America.



Sec.  63.7  Grants to United States participants to consult, lecture, 
teach, engage in research, demonstrate special skills, or engage 
in specialized programs.

    A citizen or resident of the United States who has been awarded a 
grant to consult, lecture, teach, engage in research, demonstrate 
special skills, or engage in specialized programs may be entitled to any 
or all of the following benefits when authorized by the Agency.
    (a) Transportation. Transportation in the United States and abroad, 
including baggage charges.
    (b) Subsistence and miscellaneous travel expenses. Per diem, in lieu 
of subsistence while in a travel status, at the maximum rates allowable 
in accordance with the provisions of the Federal Travel Regulations, 
unless otherwise specified, and miscellaneous travel expenses, in the 
United States and abroad. Alternatively, a travel allowance may be 
authorized to cover subsistence and miscellaneous travel expenses. The 
participant shall be considered as remaining in a travel status during 
the entire period covered by his or her grant unless otherwise 
designated.
    (c) Orientation and debriefing within the United States. For the 
purpose of orientation and debriefing within the United States, 
compensation, travel, and per diem at the maximum rates allowable in 
accordance with the provisions of the Federal Travel Regulations, unless 
otherwise specified. Alternatively, a travel allowance may be authorized 
to cover subsistence and miscellaneous travel expenses.
    (d) Advance of funds. Advance of funds, including allowance for 
books and educational materials and per

[[Page 320]]

diem, or alternatively, the allowance to cover subsistence and 
miscellaneous travel expenses.
    (e) Compensation. Compensation at a rate to be specified in each 
grant.
    (f) Allowances. Appropriate allowance as determined by the Agency.
    (g) Books and educational materials allowance. Where appropriate, an 
allowance for books and educational materials. Such books and materials, 
unless otherwise specified, shall be selected by the grantee and 
purchased and shipped either by the grantee, or the Agency or its agent. 
At the conclusion of the grant, the books and materials shall be 
transferred to and become the property of an appropriate local 
institution or be otherwise disposed of as directed by the Agency.



Sec.  63.8  Grants to United States participants to study.

    A citizen of the United States who has been awarded a grant to study 
may be entitled to any or all of the following benefits when authorized 
by the Agency.
    (a) Transportation. Transportation and miscellaneous expenses in the 
United States and abroad, including baggage charges, and per diem in 
lieu of subsistence while in a travel status. Per diem at the maximum 
rates allowable in accordance with the provisions of the Federal Travel 
Regulations, unless otherwise specified. Travel status shall terminate 
upon arrival at the place of study designated in the grant and shall 
recommence upon departure from the place to return home.
    (b) Orientation and debriefing within the United States. For the 
purpose of orientation and debriefing within the United States travel 
and per diem at the maximum rates allowable in accordance with the 
provisions of the Federal Travel Regulations, unless othewise specified.
    (c) Advance of funds. Advance of funds including per diem.
    (d) Maintenance allowance. A maintenance allowance at a rate to be 
specified in each grant.
    (e) Tuition. Tuition and related fees for approved courses of study.
    (f) Books and educational materials allowance. A reasonable 
allowance for books and educational materials.
    (g) Tutoring assistance. Special tutoring assistance in connection 
with approved courses of study.



Sec.  63.9  General provisions.

    The following provisions shall apply to the foregoing regulations:
    (a) Health and accident insurance. Payment for the costs of health 
and accident insurance for United States and foreign participants while 
such participants are enroute or absent from their homes for purposes of 
participation in the program when authorized by the Agency.
    (b) Transportation of remains. Payments for the actual expenses of 
preparing and transporting to their former homes the remains of persons 
not United States Government employees, who may die away from their 
homes while participating in the program are authorized.
    (c) Maxima not controlling. Payments and allowances may be made at 
the rate or in the amount provided in the regulations in this part 
unless an individual grant or travel order specifies that less than the 
maximum will be allowed under any part of the regulation in this part. 
In such case, the grant or travel order will control.
    (d) Individual authorization. Where the regulations in this part 
provide for compensation, allowance, or other payment, no payment shall 
be made therefor unless a definite amount or basis of payment is 
authorized in the individual case, or is approved as provided in 
paragraph (f) of this section.
    (e) Computation of per diem and allowance. In computing per diem and 
allowance payable while on a duty assignment, except for travel 
performed under the Federal Travel Regulations, fractional days shall be 
counted as full days, the status at the end of the calendar day 
determining the status for the entire day.
    (f) Subsequent approval. Whenever without prior authority expense 
has been incurred by a participant, or an individual has commenced his 
or her participation in the program as contemplated by the regulations 
in this part, the voucher for payments in connection therewith may be 
approved by an official designated for this purpose,

[[Page 321]]

such approval constituting the authority for such participation or the 
incurring of such expense.
    (g) Additional authorization. Any emergency, unusual or additional 
payment deemed necessary under the program if allowable under existing 
authority, may be authorized whether or not specifically provided for by 
this part.
    (h) Biweekly payment. Unless otherwise specified in the grant, all 
compensation and allowance for United States participants shall be 
payable biweekly and shall be computed as follows: An annual rate shall 
be derived by multiplying a monthly rate by 12; a biweekly rate shall be 
derived by dividing an annual rate by 26; and a calendar day rate shall 
be derived by dividing an annual rate by 364. If any maximum 
compensation or allowance authorized by these regulations or by the 
terms of any grant is exceeded by this method of computation and 
payment, such excess payment is hereby authorized. This paragraph may 
apply to payments made to participants from funds administrered as 
provided in Sec.  515.2(a) and (b) in the discretion of the department, 
agency, independent establishment, institution, facility, or 
organization concerned.
    (i) Payments. Payments of benefits authorized under any part of the 
regulations in this part may be made either by the Department of State 
or by such department, agency, institution, or facility as may be 
designated by the Agency.
    (j) Duration. The duration of the grant shall be specified in each 
case.
    (k) Cancellation. If a recipient of a grant under this program fails 
to maintain a satisfactory record or demonstrates unsuitability for 
furthering the purposes of the program as stated in Sec.  515.1(a), his 
or her grant shall, in the discretion of the Secretary of State of the 
Department of State or such officer as he or she may designate, be 
subject to cancellation.
    (l) Outstanding grant authorization. Grants and other authorizations 
which are outstanding and in effect on the date the present regulations 
become effective, and which do not conform to this part, shall 
nevertheless remain in effect and be governed by the regulations under 
which they were originally issued, unless such grants or other 
authorizations are specifically amended and made subject to the present 
regulations in which case the individual concerned will be notified.



PART 64_PARTICIPATION BY FEDERAL EMPLOYEES IN CULTURAL EXCHANGE PROGRAMS 
OF FOREIGN COUNTRIES--Table of Contents



Sec.
64.1 Purpose.
64.2 Definitions.
64.3 Submission of application.
64.4 Contents of application.
64.5 Criteria for approval of program.
64.6 Request for further information.
64.7 Approval of application.
64.8 Obligation of employee to advise agency.
64.9 Termination of approval.
64.10 Grant not to constitute a gift.

    Authority: Sec. 108A (Pub. L. 94-350, 90 Stat. 823) added to the 
Mutual Educational and Cultural Exchange Act, as amended, 75 Stat. 527-
28, 22 U.S.C. 2451 et seq.; and under Executive Orders 11034 and 12048, 
as amended; Pub. L. 105-277, 112 Stat. 2681 et seq.; Reorganization Plan 
No. 2 of 1977 and the Continuity Order (Continuity of Operations) of 
April 1, 1978 (43 FR 15371).

    Source: 44 FR 42247, Sept. 20, 1978, unless otherwise noted. 
Redesignated at 64 FR 54540, Oct. 7, 1999.

    Editorial Note: Nomenclature changes to part 64 appear at 64 FR 
54540, Oct. 7, 1999.



Sec.  64.1  Purpose.

    This part sets forth the procedures for the application for approval 
of a cultural exchange program of a foreign government, so that Federal 
employees may participate in such program; the grant and termination of 
such approval; and related procedures.



Sec.  64.2  Definitions.

    For the purpose of this part:
    (a) Federal employee means: (1) An employee as defined by section 
2105 of title 5, United States Code; (2) an individual employed by, or 
occupying an office or position in, the government of a territory or 
possession of the United States or the District of Columbia; (3) a 
member of a uniformed service; (4) the President and Vice President; and 
(5) a Member of the Senate or the

[[Page 322]]

House of Representatives, a Delegate from the District of Columbia in 
Congress, and the Resident Commissioner from Puerto Rico in Congress.
    (b) A foreign government means a foreign government and an official 
agent or representative thereof; a group of governments and an official 
agent or representative thereof; an international organization composed 
of governments, and an official agent or representative thereof.
    (c) A program of the type described in section 102(a)(2)(i) of the 
Act means a cultural exchange program involving ``visits and 
interchanges between the United States and other countries of leaders, 
experts in fields of specialized knowledge or skill, and other 
influential or distinguished persons.''
    (d) The ``purpose stated in section 101 of the Act'' is ``to enable 
the Government of the United States to increase mutual understanding 
between the people of the United States and the people of the other 
countries by means of educational and cultural exchange; to strengthen 
the ties which unite us with other nations by demonstrating the 
educational and cultural interests, developments, and achievements of 
the people of the United States and other nations, and the contributions 
being made toward a peaceful and more fruitful life for people 
throughout the world; to promote international cooperation for 
educational and cultural advancement; and thus to assist in the 
development of friendly, sympathetic, and peaceful relations between the 
United States and the other countries of the world.''
    (e) Secretary of State means the Secretary of State of the 
Department of State.
    (f) Department of State means the Department of State.
    (g) Act means the Mutual Educational Cultural Exchange Act of 1961, 
as amended (22 U.S.C. 2451 et seq.).
    (h) Member of the family or household of a Federal employee means a 
relative of the employee by blood, marriage, or adoption or any person 
who is a resident of the household of the employee.

[44 FR 42247, Sept. 20, 1978, as amended at 51 FR 11016, Apr. 1, 1986. 
Redesignated at 64 FR 54540, Oct. 7, 1999]



Sec.  64.3  Submission of application.

    A foreign government intending to provide grants or other assistance 
to facilitate the participation of Federal employees in a program of 
cultural exchange shall submit to the Department of State an application 
for approval of the program through its embassy, mission, or office at 
Washington, D.C. If there is no embassy, mission, or office at 
Washington, D.C., of the foreign government the application may be 
submitted by the home office or headquarters of the foreign government. 
The application shall be addressed to the Secretary of State.



Sec.  64.4  Contents of application.

    The foreign government shall provide information in the application 
showing that its program meets the criteria set forth in Sec.  516.5, 
and shall include in such application the following:
    (a) Name and description of the program and the provisions of 
legislation or regulation authorizing the program;
    (b) Number of annual U.S. citizen participants expected, including 
the number of U.S. Federal employees;
    (c) Average duration of stay abroad;
    (d) Department of State of the foreign government responsible for 
the program;
    (e) Name and address of contact in the United States with whom 
communication may be made with respect to the program; in the absence of 
such a contact in the United States, the name and address of a contact 
in the home office or headquarters of the foreign government.



Sec.  64.5  Criteria for approval of program.

    To obtain approval of its program of cultural exchanges, a foreign 
government is required to show that:
    (a) The cultural exchange program is of the type described in 
section 102(a)(2)(i) of the Act;
    (b) The cultural exchange program is conducted for a purpose 
comparable to the purpose stated in section 101 of the Act; and
    (c) A grant under such program will not provide assistance with 
respect to any expenses incurred by or for any member of the family or 
household of such Federal employee.

[[Page 323]]



Sec.  64.6  Request for further information.

    The Department of State may request the foreign government to supply 
additional information.



Sec.  64.7  Approval of application.

    The Secretary of State shall review the application and if satisfied 
that the criteria of Sec.  516.5 are met shall inform the foreign 
government of the approval of its program.



Sec.  64.8  Obligation of employee to advise agency.

    Any Federal employee receiving any offer of a grant or other 
assistance under a cultural exchange program approved by the Secretary 
of State shall advise the employee's agency of such offer and shall not 
accept such offer unless the employee's agency states that it has no 
objection to such acceptance. In the case of the Department, an employee 
shall advise the DAEO who may, after consultation with appropriate 
officials of the Department, furnish a ``no objection'' statement.

[44 FR 42247, Sept. 20, 1978. Redesignated and amended at 64 FR 54540, 
Oct. 7, 1999]



Sec.  64.9  Termination of approval.

    If at any time it appears to the Secretary of State that the purpose 
of a program which has been approved has been changed so that it no 
longer meets the criteria of Sec.  516.5 or that the program is being 
misused, the Secretary of State may terminate such approval, or suspend 
such approval pending the supplying of additional information. However, 
a termination or suspension shall not affect a grant which has been made 
under a previously approved program.



Sec.  64.10  Grant not to constitute a gift.

    A grant made under an approved program shall not constitute a gift 
for purposes of 22 CFR 10.735-203 and section 7342 of title 5, United 
States Code.



PART 65_FOREIGN STUDENTS--Table of Contents



Sec.
65.1 Regulations to be drafted.
65.2 Applications.
65.3 Reference of applications.
65.4 Copies of regulations to Department of State.
65.5 Granting of application.

    Authority: 52 Stat. 1034, as amended; 20 U.S.C. 221, E.O. 7964, 3 FR 
2105; 3 CFR, 1943-1958, Comp.; Reorganization Plan No. 2 of 1977.

    Source: 44 FR 18021, Mar. 26, 1979, unless otherwise noted. 
Redesignated at 64 FR 54540, Oct. 7, 1999.

    Editorial Note: Nomenclature changes to part 65 appear at 64 FR 
54540, Oct. 7, 1999.



Sec.  65.1  Regulations to be drafted.

    Subject to the provisions and requirements of this part, appropriate 
administrative regulations shall be drafted by each executive department 
or agency of the Government which maintains and administers educational 
institutions and schools coming within the scope of the legislation. 
Such regulations shall carefully observe the limitations imposed by the 
Act of June 24, 1938, and shall in each case include:
    (a) A list of the institutions and courses in the department or 
agency concerned in which instruction is available under the terms of 
the legislation.
    (b) A statement of the maximum number of students of the other 
American republics who may be accommodated in each such institution or 
course at any one time.
    (c) A statement of the qualifications to be required of students of 
the other American republics for admission, including examinations, if 
any, to be passed.
    (d) Provisions to safeguard information that may be vital to the 
national defense or other interests of the United States.



Sec.  65.2  Applications.

    Applications for citizens of the other American republics to receive 
the instruction contemplated by the Act of June 24, 1938, shall be made 
formally through diplomatic channels to the Secretary of State of the 
Department of State by the foreign governments concerned.



Sec.  65.3  Reference of applications.

    The Secretary of State of the Department of State shall refer the 
applications to the proper department or

[[Page 324]]

agency of the Government for advice as to what reply should be made to 
the application.



Sec.  65.4  Copies of regulations to Department of State.

    In order to enable the Secretary of State of the Department of State 
to reply to inquiries received from the governments of the other 
American republics, the Department of State shall be promptly supplied 
with copies of the regulations drafted by the other departments and 
agencies of the Government and of subsequent amendments thereto.



Sec.  65.5  Granting of application.

    Upon receipt of a reply from another department or agency of the 
Government, as contemplated by Sec.  517.3, in which it is recommended 
that an application be granted, the Secretary of State of the Department 
of State shall notify the government of the American republic concerned, 
through diplomatic channels, that permission to receive the instruction 
requested in the application is granted, provided the applicant complies 
with the terms of this part and with the terms of the administrative 
regulations of the department or agency concerned.



PART 66_AVAILABILITY OF THE RECORDS OF THE NATIONAL ENDOWMENT FOR DEMOCRACY--
Table of Contents



Sec.
66.1 Introduction.
66.2 Location of description of organization and substantive rules of 
          general applicability adopted as authorized by law, and 
          statements of general applicability formulated and adopted by 
          NED.
66.3 Places at which forms and instructions for use by the public may be 
          obtained.
66.4 Availability of final opinions, orders, policies, interpretations, 
          manuals and instructions.
66.5 Availability of NED records.
66.6 Exemptions.
66.7 Limitation of exemptions.
66.8 Reports.

    Authority: 22 U.S.C. 4411 et seq.; Pub. L. 99-570, Secs. 1801-1804, 
100 Stat. 3207-48 (1986); Pub. L. 105-277, 112 Stat. 2681 et seq.

    Source: 51 FR 40162, Nov. 5, 1986, unless otherwise noted. 
Redesignated at 64 FR 54540, Oct. 7, 1999.

    Editorial Note: Nomenclature changes to part 66 appear at 64 FR 
54540, Oct. 7, 1999.



Sec.  66.1  Introduction.

    These regulations amend the Code of Federal Regulations to conform 
with Pub. L. 99-93. Pub. L. 99-93 amended the National Endowment for 
Democracy Act (22 U.S.C. 4411, et. seq.) to require the National 
Endowment for Democracy (hereinafter ``NED'') to comply fully with the 
provisions of the Freedom of Information Act (5 U.S.C. 552) (hereinafter 
``FOIA''), notwithstanding that NED is not an agency or establishment of 
the United States Government. NED will make information about its 
operation, organization, procedures and records available to the public 
in accordance with the provisions of FOIA.



Sec.  66.2  Location of description of organization and substantive 
rules of general applicability adopted as authorized by law, 
and statements of general applicability formulated and adopted by NED.

    See 22 CFR part 527 for a description of the organization of NED and 
substantive rules of general applicability formulated and adopted by 
NED.



Sec.  66.3  Places at which forms and instructions for use by the public 
may be obtained.

    (a) All forms and instructions pertaining to procedures under FOIA 
may be obtained from the FOIA officer of the National Endowment for 
Democracy, 1101 15th St., NW; Suite 700, Washington, D.C. 20005-5000.
    (b) Grant guidelines may be obtained from the Program Office of NED 
to the address shown in paragraph (a) of this section.
    (c) General information may be obtained from the Public Affairs 
Office of NED at the address shown in paragraph (a) of this section.

[51 FR 40162, Nov. 5, 1986. Redesignated and amended at 64 FR 54540, 
Oct. 7, 1999]



Sec.  66.4  Availability of final opinions, orders, policies, interpretations, 
manuals and instructions.

    NED is not an adjudicatory organization and therefore does not issue 
final opinions and orders made in the adjudication of cases. NED will, 
however, in

[[Page 325]]

accordance with the rules in this section and Sec.  526.7, make 
available for public inspection and copying those statements of policy 
and interpretation that have been adopted by NED and are not published 
in the Federal Register, and administrative staff manuals and 
instructions to staff that affect any member of the public.
    (a) Deletion to protect privacy. To the extent required to prevent a 
clearly unwarranted invasion of personal privacy, NED may delete 
identifying details when it makes available or publishes a statement of 
policy, interpretation, or staff manual or instruction. Whenever NED 
finds any such deletion necessary, the responsible officer or employee 
must fully explain the justification therefor in writing.
    (b) Current index. NED will maintain and make available on its 
premises for public inspection and copying a current index providing 
identifying information for the public as to any matter issued, adopted 
or promulgated after July 4, 1967, and required by this section to be 
made available or published. NED will provide copies on request at a 
cost of $0.15 per page.



Sec.  66.5  Availability of NED records.

    Except with respect to the records made available under Sec.  526.4, 
NED will, upon request that reasonably describes records in accordance 
with the requirements of this section, and subject to the exemptions 
listed in 5 U.S.C. 552(b), make such records promptly available to any 
person.
    (a) Requests for records--How made and addressed. (1) Requesters 
seeking access to NED records under FOIA should direct all requests in 
writing to: Freedom of Information Act Officer, National Endowment for 
Democracy, 1101 15th St., NW; Suite 700, Washington, D.C. 20005-5000.

Although requesters are encouraged to make their requests for access to 
NED records directly to NED, requests for access to NED records also may 
be submitted to Department of State's Office of General Counsel and 
Congressional Liaison at the following address: Freedom of Information/
Privacy Acts Coordinator, U.S. Information Agency, Room M-04, 301 Fourth 
Street SW., Washington, DC 20547.
    (2) Appeals of denials of initial requests must be addressed to NED 
in the same manner or to the Department of State pursuant to the 
procedures set forth at part 171 of this Title, with the addition of the 
word ``APPEAL'' preceding the address on the envelope. Appeals addressed 
directly to the Department of State will not be deemed to have been 
received by NED for purposes of the time period set forth in 5 U.S.C. 
552(a)(6)(A)(1) until actually received by NED. The Department of State 
shall forward any appeal received by it to NED within 2 working days 
from the actual day of receipt by the Department of State.
    (3) The request letter should contain all available data concerning 
the desired records, including a description of the material, dates, 
titles, authors, and other information that may help identify the 
records. The first paragraph of a request letter should state whether it 
is an initial request or an appeal.
    (b) Administrative time limits. (1) Within 10 working days after 
NED's receipt of any request for access to NED records in compliance 
with paragraph (a) of this section, NED shall make an initial 
determination whether to provide the requested information and NED shall 
notify the requester in writing of its initial determination. In the 
event of an adverse determination, notification shall include the 
reasons for the adverse determination, the officials responsible for 
such determination, the right of the requester to appeal within NED, and 
that the final determination by NED to deny a request for records in 
whole or in part shall be submitted to the Secretary of State of 
Department of State for review. NED shall also provide Department of 
State a copy of its response as soon as practicable after it responds to 
the requester.
    (2) When a request for records has been denied in whole or in part, 
the requester may, within 30 days of the date of receipt by the 
requester of the adverse determination from NED, appeal the denial to 
the President of NED or his designee, who will make a determination 
whether to grant or deny such appeal within 20 working days of receipt 
thereof. All appeals should be addressed in compliance with paragraph 
(a) of this section. If on appeal,

[[Page 326]]

the denial of the request for records is upheld, in whole or in part, 
NED shall notify the requester in writing of such determination, the 
reasons therefor, the officials responsible for such determination, the 
right of the requester to judicial review, and that the final 
determination by NED whether to deny a request for records in whole or 
in part shall be submitted to the Secretary of State of Department of 
State for review.
    (3) If the requester elects not to appeal to the President of NED or 
his designee within the appeal period specified above, NED's initial 
determination will become the final NED determination upon expiration of 
said appeal period or receipt by NED of notice from the requester that 
he does not elect to appeal, whichever is earlier. If the requester 
chooses to appeal NED's initial determination within NED, the decision 
on appeal will become NED's final determination.
    (4)(i) Once NED's determination to deny a request in whole or in 
part becomes final, NED shall submit a report to the Secretary of State 
of Department of State explaining the reasons for such denial no later 
than 5 working days thereafter.
    (ii) The Secretary of State of Department of State shall review 
NED's final determination within 20 working days. If the Secretary of 
State of Department of State or his designee approves NED's denial in 
whole or in part, Department of State shall inform the requester and NED 
in writing of such determination, the reasons therefor, the officials 
responsible for such determination, and the right of the requester to 
judicial review of NED's determination. In the event of such a 
determination, Department of State shall assume full responsibility, 
including financial responsibility, for defending NED in any litigation 
relating to such request.
    (iii) If the Secretary of State of Department of State or his 
designee disapproves NED's denial in whole or in part, Department of 
State shall promptly notify NED and thereafter NED shall promptly comply 
with the request for the pertinent records.
    (iv) Because review by the Secretary of State of Department of State 
may resolve any dispute over access to NED records in the requester's 
favor, the requester is encouraged (but not required) to wait for the 
determination on review by the Secretary of State of Department of State 
before seeking judicial review of NED's final determination.
    (5) In unusual circumstances as defined in 5 U.S.C. 552(a)(6)(B), 
the time limit provisions noted in paragraphs (b)(1) and (b)(2) of this 
section may be extended by written notice to the requester setting forth 
the reasons for such extension and the date on which a determination can 
be expected. Such extensions of the time limits may not exceed 10 
working days in the aggregate.
    (6) Any person making a request for records pursuant to Sec.  526.5 
may consider administrative remedies exhausted if NED fails to comply 
within the applicable time limit provisions of this section. When no 
determination can be dispatched within the applicable time limits set 
forth in this section, NED shall nevertheless continue to process the 
request. On the expiration of the time limit, NED shall inform the 
requester of the reason for the delay, of the date on which a 
determination may be expected to be dispatched, and of the requester's 
right to treat the delay as a denial and of the requester's right to 
appeal. NED may ask the requester to forego appeal until a determination 
is made. A copy of any such notice of delay will be sent to the 
Secretary of State of Department of State or to his designee no later 
than 2 working days after it has been sent to the requester. A court may 
retain jurisdiction and allow NED additional time to complete its review 
of the records, if it can be determined that exceptional circumstances 
exist and that NED is exercising due diligence in responding to the 
request.
    (c) Definitions governing schedule of standard fees and fee waivers. 
For purposes of these regulations governing fees and fee waivers:
    (1) All of the terms defined in FOIA apply;
    (2) A statute specifically providing for setting the level of fees 
for particular types of records means any statute that specifically 
requires the NED to set the

[[Page 327]]

level of fees for particular types of records;
    (3) The term direct costs means those expenditures that NED actually 
incurs in searching for and duplicating (and in the case of commercial 
requesters, reviewing) documents, photographs, drawings or any other 
material to respond to a FOIA request. [Direct costs include the salary 
of the employee performing the work (the basic rate of pay for the 
employee plus 16% of that rate to cover benefits) and the cost of 
operating duplicating machinery. Not included in direct costs are 
overhead expenses such as costs of space, any heating or lighting, the 
facility in which the records are stored];
    (4) The term search includes all time spent looking for material 
that is responsive to a request, including page by page or line by line 
identification of material within documents. Searches shall be conducted 
to ensure that they are undertaken in the most efficient and least 
expensive manner so as to minimize costs for both NED and the requester. 
``Search'' is distinguished from ``review'' of material in order to 
determine whether the material is exempt from disclosure (see 
subparagraph (c)(6) below);
    (5) The term duplication refers to the process of making a copy of a 
document, drawing, photograph, or any other material necessary to 
respond to a FOIA request. The copy provided by NED will be in a form 
that is reasonably usable by requesters;
    (6) The term review refers to the process of examining documents 
that are located in response to a request that is for a commercial use 
(see subparagraph (c)(7) below) to determine whether any portion of any 
document located is permitted to be withheld. It also includes 
processing any documents for disclosure, e.q., doing all that is 
necessary to excise them and otherwise prepare them for release. Review 
does not include time spent resolving general legal or policy issues 
regarding the application of exemptions;
    (7) The term `commercial use' requests refers to a request from or 
on behalf of one who seeks information for a use or purpose that 
furthers the commercial, trade, or profit interests of the requester or 
the person on whose behalf the request is made. In determining whether a 
requester properly belongs in this category, NED will determine the use 
to which a requester will put the documents requested. Where NED has 
reasonable cause to doubt the use to which a requester will put the 
records sought, or where that use is not clear from the request itself, 
NED will seek additional clarification before assigning the request to a 
specific category;
    (8) The term educational institution refers to a preschool, a public 
or private elementary or secondary school, an institution of graduate 
higher education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, that operates a program or programs of scholarly study and/or 
research;
    (9) The term non-commercial scientific institution refers to an 
institution that is not operated on a ``commercial'' basis as that term 
is referenced in paragraph (c)(7) of this section and that is operated 
solely for the purpose of conducting scientific research, the results of 
which are not intended to promote any particular product or industry;
    (10) The term representative of the news media refers to any person 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities include 
television or radio stations that broadcast to the public at large, and 
publishers of periodicals (but only in those instances when they can 
qualify as disseminators of ``news'') who make their products available 
for purchase or subscription by the general public. These examples are 
not intended to be all-inclusive. In the case of ``free-lance'' 
journalists, such journalists may be regarded as working for a news 
organization if they can demonstrate a solid basis for expecting 
publication through that organization even though they are not actually 
employed by a news organization. A publication contract would be the 
clearest proof, but NED will also look to the

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past publication record of a requester in making this determination.
    (d) Fees to be charged--general. NED shall charge fees that recoup 
the full allowable direct costs it incurs. NED shall use the most 
efficient and least costly methods to comply with requests for 
documents, drawings, photographs, and any other materials made under the 
FOIA.
    (e) Specific fees. The specific fees for which NED shall charge the 
requester when so required by the FOIA are as follows:
    (1) Manual searches for records--$8.00 per hour for clerical 
personnel; $15.00 per hour for supervisory personnel;
    (2) Computer searches for records--In any case where a computer 
search is possible and the most efficient means by which to conduct a 
search, NED will charge the cost of operating the central processing 
unit for that portion of operating time that is directly attributable to 
searching for records responsive to a FOIA request and the operator-
programmer salary apportionable to the search. The charge for the cost 
of the operator-programmer time shall be based on the salary of the 
operator-programmer plus 16 percent;
    (3) Review of records--Requesters who seek documents for commercial 
use shall be charged for the time NED spends reviewing records to 
determine whether such records are exempt from mandatory disclosure. 
These charges shall be assessed only for the initial review; i.e., the 
review undertaken the first time NED analyzes the applicability of a 
specific exemption to a particular record or portion of a record. 
Neither NED nor the Department of State will charge for review at the 
administrative appeal level for an exemption already applied. However, 
NED will charge for review of records or portions of records withheld in 
full under an exemption that is subsequently determined not to apply. 
The fee for review as that term is used in these regulations shall be 
$15.00 per hour;
    (4) Duplication of records--(i) making photocopies--15[cent] per 
page; (ii) for copies prepared by computer, such as tapes or printouts, 
NED shall charge the actual cost, including operator time, of production 
of the tape or printout; (iii) for other methods of reproduction or 
duplication, NED shall charge the actual direct costs of producing the 
document(s);
    (5) Other charges--(i) there shall be no fee for a signed statement 
of non-availability of a record; (ii) NED will not incur expenses 
arising out of sending records by special methods such as express mail;
    (6) Restrictions on assessing fees--With the exception of requesters 
seeking documents for a commercial use, section (a)(4)(A)(iv) of the 
Freedom of Information Act, as amended, requires NED to provide the 
first 100 pages of duplication and the first two hours of search time 
without charge. NED shall not charge fees to any requester, including 
commercial use requesters, if the cost of collecting a fee would be 
equal to or greater than the fee itself. NED will not begin to assess 
fees until it has first provided the above-referenced free search and 
reproduction. The elements to be considered in determining the ``cost of 
collecting a fee'' are the administrative costs to NED of receiving and 
recording a requester's remittance and processing the fee for deposit in 
NED's account. For purposes of these restrictions on assessment of fees, 
the word ``pages'' refers to paper copies of a standard size, which will 
normally be 8\1/2\ x 11 or 11 x 14. Thus, for example, requesters shall 
not be entitled to 100 microfiche or 100 computer disks without charge.
    (f) Fees to be charged--categories of requesters. There are four 
categories of FOIA requesters: commercial use requesters; educational 
and non-commercial scientific institutions; representatives of the news 
media; and all other requesters. The fees to be charged each of these 
categories of requesters are as follows:
    (1) Commercial use requesters--when NED receives a request for 
documents for commercial use, it shall assess charges that recover the 
full direct costs of searching for, reviewing for release, and 
duplicating the records sought. Commercial use requesters are entitled 
to neither two hours of free

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search time nor 100 free pages of reproduction of documents. NED shall 
recover the cost of searching for and reviewing records even if there is 
ultimately no disclosure of records. Requesters must reasonably describe 
the records sought;
    (2) Educational and non-commercial scientific institution 
requesters--NED shall provide documents to educational and non-
commercial scientific institution requesters for the cost of 
reproduction alone, excluding charges for the first 100 pages of 
duplication. To be eligible for inclusion in this category, requesters 
must show that the request is being made as authorized by and under the 
auspices of a qualifying institution and that the records are not sought 
for a commercial use, but are sought in furtherance of scholarly (if the 
request is from an educational institution) or scientific (if the 
request is from a non-commercial scientific institution) research. 
Requesters must reasonably describe the records sought;
    (3) Requesters who are representatives of the news media--NED shall 
provide documents to requesters who are representatives of the news 
media for the cost of reproduction alone, excluding charges for the 
first 100 pages. To be eligible for inclusion in this category, a 
requester must meet the criteria in subsection (c)(10) above, and the 
request must not be made for a commercial use. A request for records 
supporting the news-dissemination function of the requester shall not be 
considered to be a request that is for a commercial use. Requesters must 
reasonably describe the records sought;
    (4) All other requesters--NED shall charge requesters who do not fit 
into any of the above categories those fees that recover the full 
reasonable direct costs of searching for and reproducing records that 
are responsive to the request, except that the first 100 pages of 
reproduction and the first two hours of search time shall be furnished 
without charge. Requesters must reasonably describe the records sought.
    (g) Assessment and collection of fees. (1) NED shall assess interest 
charges on an unpaid bill starting on the 31st day following the day on 
which the billing was sent. The fact that the fee has been received by 
NED, even if not processed, will suffice to stay the accrual of 
interest. Interest will be at the rate prescribed in section 3717 of 
title 31 of the United States Code and will accrue from the date of the 
billing.
    (2) Charges for unsuccessful searches--If NED estimates that search 
charges are likely to exceed $25.00, it shall notify the requester of 
the estimated amount of fees unless the requester has indicated in 
advance a willingness to pay fees as high as those anticipated. Such 
notice shall offer the requester the opportunity to confer with agency 
personnel with the object of reformulating the request to meet the 
requester's needs at a lower cost. Dispatch of such a notice of request 
shall suspend the running of the period for response by NED until a 
reply is received from the requester.
    (3) Aggregating requests--Except for requests that are for a 
commercial use, NED shall not charge for the first two hours of search 
time or for the first 100 pages of reproduction. However, a requester 
may not file multiple requests at the same time, each seeking portions 
of a document or documents, solely in order to avoid payment of fees. 
When NED reasonably believes that a requester or a group of requesters 
acting in concert are attempting to divide a request into a series of 
requests for the purpose of evading the assessment of fees, NED shall 
aggregate any such requests and charge accordingly. One element to be 
considered in determining whether a belief would be reasonable is the 
time period in which the requests have been made. Before aggregating 
requests from more than one requester, NED must have a concrete basis on 
which to conclude that the requesters are acting in concert and are 
acting specifically to avoid payment of fees. In no case shall NED 
aggregate multiple requests on unrelated subjects from one requester.
    (4) Advance payments--NED shall not require payment for fees before 
work has commenced or continued on a request unless:
    (i) NED estimates or determines that allowable charges that a 
requester may be required to pay are likely to exceed $250.00. In this 
event, NED shall notify the requester of the likely cost and may require 
an advance payment of an

[[Page 330]]

amount up to the full amount of estimated charges; or
    (ii) A requester has previously failed to pay a fee charged within 
30 days of the date of billing.


In this event, NED shall require the requester to pay the full amount 
owed plus any applicable interest as provided above or demonstrate that 
he or she has, in fact, paid the fee, and to make an advance payment of 
the full amount of the estimated fee before NED begins to process a new 
request or a pending request from that requester.
    (iii) When NED acts under paragraphs (g)(4)(i) or (ii) above, the 
administrative time limits prescribed in subsection (a)(6) of the FOIA 
will begin only after NED has received fee payments described above.
    (5) Form of payment--Remittances shall be in the form of a personal 
check or bank draft drawn on any bank in the United States, a postal 
money order, or cash. Remittances shall be made payable to the order of: 
National Endowment for Democracy. NED will assume no responsibility for 
cash lost in the mail.
    (h) Fee waiver or reduction. NED shall furnish documents without 
charge or at a charge reduced below the fees established by these 
regulations if disclosure of the information is in the public interest 
because the disclosure of the information is likely to contribute 
significantly to public understanding of the operations or activities of 
government and is not primarily in the commercial interest of the 
requester. In making a determination under this subsection, NED shall 
consider these factors in the following order:
    (1) Whether the subject of the request for documents concerns the 
operations or activities of the government. For purposes of determining 
whether this factor is met:
    (i) Records generated by a non-government entity are less likely to 
respond to a request for documents concerning the operations or 
activities of the government;
    (ii) Records that are sought for their intrinsic informational 
content apart from their informative value with respect to specific 
activities or operations of government are less likely to meet this 
factor.
    (2) Whether the information requested is likely to contribute to an 
understanding of government operations or activities. For purposes of 
determining whether the request meets this factor:
    (i) NED will consider the extent to which the information requested 
already exists in the public domain;
    (ii) NED will consider the extent to which the value of the 
information relates to an understanding of government operations or 
activities as opposed to the extent to which the information relates to 
other subjects.
    (3) Whether the information requested will contribute to public 
understanding of government operations or activities. For purposes of 
determining whether the request meets this factor:
    (i) NED will consider whether the disclosure will contribute to a 
public understanding as opposed to a primarily personal understanding of 
the requester;
    (ii) NED will consider the identity of the requester to determine 
whether such requester is in a position to contribute to public 
understanding through disclosure of the information. Requesters shall 
describe their qualifications to satisfy this consideration;
    (iii) NED will consider the expertise of the requester and the 
extent to which the expertise will enable the requester to extract, 
synthesize and convey the information to the public. Requesters shall 
describe their qualifications to satisfy this consideration;
    (4) Whether the contribution to public understanding will be 
significant. In determining whether this factor has been met:
    (i) NED will consider whether the public's understanding of the 
subject matter in question is likely to be enhanced by the disclosure of 
information by a significant extent;
    (ii) NED will compare the likely level of public understanding of 
the subject matter of the request before and after disclosure.
    (5) After NED is satisfied that factors (h)(1) through (4) have been 
met, it will consider whether the requested disclosure is primarily in 
the commercial interest of the requester.

[[Page 331]]

    (i) For purposes of this subsection, commercial interest is one that 
furthers a commercial, trade, or profit interest as those terms are 
commonly understood. Under this subsection, a ``commercial interest'' 
shall not be an interest served by a request for records supporting the 
news dissemination function of the requester. All requesters who seek a 
fee waiver under section (h) of these regulations must disclose any and 
all commercial interests that would be furthered by the requested 
disclosure. NED shall use this information, information in its 
possession, reasonable inferences drawn from the requester's identity, 
and the circumstances surrounding the request to determine whether the 
requester has any commercial interest that would be furthered by the 
disclosure. If information that NED obtains from a source other than the 
requester or reasonable inferences or other circumstances are used in 
making a determination under this paragraph (h)(5), NED shall inform the 
requester of the information, inferences or circumstances that were used 
in its initial determination. The requester may, prior to filing an 
appeal of the initial determination with the President of NED or his 
designee under paragraph (a)(2) of this section, provide further 
information to rebut such reasonable inferences, or to clarify the 
circumstances of the request to the person responsible for the initial 
determination. Such action by the requester must occur within 20 days of 
the initial determination by NED. Within 10 days of receipt of such 
further information, clarification, or rebuttal, NED shall respond to 
the additional information, reverse or affirm its original position and 
state the reasons for the reversal or affirmation. Receipt of an 
affirmation by the requester shall constitute an initial denial of a 
request for purposes of the appeal process described in paragraphs (a) 
and (b) of this section.
    (ii) NED shall consider the magnitude of the requester's commercial 
interest. In making a determination under this factor, NED shall 
consider the role that the disclosed information plays with respect to 
the requester's commercial interests and the extent to which the 
disclosed information serves the range of commercial interests of the 
requester.
    (iii) NED shall weigh the magnitude of the identified commercial 
interest of the requester against the public interest in disclosure in 
order to determine whether the disclosure is primarily in the commercial 
interest of the requester. If the magnitude of the public interest in 
disclosure is greater than the magnitude of the requester's commercial 
interest, NED shall grant a full or partial fee waiver.
    (6) In determining whether to grant a full or partial fee waiver, 
NED shall, to the extent possible, identify the portion of the 
information sought by the requester that satisfies the standard 
governing fee waivers set forth in FOIA, as amended, 5 U.S.C. 
552(a)(4)(A)(iii), and in paragraphs (h)(1) through (6) of this section, 
and grant a fee waiver with respect to those documents. Fees for 
reproduction of documents that do not satisfy these standards shall be 
assessed as provided in paragraphs (c) through (g) of this section.
    (i) Except as provided in paragraph (h)(5)(i) of this section, a 
requester may appeal a determination of the fees to be charged or waived 
under these regulations as he or she would appeal an initial 
determination of documents to be disclosed under paragraphs (a) and (b) 
of this section.

[51 FR 40162, Nov. 5, 1986, as amended at 52 FR 37766, Oct. 9, 1987. 
Redesignated and amended at 64 FR 54540, Oct. 7, 1999]



Sec.  66.6  Exemptions.

    NED reserves the right to withhold records and information that are 
exempt from disclosure under FOIA. See 5 U.S.C. 552(b).



Sec.  66.7  Limitation of exemptions.

    FOIA does not authorize withholding of information or limit the 
availability of NED records to the public except as specifically stated 
in this part. Nor is authority granted to withhold information from 
Congress.



Sec.  66.8  Reports.

    On or before March 1 of each calendar year, NED shall submit a 
reporting covering the preceding calendar year to

[[Page 332]]

the Speaker of the House of Representatives and the President of the 
Senate for referral to the appropriate committees of the Congress. The 
report shall include those items specified at 5 U.S.C. 552(d).



PART 67_ORGANIZATION OF THE NATIONAL ENDOWMENT FOR DEMOCRACY--Table of Contents



Sec.
67.1 Introduction.
67.2 Board of Directors.
67.3 Management.
67.4 Description of functions and procedures.

    Authority: 22 U.S.C. 4411 et seq.; Title II, Sec. 210, Pub. L. 99-
93, 99 Stat. 431 (22 U.S.C. 4415); Pub. L. 105-277, 112 Stat. 2681 et 
seq.

    Source: 51 FR 40164, Nov. 5, 1986, unless otherwise noted. 
Redesignated at 64 FR 54541, Oct. 7, 1999.



Sec.  67.1  Introduction.

    (a) The National Endowment for Democracy (hereinafter ``NED'') was 
created in 1983 to stregthen democratic values and institutions around 
the world through nongovernmental efforts. Incorporated in the District 
of Columbia and governed by a bipartisan Board of Directors, NED is tax-
exempt, nonprofit, private corporation as defined in section 501(c)(3) 
of the Internal Revenue Code. Through its worldwide grant program, NED 
seeks to enlist the energies and talents of private citizens and groups 
to work with partners abroad who wish to build for themselves a 
democratic future.
    (b) Since its establishment in 1983, NED has received an annual 
appropriation approved by the United States Congress as part of the 
United States Information Agency budget. Appropriations for NED are 
authorized in the National Endowment for Democracy Act (the ``Act''), 22 
U.S.C. 4411 et seq.
    (c) The activities supported by NED are guided by the six purposes 
set forth in NED's Articles of Incorporation and the National Endowment 
for Democracy Act. These six purposes are:
    (1) To encourage free and democratic institutions throughout the 
world through private-sector initiatives, including activities which 
promote the individual rights and freedoms (including internationally 
recognized human rights) which are essential to the functioning of 
democratic institutions;
    (2) To facilitate exchanges between U.S. private sector groups 
(especially the two major American political parties, labor and 
business) and democratic groups abroad;
    (3) To promote U.S. nongovernmental participation (especially 
through the two major American political parties, labor, and business) 
in democratic training programs and democratic institution-building 
abroad;
    (4) To strengthen democratic electoral processes abroad through 
timely measures in cooperation with indigenous democratic forces;
    (5) To support the participation of the two major American political 
parties, labor, business, and other U.S. private-sector groups in 
fostering cooperation with those abroad dedicated to the cultural 
values, institutions, and organizations of democratic pluralism; and
    (6) To encourage the establishment and growth of democratic 
development in a manner consistent both with the broad concerns of 
United States national interests and with the specific requirements of 
the democratic groups in other countries which are aided by NED-
supported programs.



Sec.  67.2  Board of Directors.

    (a) NED is governed by a bipartisan board of Directors of not fewer 
than thirteen and not more than twenty-five members reflecting the 
diversity of American society. The officers of the corporation are 
Chairman and Vice Chairman of the Board, who shall be members of the 
Board, a President, Secretary and Treasurer, and such other officers as 
the Board of Directors may from time to time appoint. Meetings of the 
Board of Directors are held at times determined by the Board, but in no 
event fewer than four times each year. A current list of members of the 
Board of Directors and a schedule of upcoming meetings is available from 
NED's office at 1101 15th Street, NW; Suite 700, Washington, DC 20005-
5000.
    (b) All major policy and funding decisions are made by the Board of 
Directors. The primary statement of NED's

[[Page 333]]

operating philosophy, general principles and priorities is contained in 
the National Endowment for Democracy's Statement of Principles and 
Objectives, adopted by the Board of Directors in December 1984. Copies 
of this statement as well as other general information concerning the 
organization are available from NED on request.
    (c) As a grantmaking organization, NED does not carry out programs 
directly. All grants made by the corporation shall be by a two-thirds 
vote of those voting at a meeting at which a quorum is present. 
Notwithstanding the foregoing, the Board may from time to time adopt, 
upon a two-thirds vote of those voting at a meeting at which a quorum is 
present, procedures to address emergency funding requests between 
meetings of the Board. In addition, ``[a]ny Board member who is an 
officer or director of an organization seeking to receive grants from 
the Corporation must abstain from consideration of and any vote on such 
grant'' (Article VI, Section 6). Copies of the bylaws are available from 
NED's offices.

[51 FR 40164, Nov. 5, 1986. Redesignated and amended at 64 FR 54541, 
Oct. 7, 1999]



Sec.  67.3  Management.

    (a) NED's operations and staff are managed by a President selected 
by the Board of Directors. The President is the chief executive officer 
of the corporation and manages the business of the corporation under the 
policy direction of the Board of Directors. The President directs a 
staff whose functions are divided among the Office of the President, a 
Program Section and a Finance Office.
    (b) The Office of the President provides policy direction and is 
responsible for day-to-day management of the organization, including 
personnel management, liaison with the Board of Directors and 
preparation of meetings of the Board and Board committees. The 
President's office also provides information concerning NED's activities 
to the press and public. The Program Section, under the direction of the 
Director of Program, is responsible for the review and preparation of 
proposals submitted to the Endowment and for the monitoring and 
evaluation of all programs funded by NED.
    (c) The Finance Office, under the direction of the Comptroller, is 
responsible, with the President and the Board of Directors, for 
financial management of NED's affairs, including both administrative 
financial management and grant management. The Director of Program and 
the Comptroller report to the NED President.



Sec.  67.4  Description of functions and procedures.

    (a) In accordance with the Statement of Principles and Objectives, 
NED is currently developing and funding programs in five substantive 
areas:
    (1) Pluralism. NED encourages the development of strong, independent 
private-sector organizations, especially trade unions and business 
associations. It also supports cooperatives, civic and women's 
organizations, and youth groups, among other organizations. Programs in 
the areas of labor and business are carried out, respectively, through 
the Free Trade Union Institute and the Center for International Private 
Enterprise.
    (2) Democratic governance and political processes. NED seeks to 
promote strong, stable political parties committed to the democratic 
process. It also supports programs in election administration and law, 
as well as programs that promote dialogue among different sectors of 
society and advance democratic solutions to national problems.
    (3) Education, culture and communications. NED funds programs that 
nourish a strong democratic civic culture, including support for 
publications and other communications media and training programs for 
journalists; the production and dissemination of books and other 
materials to strengthen popular understanding and intellectual advocacy 
of democracy; and programs of democratic education.
    (4) Research. A modest portion of NED's resources is reserved for 
research, including studies of particular regions or countries where NED 
has a special interest, and evaluations of previous or existing efforts 
to promote democracy.

[[Page 334]]

    (5) International cooperation. NED seeks to encourage regional and 
international cooperation in promoting democracy, including programs 
that strengthen cohesion among democracies and enhance coordination 
among democratic forces.
    (b) As a grantmaking organization, NED has certain responsibilities 
that govern its relationship with all potential and actual grantees. 
Briefly, these are:
    (1) Setting program priorities within the framework of the purposes 
outlined in NED's articles of incorporation and contained in the 
legislation, and guided by the general policy Statement of the Board of 
Directors;
    (2) Reviewing and vetting proposals, guided by the general 
guidelines and selection criteria adopted by the NED Board;
    (3) Coordinating among all grantees to avoid duplication and to 
assure maximum program effectiveness;
    (4) Negotiating a grant agreement which ensures a high standard of 
accountability on the part of each grantee;
    (5) Financial and programmatic monitoring following the approval and 
negotiation of a grant, and ongoing and/or follow-up evaluation of 
programs prior to any subsequent funding of either a particular grantee 
or a specific program. Grantees will also be expected to monitor 
projects, to provide regular reports to NED on the progress of programs, 
and to inform NED promptly of any significant problems that could affect 
the successful implementation of the project. NED grantees will also 
conduct their own evaluations of programs.
    (6) As a recipient of congressionally appropriated funds, NED has a 
special responsibility to:
    (i) Operate openly,
    (ii) Provide relevant information on programs and operations to the 
public, and
    (iii) Ensure that funds are spent wisely, efficiently, and in 
accordance with all relevant regulations.
    (c) Institutes representing business, labor, and the major political 
parties carry out programs which are central to NED's purposes. As a 
result of their unique relationship to NED, institute programs are an 
integral part of NED's priorities and the institutes themselves are 
``core'' grantees. As such, the institutes, while subject to all the 
normal procedures governing NED's relationships with grantees, will be 
treated differently in the following respects:
    (1) The institutes will have the mandate to carry out programs 
funded by NED in their respective sectors of business, labor and 
political parties.
    (2) As an integral part of the process of budgeting and setting 
program priorities, the NED Board will target a certain amount of its 
annual resources for institute programs in their respective fields of 
activity.
    (3) Unlike its practice for the majority of its grantees, NED will 
fund significant administrative costs for each of the core grantees.
    (4) Institute staff will assume responsibility for program 
development and preparation of proposals for the Board in each field of 
activity for which it has a special mandate.
    (5) NED will expect its core grantees to perform their monitoring/
evaluation function described in programmatic monitoring under Financial 
and programmatic monitoring above in a manner that will minimize the 
need to devote NED resources for these purposes. (Individual copies of 
the Grants Policy are available from the NED office.)
    (6) As stated above, in awarding grants the Board is guided by 
established grant selection criteria. In addition to evaluating how a 
program fits within NED's overall priorities, the Board considers 
factors such as the urgency of a program, its relevance to specific 
needs and conditions in a particular country, and the democratic 
commitment and experience of the applicant. NED is especially interested 
in proposals that originate with indigenous democratic groups. It is 
also interested in nonpartisan programs seeking to strengthen democratic 
values among all sectors of the democratic political spectrum.
    (d) Selection criteria. In determining the relative merit of a 
particular proposal NED considers whether the grant application:
    (1) Proposes a program that will make a concrete contribution to 
assisting foreign individuals or groups who

[[Page 335]]

are working for democratic ends and who need NED's assistance.
    (2) Proposes a program, project or activity which is consistent with 
current NED program priorities and contributes to overall program 
balance and effectiveness.
    (3) Proposes an activity that meets an especially urgent need.
    (4) Does not overlap with what others are doing well.
    (5) Proposes a program that will encourage an intellectual climate 
which is favorable to the growth of democratic institutions.
    (6) Proposes a program that is not only culturally or intellectually 
appealing, but will affect the education and the awareness of minorities 
and/or the less privileged members of a society.
    (7) Originates from an organization within a particular country 
representing the group whose needs are to be addressed.
    (8) Appears to be well thought out, avoiding imprudent activities 
and possibilities for negative repercussions.
    (9) Takes into consideration not only what objectively could be 
significant to a certain society, but how the cultural traditions and 
values of that society will react to the project.
    (10) Incorporates an analysis of the problem of democracy in the 
area in question and the method by which the proposed program will have 
a constructive impact on the problem.
    (11) Proposes a program that will enhance our understanding of what 
really helps in aiding democracy.
    (12) Creatively enlists supports for foreign democratic 
organizations.
    (13) Encourages democratic solutions and peaceful resolution of 
conflict in situations otherwise fraught with violence.
    (14) Proposes a program, project or activity that is clearly 
relevant to NED program objectives and not better funded by other 
government or private organizations. (Proposing organizations will be be 
referred to other funding organizations where substantial overlap 
exists.)
    (15) Proposes a program or strategy that is appropriate to the 
circumstances in the country concerned.
    (16) Proposes a program that can be expected to have a multiplier 
effect, hence having an impact broader than that of the specific project 
itself; or establishes a model that could be readily replicated in other 
countries or institutions.
    (17) Proposes appropriate, qualified staff who have a demonstrated 
ability to administer programs capably so as to accomplish stated goals 
and objectives.
    (18) Proposes an appropriate ratio of administrative to program 
funds.
    (19) Is responsive to NED suggestions with regard to program 
revisions.
    (20) Proposes a realistic budget that is consistent with NED 
perceptions of project value and is performed within a stated and 
realistic time frame; and
    (21) Proposes a program that has, as one of its principal aspects, a 
major impact on the role of women and/or minorities.
    (e) The following guidelines also apply to all projects funded by 
NED.
    (1) The proposing organization must be able to show that it is a 
responsible, credible organization or group that has a serious and 
demonstrable commitment to democratic values. (Various factors may be 
considered in this regard: recognized democratic orientation; 
established professional reputation; proven ability to perform; 
existence of organization charter, board of directors, regular audits, 
etc.);
    (2) The proposing organization must be willing to comply with all 
provisions of the National Endowment for Democracy Act as well as all 
provisions of current and subsequent agreements between the USIA and 
NED;
    (3) The proposing organization must agree not to use grant funds for 
the purpose of educating, training, or informing United States audiences 
of any U.S. political party's policy or practice, or candidate for 
office. (This condition does not exclude making grants or expenditures 
for the purpose of educating, training or informing audiences of other 
countries on the institutions and values of democracy that may 
incidentally educate, train, or inform American participants);
    (4) The proposing organization must agree that no NED funds will be 
used

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for lobbying or propaganda that is directed at influencing public policy 
decisions of the government of the United States or of any state or 
locality thereof;
    (5) The proposing organization must agree that there shall be no 
expenditure of NED funds for the purpose of supporting physical violence 
by individuals, groups or governments;
    (6) The proposing organization may not employ any person engaged in 
intelligence activity on behalf of the United States government or any 
other government;
    (7) NED will not normally reimburse grantees for expenses incurred 
prior to the signing of a grant agreement with NED;
    (8) Each grant made by NED will be an independent action implying no 
future commitment on NED's part to a project or program;
    (9) NED may, from time to time, fund feasibility studies. 
Applications for grants in this category should include, but not be 
limited to, the following: Scope, method and objective of the study; 
Calendar; Proposed administration of the study; and Detailed budget. The 
funding of a feasibility study by NED does not imply support for any 
project growing out of the study. It does, however, imply interest by 
NED in the area under study and a willingness to entertain a project 
proposal growing out of the study; and
    (10) The proposing organization may not use NED funds to finance the 
campaigns of candidates for public office.
    (f) All proposals received by NED are reviewed by the staff in order 
to determine their congruence with NED's purposes as stated in the 
organization's Articles of Incorporation and the NED Act.
    (g) Grant applications must contain the following information:
    (1) A one-page summary of the proposed program;
    (2) Organizational background and biographical information on staff 
and directors in the U.S. and abroad;
    (3) A complete project description, including a statement of 
objectives, a project calendar, and a description of anticipated 
results;
    (4) A statement describing how the project relates to NED's 
purposes;
    (5) A description of the methods to be used to evaluate the project 
in relation to its objectives;
    (6) A detailed budget, including an explanation of any counterpart 
support anticipated by the applicant, whether monetary or in-kind, 
domestic or foreign; and
    (7) The names and addresses of all other funding organizations to 
which the proposal has been submitted or will be submitted.
    (h) After an award determination has been made by the Board, NED 
enters into a grant agreement with the recipient. That agreement is made 
in accordance with NED policy, the terms of NED's grant agreement with 
USIA, and the terms of the Act, and the terms of NED's standard grant 
agreement as they apply to the specific project in question. The NED 
Board of Directors approved a revised Statement of General Procedures 
and Guidelines on September 12, 1986. The statement, outlined above, is 
available from the NED office.
    (i) NED Staff welcomes preliminary letters of inquiry prior to 
submission of a formal proposal. Letters of inquiry and formal proposals 
should be submitted to: Director of Program, National Endowment for 
Democracy 1101 15th Street, NW, Suite 700, Washington, DC 20005-5000.

[51 FR 40164, Nov. 5, 1986. Redesignated and amended at 64 FR 54541, 
Oct. 7, 1999]

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  SUBCHAPTER H_PROTECTION AND WELFARE OF AMERICANS, THEIR PROPERTY AND 
                                 ESTATES





PART 71_PROTECTION AND WELFARE OF CITIZENS AND THEIR PROPERTY--
Table of Contents



                      Subpart A_General Activities

Sec.
71.1 Protection of Americans abroad.
71.2 Requests for naval force in foreign port.
71.3 American claimants to foreign estates and inheritances.
71.4 Real property of deceased American citizens.
71.5 Storage or safekeeping of private property.
71.6 Services for distressed Americans.
71.7 Reports on catastrophes abroad.
71.8 Assistance to American Red Cross.
71.9 Presentation of Americans at foreign courts.

   Subpart B_Emergency Medical/Dietary Assistance for U.S. Nationals 
                           Incarcerated Abroad

71.10 Emergency medical assistance.
71.11 Short-term full diet program.
71.12 Dietary supplements.

    Authority: Sec. 4, 63 Stat. 111, as amended (22 U.S.C. 2658, 2670); 
Pub. L. 95-45 (91 Stat. 221).

    Source: 22 FR 10841, Dec. 27, 1957, unless otherwise noted.



                      Subpart A_General Activities



Sec.  71.1  Protection of Americans abroad.

    Officers of the Foreign Service shall perform such duties in 
connection with the protection of American nationals abroad as may be 
imposed upon them by rules and regulations prescribed by the Secretary 
of State.



Sec.  71.2  Requests for naval force in foreign port.

    Diplomatic representatives and consular officers shall not request 
the presence of a naval force in a foreign port unless a public 
emergency so necessitates. The request may be addressed to the officers 
in command of the naval force, in which event responsibility of action 
rests with them, or it may be addressed to the Department of State. In 
either case, the request should contain detailed reasons for its 
submission.



Sec.  71.3  American claimants to foreign estates and inheritances.

    Where treaty provisions, local laws, or established usage permit, a 
consular officer should protect the interests of American citizens 
claiming foreign estates and inheritances.



Sec.  71.4  Real property of deceased American citizens.

    In the absence of special provisions by treaty the devolution and 
transfer of real property are covered by the law of the place where the 
property is situated. When real property is left by the decedent within 
the country where death occurs, or where the decedent was domiciled at 
the time of death, the consular officer, or diplomatic officer, if there 
be no consular officer, should if feasible informally observe the 
proceedings and report to the diplomatic mission or the Department any 
apparent irregularity or unnecessary delay in settling the estate.



Sec.  71.5  Storage or safekeeping of private property.

    Except in a public emergency, no officer of the Foreign Service 
shall accept private property for storage or safekeeping in the office 
or for transmission to some other destination, unless it is property 
belonging to the estate of a deceased American citizen, or property over 
which the officer has jurisdiction as a result of a catastrophe at sea. 
In public emergencies, officers may accept private property for storage 
and safekeeping or for transmission to another destination, provided the 
owner signs a statement to the effect that the property is being 
accepted for deposit at his request, at his own risk, and with full 
knowledge that neither the Government of the United States nor any of 
its officers assumes responsibility therefor.

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Sec.  71.6  Services for distressed Americans.

    Officers of the Foreign Service shall extend every possible aid and 
assistance within their power to distressed American citizens within 
their districts, but they shall not expend the funds nor pledge the 
credit of the Government of the United States for this purpose, except 
in the case of American seamen, or except as authorized by the 
Department of State.



Sec.  71.7  Reports on catastrophes abroad.

    Whenever a great catastrophe occurs abroad, either on land or on 
sea, the officer within whose district the catastrophe takes place or 
into whose district the survivors are brought shall report immediately 
by telegraph the names of any American citizens who have been killed or 
injured and the names of American citizens known to be safe.



Sec.  71.8  Assistance to American Red Cross.

    Officers and employees of the Foreign Service may cooperate fully 
with the American Red Cross within their respective districts and 
subject to the limitations prescribed in Sec.  102.806 (22 CFR, 1947 
Supp.). They shall, however, avoid taking an active part in the 
solicitation of memberships or the collection of funds.



Sec.  71.9  Presentation of Americans at foreign courts.

    The chief of the mission concerned may exercise his discretion in 
the matter of procuring the presentation of American citizens at the 
court of the country to which he is accredited.



   Subpart B_Emergency Medical/Dietary Assistance for U.S. Nationals 
                           Incarcerated Abroad

    Source: 42 FR 60141, Nov. 25, 1977, unless otherwise noted.



Sec.  71.10  Emergency medical assistance.

    (a) Eligibility criteria. A U.S. national incarcerated abroad is 
considered eligible to receive funded medical treatment under the 
following general criteria:
    (1) Adequate treatment cannot or will not be provided by prison 
authorities or the host government;
    (2) All reasonable attempts to obtain private resources (prisoner's 
family, friends, etc.) have failed, or such resources do not exist;
    (3) There are medical indications that the emergency medical 
assistance is necessary to prevent, or attempt to prevent, the death of 
the prisoners, or failure to provide the serviced will cause permanent 
disablement.
    (b) Services covered. Funds, once approved, may be expended for:
    (1) Medical examination, when required;
    (2) Emergency treatment;
    (3) Non-elective surgery;
    (4) Medications and related medical supplies and equipment required 
on a routine basis to sustain life;
    (5) Preventive or protective medications and medical supplies and 
equipment (vaccinations, inoculations, etc.) required to combat epidemic 
conditions (general or intramural);
    (6) Childbirth attendance, including necessary medical care of 
newborn children; and
    (7) Within the consular district, transportation for the U.S. 
national and attendant(s) designated by incarcerating officials between 
the place of incarceration and the place(s) of treatment.
    (c) Consular responsibility. As soon as the consular officer is 
aware that a U.S. national prisoner in the consular district faces a 
medical crisis, the officer should take the following actions, setting 
forth the order or priority based on an evaluation of the facts 
received:
    (1) Make every effort to contact the ill or injured prisoner as soon 
as possible;
    (2) Take steps to obtain a professional medical diagnosis and 
prognosis of the ill or injured prisoner;
    (3) Determine as accurately as possible the estimated costs of 
recommended treatment or surgery;
    (4) Obtain the names and addreses of family or friends who might 
serve as a source of private funds for medical services, and attempt to 
obtain the necessary funds;

[[Page 339]]

    (5) Request the prisoner to execute a promissory note, since funds 
expended by the Department to cover medical services normally are on a 
reimbursable basis; and
    (6) Submit the above information, along with recommendations and 
evaluations, to the Department for approval and authorization.
    (d) Emergency expenditure authorization. When a medical emergency 
prohibits the delay inherent in contacting the Department and receiving 
authority to expend funds, the consular officer can expend up to an 
amount to be established by the Department without prior Departmental 
approval if:
    (1) Symptoms determine eligibility for emergency medical treatment; 
or
    (2) An immediate medical examination is warranted in order to verify 
the alleged abuse of a U.S. national prisoner by arresting or confining 
authorities; or
    (3) Immediate emergency medical treatment or surgery is necessary to 
prevent death or permanent disablement, and there is insufficient time 
to explore private funds or obtain Department approval; and
    (4) A promissory note already has been executed by the prisoner, or 
if the circumstances warrant, by the consular officer without recourse.



Sec.  71.11  Short-term full diet program.

    (a) Eligibility criteria. A prisoner is considered eligible for the 
short-term full diet program under the following general criteria:
    (1) The prisoner is to be or has been held in excess of one day in a 
holding jail or other facility;
    (2) Incarcerating officials do not provide the prisoner food, and 
food is not available from any other sources, including private funding 
from family or friends; and
    (3) If the funds exceed an amount to be established by the 
Department, the prisoner signs a promissory note for funds expended, 
since the assistance is on a normally reimbursable basis.
    (b) Consular responsibility. As soon as the consular officer is 
aware that a U.S. national is incarcerated in a facility wherein food is 
not routinely provided, the consular officer should:
    (1) Contact the prisoner in accordance with existing procedures;
    (2) Determine the normal cost of basic diet and best method of 
effecting payment;
    (3) Attempt to secure funds from private sources such as family or 
friends;
    (4) Because funds expended by the Department to cover the short-term 
full diet program normally are on a reimbursable basis, have the 
prisoner execute a promissory note; and
    (5) Contact the Department, providing the above information, for 
approval and authorization.
    (c) Emergency expenditure authorization. Since an immediate need for 
a short-term full diet program often prohibits the delay inherent in 
contacting the Department and receiving authority to expend funds, the 
consular officer can expend up to an amount to be established by the 
Department without prior Departmental approval if the prisoner's case 
meets the criteria established in paragraph (a) of this section. 
Expenditures above the predetermined limit must receive the prior 
approval of the Department.



Sec.  71.12  Dietary supplements.

    (a) Eligibility criteria. A prisoner is considered eligible for the 
dietary supplement program under the following general criteria:
    (1) An evaluation by a priviate physician, prison doctor, or other 
host country medical authority reveals that the prison diet does not 
meet the minimum requriements to sustain adequate health; or
    (2) If the evaluation in paragraph (a)(1) of this section is not 
available, an evaluation by either a regional medical officer or 
Departmental medical officer reveals that the prison diet does not 
provide the minimum requirements to sustain adequate health.
    (b) Consular responsibility. (1) When the consular officer is aware 
that the U.S. prisoner's diet does not provide the minimum requirements 
to sustain adequate health, the consular officer shall obtain the 
necessary dietary supplements and distribute them to the prisoner on a 
regular basis.
    (2) As soon as the consular officer believes that dietary 
supplements are being misused, the consular officer

[[Page 340]]

shall suspend provision of the dietary supplements and report the 
incident in full to the Department.



PART 72_DEATHS AND ESTATES--Table of Contents



               Reporting Deaths of United States Nationals

Sec.
72.1 Definitions.
72.2 Consular responsibility.
72.3 Exceptions.
72.4 Notifications of death.
72.5 Final report of death.
72.6 Report of presumptive death.

                         Disposition of Remains

72.7 Consular responsibility.

   Personal Estates of Deceased United States Citizens and Nationals.

72.8 Regulatory responsibility of consular officer.
72.9 Responsibility if legal representative is present.
72.10 Responsibility if a will intended to operate locally exists.
72.11 Responsibility if a will intended to operate in the United States 
          exists.
72.12 Bank deposits in foreign countries.
72.13 Effects to be taken into physical possession.
72.14 Nominal possession; property not normally taken into physical 
          possession.
72.15 Action when possession is impractical.
72.16 Procedure for inventorying and appraising effects.
72.17 Final statement of account.
72.18 Payment of debts owed by decedent.
72.19 Consular officer is ordinarily not to act as administrator of 
          estate.
72.20 Prohibition against performing legal services or employing 
          counsel.
72.21 Consular officer not to assume financial responsibility for the 
          estate.
72.22 Release of personal estate to legal representative.
72.23 Affidavit of next of kin.
72.24 Conflicting claims.
72.25 Transfer of personal estate to Department of State.
72.26 Vesting of personal estate in United States.
72.27 Export of cultural property; handling other property when export, 
          possession, or import may be illegal.
72.28 Claims for lost, stolen, or destroyed personal estate.

Real Property Overseas Belonging to a Deceased United States Citizen or 
                                National.

72.29 Real property overseas belonging to deceased United States citizen 
          or national.
72.30 Provisions in a will or advanced directive regarding disposition 
          of remains.

                                  Fees

72.31 Fees for consular death and estates services.

    Authority: 22 U.S.C. 2715, 2715b, 2715c, 4196, 4197, 4198, 4199.

    Source: 72 FR 8889, Feb. 28, 2007, unless otherwise noted.

               Reporting Deaths of United States Nationals



Sec.  72.1  Definitions.

    For purposes of this part:
    (a) Consular officer includes any United States citizen employee of 
the Department of State who is designated by the Department of State to 
perform consular services relating to the deaths and estates abroad of 
United States nationals.
    (b) Legal representative means--
    (1) An executor designated by will intended to operate in the 
country where the death occurred or in the country where the deceased 
was residing at the time of death to take possession and dispose of the 
decedent's personal estate;
    (2) An administrator appointed by a court of law in intestate 
proceedings in the country where the death occurred or in the country 
where the deceased was residing at the time of death to take possession 
and dispose of the decedent's personal estate;
    (3) The next of kin, if authorized in the country where the death 
occurred or in the country where the deceased was residing at the time 
of death to take possession and dispose of the decedent's personal 
estate; or
    (4) An authorized agent of the individuals described in paragraphs 
(b)(1), (b)(2) and (b)(3) of this section.
    (c) Department means the United States Department of State



Sec.  72.2  Consular responsibility.

    When a consular officer learns that a United States citizen or non-
citizen national has died in the officer's consular district, the 
officer must--
    (a) Report the death to the Department; and
    (b) The officer must also try to notify, or assist the Secretary of 
State in

[[Page 341]]

notifying, the next of kin (or legal guardian) and the legal 
representative, if different from the next of kin, as soon as possible. 
See Sec.  72.3 for exceptions to this paragraph.



Sec.  72.3  Exceptions.

    If a consular office learns that a United States citizen or non-
citizen national employee or dependent of an employee of a member of the 
United States Armed Forces, or a United States citizen or non-citizen 
national employee of another department or agency or a dependent of such 
an employee, or a Peace Corps volunteer as defined in 22 U.S.C. 1504(a) 
or dependent of a Peace Corps volunteer has died while in the officer's 
consular district while the employee or volunteer is on assignment 
abroad, the officer should notify the Department. The consular officer 
should not attempt to notify the next of kin (or legal guardian) and 
legal representative of the death, but rather should assist, as needed, 
the appropriate military, other department of agency or Peace Corps 
authorities in making notifications of death with respect to such 
individual.



Sec.  72.4  Notifications of death.

    The consular officer should make best efforts to notify the next of 
kin (or legal guardian), if any, and the legal representative (if any, 
and if different from the next of kin), of the death of a United States 
citizen or non-citizen national by telephone as soon as possible, and 
then should follow up with a written notification of death.



Sec.  72.5  Final report of death.

    (a) Preparation. Except in the case of the death of an active duty 
member of the United States Armed Forces, when there is a local death 
certificate or finding of death by a competent local authority, the 
consular officer should prepare a consular report of death (``CROD'') on 
the form prescribed by the Department. The CROD will list the cause of 
death that is specified on the local death certificate or finding of 
death. The consular officer must prepare an original Report of Death, 
which will be filed with the Vital Records Section of Passport Services 
at the Department of State. The consular officer will provide a 
certified copy of the Report of Death to the next of kin or other person 
with a valid need for the Report within six months of the time of death. 
The next of kin or other person with a valid need for the Report may 
obtain additional certified copies after six months by contacting the 
Department of State, Vital Records, Passport Services, 1111 19th St., 
NW., Rm. 510, Washington, DC 20036.
    (b) Provision to Department. The consular officer must sent the 
original of the CROD to the Department, with one additional copy for 
each agency concerned, if the deceased was:
    (1) A recipient of continuing payments other than salary from the 
Federal Government; or
    (2) An officer or employee of the Federal Government (other than a 
member of the United States Armed Services); or
    (3) A Selective Service registrant of inductable age.
    (c) Provision to next of kin/legal representative. The consular 
officer must provide a copy of the CROD to the next of kin (or legal 
guardian) or to each of the next of kin, in the event there is more than 
one (e.g. more than one surviving child) and to any known legal 
representative who is not the next of kin.
    (d) Transmission of form to other consular districts. If the 
consular officer knows that a part of the personal estate of the 
deceased is in a consular district other than that in which the death 
occurred, the officer should send a copy of the CROD to the consular 
officer in the other district.
    (e) The Department may revoke a CROD if it determines in its sole 
discretion that the CROD was issued in error.



Sec.  72.6  Report of presumptive death.

    (a) Local finding. When there is a local finding of presumptive 
death by a competent local authority, a consular officer should prepare 
a consular report of presumptive death on the form prescribed by the 
Department.
    (b) No local finding. (1) A United States citizen or non-citizen 
national may disappear or be missing in circumstances where it appears 
likely that the individual has died, but there

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is no local authority able or willing to issue a death certificate or a 
judicial finding of death. This may include, for example, death in a 
plane crash where there are no identifiable remains, death in a plane 
crash beyond the territory of any country, death in an avalanche, 
disappearance/death at sea, or other sudden disaster where the body is 
not immediately (or perhaps ever) recoverable.
    (2) Authorization of issuance. The Department may authorize the 
issuance of a consular report of presumptive death in such 
circumstances. A consular report of presumptive death may not be issued 
without the Department's authorization.
    (3) Considerations in determining whether the Department will 
authorize issuance of a Report of Presumptive Death. The Department's 
decision whether to issue a Report of Presumptive Death is 
discretionary, and will be based on the totality of circumstances in 
each particular case. Although no one factor is conclusive or 
determinative, the Department will consider the factors cited below, 
among other relevant considerations, when deciding whether to authorize 
issuance in a particular case:
    (i) Whether the death is believed to have occurred within a 
geographic area where no sovereign government exercises jurisdiction;
    (ii) Whether the government exercising jurisdiction over the place 
where the death is believed to have occurred lacks laws or procedures 
for making findings of presumptive death;
    (iii) Whether the government exercising jurisdiction over the place 
where the death is believed to have occurred requires a waiting period 
exceeding five years before findings of presumptive death may be made;
    (iv) Whether the person who is believed to have died was seen to be 
in imminent peril by credible witnesses;
    (v) Whether the person who is believed to have died is reliably 
known to have been in a place which experienced a natural disaster, or 
catastrophic event, that was capable of causing death;
    (vi) Whether the person believed to have died was listed on the 
certified manifest of, and was confirmed to have boarded, an aircraft, 
or vessel, which was destroyed and, despite diligent search by competent 
authorities, some or all of the remains were not recovered or could not 
be identified;
    (vii) Whether there is evidence of fraud, deception, or malicious 
intent.
    (c) Consular reports of presumptive death should be processed and 
issued in accordance with Sec.  72.5.
    (d) The Department may revoke a report of presumptive death if it 
determines in its sole discretion that the report was issued in error.

                         Disposition of Remains



Sec.  72.7  Consular responsibility.

    (a) A consular officer has no authority to create Department or 
personal financial obligations in connection with the disposition of the 
remains of a United States citizen or non-citizen national who dies 
abroad. Responsibility for the disposition of the remains and all 
related costs (including but not limited to costs of embalming or 
cremation, burial expenses, cost of a burial plot or receptacle for 
ashes, markers, and grave upkeep), rests with the legal representative 
of the deceased. In the absence of a legal representative (including 
when the next of kin is not a legal representative), the consular 
officer should ask the next of kin to provide funds and instructions for 
disposition of remains. If the consular officer cannot locate a legal 
representative or next of kin, the consular officer may ask friends or 
other interested parties to provide the funds and instructions.
    (b) Arrangements for the disposition of remains must be consistent 
with the law and regulations of the host country and any relevant United 
States laws and regulations. Local law may, for example, require an 
autopsy, forbid cremation, require burial within a certain period of 
time, or specify who has the legal authority to make arrangements for 
the disposition of remains.
    (c) If funds are not available for the disposition of the remains 
within the period provided by local law for the interment or 
preservation of dead bodies, the remains must be disposed of by the 
local authorities in accordance with local law or regulations.

[[Page 343]]

    Personal Estates of Deceased United States Citizens and Nationals



Sec.  72.8  Regulatory responsibility of consular officer.

    (a) A consular officer should act as provisional conservator of the 
personal estate of a United States citizen or non-citizen national who 
dies abroad in accordance with, and subject to, the provisions of 
Sec. Sec.  72.9 through 72.27. The consular officer may act as 
provisional conservator only with respect to the portion of the personal 
estate located within the consular officer's district.
    (b) A consular officer may act as provisional conservator only to 
the extent that doing so is:
    (1) Authorized by treaty provisions;
    (2) Not prohibited by the laws or authorities of the country where 
the personal estate is located; or
    (3) Permitted by established usage in that country.



Sec.  72.9  Responsibility if legal representative is present.

    (a) A consular officer should not act as provisional conservator if 
the consular officer knows that a legal representative is present in the 
foreign country.
    (b) If the consular officer learns that a legal representative is 
present after the consular officer has taken possession and/or disposed 
of the personal estate but prior to transmission of the proceeds and 
effects to the Secretary of State pursuant to Sec.  72.25, the consular 
officer should follow the procedures specified in Sec.  72.22.



Sec.  72.10  Responsibility if a will intended to operate locally exists.

    (a) If a will that is intended to operate in the foreign country is 
discovered and the legal representative named in the will qualifies 
promptly and takes charge of the personal estate in the foreign country, 
the consular officer should assume no responsibility for the estate, and 
should not take possession, inventory and dispose of the personal 
property and effects or in any way serve as agent for the legal 
representative.
    (b) If the legal representative does not qualify promptly and if the 
laws of the country where the personal estate is located permit, 
however, the consular officer should take appropriate protective 
measures such as--
    (1) Requesting local authorities to provide protection for the 
property under local procedures; and/or
    (2) Placing the consular officer's seal on the personal property of 
the decedent, such seal to be broken or removed only at the request of 
the legal representative.
    (c) If prolonged delays are encountered by the local or domiciliary 
legal representative in qualifying and/or making arrangements to take 
charge of the personal estate, the consular officer should consult the 
Department concerning whether the will should be offered for probate.



Sec.  72.11  Responsibility if a will intended to operate 
in the United States exists.

    The consular officer immediately should forward any will that is 
intended to operate in the United States and that is among the effects 
taken into possession to the person or persons designated as 
executor(s). When the executor(s) cannot be located, the consular 
officer should send the will to the appropriate court in the State of 
the decedent's domicile. Until the consular officer knows that a legal 
representative is present in the foreign country and has qualified or 
made arrangements to take charge of the personal estate, the consular 
officer should act as provisional conservator in accordance with Sec.  
72.8.



Sec.  72.12  Bank deposits in foreign countries.

    (a) A consular officer is not authorized to withdraw or otherwise 
dispose of bank accounts and other assets deposited in financial 
institutions left by a deceased United States citizen or non-citizen 
national in a foreign country. Such deposits or other assets are not 
considered part of the personal estate of a decedent.
    (b) The consular officer should report the existence of bank 
accounts and other assets deposited in financial institutions of which 
the officer becomes aware to the legal representative, if any. The 
consular officer should inform

[[Page 344]]

the legal representative of the procedures required by local law and the 
financial institution to withdraw such deposits, and should provide a 
list of local attorneys in the event counsel is necessary to assist in 
withdrawing the funds.
    (c) A consular officer must not under any circumstances withdraw 
funds left by a deceased United States citizen or non-citizen national 
in a bank or financial institution in a foreign country without express 
approval and specific instructions from the Department.



Sec.  72.13  Effects to be taken into physical possession.

    (a) A consular officer normally should take physical possession of 
articles such as the following:
    (1) Convertibles assets, such as currency, unused transportation 
tickets, negotiable evidence of debts due and payable in the consular 
district, and any other instruments that are negotiable by the consular 
officer;
    (2) Luggage;
    (3) Wearing apparel;
    (4) Jewelry, heirlooms, and articles generally by sentimental value 
(such as family photographs);
    (5) Non-negotiable instruments, which include any document or 
instrument not negotiable by the consular officer because it requires 
either the signatures of the decedent or action by, or endorsement of, 
the decedent's legal representative. Nonnegotiable instruments include, 
but are not limited to, transportation tickets not redeemable by the 
consular officer, traveler's checks, promissory notes, stocks, bonds or 
similar instruments, bank books, and books showing deposits in building 
and loan associations, and
    (6) Personal documents and papers.
    (b) All articles taken into physical possession by a consular 
officer should be kept in a locked storage area on post premises. If 
access to storage facilities on the post premises cannot be adequately 
restricted, the consular officer may explore the possibility of renting 
a safe deposit box if there are funds available in the estate or from 
other sources (such as the next of kin).



Sec.  72.14  Nominal possession; property not normally taken into 
physical possession.

    (a) When a consular officer take articles of a decedent's personal 
property from a foreign official or other persons for the explicit 
purpose of immediate release to the legal representative such acton is 
not a taking of physical possession by the officer. Before releasing the 
property, the consular officer must require the legal representative to 
provide a release on the form prescribed by the Department discharging 
the consular officer of any responsibility for the articles transferred.
    (b) A consular officer is not normally expected to take physical 
possession of items of personal property such as:
    (1) Items of personal property found in residences and places of 
storage such as furniture, household effects and furnishings, works of 
art, and book and wine collections, unless such items are of such nature 
and quantity that they can readily be taken into physical possession 
with the rest of the personal effects;
    (2) Motor vehicles, airplanes or watercraft;
    (3) Toiletries, such as toothpaste or razors;
    (4) Perishable items.
    (c) The consular officer should in his or her discretion take 
appropriate steps permitted under the laws of the country where the 
personal property is located to safeguard property in the personal 
estate that is not taken into the officer's physical possession 
including such actions as:
    (1) Placing the consular officer's seal on the premises or on the 
property (whichever is appropriate);
    (2) Placing such property in safe storage such as a bonded 
warehouse, if the personal estate contains sufficient funds to cover the 
costs of such safekeeping; and/or
    (3) If property that normally would be sealed by the consular 
officer is not immediately accessible, requesting local authorities to 
seal the premises or the property or otherwise ensure that the property 
remains intact until consular seals can be placed thereon, the property 
can be placed in safe storage, or the legal representative can assume 
responsibility for the property.

[[Page 345]]

    (d) the consular officer may decide in his or her discretion to 
discard toiletries and perishable items.



Sec.  72.15  Action when possession is impractical.

    (a) A consular officer should not take physical possession of the 
personal estate of a deceased United States citizen or non-citizen 
national in his or her consular district when the consular officer 
determines in his or her discretion that it would be impractical to do 
so.
    (b) In such cases, the consular officer must take action that he or 
she determines in his or her discretion would be appropriate to protect 
t the personal estate such as:
    (1) Requesting the persons, officials or organizations having 
custody of the personal estate to ship the property to the consular 
officer, if the personal estate contains sufficient funds to cover the 
costs of such shipment; or
    (2) Requesting local authorities to safeguard the property until a 
legal representative can take physical possession.



Sec.  72.16  Procedure for inventorying and appraising effects.

    (a) After taking physical possession of the personal estate of a 
deceased United States citizen or non-citizen national, the consular 
officer should promptly inventory the personal effects.
    (b) If the personal estate taken into physical possession includes 
apparently valuable items, the consular officer may, in his or her 
discretion, seek a professional appraisal for such items, but only to 
the extent that there are funds available in the estate or from other 
sources (such as the next of kin) to cover the cost of appraisal.
    (c) The consular officer must also prepare a list of articles not 
taken into physical possession, with an indication of any measures taken 
by the consular office to safeguard such items for submission with the 
inventory of effects.



Sec.  72.17  Final statement of account.

    The consular officer may have to account directly to the parties in 
interest and to the courts of law in estate matters. Consequently, the 
officer must keep an account of receipts and expenditures for the 
personal estate of the deceased, and must prepare a final statement of 
account when turning over the estate to the legal representative, a 
claimant, or the Department.



Sec.  72.18  Payment of debts owed by decedent.

    The consular officer may pay debts of the decedent which the 
consular officer believes in his or her discretion are legitimately owed 
in the country in which the death occurred, or in the country in which 
the decedent was residing at the time of death, including expenses 
incident to the disposition of the remains and the personal effects, out 
of the convertible assets of the personal estate taken into possession 
by the consular officer.



Sec.  72.19  Consular officer is ordinarily not to act as 
administrator of estate.

    (a) A consular officer is not authorized to accept appointment from 
any foreign state or from a court in the United States and/or to act as 
administrator or to assist (except as provided in Sec. Sec.  72.8 to 
72.30) in administration of the personal estate of a United States 
citizen or non-citizen national who has died, or was residing at the 
time of death, in his or her consular district, unless the Department 
has expressly authorized the appointment. The Department will authorize 
such an appointment only in exceptional circumstances and will require 
the consular officer to execute bond consistent with 22 U.S.C. 4198 and 
4199.
    (b) The Department will not authorize a consular officer to serve as 
an administrator unless:
    (1) Exercise of such responsibilities is:
    (i) Authorized by treaty provisions or permitted by the laws or 
authorities of the country where the United States citizen or national 
died or was domiciled at the time of death; or
    (ii) Permitted by established usage in that country; and
    (2) The decedent does not have a legal representative in the 
consular district.

[[Page 346]]



Sec.  72.20  Prohibition against performing legal services 
or employing counsel.

    A consular officer may not act as an attorney or agent for the 
estate of a deceased United States citizen or non-citizen national 
overseas or employ counsel at the expense of the United States 
Government in taking possession and disposing of the personal estate of 
a United States citizen or non-citizen national who dies abroad, unless 
specifically authorized in writing by the Department. If the legal 
representative or other interested person wishes to obtain legal 
counsel, the consular officer may furnish a list of attorneys.



Sec.  72.21  Consular officer may not assume financial responsibility 
for the estate.

    A consular officer is not authorized to assume any financial 
responsibility or to incur any expense on behalf of the United States 
Government in collecting and disposing of the personal estate of a 
United States citizen or national who dies abroad. A consular officer 
may incur expenses on behalf of the estate only to the extent that there 
are funds available in the estate or from other sources (such as the 
next of kin).



Sec.  72.22  Release of personal estate to legal representative.

    (a) If a person or entity claiming to be a legal representative 
comes forward at any time prior to transmission of the decedent's 
personal estate to the Secretary of State under 22 CFR 72.25, the 
consular officer may release the personal estate in his or her custody 
to the legal representative provided that:
    (1) The legal representative presents satisfactory evidence of the 
legal representative's right to receive the estate;
    (2) The legal representative pays any fees prescribed for consular 
services provided in connection with the disposition of remains or 
protection of the estate (see 22 CFR 22.1);
    (3) The legal representative executes a release in the form 
prescribed by the Department; and
    (4) The Department approves the release of the personal estate.
    (b) Satisfactory evidence of the right to receive the estate may 
include:
    (1) In the case of an executor, a certified copy of letters 
testamentary or other evidence of legal capacity to act as executor;
    (2) In the case of an administrator, a certified copy of letters of 
administration or other evidence of legal capacity to act as 
administrator;
    (3) In the case of the agent of an executor or administrator, a 
power of attorney or other document evidencing agency (in addition to 
evidence of the executor's or administrator's legal capacity to act).



Sec.  72.23  Affidavit of next of kin.

    If the United States citizen or non-citizen national who has died 
abroad did not leave a will that applies locally, and the personal 
estate in the consular district consists only of clothing and other 
personal effects that the consular officer concludes in his or her 
discretion is worth less than $2000 and/or cash of a value equal to or 
less than $2000, the consular officer may decide in his or her 
discretion to accept an affidavit from the decedent's next of kin as 
satisfactory evidence of the next of kin's right to take possession of 
the personal estate. The Department must approve any release based on an 
affidavit of next of kin where the consular officer concludes that the 
personal estate effects are worth more than $2000 and/or the cash 
involved is of a value more than $2000 and generally will consider 
approving such releases only in cases where state law prohibits the 
appointment of executors or administrators for estates that are valued 
at less than a specified amount and the law of the foreign country where 
the personal property is located would not prohibit such a release.



Sec.  72.24  Conflicting claims.

    Neither the consular officer nor the Department of State has the 
authority or responsibility to mediate or determine the validity or 
order of contending claims to the personal estate of a deceased United 
States citizen or non-citizen national. If rival claimants, executors or 
administrators demand the personal estate in the consular officer's 
possession, the officer should not release the estate to any

[[Page 347]]

claimant until a legally binding agreement in writing has been reached 
or until the dispute is settled by a court of competent jurisdiction, 
and/or the Department has approved the release.



Sec.  72.25  Transfer of personal estate to Department of State.

    (a) If no claimant with a legal right to the personal estate comes 
forward, or if conflicting claims are not resolved, within one year of 
the date of death, the consular officer should sell or dispose of the 
personal estate (except for financial instruments, jewelry, heirlooms, 
and other articles of obvious sentimental value) in the same manner as 
United States Government-owned foreign excess property under Title IV of 
the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 
511 et seq.). If, however, a reasonable amount of additional time is 
likely to permit final settlement of the estate, the consular officer 
may in his or her discretion postpone the sale for that period of 
additional time.
    (b) The consular officer should send to the custody of the 
Department the proceeds of any sale, together with all financial 
instruments (including bonds, shares of stock and notes of 
indebtedness), jewelry, heirlooms and other articles of obvious 
sentimental value, to be held in trust for the legal claimant(s).
    (c) After receipt of a personal estate, the Department may seek 
payment of all outstanding debts to the estate as they become due, may 
receive any balances due on such estate, may endorse all checks, bills 
of exchange, promissory notes, and other instruments of indebtedness 
payable to the estate for the benefit thereof, and may take such other 
action as is reasonably necessary for the conservation of the estate.



Sec.  72.26  Vesting of personal estate in United States.

    (a) If no claimant with a legal right to the personal estate comes 
forward within the period of five fiscal years beginning on October 1 
after the consular officer took possession of the personal estate, title 
to the personal estate shall be conveyed to the United States, the 
property in the estate shall be under the custody of the Department, and 
the Department may dispose of the estate under as if it were surplus 
United States Government-owned property under title II of the Federal 
Property and Administrative Services Act of 1949 (40 U.S.C. 4811 et seq. 
or by such means as may be appropriate as determined by Department in 
its discretion in light of the nature and value of the property 
involved. The expenses of sales shall be paid from the estate, and any 
lawful claim received thereafter shall be payable to the extent of the 
value of the net proceeds of the estate as a refund from the appropriate 
Treasury appropriations account.
    (b) The net cash estate shall be transferred to the miscellaneous 
receipts account of the Treasury of the United States.



Sec.  72.27  Export of cultural property; handling other property when export, 
possession, or import may be illegal.

    (a) A consular officer should not ship, or assist in the shipping, 
of any archeological, ethnological, or cultural property, as defined in 
19 U.S.C. 2601, that the consular officer is aware is part of the 
personal estate of a United States citizen or non-citizen national to 
the United States in order to avoid conflict with laws prohibiting or 
conditioning such export.
    (b) A consular officer may refuse to ship, or assist in the 
shipping, of any property that is part of the personal estate of a 
United States citizen or non-citizen national if the consular officer 
has reason to believe that possession or shipment of the property would 
be illegal.



Sec.  72.28  Claims for lost, stolen, or destroyed personal estate.

    (a) The legal representative of the estate of a decreased United 
States citizen or national may submit a claim to the Secretary of State 
for any personal property of the estate with respect to which a consular 
officer acted as provisional conservator, and that was lost, stolen, or 
destroyed while in the custody of officers or employees of the 
Department of State. Any such claim should be submitted to the Office of 
Legal Adviser, Department of State, in the manner prescribed by 28 CFR 
part

[[Page 348]]

14 and will be processed in the same manner as claims made pursuant to 
22 U.S.C. 2669-1 and 2669 (f).
    (b) Any compensation paid to the estate shall be in lieu of the 
personal liability of officers or employees of the Department to the 
estate.
    (c) The Department nonetheless may hold an officer or employee of 
the Department liability to the Department to the extent of any 
compensation provided to the estate. The liability of the officer or 
employee shall be determined pursuant to the Department's procedures for 
determining accountability for United States government property.

Real Property Overseas Belonging to a Decreased United States Citizen or 
                                National



Sec.  72.29  Real property overseas belonging to deceased United States 
citizen or national.

    (a) If a consular officer becomes aware that the estate of a 
deceased United States citizen or national includes an interest in real 
property located within the consular officer's district that will not 
pass to any person or entity under the applicable local laws of 
intestate succession or testamentary disposition, and if local law 
provides that title may be conveyed to the Government of the United 
States, the consular officer should notify the Department.
    (b) If the Department decides that it wishes to retain the property 
for its use, the Department will instruct the consular officer to take 
steps necessary to provide for title to the property to be conveyed to 
the Government of the United States.
    (c) If title to the real estate is conveyed to the Government of the 
United States and the property is of use to the Department of State, the 
Department may treat such property as if it were an unconditional gift 
accepted on behalf of the Department of State under section 25 of the 
State Department Basic Authorities Act (22 U.S.C. 2697) and section 
9(a)(3) of the Foreign Service Buildings Act of 1926 (22 U.S.C. 
300(a)(3)).
    (d) If the Department of State does not wish to retain such real 
property the Department may treat it as foreign excess property under 
title IV of the Federal Property and Administrative Services Act of 1949 
(40 U.S.C. 511 et seq.).



Sec.  72.30  Provisions in a will or advanced directive regarding 
disposition of remains.

    United States state law regarding advance directives, deaths and 
estates include provisions regarding a person's right to direct 
disposition of remains. Host country law may or may not accept such 
directions, particularly if the surviving spouse/next-of-kin disagree 
with the wishes of the testator/affiant.

                                  Fees



Sec.  72.31  Fees for consular death and estates services.

    (a) Fees for consular death and estates services are prescribed in 
the Schedule of Fees, 22 CFR 22.1.
    (b) The personal estates of all officers and employees of the United 
States who die abroad while on official duty, including military and 
civilian personnel of the Department of Defense and the United States 
Coast Guard are exempt from the assessment of any fees proscribed by the 
Schedule of Fees.

[[Page 349]]



                    SUBCHAPTER I_SHIPPING AND SEAMEN





PART 89_PROHIBITIONS ON LONGSHORE WORK BY U.S. NATIONALS--Table of Contents



    Authority: 8 U.S.C. 1288, Public Law 101-649, 104 Stat. 4878.



Sec.  89.1  Prohibitions on Longshore work by U.S. nationals; 
listing by country.

    The Secretary of State has determined that, in the following 
countries, longshore work by crewmembers aboard United States vessels is 
prohibited by law, regulation, or in practice, with respect to the 
particular activities noted:

                                 Albania

    (a) Cargo loading and discharge.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                 Algeria

    (a) All longshore activities.
    (b) Exception: Opening and closing of hatches.

                                 Angola

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches,
    (2) Rigging of ship's gear, and
    (3) Loading and discharge of cargo on board the ship if local labor 
is paid as if had done the work.

                                 Antigua

    (a) All longshore activities.
    (b) Exceptions: activities on board ship.

                                Argentina

    (a) All longshore activities.
    (b) Exceptions: activities on board ship.

           Australia (including Norfolk and Christmas Islands)

    (a) All longshore activities.
    (b) Exceptions:
    (1) When shore labor cannot be obtained at rates prescribed by 
collective bargaining agreements,
    (2) Operation of cargo-related equipment and opening and closing of 
hatches in small ports where there is insufficient shore labor, and
    (3) Rigging of ship's gear.

                                 Bahamas

    (a) Longshore activities on the pier.

                               Bangladesh

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment integral to the vessel when 
there is a shortage of port workers able to operate the equipment and 
with the permission of the port authority, and
    (2) Opening and closing of hatches.

                                Barbados

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches,
    (3) Rigging of ship's gear, and
    (4) Loading and discharge of cargo of less than 10 tons.

                                 Belgium

    (a) All longshore activities.
    (b) Exception: Rigging of ship's gear.

                                 Belize

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                  Benin

    (a) All longshore activities.
    (b) Exceptions:

[[Page 350]]

    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                                 Bermuda

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                                 Brazil

    (a) Cargo handling,
    (b) Operation of cargo-related equipment,
    (c) Watchmen,
    (d) Handling of mooring lines on the pier, and
    (e) Other longshore activities on the pier.
    (f) Exceptions:
    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                                 Brunei

    (a) All longshore activities.
    (b) Exceptions: Longshore activities on board ship.

                                Bulgaria

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches,
    (2) Mooring and line handling on board ship, and
    (3) Loading and discharge of supplies for the crew's own needs, 
spare parts for small repairs and other non-commercial longshore 
activities.

                                  Burma

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                                Cameroon

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                                 Canada

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of specialized self-loading/unloading log carriers on 
the Pacific Coast,
    (2) Operation of self-loading/unloading equipment and line handling 
by the crews of bulk vessels calling at private terminals,
    (3) Opening and closing of hatches,
    (4) Cleaning of holds and tanks,
    (5) Loading of ship's stores,
    (6) Operation of onboard rented equipment,
    (7) Ballasting and deballasting, and
    (8) Rigging of ship's gear.
    (c) Exceptions in connection with bulk cargo at Great Lakes ports 
only:
    (1) Handling of mooring lines on the pier when the vessel is made 
fast or let go,
    (2) Moving the vessel to place it under shoreside loading and 
unloading equipment,
    (3) Moving the vessel in position to unload the vessel onto specific 
cargo piles, hoppers or conveyor belt systems, and
    (4) Operation of cargo related equipment integral to the vessel.

                               Cape Verde

    (a) All longshore activities.

                                  Chile

    (a) Longshore activities on shore.
    (b) Transfer of cargo to or from ship.

                                  China

    (a) Longshore activities on shore.

                                Colombia

    (a) All longshore activities.
    (b) Exceptions: When local workers are unable or unavailable to 
provide longshore services.

                                 Comoros

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment, and
    (2) Opening and closing of hatches.

                      Congo, Democratic Republic of

    (a) All longshore activities.

[[Page 351]]

    (b) Exception: Operation of cargo-related equipment, when authorized 
by the Port Authority.

                              Cook Islands

    (a) Longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                               Costa Rica

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches and
    (3) Rigging of ship's gear.

                              Cote d'Ivoire

    (a) All longshore activities.

                                 Croatia

    (a) All longshore activities.

                                 Cyprus

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                                Djibouti

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                                Dominica

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                           Dominican Republic

    (a) Local longshore workers get paid if crewmembers operate loading 
and unloading equipment.

                                 Ecuador

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear,

                                  Egypt

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment integral to the ship except 
to load and discharge cargo,
    (2) Opening and closing of hatches,
    (3) Rigging of ship's gear, and
    (4) Handling of mooring lines on the ship.

                               El Salvador

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment belonging to the vessel,
    (2) Opening and closing of hatches,
    (3) Rigging of ship's gear, and
    (4) Special operations requiring special expertise, provided that 
local port workers are paid.

                                 Eritrea

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo-related equipment,
    (2) Opening and closing of hatches,
    (3) Rigging of ship's gear, and
    (4) Longshore activities for LASH vessels.

                                  Fiji

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches,
    (3) Rigging of ship's gear, and
    (4) Operation of computerized off-loading equipment when local 
expertise is not available.

                                 Finland

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, and

[[Page 352]]

    (2) Rigging of ship's gear.

France (including the French Antilles, French Guiana, French Polynesia, 
Mayotte, New Caledonia, Reunion, St. Pierre and Miquelon and Wallis and 
                                Fortuna)

    (a) All longshore activities.
    (b) Exceptions:
    (1) Loading and discharge of the ship's own material and provisions 
if done by the ship's own equipment or by the owner of the merchandise 
using his own personnel,
    (2) Opening and closing of hatches,
    (3) Rigging of ship's gear,
    (4) Operation of cargo-related equipment to shift cargo internally,
    (5) Handling operations connected with shipbuilding and refitting, 
and
    (6) Offloading fish by the crew or personnel for the shipowner.

                                  Gabon

    (a) All longshore activities.
    (b) Exception: All longshore activities if local workers are paid as 
if they had done the work.

                                 Gambia

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear,

                                 Georgia

    (a) All longshore activities.
    (b) Exception: All longshore activities if local workers are paid as 
if they had done the work.

                                 Germany

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                                  Ghana

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                 Greece

    (a) Operation of shore-based equipment to load/unload a vessel.

                                 Grenada

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                Guatemala

    (a) All longshore activities.
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                 Guinea

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment aboard ship,
    (2) Opening and closing of hatches,
    (3) Rigging of ship's gear, and
    (4) Other activities with the prior approval of the port authority.

                                 Guyana

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment aboard ship except to load 
or discharge cargo,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                  Haiti

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                                Honduras

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment,

[[Page 353]]

    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                Hong Kong

    (a) Operation of equipment on the pier.

                                 Iceland

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches,
    (2) Rigging of ship's gear, and
    (3) Longshore activities in smaller harbors where there are no local 
port workers.

                                  India

    (a) All longshore activities.
    (b) Exception: Operation of shipboard equipment that local port 
workers cannot operate.

                                Indonesia

    (a) All longshore activities.
    (b) Exceptions:
    (1) With the permission of the port administrator, when no local 
port workers with requisite skills are available, and
    (2) In the event of an emergency.

                                 Ireland

    (a) All longshore activities on pier or on land at port.

                                 Israel

    (a) All longshore activities.
    (b) Exceptions, other than for loading or discharging cargoes to and 
from the pier:
    (1) Operation of cargo-related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                  Italy

    (a) All longshore activities.
    (b) Exceptions: Cargo loading, discharge, and transfer upon 
presentation of the following information:
    (1) Documentation listing the vessel's mechanical apparatus for 
cargo handling,
    (2) A list of crewmembers who will perform the longshore activities,
    (3) An insurance policy guaranteeing recovery for damages to persons 
or property in relation to the longshore activities.

                                 Jamaica

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of unusual hatches,
    (2) Rigging of unusual ship's gear, and
    (3) Longshore activities on foreign government vessels or ships 
engaged on a community development or humanitarian project.

                                  Japan

    (a) All longshore activities.

                                 Jordan

    (a) All longshore activities.

                               Kazakhstan

    (a) All longshore activities.

                                  Kenya

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches,
    (2) Rigging of ship's gear,
    (3) In an emergency declared by the port authority, and
    (4) Direct transfer of cargo from one ship to another.

                                  Korea

    (a) All longshore activities.
    (b) Exceptions, when done in relation to ship safety, ship 
operation, or supervisory work to ensure that stevedoring is done 
correctly:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                 Kuwait

    (a) Longshore activities on shore.

                                 Latvia

    (a) All longshore activities.
    (b) Exceptions: activities on board the vessel.

[[Page 354]]

                                 Lebanon

    (a) Longshore activities on shore.

                                 Liberia

    (a) Longshore activities on shore.

                                Lithuania

    (a) All longshore activities.

                                  Macau

    (a) Longshore activities on the pier.

                               Madagascar

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                                Malaysia

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches,
    (3) Rigging of ship's gear, and
    (4) Loading and discharge of hazardous materials.

                             Maldive Islands

    (a) All longshore activities on shore.

                                  Malta

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                               Mauritania

    (a) Loading and discharge of cargo.
    (b) Exceptions:
    (1) Operation of cargo-related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                Mauritius

    (a) All longshore activities.
    (b) Exceptions, other than for normal cargo handling activities:
    (1) Operation of cargo-related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                 Mexico

    (a) All longshore activities.
    (b) Exception: Preparation of cargo handling equipment to be 
operated by local port workers.

                                 Morocco

    (a) Loading and discharge of merchandise,
    (b) Rigging of ship from dockside, and
    (c) Other longshore activities not onboard vessel.
    (d) Exceptions:
    (1) Operation of onboard cargo related equipment, and
    (2) Rigging of ship's gear onboard the ship, in coordination with 
local port workers.

                               Mozambique

    (a) Loading and discharge of cargo.
    (b) Exceptions:
    (1) Operation of cargo-related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                 Namibia

    (a) Longshore activities on shore.
    (b) Exceptions:
    (1) Operation of cargo-related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                  Nauru

    (a) All longshore activities.
    (b) Exceptions, with the authorization of the Harbor Master,
    (1) Operation of cargo-related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                               Netherlands

    (a) All longshore activities.
    (b) Exception: Regular crew activities on board ship, including 
operation of cargo-related equipment, opening and closing of hatches, 
and rigging of ship's gear.

[[Page 355]]

                          Netherlands Antilles

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of ship's gear,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                               New Zealand

    (a) All longshore activities that take longer than 28 days of 
arriving in territorial waters.

                                Nicaragua

    (a) All longshore activities.
    (b) Exception: Opening and closing of hatches and rigging of ship's 
gear if local workers are paid as if they had done the work.

                                 Nigeria

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of ship's gear,
    (2) Opening and closing of hatches,
    (3) Rigging of ship's gear, and
    (4) Instructing local employees on equipment.

                                  Oman

    (a) All longshore activities.
    (b) Exceptions:
    (1) Assisting in the operation of cargo related equipment if 
required,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                Pakistan

    (a) Longshore activities on shore, and
    (b) Handling of mooring lines.
    (c) Exception: Operation of equipment which pier workers are not 
capable of operating.

                                 Panama

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                            Papua New Guinea

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                                  Peru

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of sophisticated cargo-related equipment on container 
vessels,
    (2) First opening and last closing of hatches and holds, and
    (3) Cleaning of holds.

                               Philippines

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, if not related to cargo 
handling,
    (2) Rigging of ship's gear, if not related to cargo handling,
    (3) Longshore activities for hazardous or polluting cargoes, and
    (4) Longshore activities on government vessels.

                                 Poland

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo-related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                 Portugal (including Azores and Madeira)

    (a) All longshore activities.
    (b) Exceptions:
    (1) Military operations,
    (2) Operations in an emergency, when under the supervision of the 
maritime authorities,
    (3) Security or inspection operations,
    (4) Loading and discharge of supplies for the vessel and its crew,
    (5) Loading and discharge of fuel and petroleum products at special 
terminals,
    (6) Loading and discharge of chemical products if required for 
safety reasons,
    (7) Placing of trailers and similar material in parking areas when 
done before loading or after discharge,
    (8) Cleaning of the vessel,
    (9) Loading, discharge, and disposal of merchandise in other boats, 
and
    (10) Opening and closing hatches.

[[Page 356]]

                                  Qatar

    (a) All longshore activities.

                                 Romania

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of specialized shipboard equipment, and
    (2) Loading and discharge of cargo requiring special operations.

                                 Russia

    (a) All longshore activities performed with local port equipment.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                        St. Christopher and Nevis

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                St. Lucia

    (a) Loading, discharge and handling of general cargo.
    (b) Exceptions: activities on board the ship.

                     St. Vincent and the Grenadines

    (a) All longshore activities.
    (b) Exceptions: activities on board the ship.

                              Saudi Arabia

    (a) All longshore activities on shore.

                                 Senegal

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches,
    (2) Rigging of ship's gear, and
    (3) Cargo handling when necessary to ensure the safety or stability 
of the vessel.

                               Seychelles

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                              Sierra Leone

    (a) All longshore activities.

                                Singapore

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo-related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ships gear.

                                Slovenia

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                             Solomon Islands

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                              South Africa

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                                  Spain

    (a) All longshore activities.

                                Sri Lanka

    (a) Longshore activities on shore, and
    (b) Operation of cargo related equipment to load and discharge 
cargo.

                                 Sweden

    (a) All longshore activities.

                                  Sudan

    (a) All longshore activities.

                                  Syria

    (a) All longshore activities on shore.

[[Page 357]]

                                 Taiwan

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches operated automatically, and
    (2) Raising and lowering of ship's gear.

                                Tanzania

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                Thailand

    (a) Longshore activities on shore.

                                  Togo

    (a) Loading and discharge of cargo.
    (b) Exceptions:
    (1) Operation of cargo-related equipment on board the ship,
    (2) Opening and closing of hatches, and
    (3) Rigging of ships gear.

                                  Tonga

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo-related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                           Trinidad and Tobago

    (a) All longshore activities on shore.

                                 Tunisia

    (a) All longshore activities.
    (b) Exception: Operation of specialized equipment that local port 
workers cannot operate.

                                 Turkey

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo-related equipment,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                 Tuvalu

    (a) Longshore activities on shore.

                          United Arab Emirates

    (a) All longshore activities on shore.

                                 Uruguay

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of on-board cranes requiring expert operation or at 
the master's request,
    (2) Opening and closing of hatches, and
    (3) Rigging of ship's gear.

                                 Vanuatu

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                                Venezuela

    (a) Longshore activities on shore, at the discretion of the 
companies leasing and operating port facilities.

                                 Vietnam

    (a) All longshore activities.
    (b) Exceptions:
    (1) Operation of cargo-related equipment,
    (2) Opening and closing of hatches,
    (3) Rigging of ship's gear, and
    (4) Loading and discharge of cargo with on-board equipment when the 
port of call does not have the necessary equipment.

                              Western Samoa

    (a) All longshore activities.
    (b) Exceptions:
    (1) Opening and closing of hatches, and
    (2) Rigging of ship's gear.

                                  Yemen

    (a) Longshore activities on shore.

[68 FR 69601, Dec. 15, 2003]

[[Page 358]]



                 SUBCHAPTER J_LEGAL AND RELATED SERVICES





PART 91_IMPORT CONTROLS--Table of Contents



Sec.
91.1 Answering inquiries regarding tariff acts and custom regulations.
91.2 Furnishing samples to collectors of customs or appraising officers.
91.3 Assistance to Customs and Tariff Commission representatives.
91.4 Alcoholic liquors on vessels of not over 500 tons.

    Authority: Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658.

    Source: 22 FR 10858, Dec. 27, 1957, unless otherwise noted.



Sec.  91.1  Answering inquiries regarding tariff acts and customs regulations.

    In replying to inquiries received from exporters, travelers, or 
other interested parties, concerning tariff acts or customs regulations, 
consular officers shall refrain from giving, or appearing to give, 
decisions pertaining to matters upon which hey are not competent to 
pass.



Sec.  91.2  Furnishing samples to collectors of customs or appraising officers.

    Upon the receipt of a request therefor from a collector of customs 
or appraising officer of the Government of the United States, a consular 
officer shall procure and forward samples of merchandise being imported 
or offered for importation into the United States from his particular 
district.



Sec.  91.3  Assistance to Customs and Tariff Commission representatives.

    Consular officers shall render all proper assistance to Customs and 
Tariff Commission representatives abroad to aid them in the performance 
of their official duties.



Sec.  91.4  Alcoholic liquors on vessels of not over 500 tons.

    (a) Upon request of interested shippers or masters of vessels at 
ports in the consular district other than the place where the consular 
office is situated, consular officers shall designate one or more 
reputable individuals residing in each such port, as authorized persons 
to witness the signatures of the masters of vessels of not over 500 net 
tons when affixed to declarations covering shipments of alcoholic 
liquors destined to the United States, and to issue certificates 
therefor as contemplated by section 7 of the Anti-Smuggling Act of 1935 
(49 Stat. 520; 19 U.S.C. 1707). Any person so designated by a consular 
officer to issue such certificates shall state in each of his 
certificates that he has no interest in the shipment described therein. 
Having delivered the original document to the master, he shall forward 
the duplicate to the consular office for retention.
    (b) Consular officers shall, with respect to declarations of masters 
of vessels of not over 500 net tons in instances in which the port of 
shipment is the same place as, or conveniently near to, the location of 
the consular office, supply their certifications directly as 
contemplated by the said section of the Anti-Smuggling Act. They shall 
retain, over the interval prescribed in the applicable records 
retirement schedule, a copy of each document so certified by them. They 
shall similarly retain the copies of the certifications supplied by 
authorized persons in outlying ports of the consular district, as set 
forth in the preceding subsection.
    (c) This section, read together with Sec.  4.13, title 19, of the 
Code of Federal Regulations, comprises the joint regulations 
contemplated for issuance by the Secretary of State and the Secretary of 
the Treasury under section 7 of the Anti-Smuggling Act of 1935.

[32 FR 12588, Aug. 30, 1967]



PART 92_NOTARIAL AND RELATED SERVICES--Table of Contents



                              Introduction

Sec.
92.1 Definitions.
92.2 Description of overseas notarial functions of the Department of 
          State, record of acts.
92.3 Consular districts.
92.4 Authority of notarizing officers of the Department of State under 
          the Federal law.

[[Page 359]]

92.5 Acceptability of notarial acts under State or territorial law.
92.6 Authority of notarizing officers under international practice.
92.7 Responsibility of notarizing officers of the Department of State.

                       General Notarial Procedures

92.8 Compliance with request for notarial services.
92.9 Refusals of requests for notarial services.
92.10 Specific waiver in notarial certificate.
92.11 Preparation of legal documents.
92.12 Necessity for certification of notarial acts.
92.13 Form of notarial certificate.
92.14 Venue on notarial certificates.
92.15 Signing notarial certificate.
92.16 Sealing the notarial certificate.
92.17 Fastening of pages.

                         Specific Notarial Acts

92.18 Oaths and affirmations defined.
92.19 Administering an oath.
92.20 Administering an affirmation.
92.21 Notarial certificate to oath or affirmation.
92.22 ``Affidavit'' defined.
92.23 Taking an affidavit.
92.24 Usual form of affidavit.
92.25 Title of affidavit.
92.26 Venue on affidavit.
92.27 Affiant's allegations in affidavit.
92.28 Signature of affiant on affidavit.
92.29 Oath or affirmation to affidavit.
92.30 ``Acknowledgment'' defined.
92.31 Taking an acknowledgment.
92.32 Notarial certificate to acknowledgment.
92.33 Execution of certificate of acknowledgment.
92.34 Fastening certificate to instrument.
92.35 Errors in certificate of acknowledgment.
92.36 ``Authentication'' defined.
92.37 Authentication procedure.
92.38 Forms of certificate of authentication.
92.39 Authenticating foreign public documents (Federal procedures).
92.40 Authentication of foreign extradition papers.
92.41 Limitations to be observed in authenticating documents.
92.42 Certification of copies of foreign records relating to land 
          titles.
92.43 Fees for notarial services and authentications.

                    Depositions and Letters Rogatory

92.49 ``Deposition'' defined.
92.50 Use of depositions in court actions.
92.51 Methods of taking depositions in foreign countries.
92.52 ``Deposition on notice'' defined.
92.53 ``Commission to take depositions'' defined.
92.54 ``Letters rogatory'' defined.
92.55 Consular authority and responsibility for taking depositions.
92.56 Summary of procedure for taking depositions.
92.57 Oral examination of witnesses.
92.58 Examination on basis of written interrogatories.
92.59 Recording of objections.
92.60 Examination procedures.
92.61 Transcription and signing of record of examination.
92.62 Captioning and certifying depositions.
92.63 Arrangement of papers.
92.64 Filing depositions.
92.65 Depositions to prove genuineness of foreign documents.
92.66 Depositions taken before foreign officials or other persons in a 
          foreign country.
92.67 Taking of depositions in United States pursuant to foreign letters 
          rogatory.
92.68 Foreign Service fees and incidental costs in the taking of 
          evidence.
92.69 Charges payable to foreign officials, witnesses, foreign counsel, 
          and interpreters.
92.70 Special fees for depositions in connection with foreign documents.
92.71 Fees for letters rogatory executed by officials in the United 
          States.

                     Miscellaneous Notarial Services

92.72 Services in connection with patents and patent applications.
92.73 Services in connection with trademark registrations.
92.74 Services in connection with United States securities or interests 
          therein.
92.75 Services in connection with income tax returns.

         Copying, Recording, Translating and Procuring Documents

92.76 Copying documents.
92.77 Recording documents.
92.78 Translating documents.
92.79 Procuring copies of foreign public documents.
92.80 Obtaining American vital statistics records.

                          Quasi-Legal Services

92.81 Performance of legal services.
92.82 Recommending attorneys or notaries.
92.84 ``Legal process'' defined.
92.85 Service of legal process usually prohibited.
92.86 Consular responsibility for serving subpoenas.
92.87 Consular responsibility for serving orders to show cause.
92.88 Consular procedure.
92.89 Fees for service of legal process.

[[Page 360]]

92.90 Delivering documents pertaining to the revocation of 
          naturalization.
92.91 Service of documents at request of Congressional committees.
92.92 Service of legal process under provisions of State law.
92.93 Notarial services or authentications connected with service of 
          process by other persons.
92.94 Replying to inquiries regarding service of process or other 
          documents.
92.95 Transportation of witnesses to the United States.

    Authority: 22 U.S.C. 2658, unless otherwise noted.

    Source: 22 FR 10858, Dec. 27, 1957, unless otherwise noted.

                              Introduction



Sec.  92.1  Definitions.

    (a) In the United States the term notary or notary public means a 
public officer qualified and bonded under the laws of a particular 
jurisdiction for the performance of notarial acts, usually in connection 
with the execution of some document.
    (b) The term notarial act means an act recognized by law or usage as 
pertaining to the office of a notary public.
    (c) The term notarial certificate may be defined as the signed and 
sealed statement to which a ``notarial act'' is almost invariably 
reduced. The ``notarial certificate'' attests to the performance of the 
act by the notary, and may be an independent document or as in general 
American notarial practice, may be placed on or attached to the 
notarized document.
    (d) For purposes of this part, except Sec. Sec.  92.36 through 92.42 
relating to the authentication of documents, the term notarizing officer 
includes consular officers, officers of the Foreign Service who are 
secretaries of embassy or legation under Section 24 of the Act of August 
18, 1856, 11 Stat. 61, as amended (22 U.S.C. 4221), and such U.S. 
citizen Department of State employees as the Deputy Assistant Secretary 
of State for Overseas Citizens Services may designate for the purpose of 
performing notarial acts overseas pursuant to section 127(b) of the 
Foreign Relations Authorization Act, Fiscal Years 1994-1995, Pub. L. 
103-236, April 30, 1994 (``designated employees''). The authority of 
designated employees to perform notarial services shall not include the 
authority to perform authentications, to notarize patent applications, 
or take testimony in a criminal action or proceeding pursuant to a 
commission issued by a court in the United States, but shall otherwise 
encompass all notarial acts, including but not limited to administering 
or taking oaths, affirmations, affidavits or depositions.
    The notarial authority of a designated employee shall expire upon 
termination of the employee's assignment to such duty and may also be 
terminated at any time by the Deputy Assistant Secretary for Overseas 
Citizen Services.

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51721, Oct. 3, 1995]



Sec.  92.2  Description of overseas notarial functions 
of the Department of State, record of acts.

    The overseas notarial function of notarizing officers of the 
Department of State is similar to the function of a notary public in the 
United States. See Sec.  22.5(b) of this chapter concerning the giving 
of receipts for fees collected and the maintenance of a register serving 
the same purposes as the record which notaries are usually expected or 
required to keep of their official acts.

[60 FR 51721, Oct. 3, 1995]



Sec.  92.3  Consular districts.

    Where consular districts have been established, the geographic 
limits of the district determine the area in which notarial acts can be 
performed by the notarizing officer. See Sec.  92.41 (b) regarding 
authentication of the seals and signatures of foreign officials outside 
the consular district.

[27 FR 12616, Dec. 20, 1962, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.4  Authority of notarizing officers of the Department of State 
under Federal law.

    (a) All notarizing officers are required, when application is made 
to them within the geographic limits of their consular district, to 
administer to and take from any person any oath, affirmation, affidavit, 
or deposition, and to perform any notarial act which

[[Page 361]]

any notary public is required or authorized by law to perform within the 
United States. The term ``notarial act'' as used herein shall not 
include the performance of extraordinary acts, such as marriages, that 
have not been traditionally regarded as notarial, notwithstanding that 
notary publics may be authorized to perform such acts in some of the 
states of the United States. If a request is made to perform an act that 
the notarizing officer believes is not properly regarded as notarial 
within the meaning of this regulation, the officer shall not perform the 
act unless expressly authorized by the Department upon its determination 
that the act is a notarial act within the meaning of 22 U.S.C. 4215 and 
4221. The language ``within the limits of the consulate'' is construed 
to mean within the geographic limits of a consular district. With 
respect to notarial acts performed by notarizing officers away from 
their office, see Sec.  92.7. Notarial acts shall be performed only if 
their performance is authorized by treaty provisions or is permitted by 
the laws or authorities of the country wherein the notarizing officer is 
stationed.
    (b) These acts may be performed for any person regardless of 
nationality so long as the document in connection with which the 
notarial service is required is for use within the jurisdiction of the 
Federal Government of the United States or within the jurisdiction of 
one of the States or Territories of the United States. (However, see 
also Sec.  92.6.) Within the Federal jurisdiction of the United States, 
these acts, when certified under the hand and seal of office of the 
notarizing officer are valid and of like force and effect as if 
performed by any duly authorized and competent person within the United 
States. Documents bearing the seal and signature of a secretary of 
embassy or legation, consular officer (including consul general, vice 
consul or consular agent) are admissible in evidence within the Federal 
jurisdiction without proof of any such seal or signature being genuine 
or of the official character of the notarizing officer.
    (c) Every notarizing officer may perform notarial acts for use in 
countries occupied by the United States or under its administrative 
jurisdiction, provided the officer has reason to believe that the 
notarial act will be recognized in the country where it is intended to 
be used. These acts may be performed for United States citizens and for 
nationals of the occupied or administered countries, who reside outside 
such countries, except in areas where another government is protecting 
the interests of the occupied or administered country.
    (d) Chiefs of mission, that is, ambassadors and ministers, have no 
authority under Federal law to perform notarial acts except in 
connection with the authentication of extradition papers (see Sec.  
92.40).
    (e) Consular agents have authority to perform notarial services but 
acting consular agents do not.

[22 FR 10858, Dec. 27, 1957, as amended at 27 FR 12616, Dec. 20, 1962; 
60 FR 51721, Oct. 3, 1995]



Sec.  92.5  Acceptability of notarial acts under State or territorial law.

    The acceptability with the jurisdiction of a State or Territory of 
the United States of a certificate of a notarial act performed by a 
notarizing officer depends upon the laws of the State or Territory.

[60 FR 51721, Oct. 3, 1995]



Sec.  92.6  Authority of notarizing officers under international practice.

    Although such services are not mandatory, notarizing officers may, 
as a courtesy, perform notarial acts for use in countries with which the 
United States has formal diplomatic and consular relations. Generally 
the applicant for such service will be a United States citizen or a 
national of the country in which the notarized document will be used. 
The notarizing officer's compliance with a request for a notarial 
service of this type should be based on the reasonableness of the 
request and the absence of any apparent irregularity. When a notarizing 
officer finds it advisable to do so, the officer may question the 
applicant to such extent as may be necessary to be assured of the 
reasonableness of the request and the absence of irregularity.
    (a) That his notarial certificate may reasonably be expected to 
satisfy the legal requirements of the country in

[[Page 362]]

which the notarized document will be used;
    (b) That the notarial service is legally necessary and cannot be 
obtained otherwise than through a United States notarizing officer 
without loss or serious inconvenience to the applicant; and
    (c) That the notarial certifcate will be used solely for a well-
defined purpose, as represented by the applicant for the service. (See 
also Sec.  92.4(c) regarding notarial services for use in countries 
occupied by the United States or under its administrative jurisdiction.)

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51721, Oct. 3, 1995]



Sec.  92.7  Responsibility of notarizing officers of the Department of State.

    (a) As a rule notarial acts should be performed at the consular 
office. Where required by the circumstances of a particular case and 
subject to the reasonableness of the request notarial acts may be 
performed elsewhere within the limits of the consulate subject to the 
assessment of the applicable fees under subheading ``Services Rendered 
Outside of Office'' of the Tariff of Fees (Sec.  22.1(a) of this 
chapter), as well as to payment by the interested party of the officer's 
expenses in going to the place where the service is performed and 
returning to his office (Sec.  22.1(b) of this chapter).
    (b) As indicated in Sec. Sec.  92.4, 92.5, and 92.6, the authority 
of secretaries of embassy or legation as well as consular officers to 
perform notarial acts is generally recognized. However, the function is 
essentially consular, and notarial powers are in practice exercised by 
diplomatic officers only in the absence of a consular officer or U.S. 
citizen State Department employee designated to perform notarial 
functions as provided in Sec.  92.1(d). Performance of notarial acts by 
an officer assigned in dual diplomatic and consular capacity shall be 
performed in his/her consular capacity, except in special circumstances.

[27 FR 12616, Dec. 20, 1962, as amended at 60 FR 51721, Oct. 3, 1995]

                       General Notarial Procedures



Sec.  92.8  Compliance with request for notarial services.

    A notarizing officer should comply with all proper requests for the 
performance of notarial services within the limitations prescribed in 
this part. (See particularly Sec. Sec.  92.3 to 92.7). Moreover, as a 
representative of the United States Government, the notarizing officer, 
when acting in a notarial capacity, should take great care to prevent 
the use of his official seal in furthering any unlawful or clearly 
improper purpose. (See Sec.  92.9 regarding refusal to perform notarial 
services in certain cases.)

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51721, Oct. 3, 1995]



Sec.  92.9  Refusals of requests for notarial services.

    (a) A notarizing officer should refuse requests for notarial 
services, the performance of which is not authorized by treaty 
provisions or permitted by the laws or authorities of the country in 
which he is stationed. (See Sec.  92.4(a).) Also, a notarizing officer 
should refuse to perform notarial acts for use in transactions which may 
from time to time be prohibited by law or by regulations of the United 
States Government such, for example, as regulations based on the 
``Trading With the Enemy Act of 1917,'' as amended.
    (b) A notarizing officer is also authorized to refuse to perform a 
notarial act if he had reasonable grounds for believing that the 
document in connection with which his notarial act is requested will be 
used for a purpose patently unlawful, improper or inimical to the best 
interests of the United States. Requests for notarial services should be 
refused only after the most careful deliberation.

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.10  Specific waiver in notarial certificate.

    If the notarizing officer has reason to believe that material 
statements in a document presented for notarization are false, and if no 
basis exists for refusing the notarial service in accordance with Sec.  
92.9, he may consider the advisability of informing the applicant

[[Page 363]]

that he will perform the service only with a specific waiver of 
responsibility included in the notarial certificate. Furthermore, a 
notarizing officer may, in his discretion, add to the specific waiver in 
the notarial certificate a statement of verifiable facts known to him, 
which will reveal the falsity of material in the document. However, 
normally a notarizing officer shall exercise great caution not to limit 
the general privilege of a United States citizen while abroad to execute 
under oath any statement he sees fit to make, including mistaken, 
unnecessary, and even frivolous statements: Provided, That substantial 
and compelling reasons do not exist which impel restraining action on 
the part of the notarizing officer. On the other hand, experience has 
shown the desirability of including, as standard practice, a specific 
waiver of responsibility in all authentications (Sec.  92.38) executed 
in connection with divorce proceedings.

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.11  Preparation of legal documents.

    (a) By attorneys. When a document has been prepared by an attorney 
for signature, a notarizing officer should not question the form of 
document unless it is obviously incorrect.
    (b) By notarizing officers. A notarizing officer should not usually 
prepare for private persons legal documents for signature and 
notarization. (However, see the provisions in Sec.  92.24 regarding the 
preparation of affidavits.) When asked to perform such a service, the 
notarizing officer should explain that the preparation of legal forms is 
normally the task of an attorney, that the forms used and the purposes 
for which they are used vary widely from jurisdiction to jurisdiction 
and that he could not guarantee the legal effectiveness of any document 
which he might prepare. The person desiring the preparation of a legal 
document should be referred to such publications as Jones Legal Forms 
and The Lawyers Directory with the suggestion that he select or adapt 
the form which appears best suited to his needs. The notarizing officer 
may, in his discretion, arrange to have a member of his office staff 
type the document. If the document is typed in the Foreign Service 
office, the fee for copying shall be collected as prescribed under the 
caption ``Copying and Recording'' of the Tariff of Fees, Foreign Service 
of the United States of America (Sec.  22.1 of this chapter).

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.12  Necessity for certification of notarial acts.

    A notarizing officer must execute a written certificate attesting to 
the performance of a notarial act. This certificate may be inserted on 
or appended to the notarized document (see Sec.  92.17 regarding the 
fastening of sheets). The certificate evidences the performance of the 
notarial act. Failure to execute this certificate renders the notarial 
act legally ineffective. Each notarial act should be evidenced by a 
separate certificate; two or more distinct notarial acts should not be 
attested to by one certificate.

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51721, Oct. 3, 1995]



Sec.  92.13  Form of notarial certificate.

    The form of a notarial certificate depends on the nature of the 
notarial act it attests. (See Sec. Sec.  92.18 to 92.48 for discussions 
of the various forms of notarial certificates.) Rules pertaining to 
venue, and signing and sealing, are common to all notarial certificates.



Sec.  92.14  Venue on notarial certificates.

    (a) The term venue means the place where the certificate is 
executed. The venue must be shown on all notarial certificates to 
establish the qualifications and sphere of authority of the notarizing 
officer to perform the notarial act. The items characteristic of a 
typical venue, in the order of their appearance in the certificate, are 
as follows:
    (1) Name of the country (or dominion, Territory, colony, island, as 
appropriate);
    (2) Name of province or major administrative region (if none, this 
may be omitted);
    (3) Name of local community (city, town, or village);
    (4) Name of the Foreign Service post.

[[Page 364]]

    (b) When a notarial act is performed, and the notarial certificate 
executed, at a locality in a consular district other than the locality 
in which the Foreign Service office is situated, the venue should 
mention only the name of the country (or dominion, territory, colony, 
island, as appropriate), and the name of the consular district.
    (c) The venue used at a Foreign Service post which has not been 
officially designated as an embassy, legation, consulate general, 
consulate, or consular agency should bear the notation ``American 
Consular Service'' in place of the post name.



Sec.  92.15  Signing notarial certificate.

    The notarizing officer should sign a notarial certificate on the 
lower right-hand side. The name and full official title of the 
notarizing officer should by typed, stamped with a rubber stamp, or 
printed in ink on two separate lines immediately below his signature. 
When the notarizing officer is assigned to a Foreign Service post in 
both a diplomatic and consular capacity, he should use his consular 
title in the notarial certificate. (See Sec.  92.7.)

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.16  Sealing the notarial certificate.

    The notarizing officer should seal a notarial certificate with the 
impression seal of the post on the lower left-hand side of the 
certificate. A notarial certificate executed at a Foreign Service post 
which has not been officially designated as an embassy, legation, 
consulate general, consulate, or consular agency should be sealed with 
an impression seal bearing the legend ``American Consular Service'' and 
the name of the locality.



Sec.  92.17  Fastening of pages.

    When the instrument or document to which a notarial act relates 
consists of more than one sheet, or when the notarial certificate will 
be attached and not written on the document itself, the notarizing 
officer should bring all the sheets comprising the document together 
under his official seal.

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]

                         Specific Notarial Acts



Sec.  92.18  Oaths and affirmations defined.

    (a) Oath. An oath is an outward pledge given by the person taking it 
that his attestation or promise is made under an immediate sense of his 
responsibility to God. In a broad sense the word ``oath'' includes all 
forms of attestation by which a person signifies that he is bound in 
conscience to perform an act faithfully and truly, and in this sense it 
includes ``affirmation''.
    (b) Affirmation. An affirmation is a solemn and formal declaration 
or asseveration in the nature of an oath that a statement, or series of 
statements, is true. When an oath is required or authorized by law, an 
affirmation in lieu thereof may be taken by any person having 
conscientious scruples against taking an oath. As a general rule, an 
affirmation has the same legal force and effect as an oath.



Sec.  92.19  Administering an oath.

    The usual formula for administering an oath is as follows: The 
officer administering the oath requests the person taking the oath to 
raise his right hand while the officer repeats the following words: 
``You do solemnly swear that the statements set forth in this paper 
which you have here signed before me are true. So help you God.'' 
Whereupon the person taking the oath answers, ``I do.''



Sec.  92.20  Administering an affirmation.

    In administering an affirmation the procedure followed is generally 
the same as in the case of an oath, but the formula is varied by the use 
of the following words: ``You do solemnly, sincerely, and truly affirm 
and declare that . . ., and this you do under the pains and penalties of 
perjury.''



Sec.  92.21  Notarial certificate to oath or affirmation.

    The written statement attesting to the administration of an oath or 
affirmation is known as a jurat. The jurat must be signed and sealed by 
the notarizing officer (see Sec. Sec.  92.15 and 92.16 on signing and 
sealing notarial certificates).

[[Page 365]]



Sec.  92.22  ``Affidavit'' defined.

    An affidavit is a written declaration under oath made before some 
person who has authority to administer oaths, without notice to any 
adverse party that may exist. One test of the sufficiency of an 
affidavit is whether it is so clear and certain that it will sustain an 
indictment for perjury, if found to be false. An affidavit differs from 
a deposition in that it is taken ex parte and without notice, while a 
deposition is taken after notice has been furnished to the opposite 
party, who is given an opportunity to cross-examine the witness.



Sec.  92.23  Taking an affidavit.

    The notarizing officer taking an affidavit should:
    (a) Satisfy himself, as far as possible, that his notarial act will 
be acceptable under the laws of the jurisdiction where the affidavit is 
to be used (see Sec.  92.5);
    (b) Require the personal appearance of the affiant at the time the 
affidavit is taken;
    (c) Require satisfactory identification of the affiant; and
    (d) Administer the oath to the affiant before the affiant signs the 
affidavit.

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.24  Usual form of affidavit.

    Affidavits are usually drawn by competent attorneys or are set out 
in established forms. The form and substantive requirements of an 
affidavit depend principally upon the purpose for which it is made and 
the statutes of the jurisdiction where it is intended to be used. When a 
notarizing officer finds it necessary in the discharge of his official 
duties to prepare an affidavit, or when he assists a private person in 
preparing an affidavit (see Sec.  92.11(b)), he should, where possible, 
consult the pertinent statutory provisions.

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.25  Title of affidavit.

    Generally an affidavit taken for use in a pending cause must be 
entitled in that cause so that it will show to what proceedings it is 
intended to apply, and may support an indictment for perjury in case it 
proves to be false. If there is no suit pending at the time the 
affidavit is taken or if the affidavit is not to be used in any cause in 
court, no title need be given.



Sec.  92.26  Venue on affidavit.

    The venue must always be given and should precede the body of the 
affidavit. (See Sec.  92.14 regarding venue on notarial certificates 
generally.)



Sec.  92.27  Affiant's allegations in affidavit.

    (a) Substance of allegations. Although a notarizing officer is 
generally not responsible for the correctness of the form of an 
affidavit or the manner in which the allegations therein are set forth 
(see Sec.  92.11(a) regarding the preparation of legal documents by 
attorneys; Sec.  92.11(b) regarding the preparation of legal documents 
by notarizing officers; and Sec.  92.24 regarding the form of an 
affidavit), he may, in appropriate instances, draw the affiant's 
attention to the following generally accepted criteria as regards the 
substance of the allegations:
    (1) Material facts within the personal knowledge of the affiant 
should be alleged directly and positively. Facts are not to be inferred 
where the affiant has it in his power to state them positively and 
fully.
    (2) If the matters stated in the affiant's affidavit rest upon 
information derived from others rather than on facts within his personal 
knowledge, he should aver that such matters are true to the best of his 
knowledge and belief.
    (3) If the allegations made on information and belief are material, 
the sources of information and grounds of belief should be set out and a 
good reason given why a positive statement could not be made.
    (4) If the conclusions of the affiant are drawn from the contents of 
documents, such contents should be set out or exhibited, so that the 
authority to whom the affidavit is presented may determine whether the 
affiant's deductions are well founded.
    (b) Veracity of allegations. Notarizing officers are not required to 
examine into the truth of the affiant's allegations or to pass upon any 
contentious

[[Page 366]]

questions involved. In many instances the matters referred to in an 
affidavit will be of a technical or special nature beyond the officer's 
general knowledge or experience. However, he may, in certain 
circumstances, refuse to take an affidavit. (See Sec.  92.9 regarding 
the types of situations in which an officer might properly refuse to 
perform a notarial service; also see Sec.  92.10 regarding the waiver 
and other statements which may be included in a notarial certificate 
where evidence exists of falsity in the affiant's declaration.)

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.28  Signature of affiant on affidavit.

    The signature of the affiant is indispensable. The affiant should 
always sign the affidavit in the presence of the notarizing officer.



Sec.  92.29  Oath or affirmation to affidavit.

    Affidavits made before notarizing officers must be sworn to or 
affirmed (see Sec.  92.23(d)).

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.30  Acknowledgment defined.

    An acknowledgment is a proceeding by which a person who has executed 
an instrument goes before a competent officer or court and declares it 
to be his act and deed to entitle it to be recorded or to be received in 
evidence without further proof of execution. An acknowledgment is almost 
never made under oath and should not be confused with an oath (see Sec.  
92.18(a) for definition of oath). Moreover, an acknowledgment is not the 
same as an attestation, the latter being the act of witnessing the 
execution of an instrument and then signing it as a witness. Instruments 
requiring acknowledgment generally are those relating to land, such as 
deeds, mortgages, leases, contracts for the sale of land, and so on.



Sec.  92.31  Taking an acknowledgment.

    (a) Officers' assurance of acceptability of notarial act. A 
notarizing officer taking an acknowledgment should, if possible, 
ascertain the requirements of the jurisdiction in which the acknowledged 
document is to be used and execute the certificate in accordance with 
those requirements. Not all States or Territories will accept 
certificates of acknowledgment executed by notarizing officers other 
than consuls. Therefore, notarizing officers and consular agents who are 
called upon to perform this notarial act should consult the applicable 
State or territorial law to ascertain whether certificates of 
acknowledgment will be acceptable. (See Sec.  92.5 regarding 
acceptability of consular notarial acts under state or territorial law.) 
Furthermore, public policy generally forbids that the act of taking and 
certifying an acknowledgment be performed by a person financially or 
beneficially interested in the transaction to which the acknowledged 
document relates. Notarizing officers should keep this point in mind, 
especially in connection with acknowledgments by members of their 
families.
    (b) Personal appearance of grantor(s). A notarizing officer taking 
an acknowledgment should always require the personal appearance of the 
grantor(s), i.e., the person or persons who have signed the instrument 
to be acknowledged. Since the officer states in his certificate that the 
parties did personally appear before him, failure to observe this 
requirement invalidates the notarial act and makes the officer liable to 
the charge of negligence and of having executed a false certificate. A 
notarizing officer should never take an acknowledgment by telephone.
    (c) Satisfactory identification of grantor(s). The notarizing 
officer must be certain of the identity of the parties making an 
acknowledgment. If he is not personally acquainted with the parties, he 
should require from each some evidence of identity, such as a passport, 
police identity card, or the like. The laws of some States and 
Territories require that the identity of an acknowledger be proved by 
the oath of one or more ``credible witnesses'', and that a statement 
regarding the proving of identity in this manner be included in the 
certificate of acknowledgment. (See Sec.  92.32(b) regarding forms of 
certificates of acknowledgment generally.) Mere introduction of a person 
not known to the notarizing officer, without further proof of identity, 
is

[[Page 367]]

not considered adequate identification for acknowledgment purposes.
    (d) Explanation of contents of instrument. The notarizing officer 
must assure himself that the person acknowledging an instrument 
understands the nature of the instrument. If the person does not 
understand it, the officer is legally and morally bound to explain the 
instrument in such a way as to make the person who has signed it realize 
the character and effect of his act. This duty is particularly important 
where the signer of a document has little or no knowledge of the 
language in which the document is written.
    (e) Acknowledgments of married women. Some of the States still 
require that a married woman who has executed an instrument of 
conveyance jointly with her husband be examined separately by the 
notarizing officer at the time the acknowledgments of the couple are 
taken. Notarizing officers should consult the applicable statutory 
provisions before taking the acknowledgments of a husband and wife to a 
document which they have both executed.

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51722, 51723, Oct. 3, 
1995]



Sec.  92.32  Notarial certificate to acknowledgment.

    (a) Title. The notarial certificate evidencing the taking of an 
acknowledgment is commonly known as a ``certificate of acknowledgment'' 
or sometimes simply as an ``acknowledgment.''
    (b) Form. The form of a certificate of acknowledgment varies widely 
depending on the laws of the jurisdiction where the acknowledged 
document is intended to be used, the purpose for which the document is 
intended, and the legal position of the persons who have executed it. 
Instruments to be acknowledged are frequently prepared on printed forms, 
the entire contract or deed being on one sheet together with the 
certificate of acknowledgment. Often the document, including the 
certificate of acknowledgment, is drawn up in advance by an attorney. In 
these cases, the notarizing officer may use the certificate which is 
already on the document, making whatever modifications are manifestly 
required to show that the certificate was executed by a notarizing 
officer. However, if he finds it necessary to prepare the certificate of 
acknowledgment, the officer should consult the appropriate reference 
work for guidance as to the proper form. When no prescribed form can be 
found, the officer should use the language in Form FS-88. Certificate of 
Acknowledgment of Execution of an Instrument, inserting the certificate 
immediately at the close of the deed on the last page if space permits, 
or, if a separate sheet is necessary, using the printed Form FS-88 
itself.

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.33  Execution of certificate of acknowledgment.

    (a) When certificate should be executed. A notarizing officer should 
execute a certificate of acknowledgment immediately after the parties to 
the instrument have made their acknowledgment. Allowing several days or 
weeks to elapse between the time the acknowledgment is made and the 
certificate executed is undesirable, even though the officer may 
remember the acknowledgment act.
    (b) Venue. The venue must be shown as prescribed in Sec.  92.14.
    (c) Date. The date in the certificate must be the date the 
acknowledgment was made. This is not necessarily the same as the date 
the instrument was executed. In fact, there is no reason why an 
instrument may not be acknowledged a year or more after the date of its 
execution, or at different times and places by various grantors.
    (d) Names of parties. The name or names of the person or persons 
making the acknowledgment should appear in the certificate in the same 
form as they are set out in the acknowledged document, and in the same 
form as their signature on the instrument.
    (e) Additional statements. When executing a certificate of 
acknowledgment on Form FS-88, the notarizing officer may include any 
necessary additional statements in the blank space below the body of the 
certificate.
    (f) Signing and sealing certificate. The certificate of 
acknowledgment shall be signed and sealed as prescribed in Sec. Sec.  
92.15 and 92.16.

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]

[[Page 368]]



Sec.  92.34  Fastening certificate to instrument.

    The proper place for the certificate of acknowledgment is after the 
signature of the parties to the instrument. If the instrument is a 
printed form, the certificate will almost invariably be a part of the 
form. When Form FS-88 is used or when the certificate must be prepared 
on a sheet separate from the instrument, it should be fastened to the 
instrument as the last sheet. The method of fastening notarial 
certificates is prescribed in Sec.  92.17.



Sec.  92.35  Errors in certificate of acknowledgment.

    A notarizing officer having taken an acknowledgment of an instrument 
and made a certificate of that fact cannot afterwards amend or change 
his certificate for the purpose of correcting a mistake. This can be 
done only by the parties reacknowledging the instrument. However, 
typographical errors may be corrected by striking out the erroneous 
characters and inserting the correct ones above. Such changes should be 
initiated by the parties who executed the instrument and by the 
notarizing officer.

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.36  Authentication defined.

    An authentication is a certification of the genuineness of the 
official character, i.e., signature and seal, or position of a foreign 
official. It is an act done with the intention of causing a document 
which has been executed or issued in one jurisdiction to be recognized 
in another jurisdiction. Documents which may require authentication 
include legal instruments notarized by foreign notaries or other 
officials, and copies of public records, such as birth, death, and 
marriage certificates, issued by foreign record keepers.



Sec.  92.37  Authentication procedure.

    (a) The consular officer must compare the foreign official's seal 
and signature on the document he is asked to authenticate with a 
specimen of the same official's seal and signature on file either in the 
Foreign Service office or in a foreign public office to which he has 
access. If no specimen is available to the consular officer, he should 
require that each signature and seal be authenticated by some higher 
official or officials of the foreign government until there appears on 
the document a seal and signature which he can compare with a specimen 
available to him. However, this procedure of having a document 
authenticated by a series of foreign officials should be followed only 
where unusual circumstances, or the laws or regulations of the foreign 
country require it.
    (b) Where the State law requires the consular officer's certificate 
of authentication to show that the foreign official is empowered to 
perform a particular act, such as administering an oath or taking an 
acknowledgment, the consular officer must verify the fact that the 
foreign official is so empowered.
    (c) When the consular officer has satisfactorily identified the 
foreign seal and signature (and, where required, has verified the 
authority of the foreign official to perform a particular act), he may 
then execute a certificate of authentication, either placing this 
certificate on the document itself if space is available, or appending 
it to the document on a separate sheet (see Sec.  92.17 on the fastening 
of notarial certificates).



Sec.  92.38  Forms of certificate of authentication.

    The form of a certificate of authentication depends on the statutory 
requirements of the jurisdiction where the authenticated document will 
be used (see Sec.  92.39 regarding the provisions of Federal law). 
Before authenticating a document for use in a State or Territory of the 
United States, a consular officer should consult the pertinent law 
digest to ascertain what specific requirements must be met, or he should 
be guided by any special information he may receive from the attorney or 
other person requesting the document with regard to the applicable 
statutory requirements. (See Sec.  92.41(e) regarding material which 
should not be in the certificate of authentication.) If no provisions 
relating to authentications can be found in a particular State

[[Page 369]]

or Territorial law digest, and in the absence of any special information 
from the attorney or other person requesting the document, the officer 
should prepare the certificate of authentication in the form which seems 
best suited to the needs of the case. When in his opinion the 
circumstances seem to warrant, and always in connection with 
certificates of marriage or divorce decrees, a consular officer should 
include in the body of his certificate of authentication a qualifying 
statement reading as follows: ``For the contents of the annexed document 
I assume no responsibility.''



Sec.  92.39  Authenticating foreign public documents (Federal procedures).

    (a) A copy of a foreign public document intended to be used as 
evidence within the jurisdiction of the Federal Government of the United 
States must be authenticated in accordance with the provisions of 
section 1 of the act of June 25, 1948, as amended (sec. 1, 62 Stat. 948, 
sec. 92(b), 63 Stat. 103; 28 U.S.C. 1741). This provision of Federal law 
provides that a copy of any foreign document of record, or on file in a 
public office of a foreign country or political subdivision thereof, if 
certified, by the lawful custodian thereof, may be admitted in evidence 
when authenticated by a certificate of a United States consular officer 
resident in the foreign country, under the seal of his office.
    (b) The consular officer's certificate should indicate that the copy 
has been certified by the lawful custodian.
    (c) In the absence of a consular officer of the United States as an 
officer resident in the State of the Vatican City, a copy of any 
document of record or on file in a public office of said State of the 
Vatican City, certified by the lawful custodian of such document may be 
authenticated by a consular officer of the United States resident in 
Rome, Italy (22 U.S.C. 1204).



Sec.  92.40  Authentication of foreign extradition papers.

    Foreign extradition papers are authenticated by chiefs of mission.



Sec.  92.41  Limitations to be observed in authenticating documents.

    (a) Unknown seals and signatures. A consular officer should not 
authenticate a seal and signature not known to him. See Sec.  92.37(a) 
regarding the necessity for making a comparison with a specimen seal and 
signature.
    (b) Foreign officials outside consular district. A consular officer 
should not authenticate the seals and signatures of foreign officials 
outside his consular district.
    (c) Officials in the United States. Consular officers are not 
competent to authenticate the seals and signatures of notaries public or 
other officials in the United States. However, diplomatic and consular 
officers stationed at a United States diplomatic mission may certify to 
the seal of the Department of State (not the signature of the Secretary 
of State) if this is requested or required in particular cases by the 
national authorities of the foreign country.
    (d) Photostat copies. Consular officers should not authenticate 
facsimiles of signatures and seals on photographic reproductions of 
documents. They may, however, authenticate original signatures and seals 
on such photographic reproductions.
    (e) Matters outside consular officer's knowledge. A consular officer 
should not include in his certificate of authentication statements which 
are not within his power or knowledge to make. Since consular officers 
are not expected to be familiar with the provisions of foreign law, 
except in a general sense, they are especially cautioned not to certify 
that a document has been executed or certified in accordance with 
foreign law, nor to certify that a document is a valid document in a 
foreign country.
    (f) United States officials in foreign countries. An authentication 
by a United States consular officer is performed primarily to cause the 
official characters and positions of foreign officials to be known and 
recognized in the United States. Consular officers should not, 
therefore, undertake to authenticate the seals and signatures of other 
United States officials who may be residing in their consular districts.

[[Page 370]]

    (g) Officers of the Foreign Service in other countries. An officer 
of the Foreign Service stationed in one country is not expected to 
authenticate the signature or seal of an officer of the Foreign Service 
stationed in another country. When it is necessary for the seal and 
signature of an officer of the Foreign Service to be authenticated, such 
authentication will be done in the Department of State. An official of a 
foreign government requesting the authentication of the seal and 
signature of an officer of the United States Foreign Service who is, or 
was, stationed in another country should be informed that the document 
to be authenticated will have to be sent to the Department for this 
purpose. Any document bearing the seal and signature of an officer of 
the Foreign Service which is received at a Foreign Service post from a 
person in the United States with the request that it be further 
authenticated should be referred to the Department of State.



Sec.  92.42  Certification of copies of foreign records 
relating to land titles.

    In certifying documents of the kind described in title 28, section 
1742, of the United States Code, diplomatic and consular officers of the 
United States will conform to the Federal procedures for authenticating 
foreign public documents (Sec.  92.39), unless otherwise instructed in a 
specific case.



Sec.  92.43  Fees for notarial services and authentications.

    The fees for administering an oath or affirmation and making a 
certificate thereof, for the taking of an acknowledgment of the 
execution of a document and executing a certificate thereof, for 
certifying to the correctness of a copy of or an extract from a 
document, official or private, for authenticating a foreign document, or 
for the noting of a bill of exchange, certifying to protest, etc., are 
as prescribed under the caption Documentary services in the Schedule of 
Fees (Sec.  22.1 of this chapter), unless the service is performed under 
a ``no fee'' item of the same caption of the Schedule. If an oath or 
affirmation is administered concurrently to several persons and only one 
consular certificate (jurat) is executed, only one fee is collectible. 
If more than one person joins in making an acknowledgment but only one 
certificate is executed, only one fee shall be charged.

[22 FR 10858, Dec. 27, 1957, as amended at 63 FR 6480, Feb. 9, 1998]

                    Depositions and Letters Rogatory



Sec.  92.49  ``Deposition'' defined.

    A deposition is the testimony of a witness taken in writing under 
oath or affirmation, before some designated or appointed person or 
officer, in answer to interrogatories, oral or written. (For the 
distinction between a deposition and an affidavit see Sec.  92.22.)



Sec.  92.50  Use of depositions in court actions.

    Generally depositions may be taken and used in all civil actions or 
suits. In criminal cases in the United States, a deposition cannot be 
used, unless a statute has been enacted which permits a defendant in a 
criminal case to have a deposition taken in his own behalf, or unless 
the defendant consents to the taking of a deposition by the State for 
use by the prosecution. (For exception in connection with the proving of 
foreign documents for use in criminal actions, see Sec.  92.65.)



Sec.  92.51  Methods of taking depositions in foreign countries.

    Rule 28(b) of the Rules of Civil Procedure for the District Courts 
of the United States provides that depositions may be taken in foreign 
countries by any of the following four methods:
    (a) Pursuant to any applicable treaty or convention, or
    (b) Pursuant to a letter of request (whether or not captioned a 
letter rogatory), or
    (c) On notice before a person authorized to administer oaths in the 
place in which the examination is held, either by the law thereof or by 
the law of the United States. Notarizing officials as defined by 22 CFR 
92.1 are so authorized by the law of the United States, or
    (d) Before a person commissioned by the court, and a person so 
commissioned shall have the power by virtue of the commission to 
administer any necessary oath and take testimony.

[60 FR 51722, Oct. 3, 1995]

[[Page 371]]



Sec.  92.52  ``Deposition on notice'' defined.

    A deposition on notice is a deposition taken before a competent 
official after reasonable notice has been given in writing by the party 
or attorney proposing to take such deposition to the opposing party or 
attorney of record. Notarizing officers, as defined by 22 CFR 92.1, are 
competent officials for taking depositions on notice in foreign 
countries (see Sec.  92.51). This method of taking a deposition does not 
necessarily involve the issuance of a commission or other court order.

[60 FR 51722, Oct. 3, 1995]



Sec.  92.53  ``Commission to take depositions'' defined.

    A commission to take depositions is a written authority issued by a 
court of justice, or by a quasi-judicial body, or a body acting in such 
capacity, giving power to take the testimony of witnesses who cannot 
appear personally to be examined in the court or before the body issuing 
the commission. In Federal practice, a commission to take depositions is 
issued only when necessary or convenient, on application and notice. The 
commission indicates the action or hearing in which the depositions are 
intended to be used, and the person or persons required to take the 
depositions, usually by name or descriptive title (see Sec.  92.55 for 
manner of designating notarizing officers). Normally a commission is 
accompanied by detailed instructions for its execution.

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.54  ``Letters rogatory'' defined.

    In its broader sense in international practice, the term letters 
rogatory denotes a formal request from a court in which an action is 
pending, to a foreign court to perform some judicial act. Examples are 
requests for the taking of evidence, the serving of a summons, subpoena, 
or other legal notice, or the execution of a civil judgment. In United 
States usage, letters rogatory have been commonly utilized only for the 
purpose of obtaining evidence. Requests rest entirely upon the comity of 
courts toward each other, and customarily embody a promise of 
reciprocity. The legal sufficiency of documents executed in foreign 
countries for use in judicial proceedings in the United States, and the 
validity of the execution, are matters for determination by the 
competent judicial authorities of the American jurisdiction where the 
proceedings are held, subject to the applicable laws of that 
jurisdiction. See Sec.  92.66 for procedures in the use of letters 
rogatory requesting the taking of depositions in foreign jurisdictions.



Sec.  92.55  Consular authority and responsibility for taking depositions.

    (a) Requests to take depositions or designations to execute 
commissions to take depositions. Any United States notarizing officer 
may be requested to take a deposition on notice, or designated to 
execute a commission to take depositions. A commission or notice should, 
if possible, identify the officer who is to take depositions by his 
official title only in the following manner: ``Any notarizing officer of 
the United States of America at (name of locality)''. The notarizing 
officer responsible for the performance of notarial acts at a post 
should act on a request to take a deposition on notice, or should 
execute the commission, when the documents are drawn in this manner, 
provided local law does not preclude such action. However, when the 
officer (or officers) is designated by name as well as by title, only 
the officer (or officers) so designated may take the depositions. In 
either instance, the officer must be a disinterested party. Rule 28(c) 
of the Rules of Civil Procedure for the district courts of the United 
States prohibits the taking of a deposition before a person who is a 
relative, employee, attorney or counsel of any of the parties, or who is 
a relative or employee of such attorney or counsel, or who is 
financially interested in the action.
    (b) Authority in Federal law. The authority for the taking of 
depositions, charging the appropriate fees, and imposing the penalty for 
giving false evidence is generally set forth in 22 U.S.C. 4215 and 4221. 
The taking of depositions for federal courts of the United States is 
further governed by the Federal Rules of Civil Procedure. For the 
provisions of law which govern particularly the taking of depositions to 
prove the

[[Page 372]]

genuineness of foreign documents which it is desired to introduce in 
evidence in any criminal action or proceeding is a United States federal 
court, see 18 U.S.C. 3491 through 3496.
    (c) Procedure where laws of the foreign country do not permit the 
taking of depositions. In countries where the right to take depositions 
is not secured by treaty, notarizing officers may take depositions only 
if the laws or authorities of the national government will permit them 
to do so. Notarizing officers in countries where the taking of 
depositions is not permitted who receive notices or commissions for 
taking depositions should return the documents to the parties from whom 
they are received explaining why they are returning them, and indicating 
what other method or methods may be available for obtaining the 
depositions, whether by letters rogatory or otherwise.

[60 FR 51722, Oct. 3, 1995]



Sec.  92.56  Summary of procedure for taking depositions.

    In taking a deposition on notice or executing a commission to take 
depositions, a notarizing officer should conform to any statutory 
enactments on the subject in the jurisdiction in which the depositions 
will be used. He should also comply with any special instructions which 
accompany the request for a deposition on notice or a commission. Unless 
otherwise directed by statutory enactments or special instructions, the 
officer should proceed as follows in taking depositions:
    (a) Request the witnesses, whose testimony is needed, to appear 
before him; or, at the request of any party to the action or proceeding, 
request designated persons to supply him or the requesting party with 
needed records or documents in their possession, or copies thereof;
    (b) When necessary, act as interpreter or translater, or see that 
arrangements are made for some qualified person to act in this capacity;
    (c) Before the testimony is taken, administer oaths (or affirmations 
in lieu thereof) to the interpreter or translator (if there is one), to 
the stenographer taking down the testimony, and to each witness;
    (d) Have the witnesses examined in accordance with the procedure 
described in Sec. Sec.  92.57 to 92.60;
    (e) Either record, or have recorded in his presence and under his 
direction, the testimony of the witnesses;
    (f) Take the testimony, or have it taken, stenographically in 
question-and-answer form and transcribed (see Sec.  92.58) unless the 
parties to the action agree otherwise (rules 30(c) and 31(b), Rules of 
Civil Procedure for the District Courts of the United States);
    (g) Be actually present throughout the examination of the witnesses, 
but recess the examination for reasonable periods of time and for 
sufficient reasons;
    (h) Mark or cause to be marked, by identifying exhibit numbers or 
letters, all documents identified by a witness or counsel and submitted 
for the record.

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.57  Oral examination of witnesses.

    When a witness is examined on the basis of oral interrogatories, the 
counsel for the party requesting the deposition has the right to conduct 
a direct examination of the witness without interruption except in the 
form of objection by opposing counsel. The opposing counsel has the same 
right on cross-examination. Cross-examination may be followed by 
redirect and recross-examinations until the interrogation is complete. 
The notarizing officer taking the deposition should endeavor to restrain 
counsel from indulging in lengthy colloquies, digressions, or asides, 
and from attempts to intimidate or mislead the witness. The notarizing 
officer has no authority to sustain or overrule objections but should 
have them recorded as provided in Sec.  92.59. Instead of taking part in 
the oral examination of a witness, the parties notified of the taking of 
a deposition may transmit written interrogatories to the notarizing 
officer. The notarizing officer should then question the witness on the 
basis of the written interrogatories and should record the answers 
verbatim. (Rules 30 (c) and 31

[[Page 373]]

(b), Rules of Civil Procedure for the District Courts of the United 
States.)

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.58  Examination on basis of written interrogatories.

    Written interrogatories are usually divided into three parts:
    (a) The direct interrogatories or interrogatories in chief;
    (b) The cross-interrogatories; and
    (c) The redirect interrogatories.

Recross-interrogatories sometimes follow redirect interrogatories. The 
notarizing officer should not furnish the witness with a copy of the 
interrogatories in advance of the questioning, nor should he allow the 
witness to examine the interrogatories in advance of the questioning. 
Although it may be necessary for the officer, when communicating with 
the witness for the purpose of asking him to appear to testify, to 
indicate in general terms the nature of the evidence which is being 
sought, this information should not be given in such detail as to permit 
the witness to formulate his answers to the interrogatories prior to his 
appearance before the notarizing officer. The officer taking the 
deposition should put the interrogatories to the witness separately and 
in order. The written interrogatories should not be repeated in the 
record (unless special instructions to that effect are given), but an 
appropriate reference should be made thereto. These references should, 
of course, be followed by the witness' answers. All of the written 
interrogatories must be put to the witness, even though at some point 
during the examination the witness disclaims further knowledge of the 
subject. When counsel for all of the parties attend an examination 
conducted on written interrogatories, the notarizing officer may, all 
counsel having consented thereto, permit oral examination of the witness 
following the close of the examination upon written interrogatories. The 
oral examination should be conducted in the same manner and order as if 
not preceded by an examination upon written interrogatories.

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995; 61 
FR 14375, Apr. 1, 1996]



Sec.  92.59  Recording of objections.

    All objections made at the time of the examination to the 
qualifications of the officer taking the deposition, or to the manner of 
taking it, or to the evidence presented, or to the conduct of any party, 
and any other objection to the proceedings must be noted in the 
deposition. Evidence objected to will be taken subject to the 
objections. (Rules 30 (c) and 31 (b), Rules of Civil Procedure for the 
District Courts of the United States.)



Sec.  92.60  Examination procedures.

    (a) Explaining interrogatory to witness. If the witness does not 
understand what an interrogatory means, the notarizing officer should 
explain it to him, if possible, but only so as to get an answer strictly 
responsive to the interrogatory.
    (b) Refreshing memory by reference to written records. A witness may 
be permitted to refresh his memory by referring to notes, papers or 
other documents. The notarizing officer should have such occurrence 
noted in the record of the testimony together with a statement of his 
opinion as to whether the witness was using the notes, papers or other 
documents to refresh his memory or for the sake of testifying to matters 
not then of his personal knowledge.
    (c) Conferring with counsel. When the witness confers with counsel 
before answering any interrogatory, the notarizing officer should have 
that fact noted in the record of the testimony.
    (d) Examining witness as to personal knowledge. The notarizing 
officer may at any time during the examination of a witness propound 
such inquiries as may be necessary to satisfy himself whether the 
witness is testifying from his personal knowledge of the subject matter 
of the examination.
    (e) Witness not to leave officer's presence. The notarizing officer 
should request the witness not to leave his presence during the 
examination, except during the recesses for meals, rest, etc., 
authorized in Sec.  92.56 (g). Failure of the witness to comply with 
this request must be noted in the record.

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]

[[Page 374]]



Sec.  92.61  Transcription and signing of record of examination.

    After the examination of a witness is completed, the stenographic 
record of the examination must be fully transcribed and the 
transcription attached securely to any document or documents to which 
the testimony in the record pertains. (See Sec.  92.63 regarding the 
arrangement of papers.) The transcribed deposition must then be 
submitted to the witness for examination and read to or by him, unless 
such examination and reading are waived by the witness and by the 
parties to the action. Any changes in form or substance desired by the 
witness should be entered upon the deposition by the notarizing officer 
with a statement of the reasons given by the witness for making the 
changes. The witness should then sign the transcript of his deposition 
and should initial in the margin each correction made at his request. 
However, the signature and initials of the witness may be omitted if the 
parties to the action by stipulation waive the signing or if the witness 
is ill, refuses to sign, or cannot be found. If the deposition is not 
signed by the witness, the notarizing officer should sign it and should 
state on the record the reason for his action, i.e., the waiver of the 
parties, the illness or absence of the witness, or the refusal of the 
witness to sign, giving the reasons for such refusal. The deposition may 
then be used as though signed by the witness except when, on the motion 
to suppress, the court holds that the reasons given for the refusal to 
sign require the rejection of the deposition in whole or in part. (Rules 
30 (e) and 31 (b), Rules of Civil Procedure for the District Courts of 
the United States.)

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.62  Captioning and certifying depositions.

    The notarizing officer should prepare a caption for every 
deposition; should certify on the deposition that the witness was duly 
sworn by him and that the deposition is a true record of the testimony 
given by the witness; and should sign and seal the certification in the 
manner prescribed in Sec. Sec.  92.15 and 92.16. (Rules 30 (f) (1) and 
31 (b), Rules of Civil Procedures for the District Courts of the United 
States.)

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.63  Arrangement of papers.

    Unless special instructions to the contrary are received, the 
various papers comprising the completed record of the depositions should 
usually be arranged in the following order from bottom to top:
    (a) Commission to take depositions (or notice of taking 
depositions), with interrogatories, exhibits, and other supporting 
documents fastened thereto.
    (b) Statement of fees charged, if one is prepared on a separate 
sheet.
    (c) Record of the responses of the various witnesses, including any 
exhibits the witnesses may submit.
    (d) Closing certificate.

All of these papers should be fastened together with ribbon, the ends of 
which should be secured beneath the notarizing officer's seal affixed to 
the closing certificate.

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.64  Filing depositions.

    (a) Preparation and transmission of envelope. The notice or 
commission, the interrogatories, the record of the witnesses' answers, 
the exhibits, and all other documents and papers pertaining to the 
depositions should be fastened together (see Sec.  92.63 regarding the 
arrangement of papers) and should be enclosed in an envelope sealed with 
the wax engraving seal of the post. The envelope should be endorsed with 
the title of the action and should be marked and addressed. The sealed 
envelope should then be transmitted to the court in which the action is 
pending.
    (b) Furnishing copies. The original completed depositions should not 
be sent to any of the parties to the action or to their counsel. 
However, the notarizing officer may furnish a copy of a deposition to 
the deponent or to any party to the action upon the payment of the 
copying fee and if certification is desired under official seal that the 
copy is a true copy, the certification

[[Page 375]]

fee prescribed in the Tariff of Fees, Foreign Service of the United 
States of America (Sec.  22.1 of this chapter).

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]



Sec.  92.65  Depositions to prove genuineness of foreign documents.

    (a) Authority to execute commission. Under the provisions of section 
1 of the act of June 25, 1948, as amended (sec. 1, 62 Stat. 834, sec. 
53, 63 Stat. 96; 18 U.S.C. 3492), a diplomatic or consular officer may 
be commissioned by an United States court to take the testimony of a 
witness in a foreign country either on oral or written interrogatories, 
or partly on oral and partly on written interrogatories, for the purpose 
of determining the genuineness of any foreign document (any book, paper, 
statement, record, account, writing, or other document, or any portion 
thereof, of whatever character and in whatever form, as well as any copy 
thereof equally with the original, which is not in the United States) 
which it is desired to introduce in evidence in any criminal action or 
proceeding in any United States court under the provisions of section 1 
of the act of June 25, 1948 (sec. 1, 62 Stat. 945; 28 U.S.C. 1732). Such 
testimony may also be taken to determine whether the foreign document 
was made in the regular course of business and whether it was the 
regular course of business to make such document. The term ``business'' 
includes business, profession, occupation, and calling of every kind. 
(Sec. 1, 62 Stat. 945, 28 U.S.C. 1732.)
    (b) Disqualification to execute commission. Any diplomatic or 
consular officer to whom a commission is addressed to take testimony, 
who is interested in the outcome of the criminal action or proceeding in 
which the foreign documents in question are intended to be used or who 
has participated in the prosecution of such action or proceeding, 
whether by investigations, preparation of evidence, or otherwise, may be 
disqualified on his own motion or on that of the United States or any 
other party to such criminal action or proceeding made to the court from 
which the commission issued at any time prior to the execution thereof. 
If, after notice and hearing, the court grants the motion, it will 
instruct the diplomatic or consular officer thus disqualified to send 
the commission to any other diplomatic or consular officer of the United 
States named by the court, and such other officer should execute the 
commission according to its terms and will for all purposes be deemed 
the officer to whom the commission is addressed. (Section 1, 62 Stat. 
834, sec. 53, 63 Stat. 96; 18 U.S.C. 3492.)
    (c) Execution and return of commission. (1) Commissions issued in 
criminal cases under the authority of the act of June 25, 1948, as 
amended, to take testimony in connection with foreign documents should 
be executed and returned by officers of the Foreign Service in 
accordance with section 1 of that act, as amended (sec. l, 62 Stat. 835; 
18 U.S.C. 3493, 3494), and in accordance with any special instructions 
which may accompany the commission. For details not covered by such 
section or by special instructions, officers of the Foreign Service 
should be guided by such instructions as may be issued by the Department 
of State in connection with the taking of depositions generally. (See 
Sec. Sec.  92.55 to 92.64.)
    (2) Section 1 of the act of June 25, 1948 (sec. 1, 62 Stat. 835; 18 
U.S.C. 3493) provides that every person whose testimony is taken should 
be cautioned and sworn to testify the whole truth and should be 
carefully examined. The testimony should be reduced to writing or 
typewriting by the consular officer, or by some person under his 
personal supervision, or by the witness himself in the presence of the 
consular officer, and by no other person. After it has been reduced to 
writing or typewriting, the testimony must be signed by the witness. 
Every foreign document with respect to which testimony is taken must be 
annexed to such testimony and must be signed by each witness who appears 
for the purpose of establishing the genuineness of such document.
    (3) When counsel for all of the parties attend the examination of 
any witness whose testimony will be taken on written interrogatories, 
they may consent that oral interrogatories, in addition to those 
accompanying the commission, be put to the witness. The consular officer 
taking the testimony

[[Page 376]]

should require an interpreter to be present when his services are needed 
or are requested by any party or his attorney. (Section 1, 62 Stat. 835, 
18 U.S.C. 3493.)
    (4) Section 1 of the act of June 25, 1948 (sec. 1, 62 Stat. 835; 18 
U.S.C. 3494) provides that the consular officer, who executes any 
commission authorized under the same section, as amended (sec. 1, 62 
Stat. 834, sec. 53, 63 Stat. 96; 18 U.S.C. 3492) and who is satisfied, 
upon all the testimony taken, that a foreign document is genuine, should 
certify such document to be genuine under the seal of his office. This 
certification must include a statement that the officer is not subject 
to disqualification under the provisions of section 1 of the act of June 
25, 1948, as amended (sec. 1, 62 Stat. 834, sec. 53, 63 Stat. 96; 18 
U.S.C. 3492). For purposes of assessment of fees, the issuance of this 
certificate shall be regarded as a part of the consular service of 
executing the commission, and no separate fee shall be charged for the 
certificate.
    (5) The consular officer should then forward such foreign documents, 
together with the record of all testimony taken and the commission which 
has been executed, to the Department of State for transmission to the 
clerk of the court from which the commission issued. (Section 1, 62 
Stat. 835; 18 U.S.C. 3494.) (See Sec.  92.64 regarding the filing of 
depositions generally.)

(Sec. 303, 60 Stat. 1002, 62 Stat. 836; 22 U.S.C. 843, 18 U.S.C. 3496, 
E.O. 10307; 16 FR 11907, 3 CFR 1949-1953 Comp., page 387)



Sec.  92.66  Depositions taken before foreign officials or other persons 
in a foreign country.

    (a) Customary practice. Under Federal law (Rule 28(b), Rules of 
Civil Procedure for the District Courts of the United States) and under 
the laws of some of the States, a commission to take depositions can be 
issued to a foreign official or to a private person in a foreign 
country. However, this method is rarely used; commissions are generally 
issued to U.S. notarizing officers. In those countries where U.S. 
notarizing officers are not permitted to take testimony (see Sec.  
92.55(c)) and where depositions must be taken before a foreign 
authority, letters rogatory are usually issued to a foreign court.
    (b) Transmission of letters rogatory to foreign officials. Letters 
rogatory may often be sent direct from court to court. However, some 
foreign governments require that these requests for judicial aid be 
submitted through the diplomatic channel (i.e., that they be submitted 
to the Ministry for Foreign Affairs by the American diplomatic 
representative). A usual requirement is that the letters rogatory as 
well as the interrogatories and other papers included with them be 
accompanied by a complete translation into the language (or into one of 
the languages) of the country of execution. Another requirement is that 
provision be made for the payment of fees and expenses. Inquiries from 
interested parties or their attorneys, or from American courts, as to 
customary procedural requirements in given countries, may be addressed 
direct to the respective American embassies and legations in foreign 
capitals, or to the Department of State, Washington, DC 20520.
    (c) Return of letters rogatory executed by foreign officials. (1) 
Letters rogatory executed by foreign officials are returned through the 
same channel by which they were initially transmitted. When such 
documents are returned to a United States diplomatic mission, the 
responsible officer should endorse thereon a certificate stating the 
date and place of their receipt. This certificate should be appended to 
the documents as a separate sheet. The officer should then enclose the 
documents in an envelope sealed with the wax engraving seal of the post 
and bearing an endorsement indicating the title of the action to which 
the letters rogatory pertain. The name and address of the American 
judicial body from which the letters rogatory issued should also be 
placed on the envelope.
    (2) If the executed letters rogatory are returned to the diplomatic 
mission from the Foreign Office in an envelope bearing the seals of the 
foreign judicial authority who took the testimony, that sealed envelope 
should not be opened at the mission. The responsible officer should 
place a certificate on the envelope showing the date it was received at 
his office and indicating that

[[Page 377]]

it is being forwarded in the same condition as received from the foreign 
authorities. He should then place that sealed envelope in a second 
envelope, sealed with the wax engraving seal of the post, and bearing 
the title of the action and the name and address of the American 
judicial body from which the letters rogatory issued.
    (3) Charges should be made for executing either of the certificates 
mentioned in paragraphs (c) (1) and (2) of this section, as prescribed 
by item 67 of the Tariff of Fees, Foreign Service of the United States 
of America (Sec.  22.1 of this chapter), unless the service is 
classifiable in a no-fee category under the exemption for Federal 
agencies and corporations (item 83 of the same Tariff).
    (4) The sealed letters rogatory should be transmitted by appropriate 
means to the court in which the action is pending. See title 28, section 
1781, of the United States Code concerning the manner of making return 
to a court of the United States (Federal court).
    (d) Transmissions of commissions to foreign officials or other 
persons. A commission to take depositions which is addressed to an 
official or person in a foreign country other than a United States 
notarizing officer may be sent directly to the person designated. 
However, if such a commission is sent to the United States diplomatic 
mission in the country where the depositions are intended to be taken, 
it should be forwarded to the Foreign Office for transmission to the 
person appointed in the commission. If sent to a United States consular 
office, the commission may be forwarded by that office directly to the 
person designated, or, if the notarial officer deems it more advisable 
to do so, he may send the commission to the United States diplomatic 
mission for transmission through the medium of the foreign office.

[22 FR 10858, Dec. 27, 1957, as amended at 32 FR 11775, Aug. 16, 1967; 
60 FR 51722, Oct. 3, 1995]



Sec.  92.67  Taking of depositions in United States pursuant to 
foreign letters rogatory.

    (a) Authority and procedure. The taking of depositions by authority 
of State courts for use in the courts of foreign countries is governed 
by the laws of the individual States. As respects Federal practice, the 
district court of the district in which a person resides or is found may 
order him to give his testimony or statement or to produce a document or 
other thing for use in a proceeding in a foreign or international 
tribunal. The order may be made pursuant to a letter rogatory issued, or 
request made, by a foreign or international tribunal or upon the 
application of any interested person and may direct that the testimony 
or statement be given, or the document or other thing be produced, 
before a person appointed by the court. By virtue of his appointment, 
the person appointed has power to administer any necessary oath and take 
the testimony or statement. The order may prescribe the practice and 
procedure, which may be in whole or part the practice and procedure of 
the foreign country or the interntational tribunal, for taking the 
testimony or statement or producing the document or other thing. To the 
extent that the order does not prescribe otherwise, the testimony or 
statement shall be taken, and the document or other thing produced, in 
accordance with the Federal Rules of Civil Procedure. A person may not 
be compelled to give his testimony or statement or to produce a document 
or other thing in violation of any legally applicable privilege. This 
does not preclude a person within the United States from voluntarily 
giving his testimony or statement, or producing a document or other 
thing, for use in a proceeding in a foreign or international tribunal 
before any person or in any manner acceptable to him (28 U.S.C. 1782).
    (b) Formulation of letters rogatory. A letter rogatory customarily 
states the nature of the judicial assistance sought by the originating 
court, prays that this assistance be extended, incorporates an 
undertaking of future reciprocity in like circumstances, and makes some 
provision for payment of fees and costs entailed in its execution. As 
respects Federal practice, it is not

[[Page 378]]

required that a letter rogatory emanating from a foreign court be 
authenticated by a diplomatic or consular officer of the United States 
or that it be submitted through the diplomatic channel; the seal of the 
originating court suffices. When testimony is desired, the letter 
rogatory should state whether it is intended to be taken upon oral or 
written interrogatories. If the party on whose behalf the testimony is 
intended to be taken will not be represented by counsel, written 
interrogatories should be attached. Except where manifestly unneeded 
(e.g. a Spanish-language letter rogatory intended for execution in 
Puerto Rico) or dispensed with by arrangement with the court, letters 
rogatory and interrogatories in a foreign language should be accompanied 
by English translations.
    (c) Addressing letters rogatory. To avert uncertainties and minimize 
possibilities for refusal of courts to comply with requests contained in 
letters rogatory in the form in which they are presented, it is 
advisable that counsel for the parties in whose behalf testimony is 
sought ascertain in advance if possible, with the assistance of 
correspondent counsel in the United States or that of a consular 
representative or agent of his nation in the United States, the exact 
title of the court, Federal or State as the case may be, which will be 
prepared to entertain the letter rogatory. In Federal practice the 
following form of address is acceptable:

    The U.S. District Court for the ___________ (e.g. Northern, 
Southern) District of __________ (State) __________ (City) _________, 
(State)


In instances where it is not feasible to ascertain the correct form of 
address at the time of preparation of the letter rogatory, and it will 
be left for counsel in the United States, or a consul or agent in the 
United States of the nation of origin of the letter rogatory to effect 
its transmission to an appropriate court, the following form may be 
used: ``To the Appropriate Judicial Authority at (name of locality).''
    (d) Submitting letters rogatory to courts in the United States. A 
letter rogatory may be submitted to the clerk of the court of which 
assistance is sought, either in person or by mail. This may be direct by 
international mail from the originating foreign court. Alternatively, 
submission to the clerk of court may be effected in person or by mail by 
any party to the action at law or his attorney or agent, or by a 
consular officer or agent in the United States of the foreign national 
concerned. Finally, the Department of State has been authorized (62 
Stat. 949; 28 U.S.C. 1781) to receive a letter rogatory issued, or 
request made, by a foreign or international tribunal, to transmit it to 
the tribunal, officer, or agency in the United States to whom it is 
addressed, and to receive and return it after execution. This 
authorization does not preclude--
    (1) The transmittal of a letter rogatory or request directly from a 
foreign or international tribunal to the tribunal, officer, or agency in 
the United States to whom it is addressed and its return in the same 
manner; or
    (2) The transmittal of a letter rogatory or request directly from a 
tribunal in the United States to the foreign or international tribunal, 
officer, or agency to whom it is addressed and its return in the same 
manner.

[32 FR 11775, Aug. 16, 1967]



Sec.  92.68  Foreign Service fees and incidental costs 
in the taking of evidence.

    The fees for the taking of evidence by officers of the Foreign 
Service are as prescribed by the Tariff or Fees, Foreign Service of the 
United States of America (Sec.  22.1 of this chapter), under the caption 
``Services Relating to the Taking of Evidence,'' unless the service is 
performed for official use, which comes under the caption ``Exemption 
for Federal Agencies and Corporations'' of the same Tariff. See Sec.  
22.6 of this chapter concerning the requirement for advance deposit of 
estimated fees. When the party on whose behalf the evidence is sought or 
his local representative is not present to effect direct payment of such 
incidental costs as postage or travel of witnesses, the advance deposit 
required by the officer shall be in an amount estimated as sufficient to 
cover these in addition to the fees proper. The same rule shall apply

[[Page 379]]

to charges for interpreting or for the taking and transcribing of a 
stenographic record when performed commercially rather than by staff 
members at Tariff of Fee rates.



Sec.  92.69  Charges payable to foreign officials, witnesses, 
foreign counsel, and interpreters.

    (a) Execution of letters rogatory by foreign officials. Procedures 
for payment of foreign costs will be by arrangement with the foreign 
authorities.
    (b) Execution of commissions by foreign officials or other persons 
abroad. Procedure for the payment of foreign costs will be as arranged, 
by the tribunal requiring the evidence, with its commissioner.
    (c) Witness fees and allowances when depositions are taken pursuant 
to commission from a Federal court. A witness attending in any court of 
the United States, or before a United States commissioner, or before any 
person authorized to take his deposition pursuant to any rule or order 
of a cut of the United States, shall receive $4 for each day's 
attendance and for the time necessarily occupied in going to and 
returning from the same, and 8 cents per mile for going from and 
returning to his place of residence. Witnesses who are not salaried 
employees of the Government and who are not in custody and who attend at 
points so far removed from their respective residence as to prohibit 
return thereto from day to day shall be entitled to an additional 
allowance of $8 per day for expenses of subsistence, including the time 
necessarily occupied in going to and returning from the place of 
attendance (28 U.S.C. 1821, Supp. IV). Witnesses giving depositions 
before consular officers pursuant to a commission issued by the Federal 
Court are entitled to these fees and allowances, and the officer shall 
make payment thereof in the same manner as payment is made of other 
expenses involved in the execution of the commission, charging the 
advance deposit provided by the party at whose request the depositions 
are taken (see Sec.  92.68). In any case to which the Government of the 
United States, or an officer or agency thereof, is a party, the United 
States marshal for the district will pay all fees of witnesses on the 
certificate of the United States Attorney or Assistant United States 
Attorney, and in the proceedings before a United States Commissioner, on 
the certificate of such commissioner (28 U.S.C. 1825).



Sec.  92.70  Special fees for depositions in connection with foreign documents.

    (a) Fees payable to witnesses. Each witness whose testimony is 
obtained under a commission to take testimony in connection wtih foreign 
documents for use in criminal cases shall be entitled to receive 
compensation at the rate of $15 a day for each day of attendance, plus 8 
cents a mile for going from his place of residence or business to the 
place of examination, and returning, by the shortest feasible route (18 
U.S.C. 3495 and 3496, and E.O. 10307, 3 CFR, 1949-1953 Comp.). When, 
however it is necessary to procure the attendance of a witness on behalf 
of the United States or an indigent party, an officer or agent of the 
United States may negotiate with the witness to pay compensation at such 
higher rate as may be approved by the Attorney General, plus the mileage 
allowance stated above (5 U.S.C. 341). The expense of the compensation 
and mileage of each witness will be borne by the party, or parties, 
applying for the commission unless the commission is accompanied by an 
order of court (18 U.S.C. 3495(b) that all fees, compensations, and 
other expenses authorized by these regulations are chargeable to the 
United States (18 U.S.C. 3495).
    (b) Fee payable to counsel. Each counsel who represents a party to 
the action or proceeding in the examination before the commissioner will 
receive compensation for each day of attendance at a rate of not less 
than $15 a day and not more than $50 a day, as agreed between him and 
the party whom he represents, plus such actual and necessary expenses as 
may be allowed by the commissioner upon verified statements filed with 
him. If the commission is issued on application of the United States, 
the compensation and expenses of counsel representing each party are 
chargeable to the United States under section 3495(b) of title 18 of the 
United States Code (18 U.S.C.

[[Page 380]]

3495 and 3496, and E.O. 10307, 3 CFR, 1949-1953 Comp.).
    (c) Fees payable to interpreters and translators. Each interpreter 
and translator employed by the commissioner under these regulations 
shall receive an allowance of $10 a day, plus 8 cents a mile for going 
from his place of residence or business to the place of examination and 
returning, by the shortest feasible route. The compensation and mileage 
of interpreters and translators shall be chargeable to the United 
States.
    (d) Time for paying fees. Witnesses, counsel, interpreters, and 
translators will be paid, in accordance with the foregoing regulations, 
by the commissioner at the conclusion of their services. Other expenses 
authorized by these regulations will be paid by the commissioner as they 
are incurred.
    (e) Payment of fees by the United States. When it appears that the 
commission was issued on application of the United States or when the 
commission is accompanied by an order of court that all fees, 
compensation, and other expenses authorized by these regulations are 
chargeable to the United States under section 3495(b) of title 18 of the 
United States Code, the commissioner shall execute the commission 
without charge for his service as commissioner in connection therewith. 
The Commissioner shall pay witnesses, counsel, interpreter, or 
translator, and other expenses authorized by these regulations through 
the disbursing officer in his area in accordance with instructions which 
will be issued in each case.
    (f) Payment of fees by other parties. When fees, compensation, and 
other expenses authorized by this section are chargeable to any party 
other than the United States, the commissioner shall undertake the 
execution of the commission only if such party deposits with the 
Department of State or with the appropriate Foreign Service post, in 
advance, an amount to be set by the court as apparently adequate to 
defray all fees, compensation, and other expenses authorized by this 
part. If the amount of the deposit is later found to be insufficient, 
the depositor shall be so notified, and the commissioner shall retain 
the commission and other papers until a sufficient supplemental amount 
has been deposited. If the amount of the deposit exceeds the aggregate 
amount of fees, compensation, and other expenses authorized by this 
part, the excess shall be returned to the party, or parties, entitled 
thereto. The commissioner shall pay witnesses, counsel, interpreter, or 
translator, and other expenses authorized by this section, from the 
proceeds of a check which the disbursing officer for his area will be 
authorized to draw on the Treasurer of the United States.



Sec.  92.71  Fees for letters rogatory executed by officials 
in the United States.

    Arrangements for the payment of fees should be made directly with 
the court in the United States by the party in the foreign country at 
whose request the depositions are taken, either through his legal 
representative in the United States or through the appropriate 
diplomatic or consular officer of his country in the United States. (See 
Sec.  92.67 regarding the execution of letters rogatory in the United 
States.)

                     Miscellaneous Notarial Services



Sec.  92.72  Services in connection with patents and patent applications.

    (a) Affidavit of applicant. The form of the affidavit of an 
applicant for a United States patent depends on who is making the 
application, the type of invention, and the circumstances of the case. 
Officers of the Foreign Service are not responsible for the correctness 
of form of such affidavits, and should not endeavor to advise in their 
preparation. Persons who inquire at a Foreign Service post regarding the 
filing of patent applications may be referred to the pamphlet entitled 
``General Information Concerning Patents,'' if copies thereof are 
available at the post.
    (b) Oath or affirmation of applicant--(1) Authority to administer 
oath or affirmation. When an applicant for a patent resides in a foreign 
country, his oath or affirmation may be made before any diplomatic or 
consular officer of the United States authorized to administer oaths, or 
before any officer having an official seal and authorized to administer 
oaths in the foreign country in which the applicant may be, whose 
authority shall be proved by certificate of

[[Page 381]]

a diplomatic or consular officer of the United States (35 U.S.C. 115). 
See paragraph (c) of this section regarding authentication of the 
authority of a foreign official. A notary or other official in a foreign 
country who is not authorized to administer oaths is not qualified to 
notarize an application for a United States patent.
    (2) Form of oath or affirmation. See Sec. Sec.  92.19 and 92.20 for 
usual forms of oaths and affirmations.
    (3) Execution of jurat. In executing the jurat, the officer should 
carefully observe the following direction with regard to ribboning and 
sealing: When the oath is taken before an officer in a country foreign 
to the United States, all the application papers, except the drawings, 
must be attached together and a ribbon passed one or more times through 
all the sheets of the application, except the drawings, and the ends of 
said ribbon brought together under the seal before the latter is affixed 
and impressed, or each sheet must be impressed with the official seal of 
the officer before whom the oath is taken. If the papers as filed are 
not properly ribboned or each sheet impressed with the seal, the case 
will be accepted for examination but before it is allowed, duplicate 
papers, prepared in compliance with the foregoing sentence, must be 
filed. (Rule 66, Rules of Practice of the United States Patent Office.)
    (c) Authentication of authority of foreign official--(1) Necessity 
for authentication. When the affidavit required in connection with a 
patent application been sworn to or affirmed before an official in a 
foreign country other than a diplomatic or consular officer of the 
United States, an officer of the Foreign Service authenticate the 
authority of the official administering the oath or affirmation (35 
U.S.C. 115). If the officer of the Foreign Service cannot authenticate 
the oath or affirmation, the document should be authenticated by a 
superior foreign official, or by a series of superior foreign officials 
if necessary. The seal and signature of the foreign official who affixes 
the last foreign authentication to the document should then be 
authenticated by the officer of the Foreign Service.
    (2) Use of permanent ink. All papers which will become a part of a 
patent application filed in the United States Patent Office must be 
legibly written or printed in permanent ink. (Rule 52, Rules of Practice 
of the United States Patent Office.) Consular certificates of 
authentication executed in connection with patent applications should 
preferably be prepared on a typewriter; they should not be prepared on a 
hectograph machine.
    (d) Authority of a foreign executor or administrator acting for 
deceased inventor. Legal representatives of deceased inventors and of 
those under legal incapacity may make application for patent upon 
compliance with the requirements and on the same terms and conditions 
applicable to the inventor (35 U.S.C. 117). The rules of the Patent 
Office require proof of the power or authority of the legal 
representative. See paragraph (c) of this section for procedure for 
authenticating the authority of a foreign official.
    (e) Assignments of patents and applications for patents. An 
application for a patent, or a patent, or any interest therein, may be 
assigned in law by an instrument in writing. The applicant, or the 
patentee, or his assigns or legal representatives, may grant and convey 
an exclusive right under the application for patent, or under the 
patent, to the whole or any specified part of the United States. Any 
such assignment, grant, or conveyance of any application for patent, or 
of any patent, may be acknowledged, in a foreign country, before ``a 
diplomatic or consular officer of the United States or an officer 
authorized to administer oaths whose authority is proved by a 
certificate of a diplomatic or consular officer of the United States'' 
(35 U.S.C. 261). See Sec.  92.37 regarding authentication of the 
authority of a foreign official.
    (f) Fees. The fee for administering an oath, taking an 
acknowledgment, or supplying an authentication, in connection with 
patent applications is as prescribed in item 49 of the Tariff of Fees, 
Foreign Service of the United States of America (Sec.  22.1 of this 
chapter).



Sec.  92.73  Services in connection with trademark registrations.

    (a) Authority and responsibility. Acknowledgments and oaths required 
in

[[Page 382]]

connection with applications for registration of trademarks may be made, 
in a foreign country, before any diplomatic or consular officer of the 
United States or before any official authorized to administer oaths in 
the foreign country whose authority must be proved by a certificate of a 
diplomatic or consular officer of the United States (15 U.S.C. 1061). 
The responsibility of officers of the Foreign Service in this connection 
is the same as that where notarial services in connection with patent 
applications are involved (see Sec.  92.72(a)). (See Sec.  92.72(c) 
regarding the authentication of the authority of a foreign official who 
performs a notarial service in connection with a patent application.)
    (b) Fees. The fee for administering an oath, taking an 
acknowledgment, or supplying an authentication, in connection with an 
application for registration of a trademark, or with the assignment or 
transfer of rights thereunder, is as prescribed in item 49 of the Tariff 
of Fees, Foreign Service of the United States of America (Sec.  22.1 of 
this chapter).



Sec.  92.74  Services in connection with United States securities 
or interests therein.

    (a) Authority and responsibility. Assignments or requests for 
payment of United States securities, or securities for which the 
Treasury Department acts as transfer agent, or powers of attorney in 
connection therewith where authorized by the Treasury Department, 
should, in a foreign country, be executed before a United States 
consular or diplomatic officer. However, if they are executed before a 
foreign official having power to administer oaths, the Treasury 
Department requires that the official character and jurisdiction on the 
foreign official be certified by a United States diplomatic or consular 
officer. (See Sec. Sec.  92.36 to 92.41 on authentications.)
    (b) Fees. Officers of the Foreign Service should charge no fees for 
notarial services they perform in connection with the execution of 
documents, including the certification or authentication of documents 
where necessary, which affect United States securities or securities for 
which the Treasury Department acts as transfer agent, or which may be 
required in the collection of interest thereon. Item 58(b) of the Tariff 
of Fees, Foreign Service of the United States of America (Sec.  22.1 of 
this chapter) applies in cases of this nature.



Sec.  92.75  Services in connection with income tax returns.

    (a) Responsibility. Officers of the Foreign Service are authorized 
to perform any and all notarial services which may be required in 
connection with the execution of Federal, state, territorial, municipal, 
or insular income tax returns. Officers should not give advice on the 
preparation of tax returns.
    (b) Fees. No charge under the caption ``Notarial Services and 
Authentications'' should be made for services performed in connection 
with the execution of tax returns for filing with the Federal or State 
Governments or political subdivisions thereof. When requested, see item 
58(d) of the Tariff of Fees, Foreign Service of the United States of 
America (Sec.  22.1 of this chapter).

         Copying, Recording, Translating and Procuring Documents



Sec.  92.76  Copying documents.

    (a) Consular authority. The consular officer is authorized to have 
documents, or abstracts therefrom, copied at a Foreign Service post, if 
he deems it advisable and it is practicable to do so. This service 
frequently is necessary in connection with the performance of certain 
notarial acts, such as the certification of copies of documents.
    (b) Fees. The charges for making copies of documents are as 
prescribed by the Tariff of Fees, Foreign Service of the United States 
of America (Sec.  22.1 of this chapter), under the caption ``Copying and 
Recording,'' unless the service is Performed for official use, which 
comes under the caption Exemption for Federal Agencies and Corporations 
of the same Tariff.



Sec.  92.77  Recording documents.

    (a) Consular authority. Consular officers may, at their discretion, 
accept for recording in the Miscellaneous Record Book of the office 
concerned

[[Page 383]]

unofficial documents such as deeds, leases, agreements, wills, and so 
on. The object of this service is primarily to afford United States 
citizens and interests the means of preserving, in official custody, 
records of their business and other transactions where other suitable 
facilities are not available locally for making such records. The 
recording of unofficial documents is not a notarial service, strictly 
speaking; however, the certifying of copies of documents thus recorded 
is a notarial service.
    (b) Recording procedure. Generally, before accepting a document for 
recording the consular officer should require satisfactory proof of its 
genuineness. The document should be copied, word for word, in the 
Miscellaneous Record Book. At the close of the record a statement that 
it is a true copy of the original should be entered and signed by the 
consular officer who copies or compares the record. In the margin of the 
first page where the document is recorded, the consular officer should 
note the following data:
    (1) By whom the document is presented for recording;
    (2) On whose behalf the service is requested;
    (3) Date and hour of presentation for recording;
    (4) How the authenticity of the document was proved (where 
appropriate); and
    (5) The name of the person by whom recorded (in his proper 
signature) and the name of the consular officer with whom compared (in 
his proper signature).
    (c) Certificate of recording. Ordinarily, a certificate of recording 
need not be issued. The original document may simply be endorsed: 
``Recorded at (name and location of consular office) this _____ day of 
_________, 19__, in (here insert appropriate reference to volume of 
Miscellaneous Record Book)''. Below the endorsement should appear the 
notation regarding the service number, the Tariff item number, and the 
amount of the fee collected. When a certificate of recording is 
requested, the consular officer may issue it, if he sees fit to do so. 
The certificate may be either entered on the document, if space permits, 
or appended to the document as a separate sheet in the manner prescribed 
in Sec.  92.17.
    (d) Fees. The fee for recording unofficial documents at a Foreign 
Service post is as prescribed under the caption ``Copying and 
Recording'' of the Tariff of Fees, Foreign Service of the United States 
of America (Sec.  22.1 of this chapter). For purposes of assessment of 
fees, the issuance of certificates of recording, when requested, shall 
be regarded as part of the consular service of recording unofficial 
documents, and no separate fee shall be charged for the certificate.



Sec.  92.78  Translating documents.

    Officers of the Foreign Service are not authorized to translate 
documents or to certify to the correctness of translations. (However, 
see Sec.  92.56 with regard to interpreting and translating services 
which may be performed in connection with depositions.) They are 
authorized to administer to a translator an oath as to the correctness 
of a translation; to take an acknowledgment of the preparation of a 
translation; and to authenticate the seal and signature of a local 
official affixed to a translation. Separate fees should be charged for 
each of these services, as indicated under the caption ``Notarial 
Services and Authentications'' of the Tariff of Fees, Foreign Service of 
the United States of America (Sec.  22.1 of this chapter).



Sec.  92.79  Procuring copies of foreign public documents.

    (a) Nature of services. When requested to do so by United States 
citizens or by persons acting in behalf of United States citizens, a 
consular officer should endeavor to obtain from foreign officials copies 
of birth, death, and marriage certificates, or copies of other public 
records such as divorce decrees, probated wills, and so on. The interest 
of the party requesting the document should be clearly indicated, and 
there should be good reason for asking for the consular officer's 
assistance. Persons requesting documents for use in the preparation of 
family trees or in the compilation of genealogical studies should be 
referred to a local attorney

[[Page 384]]

or to a genealogical research bureau if one is available.
    (b) Payment of expenses involved--(1) Official funds not to be used. 
The use of official funds to pay for copies of or extracts from foreign 
public records obtained at the request of private persons is prohibited.
    (2) Payment of costs by Federal Government. In instances of requests 
emanating from departments or agencies of the Federal Government for 
copies of or extracts from foreign public records, the Department will 
issue to Foreign Service posts concerned appropriate instructions with 
respect to the payment of whatever local costs may be entailed if the 
documents cannot be obtained gratis from the local authorities.
    (3) Payment of costs by State or municipal governments. Should 
State, county, municipal or other authorities in the United States 
besides the Federal Government request the consular officer to obtain 
foreign documents, and express willingness to supply documents gratis in 
analogous circumstances, the consular officer may endeavor on that basis 
to obtain the desired foreign documents gratis. Otherwise, such 
authorities should be informed that they must pay the charges of the 
foreign officials, as well as any fees which it may be necessary for the 
consular officer to collect under the provisions of the Tariff of Fees, 
Foreign Service of the United States of America (Sec.  22.1 of this 
chapter).
    (4) Payment of costs by private persons. Before a consular officer 
endeavors to obtain a copy of a foreign public document in behalf of a 
private person, the person requesting the document should be required to 
make a deposit of funds in an amount sufficient to defray any charges 
which may be made by the foreign authorities, as well as the Foreign 
Service fee for authenticating the document, should authentication be 
desired.



Sec.  92.80  Obtaining American vital statistics records.

    Individuals who inquire as to means of obtaining copies of or 
extracts from American birth, death, marriage, or divorce records may be 
advised generally to direct their inquires to the Vital Statistics 
Office at the place where the record is kept, which is usually in the 
capital city of the State or Territory. Legal directories and other 
published works of references at the post may be of assistance in 
providing exact addresses, information about fees, etc. An inquirer who 
is not an American citizen may write directly to the diplomatic or 
appropriate consular representative of his own country for any needed 
assistance in obtaining a desired document.

                          Quasi-Legal Services



Sec.  92.81  Performance of legal services.

    (a) Legal services defined. The term ``legal services'' means 
services of the kind usually performed by attorneys for private persons 
and includes such acts as the drawing up of wills, powers of attorney, 
or other legal instruments.
    (b) Performance usually prohibited--(1) General prohibition; 
exceptions. Officers of the Foreign Service should not perform legal 
services except when instructed to do so by the Secretary of State, or 
in cases of sudden emergency when the interests of the United States 
Government, might be involved, or in cases in which no lawyer is 
available and refusal to perform the service would result in the 
imposition of extreme hardship upon a United States citizen. There is no 
objection, however, to permitting persons to use the legal references in 
the Foreign Service office giving specimen forms of wills, powers of 
attorney, etc.
    (2) Specific prohibitions and restrictions. See Sec.  72.41 of this 
chapter for prohibition of performance of legal services by consular 
officers in connection with decedents' estates. See Sec.  92.11 
restricting the preparation for private parties of legal documents for 
signature and notarization.
    (3) Acceptance of will for deposit prohibited. Wills shall not be 
accepted for safekeeping in the office safe. If a person desires to have 
his last will and testament made a matter of record in a Foreign Service 
establishment, the officer to whom application is made shall have the 
will copied in the Miscellaneous Record Book (Sec.  92.77) and charge 
the prescribed fee therefor.
    (c) Refusal of requests. In refusing requests for the performance of 
legal

[[Page 385]]

services, an officer of the Foreign Service should cite these 
regulations and should state clearly his reasons for refusing to act. In 
appropriate cases, the officer may furnish the inquirer with a copy of 
the annual list of attorneys (see Sec.  92.82) practicing in the 
consular district or he may refer the inquirer to the Department for a 
list of attorneys.
    (d) Waiver of responsibility. When an officer of the Foreign Service 
accedes to a request for the performance of a legal service, he should 
inform the applicant that the service is performed at the latter's risk 
and without any responsibility on the part of the United States 
Government or the officer performing the service.
    (e) Fees. No fee should be charged for any legal services which may 
be performed under these regulations, beyond the fees or charges for 
specific services enumerated in the Tariff of Fees, Foreign Service of 
the United States of America (Sec.  22.1 of this chapter).



Sec.  92.82  Recommending attorneys or notaries.

    (a) Assistance in selecting American lawyers. When any person in the 
district of a Foreign Service post desires to have the name of an 
attorney in the United States, the officer at the post may refer him to 
American law directories or other published references at his disposal, 
but he shall refrain from recommending any particular attorney.
    (b) Assistance in selecting foreign attorneys or notaries. Persons 
applying to a Foreign Service post for services of a legal or fiduciary 
character or for assistance in selecting an attorney or notary capable 
of rendering the services in view, may be furnished the names of several 
attorneys or notaries in the district, or referred to the lists to be 
found in American or foreign law directories or other published 
references. Alternatively, they may be referred to bar associations or, 
where applicable, to the organization charged by local law with the 
responsibility for providing legal assistance.
    (c) Agreements for referral of legal business prohibited. Officers 
of the Foreign Service shall not recommend particular attorneys or 
notaries to persons who apply to a Foreign Service post for legal 
assistance, nor shall they make agreements with attorneys or notaries 
for the referral to them of inquiries for legal assistance.



Sec.  92.84  Legal process defined.

    Legal process means a writ, warrant, mandate, or other process 
issuing from a court of justice. The term includes subpoenas, citations, 
and complaints.



Sec.  92.85  Service of legal process usually prohibited.

    The service of process and legal papers is not normally a Foreign 
Service function. Except when directed by the Department of State, 
officers of the Foreign Service are prohibited from serving process or 
legal papers or appointing other persons to do.

[32 FR 11776, Aug. 16, 1967]



Sec.  92.86  Consular responsibility for serving subpoenas.

    When directed by the Department of State, officers of the Foreign 
Service will serve a subpoena issued by a court of the United States on 
a national or resident of the United States who is in a foreign country 
unless such action is prohibited by the law of the foreign country.

[32 FR 11776, Aug. 16, 1967]



Sec.  92.87  Consular responsibility for serving orders to show cause.

    Officers of the Foreign Service are required to serve orders to show 
cause issued in contempt proceedings on a person who has failed or 
neglected to appear in answer to a subpoena served in accordance with 
the provisions of Sec.  92.86. (Section 1, 62 Stat. 949; 28 U.S.C. 
1784.)



Sec.  92.88  Consular procedure.

    With regard to the serving of subpoenas and orders to show cause 
referred to in Sec. Sec.  92.86 and 92.87, section 1 of the act of June 
25, 1948 (sec. 1, 62 Stat. 819, 28 U.S.C. 1783), provides that the 
subpoena shall designate the time and place for appearance before the 
court of the United States, and shall issue to any consular officer of 
the United States in the foreign country. The consular officer is 
required to make personal service of the subpoena

[[Page 386]]

and any order to show cause, rule, judgment or decree on the request of 
the Federal court or its marshal, and to make return thereof to such 
court after tendering to the witness his necessary travel and attendance 
expenses, which will be determined by the court and sent with the 
subpoena. When the subpoena or order is forwarded to the officer, it is 
usually accompanied by instructions directing exactly how service should 
be made and how the return of service should be executed. These 
instructions should be followed carefully.



Sec.  92.89  Fees for service of legal process.

    No charge should be made for serving a subpoena or order to show 
cause issuing out of Federal court under the procedures set forth in 
Sec. Sec.  92.86 and 92.87. The taking of the affidavit of the officer 
effecting the service, or the performance of any other notarial act 
which may be involved in making the return, should be without charge, 
under the caption ``Exemption for Federal Agencies and Corporations'' of 
the Tariff of Fees, Foreign Service of the United States of America 
(Sec.  22.1 of this chapter).



Sec.  92.90  Delivering documents pertaining to the revocation 
of naturalization.

    Officers of the Foreign Service shall deliver, or assist in 
delivering, to designated persons, documents relating to proceedings in 
the cancellation of certificates of naturalization when such documents 
are forwarded by duly authorized officials of the Federal courts. The 
responsibility for furnishing detailed instructions on the procedure to 
be followed in delivering such documents rests with the court or with 
the United States attorney concerned, and officers should follow such 
instructions carefully.



Sec.  92.91  Service of documents at request of Congressional committees.

    Officers of the Foreign Service have no authority to serve upon 
persons in their consular districts legal process such as subpoenas or 
citations in connection with Congressional investigations. All requests 
for such service should be referred to the Department of State.



Sec.  92.92  Service of legal process under provisions of State law.

    It may be found that a State statute purporting to regulate the 
service of process in foreign countries is so drawn as to mention 
service by an American consular officer or a person appointed by him, 
without mention of or provision for alternate methods of service. State 
laws of this description do not operate in derogation of the laws of the 
foreign jurisdiction wherein it may be sought to effect service of legal 
process, and such State laws do not serve to impose upon American 
consular officers duties or obligations which they are unauthorized to 
accept under Federal law, or require them to perform acts contrary to 
Federal regulations (see Sec.  92.85).



Sec.  92.93  Notarial services or authentications connected with service 
of process by other persons.

    An officer of the Foreign Service may administer an oath to a person 
making an affidavit to the effect that legal process has ben served. 
When an affidavit stating that legal process has been served is executed 
before a foreign notary or other official, an officer of the Foreign 
Service may authenticate the official character of the person 
administering the oath. The fee for administering an oath to a person 
making an affidavit or for an authentication, as the case may be, is as 
prescribed under the caption ``Notarial Services and Authentications'' 
in the Tariff of Fees, Foreign Service of the United States of America 
(Sec.  22.1 of this chapter), unless the case is of such nature as to 
fall under the caption, ``Exemption for Federal Agencies and 
Corporations'' of the same Tariff.



Sec.  92.94  Replying to inquiries regarding service of process 
or other documents.

    Officers should make prompt and courteous replies to all inquiries 
regarding the service of legal process or documents of like nature, and 
should render such assistance as they properly

[[Page 387]]

can to the court and to interested parties. Such assistance could 
include furnishing information as to the standard procedure of the 
locality for service of legal papers, with the name and address of the 
local office having a bailiff authorized to effect and make return of 
service; it could include furnishing a list of local attorneys capable 
of making necessary arrangements; or it could, where appropriate, 
include a suggestion that the request of the American court might be 
presented to the foreign judicial authorities in the form of letters 
rogatory (see definition, Sec.  92.54, and procedures, Sec.  92.66 (b)). 
If the person upon whom the process is intended to be served is known to 
be willing to accept service, or if it is clear that it would be in his 
interest at least to be informed of the matter, the consular officer may 
suggest to the interested parties in the United States the drawings up 
of papers for voluntary execution by such person, such as a waiver of 
service or a document which would be acceptable to the American court to 
signify the person's entering an appearance in the action pending 
therein.



Sec.  92.95  Transportation of witnesses to the United States.

    Officers of the Foreign Service may at times be called upon to 
assist in arranging for the transportation to the United States of 
persons in foreign countries whose testimony is desired by the Attorney 
General in a case pending in a Federal court. Requests that the travel 
of such persons be facilitated originate in the Department of Justice, 
and special instructions in each case are transmitted to the appropriate 
Foreign Service post by the Department of State.



PART 93_SERVICE ON FOREIGN STATE--Table of Contents



Sec.
93.1 Service through the diplomatic channel.
93.2 Notice of suit (or of default judgment).

    Authority: 22 U.S.C. 2658; 28 U.S.C. 1608(a).



Sec.  93.1  Service through the diplomatic channel.

    (a) The Director of the Office of Special Consular Services in the 
Bureau of Consular Affairs, Department of State (``The Managing Director 
for Overseas Citizen Service''), shall perform the duties of the 
Secretary of State under section 1608(a)(4) of title 28, United States 
Code.
    (b) When the clerk of the court concerned sends documents under 
section 1608(a)(4), of title 28, United States Code, the Managing 
Director for Overseas Citizen Service shall promptly ascertain if the 
documents include the required copies of the notice of suit and of the 
summons and complaint (or default judgment), and any required 
translations. If not, he shall promptly advise the clerk of the missing 
items.
    (c) Upon receiving the required copies of documents and any required 
translations, the Managing Director for Overseas Citizen Service shall 
promptly cause one copy of each such document and translation (``the 
documents'') to be delivered--
    (1) To the Embassy of the United States in the foreign state 
concerned, and the Embassy shall promptly deliver them to the foreign 
ministry or other appropriate authority of the foreign state, or
    (2) If the foreign state so requests or if otherwise appropriate, to 
the embassy of the foreign state in the District of Columbia, or
    (3) If paragraphs (c)(1) and (2) of this section are unavailable, 
through an existing diplomatic channel, such as to the embassy of 
another country authorized to represent the interests of the foreign 
state concerned in the United States.
    (d) The documents, when delivered under paragraph (c) of this 
section, shall be accompanied by a diplomatic note of transmittal, 
requesting that the documents be forwarded to the appropriate authority 
of the foreign state or political subdivision upon which service is 
being made. The note shall state that, under United States law, 
questions of jurisdiction and of state immunity must be addressed to the 
court and not to the Department of

[[Page 388]]

State, and that it is advisable to consult with an attorney in the 
United States.
    (e) If the documents are delivered under paragraph (c)(1) of this 
section, the Embassy of the United States shall promptly transmit by 
diplomatic pouch, to the Managing Director for Overseas Citizen Service, 
a certified copy of the diplomatic note of transmittal. If the documents 
are delivered under paragraph (c) (2) or (3) of this section, the 
Managing Director for Overseas Citizen Service shall prepare a certified 
copy of the diplomatic note of transmittal. In each case, the 
certification shall state the date and place the documents were 
delivered. The Managing Director for Overseas Citizen Service shall then 
promptly send the certified copy to the clerk of the court concerned.

(Sec. 1608(a), Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583 
(28 U.S.C. 1608(a)); sec. 4, 63 Stat. 111, as amended (22 U.S.C. 2658))

[42 FR 6367, Feb. 2, 1977, as amended at 63 FR 16687, Apr. 6, 1998]



Sec.  93.2  Notice of suit (or of default judgment).

    (a) A Notice of Suit prescribed in section 1608(a) of title 28, 
United States Code, shall be prepared in the form that appears in the 
Annex to this section.
    (b) In preparing a Notice of Suit, a party shall in every instance 
supply the information specified in items 1 through 5 of the form 
appearing in the Annex to this section. A party shall also supply 
information specified in item 6, if notice of a default judgment is 
being served.
    (c) In supplying the information specified in item 5, a party shall 
in simplified language summarize the nature and purpose of the 
proceeding (including principal allegations and claimed bases of 
liability), the reasons why the foreign state or political subdivision 
has been named as a party in the proceeding, and the nature and amount 
of relief sought. The purpose of item 5 is to enable foreign officials 
unfamiliar with American legal documents to ascertain the above 
information.
    (d) A party may attach additional pages to the Notice of Suit to 
complete information under any item.
    (e) A party shall attach, as part of the Notice of Suit, a copy of 
the Foreign State Immunities Act of 1976 (Pub. L. 94-583; 90 Stat. 
2891).

                                  Annex

               Notice of Suit (or of Default Judgment \1\)
---------------------------------------------------------------------------

    \1\ Relevant only if items 4 and 6 indicate that a default judgment 
has occurred.
---------------------------------------------------------------------------

    1. Title of legal proceeding; full name of court; case or docket 
number.
    2. Name of foreign state (or political subdivision) concerned:
    3. Identity of the other Parties:

                           Judicial Documents

    4. Nature of documents served (e.g., Summons and Complaint; Default 
Judgment):
    5. Nature and purpose of the proceedings; why the foreign state (or 
political subdivision) has been named; relief requested:
    6. Date of default judgment (if any):
    7. A response to a ``Summons'' and ``Complaint'' is required to be 
submitted to the court, not later than 60 days after these documents are 
received. The response may present jurisdictional defenses (including 
defenses relating to state immunity).
    8. The failure to submit a timely response with the court can result 
in a Default Judgment and a request for execution to satisfy the 
judgment. If a default judgment has been entered, a procedure may be 
available to vacate or open that judgment.
    9. Questions relating to state immunities and to the jurisdiction of 
United States courts over foreign states are governed by the Foreign 
Sovereign Immunities Act of 1976, which appears in sections 1330, 
1391(f), 1441(d), and 1602 through 1611, of Title 28, United States Code 
(Pub. L. 94-583; 90 Stat. 2891).

(Sec. 1608(a), Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583 
(28 U.S.C. 1608(a)); sec. 4, 63 Stat. 111, as amended (22 U.S.C. 2658))

[42 FR 6367, Feb. 2, 1977]



PART 94_INTERNATIONAL CHILD ABDUCTION--Table of Contents



Sec.
94.1 Definitions.
94.2 Designation of Central Authority.
94.3 Functions of the Central Authority.
94.4 Prohibitions.
94.5 Application.

[[Page 389]]

94.6 Procedures for children abducted to the United States.
94.7 Procedures for children abducted from the United States.
94.8 Interagency coordinating group.

    Authority: Hague Convention on the Civil Aspects of International 
Child Abduction; the federal ``International Child Abduction Remedies 
Act,'' Pub. L. 100-300.

    Source: 53 FR 23608, June 23, 1988, unless otherwise noted.



Sec.  94.1  Definitions.

    For purposes of this part--
    (a) Convention means the Hague Convention on the Civil Aspects of 
International Child Abduction, Appendix B to Department of State notice, 
51 FR 10498, March 26, 1986.
    (b) Contracting State means any country which is a party to the 
Convention.
    (c) Child and children mean persons under the age of sixteen.



Sec.  94.2  Designation of Central Authority.

    The Office of Children's Issues in the Bureau of Consular Affairs is 
designated as the U.S. Central Authority to discharge the duties which 
are imposed by the Convention and the International Child Abduction 
Remedies Act upon such authorities.

[60 FR 25843, May 15, 1995]



Sec.  94.3  Functions of the Central Authority.

    The U.S. Central Authority shall cooperate with the Central 
Authorities of other countries party to the Convention and promote 
cooperation by appropriate U.S. state authorities to secure the prompt 
location and return of children wrongfully removed to or retained in any 
Contracting State, to ensure that rights of custody and access under the 
laws of one Contracting State are effectively respected in the other 
Contracting States, and to achieve the other objects of the Convention. 
In performing its functions, the U.S. Central Authority may receive 
from, or transmit to, any department, agency, or instrumentality of the 
federal government, or of any state or foreign government, information 
necessary to locate a child or for the purpose of otherwise implementing 
the Convention with respect to a child.



Sec.  94.4  Prohibitions.

    (a) The U.S. Central Authority is prohibited from acting as an agent 
or attorney or in any fiduciary capacity in legal proceedings arising 
under the Convention. The U.S. Central Authority is not responsible for 
the costs of any legal representation or legal proceedings nor for any 
transportation expenses of the child or applicant. However, the U.S. 
Central Authority may not impose any fee in relation to the 
administrative processing of applications submitted under the 
Convention.
    (b) The U.S. Central Authority shall not be a repository of foreign 
or U.S. laws.



Sec.  94.5  Application.

    Any person, institution, or other body may apply to the U.S. Central 
Authority for assistance in locating a child, securing access to a 
child, or obtaining the return of a child that has been removed or 
retained in breach of custody rights. The application shall be made in 
the form prescribed by the U.S. Central Authority and shall contain such 
information as the U.S. Central Authority deems necessary for the 
purposes of locating the child and otherwise implementing the 
Convention. The application and any accompanying documents should be 
submitted in duplicate in English or with English translations. If 
intended for use in a foreign country, two additional copies should be 
provided in the language of the foreign country.



Sec.  94.6  Procedures for children abducted to the United States.

    The U.S. Central Authority, or an entity acting at its direction, 
shall perform the following operational functions with respect to all 
Hague Convention applications seeking the return of children wrongfully 
removed to or retained in the United States or seeking access to 
children in the United States:
    (a) Receive all applications seeking return of children wrongfully 
retained in the United States or seeking access to children in the 
United States;
    (b) Confirm the child's location or, where necessary, seek to 
ascertain its location;
    (c) Seek to ascertain the child's welfare through inquiry to the 
appropriate

[[Page 390]]

state social service agencies and, when necessary, consult with those 
agencies about the possible need for provisional arrangements to protect 
the child or to prevent the child's removal from the jurisdiction of the 
state;
    (d) Seek through appropriate authorities (such as state social 
service agencies or state attorneys general or prosecuting attorneys), 
where appropriate, to achieve a voluntary agreement for suitable 
visitation rights by the applicant or for return of the child;
    (e) Assist applicants in securing information useful for choosing or 
obtaining legal representation, for example, by providing a directory of 
lawyer referral services, or pro bono listing published by legal 
professional organizations, or the name and address of the state 
attorney general or prosecuting attorney who has expressed a willingness 
to represent parents in this type of case and who is employed under 
state law to intervene on the applicant's behalf;
    (f) Upon request, seek from foreign Central Authorities information 
relating to the social background of the child;
    (g) Upon request, seek from foreign Central Authorities information 
regarding the laws of the country of the child's habitual residence;
    (h) Upon request, seek from foreign Central Authorities a statement 
as to the wrongfulness of the taking of the child under the laws of the 
country of the child's habitual residence;
    (i) Upon request, seek a report on the status of court action when 
no decision has been reached by the end of six weeks;
    (j) Consult with appropriate agencies (such as state social service 
departments, the U.S. Department of Health and Human Services, state 
attorneys general) about possible arrangements for temporary foster care 
and/or return travel for the child from the United States;
    (k) Monitor all cases in which assistance has been sought and 
maintain records on the procedures followed in each case and its 
disposition;
    (l) Perform such additional functions as determined by the U.S. 
Central Authority, deemed advisable to maintain U.S. treaty compliance 
with the Hague Convention on the Civil Aspects of International Child 
Abduction.

[53 FR 23608, June 23, 1988, as amended at 60 FR 66074, Dec. 21, 1995; 
73 FR 47831, Aug. 15, 2008]



Sec.  94.7  Procedures for children abducted from the United States.

    Upon receipt of an application requesting access to a child or 
return of a child abducted from the United States and taken to another 
country party to the Convention, the U.S. Central Authority shall--
    (a) Review and forward the application to the Central Authority of 
the country where the child is believed located or provide the applicant 
with the necessary form, instructions, and the name and address of the 
appropriate Central Authority for transmittal of the application 
directly by the applicant;
    (b) Upon request, transmit to the foreign Central Authority requests 
for a report on the status of any court action when no decision has been 
reached by the end of six weeks;
    (c) Upon request, facilitate efforts to obtain from appropriate U.S. 
state authorities and transmit to the foreign Central Authority 
information regarding the laws of the child's state of habitual 
residence;
    (d) Upon request, facilitate efforts to obtain from appropriate U.S. 
state authorities and transmit to the foreign Central Authority a 
statement as to the wrongfulness of the taking of the child under the 
laws of the child's state of habitual residence;
    (e) Upon request, facilitate efforts to obtain from appropriate U.S. 
state authorities and transmit to the foreign Central Authority 
information relating to the social background of the child;
    (f) Upon request, be available to facilitate possible arrangements 
for temporary foster care and/or travel for the child from the foreign 
country to the United States;
    (g) Monitor all cases in which assistance has been sought; and
    (h) Perform such additional functions as the Assistant Secretary of 
State for Consular Affairs may from time to time direct.

[[Page 391]]



Sec.  94.8  Interagency coordinating group.

    The U.S. Central Authority shall nominate federal employees and may, 
from time to time, nominate private citizens to serve on an interagency 
coordinating group to monitor the operation of the Convention and to 
provide advice on its implementation. This group shall meet from time to 
time at the request of the U.S. Central Authority.



PART 95_IMPLEMENTATION OF TORTURE CONVENTION IN EXTRADITION CASES--
Table of Contents



Sec.
95.1 Definitions.
95.2 Application.
95.3 Procedures.
95.4 Review and construction.

    Authority: 18 U.S.C. 3181 et seq.; Convention Against Torture and 
Other Cruel, Inhuman or Degrading Treatment or Punishment.

    Source: 64 FR 9437, Feb. 26, 1999, unless otherwise noted.



Sec.  95.1  Definitions.

    (a) Convention means the United Nations Convention Against Torture 
and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, 
done at New York on December 10, 1984, entered into force for the United 
States on November 10, 1994. Definitions provided below in paragraphs 
(b) and (c) of this section reflect the language of the Convention and 
understandings set forth in the United States instrument of ratification 
to the Convention.
    (b) Torture means:
    (1) Any act by which severe pain or suffering, whether physical or 
mental, is intentionally inflicted on a person for such purposes as 
obtaining from him or a third person information or a confession, 
punishing him for an act he or a third person has committed or is 
suspected of having committed, or intimidating or coercing him or a 
third person, or for any reason based on discrimination of any kind, 
when such pain or suffering is inflicted by or at the instigation of or 
with the consent or acquiescence of a public official or other person 
acting in an official capacity. It does not include pain or suffering 
arising only from, inherent in or incidental to lawful sanctions.
    (2) In order to constitute torture, an act must be specifically 
intended to inflict severe physical or mental pain or suffering and that 
mental pain or suffering refers to prolonged mental harm caused by or 
resulting from:
    (i) The intentional infliction or threatened infliction of severe 
physical pain or suffering;
    (ii) The administration or application, or threatened administration 
or application, of mind altering substances or other procedures 
calculated to disrupt profoundly the senses or the personality;
    (iii) The threat of imminent death; or
    (iv) The threat that another person will imminently be subjected to 
death, severe physical pain or suffering, or the administration or 
application of mind altering substances or other procedures calculated 
to disrupt profoundly the senses or personality.
    (3) Noncompliance with applicable legal procedural standards does 
not per se constitute torture.
    (4) This definition of torture applies only to acts directed against 
persons in the offender's custody or physical control.
    (5) The term ``acquiescence'' as used in this definition requires 
that the public official, prior to the activity constituting torture, 
have awareness of such activity and thereafter breach his or her legal 
responsibility to intervene to prevent such activity.
    (6) The term ``lawful sanctions'' as used in this definition 
includes judicially imposed sanctions and other enforcement actions 
authorized by law, provided that such sanctions or actions were not 
adopted in order to defeat the object and purpose of the Convention to 
prohibit torture.
    (7) Torture is an extreme form of cruel and inhuman treatment and 
does not include lesser forms of cruel, inhuman or degrading treatment 
or punishment.
    (c) Where there are substantial grounds for believing that [a 
fugitive] would be in danger of being subjected to torture means if it 
is more likely than not that the fugitive would be tortured.
    (d) Secretary means Secretary of State and includes, for purposes of 
this

[[Page 392]]

rule, the Deputy Secretary of State, by delegation.



Sec.  95.2  Application.

    (a) Article 3 of the Convention imposes on the parties certain 
obligations with respect to extradition. That Article provides as 
follows:
    (1) No State party shall expel, return (``refouler'') or extradite a 
person to another State where there are substantial grounds for 
believing that he would be in danger of being subjected to torture.
    (2) For the purpose of determining whether there are such grounds, 
the competent authorities shall take into account all relevant 
considerations including, where applicable, the existence in the State 
concerned of a consistent pattern of gross, flagrant or mass violations 
of human rights.
    (b) Pursuant to sections 3184 and 3186 of Title 18 of the United 
States Criminal Code, the Secretary is the U.S. official responsible for 
determining whether to surrender a fugitive to a foreign country by 
means of extradition. In order to implement the obligation assumed by 
the United States pursuant to Article 3 of the Convention, the 
Department considers the question of whether a person facing extradition 
from the U.S. ``is more likely than not'' to be tortured in the State 
requesting extradition when appropriate in making this determination.



Sec.  95.3  Procedures.

    (a) Decisions on extradition are presented to the Secretary only 
after a fugitive has been found extraditable by a United States judicial 
officer. In each case where allegations relating to torture are made or 
the issue is otherwise brought to the Department's attention, 
appropriate policy and legal offices review and analyze information 
relevant to the case in preparing a recommendation to the Secretary as 
to whether or not to sign the surrender warrant.
    (b) Based on the resulting analysis of relevant information, the 
Secretary may decide to surrender the fugitive to the requesting State, 
to deny surrender of the fugitive, or to surrender the fugitive subject 
to conditions.



Sec.  95.4  Review and construction.

    Decisions of the Secretary concerning surrender of fugitives for 
extradition are matters of executive discretion not subject to judicial 
review. Furthermore, pursuant to section 2242(d) of the Foreign Affairs 
Reform and Restructuring Act of 1998, P.L. 105-277, notwithstanding any 
other provision of law, no court shall have jurisdiction to review these 
regulations, and nothing in section 2242 shall be construed as providing 
any court jurisdiction to consider or review claims raised under the 
Convention or section 2242, or any other determination made with respect 
to the application of the policy set forth in section 2242(a), except as 
part of the review of a final order of removal pursuant to section 242 
of the Immigration and Nationality Act (8 U.S.C. 1252), which is not 
applicable to extradition proceedings.



PART 96_INTERCOUNTRY ADOPTION ACCREDITATION OF AGENCIES 
AND APPROVAL OF PERSONS--Table of Contents



                      Subpart A_General Provisions

Sec.
96.1 Purpose.
96.2 Definitions.
96.3 [Reserved]

  Subpart B_Selection, Designation, and Duties of Accrediting Entities

96.4 Designation of accrediting entities by the Secretary.
96.5 Requirement that accrediting entity be a nonprofit or public 
          entity.
96.6 Performance criteria for designation as an accrediting entity.
96.7 Authorities and responsibilities of an accrediting entity.
96.8 Fees charged by accrediting entities.
96.9 Agreement between the Secretary and the accrediting entity.
96.10 Suspension or cancellation of the designation of an accrediting 
          entity by the Secretary.
96.11 [Reserved]

 Subpart C_Accreditation and Approval Requirements for the Provision of 
                            Adoption Services

96.12 Authorized adoption service providers.
96.13 Circumstances in which accreditation, approval, or supervision is 
          not required.

[[Page 393]]

96.14 Providing adoption services using other providers.
96.15 Examples.
96.16 Public domestic authorities.
96.17 Effective date of accreditation and approval requirements.

     Subpart D_Application Procedures for Accreditation and Approval

96.18 Scope.
96.19 First-time application procedures for accreditation and approval.
96.20 Choosing an accrediting entity.
96.21-96.22 [Reserved]

    Subpart E_Evaluation of Applicants for Accreditation and Approval

96.23 Scope.
96.24 Procedures for evaluating applicants for accreditation or 
          approval.
96.25 Access to information and documents requested by the accrediting 
          entity.
96.26 Protection of information and documents by the accrediting entity.
96.27 Substantive criteria for evaluating applicants for accreditation 
          or approval.
96.28 [Reserved]

Subpart F_Standards for Intercountry Adoption Accreditation and Approval

96.29 Scope.

                   Licensing and Corporate Governance

96.30 State licensing.
96.31 Corporate structure.
96.32 Internal structure and oversight.

                      Financial and Risk Management

96.33 Budget, audit, insurance, and risk assessment requirements.
96.34 Compensation.

                 Ethical Practices and Responsibilities

96.35 Suitability of agencies and persons to provide adoption services 
          consistent with the Convention.
96.36 Prohibition on child buying.

         Professional Qualifications and Training for Employees

96.37 Education and experience requirements for social service 
          personnel.
96.38 Training requirements for social service personnel.

Information Disclosure, Fee Practices, and Quality Control Policies and 
                                Practices

96.39 Information disclosure and quality control practices.
96.40 Fee policies and procedures.

       Responding to Complaints and Records and Reports Management

96.41 Procedures for responding to complaints and improving service 
          delivery.
96.42 Retention, preservation, and disclosure of adoption records.
96.43 Case tracking, data management, and reporting.

                      Service Planning and Delivery

96.44 Acting as primary provider.
96.45 Using supervised providers in the United States.
96.46 Using providers in foreign countries.

Standards for Cases in Which a Child Is Immigrating to the United States 
                            (Incoming Cases)

96.47 Preparation of home studies in incoming cases.
96.48 Preparation and training of prospective adoptive parent(s) in 
          incoming cases.
96.49 Provision of medical and social information in incoming cases.
96.50 Placement and post-placement monitoring until final adoption in 
          incoming cases.
96.51 Post-adoption services in incoming cases.
96.52 Performance of Convention communication and coordination functions 
          in incoming cases.

 Standards for Convention Cases in Which a Child Is Emigrating From the 
                     United States (Outgoing Cases)

96.53 Background studies on the child and consents in outgoing 
          Convention cases.
96.54 Placement standards in outgoing Convention cases.
96.55 Performance of Convention communication and coordination functions 
          in outgoing Convention cases.
96.56 [Reserved]

    Subpart G_Decisions on Applications for Accreditation or Approval

96.57 Scope.
96.58 Notification of accreditation and approval decisions.
96.59 Review of decisions to deny accreditation or approval.
96.60 Length of accreditation or approval period.
96.61 [Reserved]

             Subpart H_Renewal of Accreditation or Approval

96.62 Scope.
96.63 Renewal of accreditation or approval.
96.64 [Reserved]

[[Page 394]]

           Subpart I_Routine Oversight by Accrediting Entities

96.65 Scope.
96.66 Oversight of accredited agencies and approved persons by the 
          accrediting entity.
96.67 [Reserved]

            Subpart J_Oversight Through Review of Complaints

96.68 Scope.
96.69 Filing of complaints against accredited agencies and approved 
          persons.
96.70 Operation of the Complaint Registry.
96.71 Review by the accrediting entity of complaints against accredited 
          agencies and approved persons.
96.72 Referral of complaints to the Secretary and other authorities.
96.73 [Reserved]

           Subpart K_Adverse Action by the Accrediting Entity

96.74 Scope.
96.75 Adverse action against accredited agencies or approved persons not 
          in substantial compliance.
96.76 Procedures governing adverse action by the accrediting entity.
96.77 Responsibilities of the accredited agency, approved person, and 
          accrediting entity following adverse action by the accrediting 
          entity.
96.78 Accrediting entity procedures to terminate adverse action.
96.79 Administrative or judicial review of adverse action by the 
          accrediting entity.
96.80 [Reserved]

 Subpart L_Oversight of Accredited Agencies and Approved Persons by the 
                                Secretary

96.81 Scope.
96.82 The Secretary's response to actions by the accrediting entity.
96.83 Suspension or cancellation of accreditation or approval by the 
          Secretary.
96.84 Reinstatement of accreditation or approval after suspension or 
          cancellation by the Secretary.
96.85 Temporary and permanent debarment by the Secretary.
96.86 Length of debarment period and reapplication after temporary 
          debarment.
96.87 Responsibilities of the accredited agency, approved person, and 
          accrediting entity following suspension, cancellation, or 
          debarment by the Secretary.
96.88 Review of suspension, cancellation, or debarment by the Secretary.
96.89 [Reserved]

  Subpart M_Dissemination and Reporting of Information by Accrediting 
                                Entities

96.90 Scope.
96.91 Dissemination of information to the public about accreditation and 
          approval status.
96.92 Dissemination of information to the public about complaints 
          against accredited agencies and approved persons.
96.93 Reports to the Secretary about accredited agencies and approved 
          persons and their activities.
96.94 [Reserved]

    Authority: The Convention on Protection of Children and Co-operation 
in Respect of Intercountry Adoption (done at the Hague, May 29, 1993), 
S. Treaty Doc. 105-51 (1998), 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); 
The Intercountry Adoption Act of 2000, 42 U.S.C. 14901-14954; The 
Intercountry Adoption Universal Accreditation Act of 2012, Pub. L. 112-
276, 42 U.S.C. 14925.

    Source: 71 FR 8131, Feb. 15, 2006, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  96.1  Purpose.

    This part provides for the accreditation and approval of agencies 
and persons pursuant to the Intercountry Adoption Act of 2000 (42 U.S.C. 
14901-14954, Pub. L. 106-279,) and the Intercountry Adoption Universal 
Accreditation Act of 2012 (42 U.S.C. 14925, Pub. L. 112-276). Subpart B 
of this part establishes the procedures for the selection and 
designation of accrediting entities to perform the accreditation and 
approval functions. Subparts C through H establish the general 
procedures and standards for accreditation and approval of agencies and 
persons (including renewal of accreditation or approval). Subparts I 
through M address the oversight of accredited or approved agencies and 
persons.

[79 FR 40632, July 14, 2014]



Sec.  96.2  Definitions.

    As used in this part, the term:
    Accredited agency means an agency that has been accredited by an 
accrediting entity, in accordance with the standards in subpart F of 
this part, to provide adoption services in the United States in 
intercountry adoption cases.

[[Page 395]]

    Accrediting entity means an entity that has been designated by the 
Secretary to accredit agencies and/or to approve persons for purposes of 
providing adoption services in the United States in intercountry 
adoption cases.
    Adoption means the judicial or administrative act that establishes a 
permanent legal parent-child relationship between a minor and an adult 
who is not already the minor's legal parent and terminates the legal 
parent-child relationship between the adoptive child and any former 
parent(s).
    Adoption record means any record, information, or item related to a 
specific intercountry adoption of a child received or maintained by an 
agency, person, or public domestic authority, including, but not limited 
to, photographs, videos, correspondence, personal effects, medical and 
social information, and any other information about the child.
    Adoption service means any one of the following six services:
    (1) Identifying a child for adoption and arranging an adoption;
    (2) Securing the necessary consent to termination of parental rights 
and to adoption;
    (3) Performing a background study on a child or a home study on a 
prospective adoptive parent(s), and reporting on such a study;
    (4) Making non-judicial determinations of the best interests of a 
child and the appropriateness of an adoptive placement for the child;
    (5) Monitoring a case after a child has been placed with prospective 
adoptive parent(s) until final adoption; or
    (6) When necessary because of a disruption before final adoption, 
assuming custody and providing (including facilitating the provision of) 
child care or any other social service pending an alternative placement.
    Agency means a private, nonprofit organization licensed to provide 
adoption services in at least one State. (For-profit entities and 
individuals that provide adoption services are considered ``persons'' as 
defined in this section.)
    Approved home study means a review of the home environment of the 
child's prospective adoptive parent(s) that has been:
    (1) Completed by an accredited agency; or
    (2) Approved by an accredited agency.
    Approved person means a person that has been approved, in accordance 
with the standards in subpart F of this part, by an accrediting entity 
to provide adoption services in the United States in intercountry 
adoption cases.
    Best interests of the child shall have the meaning given to it by 
the law of the State with jurisdiction to decide whether a particular 
adoption or adoption-related action is in a child's best interests.
    Case Registry means the tracking system jointly established by the 
Secretary and DHS to comply with section 102(e) of the IAA (42 U.S.C. 
14912).
    Central Authority means the entity designated as such under Article 
6(1) of the Convention by any Convention country, or, in the case of the 
United States, the United States Department of State. In countries that 
are not Convention countries, Central Authority means the relevant 
``competent authority'' as defined in this section.
    Child welfare services means services, other than those defined as 
``adoption services'' in this section, that are designed to promote and 
protect the well-being of a family or child. Such services include, but 
are not limited to, recruiting and identifying adoptive parent(s) in 
cases of disruption (but not assuming custody of the child), arranging 
or providing temporary foster care for a child in connection with an 
intercountry adoption or providing educational, social, cultural, 
medical, psychological assessment, mental health, or other health-
related services for a child or family in an intercountry adoption case.
    Competent authority means a court or governmental authority of a 
foreign country that has jurisdiction and authority to make decisions in 
matters of child welfare, including adoption.
    Complaint Registry means the system created by the Secretary 
pursuant to Sec.  96.70 to receive, distribute, and monitor complaints 
relevant to the accreditation or approval status of agencies and 
persons.

[[Page 396]]

    Convention means the Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption done at The Hague on May 
29, 1993.
    Convention adoption means the adoption of a child resident in a 
Convention country by a United States citizen, or an adoption of a child 
resident in the United States by an individual or individuals residing 
in a Convention country, when, in connection with the adoption, the 
child has moved or will move between the United States and the 
Convention country.
    Convention country means a country that is a party to the Convention 
and with which the Convention is in force for the United States.
    Country of origin means the country in which a child is a resident 
and from which a child is emigrating in connection with his or her 
adoption.
    Debarment means the loss of accreditation or approval by an agency 
or person as a result of an order of the Secretary under which the 
agency or person is temporarily or permanently barred from accreditation 
or approval.
    DHS means the Department of Homeland Security and encompasses the 
former Immigration and Naturalization Service (INS) or any successor 
entity designated by the Secretary of Homeland Security to assume the 
functions vested in the Attorney General by the IAA relating to the 
INS's responsibilities.
    Disruption means the interruption of a placement for adoption during 
the post-placement period.
    Dissolution means the termination of the adoptive parent(s)' 
parental rights after an adoption.
    Exempted provider means a social work professional or organization 
that performs a home study on prospective adoptive parent(s) or a child 
background study (or both) in the United States in connection with an 
intercountry adoption (including any reports or updates), but that is 
not currently providing and has not previously provided any other 
adoption service in the case.
    IAA means the Intercountry Adoption Act of 2000, Public Law 106-279 
(2000) (42 U.S.C. 14901-14954), as amended from time to time.
    INA means the Immigration and Nationality Act (8 U.S.C. 1101 et 
seq.), as amended.
    Intercountry adoption means a Convention adoption or the adoption of 
a child described in INA section 101(b)(1)(F).
    Legal custody means having legal responsibility for a child under 
the order of a court of law, a public domestic authority, competent 
authority, public foreign authority, or by operation of law.
    Legal services means services, other than those defined in this 
section as ``adoption services,'' that relate to the provision of legal 
advice and information and to the drafting of legal instruments. Such 
services include, but are not limited to, drawing up contracts, powers 
of attorney, and other legal instruments; providing advice and counsel 
to adoptive parent(s) on completing DHS or Central Authority forms; and 
providing advice and counsel to accredited agencies, approved persons, 
or prospective adoptive parent(s) on how to comply with the Convention, 
the IAA, the UAA, and the regulations implementing the IAA or UAA.
    Person means an individual or a private, for-profit entity 
(including a corporation, company, association, firm, partnership, 
society, or joint stock company) providing adoption services. It does 
not include public domestic authorities or public foreign authorities.
    Post-adoption means after an adoption; in cases in which an adoption 
occurs in a foreign country and is followed by a re-adoption in the 
United States, it means after the adoption in the foreign country.
    Post-placement means after a grant of legal custody or guardianship 
of the child to the prospective adoptive parent(s), or to a custodian 
for the purpose of escorting the child to the identified prospective 
adoptive parent(s), and before an adoption.
    Primary provider means the accredited agency or approved person that 
is identified pursuant to Sec.  96.14 as responsible for ensuring that 
all six adoption services are provided and for supervising and being 
responsible for supervised providers where used.
    Public domestic authority means an authority operated by a State, 
local, or

[[Page 397]]

tribal government within the United States.
    Public foreign authority means an authority operated by a national 
or subnational government of a foreign country.
    Secretary means the Secretary of State, the Assistant Secretary of 
State for Consular Affairs, or any other Department of State official 
exercising the Secretary of State's authority under the Convention, the 
IAA, the UAA, or any regulations implementing the IAA or UAA, pursuant 
to a delegation of authority.
    State means the fifty States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, and the U.S. Virgin Islands.
    Supervised provider means any agency, person, or other non-
governmental entity, including any foreign entity, regardless of whether 
it is called a facilitator, agent, attorney, or by any other name, that 
is providing one or more adoption services in an intercountry adoption 
case under the supervision and responsibility of an accredited agency or 
approved person that is acting as the primary provider in the case.
    UAA means the Intercountry Adoption Universal Accreditation Act of 
2012, (42 U.S.C. 14925, Pub. L. 112-276 (2012)).

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40632, July 14, 2014]



Sec.  96.3  [Reserved]



  Subpart B_Selection, Designation, and Duties of Accrediting Entities



Sec.  96.4  Designation of accrediting entities by the Secretary.

    (a) The Secretary, in the Secretary's discretion, will designate one 
or more entities that meet the criteria set forth in Sec.  96.5 to 
perform the accreditation and/or approval functions. Each accrediting 
entity's designation will be set forth in an agreement between the 
Secretary and the accrediting entity. The agreement will govern the 
accrediting entity's operations. The agreements will be published in the 
Federal Register.
    (b) The Secretary's designation may authorize an accrediting entity 
to accredit agencies, to approve persons, or to both accredit agencies 
and approve persons. The designation may also limit the accrediting 
entity's geographic jurisdiction or impose other limits on the entity's 
jurisdiction.
    (c) A public entity may only be designated to accredit agencies and 
approve persons that are located in the public entity's State.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40633, July 14, 2014]



Sec.  96.5  Requirement that accrediting entity be a nonprofit 
or public entity.

    An accrediting entity must qualify as either:
    (a) An organization described in section 501(c)(3) of the Internal 
Revenue Code of 1986, as amended, that has expertise in developing and 
administering standards for entities providing child welfare services; 
or
    (b) A public entity (other than a Federal entity), including, but 
not limited to, any State or local government or governmental unit or 
any political subdivision, agency, or instrumentality thereof, that is 
responsible for licensing adoption agencies in a State and that has 
expertise in developing and administering standards for entities 
providing child welfare services.



Sec.  96.6  Performance criteria for designation as an accrediting entity.

    An entity that seeks to be designated as an accrediting entity must 
demonstrate to the Secretary:
    (a) That it has a governing structure, the human and financial 
resources, and systems of control adequate to ensure its reliability;
    (b) That it is capable of performing the accreditation or approval 
functions or both on a timely basis and of administering any renewal 
cycle authorized under Sec.  96.60;
    (c) That it can monitor the performance of agencies it has 
accredited and persons it has approved (including their use of any 
supervised providers) to ensure their continued compliance with the 
Convention, the IAA, the UAA, and the regulations implementing the IAA 
or UAA;

[[Page 398]]

    (d) That it has the capacity to take appropriate adverse actions 
against agencies it has accredited and persons it has approved;
    (e) That it can perform the required data collection, reporting, and 
other similar functions;
    (f) Except in the case of a public entity, that it operates 
independently of any agency or person that provides adoption services, 
and of any membership organization that includes agencies or persons 
that provide adoption services;
    (g) That it has the capacity to conduct its accreditation and 
approval functions fairly and impartially;
    (h) That it can comply with any conflict-of-interest prohibitions 
set by the Secretary in its agreement;
    (i) That it prohibits conflicts of interest with agencies or persons 
or with any membership organization that includes agencies or persons 
that provide adoption services; and
    (j) That it prohibits its employees or other individuals acting as 
site evaluators, including, but not limited to, volunteer site 
evaluators, from becoming employees or supervised providers of an agency 
or person for at least one year after they have evaluated such agency or 
person for accreditation or approval.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40633, July 14, 2014]



Sec.  96.7  Authorities and responsibilities of an accrediting entity.

    (a) An accrediting entity may be authorized by the Secretary to 
perform some or all of the following functions:
    (1) Determining whether agencies are eligible for accreditation;
    (2) Determining whether persons are eligible for approval;
    (3) Overseeing accredited agencies and/or approved persons by 
monitoring their compliance with applicable requirements;
    (4) Investigating and responding to complaints about accredited 
agencies and approved persons (including their use of supervised 
providers);
    (5) Taking adverse action against an accredited agency or approved 
person, and/or referring an accredited agency or approved person for 
possible action by the Secretary;
    (6) Determining whether accredited agencies and approved persons are 
eligible for renewal of their accreditation or approval on a cycle 
consistent with Sec.  96.60;
    (7) Collecting data from accredited agencies and approved persons, 
maintaining records, and reporting information to the Secretary, State 
courts, and other entities; and
    (8) Assisting the Secretary in taking appropriate action to help an 
agency or person in transferring its intercountry adoption cases and 
adoption records.
    (b) The Secretary may require the accrediting entity:
    (1) To utilize the Complaint Registry as provided in subpart J of 
this part; and
    (2) To fund a portion of the costs of operating the Complaint 
Registry with fees collected by the accrediting entity pursuant to the 
schedule of fees approved by the Secretary as provided in Sec.  96.8.
    (c) An accrediting entity must perform all responsibilities in 
accordance with the Convention, the IAA, the UAA, the regulations 
implementing the IAA or UAA, and its agreement with the Secretary.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40633, July 14, 2014]



Sec.  96.8  Fees charged by accrediting entities.

    (a) An accrediting entity may charge fees for accreditation or 
approval services under this part only in accordance with a schedule of 
fees approved by the Secretary. Before approving a schedule of fees 
proposed by an accrediting entity, or subsequent proposed changes to an 
approved schedule, the Secretary will require the accrediting entity to 
demonstrate:
    (1) That its proposed schedule of fees reflects appropriate 
consideration of the relative size and geographic location and volume of 
intercountry adopton cases of the agencies or persons it expects to 
serve;
    (2) That the total fees the accrediting entity expects to collect 
under the schedule of fees will not exceed the full costs of 
accreditation or approval

[[Page 399]]

under this part (including, but not limited to, costs for completing the 
accreditation or approval process, complaint review and investigation, 
routine oversight and enforcement, and other data collection and 
reporting activities).
    (b) The schedule of fees must:
    (1) Establish separate non-refundable fees for accreditation and 
approval;
    (2) Include in each fee for accreditation or approval the costs of 
all activities associated with the accreditation or approval cycle, 
including but not limited to, costs for completing the accreditation or 
approval process, complaint review and investigation, routine oversight 
and enforcement, and other data collection and reporting activities, 
except that separate fees based on actual costs incurred may be charged 
for the travel and maintenance of evaluators.
    (c) An accrediting entity must make its approved schedule of fees 
available to the public, including prospective applicants for 
accreditation or approval, upon request. At the time of application, the 
accrediting entity must specify the fees to be charged to the applicant 
in a contract between the parties and must provide notice to the 
applicant that no portion of the fee will be refunded if the applicant 
fails to become accredited or approved.
    (d) Nothing in this section shall be construed to provide a private 
right of action to challenge any fee charged by an accrediting entity 
pursuant to a schedule of fees approved by the Secretary.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40633, July 14, 2014]



Sec.  96.9  Agreement between the Secretary and the accrediting entity.

    An accrediting entity must perform its functions pursuant to a 
written agreement with the Secretary that will be published in the 
Federal Register. The agreement will address:
    (a) The responsibilities and duties of the accrediting entity;
    (b) The method by which the costs of delivering the accreditation or 
approval services may be recovered through the collection of fees from 
those seeking accreditation or approval, and how the entity's schedule 
of fees will be approved;
    (c) How the accrediting entity will address complaints about 
accredited agencies and approved persons (including their use of 
supervised providers) and complaints about the accrediting entity 
itself;
    (d) Data collection requirements;
    (e) Matters of communication and accountability between both the 
accrediting entity and the applicant(s) and between the accrediting 
entity and the Secretary; and
    (f) Other matters upon which the parties have agreed.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40633, July 14, 2014]



Sec.  96.10  Suspension or cancellation of the designation of an accrediting 
entity by the Secretary.

    (a) The Secretary will suspend or cancel the designation of an 
accrediting entity if the Secretary concludes that it is substantially 
out of compliance with the Convention, the IAA, the UAA, the regulations 
implementing the IAA or UAA, other applicable laws, or the agreement 
with the Secretary. Complaints regarding the performance of the 
accrediting entity may be submitted to the Department of State, Bureau 
of Consular Affairs. The Secretary will consider complaints in 
determining whether an accrediting entity's designation should be 
suspended or canceled.
    (b) The Secretary will notify an accrediting entity in writing of 
any deficiencies in the accrediting entity's performance that could lead 
to the suspension or cancellation of its designation, and will provide 
the accrediting entity with an opportunity to demonstrate that 
suspension or cancellation is unwarranted, in accordance with procedures 
established in the agreement entered into pursuant to Sec.  96.9.
    (c) An accrediting entity may be considered substantially out of 
compliance under circumstances that include, but are not limited to:
    (1) Failing to act in a timely manner when presented with evidence 
that an accredited agency or approved person is substantially out of 
compliance with the standards in subpart F of this part;

[[Page 400]]

    (2) Accrediting or approving significant numbers of agencies or 
persons whose performance results in intervention of the Secretary for 
the purpose of suspension, cancellation, or debarment;
    (3) Failing to perform its responsibilities fairly and objectively;
    (4) Violating prohibitions on conflicts of interest;
    (5) Failing to meet its reporting requirements;
    (6) Failing to protect information or documents that it receives in 
the course of performing its responsibilities; and
    (7) Failing to monitor frequently and carefully the compliance of 
accredited agencies, and approved persons with the home study 
requirements of the Convention, section 203(b)(1)(A)(ii) of the IAA (42 
U.S.C. 14923(b)(1)(A)(ii)), and Sec.  96.47.
    (d) An accrediting entity that is subject to a final action of 
suspension or cancellation may petition the United States District Court 
for the District of Columbia or the United States district court in the 
judicial district in which the accrediting entity is located to set 
aside the action as provided in section 204(d) of the IAA (42 U.S.C. 
14924(d)).

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40633, July 14, 2014]



Sec.  96.11  [Reserved]



 Subpart C_Accreditation and Approval Requirements for the Provision of 
                            Adoption Services



Sec.  96.12  Authorized adoption service providers.

    (a) Except as provided in section 505(b) of the IAA (relating to 
transitional cases), and once the UAA becomes effective, except as 
provided in section 2(c) of the UAA (relating to transitional cases), an 
agency or person may not offer, provide, or facilitate the provision of 
any adoption service in the United States in connection with an 
intercountry adoption unless it is:
    (1) An accredited agency or an approved person;
    (2) A supervised provider; or
    (3) An exempted provider, if the exempted provider's home study or 
child background study will be reviewed and approved by an accredited 
agency pursuant to Sec.  96.47(c) or Sec.  96.53(b).
    (b) A public domestic authority may also offer, provide, or 
facilitate the provision of any such adoption service.
    (c) Neither conferral nor maintenance of accreditation or approval, 
nor status as an exempted or supervised provider, nor status as a public 
domestic authority shall be construed to imply, warrant, or establish 
that, in any specific case, an adoption service has been provided 
consistently with the Convention, the IAA, the UAA, or the regulations 
implementing the IAA or UAA. Conferral and maintenance of accreditation 
or approval under this part establishes only that the accrediting entity 
has concluded, in accordance with the standards and procedures of this 
part, that the agency or person conducts adoption services in 
substantial compliance with the applicable standards set forth in this 
part; it is not a guarantee that in any specific case the accredited 
agency or approved person is providing adoption services consistently 
with the Convention, the IAA, the UAA, the regulations implementing the 
IAA or UAA, or any other applicable law, whether Federal, State, or 
foreign. Neither the Secretary nor any accrediting entity shall be 
responsible for any acts of an accredited agency, approved person, 
exempted provider, supervised provider, or other entity providing 
services in connection with an intercountry adoption.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40633, July 14, 2014]



Sec.  96.13  Circumstances in which accreditation, approval, or supervision 
is not required.

    (a) Home studies and child background studies. Home studies and 
child background studies, when performed by exempted providers, may be 
performed without accreditation, approval, or supervision; provided, 
however, that an exempted provider's home study must be approved by an 
accredited agency in accordance with Sec.  96.47(c), and an exempted 
provider's child background study must be approved by an accredited 
agency in accordance with Sec.  96.53(b).

[[Page 401]]

    (b) Child welfare services. An agency or person does not need to be 
accredited, approved, or operate as a supervised provider if it is 
providing only child welfare services, and not providing any adoption 
services, in connection with an intercountry adoption. If the agency or 
person provides both a child welfare service and any adoption service in 
the United States in an intercountry adoption case, it must be 
accredited, approved or operate as a supervised provider unless the only 
adoption service provided is preparation of a home study and/or a child 
background study.
    (c) Legal services. An agency or person does not need to be 
accredited, approved, or to operate as a supervised provider if it is 
providing only legal services, and not providing any adoption services, 
in connection with an intercountry adoption. If the agency or person 
provides both a legal service and any adoption service in the United 
States in an intercountry adoption case, it must be accredited, approved 
or operate as a supervised provider unless the only adoption service 
provided is preparation of a home study and/or a child background study. 
Nothing in this part shall be construed:
    (1) To permit an attorney to provide both legal services and 
adoption services in an adoption case where doing so is prohibited by 
State law; or
    (2) To require any attorney who is providing one or more adoption 
services as part of his or her employment by a public domestic authority 
to be accredited or approved or operate as a supervised provider.
    (d) Prospective adoptive parent(s) acting on own behalf. Prospective 
adoptive parent(s) may act on their own behalf without being accredited, 
or approved unless so acting is prohibited by State law or the law of 
the foreign country. In the case of a child immigrating to the United 
States in connection with his or her adoption, such conduct must be 
permissible under the laws of the State in which the prospective 
adoptive parent(s) reside and the laws of the foreign country from which 
the parent(s) seek to adopt. In the case of a child emigrating from the 
United States in connection with his or her adoption, such conduct must 
be permissible under the laws of the State where the child resides and 
the laws of the Convention country in which the parent(s) reside.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40633, July 14, 2014]



Sec.  96.14  Providing adoption services using other providers.

    (a) Accreditation and approval under this part require that, in each 
intercountry adoption case, an accredited agency or an approved person 
will be identified and act as the primary provider. If one accredited 
agency or approved person is providing all adoption services by itself, 
it must act as the primary provider. If just one accredited agency or 
approved person is involved in providing adoption services, the sole 
accredited agency or approved person must act as the primary provider. 
If adoption services in the intercountry adoption case are being 
provided by more than one accredited agency or approved person, the 
agency or person that has child placement responsibility, as evidenced 
by the following, must act as the primary provider throughout the case:
    (1) Entering into placement contracts with prospective adoptive 
parent(s) to provide child referral and placement;
    (2) Accepting custody from a birth parent or other legal custodian 
in a foreign country for the purpose of placement for adoption;
    (3) Assuming responsibility for liaison with a foreign country's 
Central Authority or its designees with regard to arranging an adoption; 
or
    (4) Receiving from or sending to a foreign country information about 
a child that is under consideration for adoption, unless acting as a 
local service provider that conveys such information to parent(s) on 
behalf of the primary provider.
    (b) Pursuant to Sec.  96.44, in the case of accredited agencies or 
approved persons, the primary provider may only use the following to 
provide adoption services in the United States:
    (1) A supervised provider, including an accredited agency or 
approved person;
    (2) An exempted provider, if the exempted provider's home study or 
child background study will be reviewed and

[[Page 402]]

approved by an accredited agency pursuant to Sec.  96.47(c) or Sec.  
96.53(b); or
    (3) A public domestic authority.
    (c) Pursuant to Sec.  96.44 of subpart F, in the case of accredited 
agencies or approved persons, the primary provider may only use the 
following to provide adoption services in a foreign country:
    (1) A Central Authority, competent authority, or a public foreign 
authority;
    (2) A foreign supervised provider, including a provider accredited 
by the foreign country; or
    (3) A foreign provider (agency, person, or other non-governmental 
entity) who
    (i) Has secured or is securing the necessary consent to termination 
of parental rights and to adoption, if the primary provider verifies 
consent pursuant to Sec.  96.46(c); or
    (ii) Has prepared or is preparing a background study on a child in a 
case involving immigration to the United States (incoming case) or a 
home study on prospective adoptive parent(s) in a case involving 
emigration from the United States (outgoing case), and a report on the 
results of such a study, if the primary provider verifies the study and 
report pursuant to Sec.  96.46(c).
    (d) The primary provider is not required to provide supervision or 
to assume responsibility for:
    (1) Public domestic authorities; or
    (2) Central Authorities, competent authorities, and public foreign 
authorities.
    (e) The primary provider must adhere to the standards contained in 
Sec.  96.45 (Using supervised providers in the United States) when using 
supervised providers in the United States and the applicable standards 
contained in Sec.  96.46 (Using providers in foreign countries) when 
using providers outside the United States.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40633, July 14, 2014; 80 
FR 7323, Feb. 10, 2015]



Sec.  96.15  Examples.

    The following examples illustrate the rules of Sec. Sec.  96.12 to 
96.14:

    Example 1. Identifying a child for adoption and arranging an 
adoption. Agency X identifies children eligible for adoption in the 
United States on a TV program in an effort to recruit prospective 
adoptive parent(s). A couple in a foreign country calls Agency X about 
one of the children. Agency X refers them to an agency or person in the 
United States who arranges intercountry adoptions. Agency X does not 
require accreditation, temporarily accreditation, approval or 
supervision because it is not both identifying and arranging the 
adoption. In contrast, Agency Y, located in the United States, provides 
information about children eligible for adoption in a foreign country on 
a website and then arranges for interested U.S. parents to adopt those 
children. Agency Y must be accredited, approved, or supervised because, 
in addition to identifying children eligible for adoption, it is also 
helping to arrange the adoption.
    Example 2. Child welfare services exemption. Doctor X evaluates the 
medical records and a video of Child Y. The evaluation will be used in 
an intercountry adoption as part of the placement of Child Y and is the 
only service that Doctor X provides in the United States with regard to 
Child Y's adoption. Doctor X (not employed with an accredited agency or 
approved person) does not need to be approved or supervised because she 
is not providing an adoption service as defined in Sec.  96.2.
    Example 3. Home study exemption. Social Worker X, in the United 
States, (not employed with an accredited agency or approved person) 
interviews Prospective Adoptive Parent Y, obtains a criminal background 
study, and checks the references of Prospective Adoptive Parent Y, then 
composes a report and submits the report to an accredited agency for use 
in an intercountry adoption. Social Worker X does not provide any other 
services to Prospective Adoptive Parent Y. Social Worker X qualifies as 
an exempted provider and therefore need not be approved or operate as 
supervised provider. In contrast, Social Worker Z, in the United States, 
(not employed with an accredited agency or approved person) prepares a 
home study report for Prospective Adoptive Parent(s) W, and in addition 
re-enters the house after Child V has been placed with Prospective 
Adoptive Parent(s) W to assess how V and W are adjusting to life as a 
family. This assessment is post-placement monitoring, which is an 
adoption service. Therefore, Social Worker Z would need to become 
approved before providing this assessment for this intercountry adoption 
or else operate as a supervised provider. If an agency or person 
provides an adoption service in addition to a home study or child 
background study, the agency or person needs to become accredited, 
approved, or supervised before providing that adoption service.
    Example 4. Child background study exemption. An employee of Agency X 
interviews Child Y in the United States and compiles a

[[Page 403]]

report concerning Child Y's social and developmental history for use in 
an intercountry adoption. Agency X provides no other adoption services 
on behalf of Child Y. Agency X does not need to be accredited, approved, 
or supervised. Agency X is only conducting and creating a child 
background study, and therefore is an exempted provider. In contrast, an 
employee of Agency Z interviews Child W in the United States and creates 
a child background study for use in an intercountry adoption. Agency Z 
subsequently identifies prospective adoptive parent(s) and arranges a 
new adoption when Child W's previous adoption becomes disrupted. Agency 
Z needs to be accredited, approved, or supervised before providing this 
service. If an agency or person provides an adoption service in addition 
to a child background study or home study, the agency or person needs to 
be accredited, approved, or supervised before providing the additional 
service.
    Example 5. Home study and child welfare services exemptions. Agency 
X interviews Prospective Adoptive Parent Y, obtains a criminal 
background check, checks the references of Prospective Adoptive Parent 
Y, then composes a home study and submits it to an accredited agency for 
use in an intercountry adoption in the United States. Parent Y later 
joins a post-adoption support group for adoptive parents sponsored by 
Agency X. If Agency X performs no other adoption services, Agency X does 
not need to be accredited, approved, or supervised. If an agency or 
person provides a home study or child background study as well as other 
services in the United States that do not require accreditation, 
approval, or supervision, and no other adoption services, the agency or 
person is an exempted provider.
    Example 6. Exempted provider. Agency X interviews Prospective 
Adoptive Parent(s) Y, obtains a criminal background check, checks the 
references of Prospective Adoptive Parent(s) Y, and then composes a home 
study and submits the report to an accredited agency. In addition, 
Agency X interviews Child Z and compiles a report concerning Child Z's 
social and developmental history. All of Agency X's work is done in the 
United States. Both reports will be used in an intercountry adoption. If 
Agency X performs no other adoption services, Agency X does not need to 
be accredited, approved, or supervised. If an agency or person provides 
a home study and child background study as well as other services that 
do not require accreditation, approval or supervision, and no other 
adoption services, the agency or person is an exempted provider.
    Example 7. Legal services exemption. Attorney X (not employed with 
an accredited agency or approved person) provides advice and counsel to 
Prospective Adoptive Parent(s) Y on filling out DHS paperwork required 
for an intercountry adoption. Among other papers, Attorney X prepares an 
affidavit of consent to termination of parental rights and to adoption 
of Child W to be signed by the birth mother in the United States. 
Attorney X must be approved or supervised because securing consent to 
termination of parental rights is an adoption service. In contrast, 
Attorney Z (not employed with an accredited agency or approved person) 
assists Adoptive Parent(s) T to complete an adoption in the State in 
which they reside, after they have been granted an adoption in Child V's 
foreign country of origin. Attorney Z is exempt from approval or 
supervision because she is providing legal services, but no adoption 
services.
    Example 8. Post-placement monitoring. A court in a foreign country 
has granted custody of Child W to Prospective Adoptive Parent(s) Y 
pending the completion of W's adoption. Agency X interviews both 
Prospective Adoptive Parent(s) Y and Child W in their home in the United 
States. Agency X gathers information on the adjustment of Child W as a 
member of the family and inquires into the social and educational 
progress of Child W. Agency X must be accredited, approved, or 
supervised. Agency X's activities constitute post-placement monitoring, 
which is an adoption service. In contrast, if Person Z provided 
counseling for Prospective Adoptive Parent(s) Y and/or Child W, but 
provided no adoption services in the United States to the family, Person 
Z would not need to be approved or supervised. Post-placement counseling 
is different than post-placement monitoring because it does not relate 
to evaluating the adoption placement. Post-placement counseling is not 
an adoption service and does not trigger the accreditation/approval 
requirements of the IAA or the UAA and this part.
    Example 9. Post-adoption services. Foreign Country H requires that 
post-adoption reports be completed and sent to its Central Authority 
every year until adopted children reach the age of 18. Agency X provides 
support groups and a newsletter for U.S. parents that have adopted 
children from Country H and encourages parents to complete their post-
adoption reports annually. Agency X does not need to be accredited, 
approved, or supervised because it is providing only post-adoption 
services. Post-adoption services are not included in the definition of 
adoption services, and therefore, do not trigger accreditation/approval 
requirements of the IAA or the UAA and this part.
    Example 10. Assuming custody and providing services after a 
disruption. Agency X provides counseling for Prospective Adoptive 
Parent(s) Y and for Child W pending the completion of Child W's 
intercountry adoption. The adoption eventually disrupts. Agency X helps 
recruit and identify new prospective adoptive parent(s) for Child W, but 
it is Agency P that assumes custody of Child

[[Page 404]]

W and places him in foster care until an alternative adoptive placement 
can be found. Agency X is not required to be accredited, approved, or 
supervised because it is not providing an adoption service in the United 
States as defined in Sec.  96.2. Agency P, on the other hand, is 
providing an adoption service and would have to be accredited, approved, 
or supervised.
    Example 11. Making non-judicial determinations of best interest of 
child and appropriateness of adoptive placement of child. Agency X 
receives information about and a videotape of Child W from the 
institution where Child W lives in a foreign country. Based on the age, 
sex, and health problems of Child W, Agency X matches Prospective 
Adoptive Parent(s) Y with Child W. Prospective Adoptive Parent(s) Y 
receive a referral from Agency X and agree to accept the referral and 
proceed with the adoption of Child W. Agency X determines that 
Prospective Adoptive Parent(s) Y are a good placement for Child W and 
notifies the competent authority in W's country of origin that it has 
found a match for Child W and will start preparing adoption paperwork. 
All of Agency X's services are provided in the United States. Agency X 
is performing an adoption service and must be accredited, approved, or 
supervised.
    Example 12. Securing necessary consent to termination of parental 
rights and to adoption. Facilitator Y is accredited by Convention 
Country Z. He has contacts at several orphanages in Foreign Country Z 
and helps Agency X match children eligible for adoption with prospective 
adoptive parent(s) in the United States. Facilitator Y works with the 
institution that is the legal guardian of Child W in order to get the 
documents showing the institution's legal consent to the adoption of 
Child W. Agency X is the only U.S. agency providing adoption services in 
the case. Agency X must be accredited, or approved and must either treat 
Facilitator Y as a foreign supervised provider in accordance with Sec.  
96.46(a) and (b) or verify the consents Facilitator Y secured, in 
accordance with Sec.  96.46(c).

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40634, July 14, 2014]



Sec.  96.16  Public domestic authorities.

    Public domestic authorities are not required to become accredited to 
be able to provide adoption services in intercountry adoption cases, but 
must comply with the Convention, the IAA, the UAA, and other applicable 
law when providing services in an intercountry adoption case.

[79 FR 40634, July 14, 2014]



Sec.  96.17  Effective date of accreditation and approval requirements.

    The Convention entered into force for the United States on April 1, 
2008. As of that date, the regulations in subpart C of this part govern 
Convention adoptions between the United States and Convention countries, 
and require agencies or persons providing adoption services on behalf of 
prospective adoptive parent(s) to comply with Sec.  96.12 and applicable 
Federal regulations. The Secretary maintains for the public a current 
listing of Convention countries. The effective date of the UAA is July 
14, 2014. As of that date, consistent with the UAA, the regulations in 
subpart C of this part will govern adoptions of children described in 
INA Sec.  101(b)(1)(F), and will require agencies or persons providing 
adoption services on behalf of prospective adoptive parent(s) in 
connection with a child described in section 101(b)(1)(F) to comply with 
Sec.  96.12 and applicable Federal regulations.

[79 FR 40634, July 14, 2014]



     Subpart D_Application Procedures for Accreditation and Approval



Sec.  96.18  Scope.

    (a) Agencies are eligible to apply for ``accreditation.'' Persons 
are eligible to apply for ``approval.'' Applications for accreditation 
or approval will be processed in accordance with Sec. Sec.  96.19 and 
96.20.
    (b) If an agency or person is reapplying for accreditation or 
approval following cancellation of its accreditation or approval by an 
accrediting entity or refusal by an accrediting entity to renew its 
accreditation or approval, it must comply with the procedures in Sec.  
96.78.
    (c) If an agency or person that has been accredited or approved is 
seeking renewal, it must comply with the procedures in Sec.  96.63.

[79 FR 40634, July 14, 2014]



Sec.  96.19  First-time application procedures for accreditation and approval.

    (a) Agencies or persons seeking accreditation or approval for the 
first

[[Page 405]]

time may submit an application at any time, with the required fee(s), to 
an accrediting entity with jurisdiction to evaluate the application.
    (b) The accrediting entity must establish and follow uniform 
application procedures and must make information about those procedures 
available to agencies and persons that are considering whether to apply 
for accreditation or approval. An accrediting entity must evaluate the 
applicant for accreditation or approval in a timely fashion.

[71 FR 8131, Feb. 15, 2006. Redesignated and amended at 79 FR 40634, 
July 14, 2014]



Sec.  96.20  Choosing an accrediting entity.

    (a) An agency that seeks to become accredited must apply to an 
accrediting entity that is designated to provide accreditation services 
and that has jurisdiction over its application. A person that seeks to 
become approved must apply to an accrediting entity that is designated 
to provide approval services and that has jurisdiction over its 
application. The agency or person may apply to only one accrediting 
entity at a time.
    (b)(1) If the agency or person is applying for accreditation or 
approval pursuant to this part for the first time, it may apply to any 
accrediting entity with jurisdiction over its application. However, the 
agency or person must apply to the same accrediting entity that handled 
its prior application when it next applies for accreditation or 
approval, if the agency or person:
    (i) Has been denied accreditation or approval;
    (ii) Has withdrawn its application in anticipation of denial;
    (iii) Has had its accreditation or approval cancelled by an 
accrediting entity or the Secretary;
    (iv) Has been temporarily debarred by the Secretary; or
    (v) Has been refused renewal of its accreditation or approval by an 
accrediting entity.
    (2) If the prior accrediting entity is no longer providing 
accreditation or approval services, the agency or person may apply to 
any accrediting entity with jurisdiction over its application.

[71 FR 8131, Feb. 15, 2006. Redesignated at 79 FR 40634, July 14, 2014]



Sec. Sec.  96.21-96.22  [Reserved]



    Subpart E_Evaluation of Applicants for Accreditation and Approval



Sec.  96.23  Scope.

    The provisions in this subpart govern the evaluation of agencies and 
persons for accreditation or approval.

[79 FR 40634, July 14, 2014]



Sec.  96.24  Procedures for evaluating applicants for accreditation 
or approval.

    (a) The accrediting entity must designate at least two evaluators to 
evaluate an agency or person for accreditation or approval. The 
accrediting entity's evaluators must have expertise in intercountry 
adoption, standards evaluation, or experience with the management or 
oversight of child welfare organizations and must also meet any 
additional qualifications required by the Secretary in the agreement 
with the accrediting entity.
    (b) To evaluate the agency's or person's eligibility for 
accreditation or approval, the accrediting entity must:
    (1) Review the agency's or person's written application and 
supporting documentation;
    (2) Verify the information provided by the agency or person by 
examining underlying documentation;
    (3) Consider any complaints received by the accrediting entity 
pursuant to subpart J of this part; and
    (4) Conduct site visit(s).
    (c) The site visit(s) may include, but need not be limited to, 
interviews with birth parents, adoptive parent(s), prospective adoptive 
parent(s), and adult adoptee(s) served by the agency or person, 
interviews with the agency's or person's employees, and interviews with 
other individuals knowledgeable about the agency's or person's provision 
of adoption services. It may also include a review of on-site documents. 
The accrediting entity must, to the extent practicable, advise the 
agency or person in advance of the type of documents it wishes to review 
during the site visit. The accrediting entity must require at least one 
of the evaluators to participate in each site visit. The

[[Page 406]]

accrediting entity must determine the number of evaluators that 
participate in a site visit in light of factors such as:
    (1) The agency's or person's size;
    (2) The number of adoption cases it handles;
    (3) The number of sites the accrediting entity decides to visit; and
    (4) The number of individuals working at each site.
    (d) Before deciding whether to accredit an agency or approve a 
person, the accrediting entity may, in its discretion, advise the agency 
or person of any deficiencies that may hinder or prevent its 
accreditation or approval and defer a decision to allow the agency or 
person to correct the deficiencies.



Sec.  96.25  Access to information and documents requested by 
the accrediting entity.

    (a) The agency or person must give the accrediting entity access to 
information and documents, including adoption case files and proprietary 
information, that it requires or requests to evaluate an agency or 
person for accreditation or approval and to perform its oversight, 
enforcement, renewal, data collection, and other functions. The agency 
or person must also cooperate with the accrediting entity by making 
employees available for interviews upon request.
    (b) Accrediting entity review of adoption case files pursuant to 
paragraph (a) shall be limited to Convention adoption case files and 
cases subject to the UAA, except that, in the case of first-time 
applicants for accreditation or approval, the accrediting entity may 
review adoption case files related to other non-Convention cases for 
purposes of assessing the agency's or person's capacity to comply with 
record-keeping and data-management standards in subpart F of this part. 
The accrediting entity shall permit the agency or person to redact names 
and other information that identifies birth parent(s), prospective 
adoptive parent(s), and adoptee(s) from such non-Convention adoption 
case files not subject to the UAA prior to their inspection by the 
accrediting entity.
    (c) If an agency or person fails to provide requested documents or 
information, or to make employees available as requested, the 
accrediting entity may deny accreditation or approval or, in the case of 
an accredited agency or approved person, take appropriate adverse action 
against the agency or person solely on that basis.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40634, July 14, 2014]



Sec.  96.26  Protection of information and documents by the accrediting entity.

    (a) The accrediting entity must protect from unauthorized use and 
disclosure all documents and information about the agency or person it 
receives including, but not limited to, documents and proprietary 
information about the agency's or person's finances, management, and 
professional practices received in connection with the perf ormance of 
its accreditation or approval, oversight, enforcement, renewal, data 
collection, or other functions under its agreement with the Secretary 
and this part.
    (b) The documents and information received may not be disclosed to 
the public and may be used only for the purpose of performing the 
accrediting entity's accreditation or approval functions and related 
tasks under its agreement with Secretary and this part, or to provide 
information to the Secretary, the Complaint Registry, or an appropriate 
Federal, State, or local authority, including, but not limited to, a 
public domestic authority or local law enforcement authority unless:
    (1) Otherwise authorized by the agency or person in writing;
    (2) Otherwise required under Federal or State laws; or
    (3) Required pursuant to subpart M of this part.
    (c) Unless the names and other information that identifies the birth 
parent(s), prospective adoptive parent(s), and adoptee(s) are requested 
by the accrediting entity for an articulated reason, the agency or 
person may withhold from the accrediting entity such information and 
substitute individually assigned codes in the documents it provides. The 
accrediting entity must have appropriate safeguards to protect from 
unauthorized use and disclosure of any information in its files

[[Page 407]]

that identifies birth parent(s), prospective adoptive parent(s), and 
adoptee(s). The accrediting entity must ensure that its officers, 
employees, contractors, and evaluators who have access to information or 
documents provided by the agency or person have signed a non-disclosure 
agreement reflecting the requirements of Sec.  96.26(a) and (b). The 
accrediting entity must maintain an accurate record of the agency's or 
person's application, the supporting documentation, and the basis for 
its decision.



Sec.  96.27  Substantive criteria for evaluating applicants 
for accreditation or approval.

    (a) The accrediting entity may not grant an agency accreditation or 
a person approval, or permit an agency's or person's accreditation or 
approval to be maintained, unless the agency or person demonstrates to 
the satisfaction of the accrediting entity that it is in substantial 
compliance with the standards in subpart F of this part.
    (b) When the agency or person makes its initial application for 
accreditation or approval under the standards contained in subpart F of 
this part, the accrediting entity may measure the capacity of the agency 
or person to achieve substantial compliance with these standards where 
relevant evidence of its actual performance is not yet available. Once 
the agency or person has been accredited or approved pursuant to this 
part, the accrediting entity must, for the purposes of monitoring, 
renewal, enforcement, and reapplication after adverse action, consider 
the agency's or person's actual performance in deciding whether the 
agency or person is in substantial compliance with the standards 
contained in subpart F of this part, unless the accrediting entity 
determines that it is still necessary to measure capacity because 
adequate evidence of actual performance is not available.
    (c) The standards contained in subpart F of this part apply during 
all the stages of accreditation and approval, including, but not limited 
to, when the accrediting entity is evaluating an applicant for 
accreditation or approval, when it is determining whether to renew an 
agency's or person's accreditation or approval, when it is monitoring 
the performance of an accredited agency or approved person, and when it 
is taking adverse action against an accredited agency or approved 
person. Except as provided in Sec.  96.25 and paragraphs (e) and (f) of 
this section, the accrediting entity may only use the standards 
contained in subpart F of this part when determining whether an agency 
or person may be granted or permitted to maintain accreditation or 
approval.
    (d) The Secretary will ensure that each accrediting entity performs 
its accreditation and approval functions using only a method approved by 
the Secretary that is substantially the same as the method approved for 
use by each other accrediting entity. Each such method will include: an 
assigned value for each standard (or element of a standard); a method of 
rating an agency's or person's compliance with each applicable standard; 
and a method of evaluating whether an agency's or person's overall 
compliance with all applicable standards establishes that the agency or 
person is in substantial compliance with the standards and can be 
accredited or approved. The Secretary will ensure that the value 
assigned to each standard reflects the relative importance of that 
standard to compliance with the Convention, the IAA, and the UAA and is 
consistent with the value assigned to the standard by other accrediting 
entities. The accrediting entity must advise applicants of the value 
assigned to each standard (or elements of each standard) at the time it 
provides applicants with the application materials.
    (e) If an agency or person has previously been denied accreditation 
or approval, has withdrawn its application in anticipation of denial, or 
is reapplying for accreditation or approval after cancellation, refusal 
to renew, or temporary debarment, the accrediting entity may take the 
reasons underlying such actions into account when evaluating the agency 
or person for accreditation or approval, and may deny accreditation or 
approval on the basis of the previous action.

[[Page 408]]

    (f) If an agency or person that has an ownership or control interest 
in the applicant, as that term is defined in section 1124 of the Social 
Security Act (42 U.S.C. 1320a-3), has been debarred pursuant to Sec.  
96.85, the accrediting entity may take into account the reasons 
underlying the debarment when evaluating the agency or person for 
accreditation or approval, and may deny accreditation or approval or 
refuse to renew accreditation or approval on the basis of the debarment.
    (g) The standards contained in subpart F of this part do not 
eliminate the need for an agency or person to comply fully with the laws 
of the jurisdictions in which it operates. An agency or person must 
provide adoption services in intercountry adoption cases consistent with 
the laws of any State in which it operates and with the Convention, the 
IAA and the UAA. Persons that are approved to provide adoption services 
may only provide such services in States that do not prohibit persons 
from providing adoption services. Nothing in the application of subparts 
E and F should be construed to require a State to allow persons to 
provide adoption services if State law does not permit them to do so.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40634, July 14, 2014]



Sec.  96.28  [Reserved]



Subpart F_Standards for Intercountry Adoption Accreditation and Approval



Sec.  96.29  Scope.

    The provisions in this subpart provide the standards for accrediting 
agencies and approving persons.

[79 FR 40634, July 14, 2014]

                   Licensing and Corporate Governance



Sec.  96.30  State licensing.

    (a) The agency or person is properly licensed or otherwise 
authorized by State law to provide adoption services in at least one 
State.
    (b) The agency or person follows applicable State licensing and 
regulatory requirements in all jurisdictions in which it provides 
adoption services.
    (c) If it provides adoption services in a State in which it is not 
itself licensed or authorized to provide such services, the agency or 
person does so only:
    (1) Through agencies or persons that are licensed or authorized by 
State law to provide adoption services in that State and that are 
exempted providers or acting as supervised providers; or
    (2) Through public domestic authorities.
    (d) In the case of a person, the individual or for-profit entity is 
not prohibited by State law from providing adoption services in any 
State where it is providing adoption services, and does not provide 
adoption services in foreign countries that prohibit individuals or for-
profit entities from providing adoption services.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40634, July 14, 2014]



Sec.  96.31  Corporate structure.

    (a) The agency qualifies for nonprofit tax treatment under section 
501(c)(3) of the Internal Revenue Code of 1986, as amended, or qualifies 
for nonprofit status under the laws of any State.
    (b) The person is an individual or is a for-profit entity organized 
as a corporation, company, association, firm, partnership, society, or 
joint stock company, or other legal entity under the laws of any State.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40634, July 14, 2014]



Sec.  96.32  Internal structure and oversight.

    (a) The agency or person has (or, in the case of an individual, is) 
a chief executive officer or equivalent official who is qualified by 
education, adoption service experience, and management credentials to 
ensure effective use of resources and coordinated delivery of the 
services provided by the agency or person, and has authority and 
responsibility for management and oversight of the staff and any 
supervised providers in carrying out the adoption-related functions of 
the organization.
    (b) The agency or person has a board of directors or a similar 
governing body that establishes and approves its mission, policies, 
budget, and programs; provides leadership to secure

[[Page 409]]

the resources needed to support its programs; includes one or more 
individuals with experience in adoption, including but not limited to, 
adoptees, birth parents, prospective adoptive parent(s), and adoptive 
parents; and appoints and oversees the performance of its chief 
executive officer or equivalent official. This standard does not apply 
where the person is an individual practitioner.
    (c) The agency or person keeps permanent records of the meetings and 
deliberations of its governing body and of its major decisions affecting 
the delivery of adoption services.
    (d) The agency or person has in place procedures and standards, 
pursuant to Sec.  96.45 and Sec.  96.46, for the selection, monitoring, 
and oversight of supervised providers.
    (e) The agency or person discloses to the accrediting entity the 
following information:
    (1) Any other names by which the agency or person is or has been 
known, under either its current or any former form of organization, and 
the addresses and phone numbers used when such names were used;
    (2) The name, address, and phone number of each current director, 
manager, and employee of the agency or person, and, for any such 
individual who previously served as a director, manager, or employee of 
another provider of adoption services, the name, address, and phone 
number of such other provider; and
    (3) The name, address, and phone number of any entity it uses or 
intends to use as a supervised provider.

                      Financial and Risk Management



Sec.  96.33  Budget, audit, insurance, and risk assessment requirements.

    (a) The agency or person operates under a budget approved by its 
governing body, if applicable, for management of its funds. The budget 
discloses all remuneration (including perquisites) paid to the agency's 
or person's board of directors, managers, employees, and supervised 
providers.
    (b) The agency's or person's finances are subject to annual internal 
review and oversight and are subject to independent audits every four 
years. The agency or person submits copies of internal financial review 
reports for inspection by the accrediting entity each year.
    (c) The agency or person submits copies of each audit, as well as 
any accompanying management letter or qualified opinion letter, for 
inspection by the accrediting entity.
    (d) The agency or person meets the financial reporting requirements 
of Federal and State laws and regulations.
    (e) The agency's or person's balance sheets show that it operates on 
a sound financial basis and maintains on average sufficient cash 
reserves, assets, or other financial resources to meet its operating 
expenses for two months, taking into account its projected volume of 
cases and its size, scope, and financial commitments. The agency or 
person has a plan to transfer its intercountry adoption cases if it 
ceases to provide or is no longer permitted to provide adoption services 
in intercountry adoption cases. The plan includes provisions for an 
organized closure and reimbursement to clients of funds paid for 
services not yet rendered.
    (f) If it accepts charitable donations, the agency or person has 
safeguards in place to ensure that such donations do not influence child 
placement decisions in any way.
    (g) The agency or person assesses the risks it assumes, including by 
reviewing information on the availability of insurance coverage for 
intercountry adoption-related activities. The agency or person uses the 
assessment to meet the requirements in paragraph (h) of this section and 
as the basis for determining the type and amount of professional, 
general, directors' and officers', errors and omissions, and other 
liability insurance to carry.
    (h) The agency or person maintains professional liability insurance 
in amounts reasonably related to its exposure to risk, but in no case in 
an amount less than $1,000,000 in the aggregate.
    (i) The agency's or person's chief executive officer, chief 
financial officer, and other officers or employees with direct 
responsibility for financial

[[Page 410]]

transactions or financial management of the agency or person are bonded.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40634, July 14, 2014]



Sec.  96.34  Compensation.

    (a) The agency or person does not compensate any individual who 
provides intercountry adoption services with an incentive fee or 
contingent fee for each child located or placed for adoption.
    (b) The agency or person compensates its directors, officers, 
employees, and supervised providers who provide intercountry adoption 
services only for services actually rendered and only on a fee-for-
service, hourly wage, or salary basis rather than a contingent fee 
basis.
    (c) The agency or person does not make any payments, promise 
payment, or give other consideration to any individual directly or 
indirectly involved in provision of adoption services in a particular 
case, except for salaries or fees for services actually rendered and 
reimbursement for costs incurred. This does not prohibit an agency or 
person from providing in-kind or other donations not intended to 
influence or affect a particular adoption.
    (d) The fees, wages, or salaries paid to the directors, officers, 
employees, and supervised providers of the agency or person are not 
unreasonably high in relation to the services actually rendered, taking 
into account the country in which the adoption services are provided and 
norms for compensation within the intercountry adoption community in 
that country, to the extent that such norms are known to the accrediting 
entity; the location, number, and qualifications of staff; workload 
requirements; budget; and size of the agency or person.
    (e) Any other compensation paid to the agency's or person's 
directors or members of its governing body is not unreasonably high in 
relation to the services rendered, taking into account the same factors 
listed in paragraph (d) of this section and its for-profit or nonprofit 
status.
    (f) The agency or person identifies all vendors to whom clients are 
referred for non-adoption services and discloses to the accrediting 
entity any corporate or financial arrangements and any family 
relationships with such vendors.

                 Ethical Practices and Responsibilities



Sec.  96.35  Suitability of agencies and persons to provide adoption services 
consistent with the Convention.

    (a) The agency or person provides adoption services ethically and in 
accordance with the Convention's principles of:
    (1) Ensuring that intercountry adoptions take place in the best 
interests of children; and
    (2) Preventing the abduction, exploitation, sale, or trafficking of 
children.
    (b) In order to permit the accrediting entity to evaluate the 
suitability of an agency or person for accreditation or approval, the 
agency or person discloses to the accrediting entity the following 
information related to the agency or person, under its current or any 
former name:
    (1) Any instances in which the agency or person has lost the right 
to provide adoption services in any State or country, including the 
basis for such action(s);
    (2) Any instances in which the agency or person was debarred or 
otherwise denied the authority to provide adoption services in any State 
or country, including the basis and disposition of such action(s);
    (3) Any licensing suspensions for cause or other negative sanctions 
by oversight bodies against the agency or person, including the basis 
and disposition of such action(s);
    (4) For the prior ten-year period, any disciplinary action(s) 
against the agency or person by a licensing or accrediting body, 
including the basis and disposition of such action(s);
    (5) For the prior ten-year period, any written complaint(s) related 
to the provision of adoption-related services, including the basis and 
disposition of such complaints, against the agency or person filed with 
any State or Federal or foreign regulatory body and of which the agency 
or person was notified;
    (6) For the prior ten-year period, any known past or pending 
investigation(s) (by Federal authorities or by public domestic 
authorities), criminal charge(s),

[[Page 411]]

child abuse charge(s), or lawsuit(s) against the agency or person, 
related to the provision of child welfare or adoption-related services, 
and the basis and disposition of such action(s).
    (7) Any instances where the agency or person has been found guilty 
of any crime under Federal, State, or foreign law or has been found to 
have committed any civil or administrative violation involving financial 
irregularities under Federal, State, or foreign law;
    (8) For the prior five-year period, any instances where the agency 
or person has filed for bankruptcy; and
    (9) Descriptions of any businesses or activities that are 
inconsistent with the principles of the Convention and that have been or 
are currently carried out by the agency or person, affiliate 
organizations, or by any organization in which the agency or person has 
an ownership or controlling interest.
    (c) In order to permit the accrediting entity to evaluate the 
suitability of an agency or person for accreditation or approval, the 
agency or person (for its current or any former names) discloses to the 
accrediting entity the following information about its individual 
directors, officers, and employees:
    (1) For the prior ten-year period, any conduct by any such 
individual related to the provision of adoption-related services that 
was subject to external disciplinary proceeding(s);
    (2) Any convictions or current investigations of any such individual 
who is in a senior management position for acts involving financial 
irregularities;
    (3) The results of a State criminal background check and a child 
abuse clearance for any such individual in the United States in a senior 
management position or who works directly with parent(s) and/or children 
(unless such checks have been included in the State licensing process); 
and
    (4) A completed FBI Form FD-258 for each such individual in the 
United States in a senior management position or who works directly with 
parent(s) and/or children, which the agency or person must keep on file 
in case future allegations warrant submission of the form for a Federal 
criminal background check of any such individual.
    (5) Descriptions of any businesses or activities that are 
inconsistent with the principles of the Convention and that are known to 
have been or are currently carried out by current individual directors, 
officers, or employees of the agency or person.
    (d) In order to permit the accrediting entity to evaluate the 
suitability of a person who is an individual practitioner for approval, 
the individual:
    (1) Provides the results of a State criminal background check and a 
child abuse clearance to the accrediting entity;
    (2) Completes and retains a FBI Form FD-258 on file in case future 
allegations warrant submission of the form for a Federal criminal 
background check;
    (3) If a lawyer, for every jurisdiction in which he or she has ever 
been admitted to the Bar, provides a certificate of good standing or an 
explanation of why he or she is not in good standing, accompanied by any 
relevant documentation and immediately reports to the accrediting entity 
any disciplinary action considered by a State bar association, 
regardless of whether the action relates to intercountry adoption; and
    (4) If a social worker, for every jurisdiction in which he or she 
has been licensed, provides a certificate of good standing or an 
explanation of why he or she is not in good standing, accompanied by any 
relevant documentation.
    (e) In order to permit the accrediting entity to monitor the 
suitability of an agency or person, the agency or person must disclose 
any changes in the information required by Sec.  96.35 within thirty 
business days of learning of the change.



Sec.  96.36  Prohibition on child buying.

    (a) The agency or person prohibits its employees and agents from 
giving money or other consideration, directly or indirectly, to a 
child's parent(s), other individual(s), or an entity as payment for the 
child or as an inducement to release the child. If permitted or required 
by the child's country of origin, an agency or person may remit 
reasonable payments for activities related to the adoption proceedings, 
pre-birth and birth medical costs, the care of the child, the care of 
the birth mother

[[Page 412]]

while pregnant and immediately following birth of the child, or the 
provision of child welfare and child protection services generally. 
Permitted or required contributions shall not be remitted as payment for 
the child or as an inducement to release the child.
    (b) The agency or person has written policies and procedures in 
place reflecting the prohibitions in paragraph (a) of this section and 
reinforces them in its employee training programs.

         Professional Qualifications and Training for Employees



Sec.  96.37  Education and experience requirements for 
social service personnel.

    (a) The agency or person only uses employees with appropriate 
qualifications and credentials to perform, in connection with an 
intercountry adoption, adoption-related social service functions that 
require the application of clinical skills and judgment (home studies, 
child background studies, counseling, parent preparation, post-
placement, and other similar services).
    (b) The agency's or person's employees meet any State licensing or 
regulatory requirements for the services they are providing.
    (c) The agency's or person's executive director, the supervisor 
overseeing a case, or the social service employee providing adoption-
related social services that require the application of clinical skills 
and judgment (home studies, child background studies, counseling, parent 
preparation, post-placement, and other similar services) has experience 
in the professional delivery of intercountry adoption services.
    (d) Supervisors. The agency's or person's social work supervisors 
have prior experience in family and children's services, adoption, or 
intercountry adoption and either:
    (1) A master's degree from an accredited program of social work;
    (2) A master's degree (or doctorate) in a related human service 
field, including, but not limited to, psychology, psychiatry, 
psychiatric nursing, counseling, rehabilitation counseling, or pastoral 
counseling; or
    (3) In the case of a social work supervisor who is or was an 
incumbent at the time the Convention enters into force for the United 
States, the supervisor has significant skills and experience in 
intercountry adoption and has regular access for consultation purposes 
to an individual with the qualifications listed in paragraph (d)(1) or 
paragraph (d)(2) of this section.
    (e) Non-supervisory employees. The agency's or person's non-
supervisory employees providing adoption-related social services that 
require the application of clinical skills and judgment other than home 
studies or child background studies have either:
    (1) A master's degree from an accredited program of social work or 
in another human service field; or
    (2) A bachelor's degree from an accredited program of social work; 
or a combination of a bachelor's degree in any field and prior 
experience in family and children's services, adoption, or intercountry 
adoption; and
    (3) Are supervised by an employee of the agency or person who meets 
the requirements for supervisors in paragraph (d) of this section.
    (f) Home studies. The agency's or person's employees who conduct 
home studies:
    (1) Are authorized or licensed to complete a home study under the 
laws of the States in which they practice;
    (2) Meet the requirements for home study preparers in 8 CFR 204.301; 
and
    (3) Are supervised by an employee of the agency or person who meets 
the requirements in paragraph (d) of this section.
    (g) Child background studies. The agency's or person's employees who 
prepare child background studies:
    (1) Are authorized or licensed to complete a child background study 
under the laws of the States in which they practice; and
    (2) Are supervised by an employee of the agency or person who meets 
the requirements in paragraph (d) of this section.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40634, July 14, 2014]



Sec.  96.38  Training requirements for social service personnel.

    (a) The agency or person provides newly hired employees who have 
adoption-related responsibilities involving

[[Page 413]]

the application of clinical skills and judgment (home studies, child 
background studies, counseling services, parent preparation, post-
placement and other similar services) with a comprehensive orientation 
to intercountry adoption that includes training on:
    (1) The requirements of the Convention, the IAA, the UAA, the 
regulations implementing the IAA or UAA, and other applicable Federal 
regulations;
    (2) The INA regulations applicable to the immigration of children 
described in INA 101(b)(1)(F) and 101(b)(1)(G);
    (3) The adoption laws of any foreign country where the agency or 
person provides adoption services;
    (4) Relevant State laws;
    (5) Ethical considerations in intercountry adoption and prohibitions 
on child-buying;
    (6) The agency's or person's goals, ethical and professional 
guidelines, organizational lines of accountability, policies, and 
procedures; and
    (7) The cultural diversity of the population(s) served by the agency 
or person.
    (b) In addition to the orientation training required under paragraph 
(a) of this section, the agency or person provides initial training to 
newly hired or current employees whose responsibilities include 
providing adoption-related social services that involve the application 
of clinical skills and judgment (home studies, child background studies, 
counseling services, parent preparation, post-placement and other 
similar services) that addresses:
    (1) The factors in the countries of origin that lead to children 
needing adoptive families;
    (2) Feelings of separation, grief, and loss experienced by the child 
with respect to the family of origin;
    (3) Attachment and post-traumatic stress disorders;
    (4) Psychological issues facing children who have experienced abuse 
or neglect and/or whose parents' rights have been terminated because of 
abuse or neglect;
    (5) The impact of institutionalization on child development;
    (6) Outcomes for children placed for adoption internationally and 
the benefits of permanent family placements over other forms of 
government care;
    (7) The most frequent medical and psychological problems experienced 
by children from the countries of origin served by the agency or person;
    (8) The process of developing emotional ties to an adoptive family;
    (9) Acculturation and assimilation issues, including those arising 
from factors such as race, ethnicity, religion, and culture and the 
impact of having been adopted internationally; and
    (10) Child, adolescent, and adult development as affected by 
adoption.
    (c) The agency or person ensures that employees who provide 
adoption-related social services that involve the application of 
clinical skills and judgment (home studies, child background studies, 
counseling services, parent preparation, post-placement and other 
similar services) also receive, in addition to the orientation and 
initial training described in paragraphs (a) and (b) of this section, no 
less than thirty hours of training every two years, or more if required 
by State law, on current and emerging adoption practice issues through 
participation in seminars, conferences, documented distance learning 
courses, and other similar programs. Continuing education hours required 
under State law may count toward the thirty hours of training as long as 
the training is related to current and emerging adoption practice 
issues.
    (d) The agency or person exempts newly hired and current employees 
from elements of the orientation and initial training required in 
paragraphs (a) and (b) of this section only where the employee has 
demonstrated experience with intercountry adoption and knowledge of the 
Convention, the IAA, and the UAA.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40634, July 14, 2014]

Information Disclosure, Fee Practices, and Quality Control Policies and 
                                Practices



Sec.  96.39  Information disclosure and quality control practices.

    (a) The agency or person fully discloses in writing to the general 
public upon request and to prospective client(s) upon initial contact:

[[Page 414]]

    (1) Its adoption service policies and practices, including general 
eligibility criteria and fees;
    (2) The supervised providers with whom the prospective client(s) can 
expect to work in the United States and in the child's country of origin 
and the usual costs associated with their services; and
    (3) A sample written adoption services contract substantially like 
the one that the prospective client(s) will be expected to sign should 
they proceed.
    (b) The agency or person discloses to client(s) and prospective 
client(s) that the following information is available upon request and 
makes such information available when requested:
    (1) The number of its adoption placements per year for the prior 
three calendar years, and the number and percentage of those placements 
that remain intact, are disrupted, or have been dissolved as of the time 
the information is provided;
    (2) The number of parents who apply to adopt on a yearly basis, 
based on data for the prior three calendar years; and
    (3) The number of children eligible for adoption and awaiting an 
adoptive placement referral via the agency or person.
    (c) The agency or person does not give preferential treatment to its 
board members, contributors, volunteers, employees, agents, consultants, 
or independent contractors with respect to the placement of children for 
adoption and has a written policy to this effect.
    (d) The agency or person requires a client to sign a waiver of 
liability as part of the adoption service contract only where that 
waiver complies with applicable State law. Any waiver required is 
limited and specific, based on risks that have been discussed and 
explained to the client in the adoption services contract.
    (e) The agency or person cooperates with reviews, inspections, and 
audits by the accrediting entity or the Secretary.
    (f) The agency or person uses the internet in the placement of 
individual children eligible for adoption only where:
    (1) Such use is not prohibited by applicable State or Federal law or 
by the laws of the child's country of origin;
    (2) Such use is subject to controls to avoid misuse and links to any 
sites that reflect practices that involve the sale, abduction, 
exploitation, or trafficking of children;
    (3) Such use, if it includes photographs, is designed to identify 
children either who are currently waiting for adoption or who have 
already been adopted or placed for adoption (and who are clearly so 
identified); and
    (4) Such use does not serve as a substitute for the direct provision 
of adoption services, including services to the child, the prospective 
adoptive parent(s), and/or the birth parent(s).



Sec.  96.40  Fee policies and procedures.

    (a) The agency or person provides to all applicants, prior to 
application, a written schedule of expected total fees and estimated 
expenses and an explanation of the conditions under which fees or 
expenses may be charged, waived, reduced, or refunded and of when and 
how the fees and expenses must be paid.
    (b) Before providing any adoption service to prospective adoptive 
parent(s), the agency or person itemizes and discloses in writing the 
following information for each separate category of fees and estimated 
expenses that the prospective adoptive parent(s) will be charged in 
connection with an intercountry adoption:
    (1) Home study. The expected total fees and estimated expenses for 
home study preparation and approval, whether the home study is to be 
prepared directly by the agency or person itself, or prepared by a 
supervised provider, exempted provider, or approved person and approved 
as required under Sec.  96.47;
    (2) Adoption expenses in the United States. The expected total fees 
and estimated expenses for all adoption services other than the home 
study that will be provided in the United States. This category 
includes, but is not limited to, personnel costs, administrative 
overhead, operational costs, training and education, communications and 
publications costs, and any other costs related to providing adoption 
services in the United States;

[[Page 415]]

    (3) Foreign country program expenses. The expected total fees and 
estimated expenses for all adoption services that will be provided in 
the child's country of origin. This category includes, but is not 
limited to, costs for personnel, administrative overhead, training, 
education, legal services, and communications, and any other costs 
related to providing adoption services in the child's Convention 
country;
    (4) Care of the child. The expected total fees and estimated 
expenses charged to prospective adoptive parent(s) for the care of the 
child in the country of origin prior to adoption, including, but not 
limited to, costs for food, clothing, shelter and medical care; foster 
care services; orphanage care; and any other services provided directly 
to the child;
    (5) Translation and document expenses. The expected total fees and 
estimated expenses for obtaining any necessary documents and for any 
translation of documents related to the adoption, along with information 
on whether the prospective adoptive parent(s) will be expected to pay 
such costs directly or to third parties, either in the United States or 
in the child's country of origin, or through the agency or person. This 
category includes, but is not limited to, costs for obtaining, 
translating, or copying records or documents required to complete the 
adoption, costs for the child's court documents, passport, adoption 
certificate and other documents related to the adoption, and costs for 
notarizations and certifications;
    (6) Contributions. Any fixed contribution amount or percentage that 
the prospective adoptive parent(s) will be expected or required to make 
to child protection or child welfare service programs in the child's 
country of origin country or in the United States, along with an 
explanation of the intended use of the contribution and the manner in 
which the transaction will be recorded and accounted for; and
    (7) Post-placement and post-adoption reports. The expected total 
fees and estimated expenses for any post-placement or post-adoption 
reports that the agency or person or parent(s) must prepare in light of 
any requirements of the expected country of origin.
    (c) If the following fees and estimated expenses were not disclosed 
as part of the categories identified in paragraph (b) of this section, 
the agency or person itemizes and discloses in writing any:
    (1) Third party fees. The expected total fees and estimated expenses 
for services that the prospective adoptive parent(s) will be responsible 
to pay directly to a third party. Such third party fees include, but are 
not limited to, fees to competent authorities for services rendered or 
Central Authority processing fees; and
    (2) Travel and accommodation expenses. The expected total fees and 
estimated expenses for any travel, transportation, and accommodation 
services arranged by the agency or person for the prospective adoptive 
parent(s).
    (d) The agency or person also specifies in its adoption services 
contract when and how funds advanced to cover fees or expenses will be 
refunded if adoption services are not provided.
    (e) When the agency or person uses part of its fees to provide 
special services, such as cultural programs for adoptee(s), scholarships 
or other services, it discloses this policy to the prospective adoptive 
parent(s) in advance of providing any adoption services and gives the 
prospective adoptive parent(s) a general description of the programs 
supported by such funds.
    (f) The agency or person has mechanisms in place for transferring 
funds to foreign countries when the financial institutions of the 
foreign country so permit and for obtaining written receipts for such 
transfers, so that direct cash transactions by the prospective adoptive 
parent(s) to pay for adoption services provided in the Convention 
country are minimized or unnecessary.
    (g) The agency or person does not customarily charge additional fees 
and expenses beyond those disclosed in the adoption services contract 
and has a written policy to this effect. In the event that unforeseen 
additional fees and expenses are incurred in the foreign country, the 
agency or person charges such additional fees and expenses only under 
the following conditions:

[[Page 416]]

    (1) It discloses the fees and expenses in writing to the prospective 
adoptive parent(s);
    (2) It obtains the specific consent of the prospective adoptive 
parent(s) prior to expending any funds in excess of $1000 for which the 
agency or person will hold the prospective adoptive parent(s) 
responsible or gives the prospective adoptive parent(s) the opportunity 
to waive the notice and consent requirement in advance. If the 
prospective adoptive parent(s) has the opportunity to waive the notice 
and consent requirement in advance, this policy is reflected in the 
written policies and procedures of the agency or person; and
    (3) It provides written receipts to the prospective adoptive 
parent(s) for fees and expenses paid directly by the agency or person in 
the foreign country and retains copies of such receipts.
    (h) The agency or person returns any funds to which the prospective 
adoptive parent(s) may be entitled within sixty days of the completion 
of the delivery of services.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40635, July 14, 2014]

       Responding to Complaints and Records and Reports Management



Sec.  96.41  Procedures for responding to complaints and improving 
service delivery.

    (a) The agency or person has written complaint policies and 
procedures that incorporate the standards in paragraphs (b) through (h) 
of this section and provides a copy of such policies and procedures, 
including contact information for the Complaint Registry, to client(s) 
at the time the adoption services contract is signed.
    (b) The agency or person permits any birth parent, prospective 
adoptive parent or adoptive parent, or adoptee to lodge directly with 
the agency or person signed and dated complaints about any of the 
services or activities of the agency or person (including its use of 
supervised providers) that he or she believes raise an issue of 
compliance with the Convention, the IAA, the UAA, or the regulations 
implementing the IAA or UAA, and advises such individuals of the 
additional procedures available to them if they are dissatisfied with 
the agency's or person's response to their complaint.
    (c) The agency or person responds in writing to complaints received 
pursuant to paragraph (b) of this section within thirty days of receipt, 
and provides expedited review of such complaints that are time-sensitive 
or that involve allegations of fraud.
    (d) The agency or person maintains a written record of each 
complaint received pursuant to paragraph (b) of this section and the 
steps taken to investigate and respond to it and makes this record 
available to the accrediting entity or the Secretary upon request.
    (e) The agency or person does not take any action to discourage a 
client or prospective client from, or retaliate against a client or 
prospective client for: making a complaint; expressing a grievance; 
providing information in writing or interviews to an accrediting entity 
on the agency's or person's performance; or questioning the conduct of 
or expressing an opinion about the performance of an agency or person.
    (f) The agency or person provides to the accrediting entity and the 
Secretary, on a semi-annual basis, a summary of all complaints received 
pursuant to paragraph (b) of this section during the preceding six 
months (including the number of complaints received and how each 
complaint was resolved) and an assessment of any discernible patterns in 
complaints received against the agency or person pursuant to paragraph 
(b) of this section, along with information about what systemic changes, 
if any, were made or are planned by the agency or person in response to 
such patterns.
    (g) The agency or person provides any information about complaints 
received pursuant to paragraph (b) of this section as may be requested 
by the accrediting entity or the Secretary.
    (h) The agency or person has a quality improvement program 
appropriate to its size and circumstances through which it makes 
systematic efforts to improve its adoption services as needed. The 
agency or person uses quality improvement methods such as reviewing 
complaint data, using client satisfaction surveys, or comparing the 
agency's or person's practices and performance against the data 
contained in

[[Page 417]]

the Secretary's annual reports to Congress on intercountry adoptions.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40635, July 14, 2014]



Sec.  96.42  Retention, preservation, and disclosure of adoption records.

    (a) The agency or person retains or archives adoption records in a 
safe, secure, and retrievable manner for the period of time required by 
applicable State law.
    (b) The agency or person makes readily available to the adoptee and 
the adoptive parent(s) upon request all non-identifying information in 
its custody about the adoptee's health history or background.
    (c) The agency or person ensures that personal data gathered or 
transmitted in connection with an adoption is used only for the purposes 
for which the information was gathered and safeguards sensitive 
individual information.
    (d) The agency or person has a plan that is consistent with the 
provisions of this section, the plan required under Sec.  96.33, and 
applicable State law for transferring custody of adoption records that 
are subject to retention or archival requirements to an appropriate 
custodian, and ensuring the accessibility of those adoption records, in 
the event that the agency or person ceases to provide or is no longer 
permitted to provide adoption services in intercountry adoption cases.
    (e) The agency or person notifies the accrediting entity and the 
Secretary in writing within thirty days of the time it ceases to provide 
or is no longer permitted to provide adoption services and provides 
information about the transfer of its adoption records.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40635, July 14, 2014]



Sec.  96.43  Case tracking, data management, and reporting.

    (a) When acting as the primary provider, the agency or person 
maintains all the data required in this section in a format approved by 
the accrediting entity and provides it to the accrediting entity on an 
annual basis.
    (b) When acting as the primary provider, the agency or person 
routinely generates and maintains reports as follows:
    (1) For cases involving children immigrating to the United States, 
information and reports on the total number of Convention and non-
Convention adoptions undertaken by the agency or person each year and, 
for each case:
    (i) The foreign country from which the child emigrated;
    (ii) The State to which the child immigrated;
    (iii) The State or foreign country in which the adoption was 
finalized;
    (iv) The age of the child; and
    (v) The date of the child's placement for adoption.
    (2) For cases involving children emigrating from the United States, 
information and reports on the total number of Convention and non-
Convention adoptions undertaken by the agency or person each year and, 
for each case:
    (i) The State from which the child emigrated;
    (ii) The foreign country to which the child immigrated;
    (iii) The State or foreign country in which the adoption was 
finalized;
    (iv) The age of the child; and
    (v) The date of the child's placement for adoption.
    (3) For each disrupted placement involving an intercountry adoption, 
information and reports about the disruption, including information on:
    (i) The foreign country from which the child emigrated;
    (ii) The State to which the child immigrated;
    (iii) The age of the child;
    (iv) The date of the child's placement for adoption;
    (v) The reason(s) for and resolution(s) of the disruption of the 
placement for adoption, including information on the child's re-
placement for adoption and final legal adoption;
    (vi) The names of the agencies or persons that handled the placement 
for adoption; and
    (vii) The plans for the child.
    (4) Wherever possible, for each dissolution of an intercountry 
adoption, information and reports on the dissolution, including 
information on:
    (i) The foreign country from which the child emigrated;
    (ii) The State to which the child immigrated;
    (iii) The age of the child;

[[Page 418]]

    (iv) The date of the child's placement for adoption;
    (v) The reason(s) for and resolution(s) of the dissolution of the 
adoption, to the extent known by the agency or person;
    (vi) The names of the agencies or persons that handled the placement 
for adoption; and
    (vii) The plans for the child.
    (5) Information on the shortest, longest, and average length of time 
it takes to complete an intercountry adoption, set forth by the child's 
country of origin, calculated from the time the child is matched with 
the prospective adoptive parent(s) until the time the adoption is 
finalized by a court, excluding any period for appeal;
    (6) Information on the range of adoption fees, including the lowest, 
highest, average, and the median of such fees, set forth by the child's 
country of origin, charged by the agency or person for intercountry 
adoptions involving children immigrating to the United States in 
connection with their adoption.
    (c) If the agency or person provides adoption services in cases not 
subject to the Convention that involve a child emigrating from the 
United States for the purpose of adoption or after an adoption has been 
finalized, it provides such information as required by the Secretary 
directly to the Secretary and demonstrates to the accrediting entity 
that it has provided this information.
    (d) The agency or person provides any of the information described 
in paragraphs (a) through (c) of this section to the accrediting entity 
or the Secretary within thirty days of request.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40635, July 14, 2014]

                      Service Planning and Delivery



Sec.  96.44  Acting as primary provider.

    (a) When required by Sec.  96.14(a), the agency or person acts as 
primary provider and adheres to the provisions in Sec.  96.14(b) through 
(e). When acting as the primary provider, the agency or person develops 
and implements a service plan for providing all adoption services and 
provides all such services, either directly or through arrangements with 
supervised providers, exempted providers, public domestic authorities, 
competent authorities, Central Authorities, public foreign authorities, 
or, to the extent permitted by Sec.  96.14(c), other foreign providers 
(agencies, persons, or other non-governmental entities).
    (b) The agency or person has an organizational structure, financial 
and personnel resources, and policies and procedures in place that 
demonstrate that the agency or person is capable of acting as a primary 
provider in any intercountry adoption case and, when acting as the 
primary provider, provides appropriate supervision to supervised 
providers and verifies the work of other foreign providers in accordance 
with Sec. Sec.  96.45 and 96.46.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40635, July 14, 2014]



Sec.  96.45  Using supervised providers in the United States.

    (a) The agency or person, when acting as the primary provider and 
using supervised providers in the United States to provide adoption 
services, ensures that each such supervised provider:
    (1) Is in compliance with applicable State licensing and regulatory 
requirements in all jurisdictions in which it provides adoption 
services;
    (2) Does not engage in practices inconsistent with the Convention's 
principles of furthering the best interests of the child and preventing 
the sale, abduction, exploitation, or trafficking of children; and
    (3) Before entering into an agreement with the primary provider for 
the provision of adoption services, discloses to the primary provider 
the suitability information listed in Sec.  96.35.
    (b) The agency or person, when acting as the primary provider and 
using supervised providers in the United States to provide adoption 
services, ensures that each such supervised provider operates under a 
written agreement with the primary provider that:
    (1) Identifies clearly the adoption service(s) to be provided by the 
supervised provider and requires that the service(s) be provided in 
accordance with the applicable service standard(s)

[[Page 419]]

for accreditation and approval (for example: home study (Sec.  96.47); 
parent training (Sec.  96.48); child background studies and consent 
(Sec.  96.53));
    (2) Requires the supervised provider to comply with the following 
standards regardless of the type of adoption services it is providing: 
Sec.  96.36 (prohibition on child-buying), Sec.  96.34 (compensation), 
Sec.  96.38 (employee training), Sec.  96.39(d) (waivers of liability), 
and Sec.  96.41(b) through (e) (complaints);
    (3) Identifies specifically the lines of authority between the 
primary provider and the supervised provider, the employee of the 
primary provider who will be responsible for supervision, and the 
employee of the supervised provider who will be responsible for ensuring 
compliance with the written agreement;
    (4) States clearly the compensation arrangement for the services to 
be provided and the fees and expenses to be charged by the supervised 
provider;
    (5) Specifies whether the supervised provider's fees and expenses 
will be billed to and paid by the client(s) directly or billed to the 
client through the primary provider;
    (6) Provides that, if billing the client(s) directly for its 
service, the supervised provider will give the client(s) an itemized 
bill of all fees and expenses to be paid, with a written explanation of 
how and when such fees and expenses will be refunded if the service is 
not completed, and will return any funds collected to which the 
client(s) may be entitled within sixty days of the completion of the 
delivery of services;
    (7) Requires the supervised provider to meet the same personnel 
qualifications as accredited agencies and approved persons, as provided 
for in Sec.  96.37, except that, for purposes of Sec. Sec.  96.37(e)(3), 
(f)(3), and (g)(2), the work of the employee must be supervised by an 
employee of an accredited agency or approved person;
    (8) Requires the supervised provider to limit the use of and 
safeguard personal data gathered or transmitted in connection with an 
adoption, as provided for in Sec.  96.42;
    (9) Requires the supervised provider to respond within a reasonable 
period of time to any request for information from the primary provider, 
the Secretary, or the accrediting entity that issued the primary 
provider's accreditation or approval;
    (10) Requires the supervised provider to provide the primary 
provider on a timely basis any data that is necessary to comply with the 
primary provider's reporting requirements;
    (11) Requires the supervised provider to disclose promptly to the 
primary provider any changes in the suitability information required by 
Sec.  96.35;
    (12) Permits suspension or termination of the agreement on 
reasonable notice if the primary provider has grounds to believe that 
the supervised provider is not in compliance with the agreement or the 
requirements of this section.



Sec.  96.46  Using providers in foreign countries.

    (a) The agency or person, when acting as the primary provider and 
using foreign supervised providers to provide adoption services in 
foreign countries, ensures that each such foreign supervised provider:
    (1) Is in compliance with the laws of the foreign country in which 
it operates;
    (2) Does not engage in practices inconsistent with the Convention's 
principles of furthering the best interests of the child and preventing 
the sale, abduction, exploitation, or trafficking of children;
    (3) Before entering into an agreement with the primary provider for 
the provision of adoption services, discloses to the primary provider 
the suitability information listed in Sec.  96.35, taking into account 
the authorities in the foreign country that are analogous to the 
authorities identified in that section;
    (4) Does not have a pattern of licensing suspensions or other 
sanctions and has not lost the right to provide adoption services in any 
jurisdiction for reasons germane to the Convention or the Convention's 
principles of ensuring that intercountry adoptions take place in the 
best interests of children and preventing the abduction, exploitation, 
sale, or trafficking of children; and
    (5) Is accredited in the foreign country in which it operates, if 
such accreditation is required by the laws of that

[[Page 420]]

Convention country to perform the adoption services it is providing.
    (b) The agency or person, when acting as the primary provider and 
using foreign supervised providers to provide adoption services in 
foreign countries, ensures that each such foreign supervised provider 
operates under a written agreement with the primary provider that:
    (1) Identifies clearly the adoption service(s) to be provided by the 
foreign supervised provider;
    (2) Requires the foreign supervised provider, if responsible for 
obtaining medical or social information on the child, to comply with the 
standards in Sec.  96.49(d) through (j);
    (3) Requires the foreign supervised provider to adhere to the 
standard in Sec.  96.36(a) prohibiting child buying; and has written 
policies and procedures in place reflecting the prohibitions in Sec.  
96.36(a) and reinforces them in training programs for its employees and 
agents;
    (4) Requires the foreign supervised provider to compensate its 
directors, officers, and employees who provide intercountry adoption 
services on a fee-for-service, hourly wage, or salary basis, rather than 
based on whether a child is placed for adoption, located for an adoptive 
placement, or on a similar contingent fee basis;
    (5) Identifies specifically the lines of authority between the 
primary provider and the foreign supervised provider, the employee of 
the primary provider who will be responsible for supervision, and the 
employee of the supervised provider who will be responsible for ensuring 
compliance with the written agreement;
    (6) States clearly the compensation arrangement for the services to 
be provided and the fees and expenses to be charged by the foreign 
supervised provider;
    (7) Specifies whether the foreign supervised provider's fees and 
expenses will be billed to and paid by the client(s) directly or billed 
to the client through the primary provider;
    (8) Provides that, if billing the client(s) directly for its 
service, the foreign supervised provider will give the client(s) an 
itemized bill of all fees and expenses to be paid, with a written 
explanation of how and when such fees and expenses will be refunded if 
the service is not completed, and will return any funds collected to 
which the client(s) may be entitled within sixty days of the completion 
of the delivery of services;
    (9) Requires the foreign supervised provider to respond within a 
reasonable period of time to any request for information from the 
primary provider, the Secretary, or the accrediting entity that issued 
the primary provider's accreditation or approval;
    (10) Requires the foreign supervised provider to provide the primary 
provider on a timely basis any data that is necessary to comply with the 
primary provider's reporting requirements;
    (11) Requires the foreign supervised provider to disclose promptly 
to the primary provider any changes in the suitability information 
required by Sec.  96.35; and
    (12) Permits suspension or termination of the agreement on 
reasonable notice if the primary provider has grounds to believe that 
the foreign supervised provider is not in compliance with the agreement 
or the requirements of this section.
    (c) The agency or person, when acting as the primary provider and, 
in accordance with Sec.  96.14, using foreign providers that are not 
under its supervision, verifies, through review of the relevant 
documentation and other appropriate steps, that:
    (1) Any necessary consent to termination of parental rights or to 
adoption obtained by the foreign provider was obtained in accordance 
with applicable foreign law and Article 4 of the Convention;
    (2) Any background study and report on a child in a case involving 
immigration to the United States (an incoming case) performed by the 
foreign provider was performed in accordance with applicable foreign law 
and Article 16 of the Convention.
    (3) Any home study and report on prospective adoptive parent(s) in a 
case involving emigration from the United States (an outgoing case) 
performed by the foreign provider was performed in

[[Page 421]]

accordance with applicable foreign law and Article 15 of the Convention.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40635, July 14, 2014]

Standards for Cases in Which a Child Is Immigrating to the United States 
                            (Incoming Cases)



Sec.  96.47  Preparation of home studies in incoming cases.

    (a) The agency or person ensures that a home study on the 
prospective adoptive parent(s) (which for purposes of this section 
includes the initial report and any supplemental statement submitted to 
DHS) is completed that includes the following:
    (1) Information about the prospective adoptive parent(s)' identity, 
eligibility and suitability to adopt, background, family and medical 
history, social environment, reasons for adoption, ability to undertake 
an intercountry adoption, and the characteristics of the children for 
whom the prospective adoptive parent(s) would be qualified to care 
(specifying in particular whether they are willing and able to care for 
a child with special needs);
    (2) A determination whether the prospective adoptive parent(s) are 
eligible and suited to adopt;
    (3) A statement describing the counseling and training provided to 
the prospective adoptive parent(s);
    (4) The results of a criminal background check on the prospective 
adoptive parent(s) and any other individual for whom a check is required 
by 8 CFR 204.311;
    (5) A full and complete statement of all facts relevant to the 
eligibility and suitability of the prospective adoptive parent(s) to 
adopt a child under any specific requirements identified to the 
Secretary by the Central Authority of the child's country of origin; and
    (6) A statement in each copy of the home study that it is a true and 
accurate copy of the home study that was provided to the prospective 
adoptive parent(s) or DHS.
    (b) The agency or person ensures that the home study is performed in 
accordance with 8 CFR 204.311, and any applicable State law.
    (c) Where the home study is not performed in the first instance by 
an accredited agency, the agency or person ensures that the home study 
is reviewed and approved in writing by an accredited agency. The written 
approval must include a determination that the home study:
    (1) Includes all of the information required by paragraph (a) of 
this section and is performed in accordance with 8 CFR 204.311, and 
applicable State law; and
    (2) Was performed by an individual who meets the requirements in 
Sec.  96.37(f), or, if the individual is an exempted provider, ensures 
that the individual meets the requirements for home study providers 
established by 8 CFR 204.301.
    (d) The agency or person takes all appropriate measures to ensure 
the timely transmission of the same home study that was provided to the 
prospective adoptive parent(s) or to DHS to the Central Authority of the 
child's country of origin (or to an alternative authority designated by 
that Central Authority).

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40635, July 14, 2014]



Sec.  96.48  Preparation and training of prospective adoptive parent(s) 
in incoming cases.

    (a) The agency or person provides prospective adoptive parent(s) 
with at least ten hours (independent of the home study) of preparation 
and training, as described in paragraphs (b) and (c) of this section, 
designed to promote a successful intercountry adoption. The agency or 
person provides such training before the prospective adoptive parent(s) 
travel to adopt the child or the child is placed with the prospective 
adoptive parent(s) for adoption.
    (b) The training provided by the agency or person addresses the 
following topics:
    (1) The intercountry adoption process, the general characteristics 
and needs of children awaiting adoption, and the in-country conditions 
that affect children in the foreign country from which the prospective 
adoptive parent(s) plan to adopt;
    (2) The effects on children of malnutrition, relevant environmental 
toxins, maternal substance abuse, and of

[[Page 422]]

any other known genetic, health, emotional, and developmental risk 
factors associated with children from the expected country of origin;
    (3) Information about the impact on a child of leaving familiar ties 
and surroundings, as appropriate to the expected age of the child;
    (4) Data on institutionalized children and the impact of 
institutionalization on children, including the effect on children of 
the length of time spent in an institution and of the type of care 
provided in the expected country of origin;
    (5) Information on attachment disorders and other emotional problems 
that institutionalized or traumatized children and children with a 
history of multiple caregivers may experience, before and after their 
adoption;
    (6) Information on the laws and adoption processes of the expected 
country of origin, including foreseeable delays and impediments to 
finalization of an adoption;
    (7) Information on the long-term implications for a family that has 
become multicultural through intercountry adoption; and
    (8) An explanation of any reporting requirements associated with 
intercountry adoptions, including any post-placement or post-adoption 
reports required by the expected country of origin.
    (c) The agency or person also provides the prospective adoptive 
parent(s) with training that allows them to be as fully prepared as 
possible for the adoption of a particular child. This includes 
counseling on:
    (1) The child's history and cultural, racial, religious, ethnic, and 
linguistic background;
    (2) The known health risks in the specific region or country where 
the child resides; and
    (3) Any other medical, social, background, birth history, 
educational data, developmental history, or any other data known about 
the particular child.
    (d) The agency or person provides such training through appropriate 
methods, including:
    (1) Collaboration among agencies or persons to share resources to 
meet the training needs of prospective adoptive parents;
    (2) Group seminars offered by the agency or person or other agencies 
or training entities;
    (3) Individual counseling sessions;
    (4) Video, computer-assisted, or distance learning methods using 
standardized curricula; or
    (5) In cases where training cannot otherwise be provided, an 
extended home study process, with a system for evaluating the 
thoroughness with which the topics have been covered.
    (e) The agency or person provides additional in-person, 
individualized counseling and preparation, as needed, to meet the needs 
of the prospective adoptive parent(s) in light of the particular child 
to be adopted and his or her special needs, and any other training or 
counseling needed in light of the child background study or the home 
study.
    (f) The agency or person provides the prospective adoptive parent(s) 
with information about print, internet, and other resources available 
for continuing to acquire information about common behavioral, medical, 
and other issues; connecting with parent support groups, adoption 
clinics and experts; and seeking appropriate help when needed.
    (g) The agency or person exempts prospective adoptive parent(s) from 
all or part of the training and preparation that would normally be 
required for a specific adoption only when the agency or person 
determines that the prospective adoptive parent(s) have received 
adequate prior training or have prior experience as parent(s) of 
children adopted from abroad.
    (h) The agency or person records the nature and extent of the 
training and preparation provided to the prospective adoptive parent(s) 
in the adoption record.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40635, July 14, 2014]



Sec.  96.49  Provision of medical and social information in incoming cases.

    (a) The agency or person provides a copy of the child's medical 
records (including, to the fullest extent practicable, a correct and 
complete English-language translation of such records) to the 
prospective adoptive

[[Page 423]]

parent(s) as early as possible, but no later than two weeks before 
either the adoption or placement for adoption, or the date on which the 
prospective adoptive parent(s) travel to the foreign country to complete 
all procedures in such country relating to the adoption or placement for 
adoption, whichever is earlier.
    (b) Where any medical record provided pursuant to paragraph (a) of 
this section is a summary or compilation of other medical records, the 
agency or person includes those underlying medical records in the 
medical records provided pursuant to paragraph (a) if they are 
available.
    (c) The agency or person provides the prospective adoptive parent(s) 
with any untranslated medical reports or videotapes or other reports and 
provides an opportunity for the client(s) to arrange for their own 
translation of the records, including a translation into a language 
other than English, if needed.
    (d) The agency or person itself uses reasonable efforts, or requires 
its supervised provider in the child's country of origin who is 
responsible for obtaining medical information about the child on behalf 
of the agency or person to use reasonable efforts, to obtain available 
information, including in particular:
    (1) The date that the foreign country or other child welfare 
authority assumed custody of the child and the child's condition at that 
time;
    (2) History of any significant illnesses, hospitalizations, special 
needs, and changes in the child's condition since the foreign country or 
other child welfare authority assumed custody of the child;
    (3) Growth data, including prenatal and birth history, and 
developmental status over time and current developmental data at the 
time of the child's referral for adoption; and
    (4) Specific information on the known health risks in the specific 
region or country where the child resides.
    (e) If the agency or person provides medical information, other than 
the information provided by public foreign authorities, to the 
prospective adoptive parent(s) from an examination by a physician or 
from an observation of the child by someone who is not a physician, the 
agency or person uses reasonable efforts to include the following:
    (1) The name and credentials of the physician who performed the 
examination or the individual who observed the child;
    (2) The date of the examination or observation; how the report's 
information was retained and verified; and if anyone directly 
responsible for the child's care has reviewed the report;
    (3) If the medical information includes references, descriptions, or 
observations made by any individual other than the physician who 
performed the examination or the individual who performed the 
observation, the identity of that individual, the individual's training, 
and information on what data and perceptions the individual used to draw 
his or her conclusions;
    (4) A review of hospitalizations, significant illnesses, and other 
significant medical events, and the reasons for them;
    (5) Information about the full range of any tests performed on the 
child, including tests addressing known risk factors in the child's 
country of origin; and
    (6) Current health information.
    (f) The agency or person itself uses reasonable efforts, or requires 
its supervised provider in the child's country of origin who is 
responsible for obtaining social information about the child on behalf 
of the agency or person to use reasonable efforts, to obtain available 
information, including in particular:
    (1) Information about the child's birth family and prenatal history 
and cultural, racial, religious, ethnic, and linguistic background;
    (2) Information about all of the child's past and current placements 
prior to adoption, including, but not limited to any social work or 
court reports on the child and any information on who assumed custody 
and provided care for the child; and
    (3) Information about any birth siblings whose existence is known to 
the agency or person, or its supervised provider, including information 
about such siblings' whereabouts.

[[Page 424]]

    (g) Where any of the information listed in paragraphs (d) and (f) of 
this section cannot be obtained, the agency or person documents in the 
adoption record the efforts made to obtain the information and why it 
was not obtainable. The agency or person continues to use reasonable 
efforts to secure those medical or social records that could not be 
obtained up until the adoption is finalized.
    (h) Where available, the agency or person provides information for 
contacting the examining physician or the individual who made the 
observations to any physician engaged by the prospective adoptive 
parent(s), upon request.
    (i) The agency or person ensures that videotapes and photographs of 
the child are identified by the date on which the videotape or 
photograph was recorded or taken and that they were made in compliance 
with the laws in the country where recorded or taken.
    (j) The agency or person does not withhold from or misrepresent to 
the prospective adoptive parent(s) any available medical, social, or 
other pertinent information concerning the child.
    (k) The agency or person does not withdraw a referral until the 
prospective adoptive parent(s) have had two weeks (unless extenuating 
circumstances involving the child's best interests require a more 
expedited decision) to consider the needs of the child and their ability 
to meet those needs, and to obtain physician review of medical 
information and other descriptive information, including videotapes of 
the child if available.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40635, July 14, 2014]



Sec.  96.50  Placement and post-placement monitoring until final adoption 
in incoming cases.

    (a) The agency or person takes all appropriate measures to ensure 
that the transfer of the child takes place in secure and appropriate 
circumstances, with properly trained and qualified escorts, if used, 
and, if possible, in the company of the prospective adoptive parent(s).
    (b) In the post-placement phase, the agency or person monitors and 
supervises the child's placement to ensure that the placement remains in 
the best interests of the child, and ensures that at least the number of 
home visits required by State law or by the child's country of origin 
are performed, whichever is greater.
    (c) When a placement for adoption is in crisis in the post-placement 
phase, the agency or person makes an effort to provide or arrange for 
counseling by an individual with appropriate skills to assist the family 
in dealing with the problems that have arisen.
    (d) If counseling does not succeed in resolving the crisis and the 
placement is disrupted, the agency or person assuming custody of the 
child assumes responsibility for making another placement of the child.
    (e) The agency or person acts promptly and in accord with any 
applicable legal requirements to remove the child when the placement may 
no longer be in the child's best interests, to provide temporary care, 
to find an eventual adoptive placement for the child, and, in 
consultation with the Secretary, to inform the Central Authority of the 
child's country of origin about any new prospective adoptive parent(s).
    (1) In all cases where removal of a child from a placement is 
considered, the agency or person considers the child's views when 
appropriate in light of the child's age and maturity and, when required 
by State law, obtains the consent of the child prior to removal.
    (2) The agency or person does not return from the United States a 
child placed for adoption in the United States unless the Central 
Authority of the country of origin and the Secretary have approved the 
return in writing.
    (f) The agency or person includes in the adoption services contract 
with the prospective adoptive parent(s) a plan describing the agency's 
or person's responsibilities if a placement for adoption is disrupted. 
This plan addresses:
    (1) Who will have legal and financial responsibility for transfer of 
custody in an emergency or in the case of impending disruption and for 
the care of the child;
    (2) If the disruption takes place after the child has arrived in the 
United

[[Page 425]]

States, under what circumstances the child will, as a last resort, be 
returned to the child's country of origin, if that is determined to be 
in the child's best interests;
    (3) How the child's wishes, age, length of time in the United 
States, and other pertinent factors will be taken into account; and
    (4) How the Central Authority of the child's country of origin and 
the Secretary will be notified.
    (g) The agency or person provides post-placement reports until final 
adoption of a child to the foreign country when required by the foreign 
country. Where such reports are required, the agency or person:
    (1) Informs the prospective adoptive parent(s) in the adoption 
services contract of the requirement prior to the referral of the child 
for adoption;
    (2) Informs the prospective adoptive parent(s) that they will be 
required to provide all necessary information for the report(s); and
    (3) Discloses who will prepare the reports and the fees that will be 
charged.
    (h) The agency or person takes steps to:
    (1) Ensure that an order declaring the adoption as final is sought 
by the prospective adoptive parent(s), and in Convention adoptions is 
entered in compliance with section 301(c) of the IAA (42 U.S.C. 
14931(c)); and
    (2) Notify the Secretary of the finalization of the adoption within 
thirty days of the entry of the order.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40635, July 14, 2014]



Sec.  96.51  Post-adoption services in incoming cases.

    (a) The agency or person takes all appropriate measures to ensure 
that the transfer of the child takes place in secure and appropriate 
circumstances, with properly trained and qualified escorts, if used, 
and, if possible, in the company of the adoptive parent(s).
    (b) The agency or person informs the prospective adoptive parent(s) 
in the adoption services contract whether the agency or person will or 
will not provide any post-adoption services. The agency or person also 
informs the prospective adoptive parent(s) in the adoption services 
contract whether it will provide services if an adoption is dissolved, 
and, if it indicates it will, it provides a plan describing the agency's 
or person's responsibilities.
    (c) When post-adoption reports are required by the child's country 
of origin, the agency or person includes a requirement for such reports 
in the adoption services contract and makes good-faith efforts to 
encourage adoptive parent(s) to provide such reports.
    (d) The agency or person does not return from the United States an 
adopted child whose adoption has been dissolved unless the Central 
Authority of the country of origin and the Secretary have approved the 
return in writing.



Sec.  96.52  Performance of Convention communication and coordination 
functions in incoming cases.

    (a) The agency or person keeps the Central Authority of the foreign 
country and the Secretary informed as necessary about the adoption 
process and the measures taken to complete it, as well as about the 
progress of the placement if a probationary period is required.
    (b) The agency or person takes all appropriate measures, consistent 
with the procedures of the U.S. Central Authority and of the foreign 
country, to:
    (1) Transmit on a timely basis the home study to the Central 
Authority or other competent authority of the child's country of origin;
    (2) Obtain the child background study, proof that the necessary 
consents to the child's adoption have been obtained, and the necessary 
determination that the prospective placement is in the child's best 
interests, from the Central Authority or other competent authority in 
the child's country of origin;
    (3) Provide confirmation that the prospective adoptive parent(s) 
agree to the adoption to the Central Authority or other competent 
authority in the child's country of origin; and
    (4) Transmit the determination that the child is or will be 
authorized to enter and reside permanently in the United States to the 
Central Authority or other competent authority in the child's country of 
origin.
    (c) The agency or person takes all necessary and appropriate 
measures,

[[Page 426]]

consistent with the procedures of the foreign country, to obtain 
permission for the child to leave his or her country of origin and to 
enter and reside permanently in the United States.
    (d) Where the transfer of the child does not take place, the agency 
or person returns the home study on the prospective adoptive parent(s) 
and/or the child background study to the authorities that forwarded 
them.
    (e) The agency or person takes all necessary and appropriate 
measures to perform any tasks in an intercountry adoption case that the 
Secretary identifies are required to comply with the Convention, the 
IAA, the UAA, or any regulations implementing the IAA or UAA.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40635, July 14, 2014]

 Standards for Convention Cases in Which a Child Is Emigrating From the 
                     United States (Outgoing Cases)



Sec.  96.53  Background studies on the child and consents 
in outgoing Convention cases.

    (a) The agency or person takes all appropriate measures to ensure 
that a child background study is performed that includes information 
about the child's identity, adoptability, background, social 
environment, family history, medical history (including that of the 
child's family), and any special needs of the child. The child 
background study must include the following:
    (1) Information that demonstrates that consents were obtained in 
accordance with paragraph (c) of this section;
    (2) Information that demonstrates consideration of the child's 
wishes and opinions in accordance with paragraph (d) of this section 
and;
    (3) Information that confirms that the child background study was 
prepared either by an exempted provider or by an individual who meets 
the requirements set forth in Sec.  96.37(g).
    (b) Where the child background study is not prepared in the first 
instance by an accredited agency, the agency or person ensures that the 
child background study is reviewed and approved in writing by an 
accredited agency. The written approval must include a determination 
that the background study includes all the information required by 
paragraph (a) of this section.
    (c) The agency or person takes all appropriate measures to ensure 
that consents have been obtained as follows:
    (1) The persons, institutions, and authorities whose consent is 
necessary for adoption have been counseled as necessary and duly 
informed of the effects of their consent, in particular, whether or not 
an adoption will result in the termination of the legal relationship 
between the child and his or her family of origin;
    (2) All such persons, institutions, and authorities have given their 
consents;
    (3) The consents have been expressed or evidenced in writing in the 
required legal form, have been given freely, were not induced by 
payments or compensation of any kind, and have not been withdrawn;
    (4) The consent of the mother, where required, was executed after 
the birth of the child;
    (5) The child, as appropriate in light of his or her age and 
maturity, has been counseled and duly informed of the effects of the 
adoption and of his or her consent to the adoption; and
    (6) The child's consent, where required, has been given freely, in 
the required legal form, and expressed or evidenced in writing and not 
induced by payment or compensation of any kind.
    (d) If the child is twelve years of age or older, or as otherwise 
provided by State law, the agency or person gives due consideration to 
the child's wishes or opinions before determining that an intercountry 
placement is in the child's best interests.
    (e) The agency or person prior to the child's adoption takes all 
appropriate measures to transmit to the Central Authority or other 
competent authority or accredited bodies of the Convention country the 
child background study, proof that the necessary consents have been 
obtained, and the reasons for its determination that the placement is in 
the child's best interests. In doing so, the agency or person, as 
required by Article 16(2) of the Convention, does not reveal the 
identity of

[[Page 427]]

the mother or the father if these identities may not be disclosed under 
State law.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40635, July 14, 2014]



Sec.  96.54  Placement standards in outgoing Convention cases.

    (a) Except in the case of adoption by relatives or in the case in 
which the birth parent(s) have identified specific prospective adoptive 
parent(s) or in other special circumstances accepted by the State court 
with jurisdiction over the case, the agency or person makes reasonable 
efforts to find a timely adoptive placement for the child in the United 
States by:
    (1) Disseminating information on the child and his or her 
availability for adoption through print, media, and internet resources 
designed to communicate with potential prospective adoptive parent(s) in 
the United States;
    (2) Listing information about the child on a national or State 
adoption exchange or registry for at least sixty calendar days after the 
birth of the child;
    (3) Responding to inquiries about adoption of the child; and
    (4) Providing a copy of the child background study to potential U.S. 
prospective adoptive parent(s).
    (b) The agency or person demonstrates to the satisfaction of the 
State court with jurisdiction over the adoption that sufficient 
reasonable efforts (including no efforts, when in the best interests of 
the child) to find a timely and qualified adoptive placement for the 
child in the United States were made.
    (c) In placing the child for adoption, the agency or person:
    (1) To the extent consistent with State law, gives significant 
weight to the placement preferences expressed by the birth parent(s) in 
all voluntary placements;
    (2) To the extent consistent with State law, makes diligent efforts 
to place siblings together for adoption and, where placement together is 
not possible, to arrange for contact between separated siblings, unless 
it is in the best interests of one of the siblings that such efforts or 
contact not take place; and
    (3) Complies with all applicable requirements of the Indian Child 
Welfare Act.
    (d) The agency or person complies with any State law requirements 
pertaining to the provision and payment of independent legal counsel for 
birth parents. If State law requires full disclosure to the birth 
parent(s) that the child is to be adopted by parent(s) who reside 
outside the United States, the agency or person provides such 
disclosure.
    (e) The agency or person takes all appropriate measures to give due 
consideration to the child's upbringing and to his or her ethnic, 
religious, and cultural background.
    (f) When particular prospective adoptive parent(s) in a Convention 
country have been identified, the agency or person takes all appropriate 
measures to determine whether the envisaged placement is in the best 
interests of the child, on the basis of the child background study and 
the home study on the prospective adoptive parent(s).
    (g) The agency or person thoroughly prepares the child for the 
transition to the Convention country, using age-appropriate services 
that address the child's likely feelings of separation, grief, and loss 
and difficulties in making any cultural, religious, racial, ethnic, or 
linguistic adjustment.
    (h) The agency or person takes all appropriate measures to ensure 
that the transfer of the child takes place in secure and appropriate 
circumstances, with properly trained and qualified escorts, if used, 
and, if possible, in the company of the adoptive parent(s) or the 
prospective adoptive parent(s);
    (i) Before the placement for adoption proceeds, the agency or person 
identifies the entity in the receiving country that will provide post-
placement supervision and reports, if required by State law, and ensures 
that the child's adoption record contains the information necessary for 
contacting that entity.
    (j) The agency or person ensures that the child's adoption record 
includes the order granting the adoption or legal custody for the 
purpose of adoption in the Convention country.
    (k) The agency or person consults with the Secretary before 
arranging for the return to the United States of any

[[Page 428]]

child who has emigrated to a Convention country in connection with the 
child's adoption.



Sec.  96.55  Performance of Convention communication and coordination 
functions in outgoing Convention cases.

    (a) The agency or person keeps the Central Authority of the 
Convention country and the Secretary informed as necessary about the 
adoption process and the measures taken to complete it, as well as about 
the progress of the placement if a probationary period is required.
    (b) The agency or person ensures that:
    (1) Copies of all documents from the State court proceedings, 
including the order granting the adoption or legal custody, are provided 
to the Secretary;
    (2) Any additional information on the adoption is transmitted to the 
Secretary promptly upon request; and
    (3) It otherwise facilitates, as requested, the Secretary's ability 
to provide the certification that the child has been adopted or that 
custody has been granted for the purpose of adoption, in accordance with 
the Convention and the IAA.
    (c) Where the transfer of the child does not take place, the agency 
or person returns the home study on the prospective adoptive parent(s) 
and/or the child background study to the authorities that forwarded 
them.
    (d) The agency or person provides to the State court with 
jurisdiction over the adoption:
    (1) Proof that consents have been given as required in Sec.  
96.53(c);
    (2) An English copy or certified English translation of the home 
study on the prospective adoptive parent(s) in the Convention country, 
and the determination by the agency or person that the placement with 
the prospective adoptive parent(s) is in the child's best interests;
    (3) Evidence that the prospective adoptive parent(s) in the 
Convention country agree to the adoption;
    (4) Evidence that the child will be authorized to enter and reside 
permanently in the Convention country or on the same basis as that of 
the prospective adoptive parent(s); and
    (5) Evidence that the Central Authority of the Convention country 
has agreed to the adoption, if such consent is necessary under its laws 
for the adoption to become final.
    (e) The agency or person makes the showing required by Sec.  
96.54(b) to the State court with jurisdiction over the adoption.
    (f) The agency or person takes all necessary and appropriate 
measures to perform any tasks in a Convention adoption case that the 
Secretary identifies are required to comply with the Convention, the 
IAA, or any regulations implementing the IAA.



Sec.  96.56  [Reserved]



    Subpart G_Decisions on Applications for Accreditation or Approval



Sec.  96.57  Scope.

    The provisions in this subpart establish the procedures for when the 
accrediting entity issues decisions on applications for accreditation or 
approval.

[79 FR 40635, July 14, 2014]



Sec.  96.58  Notification of accreditation and approval decisions.

    (a) The accrediting entity must routinely inform applicants in 
writing of its accreditation and approval decisions--whether an 
application has been granted or denied--as those decisions are 
finalized. The accrediting entity must routinely provide this 
information to the Secretary in writing.
    (b) The accrediting entity may, in its discretion, communicate with 
agencies and persons that have applied for accreditation or approval 
about the status of their pending applications to afford them an 
opportunity to correct deficiencies that may hinder or prevent 
accreditation or approval.

[79 FR 40635, July 14, 2014]



Sec.  96.59  Review of decisions to deny accreditation or approval.

    (a) There is no administrative or judicial review of an accrediting 
entity's decision to deny an application for accreditation or approval. 
As provided in

[[Page 429]]

Sec.  96.79, a decision to deny for these purposes includes:
    (1) A denial of the agency's or person's initial application for 
accreditation or approval;
    (2) A denial of an application made after cancellation or refusal to 
renew by the accrediting entity; and
    (3) A denial of an application made after cancellation or debarment 
by the Secretary.
    (b) The agency or person may petition the accrediting entity for 
reconsideration of a denial. The accrediting entity must establish 
internal review procedures that provide an opportunity for an agency or 
person to petition for reconsideration of the denial.



Sec.  96.60  Length of accreditation or approval period.

    (a) The accrediting entity will accredit or approve an agency or 
person for a period of four years, except as provided in paragraph (b) 
of this section. The accreditation or approval period will commence on 
the date that the agency or person is granted accreditation or approval.
    (b) In order to stagger the renewal requests from agencies and 
persons applying for accreditation or approval and to prevent the 
renewal requests from coming due at the same time, the accrediting 
entity may extend the period of accreditation it has previously granted 
for no more than one year and such that the total period of 
accreditation does not exceed five years, as long as the agency or 
person remains in substantial compliance with the applicable standards 
in subpart F of this part. The only agencies and persons that may 
qualify for an extension are: Those that have no pending Complaint 
Registry investigations or adverse actions (see Sec.  96.70); and those 
that have not undergone a change in corporate or internal structure 
(such as a merger or change in chief executive or financial officer) 
during their current accreditation or approval period. For agencies and 
persons that meet these two criteria, the Secretary, in his or her 
discretion, may consider additional factors in deciding upon an 
extension including, but not limited to, the agency's or person's volume 
of intercountry adoption cases in the year preceding the application for 
renewal or extension, the agency's or person's state licensure record, 
and the number of extensions available.

[80 FR 50196, Aug. 19, 2015]



Sec.  96.61  [Reserved]



             Subpart H_Renewal of Accreditation or Approval



Sec.  96.62  Scope.

    The provisions in this subpart establish the procedures for renewal 
of an agency's accreditation or a person's approval.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.63  Renewal of accreditation or approval.

    (a) The accrediting entity must advise accredited agencies and 
approved persons that it monitors of the date by which they should seek 
renewal of their accreditation or approval so that the renewal process 
can reasonably be completed prior to the expiration of the agency's or 
person's current accreditation or approval. If the accredited agency or 
approved person does not wish to renew its accreditation or approval, it 
must immediately notify the accrediting entity and take all necessary 
steps to complete its intercountry adoption cases and to transfer its 
pending intercountry adoption cases and adoption records to other 
accredited agencies, approved persons, or a State archive, as 
appropriate, under the oversight of the accrediting entity, before its 
accreditation or approval expires.
    (b) The accredited agency or approved person may seek renewal from a 
different accrediting entity than the one that handled its prior 
application. If it changes accrediting entities, the accredited agency 
or approved person must so notify the accrediting entity that handled 
its prior application by the date on which the agency or person must 
(pursuant to paragraph (a) of this section) seek renewal of its status. 
The accredited agency or approved person

[[Page 430]]

must follow the new accrediting entity's instructions when submitting a 
request for renewal and preparing documents and other information for 
the new accrediting entity to review in connection with the renewal 
request.
    (c) The accrediting entity must process the request for renewal in a 
timely fashion. Before deciding whether to renew the accreditation or 
approval of an agency or person, the accrediting entity may, in its 
discretion, advise the agency or person of any deficiencies that may 
hinder or prevent its renewal and defer a decision to allow the agency 
or person to correct the deficiencies. The accrediting entity must 
notify the accredited agency, approved person, and the Secretary in 
writing when it renews or refuses to renew an agency's or person's 
accreditation or approval.
    (d) Sections 96.24, 96.25, and 96.26, which relate to evaluation 
procedures and to requests for and use of information, and Sec.  96.27, 
which relates to the substantive criteria for evaluating applicants for 
accreditation or approval, other than Sec.  96.27(e), will govern 
determinations about whether to renew accreditation or approval. In lieu 
of Sec.  96.27(e), if the agency or person has been suspended by an 
accrediting entity or the Secretary during its most current 
accreditation or approval cycle, the accrediting entity may take the 
reasons underlying the suspension into account when determining whether 
to renew accreditation or approval and may refuse to renew accreditation 
or approval based on the prior suspension.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.64  [Reserved]



           Subpart I_Routine Oversight by Accrediting Entities



Sec.  96.65  Scope.

    The provisions in this subpart establish the procedures for routine 
oversight of accredited agencies and approved persons.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.66  Oversight of accredited agencies and approved persons 
by the accrediting entity.

    (a) The accrediting entity must monitor agencies it has accredited 
and persons it has approved at least annually to ensure that they are in 
substantial compliance with the standards in subpart F of this part, as 
determined using a method approved by the Secretary in accordance with 
Sec.  96.27(d). The accrediting entity must investigate complaints about 
accredited agencies and approved persons, as provided in subpart J of 
this part.
    (b) An accrediting entity may, on its own initiative, conduct site 
visits to inspect an agency's or person's premises or programs, with or 
without advance notice, for purposes of random verification of its 
continued compliance or to investigate a complaint. The accrediting 
entity may consider any information about the agency or person that 
becomes available to it about the compliance of the agency or person. 
The provisions of Sec. Sec.  96.25 and 96.26 govern requests for and use 
of information.
    (c) The accrediting entity must require accredited agencies or 
approved persons to attest annually that they have remained in 
substantial compliance and to provide supporting documentation to 
indicate such ongoing compliance with the standards in subpart F of this 
part.



Sec.  96.67  [Reserved]



            Subpart J_Oversight Through Review of Complaints



Sec.  96.68  Scope.

    The provisions in this subpart establish the procedures that the 
accrediting entity will use for processing complaints against accredited 
agencies and approved persons (including complaints concerning their use 
of supervised providers) that raise an issue of compliance with the 
Convention, the IAA, the UAA, or the regulations implementing the IAA or 
UAA, as determined by the accrediting entity or the

[[Page 431]]

Secretary, and that are therefore relevant to the oversight functions of 
the accrediting entity or the Secretary.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.69  Filing of complaints against accredited agencies 
and approved persons.

    (a) Complaints described in Sec.  96.68 will be subject to review by 
the accrediting entity pursuant to Sec. Sec.  96.71 and 96.72, when 
submitted as provided in this section and Sec.  96.70.
    (b) Complaints against accredited agencies and approved persons by 
parties to specific intercountry adoption cases and relating to that 
case must first be submitted by the complainant in writing to the 
primary provider and to the agency or person providing adoption 
services, if a U.S. provider different from the primary provider. If the 
complaint cannot be resolved through the complaint processes of the 
primary provider or the agency or person providing the services (if 
different), or if the complaint was resolved by an agreement to take 
action but the primary provider or the agency or person providing the 
service (if different) failed to take such action within thirty days of 
agreeing to do so, the complaint may then be filed with the Complaint 
Registry in accordance with Sec.  96.70.
    (c) An individual who is not party to a specific intercountry 
adoption case but who has information about an accredited agency or 
approved person may provide that information by filing it in the form of 
a complaint with the Complaint Registry in accordance with Sec.  96.70.
    (d) A Federal, State, or local government official or a foreign 
Central Authority may file a complaint with the Complaint Registry in 
accordance with Sec.  96.70, or may raise the matter in writing directly 
with the accrediting entity, who will record the complaint in the 
Complaint Registry, or with the Secretary, who will record the complaint 
in the Complaint Registry, if appropriate, and refer it to the 
accrediting entity for review pursuant to Sec.  96.71 or take such other 
action as the Secretary deems appropriate.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.70  Operation of the Complaint Registry.

    (a) The Secretary will establish a Complaint Registry to support the 
accrediting entities in fulfilling their oversight responsibilities, 
including the responsibilities of recording, screening, referring, and 
otherwise taking action on complaints received, and to support the 
Secretary in the Secretary's oversight responsibilities as the Secretary 
deems appropriate. The Secretary may provide for the Complaint Registry 
to be funded in whole or in part from fees collected by the Secretary 
pursuant to section 403(b) of the IAA (42 U.S.C. 14943(b)) or by the 
accrediting entities.
    (b) The Complaint Registry will:
    (1) Receive and maintain records of complaints about accredited 
agencies, approved persons and agencies temporarily accredited for one 
or two years after the Convention entered into force (including 
complaints concerning their use of supervised providers) and make such 
complaints available to the appropriate accrediting entity and the 
Secretary;
    (2) Receive and maintain information regarding action taken to 
resolve each complaint by the accrediting entity or the Secretary;
    (3) Track compliance with any deadlines applicable to the resolution 
of complaints;
    (4) Generate reports designed to show possible patterns of 
complaints; and
    (5) Perform such other functions as the Secretary may determine.
    (c) Forms and information necessary to submit complaints to the 
Complaint Registry electronically or by such other means as the 
Secretary may determine will be accessible through the Department's 
website to persons who wish to file complaints. Such forms will be 
designed to ensure that each complaint complies with the requirements of 
Sec.  96.69.
    (d) Accrediting entities will have access to, and the capacity to 
enter data into, the Complaint Registry as the Secretary deems 
appropriate.

[[Page 432]]

    (e) Nothing in this part shall be construed to limit the Secretary's 
authority to take such action as the Secretary deems appropriate with 
respect to complaints.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.71  Review by the accrediting entity of complaints against 
accredited agencies and approved persons.

    (a) The accrediting entity must establish written procedures, 
including deadlines, for recording, investigating, and acting upon 
complaints it receives pursuant to Sec. Sec.  96.69 and 96.70(b)(1). The 
procedures must be consistent with this section and be approved by the 
Secretary. The accrediting entity must make written information about 
its complaint procedures available upon request.
    (b) If the accrediting entity determines that a complaint implicates 
the Convention, the IAA, the UAA, or the regulations implementing the 
IAA or UAA:
    (1) The accrediting entity must verify that the complainant has 
already attempted to resolve the complaint as described in Sec.  
96.69(b) and, if not, may refer the complaint to the agency or person, 
or to the primary provider, for attempted resolution through its 
internal complaint procedures;
    (2) The accrediting entity may conduct whatever investigative 
activity (including site visits) it considers necessary to determine 
whether any relevant accredited agency or approved person may maintain 
accreditation or approval as provided in Sec.  96.27. The provisions of 
Sec. Sec.  96.25 and 96.26 govern requests for and use of information. 
The accrediting entity must give priority to complaints submitted 
pursuant to Sec.  96.69(d);
    (3) If the accrediting entity determines that the agency or person 
may not maintain accreditation or approval, it must take adverse action 
pursuant to subpart K of this part.
    (c) When the accrediting entity has completed its complaint review 
process, it must provide written notification of the outcome of its 
investigation, and any actions taken, to the complainant, or to any 
other entity that referred the information.
    (d) The accrediting entity will enter information about the outcomes 
of its investigations and its actions on complaints into the Complaint 
Registry as provided in its agreement with the Secretary.
    (e) The accrediting entity may not take any action to discourage an 
individual from, or retaliate against an individual for, making a 
complaint, expressing a grievance, questioning the conduct of, or 
expressing an opinion about the performance of an accredited agency, an 
approved person, or the accrediting entity.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.72  Referral of complaints to the Secretary and other authorities.

    (a) An accrediting entity must report promptly to the Secretary any 
substantiated complaint that:
    (1) Reveals that an accredited agency or approved person has engaged 
in a pattern of serious, willful, grossly negligent, or repeated 
failures to comply with the standards in subpart F of this part; or
    (2) Indicates that continued accreditation or approval would not be 
in the best interests of the children and families concerned.
    (b) An accrediting entity must, after consultation with the 
Secretary, refer, as appropriate, to a State licensing authority, the 
Attorney General, or other law enforcement authorities any substantiated 
complaints that involve conduct that is:
    (1) Subject to the civil or criminal penalties imposed by section 
404 of the IAA (42 U.S.C. 14944);
    (2) In violation of the Immigration and Nationality Act (8 U.S.C. 
1101 et seq.); or
    (3) Otherwise in violation of Federal, State, or local law.
    (c) When an accrediting entity makes a report pursuant to paragraphs 
(a) or (b) of this section, it must indicate whether it is recommending 
that the Secretary take action to debar the agency or person, either 
temporarily or permanently.

[[Page 433]]



Sec.  96.73  [Reserved]



           Subpart K_Adverse Action by the Accrediting Entity



Sec.  96.74  Scope.

    The provisions in this subpart establish the procedures governing 
adverse action by an accrediting entity against accredited agencies and 
approved persons.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.75  Adverse action against accredited agencies 
or approved persons not in substantial compliance.

    The accrediting entity must take adverse action when it determines 
that an accredited agency or approved person may not maintain 
accreditation or approval as provided in Sec.  96.27. The accrediting 
entity is authorized to take any of the following actions against an 
accredited agency or approved person whose compliance the entity 
oversees. Each of these actions by an accrediting entity is considered 
an adverse action for purposes of the IAA, the UAA, and the regulations 
in this part:
    (a) Suspending accreditation or approval;
    (b) Canceling accreditation or approval;
    (c) Refusing to renew accreditation or approval;
    (d) Requiring an accredited agency or approved person to take a 
specific corrective action to bring itself into compliance; and
    (e) Imposing other sanctions including, but not limited to, 
requiring an accredited agency or approved person to cease providing 
adoption services in a particular case or in a specific foreign country.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.76  Procedures governing adverse action by the accrediting entity.

    (a) The accrediting entity must decide which adverse action to take 
based on the seriousness and type of violation and on the extent to 
which the accredited agency or approved person has corrected or failed 
to correct deficiencies of which it has been previously informed. The 
accrediting entity must notify an accredited agency or approved person 
in writing of its decision to take an adverse action against the agency 
or person. The accrediting entity's written notice must identify the 
deficiencies prompting imposition of the adverse action.
    (b) Before taking adverse action, the accrediting entity may, in its 
discretion, advise an accredited agency or approved person in writing of 
any deficiencies in its performance that may warrant an adverse action 
and provide it with an opportunity to demonstrate that an adverse action 
would be unwarranted before the adverse action is imposed. If the 
accrediting entity takes the adverse action without such prior notice, 
it must provide a similar opportunity to demonstrate that the adverse 
action was unwarranted after the adverse action is imposed, and may 
withdraw the adverse action based on the information provided.
    (c) The provisions in Sec. Sec.  96.25 and 96.26 govern requests for 
and use of information.



Sec.  96.77  Responsibilities of the accredited agency, approved person, 
and accrediting entity following adverse action by the accrediting entity.

    (a) If the accrediting entity takes an adverse action against an 
agency or person, the action will take effect immediately unless the 
accrediting entity agrees to a later effective date.
    (b) If the accrediting entity suspends or cancels the accreditation 
or approval of an agency or person, the agency or person must 
immediately, or by any later effective date set by the accrediting 
entity, cease to provide adoption services in all intercountry adoption 
cases. In the case of suspension, it must consult with the accrediting 
entity about whether to transfer its intercountry adoption cases and 
adoption records. In the case of cancellation, it must execute the plans 
required by Sec. Sec.  96.33(e) and 96.42(d) under the oversight of the 
accrediting entity, and transfer its intercountry adoption cases and 
adoption records to other accredited agencies, approved persons, or a 
State archive, as appropriate. When the agency or person is unable to 
transfer such intercountry adoption

[[Page 434]]

cases or adoption records in accordance with the plans or as otherwise 
agreed by the accrediting entity, the accrediting entity will so advise 
the Secretary who, with the assistance of the accrediting entity, will 
coordinate efforts to identify other accredited agencies or approved 
persons to assume responsibility for the cases, and to transfer the 
records to other accredited agencies or approved persons, or to public 
domestic authorities, as appropriate.
    (c) If the accrediting entity refuses to renew the accreditation or 
approval of an agency or person, the agency or person must cease to 
provide adoption services in all intercountry adoption cases upon 
expiration of its existing accreditation or approval. It must take all 
necessary steps to complete its intercountry adoption cases before its 
accreditation or approval expires. It must also execute the plans 
required by Sec. Sec.  96.33(e) and 96.42(d) under the oversight of the 
accrediting entity, and transfer its pending intercountry adoption cases 
and adoption records to other accredited agencies, approved persons, or 
a State archive, as appropriate. When the agency or person is unable to 
transfer such intercountry adoption cases or adoption records in 
accordance with the plans or as otherwise agreed by the accrediting 
entity, the accrediting entity will so advise the Secretary who, with 
the assistance of the accrediting entity, will coordinate efforts to 
identify other accredited agencies or approved persons to assume 
responsibility for the cases and to transfer the records to other 
accredited agencies or approved persons, or to public domestic 
authorities, as appropriate.
    (d) The accrediting entity must notify the Secretary, in accordance 
with procedures established in its agreement with the Secretary, when it 
takes an adverse action that changes the accreditation or approval 
status of an agency or person. The accrediting entity must also notify 
the relevant State licensing authority as provided in the agreement.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.78  Accrediting entity procedures to terminate adverse action.

    (a) The accrediting entity must maintain internal petition 
procedures, approved by the Secretary, to give accredited agencies and 
approved persons an opportunity to terminate adverse actions on the 
grounds that the deficiencies necessitating the adverse action have been 
corrected. The accrediting entity must inform the agency or person of 
these procedures when it informs them of the adverse action pursuant to 
Sec.  96.76(a). An accrediting entity is not required to maintain 
procedures to terminate adverse actions on any other grounds, or to 
maintain procedures to review its adverse actions, and must obtain the 
consent of the Secretary if it wishes to make such procedures available.
    (b) An accrediting entity may terminate an adverse action it has 
taken only if the agency or person demonstrates to the satisfaction of 
the accrediting entity that the deficiencies that led to the adverse 
action have been corrected. The accrediting entity must notify an agency 
or person in writing of its decision on the petition to terminate the 
adverse action.
    (c) If the accrediting entity described in paragraph (b) of this 
section is no longer providing accreditation or approval services, the 
agency or person may petition any accrediting entity with jurisdiction 
over its application.
    (d) If the accrediting entity cancels or refuses to renew an 
agency's or person's accreditation or approval, and does not terminate 
the adverse action pursuant to paragraph (b) of this section, the agency 
or person may reapply for accreditation or approval. Before doing so, 
the agency or person must request and obtain permission to make a new 
application from the accrediting entity that cancelled or refused to 
renew its accreditation or approval or, if such entity is no longer 
designated as an accrediting entity, from any alternate accrediting 
entity designated by the Secretary to give such permission. The 
accrediting entity may grant such permission only if the agency or 
person demonstrates to the satisfaction of the accrediting entity that 
the specific deficiencies that led to the

[[Page 435]]

cancellation or refusal to renew have been corrected.
    (e) If the accrediting entity grants the agency or person permission 
to reapply, the agency or person may file an application with that 
accrediting entity in accordance with subpart D of this part.
    (f) Nothing in this section shall be construed to prevent an 
accrediting entity from withdrawing an adverse action if it concludes 
that the action was based on a mistake of fact or was otherwise in 
error. Upon taking such action, the accrediting entity will take 
appropriate steps to notify the Secretary and the Secretary will take 
appropriate steps to notify the Permanent Bureau of the Hague Conference 
on Private International Law.



Sec.  96.79  Administrative or judicial review of adverse action 
by the accrediting entity.

    (a) Except to the extent provided by the procedures in Sec.  96.78, 
an adverse action by an accrediting entity shall not be subject to 
administrative review.
    (b) Section 202(c)(3) of the IAA (42 U.S.C. 14922(c)(3)) provides 
for judicial review in Federal court of adverse actions by an 
accrediting entity, regardless of whether the entity is described in 
Sec.  96.5(a) or (b). When any petition brought under section 202(c)(3) 
raises as an issue whether the deficiencies necessitating the adverse 
action have been corrected, the procedures maintained by the accrediting 
entity pursuant to Sec.  96.78 must first be exhausted. Adverse actions 
are only those actions listed in Sec.  96.75. There is no judicial 
review of an accrediting entity's decision to deny accreditation or 
approval, including:
    (1) A denial of an initial application;
    (2) A denial of an application made after cancellation or refusal to 
renew by the accrediting entity; and
    (3) A denial of an application made after cancellation or debarment 
by the Secretary.
    (c) In accordance with section 202(c)(3) of the IAA (42 U.S.C. 
14922(c)(3)), an accredited agency or approved person that is the 
subject of an adverse action by an accrediting entity may petition the 
United States district court in the judicial district in which the 
agency is located or the person resides to set aside the adverse action 
imposed by the accrediting entity. The United States district court 
shall review the adverse action in accordance with 5 U.S.C. 706. When an 
accredited agency or approved person petitions a United States district 
court to review the adverse action of an accrediting entity, the 
accrediting entity will be considered an agency as defined in 5 U.S.C. 
701 for the purpose of judicial review of the adverse action.



Sec.  96.80  [Reserved]



 Subpart L_Oversight of Accredited Agencies and Approved Persons by the 
                                Secretary



Sec.  96.81  Scope.

    The provisions in this subpart establish the procedures governing 
adverse action by the Secretary against accredited agencies and approved 
persons.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.82  The Secretary's response to actions by the accrediting entity.

    (a) There is no administrative review by the Secretary of an 
accrediting entity's decision to deny accreditation or approval, nor of 
any decision by an accrediting entity to take an adverse action.
    (b) When informed by an accrediting entity that an agency has been 
accredited or a person has been approved, the Secretary will take 
appropriate steps to ensure that relevant information about the 
accredited agency or approved person is provided to the Permanent Bureau 
of the Hague Conference on Private International Law. When informed by 
an accrediting entity that it has taken an adverse action that impacts 
an agency's or person's accreditation or approval status, the Secretary 
will take appropriate steps to inform the Permanent Bureau of the Hague 
Conference on Private International Law.



Sec.  96.83  Suspension or cancellation of accreditation or approval 
by the Secretary.

    (a) The Secretary must suspend or cancel the accreditation or 
approval

[[Page 436]]

granted by an accrediting entity when the Secretary finds, in the 
Secretary's discretion, that the agency or person is substantially out 
of compliance with the standards in subpart F of this part and that the 
accrediting entity has failed or refused, after consultation with the 
Secretary, to take action.
    (b) The Secretary may suspend or cancel the accreditation or 
approval granted by an accrediting entity if the Secretary finds that 
such action:
    (1) Will protect the interests of children;
    (2) Will further U.S. foreign policy or national security interests; 
or
    (3) Will protect the ability of U.S. citizens to adopt children.
    (c) If the Secretary suspends or cancels the accreditation or 
approval of an agency or person, the Secretary will take appropriate 
steps to notify both the accrediting entity and the Permanent Bureau of 
the Hague Conference on Private International Law.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.84  Reinstatement of accreditation or approval after suspension 
or cancellation by the Secretary.

    (a) An agency or person may petition the Secretary for relief from 
the Secretary's suspension or cancellation of its accreditation or 
approval on the grounds that the deficiencies necessitating the 
suspension or cancellation have been corrected. If the Secretary is 
satisfied that the deficiencies that led to the suspension or 
cancellation have been corrected, the Secretary shall, in the case of a 
suspension, terminate the suspension or, in the case of a cancellation, 
notify the agency or person that it may reapply for accreditation or 
approval to the same accrediting entity that handled its prior 
application for accreditation or approval. If that accrediting entity is 
no longer providing accreditation or approval services, the agency or 
person may reapply to any accrediting entity with jurisdiction over its 
application. If the Secretary terminates a suspension or permits an 
agency or person to reapply for accreditation or approval, the Secretary 
will so notify the appropriate accrediting entity. If the Secretary 
terminates a suspension, the Secretary will also take appropriate steps 
to notify the Permanent Bureau of the Hague Conference on Private 
International Law of the reinstatement.
    (b) Nothing in this section shall be construed to prevent the 
Secretary from withdrawing a cancellation or suspension if the Secretary 
concludes that the action was based on a mistake of fact or was 
otherwise in error. Upon taking such action, the Secretary will take 
appropriate steps to notify the accrediting entity and the Permanent 
Bureau of the Hague Conference on Private International Law.



Sec.  96.85  Temporary and permanent debarment by the Secretary.

    (a) The Secretary may temporarily or permanently debar an agency 
from accreditation or a person from approval on the Secretary's own 
initiative, at the request of DHS, or at the request of an accrediting 
entity. A debarment of an accredited agency or approved person will 
automatically result in the cancellation of accreditation or approval by 
the Secretary, and the accrediting entity shall deny any pending request 
for renewal of accreditation or approval.
    (b) The Secretary may issue a debarment order only if the Secretary, 
in the Secretary's discretion, determines that:
    (1) There is substantial evidence that the agency or person is out 
of compliance with the standards in subpart F of this part; and
    (2) There has been a pattern of serious, willful, or grossly 
negligent failures to comply, or other aggravating circumstances 
indicating that continued accreditation or approval would not be in the 
best interests of the children and families concerned. For purposes of 
this paragraph:
    (i) ``The children and families concerned'' include any children and 
any families whose interests have been or may be affected by the 
agency's or person's actions;
    (ii) A failure to comply with Sec.  96.47 (home study requirements) 
shall constitute a ``serious failure to comply'' unless it is shown by 
clear and convincing evidence that such noncompliance had neither the 
purpose nor the effect of determining the outcome of a

[[Page 437]]

decision or proceeding by a court or other competent authority in the 
United States or the child's country of origin; and
    (iii) Repeated serious, willful, or grossly negligent failures to 
comply with Sec.  96.47 (home study requirements) by an agency or person 
after consultation between the Secretary and the accrediting entity with 
respect to previous noncompliance by such agency or person shall 
constitute a pattern of serious, willful, or grossly negligent failures 
to comply.



Sec.  96.86  Length of debarment period and reapplication 
after temporary debarment.

    (a) In the case of a temporary debarment order, the order will take 
effect on the date specified in the order and will specify a date, not 
earlier than three years later, on or after which the agency or person 
may petition the Secretary for withdrawal of the temporary debarment. If 
the Secretary withdraws the temporary debarment, the agency or person 
may then reapply for accreditation or approval to the same accrediting 
entity that handled its prior application for accreditation or approval. 
If that accrediting entity is no longer providing accreditation or 
approval services, the agency or person may apply to any accrediting 
entity with jurisdiction over its application.
    (b) In the case of a permanent debarment order, the order will take 
effect on the date specified in the order. The agency or person will not 
be permitted to apply again to an accrediting entity for accreditation 
or approval, or to the Secretary for termination of the debarment.
    (c) Nothing in this section shall be construed to prevent the 
Secretary from withdrawing a debarment if the Secretary concludes that 
the action was based on a mistake of fact or was otherwise in error. 
Upon taking such action, the Secretary will take appropriate steps to 
notify the accrediting entity and the Permanent Bureau of the Hague 
Conference on Private International Law.



Sec.  96.87  Responsibilities of the accredited agency, approved person, 
and accrediting entity following suspension, cancellation, 
or debarment by the Secretary.

    If the Secretary suspends or cancels the accreditation or approval 
of an agency or person, or debars an agency or person, the agency or 
person must cease to provide adoption services in all intercountry 
adoption cases. In the case of suspension, it must consult with the 
accrediting entity about whether to transfer its intercountry adoption 
cases and adoption records. In the case of cancellation or debarment, it 
must execute the plans required by Sec. Sec.  96.33(e) and 96.42(d) 
under the oversight of the accrediting entity, and transfer its 
intercountry adoption cases and adoption records to other accredited 
agencies, approved persons, or a State archive, as appropriate. When the 
agency or person is unable to transfer such intercountry adoption cases 
or adoption records in accordance with the plans or as otherwise agreed 
by the accrediting entity, the accrediting entity will so advise the 
Secretary who, with the assistance of the accrediting entity, will 
coordinate efforts to identify other accredited agencies or approved 
persons to assume responsibility for the cases, and to transfer the 
records to other accredited agencies or approved persons, or to public 
domestic authorities, as appropriate.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.88  Review of suspension, cancellation, or debarment by the Secretary.

    (a) Except to the extent provided by the procedures in Sec.  96.84, 
an adverse action by the Secretary shall not be subject to 
administrative review.
    (b) Section 204(d) of the IAA (42 U.S.C. 14924(d)) provides for 
judicial review of final actions by the Secretary. When any petition 
brought under section 204(d) raises as an issue whether the deficiencies 
necessitating a suspension or cancellation of accreditation or approval 
have been corrected, procedures maintained by the Secretary pursuant to 
Sec.  96.84(a) must first be exhausted. A suspension or cancellation

[[Page 438]]

of accreditation or approval, and a debarment (whether temporary or 
permanent) by the Secretary are final actions subject to judicial 
review. Other actions by the Secretary are not final actions and are not 
subject to judicial review.
    (c) In accordance with section 204(d) of the IAA (42 U.S.C. 
14924(d)), an agency or person that has been suspended, cancelled, or 
temporarily or permanently debarred by the Secretary may petition the 
United States District Court for the District of Columbia, or the United 
States district court in the judicial district in which the person 
resides or the agency is located, pursuant to 5 U.S.C. 706, to set aside 
the action.



Sec.  96.89  [Reserved]



  Subpart M_Dissemination and Reporting of Information by Accrediting 
                                Entities



Sec.  96.90  Scope.

    The provisions in this subpart govern the dissemination and 
reporting of information on accredited agencies and approved persons by 
accrediting entities.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.91  Dissemination of information to the public about accreditation 
and approval status.

    (a) The accrediting entity must maintain and make available to the 
public on a quarterly basis the following information:
    (1) The name, address, and contact information for each agency and 
person it has accredited or approved;
    (2) The names of agencies and persons to which it has denied 
accreditation or approval that have not subsequently been accredited or 
approved;
    (3) The names of agencies and persons that have been subject to 
suspension, cancellation, refusal to renew accreditation or approval, or 
debarment by the accrediting entity or the Secretary; and
    (4) Other information specifically authorized in writing by the 
accredited agency or approved person to be disclosed to the public.
    (b) Each accrediting entity must make the following information 
available to individual members of the public upon specific request:
    (1) Confirmation of whether or not a specific agency or person has a 
pending application for accreditation or approval, and, if so, the date 
of the application and whether it is under active consideration or 
whether a decision on the application has been deferred; and
    (2) If an agency or person has been subject to suspension, 
cancellation, refusal to renew accreditation or approval, or debarment, 
a brief statement of the reasons for the action.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.92  Dissemination of information to the public about complaints 
against accredited agencies and approved persons.

    Each accrediting entity must maintain a written record documenting 
each complaint received and the steps taken in response to it. This 
information may be disclosed to the public as follows:
    (a) The accrediting entity must verify, upon inquiry from a member 
of the public, whether there have been any substantiated complaints 
against an accredited agency or approved person, and if so, provide 
information about the status and nature of any such complaints.
    (b) The accrediting entity must have procedures for disclosing 
information about complaints that are substantiated.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.93  Reports to the Secretary about accredited agencies 
and approved persons and their activities.

    (a) The accrediting entity must make annual reports to the Secretary 
on the information it collects from accredited agencies and approved 
persons pursuant to Sec.  96.43. The accrediting entity must make semi-
annual reports to the Secretary that summarize for the preceding six-
month period the following information:
    (1) The accreditation and approval status of applicants, accredited 
agencies, and approved persons;

[[Page 439]]

    (2) Any instances where it has denied accreditation or approval;
    (3) Any adverse actions taken against an accredited agency or 
approved person;
    (4) All substantiated complaints against accredited agencies and 
approved persons and the impact of such complaints on their 
accreditation or approval status;
    (5) The number, nature, and outcome of complaint investigations 
carried out by the accrediting entity as well as the shortest, longest, 
average, and median length of time expended to complete complaint 
investigations; and
    (6) Any discernible patterns in complaints received about specific 
agencies or persons, as well as any discernible patterns of complaints 
in the aggregate.
    (b) The accrediting entity must report to the Secretary within 
thirty days of the time it learns that an accredited agency or approved 
person:
    (1) Has ceased to provide adoption services; or
    (2) Has transferred its intercountry adoption cases and adoption 
records.
    (c) In addition to the reporting requirements contained in Sec.  
96.72, an accrediting entity must immediately notify the Secretary in 
writing:
    (1) When it accredits an agency or approves a person;
    (2) When it renews the accreditation or approval of an agency or 
person; or
    (3) When it takes an adverse action against an accredited agency or 
approved person that impacts its accreditation or approval status.

[71 FR 8131, Feb. 15, 2006, as amended at 79 FR 40636, July 14, 2014]



Sec.  96.94  [Reserved]



PART 97_ISSUANCE OF ADOPTION CERTIFICATES AND CUSTODY DECLARATIONS 
IN HAGUE CONVENTION ADOPTION CASES--Table of Contents



Sec.
97.1 Definitions.
97.2 Application for a Hague Adoption Certificate or a Hague Custody 
          Declaration (outgoing Convention case).
97.3 Requirements subject to verification in an outgoing Convention 
          case.
97.4 Issuance of a Hague Adoption Certificate or a Hague Custody 
          Declaration (outgoing Convention case).
97.5 Certification of Hague Convention Compliance in an incoming 
          Convention case where final adoption occurs in the United 
          States.
97.6-97.7 [Reserved]

    Authority: Convention on Protection of Children and Co-operation in 
Respect of Intercountry Adoption (done at The Hague, May 29, 1993), S. 
Treaty Doc. 105-51 (1998); 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); 
Intercountry Adoption Act of 2000, 42 U.S.C. 14901-14954.

    Source: 71 FR 64456, Nov. 2, 2006, unless otherwise noted.



Sec.  97.1  Definitions.

    As used in this part:
    (a) Adoption Court means the State court with jurisdiction over the 
adoption or the grant of custody for purpose of adoption.
    (b) U.S. Authorized Entity means a public domestic authority or an 
agency or person that is accredited or temporarily accredited or 
approved by an accrediting entity pursuant to 22 CFR part 96, or a 
supervised provider acting under the supervision and responsibility of 
an accredited agency or temporarily accredited agency or approved 
person.
    (c) Foreign Authorized Entity means a foreign Central Authority or 
an accredited body or entity other than the Central Authority authorized 
by the relevant foreign country to perform Central Authority functions 
in a Convention adoption case.
    (d) Hague Adoption Certificate means a certificate issued by the 
Secretary in an outgoing case (where the child is emigrating from the 
United States to another Convention country) certifying that a child has 
been adopted in the United States in accordance with the Convention and, 
except as provided in Sec.  97.4(b), the IAA.
    (e) Hague Custody Declaration means a declaration issued by the 
Secretary in an outgoing case (where the child is emigrating from the 
United States to another Convention country) declaring that custody of a 
child for purposes of adoption has been granted in the United States in 
accordance with the Convention and, except as provided in Sec.  97.4(b), 
the IAA.

[[Page 440]]

    (f) Terms defined in 22 CFR 96.2 have the meaning given to them 
therein.



Sec.  97.2  Application for a Hague Adoption Certificate 
or a Hague Custody Declaration (outgoing Convention case).

    (a) Once the Convention has entered into force for the United 
States, any party to an outgoing Convention adoption or custody 
proceeding may apply to the Secretary for a Hague Adoption Certificate 
or a Hague Custody Declaration. Any other interested person may also 
make such application, but such application will not be processed unless 
such applicant demonstrates that a Hague Adoption Certificate or Hague 
Custody Declaration is needed to obtain a legal benefit or for purposes 
of a legal proceeding, as determined by the Secretary in the Secretary's 
discretion.
    (b) Applicants for a Hague Adoption Certificate or Hague Custody 
Declaration shall submit to the Secretary:
    (1) A completed application form in such form as the Secretary may 
prescribe, with any required fee;
    (2) An official copy of the order of the adoption court finding that 
the child is eligible for adoption and that the adoption or proposed 
adoption is in the child's best interests and granting the adoption or 
custody for purposes of adoption;
    (3) An official copy of the adoption court's findings (either in the 
order granting the adoption or custody for purposes of adoption or 
separately) verifying, in substance, that each of the requirements of 
Sec.  97.3 has been complied with or, if the adoption court has not 
verified compliance with a particular requirement in Sec.  97.3, 
authenticated documentation showing that such requirement nevertheless 
has been met and a written explanation of why the adoption court's 
verification of compliance with the requirement cannot be submitted; and
    (4) Such additional documentation and information as the Secretary 
may request at the Secretary's discretion.
    (c) If the applicant fails to submit all of the documentation and 
information required pursuant to paragraph (b)(4) of this section within 
120 days of the Secretary's request, the Secretary may consider the 
application abandoned.



Sec.  97.3  Requirements subject to verification in an 
outgoing Convention case.

    (a) Preparation of child background study. An accredited agency, 
temporarily accredited agency, or public domestic authority must 
complete or approve a child background study that includes information 
about the child's identity, adoptability, background, social 
environment, family history, medical history (including that of the 
child's family), and any special needs of the child.
    (b) Transmission of child data. A U.S. authorized entity must 
conclude that the child is eligible for adoption and, without revealing 
the identity of the birth mother or the birth father if these identities 
may not be disclosed under applicable State law, transmit to a foreign 
authorized entity the background study, proof that the necessary 
consents have been obtained, and the reason for its determination that 
the proposed placement is in the child's best interests, based on the 
home study and child background study and giving due consideration to 
the child's upbringing and his or her ethnic, religious, and cultural 
background.
    (c) Reasonable efforts to find domestic placement. Reasonable 
efforts pursuant to 22 CFR 96.54 must be made to actively recruit and 
make a diligent search for prospective adoptive parent(s) to adopt the 
child in the United States and a timely adoptive placement in the United 
States not found.
    (d) Preparation and transmission of home study. A U.S. authorized 
entity must receive from a foreign authorized entity a home study on the 
prospective adoptive parent(s) prepared in accordance with the laws of 
the receiving country, under the responsibility of a foreign Central 
Authority, foreign accredited body, or public foreign authority, that 
includes:
    (1) Information on the prospective adoptive parent(s)' identity, 
eligibility, and suitability to adopt, background, family and medical 
history, social environment, reasons for adoption, ability to undertake 
an intercountry adoption, and the characteristics of the

[[Page 441]]

children for whom they would be qualified to care;
    (2) Confirmation that a competent authority has determined that the 
prospective adoptive parent(s) are eligible and suited to adopt and has 
ensured that the prospective adoptive parent(s) have been counseled as 
necessary; and
    (3) The results of a criminal background check.
    (e) Authorization to enter. The Central Authority or other competent 
authority of the receiving country must declare that the child will be 
authorized to enter and reside in the receiving country permanently or 
on the same basis as the adopting parent(s).
    (f) Consent by foreign authorized entity. A foreign authorized 
entity or competent authority must declare that it consents to the 
adoption, if its consent is necessary under the law of the relevant 
foreign country for the adoption to become final.
    (g) Guardian counseling and consent. Each person, institution, and 
authority (other than the child) whose consent is necessary for the 
adoption must be counseled as necessary and duly informed of the effects 
of the consent (including whether or not an adoption will terminate the 
legal relationship between the child and his or her family of origin); 
must freely give consent expressed or evidenced in writing in the 
required legal form without any inducement by compensation of any kind; 
and consent must not have been subsequently withdrawn. If the consent of 
the mother is required, it may be given only after the birth of the 
child.
    (h) Child counseling and consent. As appropriate in light of the 
child's age and maturity, the child must be counseled and informed of 
the effects of the adoption and the child's views must be considered. If 
the child's consent is required, the child must also be counseled and 
informed of the effects of granting consent, and must freely give 
consent expressed or evidenced in writing in the required legal form 
without any inducement by compensation of any kind.
    (i) Authorized entity duties. A U.S. authorized entity must:
    (1) Ensure that the prospective adoptive parent(s) agree to the 
adoption;
    (2) Agree, together with a foreign authorized entity, that the 
adoption may proceed;
    (3) Take all appropriate measures to ensure that the transfer of the 
child takes place in secure and appropriate circumstances and, if 
possible, in the company of the adoptive parent(s) or the prospective 
adoptive parent(s), and arrange to obtain permission for the child to 
leave the United States; and
    (4) Arrange to keep a foreign authorized entity informed about the 
adoption process and the measures taken to complete it, as well as about 
the progress of the placement if a probationary period is required; to 
return the home study and the child background study to the authorities 
that forwarded them if the transfer of the child does not take place; 
and to be consulted in the event a new placement or alternative long-
term care for the child is required.
    (j) Contacts. Unless the child is being adopted by a relative, there 
may be no contact between the prospective adoptive parent(s) and the 
child's birthparent(s) or any other person who has care of the child 
prior to the competent authority's determination that the prospective 
adoptive parent(s) are eligible and suited to adopt and the adoption 
court's determinations that the child is eligible for adoption, that the 
requirements in paragraphs (c) and (g) of this section have been met, 
and that an intercountry adoption is in the child's best interests, 
provided that this prohibition on contacts shall not apply if the 
relevant State or public domestic authority has established conditions 
under which such contact may occur and any such contact occurred in 
accordance with such conditions.
    (k) Improper financial gain. No one may derive improper financial or 
other gain from an activity related to the adoption, and only costs and 
expenses (including reasonable professional fees of persons involved in 
the adoption) may be charged or paid.



Sec.  97.4  Issuance of a Hague Adoption Certificate 
or a Hague Custody Declaration (outgoing Convention case).

    (a) Once the Convention has entered into force for the United 
States, the

[[Page 442]]

Secretary shall issue a Hague Adoption Certificate or a Hague Custody 
Declaration if the Secretary, in the Secretary's discretion, is 
satisfied that the adoption or grant of custody was made in compliance 
with the Convention and the IAA.
    (b) If compliance with the Convention can be certified but it is not 
possible to certify compliance with the IAA, the Secretary personally 
may authorize issuance of an appropriately modified Hague Adoption 
Certificate or Hague Custody Declaration, in the interests of justice or 
to prevent grave physical harm to the child.



Sec.  97.5  Certification of Hague Convention Compliance in an incoming 
convention case where final adoption occurs in the United States.

    (a) Once the Convention has entered into force for the United 
States, any person may request the Secretary to certify that a 
Convention adoption in an incoming case finalized in the United States 
was done in accordance with the Convention.
    (b) Persons seeking such a certification must submit the following 
documentation:
    (1) A copy of the certificate issued by a consular officer pursuant 
to 22 CFR 42.24(j) certifying that the granting of custody of the child 
has occurred in compliance with the Convention;
    (2) An official copy of the adoption court's order granting the 
final adoption; and
    (3) Such additional documentation and information as the Secretary 
may request at the Secretary's discretion.
    (c) If a person seeking the certification described in paragraph (a) 
of this section fails to submit all the documentation and information 
required pursuant to paragraph (b) of this section within 120 days of 
the Secretary's request, the Department may consider the request 
abandoned.
    (d) The Secretary may issue the certification if the Secretary, in 
the Secretary's discretion, is satisfied that the adoption was made in 
compliance with the Convention. The Secretary may decline to issue a 
certification, including to a party to the adoption, in the Secretary's 
discretion. A certification will not be issued to a non-party requestor 
unless the requestor demonstrates that the certification is needed to 
obtain a legal benefit or for purposes of a legal proceeding, as 
determined by the Secretary in the Secretary's discretion.
    (e) A State court's final adoption decree, when based upon the 
certificate issued by a consular officer pursuant to 22 CFR 42.24(j), 
certifying that the grant of custody of the child has occurred in 
compliance with the Convention, or upon its determination that the 
requirements of Article 17 of the Convention have been met constitutes 
the certification of the adoption under Article 23 of the Convention.



Sec. Sec.  97.6-97.7  [Reserved]



PART 98_INTERCOUNTRY ADOPTION_CONVENTION RECORD PRESERVATION--Table of Contents



Sec.
98.1 Definitions.
98.2 Preservation of Convention records.

    Authority: Convention on Protection of Children and Co-operation in 
Respect of Intercountry Adoption (done at The Hague, May 29, 1993), S. 
Treaty Doc. 105-51 (1998); 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); 
Intercountry Adoption Act of 2000, 42 U.S.C. 14901-14954.

    Source: 71 FR 8164, Feb. 15, 2006, unless otherwise noted.



Sec.  98.1  Definitions.

    As used in this part:
    (a) Convention means the Convention on Protection of Children and 
Co-operation in Respect of Intercountry Adoption, done at The Hague on 
May 29, 1993.
    (b) Convention record means any item, collection, or grouping of 
information contained in an electronic or physical document, an 
electronic collection of data (including the information contained in 
the Case Registry), a photograph, an audio or video tape, or any other 
information storage medium of any type whatever that contains 
information about a specific past, current, or prospective adoption 
covered by the Convention (regardless of whether the adoption was made 
final) that has been generated or received by the Secretary or the 
Department of Homeland Security (DHS). Convention

[[Page 443]]

record includes a record, generated or received by the Secretary or DHS, 
about a specific adoption case involving two Convention countries other 
than the United States in connection with which the Secretary or DHS 
performs a Central Authority function.
    (c) Such other terms as are defined in 22 CFR 96.2 shall have the 
meaning given to them therein.



Sec.  98.2  Preservation of Convention records.

    Once the Convention has entered into force for the United States, 
the Secretary and DHS will preserve, or require the preservation of, 
Convention records for a period of not less than 75 years. For 
Convention records involving a child who is immigrating to the United 
States and Convention records involving a child who is emigrating from 
the United States, the 75-year period shall start on the date that the 
Secretary or DHS generates or receives the first Convention record 
related to the adoption of the child. For an intercountry adoption or 
placement for adoption involving two Convention countries other than the 
United States, the 75-year period shall start on the date that the 
Secretary or DHS generates or receives the first Convention record in 
connection with the performance of a Central Authority function.



PART 99_REPORTING ON CONVENTION AND NON-CONVENTION ADOPTIONS 
OF EMIGRATING CHILDREN--Table of Contents



Sec.
99.1 Definitions.
99.2 Reporting requirements for adoption cases involving children 
          emigrating from the United States.
99.3 [Reserved]

    Authority: The Convention on Protection of Children and Co-operation 
in Respect of Intercountry Adoption (done at The Hague, May 29, 1993), 
S. Treaty Doc. 105-51 (1998); 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); 
The Intercountry Adoption Act of 2000, 42 U.S.C. 14901-14954.

    Source: 72 FR 9854, Mar. 6, 2007, unless otherwise noted.



Sec.  99.1  Definitions.

    As used in this part, the term:
    (a) Convention means the Convention on Protection of Children and 
Co-operation in Respect of Intercountry Adoption done at The Hague on 
May 29, 1993.
    (b) Such other terms as are defined in 22 CFR 96.2 shall have the 
meaning given to them therein.



Sec.  99.2  Reporting requirements for adoption cases involving children 
emigrating from the United States.

    (a) Once the Convention has entered into force for the United 
States, an agency (including an accredited agency and temporarily 
accredited agency), person (including an approved person), public 
domestic authority, or other adoption service provider providing 
adoption services in a case involving the emigration of a child from the 
United States must report information to the Secretary in accordance 
with this section if it is identified as the reporting provider in 
accordance with paragraph (b) of this section.
    (b) In a Convention case in which an accredited agency, temporarily 
accredited agency, or approved person is providing adoption services, 
the primary provider is the reporting provider. In any other Convention 
case, or in a non-Convention case, the reporting provider is the agency, 
person, public domestic authority, or other adoption service provider 
that is providing adoption services in the case, if it is the only 
provider of adoption services. If there is more than one provider of 
adoption services in a non-Convention case, the reporting provider is 
the one that has child placement responsibility, as evidenced by the 
following factors:
    (1) Entering into placement contracts with prospective adoptive 
parent(s) to provide child referral and placement;
    (2) Accepting custody from a birthparent or other legal guardian for 
the purpose of placement for adoption;
    (3) Assuming responsibility for liaison with a foreign government or 
its designees with regard to arranging an adoption; or
    (4) Receiving information from, or sending information to a foreign 
country about a child that is under consideration for adoption.
    (c) A reporting provider, as identified in paragraph (b) of this 
section, must

[[Page 444]]

report the following identifying information to the Secretary for each 
outgoing case within 30 days of learning that the case involves 
emigration of a child from the United States to a foreign country:
    (1) Name, date of birth of child, and place of birth of child;
    (2) The U.S. State from which the child is emigrating;
    (3) The country to which the child is immigrating;
    (4) The U.S. State where the final adoption is taking place, or the 
U.S. State where legal custody for the purpose of adoption is being 
granted and the country where the final adoption is taking place; and
    (5) Its name, address, phone number, and other contact information.
    (d) A reporting provider, as identified in paragraph (b) of this 
section, must report any changes to information previously provided as 
well as the following milestone information to the Secretary for each 
outgoing case within 30 days of occurrence:
    (1) Date case determined to involve emigration from the United 
States (generally the time the child is matched with adoptive parents);
    (2) Date of U.S. final adoption or date on which custody for the 
purpose of adoption was granted in United States;
    (3) Date of foreign final adoption if custody for purpose of 
adoption was granted in the United States, to the extent practicable; 
and
    (4) Any additional information when requested by the Secretary in a 
particular case.



Sec.  99.3  [Reserved]

[[Page 445]]



                SUBCHAPTER K_ECONOMIC AND OTHER FUNCTIONS





PART 101_ECONOMIC AND COMMERCIAL FUNCTIONS--Table of Contents



Sec.
101.1 Protection of American interests.
101.2 Promotion of American interests.
101.3 Services for American businessmen and organizations.
101.4 Economic and commercial reporting.

    Authority: Sec. 302, 60 Stat. 1001; 22 U.S.C. 842.

    Source: 22 FR 10871, Dec. 27, 1957, unless otherwise noted.



Sec.  101.1  Protection of American interests.

    Officers of the Foreign Service shall protect the rights and 
interests of the United States in its international agricultural, 
commercial, and financial relations. In pursuance of this duty, they 
shall:
    (a) Guard against the infringement of rights of American citizens in 
matters relating to commerce and navigation which are based on custom, 
international law, or treaty.
    (b) Observe, report on, and, whenever possible, endeavor to remove 
discriminations against American agricultural, commercial, and 
industrial interests in other countries.
    (c) Protect the national commercial reputation of the United States.



Sec.  101.2  Promotion of American interests.

    Officers of the Foreign Service shall further the agricultural and 
commercial interests of the United States:
    (a) By carefully studying and reporting on the potentialities of 
their districts as a market for American products or as a competitor of 
American products in international trade.
    (b) By investigating and submitting World Trade Directory Reports on 
the general standing and distributing capacity of foreign firms within 
their districts.
    (c) By preparing and submitting upon request trade lists of 
commercial firms within their districts.
    (d) By keeping constantly on the alert for and submitting immediate 
reports on concrete trade opportunities.
    (e) By endeavoring to create, within the scope of the duties to 
which they are assigned, a demand for American products within their 
districts.
    (f) By facilitating and reporting on proposed visits of alien 
businessmen to the United States.
    (g) By taking appropriate steps to facilitate the promotion of such 
import trade into the United States as the economic interests of the 
United States may require.



Sec.  101.3  Services for American businessmen and organizations.

    Officers of the Foreign Service shall perform the following-
enumerated services for American citizens and business organizations in 
connection with the conduct of foreign trade subject to such rules and 
limitations thereon as may be prescribed by the Secretary of State:
    (a) Answering trade inquiries.
    (b) Lending direct assistance to American citizens and business 
firms.
    (c) Encouraging the establishment of, and supporting, American 
chambers of commerce.
    (d) Preparing themselves for and, upon instructions, performing 
trade conference work when in the United States on leave, or otherwise.



Sec.  101.4  Economic and commercial reporting.

    Officers of the Foreign Service shall prepare and submit reports in 
connection with their duties of protecting and promoting American 
agricultural commercial interests and for the purpose of providing 
general information on economic developments within their respective 
districts for the Departments of State, Agriculture, and Commerce, and 
for other governmental departments and agencies, in accordance with such 
rules and regulations as the Secretary of State may prescribe.

[[Page 446]]



   PART 103_REGULATIONS FOR IMPLEMENTATION OF THE CHEMICAL WEAPONS CONVENTION 
   AND THE CHEMICAL WEAPONS CONVENTION IMPLEMENTATION ACT OF 1998 
   ON THE TAKING OF SAMPLES AND ON ENFORCEMENT OF REQUIREMENTS CONCERNING 
   RECORDKEEPING AND INSPECTIONS--Table of Contents



                            Subpart A_General

Sec.
103.1 Purpose.
103.2 Definitions.

                            Subpart B_Samples

103.3 Requirement to provide a sample.

           Subpart C_Recordkeeping and Inspection Requirements

103.4 General.
103.5 Violations.
103.6 Penalties.
103.7 Initiation of administrative enforcement proceedings.
103.8 Final agency decision after administrative proceedings.
103.9 Final agency decision after settlement negotiations.
103.10 Appeals.
103.11 Payment of final assessment.
103.12 Reporting a violation.

    Authority: 22 U.S.C. 2651a; 22 U.S.C. 6701 et seq.; Pub. L. 114-74, 
129 Stat. 584.

    Source: 64 FR 73813, Dec. 30, 1999, unless otherwise noted.



                            Subpart A_General



Sec.  103.1  Purpose.

    This part is intended to implement sections 304(f)(1) and 501 of the 
Chemical Weapons Convention Implementation Act of 1998 (Act), 22 U.S.C. 
6701 et seq. The Chemical Weapons Convention Regulations promulgated by 
the Department of Commerce, 15 CFR Parts 710 through 722, also implement 
sections of the Act.



Sec.  103.2  Definitions.

    The following are definitions of terms as used in this part only.
    Bureau of Export Administration (BXA). The Bureau of Export 
Administration of the United States Department of Commerce, including 
the Office of Export Administration and the Office of Export 
Enforcement.
    Chemical Weapons Convention (CWC or Convention). The Convention on 
the Prohibition of the Development, Production, Stockpiling and Use of 
Chemical Weapons and on Their Destruction, and its annexes opened for 
signature on January 13, 1993, and entered into force on April 29, 1997.
    CWCIA. The Chemical Weapons Convention Implementation Act of 1998. 
(22 U.S.C. 6701 et seq.)
    CWCR. The Chemical Weapons Convention Regulations promulgated by the 
Department of Commerce. (15 CFR parts 710 through 722.)
    Executive Director. The Executive Director, Office of the Legal 
Adviser, U.S. Department of State.
    Facility agreement. A written agreement or arrangement between a 
State Party to the Convention and the Organization for the Prohibition 
of Chemical Weapons relating to a specific facility subject to on-site 
verification pursuant to Articles IV, V, and VI of the Convention.
    Final decision. A decision or order assessing a civil penalty, or 
otherwise disposing of or dismissing a case, which is not subject to 
further administrative review under this part, but which may be subject 
to collection proceedings or judicial review in an appropriate federal 
court as authorized by law.
    Host Team. The U.S. Government team that accompanies the Inspection 
Team during a CWC inspection to which this part applies.
    Host Team Leader. The head of the U.S. Government team that hosts 
and accompanies the Inspection Team during a CWC inspection to which 
this part applies.
    Inspection assistant. An individual designated by the Technical 
Secretariat to assist inspectors in an inspection, such as medical, 
security and administrative personnel and interpreters.
    Inspection Team. The group of inspectors and inspection assistants 
assigned by the Director-General of the OPCW's Technical Secretariat to 
conduct a particular inspection.

[[Page 447]]

    Lead agency. The executive department or agency responsible for 
implementation of the CWC declaration and inspection requirements for 
specified facilities. The lead agencies are the Department of Defense 
(DOD) for facilities owned and operated by DOD (including those operated 
by contractors to the agency), and those facilities leased to and 
operated by DOD (including those operated by contractors to the agency); 
the Department of Energy (DOE) for facilities owned and operated by DOE 
(including those operated by contractors to the agency), and those 
facilities leased to and operated by DOE (including those operated by 
contractors to the agency), including the National Laboratories and 
components of the nuclear weapons complex; and the Department of 
Commerce (DOC) for all facilities that are not owned and operated by or 
leased to and operated by DOD, DOE or other U.S. Government agencies. 
Other departments and agencies that have notified the United States 
National Authority of their decision to be excluded from the CWCR shall 
also have lead agency responsibilities for facilities that are owned or 
operated by (including those operated by contractors to the agency), or 
that are leased to or operated by, those other departments and agencies 
(including those operated by contractors to the agency).
    Office of Chemical and Biological Weapons Conventions. The office in 
the Bureau of Arms Control of the United States Department of State that 
includes the United States National Authority Coordinating Staff.
    Organization for the Prohibition of Chemical Weapons (OPCW). The 
entity established by the Convention to achieve the object and purpose 
of the Convention, to ensure the implementation of its provisions, 
including those for international verification of compliance with it, 
and to provide a forum for consultation and cooperation among States 
Parties.
    Party. The United States Department of State and any person named as 
a respondent under this part.
    Perimeter. In case of a challenge inspection, the external boundary 
of the site, defined by either geographic coordinates or description on 
a map.
    Person. Any individual, corporation, partnership, firm, association, 
trust, estate, public or private institution, any State or any political 
subdivision thereof, or any political entity within a State, any foreign 
government or nation or any agency, instrumentality or political 
subdivision of any such government or nation, or other entity located in 
the United States.
    Respondent. Any person named as the subject of a letter of intent to 
charge, or a Notice of Violation and Assessment (NOVA) and proposed 
order.
    Secretary. The Secretary of State.
    Technical Secretariat. The Technical Secretariat of the Organization 
for the Prohibition of Chemical Weapons established by the Chemical 
Weapons Convention.
    United States National Authority. The Department of State serving as 
the national focal point for effective liaison with the Organization for 
the Prohibition of Chemical Weapons and States Parties to the Convention 
and implementing the provisions of the CWCIA in coordination with an 
interagency group designated by the President consisting of the 
Secretary of Defense, the Attorney General, the Secretary of Commerce, 
the Secretary of Energy, the Chairman of the Joint Chiefs of Staff and 
the heads of agencies considered necessary or advisable by the 
President, or their designees. The Secretary of State is the Director of 
the United States National Authority.



                            Subpart B_Samples



Sec.  103.3  Requirement to provide a sample.

    (a) Voluntary provision of a sample. The Host Team Leader will 
notify appropriate site representatives of any request by an Inspection 
Team to take a sample. At the request of the appropriate site 
representative, this notification will be in writing. A site 
representative may volunteer to provide a sample to the Inspection Team, 
or may communicate to the Host Team Leader any reason for which the 
representative believes a sample should not be required.
    (b) Notification of requirement to provide a sample. If a sample is 
not provided pursuant to paragraph (a) of this

[[Page 448]]

section, the Host Team Leader will notify, in writing, the owner or 
operator, occupant or agent in charge of an inspected premises of any 
requirement, under paragraph (c) or (e) of this section, to provide a 
sample pursuant to a request, made in accordance with paragraph (k) of 
this section, of an Inspection Team of the Technical Secretariat.
    (c) Requirement to provide a sample. Pursuant to section 304(f)(1) 
of the CWCIA, unless a lead agency advises the United States National 
Authority pursuant to paragraph (d) of this section, the owner or 
operator, occupant or agent in charge of the premises to be inspected is 
hereby required to provide a sample pursuant to a request, made in 
accordance with paragraph (k) of this section, of an Inspection Team of 
the Technical Secretariat that a sample be taken in accordance with the 
applicable provisions contained in the Chemical Weapons Convention and 
the CWCIA.
    (d) Consultations with the United States National Authority. After 
consulting with the Host Team Leader, a lead agency that finds that any 
of the following conditions, as modified pursuant to paragraph (j) of 
this section if applicable, may not have been satisfied shall promptly 
advise the United States National Authority, which, in coordination with 
the interagency group designated by the President in section 2 of 
Executive Order 13128, shall make a decision:
    (1) The taking of a sample is consistent with the inspection aims 
under the Convention and with its Confidentiality Annex;
    (2) The taking of a sample does not unnecessarily hamper or delay 
the operation of a facility or affect its safety, and is arranged so as 
to ensure the timely and effective discharge of the Inspection Team's 
functions with the least possible inconvenience and disturbance to the 
facility;
    (3) The taking of a sample is consistent with the applicable 
facility agreement. In particular:
    (i) Any sample will be taken at sampling points agreed to in the 
relevant facility agreement; and
    (ii) Any sample will be taken according to procedures agreed to in 
the relevant facility agreement;
    (4) In the absence of a facility agreement, due consideration is 
given to existing sampling points used by the owner or operator, 
occupant or agent in charge of the premises, consistent with any 
procedures developed pursuant to the CWCR (15 CFR parts 710 through 
722);
    (5) The taking of a sample does not affect the safety of the 
premises and will be consistent with safety regulations established at 
the premises, including those for protection of controlled environments 
within a facility and for personal safety;
    (6) The taking of a sample does not pose a threat to the national 
security interests of the United States; and
    (7) The taking of a sample is consistent with any conditions 
negotiated pursuant to paragraph (j) of this section, if applicable.
    (e) Determination by United States National Authority. (1) If, after 
being advised by the lead agency pursuant to paragraph (d) of this 
section, the United States National Authority, in coordination with the 
interagency group designated by the President to implement the 
provisions of the CWCIA, determines that all of the conditions of 
paragraph (d) are satisfied and that a sample shall be required, then 
the owner or the operator, occupant or agent in charge of the premises 
shall provide a sample pursuant to a request of the Inspection Team of 
the Technical Secretariat.
    (2) If, however, after being advised by the lead agency pursuant to 
paragraph (d) of this section, the United States National Authority, in 
coordination with the interagency group designated by the President to 
implement the provisions of the CWCIA, determines that any of the 
conditions of paragraph (d) are not satisfied and that a sample shall 
not be required, then the owner or the operator, occupant or agent in 
charge of the premises shall not be required to provide a sample 
pursuant to a request of the Inspection Team of the Technical 
Secretariat.
    (f) Person to take a sample. If a sample is required, the owner or 
the operator,

[[Page 449]]

occupant or agent in charge of the inspected premises will determine 
whether the sample will be taken by a representative of the premises, 
the Inspection Team, or any other individual present. The owner or the 
operator, occupant or agent in charge of the inspected premises may 
elect to have a representative present during the taking of a sample.
    (g) Requirement that samples remain in the United States. No sample 
collected in the United States pursuant to an inspection permitted by 
the CWCIA may be transferred for analysis to any laboratory outside the 
territory of the United States.
    (h) Handling of samples. Samples will be handled in accordance with 
the Convention, the CWCIA, other applicable law, and the provisions of 
any applicable facility agreement.
    (i) Failure to comply with this section. Failure by any person to 
comply with this section may be treated as a violation of section 306 of 
the Act and section 103.5(a).
    (j) Conditions that restrict sampling activities during challenge 
inspections. During challenge inspections within the inspected premises 
the Host Team may negotiate conditions that restrict activities 
regarding sampling, e.g., conditions that restrict where, when, and how 
samples are taken, whether samples are removed from the site, and how 
samples are analyzed.
    (k) Format of Inspection Team request. It is the policy of the 
United States Government that Inspection Team requests for samples 
should be in written form from the head of the Inspection Team. When 
necessary, before a sample is required to be provided, the Host Team 
Leader should seek a written request from the head of the Inspection 
Team.
    (l) Requirement to provide a sample in the band around the outside 
of the perimeter during a challenge inspection. In a band, not to exceed 
a width of 50 meters, around the outside of the perimeter of the 
inspected site, the Inspection Team, during a challenge inpsection, may 
take wipes, air, soil or effluent samples where either:
    (1) There is consent; or
    (2) Such activity is authorized by a search warrant obtained 
pursuant to section 305(b)(4) of the CWCIA.



           Subpart C_Recordkeeping and Inspection Requirements



Sec.  103.4  General.

    This subpart implements the enforcement of the civil penalty 
provisions of section 501 of the Chemical Weapons Convention 
Implementation Act of 1998 (CWCIA), and sets forth relevant 
administrative proceedings by which such violations are adjudicated. 
Both the Department of State (in this subpart), and the Department of 
Commerce (in part 719 of the CWCR at 15 CFR parts 710 through 722) are 
involved in the implementation and enforcement of section 501.



Sec.  103.5  Violations.

    (a) Refusal to permit entry or inspection. No person may willfully 
fail or refuse to permit entry or inspection, or disrupt, delay or 
otherwise impede an inspection, authorized by the CWCIA.
    (b) Failure to establish or maintain records. No person may 
willfully fail or refuse:
    (1) To establish or maintain any record required by the CWCIA or the 
Chemical Weapons Convention Regulations (CWCR, 15 CFR parts 710 through 
722) of the Department of Commerce; or
    (2) To submit any report, notice, or other information to the United 
States Government in accordance with the CWCIA or CWCR; or
    (3) To permit access to or copying of any record that is exempt from 
disclosure under the CWCIA or the CWCR.



Sec.  103.6  Penalties.

    (a) Civil penalties--(1) Civil penalty for refusal to permit entry 
or inspection. Any person that is determined to have willfully failed or 
refused to permit entry or inspection, or to have willfully disrupted, 
delayed or otherwise impeded an authorized inspection, as set forth in 
Sec.  103.5(a), shall pay a civil penalty in an amount not to exceed 
$39,693 for each violation. Each day the violation continues constitutes 
a separate violation.
    (2) Civil penalty for failure to establish or maintain records. Any 
person that is

[[Page 450]]

determined to have willfully failed or refused to establish or maintain 
any record, or to submit any report, notice, or other information 
required by the CWCIA or the CWCR, or to permit access to or copying of 
any record exempt from disclosure under the CWCIA or CWCR as set forth 
in Sec.  103.5(b), shall pay a civil penalty in an amount not to exceed 
$7,939 for each violation.
    (b) Criminal penalties. Any person that knowingly violates the CWCIA 
by willfully failing or refusing to permit entry or inspection; or by 
disrupting, delaying or otherwise impeding an inspection authorized by 
the CWCIA; or by willfully failing or refusing to establish or maintain 
any required record, or to submit any required report, notice, or other 
information; or by willfully failing or refusing to permit access to or 
copying of any record exempt from disclosure under the CWCIA or CWCR, 
shall, in addition to or in lieu of any civil penalty that may be 
imposed, be fined under Title 18 of the United States Code, or be 
imprisoned for not more than one year, or both.
    (c) Other remedial action--(1) Injunction. The United States may, in 
a civil action, obtain an injunction against:
    (i) The conduct prohibited under 18 U.S.C. 229 or 229C; or
    (ii) The preparation or solicitation to engage in conduct prohibited 
under 18 U.S.C. 229 or 229D.
    (2) In addition, the United States may, in a civil action, restrain 
any violation of section 306 or section 405 of the CWCIA, or compel the 
taking of any action required by or under the CWCIA or the Convention.

[64 FR 73813, Dec. 30, 1999, as amended at 81 FR 36793, June 8, 2016; 82 
FR 3170, Jan. 11, 2017; 83 FR 237, Jan. 3, 2018; 84 FR 9959, Mar. 19, 
2019; 85 FR 2022, Jan. 14, 2020; 86 FR 7806, Feb. 2, 2021]



Sec.  103.7  Initiation of administrative enforcement proceedings.

    (a) Issuance of Notice of Violation and Assessment (NOVA). The 
Director of the Office of Export Enforcement, Bureau of Export 
Administration, Department of Commerce, may request that the Secretary 
initiate an administrative enforcement proceeding under this section and 
15 CFR 719.5. If the request is in accordance with applicable law, the 
Secretary will initiate an administrative enforcement proceeding by 
issuing a Notice of Violation and Assessment (NOVA). The Office of Chief 
Counsel for Export Administration, Department of Commerce shall serve 
the NOVA as directed by the Secretary.
    (b) Content of NOVA. The NOVA shall constitute a formal complaint, 
and will set forth the basis for the issuance of the proposed order. It 
will set forth the alleged violation(s) and the essential facts with 
respect to the alleged violation(s), reference the relevant statutory, 
regulatory or other provisions, and state the amount of the civil 
penalty to be assessed. The NOVA will inform the respondent of the right 
to request a hearing pursuant to paragraph (e) of this section and the 
CWCR (15 CFR parts 710 through 722) at 15 CFR 719.6, inform the 
respondent that failure to request such a hearing shall result in the 
proposed order becoming final and unappealable on signature of the 
Secretary of State, and provide payment instructions. A copy of the 
regulations that govern the administrative proceedings will accompany 
the NOVA.
    (c) Proposed order. A proposed order shall accompany every NOVA. It 
will briefly set forth the substance of the alleged violation(s) and the 
statutory, regulatory or other provisions violated. It will state the 
amount of the civil penalty to be assessed.
    (d) Notice. The Secretary shall notify, via the Department of 
Commerce, the respondent (or respondent's agent for service of process 
or attorney) of the initiation of administrative proceedings by sending, 
via first class mail, facsimile, or by personal delivery, the relevant 
documents.
    (e) Time to answer. If the respondent wishes to contest the NOVA and 
proposed order issued by the Secretary, the respondent must request a 
hearing in writing within 15 days from the date of the NOVA. If the 
respondent requests a hearing, the respondent must answer the NOVA 
within 30 days from the date of the request for hearing. The request for 
hearing and answer must be filed with the Administrative Law Judge 
(ALJ), along with a copy of the NOVA and proposed order, and served

[[Page 451]]

on the Office of Chief Counsel for Export Administration, Department of 
Commerce, and any other address(es) specified in the NOVA, in accordance 
with 15 CFR 719.8.
    (f) Content of answer. The respondent's answer must be responsive to 
the NOVA and proposed order, and must fully set forth the nature of the 
respondent's defense(s). The answer must specifically admit or deny each 
separate allegation in the NOVA; if the respondent is without knowledge, 
the answer will so state and will operate as a denial. Failure to deny 
or controvert a particular allegation will be deemed an admission of 
that allegation. The answer must also set forth any additional or new 
matter the respondent believes supports a defense or claim of 
mitigation. Any defense or partial defense not specifically set forth in 
the answer shall be deemed waived, and evidence thereon may be refused, 
except for good cause shown.
    (g) English required. The request for hearing, answer, and all other 
papers and documentary evidence must be submitted in English.
    (h) Waiver. The failure of the respondent to file a request for a 
hearing and an answer within the times provided constitutes a waiver of 
the respondent's right to appear and contest the allegations set forth 
in the NOVA and proposed order. If no hearing is requested and no answer 
is provided, the Secretary will sign the proposed order, which shall, 
upon signature, become final and unappealable.
    (i) Administrative procedures. The regulations that govern the 
administrative procedures that apply when a hearing is requested are set 
forth in the CWCR at 15 CFR part 719.



Sec.  103.8  Final agency decision after administrative proceedings.

    (a) Review of initial decision--(1) Petition for review. Any party 
may, within 7 days of the Administrative Law Judge's (ALJ) certification 
of the initial decision and order, petition the Secretary for review of 
the initial decision. A petition for review shall be addressed to and 
served on the Executive Director of the Office of the Legal Adviser, 
U.S. Department of State, 2201 C Street, N.W., Room 5519, Washington 
D.C. 20520, and shall also be served on the Chief Counsel for Export 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, N.W., Room H-3839, Washington, D.C. 20230, and on 
the respondent. Petitions for review may be filed only on one or more of 
the following grounds:
    (i) That a necessary finding of fact is omitted, erroneous or not 
supported by substantial evidence of record;
    (ii) That a necessary legal conclusion or finding is contrary to 
law;
    (iii) That a prejudicial procedural error has occurred; or
    (iv) That the decision or the extent of sanctions is arbitrary, 
capricious or an abuse of discretion.
    (2) Content of petition for review. The petition must specifically 
set forth the grounds on which review is requested and be supported by 
citations to the record, statutes, regulations, and principal 
authorities.
    (3) Decision to review. Review of the initial decision by the 
Secretary is discretionary, and is not a matter of right. The Secretary 
shall accept or decline review of the initial decision and order within 
3 days after a petition for review is filed. If no such petition is 
filed, the Secretary may, on his or her own initiative, notify the 
parties within 10 days after the ALJ's certification of the initial 
decision and order that he or she intends to exercise his or her 
discretion to review the initial decision.
    (4) Effect of decision to review. The initial decision is stayed 
until further order of the Secretary upon a timely petition for review, 
or upon action to review taken by the Secretary on his or her own 
initiative.
    (5) Review declined. If the Secretary declines to exercise 
discretionary review, such order, and the resulting final agency 
decision, will be served on all parties personally, by overnight mail, 
or by registered or certified mail, return receipt requested. The 
Secretary need not give reasons for declining review.
    (6) Review accepted. If the Secretary grants a petition for review 
or decides to review the initial decision on his or her own initiative, 
he or she will issue an order confirming that acceptance and specifying 
any issues to be briefed

[[Page 452]]

by all parties within 10 days after the order. Briefing shall be limited 
to the issues specified in the order. Only those issues specified in the 
order will be considered by the Secretary. The parties may, within 5 
days after the filing of any brief of the issues, file and serve a reply 
to that brief. The Department of Commerce shall review all written 
submissions, and, based on the record, make a recommendation to the 
Secretary as to whether the ALJ's initial decision should be modified or 
vacated. The Secretary will make a final decision within 30 days after 
the ALJ's certification of the initial decision and order.
    (b) Final decision. Unless the Secretary, within 30 days after the 
date of the ALJ's certification of the initial decision and order, 
modifies or vacates the decision and order, with or without conditions, 
the ALJ's initial decision and order shall become effective as the final 
decision and order of the United States Government. If the Secretary 
does modify or vacate the initial decision and order, that decision and 
order of the Secretary shall become the final decision and order of the 
United States Government. The final decision and order shall be served 
on the parties and will be made available to the public.
    (c) Computation of time for the purposes of this section. In 
computing any period of time prescribed or allowed by this section, the 
day of the act, event, or default from which the designated period of 
time begins to run is not included. The last day of the period is 
computed to be included unless it is a Saturday, a Sunday, or a legal 
holiday (as defined in Rule 6(a) of the Federal Rules of Civil 
Procedure), in which case the period runs until the end of the next day 
that is neither a Saturday, a Sunday, nor a legal holiday. Intermediate 
Saturdays, Sundays, and legal holidays are excluded from the computation 
when the period of time prescribed or allowed is 7 days or less.



Sec.  103.9  Final agency decision after settlement negotiations.

    (a) Settlements based on letter of intent to charge--(1) Approval of 
settlement. Pursuant to Sec.  719.5(b) of the CWCR (15 CFR parts 710 
through 722), the Department of Commerce may notify a respondent by 
letter of the intent to charge. If, following the issuance of such a 
letter of intent to charge, the Department of Commerce and respondent 
reach an agreement to settle a case, the Department of Commerce will 
recommend the proposed settlement to the Secretary. If the recommended 
settlement is in accordance with applicable law the Secretary will 
approve and sign it. No action is required by the ALJ in cases where the 
Secretary approves and signs such a settlement agreement and order.
    (2) Refusal to approve settlement. If the Secretary refuses to 
approve the recommended settlement, the Secretary will notify the 
parties and the case will proceed as though no settlement proposal had 
been made.
    (b) Settlements following issuance of a NOVA--(1) Approval of 
settlement. When the Department of Commerce and respondent reach an 
agreement to settle a case after administrative proceedings have been 
initiated before an ALJ, the Department of Commerce will recommend the 
settlement to the Secretary of State. If the recommended settlement is 
in accordance with applicable law, the Secretary will approve and sign 
it. If the Secretary approves the settlement, the Secretary shall notify 
the ALJ that the case is withdrawn from adjudication.
    (2) Refusal to approve settlement. If the Secretary of State refuses 
to approve the recommended settlement, the Secretary will notify the 
parties of the disapproval, and the case will proceed as though no 
settlement proposal had been made.
    (c) Scope of settlement. Any respondent who agrees to an order 
imposing any administrative sanction does so solely for the purpose of 
resolving the claims in the administrative enforcement proceeding 
brought pursuant to this part. This reflects the fact that the 
Government officials involved have neither the authority nor the 
responsibility for initiating, conducting, settling, or otherwise 
disposing of criminal proceedings. That authority and responsibility is 
vested in the Attorney General and the Department of Justice.
    (d) Finality. Cases that are settled may not be reopened or 
appealed.

[[Page 453]]



Sec.  103.10  Appeals.

    Any person adversely affected by a final order respecting an 
assessment may, within 30 days after the final order is issued, file a 
petition in the Court of Appeals for the District of Columbia Circuit or 
for any other circuit in which the person resides or transacts business, 
to appeal the order.



Sec.  103.11  Payment of final assessment.

    (a) Time for payment. Full payment of the civil penalty must be made 
within 30 days of the date upon which the final order becomes effective, 
or within the time specified in the order. Payment shall be made in the 
manner specified in the NOVA.
    (b) Enforcement of order. The Secretary, through the Attorney 
General, may file suit in an appropriate district court if necessary to 
enforce compliance with a final order issued pursuant to this part. This 
suit will include a claim for interest at current prevailing rates from 
the date payment was due or ordered or, if an appeal was filed pursuant 
to Sec.  103.10, from the date of final judgment.
    (c) Offsets. The amount of any civil penalty imposed by a final 
order may be deducted from any sum(s) owed by the United States to a 
respondent.



Sec.  103.12  Reporting a violation.

    If a person learns that a violation of the Convention, the CWCIA, 
this part, or the CWCR (15 CFR parts 710 through 722) has occurred or 
may occur, that person may notify: United States National Authority, 
Office of Chemical and Biological Weapons Conventions, Bureau of Arms 
Control, U.S. Department of State, Washington, DC 20520, Telephone: 
(703) 235-1204 or toll-free (877) CWC-NACS ((877) 292-6227), Facsimile: 
(703) 235-1065.



PART 104_INTERNATIONAL TRAFFICKING IN PERSONS: INTERAGENCY COORDINATION 
OF ACTIVITIES AND SHARING OF INFORMATION--Table of Contents



Sec.
104.1 Coordination of implementation of the Trafficking Victims 
          Protection Act of 2000, as amended.
104.2 Sharing of information regarding international trafficking in 
          persons.

    Authority: 22 U.S.C. 7103(f)(5); Executive Order 13257 (as amended 
by Executive Order 13333).

    Source: 70 FR 59655, Oct. 13, 2005, unless otherwise noted. 
Redesignated at 71 FR 12132, Mar. 9, 2006.



Sec.  104.1  Coordination of implementation of the Trafficking Victims 
Protection Act of 2000, as amended.

    The Director of the Office to Monitor and Combat Trafficking in 
Persons of the Department of State, who is the Chairperson of the Senior 
Policy Operating Group of the President's Interagency Task Force to 
Monitor and Combat Trafficking in Persons, shall call meetings of the 
Senior Policy Operating Group on a regular basis to coordinate 
activities of Federal departments and agencies regarding policies 
(including grants and grant policies) involving the international 
trafficking in persons and the implementation of the Trafficking Victims 
Protection Act of 2000, as amended.



Sec.  104.2  Sharing of information regarding international 
trafficking in persons.

    Each Federal Department or agency represented on the Senior Policy 
Operating Group shall, to the extent permitted by law, share information 
on all matters relating to grants, grant policies, or other significant 
actions regarding the international trafficking in persons. In its 
coordinating role, the Senior Policy Operating Group shall establish 
appropriate mechanisms to effect such information sharing.



                         SUBCHAPTER L [RESERVED]



[[Page 454]]



         SUBCHAPTER M_INTERNATIONAL TRAFFIC IN ARMS REGULATIONS





PART 120_PURPOSE AND DEFINITIONS--Table of Contents



Sec.
120.1 General authorities, receipt of licenses, and ineligibility.
120.2 Designation of defense articles and defense services.
120.3 Policy on designating or determining defense articles and services 
          on the U.S. Munitions List.
120.4 Commodity jurisdiction.
120.5 Relation to regulations of other agencies; export of items subject 
          to the EAR.
120.6 Defense article.
120.7 Significant military equipment.
120.8 Major defense equipment.
120.9 Defense service.
120.10 Technical data.
120.11 Public domain.
120.12 Directorate of Defense Trade Controls.
120.13 United States.
120.14 Person.
120.15 U.S. person.
120.16 Foreign person.
120.17 Export.
120.18 Temporary import.
120.19 Reexport.
120.20 License or other approval.
120.21 Manufacturing license agreement.
120.22 Technical assistance agreement.
120.23 Distribution agreement.
120.24 Port Directors.
120.25 Empowered Official.
120.26 Presiding Official.
120.27 U.S. criminal statutes.
120.28 Listing of forms referred to in this subchapter.
120.29 Missile Technology Control Regime.
120.30 [Reserved]
120.31 North Atlantic Treaty Organization.
120.32 Major non-NATO ally.
120.33 Defense Trade Cooperation Treaty between the United States and 
          Australia.
120.34 Defense Trade Cooperation Treaty between the United States and 
          the United Kingdom.
120.35 Australia Implementing Arrangement.
120.36 United Kingdom Implementing Arrangement.
120.37 Foreign ownership and foreign control.
120.38 Maintenance levels.
120.39 Regular employee.
120.40 Affiliate.
120.41 Specially designed.
120.42 Subject to the Export Administration Regulations (EAR).
120.43 [Reserved]
120.44 Foreign defense article or defense service.
120.45 End-items, components, accessories, attachments, parts, firmware, 
          software, systems, and equipment.
120.46 Classified.
120.50 Release.
120.51 Retransfer.
120.52-120.53 [Reserved]
120.54 Activities that are not exports, reexports, retransfers, or 
          temporary imports.
120.55 Access Information.

    Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 
U.S.C. 2752, 2778, 2797); 22 U.S.C. 2794; 22 U.S.C. 2651a; Pub. L. 105-
261, 112 Stat. 1920; Pub. L. 111-266; Section 1261, Pub. L. 112-239; 
E.O. 13637, 78 FR 16129.

    Source: 58 FR 39283, July 22, 1993, unless otherwise noted.



Sec.  120.1  General authorities, receipt of licenses, and ineligibility.

    (a) Section 38 of the Arms Export Control Act (22 U.S.C. 2778), as 
amended, authorizes the President to control the export and import of 
defense articles and defense services. The statutory authority of the 
President to promulgate regulations with respect to exports of defense 
articles and defense services is delegated to the Secretary of State by 
Executive Order 13637. This subchapter implements that authority, as 
well as other relevant authorities in the Arms Export Control Act (22 
U.S.C. 2751 et seq.). By virtue of delegations of authority by the 
Secretary of State, these regulations are primarily administered by the 
Deputy Assistant Secretary of State for Defense Trade Controls, Bureau 
of Political-Military Affairs.
    (b)(1) Authorized officials. All authorities administered by the 
Deputy Assistant Secretary of State for Defense Trade Controls pursuant 
to this subchapter may be exercised at any time by the Under Secretary 
of State for Arms Control and International Security or the Assistant 
Secretary of State for Political-Military Affairs.
    (2) The Deputy Assistant Secretary of State for Defense Trade 
Controls supervises the Directorate of Defense Trade Controls, which is 
comprised of the following offices:

[[Page 455]]

    (i) The Office of Defense Trade Controls Licensing and the Director, 
Office of Defense Trade Controls Licensing, which have responsibilities 
related to licensing or other approvals of defense trade, including 
references under parts 120, 123, 124, 125, 126, 129, and 130 of this 
subchapter.
    (ii) The Office of Defense Trade Controls Compliance and the 
Director, Office of Defense Trade Controls Compliance, which have 
responsibilities related to violations of law or regulation and 
compliance therewith, including references contained in parts 122, 126, 
127, 128, and 130 of this subchapter, and that portion under part 129 of 
this subchapter pertaining to registration.
    (iii) The Office of Defense Trade Controls Policy and the Director, 
Office of Defense Trade Controls Policy, which have responsibilities 
related to the general policies of defense trade, including references 
under parts 120 and 126 of this subchapter, and the commodity 
jurisdiction procedure under part 120 of this subchapter.
    (c) Receipt of licenses and eligibility. (1) A U.S. person may 
receive a license or other approval pursuant to this subchapter. A 
foreign person may not receive such a license or other approval, except 
as follows:
    (i) A foreign governmental entity in the U.S. may receive a license 
or other approval;
    (ii) A foreign person may receive a reexport or retransfer approval; 
or
    (iii) A foreign person may receive a prior approval for brokering 
activities.
    A request for a license or other approval by a U.S. person or by a 
person referred to in paragraphs (c)(1)(i) and (c)(1)(iii) of this 
section will be considered only if the applicant has registered with the 
Directorate of Defense Trade Controls pursuant to part 122 or 129 of 
this subchapter, as appropriate.
    (2) Persons who have been convicted of violating the U.S. criminal 
statutes enumerated in Sec.  120.27, who have been debarred pursuant to 
part 127 or 128 of this subchapter, who are subject to indictment or are 
otherwise charged (e.g., charged by criminal information in lieu of 
indictment) with violating the U.S. criminal statutes enumerated in 
Sec.  120.27, who are ineligible to contract with or to receive a 
license or other form of authorization to import defense articles or 
defense services from any agency of the U.S. Government, who are 
ineligible to receive an export license or other approval from any other 
agency of the U.S. Government, or who are subject to a Department of 
State policy of denial, suspension, or revocation under Sec.  126.7(a) 
of this subchapter, are generally ineligible to be involved in 
activities regulated under the subchapter.
    (d) The exemptions provided in this subchapter do not apply to 
transactions in which the exporter, any party to the export (see Sec.  
126.7(e) of this subchapter), any source or manufacturer, broker or 
other participant in the brokering activities, is generally ineligible 
as set forth in paragraph (c)(2) of this section, unless prior written 
authorization has been granted by the Directorate of Defense Trade 
Controls.

[78 FR 52684, Aug. 26, 2013, as amended at 79 FR 8084, Feb. 11, 2014]



Sec.  120.2  Designation of defense articles and defense services.

    The Arms Export Control Act (22 U.S.C. 2778(a) and 2794(7)) provides 
that the President shall designate the articles and services deemed to 
be defense articles and defense services for purposes of import or 
export controls. The President has delegated to the Secretary of State 
the authority to control the export and temporary import of defense 
articles and services. The items designated by the Secretary of State 
for purposes of export and temporary import control constitute the U.S. 
Munitions List specified in part 121 of this subchapter. Defense 
articles on the U.S. Munitions List specified in part 121 of this 
subchapter that are also subject to permanent import control by the 
Attorney General on the U.S. Munitions Import List enumerated in 27 CFR 
part 447 are subject to temporary import controls administered by the 
Secretary of State. Designations of defense articles and defense 
services are made by the Department of State with the concurrence of the 
Department of Defense. The scope of the U.S. Munitions List shall be 
changed only by amendments made pursuant to section 38 of the Arms 
Export Control Act

[[Page 456]]

(22 U.S.C. 2778). For a designation or determination on whether a 
particular item is enumerated on the U.S. Munitions List, see Sec.  
120.4 of this subchapter.

[78 FR 22752, Apr. 16, 2013]



Sec.  120.3  Policy on designating or determining defense articles 
and services on the U.S. Munitions List.

    (a) For purposes of this subchapter, a specific article or service 
may be designated a defense article (see Sec.  120.6 of this subchapter) 
or defense service (see Sec.  120.9 of this subchapter) if it:
    (1) Meets the criteria of a defense article or defense service on 
the U.S. Munitions List; or
    (2) Provides the equivalent performance capabilities of a defense 
article on the U.S. Munitions List.
    (b) For purposes of this subchapter, a specific article or service 
shall be determined in the future as a defense article or defense 
service if it provides a critical military or intelligence advantage 
such that it warrants control under this subchapter.

    Note to paragraphs (a) and (b): An article or service determined in 
the future pursuant to this subchapter as a defense article or defense 
service, but not currently on the U.S. Munitions List, will be placed in 
U.S. Munitions List Category XXI until the appropriate U.S. Munitions 
List category has been amended to provide the necessary entry.

    (c) A specific article or service is not a defense article or 
defense service for purposes of this subchapter if it:
    (1) Is determined to be under the jurisdiction of another department 
or agency of the U.S. Government (see Sec.  120.5 of this subchapter) 
pursuant to a commodity jurisdiction determination (see Sec.  120.4 of 
this subchapter) unless superseded by changes to the U.S. Munitions List 
or by a subsequent commodity jurisdiction determination; or
    (2) Meets one of the criteria of Sec.  120.41(b) of this subchapter 
when the article is used in or with a defense article and specially 
designed is used as a control criteria (see Sec.  120.41 of this 
subchapter).

    Note to Sec.  120.3: The intended use of the article or service 
after its export (i.e., for a military or civilian purpose), by itself, 
is not a factor in determining whether the article or service is subject 
to the controls of this subchapter.

[78 FR 22753, Apr. 16, 2013]



Sec.  120.4  Commodity jurisdiction.

    (a) The commodity jurisdiction procedure is used with the U.S. 
Government if doubt exists as to whether an article or service is 
covered by the U.S. Munitions List. It may also be used for 
consideration of a redesignation of an article or service currently 
covered by the U.S. Munitions List. The Department must provide notice 
to Congress at least 30 days before any item is removed from the U.S. 
Munitions List. Upon electronic submission of a Commodity Jurisdiction 
(CJ) Determination Form (Form DS-4076), the Directorate of Defense Trade 
Controls shall provide a determination of whether a particular article 
or service is covered by the U.S. Munitions List. The determination, 
consistent with Sec. Sec.  120.2, 120.3, and 120.4, entails consultation 
among the Departments of State, Defense, Commerce, and other U.S. 
Government agencies and industry in appropriate cases.
    (b) Registration with the Directorate of Defense Trade Controls as 
defined in part 122 of this subchapter is not required prior to 
submission of a commodity jurisdiction request. If it is determined that 
the commodity is a defense article or defense service covered by the 
U.S. Munitions List, registration is required for exporters, 
manufacturers, and furnishers of such defense articles and defense 
services (see part 122 of this subchapter), as well as for brokers who 
are engaged in brokering activities related to such articles or 
services.
    (c) Requests shall identify the article or service, and include a 
history of this product's design, development, and use. Brochures, 
specifications, and any other documentation related to the article or 
service should be submitted as electronic attachments per the 
instructions for Form DS-4076.
    (d)(1) [Reserved]
    (2) A designation that an article or service meets the criteria of a 
defense article or defense service, or provides

[[Page 457]]

the equivalent performance capabilities of a defense article on the U.S. 
Munitions List set forth in this subchapter, is made on a case-by-case 
basis by the Department of State, taking into account:
    (i) The form and fit of the article; and
    (ii) The function and performance capability of the article.
    (3) A designation that an article or service has a critical military 
or intelligence advantage such that it warrants control under this 
subchapter is made, on a case-by-case basis, by the Department of State, 
taking into account:
    (i) The function and performance capability of the article; and
    (ii) The nature of controls imposed by other nations on such items 
(including the Wassenaar Arrangement and other multilateral controls).

    Note 1 to paragraph (d): The form of a commodity is defined by its 
configuration (including the geometrically measured configuration), 
material, and material properties that uniquely characterize it. The fit 
of a commodity is defined by its ability to physically interface or 
connect with or become an integral part of another commodity. The 
function of a commodity is the action or actions it is designed to 
perform. Performance capability is the measure of a commodity's 
effectiveness to perform a designated function in a given environment 
(e.g., measured in terms of speed, durability, reliability, pressure, 
accuracy, efficiency).
    Note 2 to paragraph (d): For software, the form means the design, 
logic flow, and algorithms. The fit is defined by its ability to 
interface or connect with a defense article. The function means the 
action or actions the software performs directly related to a defense 
article or as a standalone application.

    Performance capability means the measure of the software's 
effectiveness to perform a designated function.
    (e) The Directorate of Defense Trade Controls will provide a 
preliminary response within 10 working days of receipt of a complete 
request for commodity jurisdiction. If after 45 days the Directorate of 
Defense Trade Controls has not provided a final commodity jurisdiction 
determination, the applicant may request in writing to the Director, 
Office of Defense Trade Controls Policy that this determination be given 
expedited processing.
    (f) State, Defense and Commerce will resolve commodity jurisdiction 
disputes in accordance with established procedures. State shall notify 
Defense and Commerce of the initiation and conclusion of each case.
    (g) A person may appeal a commodity jurisdiction determination by 
submitting a written request for reconsideration to the Deputy Assistant 
Secretary of State for Defense Trade Controls. The Deputy Assistant 
Secretary's determination of the appeal will be provided, in writing, 
within 30 days of receipt of the appeal. If desired, an appeal of the 
Deputy Assistant Secretary's decision can then be made to the Assistant 
Secretary for Political-Military Affairs.

[58 FR 39283, July 22, 1993, as amended at 71 FR 20536, Apr. 21, 2006; 
75 FR 46843, Aug. 4, 2010; 78 FR 22753, Apr. 16, 2013; 79 FR 8084, Feb. 
11, 2014]



Sec.  120.5  Relation to regulations of other agencies; 
export of items subject to the EAR.

    (a) If a defense article or service is covered by the U.S. Munitions 
List set forth in this subchapter, its export and temporary import is 
regulated by the Department of State (see also Sec.  120.2 of this 
subchapter). The President has delegated the authority to control 
defense articles and services for purposes of permanent import to the 
Attorney General. The defense articles and services controlled by the 
Secretary of State and the Attorney General collectively comprise the 
U.S. Munitions List under the Arms Export Control Act (AECA). As the 
Attorney General exercises independent delegated authority to designate 
defense articles and services for purposes of permanent import controls, 
the permanent import control list administered by the Department of 
Justice has been separately labeled the U.S. Munitions Import List (27 
CFR part 447) to distinguish it from the list set out in this 
subchapter. In carrying out the functions delegated to the Attorney 
General pursuant to the AECA, the Attorney General shall be guided by 
the views of the Secretary of State on matters affecting world peace and 
the external security and foreign policy of the United States. The 
Department of

[[Page 458]]

Commerce regulates the export, reexport, and in-country transfer of 
items on the Commerce Control List and other items subject to its 
jurisdiction, as well as the provision of certain proliferation 
activities, under the Export Administration Regulations (EAR) (15 CFR 
parts 730 through 774). For the relationship of this subchapter to 
regulations of the Department of Energy and the Nuclear Regulatory 
Commission, see Sec.  123.20 of this subchapter.
    (b) A license or other approval (see Sec.  120.20) from the 
Department of State granted in accordance with this subchapter may also 
authorize the export of items subject to the EAR (see Sec.  120.42). An 
exemption (see parts 123, 124, 125, and 126 of this subchapter) may only 
be used to export an item subject to the EAR that is for use in or with 
a defense article and is included in the same shipment as any defense 
article. No exemption under this subchapter may be utilized to export an 
item subject to the EAR if not accompanied by a defense article. 
Separate approval from the Department of Commerce is not required for 
these items. Those items subject to the EAR exported pursuant to a 
Department of State license or other approval would remain under the 
jurisdiction of the Department of Commerce for any subsequent 
transactions. The inclusion of items subject to the EAR on a Department 
of State license or other approval does not change the licensing 
jurisdiction of the items. (See Sec.  123.1(b) of this subchapter for 
guidance on identifying items subject to the EAR in a license 
application to the Department of State.)

[78 FR 22753, Apr. 16, 2013; 78 FR 61754, Oct. 3, 2013, as amended at 81 
FR 54735, Aug. 17, 2016]



Sec.  120.6  Defense article.

    Defense article means any item or technical data designated in Sec.  
121.1 of this subchapter. The policy described in Sec.  120.3 is 
applicable to designations of additional items. This term includes 
technical data recorded or stored in any physical form, models, mockups 
or other items that reveal technical data directly relating to items 
designated in Sec.  121.1 of this subchapter. It also includes forgings, 
castings, and other unfinished products, such as extrusions and machined 
bodies, that have reached a stage in manufacturing where they are 
clearly identifiable by mechanical properties, material composition, 
geometry, or function as defense articles. It does not include basic 
marketing information on function or purpose or general system 
descriptions.

[79 FR 61227, Oct. 10, 2014]



Sec.  120.7  Significant military equipment.

    (a) Significant military equipment means articles for which special 
export controls are warranted because of their capacity for substantial 
military utility or capability.
    (b) Significant military equipment includes:
    (1) Items in Sec.  121.1 of this subchapter which are preceded by an 
asterisk; and
    (2) All classified articles enumerated in Sec.  121.1 of this 
subchapter.

[58 FR 39283, July 22, 1993, as amended at 62 FR 67275, Dec. 24, 1997]



Sec.  120.8  Major defense equipment.

    Pursuant to section 47(6) of the Arms Export Control Act (22 U.S.C. 
2794(6) note), major defense equipment means any item of significant 
military equipment (as defined in Sec.  120.7) on the U.S. Munitions 
List having a nonrecurring research and development cost of more than 
$50,000,000 or a total production cost of more than $200,000,000.



Sec.  120.9  Defense service.

    (a) Defense service means:
    (1) The furnishing of assistance (including training) to foreign 
persons, whether in the United States or abroad in the design, 
development, engineering, manufacture, production, assembly, testing, 
repair, maintenance, modification, operation, demilitarization, 
destruction, processing or use of defense articles;
    (2) The furnishing to foreign persons of any technical data 
controlled under this subchapter (see Sec.  120.10), whether in the 
United States or abroad; or
    (3) Military training of foreign units and forces, regular and 
irregular, including formal or informal instruction of foreign persons 
in the United States or abroad or by correspondence courses, technical, 
educational, or information publications and media of all kinds, 
training aid, orientation,

[[Page 459]]

training exercise, and military advice. (See also Sec.  124.1.)
    (b) [Reserved]

[62 FR 67275, Dec. 24, 1997]



Sec.  120.10  Technical data.

    (a) Technical data means, for purposes of this subchapter:
    (1) Information, other than software as defined in Sec.  
120.10(a)(4), which is required for the design, development, production, 
manufacture, assembly, operation, repair, testing, maintenance or 
modification of defense articles. This includes information in the form 
of blueprints, drawings, photographs, plans, instructions or 
documentation.
    (2) Classified information relating to defense articles and defense 
services on the U.S. Munitions List and 600-series items controlled by 
the Commerce Control List;
    (3) Information covered by an invention secrecy order; or
    (4) Software (see Sec.  120.45(f)) directly related to defense 
articles.
    (b) The definition in paragraph (a) of this section does not include 
information concerning general scientific, mathematical, or engineering 
principles commonly taught in schools, colleges, and universities, or 
information in the public domain as defined in Sec.  120.11 of this 
subchapter or telemetry data as defined in note 3 to Category XV(f) of 
part 121 of this subchapter. It also does not include basic marketing 
information on function or purpose or general system descriptions of 
defense articles.

[58 FR 39283, July 22, 1993, as amended at 61 FR 48831, Sept. 17, 1996; 
71 FR 20537, Apr. 21, 2006; 78 FR 22754, Apr. 16, 2013; 78 FR 61754, 
Oct. 3, 2013; 79 FR 61227, Oct. 10, 2014; 79 FR 27185, May 13, 2014]



Sec.  120.11  Public domain.

    (a) Public domain means information which is published and which is 
generally accessible or available to the public:
    (1) Through sales at newsstands and bookstores;
    (2) Through subscriptions which are available without restriction to 
any individual who desires to obtain or purchase the published 
information;
    (3) Through second class mailing privileges granted by the U.S. 
Government;
    (4) At libraries open to the public or from which the public can 
obtain documents;
    (5) Through patents available at any patent office;
    (6) Through unlimited distribution at a conference, meeting, 
seminar, trade show or exhibition, generally accessible to the public, 
in the United States;
    (7) Through public release (i.e., unlimited distribution) in any 
form (e.g., not necessarily in published form) after approval by the 
cognizant U.S. government department or agency (see also Sec.  
125.4(b)(13) of this subchapter);
    (8) Through fundamental research in science and engineering at 
accredited institutions of higher learning in the U.S. where the 
resulting information is ordinarily published and shared broadly in the 
scientific community. Fundamental research is defined to mean basic and 
applied research in science and engineering where the resulting 
information is ordinarily published and shared broadly within the 
scientific community, as distinguished from research the results of 
which are restricted for proprietary reasons or specific U.S. Government 
access and dissemination controls. University research will not be 
considered fundamental research if:
    (i) The University or its researchers accept other restrictions on 
publication of scientific and technical information resulting from the 
project or activity, or
    (ii) The research is funded by the U.S. Government and specific 
access and dissemination controls protecting information resulting from 
the research are applicable.
    (b) [Reserved]



Sec.  120.12  Directorate of Defense Trade Controls.

    Directorate of Defense Trade Controls, Bureau of Political-Military 
Affairs, Department of State, Washington, DC 20522-0112.

[71 FR 20537, Apr. 21, 2006]

[[Page 460]]



Sec.  120.13  United States.

    United States, when used in the geographical sense, includes the 
several states, the Commonwealth of Puerto Rico, the insular possessions 
of the United States, the District of Columbia, the Commonwealth of the 
Northern Mariana Islands, any territory or possession of the United 
States, and any territory or possession over which the United States 
exercises any powers of administration, legislation, and jurisdiction.



Sec.  120.14  Person.

    Person means a natural person as well as a corporation, business 
association, partnership, society, trust, or any other entity, 
organization or group, including governmental entities. If a provision 
in this subchapter does not refer exclusively to a foreign person (Sec.  
120.16) or U.S. person (Sec.  120.15), then it refers to both.



Sec.  120.15  U.S. person.

    U.S. person means a person (as defined in Sec.  120.14 of this part) 
who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or 
who is a protected individual as defined by 8 U.S.C. 1324b(a)(3). It 
also means any corporation, business association, partnership, society, 
trust, or any other entity, organization or group that is incorporated 
to do business in the United States. It also includes any governmental 
(federal, state or local) entity. It does not include any foreign person 
as defined in Sec.  120.16 of this part.

[71 FR 20537, Apr. 21, 2006]



Sec.  120.16  Foreign person.

    Foreign person means any natural person who is not a lawful 
permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is not a 
protected individual as defined by 8 U.S.C. 1324b(a)(3). It also means 
any foreign corporation, business association, partnership, trust, 
society or any other entity or group that is not incorporated or 
organized to do business in the United States, as well as international 
organizations, foreign governments and any agency or subdivision of 
foreign governments (e.g., diplomatic missions).

[71 FR 20537, Apr. 21, 2006]



Sec.  120.17  Export.

    (a) Export, except as set forth in Sec.  120.54, Sec.  126.16, or 
Sec.  126.17, means:
    (1) An actual shipment or transmission out of the United States, 
including the sending or taking of a defense article out of the United 
States in any manner;
    (2) Releasing or otherwise transferring technical data to a foreign 
person in the United States (a ``deemed export'');
    (3) Transferring registration, control, or ownership of any 
aircraft, vessel, or satellite subject to the ITAR by a U.S. person to a 
foreign person;
    (4) Releasing or otherwise transferring a defense article to an 
embassy or to any of its agencies or subdivisions, such as a diplomatic 
mission or consulate, in the United States;
    (5) Performing a defense service on behalf of, or for the benefit 
of, a foreign person, whether in the United States or abroad; or
    (6) The release of previously encrypted technical data as described 
in Sec.  120.50(a)(3) and (4) of this subchapter.
    (b) Any release in the United States of technical data to a foreign 
person is deemed to be an export to all countries in which the foreign 
person has held or holds citizenship or holds permanent residency.

[81 FR 35616, June 3, 2016, as amended at 84 FR 70892, Dec. 26, 2019]



Sec.  120.18  Temporary import.

    Temporary import, except as set forth in Sec.  120.54, means 
bringing into the United States from a foreign country any defense 
article that is to be returned to the country from which it was shipped 
or taken, or any defense article that is in transit to another foreign 
destination. Temporary import includes withdrawal of a defense article 
from a customs bonded warehouse or foreign trade zone for the purpose of 
returning it to the country of origin or country from which it was 
shipped or

[[Page 461]]

for shipment to another foreign destination. Permanent imports are 
regulated by the Attorney General under the direction of the Department 
of Justice's Bureau of Alcohol, Tobacco, Firearms, and Explosives (see 
27 CFR parts 447, 478, 479, and 555).

[84 FR 70892, Dec. 26, 2019]



Sec.  120.19  Reexport.

    (a) Reexport, except as set forth in Sec.  120.54, Sec.  126.16, or 
Sec.  126.17, means:
    (1) An actual shipment or transmission of a defense article from one 
foreign country to another foreign country, including the sending or 
taking of a defense article to or from such countries in any manner;
    (2) Releasing or otherwise transferring technical data to a foreign 
person who is a citizen or permanent resident of a country other than 
the foreign country where the release or transfer takes place (a 
``deemed reexport''); or
    (3) Transferring registration, control, or ownership of any 
aircraft, vessel, or satellite subject to the ITAR between foreign 
persons.
    (b) Any release outside the United States of technical data to a 
foreign person is deemed to be a reexport to all countries in which the 
foreign person has held or holds citizenship or holds permanent 
residency.

[81 FR 35616, June 3, 2016, as amended at 81 FR 62008, Sept. 8, 2016; 84 
FR 70892, Dec. 26, 2019]



Sec.  120.20  License or other approval.

    License means a document bearing the word ``license'' issued by the 
Deputy Assistant Secretary of State for Defense Trade Controls, or his 
authorized designee, that permits the export, temporary import, or 
brokering of a specific defense article or defense service controlled by 
this subchapter.
    Other approval means a document issued by the Deputy Assistant 
Secretary of State for Defense Trade Controls, or his authorized 
designee, that approves an activity regulated by this subchapter (e.g., 
approvals for brokering activities or retransfer authorizations), or the 
use of an exemption to the license requirements as described in this 
subchapter.

[79 FR 8084, Feb. 11, 2014]



Sec.  120.21  Manufacturing license agreement.

    An agreement (e.g., contract) whereby a U.S. person grants a foreign 
person an authorization to manufacture defense articles abroad and which 
involves or contemplates:
    (a) The export of technical data (as defined in Sec.  120.10) or 
defense articles or the performance of a defense service; or
    (b) The use by the foreign person of technical data or defense 
articles previously exported by the U.S. person. (See part 124 of this 
subchapter).



Sec.  120.22  Technical assistance agreement.

    An agreement (e.g., contract) for the performance of a defense 
service(s) or the disclosure of technical data, as opposed to an 
agreement granting a right or license to manufacture defense articles. 
Assembly of defense articles is included under this section, provided 
production rights or manufacturing know-how are not conveyed. Should 
such rights be transferred, Sec.  120.21 is applicable. (See part 124 of 
this subchapter).



Sec.  120.23  Distribution agreement.

    An agreement (e.g., a contract) to establish a warehouse or 
distribution point abroad for defense articles exported from the United 
States for subsequent distribution to entities in an approved sales 
territory (see part 124 of this subchapter).



Sec.  120.24  Port Directors.

    Port Directors of U.S. Customs and Border Protection means the U.S. 
Customs and Border Protection Port Directors at the U.S. Customs and 
Border Protection Ports of Entry (other than the port of New York, New 
York where their title is the Area Directors).

[70 FR 50959, Aug. 29, 2005]



Sec.  120.25  Empowered Official.

    (a) Empowered Official means a U.S. person who:
    (1) Is directly employed by the applicant or a subsidiary in a 
position having authority for policy or management within the applicant 
organization; and

[[Page 462]]

    (2) Is legally empowered in writing by the applicant to sign license 
applications or other requests for approval on behalf of the applicant; 
and
    (3) Understands the provisions and requirements of the various 
export control statutes and regulations, and the criminal liability, 
civil liability and administrative penalties for violating the Arms 
Export Control Act and the International Traffic in Arms Regulations; 
and
    (4) Has the independent authority to:
    (i) Inquire into any aspect of a proposed export, temporary import, 
or brokering activity by the applicant;
    (ii) Verify the legality of the transaction and the accuracy of the 
information to be submitted; and
    (iii) Refuse to sign any license application or other request for 
approval without prejudice or other adverse recourse.
    (b) For the purposes of a broker who is a foreign person, the 
empowered official may be a foreign person who otherwise meets the 
criteria for an empowered official in paragraph (a) of this section.

[58 FR 39283, July 22, 1993, as amended at 78 FR 52685, Aug. 26, 2013]



Sec.  120.26  Presiding Official.

    Presiding Official means a person authorized by the U.S. Government 
to conduct hearings in administrative proceedings.



Sec.  120.27  U.S. criminal statutes.

    (a) For purposes of this subchapter, the phrase U.S. criminal 
statutes means:
    (1) Section 38 of the Arms Export Control Act (22 U.S.C. 2778);
    (2) Section 11 of the Export Administration Act of 1979 (50 U.S.C. 
app. 2410);
    (3) Section 793, 794, or 798 of title 18, United States Code 
(relating to espionage involving defense or classified information) or 
section 2332d, 2339A, 2339B, 2339C, or 2339D of such title (relating to 
financial transactions with the government of a country designated as a 
country supporting international terrorism, providing material support 
to terrorists or terrorist organizations, financing of terrorism, or 
receiving military-type training from a foreign terrorist organization);
    (4) Section 16 of the Trading with the Enemy Act (50 U.S.C. app. 
16);
    (5) Section 206 of the International Emergency Economic Powers Act 
(relating to foreign assets controls; 50 U.S.C. 1705);
    (6) Section 30A of the Securities Exchange Act of 1934 (15 U.S.C. 
78dd-1) or section 104 of the Foreign Corrupt Practices Act (15 U.S.C. 
78dd-2 or 78dd-3);
    (7) Chapter 105 of title 18, United States Code (relating to 
sabotage);
    (8) Section 4(b) of the Internal Security Act of 1950 (relating to 
communication of classified information; 50 U.S.C. 783(a));
    (9) Sections 57, 92, 101, 104, 222, 224, 225, or 226 of the Atomic 
Energy Act of 1954 (42 U.S.C. 2077, 2122, 2131, 2134, 2272, 2274, 2275, 
and 2276);
    (10) Section 601 of the National Security Act of 1947 (relating to 
intelligence identities protection; 50 U.S.C. 421);
    (11) [Reserved]
    (12) Section 371 of title 18, United States Code (when it involves 
conspiracy to violate any of the statutes listed in this section);
    (13) Sections 3, 4, 5, and 6 of the Intelligence Reform and 
Terrorism Prevention Act of 2004, Public Law 108-458 sections 6903-6906, 
relating to missile systems designed to destroy aircraft (18 U.S.C. 
2332g), prohibitions governing atomic weapons (42 U.S.C. 2122), 
radiological dispersal services (18 U.S.C. 2332h), and variola virus (18 
U.S.C. 175c);
    (14) Sections 2779 and 2780 of title 22, United States Code 
(relating to fees of military sales agents and other payments, and 
transactions with countries supporting acts of international terrorism);
    (15) Section 542 of title 18, United States Code (relating to the 
entry of goods by means of false statements), where the underlying 
offense involves a defense article, including technical data, or 
violations related to the Arms Export Control Act or International 
Traffic in Arms Regulations;
    (16) Section 545 of title 18, United States Code (relating to 
smuggling goods into the United States), where the underlying offense 
involves a defense article, including technical data,

[[Page 463]]

or violations related to the Arms Export Control Act or International 
Traffic in Arms Regulations;
    (17) Section 554 of title 18, United States Code (relating to 
smuggling goods from the United States), where the underlying offense 
involves a defense article, including technical data, or violations 
related to the Arms Export Control Act or International Traffic in Arms 
Regulations; and
    (18) Section 1001 of title 18, United States Code (relating to false 
statements or entries generally), Section 1831 of title 18, United 
States Code (relating to economic espionage), and Section 1832 of title 
18, United States Code (relating to theft of trade secrets) where the 
underlying offense involves a defense article, including technical data, 
or violations related to the Arms Export Control Act or International 
Traffic in Arms Regulations.
    (b) [Reserved]

[58 FR 39283, July 22, 1993, as amended at 71 FR 20537, Apr. 21, 2006; 
78 FR 52685, Aug. 26, 2013]



Sec.  120.28  Listing of forms referred to in this subchapter.

    The forms referred to in this subchapter are available from the 
following government agencies:
    (a) Department of State, Bureau of Political-Military Affairs, 
Directorate of Defense Trade Controls, Washington, DC 20522-0112.
    (1) Application/License for permanent export of unclassified defense 
articles and related technical data (Form DSP-5).
    (2) Statement of Registration (Form DS-2032).
    (3) Application/License for temporary import of unclassified defense 
articles (Form DSP-61).
    (4) Application/License for temporary export of unclassified defense 
articles (Form DSP-73).
    (5) Non-transfer and use certificate (Form DSP-83).
    (6) Application/License for permanent/temporary export or temporary 
import of classified defense articles and related classified technical 
data (Form DSP-85).
    (7) Authority to Export Defense Articles and Defense Services sold 
under the Foreign Military Sales program (Form DSP-94).
    (8) Commodity Jurisdiction (CJ) Determination Form (Form DS-4076).
    (b) Department of Commerce, Bureau of Industry and Security:
    (1) International Import Certificate (Form BIS-645P/ATF-4522).
    (2) Electronic Export Information submitted using U.S. Customs and 
Border Protection's electronic system(s).
    (c) Department of Defense, Defense Security Cooperation Agency: 
Letter of Offer and Acceptance.

[58 FR 39283, July 22, 1993, as amended at 68 FR 61100, Oct. 27, 2003; 
71 FR 20537, Apr. 21, 2006; 75 FR 46844, Aug. 4, 2010; 76 FR 45197, July 
28, 2011; 77 FR 16597, Mar. 21, 2012; 77 FR 22670, Apr. 17, 2012; 82 FR 
17, Jan. 3, 2017]



Sec.  120.29  Missile Technology Control Regime.

    (a) For purposes of this subchapter, Missile Technology Control 
Regime (MTCR) means the policy statement among the United States, the 
United Kingdom, the Federal Republic of Germany, France, Italy, Canada, 
and Japan, announced on April 16, 1987, to restrict sensitive missile-
relevant transfers based on the MTCR Annex, and any amendments thereto.
    (b) The term MTCR Annex means the MTCR Guidelines and the Equipment, 
Software and Technology Annex of the MTCR, and any amendments thereto.
    (c) List of all items on the MTCR Annex. Section 71(a) of the Arms 
Export Control Act (22 U.S.C. 2797) refers to the establishment as part 
of the U.S. Munitions List of a list of all items on the MTCR Annex, the 
export of which is not controlled under Section 6(1) of the Export 
Administration Act of 1979 (50 U.S.C. App. 2405(1)), as amended. MTCR 
Annex items specified in the U.S. Munitions List shall be identified in 
Sec.  121.16 of this subchapter or annotated by the parenthetical 
``(MT)'' at the end of each applicable paragraph.

[78 FR 22754, Apr. 16, 2013; 78 FR 61754, Oct. 3, 2013]



Sec.  120.30  [Reserved]



Sec.  120.31  North Atlantic Treaty Organization.

    North Atlantic Treaty Organization (NATO) is comprised of the 
following

[[Page 464]]

member countries: Albania, Belgium, Bulgaria, Canada, Croatia, Czech 
Republic, Denmark, Estonia, France, Germany, Greece, Hungary, Iceland, 
Italy, Latvia, Lithuania, Luxembourg, The Netherlands, Norway, Poland, 
Portugal, Romania, Slovakia, Slovenia, Spain, Turkey, United Kingdom, 
and the United States.

[77 FR 22670, Apr. 17, 2012]



Sec.  120.32  Major non-NATO ally.

    Major non-NATO ally, as defined in section 644(q) of the Foreign 
Assistance Act of 1961 (22 U.S.C. 2403(q)), means a country that is 
designated in accordance with section 517 of the Foreign Assistance Act 
of 1961 (22 U.S.C. 2321k) as a major non-NATO ally for purposes of the 
Foreign Assistance Act of 1961 and the Arms Export Control Act (22 
U.S.C. 2151 et seq. and 22 U.S.C. 2751 et seq.). The following countries 
are designated as major non-NATO allies: Afghanistan (see Sec.  126.1(g) 
of this subchapter), Argentina, Australia, Bahrain, Egypt, Israel, 
Japan, Jordan, Kuwait, Morocco, New Zealand, Pakistan, the Philippines, 
Republic of Korea, Thailand, and Tunisia. Taiwan shall be treated as 
though it were designated a major non-NATO ally.

[81 FR 66805, Sept. 29, 2016]



Sec.  120.33  Defense Trade Cooperation Treaty between the United States 
and Australia.

    Defense Trade Cooperation Treaty between the United States and 
Australia means the Treaty between the Government of the United States 
of America and the Government of Australia Concerning Defense Trade 
Cooperation, done at Sydney, September 5, 2007. For additional 
information on making exports pursuant to this treaty, see Sec.  126.16 
of this subchapter.

[78 FR 21526, Apr. 11, 2013]



Sec.  120.34  Defense Trade Cooperation Treaty between the United States 
and the United Kingdom.

    Defense Trade Cooperation Treaty between the United States and the 
United Kingdom means the Treaty between the Government of the United 
States of America and the Government of the United Kingdom of Great 
Britain and Northern Ireland Concerning Defense Trade Cooperation, done 
at Washington DC and London, June 21 and 26, 2007. For additional 
information on making exports pursuant to this Treaty, see Sec.  126.17 
of this subchapter.

[77 FR 16597, Mar. 21, 2012]



Sec.  120.35  Australia Implementing Arrangement.

    Australia Implementing Arrangement means the Implementing 
Arrangement Pursuant to the Treaty between the Government of the United 
States of America and the Government of Australia Concerning Defense 
Trade Cooperation, done at Washington, March 14, 2008, as it may be 
amended.

[78 FR 21526, Apr. 11, 2013]



Sec.  120.36  United Kingdom Implementing Arrangement.

    United Kingdom Implementing Arrangement means the Implementing 
Arrangement Pursuant to the Treaty between the Government of the United 
States of America and the Government of the United Kingdom of Great 
Britain and Northern Ireland Concerning Defense Trade Cooperation, done 
at Washington DC, February 14, 2008, as it may be amended.

[77 FR 16597, Mar. 21, 2012]



Sec.  120.37  Foreign ownership and foreign control.

    Foreign ownership means more than 50 percent of the outstanding 
voting securities of the firm are owned by one or more foreign persons 
(as defined in Sec.  120.16). Foreign control means one or more foreign 
persons have the authority or ability to establish or direct the general 
policies or day-to-day operations of the firm. Foreign control is 
presumed to exist where foreign persons own 25 percent or more of the 
outstanding voting securities unless one U.S. person controls an equal 
or larger percentage.

[76 FR 45197, July 28, 2011]



Sec.  120.38  Maintenance levels.

    (a) Organizational-level maintenance (or basic-level maintenance) is 
the first level of maintenance that can be performed ``on-equipment'' 
(directly on

[[Page 465]]

the defense article or support equipment) without specialized training. 
It consists of repairing, inspecting, servicing, calibrating, 
lubricating, or adjusting equipment, as well as replacing minor parts, 
components, assemblies, and line-replaceable spares or units. This 
includes modifications, enhancements, or upgrades that would result in 
improving only the reliability or maintainability of the commodity 
(e.g., an increased mean time between failure (MTBF)) and does not 
enhance the basic performance or capability of the defense article.
    (b) Intermediate-level maintenance is second-level maintenance 
performed ``off-equipment'' (on removed parts, components, or equipment) 
at or by designated maintenance shops or centers, tenders, or field 
teams. It may consist of calibrating, repairing, testing, or replacing 
damaged or unserviceable parts, components, or assemblies. This includes 
modifications, enhancements, or upgrades that would result in improving 
only the reliability or maintainability of the commodity (e.g., an 
increased mean time between failure (MTBF)) and does not enhance the 
basic performance or capability of the defense article.
    (c) Depot-level maintenance is third-level maintenance performed on- 
or off-equipment at or by a major repair facility, shipyard, or field 
team, each with necessary equipment and personnel of requisite technical 
skill. It consists of providing evaluation or repair beyond unit or 
organization capability. This maintenance consists of inspecting, 
testing, calibrating, repairing, overhauling, refurbishing, 
reconditioning, and one-to-one replacing of any defective parts, 
components or assemblies. This includes modifications, enhancements, or 
upgrades that would result in improving only the reliability or 
maintainability of the commodity (e.g., an increased mean time between 
failure (MTBF)) and does not enhance the basic performance or capability 
of the defense article.

[78 FR 40927, July 8, 2013]



Sec.  120.39  Regular employee.

    (a) A regular employee means for purposes of this subchapter:
    (1) An individual permanently and directly employed by the company, 
or
    (2) An individual in a long term contractual relationship with the 
company where the individual works at the company's facilities, works 
under the company's direction and control, works full time and 
exclusively for the company, and executes nondisclosure certifications 
for the company, and where the staffing agency that has seconded the 
individual has no role in the work the individual performs (other than 
providing that individual for that work) and the staffing agency would 
not have access to any controlled technology (other than where 
specifically authorized by a license).
    (b) [Reserved]

[76 FR 28177, May 16, 2011]



Sec.  120.40  Affiliate.

    An affiliate of a registrant is a person that directly, or 
indirectly through one or more intermediaries, controls, or is 
controlled by, or is under common control with, such registrant.

    Note to Sec.  120.40: For purposes of this section, ``control'' 
means having the authority or ability to establish or direct the general 
policies or day-to-day operations of the firm. Control is rebuttably 
presumed to exist where there is ownership of 25 percent or more of the 
outstanding voting securities if no other person controls an equal or 
larger percentage.

[78 FR 52686, Aug. 26, 2013]



Sec.  120.41  Specially designed.

    (a) Except for commodities or software described in paragraph (b) of 
this section, a commodity or software (see Sec.  120.45(f)) is specially 
designed if it:
    (1) As a result of development, has properties peculiarly 
responsible for achieving or exceeding the controlled performance 
levels, characteristics, or functions described in the relevant U.S. 
Munitions List paragraph; or
    (2) Is a part (see Sec.  120.45 (d)), component (see Sec.  
120.45(b)), accessory (see Sec.  120.45(c)), attachment (see Sec.  
120.45(c)), or software for use in or with a defense article.
    (b) For purposes of this subchapter, a part, component, accessory, 
attachment, or software is not specially designed if it:

[[Page 466]]

    (1) Is subject to the EAR pursuant to a commodity jurisdiction 
determination;
    (2) Is, regardless of form or fit, a fastener (e.g., screws, bolts, 
nuts, nut plates, studs, inserts, clips, rivets, pins), washer, spacer, 
insulator, grommet, bushing, spring, wire, or solder;
    (3) Has the same function, performance capabilities, and the same or 
``equivalent'' form and fit as a commodity or software used in or with a 
commodity that:
    (i) Is or was in production (i.e., not in development); and
    (ii) Is not enumerated on the U.S. Munitions List;
    (4) Was or is being developed with knowledge that it is or would be 
for use in or with both defense articles enumerated on the U.S. 
Munitions List and also commodities not on the U.S. Munitions List; or
    (5) Was or is being developed as a general purpose commodity or 
software, i.e., with no knowledge for use in or with a particular 
commodity (e.g., a F/A-18 or HMMWV) or type of commodity (e.g., an 
aircraft or machine tool).

    Note to paragraphs (a) and (b): The term ``commodity'' refers to any 
article, material, or supply, except technology/technical data or 
software.
    Note to paragraph (a)(1): An example of a commodity that as a result 
of development has properties peculiarly responsible for achieving or 
exceeding the controlled performance levels, functions, or 
characteristics in a U.S. Munitions List category would be a swimmer 
delivery vehicle specially designed to dock with a submarine to provide 
submerged transport for swimmers or divers from submarines.
    Note to paragraph (b): The term ``enumerated'' refers to any article 
on the U.S. Munitions List or the Commerce Control List and not in a 
``catch-all'' control. A ``catch-all'' control is one that does not 
refer to specific types of parts, components, accessories, or 
attachments, but rather controls unspecified parts, components, 
accessories, or attachments only if they were specially designed for an 
enumerated item.
    Note 1 to paragraph (b)(3): For the purpose of this definition, 
``production'' means all production stages, such as product engineering, 
manufacture, integration, assembly (mounting), inspection, testing, and 
quality assurance. This includes ``serial production'' where commodities 
have passed production readiness testing (i.e., an approved, 
standardized design ready for large scale production) and have been or 
are being produced on an assembly line for multiple commodities using 
the approved, standardized design.
    Note 2 to paragraph (b)(3): For the purpose of this definition, 
``development'' is related to all stages prior to serial production, 
such as: design, design research, design analyses, design concepts, 
assembly and testing of prototypes, pilot production schemes, design 
data, process of transforming design data into a product, configuration 
design, integration design, layouts.
    Note 3 to paragraph (b)(3): Commodities in ``production'' that are 
subsequently subject to ``development'' activities, such as those that 
would result in enhancements or improvements only in the reliability or 
maintainability of the commodity (e.g., an increased mean time between 
failure (MTBF)), including those pertaining to quality improvements, 
cost reductions, or feature enhancements, remain in ``production.'' 
However, any new models or versions of such commodities developed from 
such efforts that change the basic performance or capability of the 
commodity are in ``development'' until and unless they enter into 
``production.''
    Note 4 to paragraph (b)(3): The form of a commodity is defined by 
its configuration (including the geometrically measured configuration), 
material, and material properties that uniquely characterize it. The fit 
of a commodity is defined by its ability to physically interface or 
connect with or become an integral part of another commodity. The 
function of a commodity is the action or actions it is designed to 
perform. Performance capability is the measure of a commodity's 
effectiveness to perform a designated function in a given environment 
(e.g., measured in terms of speed, durability, reliability, pressure, 
accuracy, efficiency). For software, the form means the design, logic 
flow, and algorithms. The fit is defined by its ability to interface or 
connect with a defense article. The function means the action or actions 
the software performs directly related to a defense article or as a 
standalone application. Performance capability means the measure of the 
software's effectiveness to perform a designated function.
    Note 5 to paragraph (b)(3): With respect to a commodity, 
``equivalent'' means its form has been modified solely for fit purposes.
    Note 1 to paragraphs (b)(4) and (5): For a defense article not to be 
specially designed on the basis of paragraph (b)(4) or (5) of this 
section, documents contemporaneous with its development, in their 
totality, must establish the elements of paragraph (b)(4) or (5). Such 
documents may include concept design information, marketing plans, 
declarations in patent applications, or contracts. Absent such 
documents, the commodity may

[[Page 467]]

not be excluded from being specially designed by either paragraph (b)(4) 
or (5).
    Note 2 to paragraphs (b)(4) and (5): For the purpose of this 
definition, ``knowledge'' includes not only the positive knowledge a 
circumstance exists or is substantially certain to occur, but also an 
awareness of a high probability of its existence or future occurrence. 
Such awareness is inferred from evidence of the conscious disregard of 
facts known to a person and is also inferred from a person's willful 
avoidance of facts.

[78 FR 22754, Apr. 16, 2013; 78 FR 61754, Oct. 3, 2013, as amended at 79 
FR 61227, Oct. 10, 2014]



Sec.  120.42  Subject to the Export Administration Regulations (EAR).

    Items ``subject to the EAR'' are those items listed on the Commerce 
Control List in part 774 of the EAR and all other items that meet the 
definition of that term in accordance with Sec.  734.3 of the EAR. The 
EAR is found at 15 CFR parts 730 through 774.

[78 FR 22755, Apr. 16, 2013]



Sec.  120.43  [Reserved]



Sec.  120.44  Foreign defense article or defense service.

    Foreign defense article or defense service means any article or 
service described on the U.S. Munitions List of non-U.S. origin. Unless 
otherwise provided in this subchapter, the terms defense article and 
defense service refer to both U.S. and foreign origin defense articles 
and defense services described on the U.S. Munitions List. A defense 
article or defense service is determined exclusively in accordance with 
the Arms Export Control Act and this subchapter, regardless of any 
designation (either affirming or contrary) that may be attributed to the 
same article or service by any foreign government or international 
organization.

[78 FR 52686, Aug. 26, 2013]



Sec.  120.45  End-items, components, accessories, attachments, parts, 
firmware, software, systems, and equipment.

    (a) An end-item is a system, equipment, or an assembled article 
ready for its intended use. Only ammunition or fuel or other energy 
source is required to place it in an operating state.
    (b) A component is an item that is useful only when used in 
conjunction with an end-item. A major component includes any assembled 
element that forms a portion of an end-item without which the end-item 
is inoperable. A minor component includes any assembled element of a 
major component.
    (c) Accessories and attachments are associated articles for any 
component, equipment, system, or end-item, and which are not necessary 
for its operation, but which enhance its usefulness or effectiveness.
    (d) A part is any single unassembled element of a major or a minor 
component, accessory, or attachment which is not normally subject to 
disassembly without the destruction or the impairment of designed use.
    (e) Firmware and any related unique support tools (such as 
computers, linkers, editors, test case generators, diagnostic checkers, 
library of functions, and system test diagnostics) directly related to 
equipment or systems covered under any category of the U.S. Munitions 
List are considered as part of the end-item or component. Firmware 
includes but is not limited to circuits into which software has been 
programmed.
    (f) Software includes but is not limited to the system functional 
design, logic flow, algorithms, application programs, operating systems, 
and support software for design, implementation, test, operation, 
diagnosis and repair. A person who intends to export only software 
should, unless it is specifically enumerated in Sec.  121.1 of this 
subchapter (e.g., USML Category XIII(b)), apply for a technical data 
license pursuant to part 125 of this subchapter.
    (g) A system is a combination of parts, components, accessories, 
attachments, firmware, software, equipment, or end-items that operate 
together to perform a function.

    Note to paragraph (g): The industrial standards established by 
INCOSE and NASA provide examples for when commodities and software 
operate together to perform a function as a system. References to these 
standards are included in this note to provide examples for when 
commodities or software operate together to perform a function as a 
system. See the INCOSE standards for what constitutes a system at: 
http://g2sebok.incose.org/app/mss/asset.cfm?ID=INCOSE%20G2SEBOK 
%202.00&ST=F, and in INCOSE SE Handbook

[[Page 468]]

v3.1 2007; ISO/IEC 15288:2008. See the NASA standards for examples of 
what constitutes a system in NASA SE Handbook SP-2007-6105 Rev 1.

    (h) Equipment is a combination of parts, components, accessories, 
attachments, firmware, or software that operate together to perform a 
function of, as, or for an end-item or system. Equipment may be a subset 
of an end-item based on the characteristics of the equipment. Equipment 
that meets the definition of an end-item is an end-item. Equipment that 
does not meet the definition of an end-item is a component, accessory, 
attachment, firmware, or software.

[79 FR 61228, Oct. 10, 2014]



Sec.  120.46  Classified.

    Classified means classified pursuant to Executive Order 13526, and a 
security classification guide developed pursuant thereto or equivalent, 
or to the corresponding classification rules of another government or 
international organization.

[81 FR 87429, Dec. 5, 2016]



Sec.  120.50  Release.

    (a) Technical data is released through:
    (1) Visual or other inspection by foreign persons of a defense 
article that reveals technical data to a foreign person;
    (2) Oral or written exchanges with foreign persons of technical data 
in the United States or abroad;
    (3) The use of access information to cause or enable a foreign 
person, including yourself, to access, view, or possess unencrypted 
technical data; or
    (4) The use of access information to cause technical data outside of 
the United States to be in unencrypted form.
    (b) Authorization for a release of technical data to a foreign 
person is required to provide access information to that foreign person, 
if that access information can cause or enable access, viewing, or 
possession of the unencrypted technical data.

[81 FR 35616, June 3, 2016, as amended at 84 FR 70892, Dec. 26, 2019]



Sec.  120.51  Retransfer.

    (a) Retransfer, except as set forth in Sec.  120.54, Sec.  126.16, 
or Sec.  126.17, means:
    (1) A change in end use or end user, or a temporary transfer to a 
third party, of a defense article within the same foreign country; or
    (2) A release of technical data to a foreign person who is a citizen 
or permanent resident of the country where the release or transfer takes 
place.
    (b) [Reserved]

[81 FR 62008, Sept. 8, 2016, as amended at 84 FR 70892, Dec. 26, 2019]



Sec. Sec.  120.52-120.53  [Reserved]



Sec.  120.54  Activities that are not exports, reexports, retransfers, 
or temporary imports.

    (a) The following activities are not exports, reexports, 
retransfers, or temporary imports:
    (1) Launching a spacecraft, launch vehicle, payload, or other item 
into space.
    (2) Transmitting or otherwise transferring technical data to a U.S. 
person in the United States from a person in the United States.
    (3) Transmitting or otherwise transferring within the same foreign 
country technical data between or among only U.S. persons, so long as 
the transmission or transfer does not result in a release to a foreign 
person or transfer to a person prohibited from receiving the technical 
data.
    (4) Shipping, moving, or transferring defense articles between or 
among the United States as defined in Sec.  120.13 of this subchapter.
    (5) Sending, taking, or storing technical data that is:
    (i) Unclassified;
    (ii) Secured using end-to-end encryption;
    (iii) Secured using cryptographic modules (hardware or software) 
compliant with the Federal Information Processing Standards Publication 
140-2 (FIPS 140-2) or its successors, supplemented by software 
implementation, cryptographic key management, and other procedures and 
controls that are in accordance with guidance provided in current U.S. 
National Institute for Standards and Technology (NIST) publications, or 
by other cryptographic

[[Page 469]]

means that provide security strength that is at least comparable to the 
minimum 128 bits of security strength achieved by the Advanced 
Encryption Standard (AES-128);
    (iv) Not intentionally sent to a person in or stored in a country 
proscribed in Sec.  126.1 of this subchapter or the Russian Federation; 
and
    Note to paragraph (a)(5)(iv): Data in-transit via the internet is 
not deemed to be stored.
    (v) Not sent from a country proscribed in Sec.  126.1 of this 
subchapter or the Russian Federation.
    (b)(1) For purposes of this section, end-to-end encryption is 
defined as:
    (i) The provision of cryptographic protection of data, such that the 
data is not in an unencrypted form, between an originator (or the 
originator's in-country security boundary) and an intended recipient (or 
the recipient's in-country security boundary); and
    (ii) The means of decryption are not provided to any third party.
    (2) The originator and the intended recipient may be the same 
person. The intended recipient must be the originator, a U.S. person in 
the United States, or a person otherwise authorized to receive the 
technical data, such as by a license or other approval pursuant to this 
subchapter.
    (c) The ability to access technical data in encrypted form that 
satisfies the criteria set forth in paragraph (a)(5) of this section 
does not constitute the release or export of such technical data.

[84 FR 70892, Dec. 26, 2019]



Sec.  120.55  Access Information.

    Access information is information that allows access to encrypted 
technical data subject to this subchapter in an unencrypted form. 
Examples include decryption keys, network access codes, and passwords.

[84 FR 70893, Dec. 26, 2019]



PART 121_THE UNITED STATES MUNITIONS LIST--Table of Contents



                         Enumeration of Articles

Sec.
121.1 The United States Munitions List.
121.2-121.15 [Reserved]
121.16 Missile Technology Control Regime Annex.

    Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 
U.S.C. 2752, 2778, 2797); 22 U.S.C. 2651a; Pub. L. 105-261, 112 Stat. 
1920; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.

    Source: 58 FR 39287, July 22, 1993, unless otherwise noted.

                         Enumeration of Articles



Sec.  121.1  The United States Munitions List.

    (a) U.S. Munitions List. In this part, articles, services, and 
related technical data are designated as defense articles or defense 
services pursuant to sections 38 and 47(7) of the Arms Export Control 
Act and constitute the U.S. Munitions List (USML). Changes in 
designations are published in the Federal Register. Paragraphs (a)(1) 
through (3) of this section describe or explain the elements of a USML 
category:
    (1) Composition of U.S. Munitions List categories. USML categories 
are organized by paragraphs and subparagraphs identified 
alphanumerically. They usually start by enumerating or otherwise 
describing end-items, followed by major systems and equipment; parts, 
components, accessories, and attachments; and technical data and defense 
services directly related to the defense articles of that USML category.
    (2) Significant Military Equipment. All items described within a 
USML paragraph or subparagraph that is preceded by an asterisk (*) are 
designated ``Significant Military Equipment'' (see Sec.  120.7 of this 
subchapter). Note that technical data directly related to the 
manufacture or production of a defense article designated as Significant 
Military Equipment (SME) is also designated as SME.
    (3) Missile Technology Control Regime (MTCR) designation. Annotation 
with the parenthetical ``(MT)'' at the end of a USML entry, or inclusion 
in Sec.  121.16, indicates those defense articles that are on the MTCR 
Annex. See Sec.  120.29 of this subchapter.
    (b) Order of review. Articles are controlled on the U.S. Munitions 
List because they are either:
    (1) Enumerated in a category; or

[[Page 470]]

    (2) Described in a ``catch-all'' paragraph that incorporates 
``specially designed'' (see Sec.  120.41 of this subchapter) as a 
control parameter. In order to classify an item on the USML, begin with 
a review of the general characteristics of the item. This should guide 
you to the appropriate category, whereupon you should attempt to match 
the particular characteristics and functions of the article to a 
specific entry within that category. If the entry includes the term 
``specially designed,'' refer to Sec.  120.41 to determine if the 
article qualifies for one or more of the exclusions articulated in Sec.  
120.41(b). An item described in multiple entries should be categorized 
according to an enumerated entry rather than a specially designed catch-
all paragraph. In all cases, articles not controlled on the USML may be 
subject to another U.S. government regulatory agency (see Sec.  120.5 of 
this subchapter, and Supplement No. 4 to part 774 of the Export 
Administration Regulations for guidance on classifying an item subject 
to the EAR).

                Category I--Firearms and Related Articles

    * (a) Firearms using caseless ammunition.
    * (b) Fully automatic firearms to .50 caliber (12.7 mm) inclusive.
    * (c) Firearms specially designed to integrate fire control, 
automatic tracking, or automatic firing (e.g., Precision Guided 
Firearms).

    Note 1 to paragraph (c): Integration does not include only attaching 
to the firearm or rail.

    * (d) Fully automatic shotguns regardless of gauge.
    * (e) Silencers, mufflers, and sound suppressors.
    (f) [Reserved]
    (g) Barrels, receivers (frames), bolts, bolt carriers, slides, or 
sears specially designed for the articles in paragraphs (a), (b), and 
(d) of this category.
    (h) Parts, components, accessories, and attachments, as follows:
    (1) Drum and other magazines for firearms to .50 caliber (12.7 mm) 
inclusive with a capacity greater than 50 rounds, regardless of 
jurisdiction of the firearm, and specially designed parts and components 
therefor;
    (2) Parts and components specially designed for conversion of a 
semi-automatic firearm to a fully automatic firearm;
    (3) Parts and components specially designed for defense articles 
described in paragraphs (c) and (e) of this category; or
    (4) Accessories or attachments specially designed to automatically 
stabilize aim (other than gun rests) or for automatic targeting, and 
specially designed parts and components therefor.
    (i) Technical data (see Sec.  120.10 of this subchapter) and defense 
services (see Sec.  120.9 of this subchapter) directly related to the 
defense articles described in this category and classified technical 
data directly related to items controlled in ECCNs 0A501, 0B501, 0D501, 
and 0E501 and defense services using the classified technical data. (See 
Sec.  125.4 of this subchapter for exemptions.)
    (j)-(w) [Reserved]
    (x) Commodities, software, and technology subject to the EAR (see 
Sec.  120.42 of this subchapter) used in or with defense articles.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles where the purchase documentation 
includes commodities, software, or technology subject to the EAR (see 
Sec.  123.1(b) of this subchapter).
    Note 1 to Category I: The following interpretations explain and 
amplify the terms used in this category:
    (1) A firearm is a weapon not over .50 caliber (12.7 mm) which is 
designed to expel a projectile by the deflagration of propellant;
    (2) A fully automatic firearm or shotgun is any firearm or shotgun 
that shoots, is designed to shoot, or can readily be restored to shoot, 
automatically more than one shot, without manual reloading, by a single 
function of the trigger; and
    (3) Caseless ammunition is firearm ammunition without a cartridge 
case that holds the primer, propellant, and projectile together as a 
unit.

                     Category II--Guns and Armament

    (a) Guns and armament greater than .50 caliber (12.7 mm), as 
follows:
    * (1) Guns, howitzers, artillery, and cannons;
    * (2) Mortars;
    * (3) Recoilless rifles;
    * (4) Grenade launchers; or
    (5) Developmental guns and armament greater than .50 caliber (12.7 
mm) funded by the Department of Defense and specially designed parts and 
components therefor.

    Note 1 to paragraph (a)(5): This paragraph does not control guns and 
armament greater than .50 caliber (12.7 mm):
    (a) in production;
    (b) determined to be subject to the EAR via a commodity jurisdiction 
determination (see Sec.  120.4 of this subchapter); or

[[Page 471]]

    (c) identified in the relevant Department of Defense contract or 
other funding authorization as being developed for both civil and 
military applications.
    Note 2 to paragraph (a)(5): Note 1 to pargraph (a)(5) does not apply 
to defense articles enumerated on the U.S. Munitions List, whether in 
production or development.
    Note 3 to paragraph (a)(5): This provision is applicable to those 
contracts or other funding authorizations that are dated January 23, 
2021, or later.
    Note 1 to paragraph (a): This paragraph does not include: Non-
automatic and non-semi-automatic rifles, carbines, and pistols between 
.50 (12.7 mm) and .72 caliber (18.288 mm) that are controlled on the CCL 
under ECCN 0A501; shotguns controlled on the CCL under ECCN 0A502; black 
powder guns and armaments manufactured between 1890 and 1919 controlled 
on the CCL under ECCN 0A602; or black powder guns and armaments 
manufactured earlier than 1890.
    Note 2 to paragraph (a): Guns and armament when integrated into 
their carrier (e.g., surface vessels, ground vehicles, or aircraft) are 
controlled in the category associated with the carrier. Self-propelled 
guns and armament are controlled in USML Category VII. Towed guns and 
armament and stand-alone guns and armament are controlled under this 
category.

    (b) Flamethrowers with an effective range greater than or equal to 
20 meters.
    (c) [Reserved]
    * (d) Kinetic energy weapon systems specially designed for 
destruction or rendering mission-abort of a target.

    Note 1 to paragraph (d): Kinetic energy weapons systems include but 
are not limited to launch systems and subsystems capable of accelerating 
masses larger than 0.1g to velocities in excess of 1.6 km/s, in single 
or rapid fire modes, using methods such as: Electromagnetic, 
electrothermal, plasma, light gas, or chemical. This does not include 
launch systems and subsystems used for research and testing facilities 
subject to the EAR, which are controlled on the CCL under ECCN 2B232.

    (e) Signature reduction devices specially designed for the guns and 
armament controlled in paragraphs (a), (b), and (d) of this category 
(e.g., muzzle flash suppression devices).
    (f)-(i) [Reserved]
    (j) Parts, components, accessories, and attachments, as follows:
    (1) Gun barrels, rails, tubes, and receivers specially designed for 
the weapons controlled in paragraphs (a) and (d) of this category;
    (2) Sights specially designed to orient indirect fire weapons;
    (3) Breech blocks for the weapons controlled in paragraphs (a) and 
(d) of this category;
    (4) Firing mechanisms for the weapons controlled in paragraphs (a) 
and (d) of this category and specially designed parts and components 
therefor;
    (5) Systems for firing superposed or stacked ammunition and 
specially designed parts and components therefor;
    (6) Servo-electronic and hydraulic elevation adjustment mechanisms;
    (7) Muzzle brakes;
    (8) Bore evacuators;
    (9) Independent ammunition handling systems for the guns and 
armament controlled in paragraphs (a), (b), and (d) of this category;
    (10) Components for independently powered ammunition handling 
systems and platform interface, as follows:
    (i) Mounts;
    (ii) Carriages;
    (iii) Gun pallets;
    (iv) Hydro-pneumatic equilibration cylinders; or
    (v) Hydro-pneumatic systems capable of scavenging recoil energy to 
power howitzer functions;

    Note 1 to paragraph (j)(10): For weapons mounts specially designed 
for surface vessels and special naval equipment, see Category VI. For 
weapons mounts specially designed for ground vehicles, see Category VII.

    (11) Ammunition containers/drums, ammunition chutes, ammunition 
conveyor elements, ammunition feeder systems, and ammunition container/
drum entrance and exit units, specially designed for the guns and 
armament controlled in paragraphs (a), (b), and (d) of this category;
    (12) Systems and equipment for the guns and armament controlled in 
paragraphs (a) and (d) of this category for use in programming 
ammunition, and specially designed parts and components therefor;
    (13) Aircraft/gun interface units to support gun systems with a 
designed rate of fire greater than 100 rounds per minute and specially 
designed parts and components therefor;
    (14) Recoil systems specially designed to mitigate the shock 
associated with the firing process of guns integrated into air platforms 
and specially designed parts and components therefor;
    (15) Prime power generation, energy storage, thermal management, 
conditioning, switching, and fuel-handling equipment, and the electrical 
interfaces between the gun power supply and other turret electric drive 
components specially designed for kinetic weapons controlled in 
paragraph (d) of this category;

[[Page 472]]

    (16) Kinetic energy weapon target acquisition, tracking fire 
control, and damage assessment systems and specially designed parts and 
components therefor; or
    * (17) Any part, component, accessory, attachment, equipment, or 
system that:
    (i) Is classified;
    (ii) Contains classified software; or
    (iii) Is being developed using classified information.

    Note 1 to paragraph (j)(17): ``Classified'' means classified 
pursuant to Executive Order 13526, or predecessor order, and a security 
classification guide developed pursuant thereto or equivalent, or to the 
corresponding classification rules of another government or 
intergovernmental organization.

    (k) Technical data (see Sec.  120.10 of this subchapter) and defense 
services (see Sec.  120.9 of this subchapter) directly related to the 
defense articles described in paragraphs (a), (b), (d), (e), and (j) of 
this category and classified technical data directly related to items 
controlled in ECCNs 0A602, 0B602, 0D602, and 0E602 and defense services 
using the classified technical data. (See Sec.  125.4 of this subchapter 
for exemptions.)
    (l)-(w) [Reserved]
    (x) Commodities, software, and technology subject to the EAR (see 
Sec.  120.42 of this subchapter) used in or with defense articles.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles where the purchase documentation 
includes commodities, software, or technology subject to the EAR (see 
Sec.  123.1(b) of this subchapter).

                  Category III--Ammunition and Ordnance

    (a) Ammunition, as follows:
    * (1) Ammunition that incorporates a projectile controlled in 
paragraph (d)(1) or (3) of this category;
    * (2) Ammunition preassembled into links or belts;
    * (3) Shotgun ammunition that incorporates a projectile controlled 
in paragraph (d)(2) of this category;
    * (4) Caseless ammunition manufactured with smokeless powder;

    Note 1 to paragraph (a)(4): Caseless ammunition is ammunition 
without a cartridge case that holds the primer, propellant, and 
projectile together as a unit.

    * (5) Ammunition, except shotgun ammunition, based on non-metallic 
cases, or non-metallic cases that have only a metallic base, which 
result in a total cartridge mass 80% or less than the mass of a brass- 
or steel-cased cartridge that provides comparable ballistic performance;
    * (6) Ammunition employing pyrotechnic material in the projectile 
base or any ammunition employing a projectile that incorporates tracer 
materials of any type having peak radiance above 710 nm and designed to 
be observed primarily with night vision optical systems;
    * (7) Ammunition for fully automatic firearms that fire superposed 
or stacked projectiles or for guns that fire superposed or stacked 
projectiles;
    * (8) Electromagnetic armament projectiles or billets for weapons 
with a design muzzle energy exceeding 5 MJ;
    * (9) Ammunition, not specified above, for the guns and armaments 
controlled in Category II; or
    (10) Developmental ammunition funded by the Department of Defense 
and specially designed parts and components therefor.

    Note 1 to paragraph (a)(10): This paragraph does not control 
ammunition:
    (a) in production;
    (b) determined to be subject to the EAR via a commodity jurisdiction 
determination (see Sec.  120.4 of this subchapter); or
    (c) identified in the relevant Department of Defense contract or 
other funding authorization as being developed for both civil and 
military applications.
    Note 2 to paragraph (a)(10): Note 1 does not apply to defense 
articles enumerated on the U.S. Munitions List, whether in production or 
development.
    Note 3 to paragraph (a)(10): This provision is applicable to those 
contracts or other funding authorizations that are dated January 23, 
2021, or later.

    (b) Ammunition/ordnance handling equipment specially designed for 
the articles controlled in this category, as follows:
    (1) Belting, linking, and de-linking equipment; or
    (2) Fuze setting devices.
    (c) [Reserved]
    (d) Parts and components for the articles in this category, as 
follows:
    (1) Projectiles that use pyrotechnic tracer materials that 
incorporate any material having peak radiance above 710 nm or are 
incendiary or explosive;
    (2) Shotgun projectiles that are flechettes, incendiary, tracer, or 
explosive;

    Note 1 to paragraph (d)(2): This paragraph does not include 
explosive projectiles specially designed to produce noise for scaring 
birds or other pests (e.g., bird bombs, whistlers, crackers).

    (3) Projectiles of any caliber produced from depleted uranium;
    (4) Projectiles not specified above, guided or unguided, for the 
items controlled in USML Category II, and specially designed parts and 
components therefor (e.g., fuzes, rotating bands, cases, liners, fins, 
boosters);

[[Page 473]]

    (5) Canisters or sub-munitions (e.g., bomblets or minelets), and 
specially designed parts and components therefor, for the guns or 
armament controlled in USML Category II;
    (6) Projectiles that employ tips (e.g., M855A1 Enhanced Performance 
Round (EPR)) or cores regardless of caliber, produced from one or a 
combination of the following: Tungsten, steel, or beryllium copper 
alloy;
    (7) Cartridge cases, powder bags, or combustible cases specially 
designed for the items controlled in USML Category II;
    (8) Non-metallic cases, including cases that have only a metallic 
base, for the ammunition controlled in paragraph (a)(5) of this 
category;
    (9) Cartridge links and belts for fully automatic firearms and guns 
controlled in USML Categories I or II;
    (10) Primers other than Boxer, Berdan, or shotshell types;

    Note 1 to paragraph (d)(10): This paragraph does not control caps or 
primers of any type in use prior to 1890.

    (11) Safing, arming, and fuzing components (to include target 
detection and proximity sensing devices) for the ammunition in this 
category and specially designed parts therefor;
    (12) Guidance and control components for the ammunition in this 
category and specially designed parts therefor;
    (13) Terminal seeker assemblies for the ammunition in this category 
and specially designed parts and components therefor;
    (14) Illuminating flares or target practice projectiles for the 
ammunition controlled in paragraph (a)(9) of this category; or
    * (15) Any part, component, accessory, attachment, equipment, or 
system that:
    (i) Is classified;
    (ii) Contains classified software; or
    (iii) Is being developed using classified information.

    Note 1 to paragraph (d)(15): ``Classified'' means classified 
pursuant to Executive Order 13526, or predecessor order, and a security 
classification guide developed pursuant thereto or equivalent, or to the 
corresponding classification rules of another government or 
intergovernmental organization.

    (e) Technical data (see Sec.  120.10 of this subchapter) and defense 
services (see Sec.  120.9 of this subchapter) directly related to the 
defense articles enumerated in paragraphs (a), (b), and (d) of this 
category and classified technical data directly related to items 
controlled in ECCNs 0A505, 0B505, 0D505, and 0E505 and defense services 
using the classified technical data. (See Sec.  125.4 of this subchapter 
for exemptions.)
    (f)-(w) [Reserved]
    (x) Commodities, software, and technology subject to the EAR (see 
Sec.  120.42 of this subchapter) used in or with defense articles.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles where the purchase documentation 
includes commodities, software, or technology subject to the EAR (see 
Sec.  123.1(b) of this subchapter).
    Note 1 to Category III: This category does not control ammunition 
crimped without a projectile (blank star) and dummy ammunition with a 
pierced powder chamber.
    Note 2 to Category III: This category does not control cartridge and 
shell casings that, prior to export, have been rendered useless beyond 
the possibility of restoration for use as a cartridge or shell casing by 
means of heating, flame treatment, mangling, crushing, cutting, or 
popping.
    Note 3 to Category III: Grenades containing non-lethal or less 
lethal projectiles are under the jurisdiction of the Department of 
Commerce.

   Category IV--Launch Vehicles, Guided Missiles, Ballistic Missiles, 
                  Rockets, Torpedoes, Bombs, and Mines

    * (a) Rockets, space launch vehicles (SLVs), missiles, bombs, 
torpedoes, depth charges, mines, and grenades, as follows:
    (1) Rockets, SLVs, and missiles capable of delivering at least a 
500-kg payload to a range of at least 300 km (MT);
    (2) Rockets, SLVs, and missiles capable of delivering less than a 
500-kg payload to a range of at least 300 km (MT);
    (3) Man-portable air defense systems (MANPADS);
    (4) Anti-tank missiles and rockets;
    (5) Rockets, SLVs, and missiles not meeting the criteria of 
paragraphs (a)(1) through (a)(4) of this category;
    (6) Bombs;
    (7) Torpedoes;
    (8) Depth charges;
    (9) Anti-personnel, anti-vehicle, or anti-armor land mines (e.g., 
area denial devices);
    (10) Anti-helicopter mines;
    (11) Naval mines; or
    (12) Fragmentation and high explosive hand grenades.

    Note 1 to paragraph (a): ``Range'' is the maximum distance that the 
specified rocket system is capable of traveling in the mode of stable 
flight as measured by the projection of its trajectory over the surface 
of the Earth. The maximum capability based on the design characteristics 
of the system, when fully loaded with fuel or propellant, will be taken 
into consideration in determining range. The range for rocket systems 
will be determined independently of any external factors such as 
operational restrictions, limitations imposed by telemetry, data links, 
or

[[Page 474]]

other external constraints. For rocket systems, the range will be 
determined using the trajectory that maximizes range, assuming 
International Civil Aviation Organization (ICAO) standard atmosphere 
with zero wind.
    Note 2 to paragraph (a): ``Payload'' is the total mass that can be 
carried or delivered by the specified rocket, SLV, or missile that is 
not used to maintain flight.
    Note 3 to paragraph (a): This paragraph does not control model and 
high power rockets (as defined in National Fire Protection Association 
Code 1122) and kits thereof made of paper, wood, fiberglass, or plastic 
containing no substantial metal parts and designed to be flown with 
hobby rocket motors that are certified for consumer use. Such rockets 
must not contain active controls (e.g., RF, GPS).
    Note 4 to paragraph (a): ''Mine'' means a munition placed under, on, 
or near the ground or other surface area and designed to be exploded by 
the presence, proximity, or contact of a person or vehicle.

    * (b) Launchers for rockets, SLVs, and missiles, as follows:
    (1) Fixed launch sites and mobile launcher mechanisms for any system 
enumerated in paragraphs (a)(1) and (a)(2) of this category (MT); or
    (2) Fixed launch sites and mobile launcher mechanisms for any system 
enumerated in paragraphs (a)(3) through (a)(5) of this category (e.g., 
launch tables, TOW missile, MANPADS).

    Note 1 to paragraph (b): For controls on non-SLV launcher mechanisms 
for use on aircraft, see USML Category VIII(h).
    Note 2 to paragraph (b): For controls on launcher mechanisms that 
are integrated onto a vessel or ground vehicle, see USML Categories VI 
and VII, respectively.
    Note 3 to paragraph (b): This paragraph does not control parts and 
accessories (e.g., igniters, launch stands) specially designed for 
consumer use with model and high power rockets (as defined in National 
Fire Protection Association Code 1122) and kits thereof made of paper, 
wood, fiberglass, or plastic containing no substantial metal parts and 
designed to be flown with hobby rocket motors that are certified for 
consumer use.

    (c) Apparatus and devices specially designed for the handling, 
control, activation, monitoring, detection, protection, discharge, or 
detonation of the articles enumerated in paragraphs (a) and (b) of this 
category (MT for those systems enumerated in paragraphs (a)(1), (a)(2), 
and (b)(1) of this category).

    Note 1 to paragraph (c): This paragraph includes specialized 
handling equipment (transporters, cranes, and lifts) specially designed 
to handle articles enumerated in paragraphs (a) and (b) of this category 
for preparation and launch from fixed and mobile sites. The equipment in 
this paragraph also includes specially designed robots, robot 
controllers, and robot end-effectors, and liquid propellant tanks 
specially designed for the storage or handling of the propellants 
controlled in USML Category V, CCL ECCNs 1C011, 1C111, and 1C608, or 
other liquid propellants used in the systems enumerated in paragraphs 
(a)(1), (a)(2), or (a)(5) of this category.
    Note 2 to paragraph (c): Aircraft Missile Protection Systems (AMPS) 
are controlled in USML Category XI.

    * (d) Rocket, SLV, and missile power plants, as follows:
    (1) Except as enumerated in paragraph (d)(2) or (d)(3) of this 
category, individual rocket stages for the articles enumerated in 
paragraph (a)(1), (a)(2), or (a)(5) of this category (MT for those 
stages usable in systems enumerated in paragraphs (a)(1) and (a)(2) of 
this category);
    (2) Solid propellant rocket motors, hybrid or gel rocket motors, or 
liquid propellant rocket engines having a total impulse capacity equal 
to or greater than 1.1 x 10\6\ N[middot]s (MT);
    (3) Solid propellant rocket motors, hybrid or gel rocket motors, or 
liquid propellant rocket engines having a total impulse capacity equal 
to or greater than 8.41 x 10\5\ N[middot]s, but less than 1.1 x 10\6\ 
N[middot]s (MT);
    (4) Combined cycle, pulsejet, ramjet, or scramjet engines (MT);
    (5) Air-breathing engines that operate above Mach 4 not enumerated 
in paragraph (d)(4) of this category;
    (6) Pressure gain combustion-based propulsion systems not enumerated 
in paragraphs (d)(4) and (d)(5) of this category; or
    (7) Rocket, SLV, and missile engines and motors, not otherwise 
enumerated in paragraphs (d)(1) through (d)(6) of this category or USML 
Category XIX.

    Note 1 to paragraph (d): This paragraph does not control model and 
high power rocket motors, containing no more than 5 pounds of 
propellant, that are certified for U.S. consumer use as described in 
National Fire Protection Association Code 1125.
    Note 2 to paragraph (d): This paragraph does not control thrusters 
for spacecraft.

    (e)-(f) [Reserved]
    * (g) Non-nuclear warheads for rockets, bombs, and missiles (e.g., 
explosive, kinetic, EMP, thermobaric, shape charge, and fuel air 
explosive (FAE)).
    (h) Systems, subsystems, parts, components, accessories, 
attachments, or associated equipment, as follows:
    (1) Flight control and guidance systems (including guidance sets) 
specially designed for articles enumerated in paragraph (a) of

[[Page 475]]

this category (MT for those articles enumerated in paragraphs (a)(1) and 
(a)(2) of this category);

    Note to paragraph (h)(1): A guidance set integrates the process of 
measuring and computing a vehicle's position and velocity (i.e., 
navigation) with that of computing and sending commands to the vehicle's 
flight control systems to correct the trajectory.

    (2) Seeker systems specially designed for articles enumerated in 
paragraph (a) of this category (e.g., radiofrequency, infrared) (MT for 
articles enumerated in paragraphs (a)(1) and (a)(2) of this category);
    (3) Kinetic kill vehicles and specially designed parts and 
components therefor;
    (4) Missile or rocket thrust vector control systems (MT for those 
thrust vector control systems usable in articles enumerated in paragraph 
(a)(1) of this category);
    (5) MANPADS grip stocks and specially designed parts and components 
therefor;
    (6) Rocket or missile nozzles and nozzle throats, and specially 
designed parts and components therefor (MT for those nozzles and nozzle 
throats usable in systems enumerated in paragraphs (a)(1) and (a)(2) of 
this category);
    (7) Rocket or missile nose tips, nose fairings, or aerospikes, and 
specially designed parts and components therefor (MT for those articles 
enumerated in paragraphs (a)(1) and (a)(2) of this category);
    (8) Re-entry vehicle or warhead heat shields (MT for those re-entry 
vehicles and heat shields usable in systems enumerated in paragraph 
(a)(1) of this category);
    (9) Missile and rocket safing, arming, fuzing, and firing (SAFF) 
components (to include target detection and proximity sensing devices), 
and specially designed parts therefor (MT for those SAFF components 
usable in systems enumerated in paragraph (a)(1) of this category);
    (10) Self-destruct systems specially designed for articles 
enumerated in paragraph (a) of this category (MT for those articles 
enumerated in paragraphs (a)(1) and (a)(2) of this category);
    (11) Separation mechanisms, staging mechanisms, and interstages 
useable for articles enumerated in paragraph (a) of this category, and 
specially designed parts and components therefor (MT for those 
separation mechanisms, staging mechanisms, and interstages usable in 
systems enumerated in paragraph (a)(1) of this category);
    (12) Post-boost vehicles (PBV) (MT);
    (13) Engine or motor mounts specially designed for articles 
enumerated in paragraphs (a) and (b) of this category (MT for those 
articles enumerated in paragraphs (a)(1), (a)(2), and (b)(1) of this 
category);
    (14) Combustion chambers specially designed for articles enumerated 
in paragraphs (a) and (d) of this category and specially designed parts 
and components therefor (MT for those articles enumerated in paragraphs 
(a)(1), (a)(2), (b)(1), and (d)(1) through (d)(5) of this category);
    (15) Injectors specially designed for articles controlled in this 
category (MT for those injectors specially designed which are usable in 
systems enumerated in paragraph (a)(1) of this category);
    (16) Solid rocket motor or liquid engine igniters;
    (17) Re-entry vehicles and specially designed parts and components 
therefor not elsewhere specified in this category (MT);

    Note to paragraph (h)(17): This paragraph does not control 
spacecraft. For controls on spacecraft, see USML Category XV and, if not 
described therein, then CCL ECCN 9A515.

    (18) Specially designed parts and components for articles controlled 
in paragraph (g) not elsewhere specified in this category;
    (19) Penetration aids and specially designed parts and components 
therefor (e.g., physical or electronic countermeasure suites, re-entry 
vehicle replicas or decoys, or submunitions);
    (20) Rocket motor cases and specially designed parts and components 
therefor (e.g., flanges, flange seals, end domes) (MT for those rocket 
motor cases usable in systems enumerated in paragraphs (a)(1) and (a)(2) 
of this category and for specially designed parts and components for 
hybrid rocket motors enumerated in paragraphs (d)(2) and (d)(3) of this 
category);
    (21) Solid rocket motor liners and rocket motor insulation (MT for 
those solid rocket motor liners usable in systems enumerated in 
paragraph (a)(1) of this category or specially designed for systems 
enumerated in paragraph (a)(2) of this category; and rocket motor 
insulation usable in systems enumerated in paragraphs (a)(1) and (a)(2) 
of this category);
    (22) Radomes, sensor windows, and antenna windows specially designed 
for articles enumerated in paragraph (a) of this category (MT for those 
radomes usable in systems enumerated in paragraph (a)(1) of this 
category and for any radomes, sensor windows, or antenna windows 
manufactured as composite structures or laminates specially designed for 
use in the systems and components enumerated in paragraph (a)(1), 
(a)(2), (d)(1), (h)(8), (h)(9), (h)(17), or (h)(25) of this category);
    (23) Rocket or missile payload fairings;
    (24) Rocket or missile launch canisters (MT for those rocket or 
missile launch canisters designed or modified for systems enumerated in 
paragraphs (a)(1) and (a)(2) of this category);
    (25) Fuzes specially designed for articles enumerated in paragraph 
(a) of this category (e.g., proximity, contact, electronic, dispenser 
proximity, airburst, variable time

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delay, or multi-option) (MT for those fuzes usable in systems enumerated 
in paragraph (a)(1) of this category);
    (26) Rocket or missile liquid propellant tanks (MT for those rocket 
or missile liquid propellant tanks usable in systems enumerated in 
paragraph (a)(1) of this category);
    (27) Rocket or missile altimeters specially designed for use in 
articles enumerated in paragraph (a)(1) of this category (MT);
    (28) Pneumatic, hydraulic, mechanical, electro-optical, or 
electromechanical flight control systems (including fly-by-wire systems) 
and attitude control equipment specially designed for use in the rockets 
or missiles enumerated in paragraph (a)(1) of this category (MT for 
these systems which have been designed or modified for those enumerated 
in paragraph (a)(1) of this category);
    (29) Umbilical and interstage electrical connectors specially 
designed for use in the rockets or missiles enumerated in paragraph 
(a)(1) or (a)(2) of this category (MT); or

    Note to paragraph (h)(29): This paragraph also includes electrical 
connectors installed between the systems specified in paragraph (a)(1) 
or (a)(2) of this category and their payload.

    * (30) Any part, component, accessory, attachment, equipment, or 
system that (MT for those articles designated as such):
    (i) Is classified;
    (ii) Contains classified software directly related to defense 
articles in this subchapter or 600 series items subject to the EAR; or
    (iii) Is being developed using classified information.

    Note to paragraph (h)(30): ``Classified'' means classified pursuant 
to Executive Order 13526, or predecessor order, and a security 
classification guide developed pursuant thereto or equivalent, or to the 
corresponding classification rules of another government or 
international organization.

    (i) Technical data (see Sec.  120.10 of this subchapter) and defense 
services (see Sec.  120.9 of this subchapter) directly related to the 
defense articles described in paragraphs (a) through (h) of this 
category and classified technical data directly related to items 
controlled in ECCNs 0A604, 0B604, 0D604, 9A604, 9B604, or 9D604 and 
defense services using the classified technical data. Defense services 
include the furnishing of assistance (including training) to a foreign 
person in the integration of a satellite or spacecraft to a launch 
vehicle, including both planning and onsite support, regardless of the 
jurisdiction, ownership, or origin of the satellite or spacecraft, or 
whether technical data is used. It also includes the furnishing of 
assistance (including training) to a foreign person in the launch 
failure analysis of a launch vehicle, regardless of the jurisdiction, 
ownership, or origin of the launch vehicle, or whether technical data is 
used. (See Sec.  125.4 of this subchapter for exemptions, and Sec.  
124.15 of this subchapter for special export controls for spacecraft and 
spacecraft launches.) (MT for technical data and defense services 
related to articles designated as such.)
    (j)-(w) [Reserved]
    (x) Commodities, software, and technical data subject to the EAR 
(see Sec.  120.42 of this subchapter) used in or with defense articles.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles where the purchase documentation 
includes commodities, software, or technical data subject to the EAR 
(see Sec.  123.1(b) of this subchapter).
    Note to Category IV: If a Missile Technology Control Regime Category 
I item is included in a system, that system will also be considered as a 
Category I item, except when the incorporated item cannot be separated, 
removed, or duplicated.

Category V--Explosives and Energetic Materials, Propellants, Incendiary 
                     Agents, and Their Constituents

    * (a) Explosives, and mixtures thereof, as follows:
    (1) ADNBF (aminodinitrobenzofuroxan or 7-Amino 4,6-
dinitrobenzofurazane-1-oxide) (CAS 97096-78-1);
    (2) BNCP (cis-bis(5-nitrotetrazolato) tetra amine-cobalt (III) 
perchlorate) (CAS 117412-28-9);
    (3) CL-14 (diaminodinitrobenzofuroxan or 5,7-diamino-4,6-
dinitrobenzofurazane-1-oxide) (CAS 117907-74-1);
    (4) CL-20 (HNIW or Hexanitrohexaazaisowurtzitane) (CAS 135285-90-4); 
clathrates of CL-20 (MT for CL-20);
    (5) CP (2-(5-cyanotetrazolato) penta aminecobalt (III) perchlorate) 
(CAS 70247-32-4);
    (6) DADE (1,1-diamino-2,2-dinitroethylene, FOX-7) (CAS 145250-81-3);
    (7) DATB (Diaminotrinitrobenzene) (CAS 1630-08-6);
    (8) DDFP (1,4-dinitrodifurazanopiperazine);
    (9) DDPO (2,6-diamino-3,5-dinitropyrazine-1-oxide, PZO) (CAS 194486-
77-6);
    (10) DIPAM (3,3[min]-Diamino-2,2[min],4,4[min],6,6[min]-
hexanitrobiphenyl or dipicramide) (CAS 17215-44-0);
    (11) DNAN (2,4-Dinitroanisole) (CAS 119-27-7);
    (12) DNGU (DINGU or dinitroglycoluril) (CAS 55510-04-8);
    (13) Furazans, as follows:
    (i) DAAOF (DAAF, DAAFox, or diaminoazoxyfurazan);
    (ii) DAAzF (diaminoazofurazan) (CAS 78644-90-3);
    (iii) ANF (Furazanamine, 4-nitro- or 3-Amino-4-nitrofurazan; or 4-
Nitro-1,2,5-oxadiazol-3-amine; or 4-Nitro-3-furazanamine; CAS 66328-69-
6); or

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    (iv) ANAzF (Aminonitroazofurazan or 1,2,5-Oxadiazol-3-amine, 4-[2-
(4-nitro-1,2,5-oxadiazol-3-yl) diazenyl]; or 1,2,5-Oxadiazol-3-amine, 4-
[(4-nitro-1,2,5-oxadiazol-3-yl)azo]- (9CI); or Furazanamine, 4-
[(nitrofurananyl)azo]-; or 4-[(4-Nitro-1,2,5-oxadiazol-3-yl)azo]-1,2,5-
oxadiazol-3-amine) (CAS 155438-11-2);
    (14) GUDN (Guanylurea dinitramide) FOX-12 (CAS 217464-38-5);
    (15) HMX and derivatives, as follows:
    (i) HMX (Cyclotetramethylenetetranitramine; octahydro-1,3,5,7-
tetranitro-1,3,5,7-tetrazine; 1,3,5,7-tetranitro-1,3,5,7-tetraza-
cyclooctane; octogen, octogene) (CAS 2691-41-0) (MT);
    (ii) Difluoroaminated analogs of HMX; or
    (iii) K-55 (2,4,6,8-tetranitro-2,4,6,8-tetraazabicyclo [3,3,0]-
octanone-3, tetranitrosemiglycouril, or keto-bicyclic HMX) (CAS 130256-
72-3);
    (16) HNAD (hexanitroadamantane) (CAS 143850-71-9);
    (17) HNS (hexanitrostilbene) (CAS 20062-22-0);
    (18) Imidazoles, as follows:
    (i) BNNII (Octohydro-2,5-bis(nitroimino) imidazo [4,5-d]imidazole);
    (ii) DNI (2,4-dinitroimidazole) (CAS 5213-49-0);
    (iii) FDIA (1-fluoro-2,4-dinitroimidazole);
    (iv) NTDNIA (N-(2-nitrotriazolo)-2,4-dinitro-imidazole); or
    (v) PTIA (1-picryl-2,4,5-trinitroimidazole);
    (19) NTNMH (1-(2-nitrotriazolo)-2-dinitromethylene hydrazine);
    (20) NTO (ONTA or 3-nitro-1,2,4-triazol-5-one) (CAS 932-64-9);
    (21) Polynitrocubanes with more than four nitro groups;
    (22) PYX (2,6-Bis(picrylamino)-3,5-dinitropyridine) (CAS 38082-89-
2);
    (23) RDX and derivatives, as follows:
    (i) RDX (cyclotrimethylenetrinitramine), cyclonite, T4, hexahydro-
1,3,5-trinitro-1,3,5-triazine, 1,3,5-trinitro-1,3,5-triaza-cyclohexane, 
hexogen, or hexogene) (CAS 121-82-4) (MT);
    (ii) Keto-RDX (K-6 or 2,4,6-trinitro-2,4,6-triazacyclohexanone) (CAS 
115029-35-1); or
    (iii) Difluoraminated derivative of RDX; 1,3-Dinitro-5,5-
bis(difluoramino)1,3-diazahexane (CAS No. 193021-34-0);
    (24) TAGN (Triaminoguanidinenitrate) (CAS 4000-16-2);
    (25) TATB (Triaminotrinitrobenzene) (CAS 3058-38-6);
    (26) TEDDZ (3,3,7,7-tetrakis(difluoroamine) octahydro-1,5-dinitro-
1,5-diazocine;
    (27) Tetrazines, as follows:
    (i) BTAT (Bis(2,2,2-trinitroethyl)-3,6-diaminotetrazine); or
    (ii) LAX-112 (3,6-diamino-1,2,4,5-tetrazine-1,4-dioxide);
    (28) Tetrazoles, as follows:
    (i) NTAT (nitrotriazolaminotetrazole); or
    (ii) NTNT (1-N-(2-nitrotriazolo)-4-nitrotetrazole);
    (29) Tetryl (trinitrophenylmethylnitramine) (CAS 479-45-8);
    (30) TEX (4,10-Dinitro-2,6,8,12-tetraoxa-4,10-diazaisowurtzitane);
    (31) TNAD (1,4,5,8-tetranitro-1,4,5,8-tetraazadecalin) (CAS 135877-
16-6);
    (32) TNAZ (1,3,3-trinitroazetidine) (CAS 97645-24-4);
    (33) TNGU (SORGUYL or tetranitroglycoluril) (CAS 55510-03-7);
    (34) TNP (1,4,5,8-tetranitro-pyridazino [4,5-d] pyridazine) (CAS 
229176-04-9);
    (35) Triazines, as follows:
    (i) DNAM (2-oxy-4,6-dinitroamino-s-triazine) (CAS 19899-80-0); or
    (ii) NNHT (2-nitroimino-5-nitro-hexahydro-1,3,5 triazine) (CAS 
130400-13-4);
    (36) Triazoles, as follows:
    (i) 5-azido-2-nitrotriazole;
    (ii) ADHTDN (4-amino-3,5-dihydrazino-1,2,4-triazole dinitramide) 
(CAS 1614-08-0);
    (iii) ADNT (1-amino-3,5-dinitro-1,2,4-triazole);
    (iv) BDNTA (Bis(dinitrotriazole)amine);
    (v) DBT (3,3[min]-dinitro-5,5-bi-1,2,4-triazole) (CAS 30003-46-4);
    (vi) DNBT (dinitrobistriazole) (CAS 70890-46-9);
    (vii) NTDNT (1-N-(2-nitrotriazolo) 3,5-dinitro-triazole);
    (viii) PDNT (1-picryl-3,5-dinitrotriazole); or
    (ix) TACOT (tetranitrobenzotriazolobenzotriazole) (CAS 25243-36-1);
    (37) Energetic ionic materials melting between 343 K (70 [deg]C) and 
373 K (100 [deg]C) and with detonation velocity exceeding 6800 m/s or 
detonation pressure exceeding 18 GPa (180 kbar); or
    (38) Explosives, not otherwise enumerated in this paragraph or on 
the CCL in ECCN 1C608, with a detonation velocity exceeding 8700 m/s at 
maximum density or a detonation pressure exceeding 34 Gpa (340 kbar).
    * (b) Propellants, as follows (MT for composite and composite 
modified double-base propellants):
    (1) Any solid propellant with a theoretical specific impulse (see 
paragraph (k)(4) of this category) greater than:
    (i) 240 seconds for non-metallized, non-halogenated propellant;
    (ii) 250 seconds for non-metallized, halogenated propellant; or
    (iii) 260 seconds for metallized propellant;
    (2) Propellants having a force constant of more than 1,200 kJ/Kg;
    (3) Propellants that can sustain a steady-state burning rate more 
than 38 mm/s under standard conditions (as measured in the form of an 
inhibited single strand) of 6.89 Mpa (68.9 bar) pressure and 294K (21 
[deg]C);

[[Page 478]]

    (4) Elastomer-modified cast double-based propellants with 
extensibility at maximum stress greater than 5% at 233 K (-40 [deg]C); 
or
    (5) Other composite and composite modified double-base propellants.
    (c) Pyrotechnics, fuels and related substances, and mixtures 
thereof, as follows:
    (1) Alane (aluminum hydride) (CAS 7784-21-6);
    (2) Carboranes; decaborane (CAS 17702-41-9); pentaborane and 
derivatives thereof (MT);
    (3) Liquid high energy density fuels, as follows (MT):
    (i) Mixed fuels that incorporate both solid and liquid fuels, such 
as boron slurry, having a mass-based energy density of 40 MJ/kg or 
greater; or
    (ii) Other high energy density fuels and fuel additives (e.g., 
cubane, ionic solutions, JP-7, JP-10) having a volume-based energy 
density of 37.5 GJ per cubic meter or greater, measured at 20 [deg]C and 
one atmosphere (101.325 kPa) pressure;

    Note to paragraph (c)(3)(ii): JP-4, JP-8, fossil refined fuels or 
biofuels, or fuels for engines certified for use in civil aviation are 
not included.

    (4) Metal fuels, and fuel or pyrotechnic mixtures in particle form 
whether spherical, atomized, spheroidal, flaked, or ground, manufactured 
from material consisting of 99% or more of any of the following:
    (i) Metals, and mixtures thereof, as follows:
    (A) Beryllium (CAS 7440-41-7) in particle sizes of less than 60 
micrometers (MT); or
    (B) Iron powder (CAS 7439-89-6) with particle size of 3 micrometers 
or less produced by reduction of iron oxide with hydrogen;
    (ii) Fuel mixtures or pyrotechnic mixtures, which contain any of the 
following:
    (A) Boron (CAS 7440-42-8) or boron carbide (CAS 12069-32-8) fuels of 
85% purity or higher and particle sizes of less than 60 micrometers; or
    (B) Zirconium (CAS 7440-67-7), magnesium (CAS 7439-95-4), or alloys 
of these in particle sizes of less than 60 micrometers;
    (iii) Explosives and fuels containing the metals or alloys listed in 
paragraphs (c)(4)(i) and (c)(4)(ii) of this category whether or not the 
metals or alloys are encapsulated in aluminum, magnesium, zirconium, or 
beryllium;
    (5) Fuel, pyrotechnic, or energetic mixtures having any nanosized 
aluminum, beryllium, boron, zirconium, magnesium, or titanium, as 
follows:
    (i) Having particle size less than 200 nm in any direction; and
    (ii) Having 60% or higher purity;
    (6) Pyrotechnic and pyrophoric materials, as follows:
    (i) Pyrotechnic or pyrophoric materials specifically formulated to 
enhance or control the production of radiated energy in any part of the 
IR spectrum; or
    (ii) Mixtures of magnesium, polytetrafluoroethylene and the 
copolymer vinylidene difluoride and hexafluoropropylene (MT);
    (7) Titanium subhydride (TiHn) of stoichiometry equivalent to n = 
0.65-1.68; or
    (8) Hydrocarbon fuels specially formulated for use in flame throwers 
or incendiary munitions containing metal stearates (e.g., octal) or 
palmitates, and M1, M2, and M3 thickeners.
    (d) Oxidizers, as follows:
    (1) ADN (ammonium dinitramide or SR-12) (CAS 140456-78-6) (MT);
    (2) AP (ammonium perchlorate) (CAS 7790-98-9) (MT);
    (3) BDNPN (bis(2,2-dinitropropyl)nitrate) (CAS 28464-24-6);
    (4) DNAD (1,3-dinitro-1,3-diazetidine) (CAS 78246-06-7);
    (5) HAN (Hydroxylammonium nitrate) (CAS 13465-08-2);
    (6) HAP (hydroxylammonium perchlorate) (CAS 15588-62-2);
    (7) HNF (Hydrazinium nitroformate) (CAS 20773-28-8) (MT);
    (8) Hydrazine nitrate (CAS 37836-27-4) (MT);
    (9) Hydrazine perchlorate (CAS 27978-54-7) (MT);
    (10) Inhibited red fuming nitric acid (IRFNA) (CAS 8007-58-7) and 
liquid oxidizers comprised of or containing IRFNA or oxygen difluoride 
(MT for liquid oxidizers comprised of IRFNA); or
    (11) Perchlorates, chlorates, and chromates composited with powdered 
metal or other high energy fuel components controlled under this 
category (MT).
    * (e) Binders, and mixtures thereof, as follows:
    (1) AMMO (azidomethylmethyloxetane and its polymers) (CAS 90683-29-
7);
    (2) BAMO-3-3 (bis(azidomethyl)oxetane and its polymers) (CAS 17607-
20-4);
    (3) BTTN (butanetriol trinitrate) (CAS 6659-60-5) (MT);
    (4) FAMAO (3-difluoroaminomethyl-3-azidomethyloxetane) and its 
polymers;
    (5) FEFO (bis(2-fluoro-2,2-dinitroethyl)formal) (CAS 17003-79-1);
    (6) GAP (glycidyl azide polymer) (CAS 143178-24-9) and its 
derivatives (MT for GAP);
    (7) HTPB (hydroxyl-terminated polybutadiene) with a hydroxyl 
functionality equal to or greater than 2.2 and less than or equal to 
2.4, a hydroxyl value of less than 0.77 meq/g, and a viscosity at 30 
[deg]C of less than 47 poise (CAS 69102-90-5) (MT);
    (8) 4,5 diazidomethyl-2-methyl-1,2,3-triazole (iso-DAMTR) (MT);
    (9) NENAS (nitratoethylnitramine compounds), as follows:
    (i) N-Methyl 2-nitratoethylnitramine (Methyl-NENA) (CAS 17096-47-8) 
(MT);

[[Page 479]]

    (ii) N-Ethyl 2-nitratoethylnitramine (Ethyl-NENA) (CAS 85068-73-1) 
(MT);
    (iii) N-Propyl 2-nitratoethylnitramine (CAS 82486-83-7);
    (iv) N-Butyl-2-nitratoethylnitramine (BuNENA) (CAS 82486-82-6); or
    (v) N-Pentyl 2-nitratoethylnitramine (CAS 85954-06-9);
    (10) Poly-NIMMO (poly nitratomethylmethyoxetane, poly-NMMO, (poly[3-
nitratomethyl-3-methyl oxetane]) (CAS 84051-81-0);
    (11) PNO (Poly(3-nitratooxetane));
    (12) TVOPA 1,2,3-Tris [1,2-bis(difluoroamino)ethoxy]propane; tris 
vinoxy propane adduct (CAS 53159-39-0);
    (13) Polynitrorthocarbonates;
    (14) FPF-1 (poly-2,2,3,3,4,4-hexafluoro pentane-1,5-diolformal) (CAS 
376-90-9);
    (15) FPF-3 (poly-2,4,4,5,5,6,6-heptafluoro-2-trifluoromethyl-3-
oxaheptane-1,7-diolformal);
    (16) PGN (Polyglycidyl nitrate or poly(nitratomethyloxirane); poly-
GLYN); (CAS 27814-48-8);
    (17) N-methyl-p-nitroaniline (MT);
    (18) Low (less than 10,000) molecular weight, alcohol-
functionalized, poly(epichlorohydrin); poly(epichlorohydrindiol); and 
triol; or
    (19) Dinitropropyl based plasticizers, as follows (MT):
    (i) BDNPA (bis (2,2-dinitropropyl) acetal) (CAS 5108-69-0); or
    (ii) BDNPF (bis (2,2-dinitropropyl) formal) (CAS 5917-61-3).
    (f) Additives, as follows:
    (1) Basic copper salicylate (CAS 62320-94-9);
    (2) BHEGA (Bis-(2-hydroxyethyl)glycolamide) (CAS 17409-41-5);
    (3) BNO (Butadienenitrile oxide);
    (4) Ferrocene derivatives, as follows (MT):
    (i) Butacene (CAS 125856-62-4);
    (ii) Catocene (2,2-Bis-ethylferrocenylpropane) (CAS 37206-42-1);
    (iii) Ferrocene carboxylic acids and ferrocene carboxylic acid 
esters;
    (iv) n-butylferrocene (CAS 31904-29-7);
    (v) Ethylferrocene (CAS 1273-89-8);
    (vi) Propylferrocene;
    (vii) Pentylferrocene (CAS 1274-00-6);
    (viii) Dicyclopentylferrocene;
    (ix) Dicyclohexylferrocene;
    (x) Diethylferrocene (CAS 173-97-8);
    (xi) Dipropylferrocene;
    (xii) Dibutylferrocene (CAS 1274-08-4);
    (xiii) Dihexylferrocene (CAS 93894-59-8);
    (xiv) Acetylferrocene (CAS 1271-55-2)/1,1[min]-diacetyl ferrocene 
(CAS 1273-94-5); or
    (xv) Other ferrocene derivatives that do not contain a six carbon 
aromatic functional group attached to the ferrocene molecule (MT if 
usable as rocket propellant burning rate modifier);
    (5) Lead beta-resorcylate (CAS 20936-32-7);
    (6) Lead citrate (CAS 14450-60-3);
    (7) Lead-copper chelates of beta-resorcylate or salicylates (CAS 
68411-07-4);
    (8) Lead maleate (CAS 19136-34-6);
    (9) Lead salicylate (CAS 15748-73-9);
    (10) Lead stannate (CAS 12036-31-6);
    (11) MAPO (tris-1-(2-methyl) aziridinylphosphine oxide) (CAS 57-39-
6); BOBBA-8 (bis(2-methyl aziridinyl)-2-(2-hydroxypropanoxy) propylamino 
phosphine oxide); and other MAPO derivatives (MT for MAPO);
    (12) Methyl BAPO (Bis(2-methyl aziridinyl)methylaminophosphine 
oxide) (CAS 85068-72-0);
    (13) 3-Nitraza-1,5-pentane diisocyanate (CAS 7406-61-9);
    (14) Organo-metallic coupling agents, as follows:
    (i) Neopentyl[diallyl]oxy, tri [dioctyl] phosphatotitanate (CAS 
103850-22-2); also known as titanium IV, 2,2[bis 2-propenolato-methyl, 
butanolato, tris (dioctyl) phosphato] (CAS 110438-25-0), or LICA 12 (CAS 
103850-22-2);
    (ii) Titanium IV, [(2-propenolato-1) methyl, n-propanolatomethyl] 
butanolato-1, tris(dioctyl)pyrophosphate, or KR3538; or
    (iii) Titanium IV, [(2-propenolato-1)methyl, propanolatomethyl] 
butanolato-1, tris(dioctyl) phosphate;
    (15) PCDE (Polycyanodifluoroaminoethylene oxide);
    (16) Certain bonding agents, as follows (MT):
    (i) 1,1R,1S-trimesoyl-tris(2-ethylaziridine) (HX-868, BITA) (CAS 
7722-73-8); or
    (ii) Polyfunctional aziridine amides with isophthalic, trimesic, 
isocyanuric, or trimethyladipic backbone also having a 2-methyl or 2-
ethyl aziridine group;

    Note to paragraph (f)(16)(ii): Included are (1) 1,1H-Isophthaloyl-
bis(2-methylaziridine) (HX-752) (CAS 7652-64-4); (2) 2,4,6-tris(2-ethyl-
1-aziridinyl)-1,3,5-triazine (HX-874) (CAS 18924-91-9); and (3) 
1,1[min]-trimethyladipoylbis(2-ethylaziridine) (HX-877) (CAS 71463-62-
2).

    (17) Superfine iron oxide (Fe2O3, hematite) 
with a specific surface area more than 250 m\2\/g and an average 
particle size of 0.003 micrometers or less (CAS 1309-37-1);
    (18) TEPAN (HX-879) (tetraethylenepentaamineacrylonitrile) (CAS 
68412-45-3); cyanoethylated polyamines and their salts (MT for TEPAN 
(HX-879));
    (19) TEPANOL (HX-878) (tetraethy-
lenepentaamineacrylonitrileglycidol) (CAS 68412-46-4); cyanoethylated 
polyamines adducted with glycidol and their salts (MT for TEPANOL (HX-
878));
    (20) TPB (triphenyl bismuth) (CAS 603-33-8) (MT); or
    (21) Tris (ethoxyphenyl) bismuth (TEPB) (CAS 90591-48-3).
    (g) Precursors, as follows:
    (1) BCMO (3,3-bis(chloromethyl)oxetane) (CAS 78-71-7);

[[Page 480]]

    (2) DADN (1,5-diacetyl-3,7-dinitro-1, 3, 5, 7-tetraazacyclooctane);
    (3) Dinitroazetidine-t-butyl salt (CAS 125735-38-8);
    (4) CL-20 precursors (any molecule containing hexaazaisowurtzitane) 
(e.g., HBIW (hexabenzylhexaazaisowurtzitane), TAIW 
(tetraacetyldibenzylhexa-azaisowurtzitane));
    (5) TAT (1, 3, 5, 7-tetraacetyl-1, 3, 5, 7-tetraazacyclooctane) (CAS 
41378-98-7);
    (6) Tetraazadecalin (CAS 5409-42-7);
    (7) 1,3,5-trichlorobenzene (CAS 108-70-3); or
    (8) 1,2,4-trihydroxybutane (1,2,4-butanetriol) (CAS 3068-00-6).
    * (h) Any explosive, propellant, pyrotechnic, fuel, oxidizer, 
binder, additive, or precursor that (MT for articles designated as 
such):
    (1) Is classified; or
    (2) Is being developed using classified information (see Sec.  
120.10(a)(2) of this subchapter).

    Note to paragraph (h): ``Classified'' means classified pursuant to 
Executive Order 13526, or predecessor order, and a security 
classification guide developed pursuant thereto or equivalent, or to the 
corresponding classification rules of another government or 
international organization.

    (i) Developmental explosives, propellants, pyrotechnics, fuels, 
oxidizers, binders, additives, or precursors therefor funded by the 
Department of Defense via contract or other funding authorization.

    Note 1 to paragraph (i): This paragraph does not control explosives, 
propellants, pyrotechnics, fuels, oxidizers, binders, additives, or 
precursors therefor (a) in production, (b) determined to be subject to 
the EAR via a commodity jurisdiction determination (see Sec.  120.4 of 
this subchapter), or (c) identified in the relevant Department of 
Defense contract or other funding authorization as being developed for 
both civil and military applications.
    Note 2 to paragraph (i): Note 1 does not apply to defense articles 
enumerated on the U.S. Munitions List, whether in production or 
development.
    Note 3 to paragraph (i): This paragraph is applicable only to those 
contracts and funding authorizations that are dated January 5, 2015, or 
later.

    (j) Technical data (as defined in Sec.  120.10 of this subchapter) 
and defense services (as defined in Sec.  120.9 of this subchapter) 
directly related to the defense articles described in paragraphs (a) 
through (i) of this category (see also Sec.  123.20 of this subchapter) 
(MT for articles designated as such).
    (k) The following interpretations explain and amplify the terms used 
in this category and elsewhere in this subchapter:
    (1) USML Category V contains explosives, energetic materials, 
propellants, and pyrotechnics and specially formulated fuels for 
aircraft, missile, and naval applications. Explosives are solid, liquid, 
or gaseous substances or mixtures of substances, which, in their 
primary, booster, or main charges in warheads, demolition, or other 
military applications, are required to detonate.
    (2) The resulting product of the combination or conversion of any 
substance controlled by this category into an item not controlled will 
no longer be controlled by this category provided the controlled item 
cannot easily be recovered through dissolution, melting, sieving, etc. 
As an example, beryllium converted to a near net shape using hot 
isostatic processes will result in an uncontrolled part. A cured 
thermoset containing beryllium powder is not controlled unless meeting 
an explosive or propellant control. The mixture of beryllium powder in a 
cured thermoset shape is not controlled by this category. The mixture of 
controlled beryllium powder mixed with a typical propellant binder will 
remain controlled by this category. The addition of dry silica powder to 
dry beryllium powder will remain controlled.
    (3) Paragraph (c)(4)(ii)(A) of this category does not apply to boron 
and boron carbide enriched with boron-10 (20% or more of total boron-10 
content).
    (4) Theoretical specific impulse (Isp) is calculated using standard 
conditions (1000 psi chamber pressure expanded to 14.7 psi) and measured 
in units of pound-force-seconds per pound-mass (lbf-s/lbm) or simplified 
to seconds (s). Calculations will be based on shifting equilibrium.
    (5) Particle size is the mean particle diameter on a weight basis. 
Best industrial practices will be used in determining particle size and 
the controls may not be undermined by addition of larger or smaller 
sized material to shift the mean diameter.
    (l)-(w) [Reserved]
    (x) Commodities, software, and technical data subject to the EAR 
(see Sec.  120.42 of this subchapter) used in or with defense articles.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles where the purchase documentation 
includes commodities, software, or technical data subject to the EAR 
(see Sec.  123.1(b) of this subchapter).
    Note 1 to USML Category V: To assist the exporter, an item has been 
categorized by the most common use. Also, where appropriate, references 
have been provided to the related controlled precursors.
    Note 2 to USML Category V: Chemical Abstract Service (CAS) registry 
numbers do not cover all the substances and mixtures controlled by this 
category. The numbers are provided as examples to assist government 
agencies in the license review process and exporters when completing 
their license application and export documentation.

[[Page 481]]

    Note 3 to USML Category V: Items controlled in this Category, except 
for materials described in paragraph (c)(6), (h), or (i), are licensed 
by the Department of Commerce when incorporated into an item subject to 
the EAR and classified under ECCN 1C608.

     Category VI--Surface Vessels of War and Special Naval Equipment

    * (a) Warships and other combatant vessels (i.e., battleships, 
aircraft carriers, destroyers, frigates, cruisers, corvettes, littoral 
combat ships, mine sweepers, mine hunters, mine countermeasure ships, 
dock landing ships, amphibious assault ships), Coast Guard Cutters (with 
or equivalent to those with U.S. designations WHEC, WMEC, WMSL, or WPB 
for the purpose of this subchapter), or foreign-origin vessels specially 
designed to provide functions equivalent to those of the vessels listed 
above;
    (b) Other vessels not controlled in paragraph (a) of this category, 
as follows:
    (1) High-speed air cushion vessels for transporting cargo and 
personnel, ship-to-shore and across a beach, with a payload over 25 
tons;
    (2) Surface vessels integrated with nuclear propulsion plants or 
specially designed to support naval nuclear propulsion plants;
    (3) Vessels armed or specially designed to be used as a platform to 
deliver munitions or otherwise destroy or incapacitate targets (e.g., 
firing lasers, launching torpedoes, rockets, or missiles, or firing 
munitions greater than .50 caliber); or
    (4) Vessels incorporating any mission systems controlled under this 
subchapter.

    Note to paragraph (b)(4): ``Mission systems'' are defined as 
``systems'' (see Sec.  120.45(g) of this subchapter) that are defense 
articles that perform specific military functions such as by providing 
military communication, electronic warfare, target designation, 
surveillance, target detection, or sensor capabilities.
    Note to paragraphs (a) and (b): Vessels specially designed for 
military use that are not identified in paragraph (a) or (b) of this 
category are subject to the EAR under ECCN 8A609, including any 
demilitarized vessels, regardless of origin or designation, manufactured 
prior to 1950 and unmodified since 1949. Vessels with modifications made 
to incorporate safety features required by law, are cosmetic (e.g., 
different paint), or that add parts or components otherwise available 
prior to 1950 are considered ``unmodified'' for the purposes of this 
paragraph.

    (c) Developmental vessels, and specially designed parts, components, 
accessories, and attachments therefor, funded by the Department of 
Defense via contract or other funding authorization.

    Note 1 to paragraph (c): This paragraph does not control vessels, 
and specially designed parts, components, accessories, and attachments 
therefor, (a) in production, (b) determined to be subject to the EAR via 
a commodity jurisdiction determination (see Sec.  120.4 of this 
subchapter), or (c) identified in the relevant Department of Defense 
contract or other funding authorization as being developed for both 
civil and military applications.
    Note 2 to paragraph (c): Note 1 does not apply to defense articles 
enumerated on the U.S. Munitions List, whether in production or 
development.
    Note 3 to paragraph (c): This provision is applicable to those 
contracts and funding authorizations that are dated July 8, 2014, or 
later.

    (d) [Reserved]
    * (e) Naval nuclear propulsion plants and prototypes, and special 
facilities for construction, support, and maintenance therefor (see 
Sec.  123.20 of this subchapter).
    (f) Vessel and naval equipment, parts, components, accessories, 
attachments, associated equipment, and systems, as follows:
    (1) Hulls or superstructures, including support structures therefor, 
that:
    (i) Are specially designed for any vessels controlled in paragraph 
(a) of this category;
    (ii) Have armor, active protection systems, or developmental armor 
systems; or
    (iii) Are specially designed to survive 12.5% or greater damage 
across the length as measured between perpendiculars;
    (2) Systems that manage, store, create, distribute, conserve, and 
transfer energy, and specially designed parts and components therefor, 
that have:
    (i) Storage exceeding 30MJ;
    (ii) A discharge rate less than 3 seconds; and
    (iii) A cycle time under 45 seconds;
    (3) Shipborne auxiliary systems for chemical, biological, 
radiological, and nuclear (CBRN) compartmentalization, over-
pressurization and filtration systems, and specially designed parts and 
components therefor;
    * (4) Control and monitoring systems for autonomous unmanned vessels 
capable of on-board, autonomous perception and decision-making necessary 
for the vessel to navigate while avoiding fixed and moving hazards, and 
obeying rules-of-the road without human intervention;
    * (5) Any machinery, device, component, or equipment, including 
production, testing and inspection equipment, and tooling, specially 
designed for plants or facilities controlled in paragraph (e) of this 
section (see Sec.  123.20 of this subchapter);
    (6) Parts, components, accessories, attachments, and equipment 
specially designed for integration of articles controlled by USML 
Categories II, IV, or XVIII or catapults for

[[Page 482]]

launching aircraft or arresting gear for recovering aircraft (MT for 
launcher mechanisms specially designed for rockets, space launch 
vehicles, or missiles capable of achieving a range greater than or equal 
to 300 km);

    Note to paragraph (f)(6): ``Range'' is the maximum distance that the 
specified rocket system is capable of traveling in the mode of stable 
flight as measured by the projection of its trajectory over the surface 
of the Earth. The maximum capability based on the design characteristics 
of the system, when fully loaded with fuel or propellant, will be taken 
into consideration in determining range. The range for rocket systems 
will be determined independently of any external factors such as 
operational restrictions, limitations imposed by telemetry, data links, 
or other external constraints. For rocket systems, the range will be 
determined using the trajectory that maximizes range, assuming 
International Civil Aviation Organization (ICAO) standard atmosphere 
with zero wind.

    (7) Shipborne active protection systems (i.e., defensive systems 
that actively detect and track incoming threats and launch a ballistic, 
explosive, energy, or electromagnetic countermeasure(s) to neutralize 
the threat prior to contact with a vessel) and specially designed parts 
and components therefor;
    (8) Minesweeping and mine hunting equipment (including mine 
countermeasures equipment deployed by aircraft), and specially designed 
parts and components therefor; or
    * (9) Any part, component, accessory, attachment, equipment, or 
system that:
    (i) Is classified;
    (ii) Contains classified software directly related to defense 
articles in this subchapter or 600 series items subject to the EAR; or
    (iii) Is being developed using classified information. 
``Classified'' means classified pursuant to Executive Order 13526, or 
predecessor order, and a security classification guide developed 
pursuant thereto or equivalent, or to the corresponding classification 
rules of another government or international organization.

    Note 1 to paragraph (f): Parts, components, accessories, 
attachments, associated equipment, and systems specially designed for 
vessels described in this category but not listed in paragraph (f) are 
subject to the EAR under ECCN 8A609.
    Note 2 to paragraph (f): For controls related to ship signature 
management, see USML Category XIII.

    (g) Technical data (see Sec.  120.10 of this subchapter) and defense 
services (see Sec.  120.9 of this subchapter) directly related to the 
defense articles described in paragraphs (a) through (f) of this 
category and classified technical data directly related to items 
controlled in ECCNs 8A609, 8B609, 8C609, and 8D609 and defense services 
using the classified technical data. (MT for technical data and defense 
services related to articles designated as such.)
    (See Sec.  125.4 of this subchapter for exemptions.)
    (h)-(w) [Reserved]
    (x) Commodities, software, and technical data subject to the EAR 
(see Sec.  120.42 of this subchapter) used in or with defense articles.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles where the purchase documentation 
includes commodities, software, or technical data subject to the EAR 
(see Sec.  123.1(b) of this subchapter).

                      Category VII--Ground Vehicles

    * (a) Armored combat ground vehicles as follows:
    (1) Tanks; or
    (2) Infantry fighting vehicles.
    * (b) Ground vehicles (not enumerated in paragraph (a) of this 
category) and trailers that are armed or are specially designed to be 
used as a firing or launch platform to deliver munitions or otherwise 
destroy or incapacitate targets (e.g., firing lasers, launching rockets, 
firing missiles, firing mortars, firing artillery rounds, or firing 
other ammunition greater than .50 caliber) (MT if specially designed for 
rockets, space launch vehicles, missiles, drones, or unmanned aerial 
vehicles capable of delivering a payload of at least 500 kg to a range 
of at least 300 km).
    (c) Ground vehicles and trailers equipped with any mission systems 
controlled under this subchapter (MT if specially designed for rockets, 
space launch vehicles, missiles, drones, or unmanned aerial vehicles 
capable of delivering a payload of at least 500 kg to a range of at 
least 300 km).

    Note to paragraph (c): ``Mission systems'' are defined as 
``systems'' (see Sec.  120.45(g) of this subchapter) that are defense 
articles that perform specific military functions, such as by providing 
military communication, target designation, surveillance, target 
detection, or sensor capabilities.
    Note to paragraphs (b) and (c): ``Payload'' is the total mass that 
can be carried or delivered by the specified rocket, space launch 
vehicle, missile, drone, or unmanned aerial vehicle that is not used to 
maintain flight. For definition of ``range'' as it pertains to aircraft 
systems, see note to paragraph (a) USML Category VIII. For definition of 
``range'' as it pertains to rocket systems, see note to paragraph (f)(6) 
of USML Category VI.

    (d) [Reserved]
    * (e) Armored support vehicles capable of off-road or amphibious use 
specially designed to transport or deploy personnel or materiel,

[[Page 483]]

or to move with other vehicles over land in close support of combat 
vehicles or troops (e.g., personnel carriers, resupply vehicles, combat 
engineer vehicles, recovery vehicles, reconnaissance vehicles, bridge 
launching vehicles, ambulances, and command and control vehicles).
    (f) [Reserved]
    (g) Ground vehicle parts, components, accessories, attachments, 
associated equipment, and systems as follows:
    (1) Armored hulls, armored turrets, and turret rings;
    (2) Active protection systems (i.e., defensive systems that actively 
detect and track incoming threats and launch a ballistic, explosive, 
energy, or electromagnetic countermeasure(s) to neutralize the threat 
prior to contact with a vehicle) and specially designed parts and 
components therefor;
    (3) Composite armor parts and components specially designed for the 
vehicles in this category;
    (4) Spaced armor components and parts, including slat armor parts 
and components specially designed for the vehicles in this category;
    (5) Reactive armor parts and components;
    (6) Electromagnetic armor parts and components, including pulsed 
power specially designed parts and components therefor;

    Note to paragraphs (g)(3)-(6): See USML Category XIII(m)(1)-(4) for 
interpretations which explain and amplify terms used in these 
paragraphs.

    (7) Built in test equipment (BITE) to evaluate the condition of 
weapons or other mission systems for vehicles identified in this 
category, excluding equipment that provides diagnostics solely for a 
subsystem or component involved in the basic operation of the vehicle;
    (8) Gun mount, stabilization, turret drive, and automatic elevating 
systems, and specially designed parts and components therefor;
    (9) Self-launching bridge components rated class 60 or above for 
deployment by vehicles in this category;
    (10) Suspension components as follows:
    (i) Rotary shock absorbers specially designed for the vehicles 
weighing more than 30 tons in this category; or
    (ii) Torsion bars specially designed for the vehicles weighing more 
than 50 tons in this category;
    (11) Kits specially designed to convert a vehicle in this category 
into either an unmanned or a driver-optional vehicle. For a kit to be 
controlled by this paragraph, it must, at a minimum, include equipment 
for:
    (i) Remote or autonomous steering;
    (ii) Acceleration and braking; and
    (iii) A control system;
    (12) Fire control computers, mission computers, vehicle management 
computers, integrated core processers, stores management systems, 
armaments control processors, vehicle-weapon interface units and 
computers;
    (13) Test or calibration equipment for the mission systems of the 
vehicles in this category, except those enumerated elsewhere; or
    * (14) Any part, component, accessory, attachment, equipment, or 
system that (MT for those articles designated as such):
    (i) Is classified;
    (ii) Contains classified software directly related to defense 
articles in this subchapter or 600 series items subject to the EAR; or
    (iii) Is being developed using classified information.
    ``Classified'' means classified pursuant to Executive Order 13526, 
or predecessor order, and a security classification guide developed 
pursuant thereto or equivalent, or to the corresponding classification 
rules of another government or international organization.

    Note to paragraph (g): Parts, components, accessories, attachments, 
associated equipment, and systems specially designed for vehicles in 
this category but not listed in paragraph (g) are subject to the EAR 
under ECCN 0A606.

    (h) Technical data (see Sec.  120.10 of this subchapter) and defense 
services (see Sec.  120.9 of this subchapter) directly related to the 
defense articles described in paragraphs (a) through (g) of this 
category and classified technical data directly related to items 
controlled in ECCNs 0A606, 0B606, 0C606, and 0D606 and defense services 
using the classified technical data. (See Sec.  125.4 of this subchapter 
for exemptions.) (MT for technical data and defense services related to 
articles designated as such.)
    (i)-(w) [Reserved]
    (x) Commodities, software, and technical data subject to the EAR 
(see Sec.  120.42 of this subchapter) used in or with defense articles.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles where the purchase documentation 
includes commodities, software, or technical data subject to the EAR 
(see Sec.  123.1(b) of this subchapter).
    Note 1 to Category VII: Ground vehicles specially designed for 
military applications that are not identified in this category are 
subject to the EAR under ECCN 0A606, including any unarmed ground 
vehicles, regardless of origin or designation, manufactured prior to 
1956 and unmodified since 1955. Ground vehicles with modifications made 
to incorporate safety features required by law, are cosmetic (e.g., 
different paint, repositioning of bolt holes), or that add parts or 
components otherwise available prior to 1956 are considered 
``unmodified'' for the purposes of this paragraph. ECCN 0A606 also 
includes unarmed vehicles derived from otherwise

[[Page 484]]

EAR99 civilian vehicles that have been modified or otherwise fitted with 
materials to provide ballistic protection, including protection to level 
III (National Institute of Justice Standard 0108.01, September 1985) or 
better and that do not have reactive or electromagnetic armor.
    Note 2 to Category VII: Armored ground vehicles are (i) ground 
vehicles that have integrated, fully armored hulls or cabs, or (ii) 
ground vehicles on which add-on armor has been installed to provide 
ballistic protection to level III (National Institute of Justice 
Standard 0108.01, September 1985) or better. Armored support vehicles do 
not include those that are merely capable of being equipped with add-on 
armor.
    Note 3 to Category VII: Ground vehicles include any vehicle meeting 
the definitions or control parameters regardless of the surface (e.g., 
highway, off-road, rail) upon which the vehicle is designed to operate.

              Category VIII--Aircraft and Related Articles

    (a) Aircraft, whether manned, unmanned, remotely piloted, or 
optionally piloted, as follows (MT if the aircraft, excluding manned 
aircraft, has a range equal to or greater than 300 km):
    * (1) Bombers;
    * (2) Fighters, fighter bombers, and fixed-wing attack aircraft;
    * (3) Turbofan- or turbojet-powered trainers used to train pilots 
for fighter, attack, or bomber aircraft;
    * (4) Attack helicopters;
    * (5) Unmanned aerial vehicles (UAVs) specially designed to 
incorporate a defense article;
    * (6) [Reserved]
    * (7) Aircraft specially designed to incorporate a defense article 
for the purpose of performing an intelligence, surveillance, and 
reconnaissance function;
    * (8) Aircraft specially designed to incorporate a defense article 
for the purpose of performing an electronic warfare function; airborne 
warning and control aircraft; or aircraft specially designed to 
incorporate a defense article for the purpose of performing a command, 
control, and communications function;
    (9) Aircraft specially designed to incorporate a defense article for 
the purpose of performing an air refueling function;
    (10) Target drones;
    (11) [Reserved]
    (12) Aircraft capable of being refueled in-flight including hover-
in-flight refueling (HIFR);
    (13) [Reserved]
    (14) Aircraft with a roll-on/roll-off ramp, capable of airlifting 
payloads over 35,000 lbs. to ranges over 2,000 nm without being refueled 
in-flight, and landing onto short or unimproved airfields, other than L-
100 and LM-100J aircraft;
    * (15) Aircraft not enumerated in paragraphs (a)(1) through (a)(14) 
as follows:
    (i) U.S.-origin aircraft that bear an original military designation 
of A, B, E, F, K, M, P, R, or S; or
    (ii) Foreign-origin aircraft specially designed to provide functions 
equivalent to those of the aircraft listed in paragraph (a)(15)(i) of 
this category; or
    (16) Aircraft that are armed or are specially designed to be used as 
a platform to deliver munitions or otherwise destroy targets (e.g., 
firing lasers, launching rockets, firing missiles, dropping bombs, or 
strafing);

    Note 1 to paragraph (a): Aircraft specially designed for military 
applications that are not identified in paragraph (a) of this section 
are subject to the EAR and classified as ECCN 9A610, including any model 
of unarmed military aircraft manufactured prior to 1956, regardless of 
origin or designation, and unmodified since manufacture. Aircraft with 
modifications made to incorporate safety of flight features or other FAA 
or NTSB modifications such as transponders and air data recorders are 
considered ``unmodified'' for the purposes of this paragraph.
    Note 2 to paragraph (a): ``Range'' is the maximum distance that the 
specified aircraft system is capable of traveling in the mode of stable 
flight as measured by the projection of its trajectory over the surface 
of the Earth. The maximum capability based on the design characteristics 
of the system, when fully loaded with fuel or propellant, will be taken 
into consideration in determining range. The range for aircraft systems 
will be determined independently of any external factors such as 
operational restrictions, limitations imposed by telemetry, data links, 
or other external constraints. For aircraft systems, the range will be 
determined for a one-way distance using the most fuel-efficient flight 
profile (e.g., cruise speed and altitude), assuming International Civil 
Aviation Organization (ICAO) standard atmosphere with zero wind, but 
with no fuel reserve.

    (b)-(c) [Reserved]
    (d) Launching and recovery equipment specially designed to allow an 
aircraft described in paragraph (a) of this category to take off or land 
on a vessel described in Category VI paragraphs (a) through (c) (MT if 
the launching and recovery equipment is for an aircraft, excluding 
manned aircraft, that has a range equal to or greater than 300 km).

    Note to paragraph (d): For the definition of ``range,'' see note to 
paragraph (a) of this category.

    (e) [Reserved]
    (f) Developmental aircraft funded by the Department of Defense via 
contract or other

[[Page 485]]

funding authorization, and specially designed parts, components, 
accessories, and attachments therefor.

    Note 1 to paragraph (f): This paragraph does not control aircraft 
and specially designed parts, components, accessories, and attachments 
therefor (a) in production; (b) determined to be subject to the EAR via 
a commodity jurisdiction determination (see Sec.  120.4 of this 
subchapter), or (c) identified in the relevant Department of Defense 
contract or other funding authorization as being developed for both 
civil and military applications.
    Note 2 to paragraph (f): Note 1 does not apply to defense articles 
enumerated on the U.S. Munitions List, whether in production or 
development.
    Note 3 to paragraph (f): This paragraph is applicable only to those 
contracts, other funding authorizations, or modifications initiating 
development of a new defense article that are dated April 16, 2014, or 
later.

    (g) [Reserved]
    (h) Parts, components, accessories, attachments, associated 
equipment and systems, as follows:
    (1) Parts, components, accessories, and attachments specially 
designed for the following U.S.-origin aircraft: The B-1B, B-2, B-21, F-
15SE, F/A-18 E/F, EA-18G, F-22, F-35, and future variants thereof; or 
the F-117 or U.S. Government technology demonstrators. Parts, 
components, accessories, and attachments of the F-15SE and F/A-18 E/F 
that are common to earlier models of these aircraft, unless listed in 
paragraph (h) of this category, are subject to the EAR;

    Note to paragraph (h)(1): This paragraph does not control parts, 
components, accessories, and attachments that are common to aircraft 
described in paragraph (a) of this category but not identified in 
paragraph (h)(1), and those identified in paragraph (h)(1). For example, 
when applying Sec.  120.41(b)(3), a part common to only the F-16 and F-
35 is not specially designed for purposes of this paragraph. A part 
common to only the F-22 and F-35--two aircraft models identified in 
paragraph (h)(1)--is specially designed for purposes of this paragraph, 
unless one of the other paragraphs is applicable under Sec.  120.41(b) 
of this subchapter.

    (2) Rotorcraft gearboxes with internal pitch line velocities 
exceeding 20,000 feet per minute and able to operate 30 minutes with 
loss of lubrication without an emergency or auxiliary lubrication 
system, and specially designed parts and components therefor;

    Note to paragraph (h)(2): Loss of lubrication means a situation 
where oil/lubrication is mostly or completely lost from a transmission/
gearbox such that only a residual coating remains due to the lubrication 
system failure.

    (3) Tail boom folding systems, stabilator folding systems or 
automatic rotor blade folding systems, and specially designed parts and 
components therefor;
    (4) Wing folding systems, and specially designed parts and 
components therefor, for:
    (i) Aircraft powered by power plants controlled under USML Category 
IV(d); or
    (ii) Aircraft with any of the following characteristics and powered 
by gas turbine engines:
    (A) The portion of the wing outboard of the wing fold is required 
for sustained flight;
    (B) Fuel can be stored outboard of the wing fold;
    (C) Control surfaces are outboard of the wing fold;
    (D) Hard points are outboard of the wing fold;
    (E) Hard points inboard of the wing fold allow for in-flight 
ejection; or
    (F) The aircraft is designed to withstand maximum vertical 
maneuvering accelerations greater than +3.5g/-1.5g.
    (5) On-aircraft arresting gear (e.g., tail hooks and drag chutes) 
and specially designed parts and components therefor;
    (6) Bomb racks, missile or rocket launchers, missile rails, weapon 
pylons, pylon-to-launcher adapters, unmanned aerial vehicle (UAV) 
airborne launching systems, external stores support systems for ordnance 
or weapons, and specially designed parts and components therefor (MT if 
the bomb rack, missile launcher, missile rail, weapon pylon, pylon-to-
launcher adapter, UAV airborne launching system, or external stores 
support system is for an aircraft, excluding manned aircraft, or missile 
that has a ``range'' equal to or greater than 300 km);
    (7) Damage or failure-adaptive flight control systems, that do not 
consist solely of redundant internal circuitry, specially designed for 
aircraft controlled in this category;
    (8) Threat-adaptive autonomous flight control systems, where a 
``threat-adaptive autonomous flight control system'' is a flight control 
system that, without input from the operator or pilot, adjusts the 
aircraft control or flight path to minimize risk caused by hostile 
threats;
    (9) Non-surface-based flight control systems and effectors (e.g., 
thrust vectoring from gas ports other than main engine thrust vector);
    (10) Radar altimeters with output power management LPI (low 
probability of intercept) or signal modulation (i.e., frequency hopping, 
chirping, direct sequence-spectrum spreading) LPI capabilities (MT if 
for an aircraft, excluding manned aircraft, or missile that has a 
``range'' equal to or greater than 300 km);

[[Page 486]]

    (11) Air-to-air refueling systems and hover-in-flight refueling 
(HIFR) systems, and specially designed parts and components therefor;
    (12) Unmanned aerial vehicle (UAV) flight control systems and 
vehicle management systems with swarming capability (i.e. UAVs that 
operate autonomously (without human input) to interact with each other 
to avoid collisions, fly in formations, and are capable of adapting in 
real-time to changes in operational/threat environment, or, if 
weaponized, coordinate targeting) (MT if for an aircraft, excluding 
manned aircraft, or missile that has a ``range'' equal to or greater 
than 300 km);
    (13) [Reserved]
    (14) Lift fans, clutches, and roll posts for short take-off, 
vertical landing (STOVL) aircraft and specially designed parts and 
components for such lift fans and roll posts;
    (15) Integrated helmets incorporating optical sights or slewing 
devices, which include the ability to aim, launch, track, or manage 
munitions (e.g., Helmet Mounted Cueing Systems, Joint Helmet Mounted 
Cueing Systems (JHMCS), Helmet Mounted Displays, Display and Sight 
Helmets (DASH)), and specially designed parts, components, accessories, 
and attachments therefor;
    (16) Fire control computers, stores management systems, armaments 
control processors, and aircraft-weapon interface units and computers 
(e.g., AGM-88 HARM Aircraft Launcher Interface Computer (ALIC));
    (17) Mission computers, vehicle management computers, and integrated 
core processers specially designed for aircraft controlled in this 
category;
    (18) Drive systems, flight control systems, and parts and components 
therefor, specially designed to function after impact of a 7.62mm or 
larger projectile;
    (19) Thrust reversers specially designed to be deployed in flight 
for aircraft controlled in this category;
    * (20) Any part, component, accessory, attachment, equipment, or 
system that:
    (i) Is classified;
    (ii) Contains classified software directly related to defense 
articles in this subchapter or 600 series items subject to the EAR; or
    (iii) Is being developed using classified information.

    Note to paragraph (h)(20): Classified means classified pursuant to 
Executive Order 13526, or predecessor order, and a security 
classification guide developed pursuant thereto or equivalent, or to the 
corresponding classification rules of another government or 
international organization;

    (21)-(26) [Reserved]
    (27) Variable speed gearboxes, where a ``variable speed gearbox'' 
has the ability to vary the gearbox output speed by mechanical means 
within the gearbox while the gearbox input speed from the engine or 
other source is constant, and is capable of varying output speed by 20% 
or greater and providing power to rotors, proprotors, propellers, 
propfans, or liftfans; and specially designed parts and components 
therefor;
    (28) Electrical power or thermal management systems specially 
designed for an engine controlled in Category XIX and having any of the 
following:
    (i) Electrical power generators that provide greater than 300kW of 
electrical power (per generator) with gravimetric power densities 
exceeding 2kW/pound (excluding the mass of the controller for the 
purpose of calculating the gravimetric power density);
    (ii) Heat exchangers that exchange 60 kW/K-m\3\ or 1 kW/K of heat or 
greater into the gas turbine engine flow path; or
    (iii) Direct-cooling thermal electronic package heat exchangers that 
transfer 20kW of heat or greater at 100W/cm\2\ or greater.
    (29) Any of the following equipment if specially designed for a 
defense article described in paragraph (h)(1):
    (i) Scale test models;
    (ii) Full scale iron bird ground rigs used to test major aircraft 
systems; or
    (iii) Jigs, locating fixtures, templates, gauges, molds, dies, or 
caul plates.
    (i) Technical data (see Sec.  120.10 of this subchapter) and defense 
services (see Sec.  120.9 of this subchapter) directly related to the 
defense articles described in paragraphs (a) through (h) of this 
category and classified technical data directly related to items 
controlled in ECCNs 9A610, 9B610, 9C610, and 9D610 and defense services 
using classified technical data. (See Sec.  125.4 of this subchapter for 
exemptions.) (MT for technical data and defense services related to 
articles designated as such.)
    (j)-(w) [Reserved]
    (x) Commodities, software, and technology subject to the EAR (see 
Sec.  120.42 of this subchapter) used in or with defense articles 
controlled in this category.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles controlled in this category where the 
purchase documentation includes commodities, software, or technology 
subject to the EAR (see Sec.  123.1(b) of this subchapter).
    Note: Parts, components, accessories, and attachments in paragraphs 
(h)(3)-(5), (7), (14), (17), or (19) are licensed by the Department of 
Commerce when incorporated in an aircraft subject to the EAR and 
classified under ECCN 9A610. Replacement systems, parts, components, 
accessories and attachments are subject to the controls of the ITAR.

          Category IX--Military Training Equipment and Training

    (a) Training equipment, as follows:

[[Page 487]]

    (1) Ground, surface, submersible, space, or towed airborne targets 
that:
    (i) Have an infrared, radar, acoustic, magnetic, or thermal 
signature that mimic a specific defense article, specific other item, or 
specific person; or
    (ii) Are instrumented to provide hit/miss performance information 
for defense articles controlled in this subchapter;

    Note to paragraph (a)(1): Target drones are controlled in USML 
Category VIII(a).

    (2) Devices that are mockups of articles enumerated in this 
subchapter used for maintenance training or disposal training for 
ordnance enumerated in this subchapter, that reveal technical data or 
contain parts, components, accessories, or attachments controlled in 
this subchapter;
    (3) Air combat maneuvering instrumentation and ground stations 
therefor;
    (4) Physiological flight trainers for fighter aircraft or attack 
helicopters;
    (5) Radar trainers specially designed for training on radar 
controlled by USML Category XI;
    (6) Training devices specially designed to be attached to a crew 
station, mission system, or weapon of an article controlled in this 
subchapter;

    Note to paragraph (a)(6): This paragraph includes stimulators that 
are built-in or add-on devices that cause the actual equipment to act as 
a trainer.

    (7) Anti-submarine warfare trainers;
    (8) Missile launch trainers;
    (9) Radar target generators;
    (10) Infrared scene generators; or
    * (11) Any training device that:
    (i) Is classified;
    (ii) Contains classified software directly related to defense 
articles in this subchapter or 600 series items subject to the EAR; or
    (iii) Is being developed using classified information.

    Note to paragraph (a)(11): ``Classified'' means classified pursuant 
to Executive Order 13526, or predecessor order, and a security 
classification guide developed pursuant thereto or equivalent, or to the 
corresponding classification rules of another government or 
international organization.
    Note to paragraph (a): Training equipment does not include combat 
games without item signatures or tactics, techniques, and procedures 
covered by this subchapter.

    (b) Simulators, as follows:
    (1) System specific simulators that replicate the operation of an 
individual crew station, a mission system, or a weapon of an end-item 
that is controlled in this subchapter;
    (2)-(3) [Reserved]
    (4) Software and associated databases not elsewhere enumerated in 
this subchapter that can be used to model or simulate the following:
    (i) Trainers enumerated in paragraph (a) of this category;
    (ii) Battle management;
    (iii) Military test scenarios/models; or
    (iv) Effects of weapons enumerated in this subchapter; or
    * (5) Simulators that:
    (i) Are classified;
    (ii) Contain classified software directly related to defense 
articles in this subchapter or 600 series items subject to the EAR; or
    (iii) Are being developed using classified information.

    Note to paragraph (b)(5): ``Classified'' means classified pursuant 
to Executive Order 13526, or predecessor order, and a security 
classification guide developed pursuant thereto or equivalent, or to the 
corresponding classification rules of another government or 
international organization.

    (c)-(d) [Reserved]
    (e) Technical data (see Sec.  120.10 of this subchapter) and defense 
services (see Sec.  120.9 of this subchapter):
    (1) Directly related to the defense articles enumerated in 
paragraphs (a) and (b) of this category;
    (2) Directly related to the software and associated databases 
enumerated in paragraph (b)(4) of this category even if no defense 
articles are used or transferred; or
    (3) Military training (see, Sec.  120.9(a)(3) of this subchapter) 
not directly related to defense articles or technical data enumerated in 
this subchapter.
    (f)-(w) [Reserved]
    (x) Commodities, software, and technical data subject to the EAR 
(see Sec.  120.42 of this subchapter) used in or with defense articles.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles where the purchase documentation 
includes commodities, software, or technical data subject to the EAR 
(see Sec.  123.1(b) of this subchapter).
    Note to USML Category IX: Parts, components, accessories, or 
attachments of a simulator in this category that are common to the 
simulated system or simulated end-item are controlled under the same 
USML category or CCL ECCN as the parts, components, accessories, and 
attachments of the simulated system or simulated end-item.

                Category X--Personal Protective Equipment

    (a) Personal protective equipment, as follows:
    (1) Body armor providing a protection level equal to or greater than 
NIJ Type IV;

    Note 1 to paragraph (a)(1): For body armor providing a level of 
protection of Type

[[Page 488]]

I, Type II, Type IIA, Type IIIA, or Type III, see ECCNs 1A005 and 1A613.
    Note 2 to paragraph (a)(1): See USML Category XIII(e) for controls 
on related materials.

    (2) Personal protective clothing, equipment, or face paints 
specially designed to protect against or reduce detection by radar, IR, 
or other sensors at wavelengths greater than 900 nanometers;

    Note to paragraph (a)(2): See USML Category XIII(j) for controls on 
related materials.

    (3)-(4) [Reserved]
    (5) Integrated helmets, not specified in USML Category VIII(h)(15) 
or USML Category XII, incorporating optical sights or slewing devices, 
which include the ability to aim, launch, track, or manage munitions;
    (6) Helmets and helmet shells providing a protection level equal to 
or greater than NIJ Type IV;
    (7) Goggles, spectacles, visors, vision blocks, canopies, or filters 
for optical sights or viewers, employing other than common broadband 
absorptive dyes or UV inhibitors as a means of protection (e.g., narrow 
band filters/dyes or broadband limiters/coatings with high visible 
transparency), having an optical density greater than 3, and that 
protect against:
    (i) Multiple visible (in-band) laser wavelengths;
    (ii) Thermal flashes associated with nuclear detonations; or
    (iii) Near infrared or ultraviolet (out-of-band) laser wavelengths; 
or

    Note 1 to paragraph (a)(7): See paragraphs (d)(2) and (3) of this 
category for controls on related parts, components, and materials.
    Note 2 to paragraph (a)(7): See USML Category XII for sensor 
protection equipment.

    (8) Developmental personal protective equipment and specially 
designed parts, components, accessories, and attachments therefor, 
developed for the U.S. Department of Defense via contract or other 
funding authorization.

    Note 1 to paragraph (a)(8): This paragraph does not control personal 
protective equipment and specially designed parts, components, 
accessories, and attachments (a) in production, (b) determined to be 
subject to the EAR via a commodity jurisdiction determination (see Sec.  
120.4 of this subchapter), or (c) identified in the relevant Department 
of Defense contract or other funding authorization as being developed 
for both civil and military applications.
    Note 2 to paragraph (a)(8): Note 1 does not apply to defense 
articles enumerated on the USML, whether in production or development.
    Note 3 to paragraph (a)(8): This paragraph is applicable only to 
those contracts and funding authorizations that are dated January 5, 
2015, or later.

    (b)-(c) [Reserved]
    (d) Parts, components, assemblies, accessories, attachments, and 
associated equipment for the personal protective equipment controlled in 
this category, as follows:
    (1) Ceramic or composite plates that provide protection equal to or 
greater than NIJ Type IV;
    (2) Lenses, substrates, or filters ``specially designed'' for the 
articles covered in paragraph (a)(7) of this category;
    (3) Materials and coatings specially designed for the articles 
covered in paragraph (a)(7) of this category with optical density 
greater than 3, as follows:
    (i) Narrowband absorbing dyes;
    (ii) Broadband optical switches or limiters (i.e., nonlinear 
material, tunable or switchable agile filters, optical power limiters, 
near infrared interference based filters); or
    (iii) Narrowband interference based notch filters (i.e., multi-layer 
dielectric coatings, rugate, holograms or hybrid (i.e., interference 
with dye)) protecting against multiple laser wavelength and having high 
visible band transparency; or
    * (4) Any component, part, accessory, attachment, equipment, or 
system that:
    (i) Is classified;
    (ii) Contains classified software directly related to defense 
articles in this subchapter or 600 series items subject to the EAR; or
    (iii) Is being developed using classified information.

    Note to paragraph (d)(4): ``Classified'' means classified pursuant 
to Executive Order 13526, or predecessor order, and a security 
classification guide developed pursuant thereto or equivalent, or to the 
corresponding classification rules of another government or 
international government.
    Note to paragraphs (a) and (d): See National Institute of Justice 
Classification, NIJ Standard-0101.06, or national equivalents, for a 
description of level of protection for armor.

    (e) Technical data (see Sec.  120.10 of this subchapter) and defense 
services (see Sec.  120.9 of this subchapter) directly related to the 
defense articles described in paragraphs (a) through (d) of this 
category.
    (f)-(w) [Reserved]
    (x) Commodities, software, and technical data subject to the EAR 
(see Sec.  120.42 of this subchapter) used in or with defense articles.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles where the purchase documentation 
includes commodities, software, or technical data subject to the EAR 
(see Sec.  123.1(b) of this subchapter).

[[Page 489]]

                    Category XI--Military Electronics

    (a) Electronic equipment and systems not included in Category XII of 
the U.S. Munitions List, as follows:
    * (1) Underwater hardware, equipment, or systems, as follows:
    (i) Active or passive acoustic array sensing systems or acoustic 
array equipment capable of real-time processing that survey or detect, 
and also track, localize (i.e., determine range and bearing), classify, 
or identify, surface vessels, submarines, other undersea vehicles, 
torpedoes, or mines, having any of the following:
    (A) Multi-static capability;
    (B) Operating frequency less than 20 kHz; or
    (C) Operating bandwidth greater than 10 kHz;
    (ii) Underwater single acoustic sensor system that distinguishes 
non-biologic tonals and locates the origin of the sound;

    Note to paragraph (a)(1)(ii): The term tonals implies discrete 
frequencies in the broadband and narrowband spectra, emanating from man-
made objects.

    (iii) Non-acoustic systems that survey or detect, and also track, 
localize (i.e., determine range and bearing), classify, or identify, 
surface vessels, submarines, other undersea vehicles, torpedoes, or 
mines;
    (iv) Acoustic modems, networks, and communications equipment with 
real-time adaptive compensation or employing Low Probability of 
Intercept (LPI);

    Note to paragraph (a)(1)(iv): Adaptive compensation is the 
capability of an underwater modem to assess the water conditions to 
select the best algorithm to receive and transmit data.

    (v) Low Frequency/Very Low Frequency (LF/VLF) electronic modems, 
routers, interfaces, and communications equipment, specially designed 
for submarine communications; or
    (vi) Autonomous systems and equipment that enable cooperative 
sensing and engagement by fixed (bottom mounted/seabed) or mobile 
Autonomous Underwater Vehicles (AUVs);
    * (2) Underwater acoustic countermeasures or counter-countermeasures 
systems or equipment;
    * (3) Radar systems and equipment, as follows:
    (i) Airborne radar that maintains positional state of an object or 
objects of interest, other than weather phenomena, in a received radar 
signal through time;

    Note to paragraph (a)(3)(i): This paragraph does not control radars 
that: (1) Are incapable of free space detection of 1 square meter Radar 
Cross Section (RCS) target beyond 8 nautical miles (nmi); (2) contain a 
radar update rate of not more than 1Hz; and (3) employ a design 
determined to be subject to the EAR via a commodity jurisdiction 
determination (see Sec.  120.4 of this subchapter).

    (ii) Synthetic Aperture Radar (SAR) incorporating image resolution 
less than (better than) 0.3 m, or incorporating Coherent Change 
Detection (CCD) with geo-registration accuracy less than (better than) 
0.3 m, not including concealed object detection equipment operating in 
the frequency range from 30 GHz to 3,000 GHz and having a spatial 
resolution of 0.1 milliradians up to and including 1 milliradians at a 
standoff distance of 100 m;
    (iii) Inverse Synthetic Aperture Radar (ISAR);
    (iv) Radar that geodetically-locates (i.e., geodetic latitude, 
geodetic longitude, and geodetic height) with a target location error 50 
(TLE50) less than or equal to 10 m at ranges greater than 1 km;
    (v) Any Ocean Surveillance Radar with an average-power-aperture 
product of greater than 50 Wm\2\;
    (vi) Any ocean surveillance radar that transmits a waveform with an 
instantaneous bandwidth greater than 100 MHz and has an antenna rotation 
rate greater than 60 revolutions per minute (RPM);
    (vii) Air surveillance radar with free space detection of 1 square 
meter RCS target at 85 nmi or greater range, scaled to RCS values as RCS 
to the \1/4\ power;
    (viii) Air surveillance radar with free space detection of 1 square 
meter RCS target at an altitude of 65,000 feet and an elevation angle 
greater than 20 degrees (i.e., counter-battery);
    (ix) [Reserved]
    (x) Air surveillance radar with a beam solid angle less than or 
equal to 16 degrees\2\ that performs free space tracking of 1 square 
meter RCS target at a range greater or equal to 25 nmi with revisit rate 
greater or equal to \1/3\ Hz;
    (xi) Instrumentation radar for anechoic test facility or outdoor 
range that maintains positional state of an object of interest in a 
received radar signal through time or provides measurement of RCS of a 
static target less than or equal to minus 10dBsm, or RCS of a dynamic 
target;
    (xii) Radar incorporating pulsed operation with electronics steering 
of transmit beam in elevation and azimuth;

    Note to paragraph (a)(3)(xii): This paragraph does not control 
radars not otherwise controlled in this subchapter, operating with a 
peak transmit power less than or equal to 550 watts, and employing a 
design determined to be subject to the EAR via a commodity jurisdiction 
determination (see Sec.  120.4 of this subchapter).


[[Page 490]]


    (xiii) Radar with mode(s) for ballistic tracking or ballistic 
extrapolation to source of launch or impact point of articles controlled 
in USML Categories III, IV, or XV;
    (xiv) Active protection radar and missile warning radar with mode(s) 
implemented for detection of incoming munitions;
    (xv) Over the horizon high frequency sky-wave (ionosphere) radar;
    (xvi) Radar that detects a moving object through a physical 
obstruction at distance greater than 0.2 m from the obstruction;
    (xvii) Radar having moving target indicator (MTI) or pulse-Doppler 
processing where any single Doppler filter provides a normalized clutter 
attenuation of greater than 60dB;

    Note to paragraph (a)(3)(xvii): Normalized clutter attenuation is 
defined as the reduction in the power level of received distributed 
clutter when normalized to the thermal noise level.

    (xviii) Radar having electronic protection or electronic counter-
countermeasures (ECCM) other than manual gain control, automatic gain 
control, radio frequency selection, constant false alarm rate, and pulse 
repetition interval jitter;
    (xix) Radar employing electronic attack (EA) mode(s) using the radar 
transmitter and antenna;
    (xx) Radar employing electronic support (ES) mode(s) (i.e., the 
ability to use a radar system for ES purposes in one or more of the 
following: as a high-gain receiver, as a wide-bandwidth receiver, as a 
multi-beam receiver, or as part of a multi-point system);
    (xxi) Radar employing non-cooperative target recognition (NCTR) 
(i.e., the ability to recognize a specific platform type without 
cooperative action of the target platform);

    Note to paragraph (a)(3)(xxi): The definition of ``type'' in this 
paragraph is that provided in 14 CFR Sec.  1.1.

    (xxii) Radar employing automatic target recognition (ATR) (i.e., 
recognition of target using structural features (e.g., tank versus car) 
of the target with system resolution better than (less than) 0.3 m);
    (xxiii) Radar that sends interceptor guidance commands or provides 
illumination keyed to an interceptor seeker;
    (xxiv) Radar employing waveform generation for LPI other than 
frequency modulated continuous wave (FMCW) with linear ramp modulation;
    (xxv) Radar that sends and receives communications;
    (xxvi) Radar that tracks or discriminates ballistic missile warhead 
from debris or countermeasures;
    (xxvii) Bi-static/multi-static radar that exploits greater than 125 
kHz bandwidth and is lower than 2 GHz center frequency to passively 
detect or track using radio frequency (RF) transmissions (e.g., 
commercial radio, television stations);
    (xxviii) Radar target generators, projectors, or simulators, 
specially designed for radars controlled by this category; or
    (xxix) Radar and laser radar systems specially designed for defense 
articles in paragraph (a)(1) of USML Category IV or paragraphs (a)(5), 
(a)(6), or (a)(13) of USML Category VIII (MT if specially designed for 
rockets, space launch vehicles, missiles, drones, or unmanned aerial 
vehicles capable of delivering a payload of at least 500 kg to a range 
of at least 300 km);

    Note 1 to paragraph (a)(3)(xxix): Laser radar systems embody 
specialized transmission, scanning, receiving, and signal processing 
techniques for utilization of lasers for echo ranging, direction 
finding, and discrimination of targets by location, radial speed, and 
body reflection characteristics.
    Note 2 to paragraph (a)(3)(xxix): For definition of ``range'' as it 
pertains to rocket systems, see note 1 to paragraph (a) of USML Category 
IV. ``Payload'' is the total mass that can be carried or delivered by 
the specified rocket, SLV, or missile that is not used to maintain 
flight.
    Note to paragraph (a)(3): This paragraph does not control: (a) 
Systems or equipment that require aircraft transponders in order to meet 
control parameters; (b) precision approach radar (PAR) equipment 
conforming to ICAO standards and employing electronically steerable 
linear (1- dimensional) arrays or mechanically positioned passive 
antennas; and (c) radio altimeter equipment conforming to FAA TSO C87.

    * (4) Electronic Combat (i.e., Electronic Warfare) systems and 
equipment, as follows:
    (i) ES systems and equipment that search for, intercept and 
identify, or locate sources of intentional or unintentional 
electromagnetic energy specially designed to provide immediate threat 
detection, recognition, targeting, planning, or conduct of future 
operations;

    Note to paragraph (a)(4)(i): ES provides tactical situational 
awareness, automatic cueing, targeting, electronic order of battle 
planning, electronic intelligence (ELINT), communication intelligence 
(COMINT), or signals intelligence (SIGINT).

    (ii) Systems and equipment that detect and automatically 
discriminate acoustic energy emanating from weapons fire (e.g., gunfire, 
artillery, rocket propelled grenades, or other projectiles), determining 
location or direction of weapons fire in less than two seconds from 
receipt of event signal, and able to operate on-the-move (e.g., 
operating on personnel, land vehicles, sea vessels, or aircraft while in 
motion); or
    (iii) Systems and equipment specially designed to introduce 
extraneous or erroneous

[[Page 491]]

signals into radar, infrared based seekers, electro-optic based seekers, 
radio communication receivers, navigation receivers, or that otherwise 
hinder the reception, operation, or effectiveness of adversary 
electronics (e.g., active or passive electronic attack, electronic 
countermeasure, electronic counter-countermeasure equipment, jamming, 
and counter jamming equipment);
    * (5) Command, control, and communications (C3); command, control, 
communications, and computers (C4); command, control, communications, 
computers, intelligence, surveillance, and reconnaissance (C4ISR); and 
identification systems or equipment, that:
    (i) Are specially designed to integrate, incorporate, network, or 
employ defense articles that are controlled in paragraphs or 
subparagraphs of the categories of Sec.  121.1 of this part that do not 
use the term specially designed;
    (ii) Incorporate U.S. government identification friend or foe (IFF) 
Modes 4 or 5;
    (iii) Implement active or passive ECCM used to counter acts of 
communication disruption (e.g., radios that incorporate HAVE QUICK I/II, 
SINCGARS, SATURN);
    (iv) Specially designed, rated, certified, or otherwise specified or 
described to be in compliance with U.S. government NSTISSAM TEMPEST 1-92 
standards or CNSSAM TEMPEST 01-02, to implement techniques to suppress 
compromising emanations of information bearing signals; or
    (v) Transmit voice or data signals specially designed to elude 
electromagnetic detection;
    (6) [Reserved]
    (7) Developmental electronic equipment or systems funded by the 
Department of Defense via contract or other funding authorization;

    Note 1 to paragraph (a)(7): This paragraph does not control 
electronic systems or equipment (a) in production, (b) determined to be 
subject to the EAR via a commodity jurisdiction determination (see Sec.  
120.4 of this subchapter), or (c) identified in the relevant Department 
of Defense contract or other funding authorization as being developed 
for both civil and military applications.
    Note 2 to paragraph (a)(7): Note 1 does not apply to defense 
articles enumerated on the USML, whether in production or development.
    Note 3 to paragraph (a)(7): This paragraph is applicable only to 
those contracts and funding authorizations that are dated July 1, 2015, 
or later.

    (8) Unattended ground sensor (UGS) systems or equipment having all 
of the following:
    (i) Automatic target detection;
    (ii) Automatic target tracking, classification, recognition, or 
identification;
    (iii) Self-forming or self-healing networks; and
    (iv) Self-localization for geo-locating targets;
    (9) Electronic sensor systems or equipment for non-acoustic 
antisubmarine warfare (ASW) or mine warfare (e.g., magnetic anomaly 
detectors (MAD), electric-field, electromagnetic induction);
    (10) Electronic sensor systems or equipment for detection of 
concealed weapons, having a standoff detection range of greater than 45 
m for personnel or detection of vehicle-carried weapons, not including 
concealed object detection equipment operating in the frequency range 
from 30 GHz to 3,000 GHz and having a spatial resolution of 0.1 
milliradians up to and including 1 milliradians at a standoff distance 
of 100 m;
    (11) Test sets specially designed for testing defense articles 
controlled in paragraphs (a)(3), (a)(4), (a)(5), or (b); or
    (12) Direction finding equipment for determining bearings to 
specific electromagnetic sources or terrain characteristics specially 
designed for defense articles in paragraph (a)(1) of USML Category IV or 
paragraphs (a)(5), (a)(6), or (a)(13) of USML Category VIII (MT if 
specially designed for rockets, SLVs, missiles, drones, or UAVs capable 
of delivering a payload of at least 500 kg to a range of at least 300 
km. See note 2 to paragraph (a)(3)(xxix) of this category).

    Note 1 to paragraph (a): The term Low Probability of Intercept used 
in this paragraph and elsewhere in this category is defined as a class 
of measures that disguise, delay, or prevent the interception of 
acoustic or electromagnetic signals. LPI techniques can involve 
permutations of power management, energy management, frequency 
variability, out-of-receiver-frequency band, low-side lobe antenna, 
complex waveforms, and complex scanning. LPI is also referred to as Low 
Probability of Intercept, Low Probability of Detection, and Low 
Probability of Identification.
    Note 2 to paragraph (a): Paragraphs (a)(3)(xxix) and (a)(12) include 
terrain contour mapping equipment, scene mapping and correlation (both 
digital and analogue) equipment, Doppler navigation radar equipment, 
passive interferometer equipment, and imaging sensor equipment (both 
active and passive).

    * (b) Electronic systems, equipment or software, not elsewhere 
enumerated in this subchapter, specially designed for intelligence 
purposes that collect, survey, monitor, or exploit, or analyze and 
produce information from, the electromagnetic spectrum (regardless of 
transmission medium), or for counteracting such activities.
    (c) Parts, components, accessories, attachments, and associated 
equipment, as follows:

[[Page 492]]

    (1) Application Specific Integrated Circuits (ASICs) and 
Programmable Logic Devices (PLD) programmed for defense articles in this 
subchapter;

    Note 1 to paragraph (c)(1): An ASIC is an integrated circuit 
developed and produced for a specific application or function regardless 
of number of customers.
    Note 2 to paragraph (c)(1): ASICs and PLDs programmed for 600 series 
items are controlled in ECCN 3A611.f.
    Note 3 to paragraph (c)(1): Unprogrammed PLDs are not controlled by 
this paragraph.

    (2) Printed Circuit Boards (PCBs) and populated circuit card 
assemblies for which the layout is specially designed for defense 
articles in this subchapter;

    Note to paragraph (c)(2): PCBs and populated circuit card assemblies 
for which the layout is specially designed for 600 series items are 
controlled in ECCN 3A611.g.

    (3) Multichip modules for which the pattern or layout is specially 
designed for defense articles in this subchapter;

    Note to paragraph (c)(3): Multichip modules for which the pattern or 
layout is specially designed for 600 series items are controlled in ECCN 
3A611.h.

    (4) Transmit/receive modules, transmit/receive monolithic microwave 
integrated circuits (MMICs), transmit modules, and transmit MMICs having 
all of the following:
    (i) A peak saturated power output (in watts), Psat, greater than 
505.62 divided by the maximum operating frequency (in GHz) squared [Psat 
 505.62 W * GHz2/fGHz2] for any channel;
    (ii) A fractional bandwidth of 5% or greater for any channel;
    (iii) Any planar side with length d (in cm) equal to or less than 15 
divided by the lowest operating frequency in GHz [d <= 15cm * GHz/fGHz]; 
and
    (iv) At least one electronically variable phase shifter per channel.

    Note 1 to paragraph (c)(4): A MMIC: (a) Is formed by means of 
diffusion processes, implantation processes, or deposition processes in 
or on a single semiconducting piece of material; (b) can be considered 
as indivisibly associated; (c) performs the function(s) of a circuit; 
and (d) operates at microwave frequencies (i.e., 300 MHz to 300 GHz).
    Note 2 to paragraph (c)(4): A transmit/receive module is a 
multifunction electronic assembly that provides bi-directional amplitude 
and phase control for transmission and reception of signals.
    Note 3 to paragraph (c)(4): A transmit module is an electronic 
assembly that provides amplitude and phase control for transmission of 
signals.
    Note 4 to paragraph (c)(4): A transmit/receive MMIC is a 
multifunction MMIC that provides bi-directional amplitude and phase 
control for transmission and reception of signals.
    Note 5 to paragraph (c)(4): A transmit MMIC is a MMIC that provides 
amplitude and phase control for transmission of signals.
    Note 6 to paragraph (c)(4): USML Category XI(c)(4) applies to 
transmit/receive modules and to transmit modules, with or without a heat 
sink. The value of length d in USML Category XI(c)(4)(iii) does not 
include any portion of the transmit/receive module or transmit module 
that functions as a heat sink.
    Note 7 to paragraph (c)(4): Transmit/receive modules, transmit 
modules, transmit/receive MMICs, and transmit MMICs may or may not have 
N integrated radiating antenna elements, where N is the number of 
transmit or transmit/receive channels.
    Note 8 to paragraph (c)(4): Fractional bandwidth is the bandwidth 
over which output power remains constant within 3 dB (without the 
adjustment of other operating parameters), divided by the center 
frequency, and multiplied by 100. Fractional bandwidth is expressed as a 
percentage.

    (5) High-energy storage capacitors with a repetition rate of 6 
discharges or more per minute and full energy life greater than or equal 
to 10,000 discharges, at greater than 0.2 Amps per Joule peak current, 
that have any of the following:
    (i) Volumetric energy density greater than or equal to 1.5 J/cc; or
    (ii) Mass energy density greater than or equal to 1.3 kJ/kg;
    (6) Radio frequency circulators of any dimension equal to or less 
than one quarter (\1/4\) wavelength of the highest operating frequency 
and isolation greater than 30 dB;
    (7) Polarimeter that detects and measures polarization of radio 
frequency signals within a single pulse;
    (8) Digital radio frequency memory (DRFM) with RF instantaneous 
input bandwidth greater than 400 MHz, and 4 bit or higher resolution 
whose output signal is a translation of the input signal (e.g., changes 
in magnitude, time, frequency) and specially designed parts and 
components therefor;
    (9) Vacuum electronic devices, as follows:
    (i) Multiple electron beam or sheet electron beam devices rated for 
operation at frequencies of 16 GHz or above, and with a saturated power 
output greater than 10,000 W (70 dBm) or a maximum average power output 
greater than 3,000 W (65 dBm); or
    (ii) Cross-field amplifiers with a gain of 15 dB to 17 dB or a duty 
factor greater than 5%;
    (10) Antenna, and specially designed parts and components therefor, 
that:

[[Page 493]]

    (i) Employ four or more elements, electronically steer angular 
beams, independently steer angular nulls, create angular nulls with a 
null depth greater than 20 dB, and achieve a beam switching speed faster 
than 50 milliseconds;
    (ii) Form adaptive null attenuation greater than 35 dB with 
convergence time less than one second;
    (iii) Detect signals across multiple RF bands with matched left hand 
and right hand spiral antenna elements for determination of signal 
polarization; or
    (iv) Determine signal angle of arrival less than two degrees (e.g., 
interferometer antenna);

    Note to paragraph (c)(10): This category does not control Traffic 
Collision Avoidance Systems (TCAS) equipment conforming to FAA TSO C-
119c.

    (11) Radomes or electromagnetic antenna windows that:
    (i) Incorporate radio frequency selective surfaces;
    (ii) Operate in multiple non-adjacent frequency bands for radar 
applications;
    (iii) Incorporate a structure that is specially designed to provide 
ballistic protection from bullets, shrapnel, or blast;
    (iv) Have a melting point greater than 1,300 [deg]C and maintain a 
dielectric constant less than 6 at temperatures greater than 500 [deg]C;
    (v) Are manufactured from ceramic materials with a dielectric 
constant less than 6 at any frequency from 100 MHz to 100 GHz (MT if 
usable in rockets, SLVs, or missiles capable of achieving a range 
greater than or equal to 300 km; or if usable in drones or UAVs capable 
of delivering a payload of at least 500 kg to a range of at least 300 
km. See note 2 to paragraph (a)(3)(xxix) of this category);
    (vi) Maintain structural integrity at stagnation pressures greater 
than 6,000 pounds per square foot; or
    (vii) Withstand combined thermal shock greater than 4.184 x 10\6\ J/
m\2\ accompanied by a peak overpressure of greater than 50 kPa (MT if 
usable in rockets, SLVs, missiles, drones, or UAVs capable of delivering 
a payload of at least 500 kg to a range of at least 300 km and usable in 
protecting against nuclear effects (e.g., Electromagnetic Pulse (EMP), 
X-rays, combined blast and thermal effects). See note 2 to paragraph 
(a)(3)(xxix) of this category);
    (12) Underwater sensors (acoustic vector sensors, hydrophones, or 
transducers) or projectors, specially designed for systems controlled by 
paragraphs (a)(1) and (a)(2) of this category, having any of the 
following:
    (i) A transmitting frequency below 10 kHz for sonar systems;
    (ii) Sound pressure level exceeding 224 dB (reference 1 mPa at 1 m) 
for equipment with an operating frequency in the band from 10 kHz to 24 
kHz inclusive;
    (iii) Sound pressure level exceeding 235 dB (reference 1 mPa at 1 m) 
for equipment with an operating frequency in the band between 24 kHz and 
30 kHz;
    (iv) Forming beams of less than 1[deg] on any axis and having an 
operating frequency of less than 100 kHz;
    (v) Designed to operate with an unambiguous display range exceeding 
5,120 m; or
    (vi) Designed to withstand pressure during normal operation at 
depths exceeding 1,000 m and having transducers with any of the 
following:
    (A) Dynamic compensation for pressure; or
    (B) Incorporating other than lead zirconate titanate as the 
transduction element;
    (13) Parts or components containing piezoelectric materials which 
are specially designed for underwater hardware, equipment, or systems 
controlled by paragraph (c)(12) of this category;
    (14) Tuners specially designed for systems and equipment in 
paragraphs (a)(4) and (b) of this category;
    (15) Electronic assemblies and components, capable of operation at 
temperatures in excess of 125 [deg]C and specially designed for UAVs or 
drones controlled by USML Category VIII, rockets, space launch vehicles 
(SLV), or missiles controlled by USML Category IV capable of achieving a 
range greater than or equal to 300 km (MT) (see Note 2 to paragraph 
(a)(3)(xxix) of this category);
    (16) Hybrid (combined analogue/digital) computers specially designed 
for modeling, simulation, or design integration of systems enumerated in 
paragraphs (a)(1), (d)(1), (d)(2), (h)(1), (h)(2), (h)(4), (h)(8), and 
(h)(9) of USML Category IV or paragraphs (a)(5), (a)(6), or (a)(13) of 
USML Category VIII (MT if for rockets, SLVs, missiles, drones, or UAVs 
capable of delivering a payload of at least 500 kg to a range of at 
least 300 km or their subsystems. See note 2 to paragraph (a)(3)(xxix) 
of this category);
    (17) Chaff and flare rounds specially designed for the systems and 
equipment described in paragraph (a)(4)(iii) of this category, and parts 
and components therefor containing materials controlled in USML Category 
V;
    (18) Parts, components, or accessories specially designed for an 
information assurance/information security system or radio controlled in 
this subchapter that modify its published properties (e.g., frequency 
range, algorithms, waveforms, CODECs, or modulation/demodulation 
schemes); or
    * (19) Any part, component, accessory, attachment, equipment, or 
system that (MT for those articles designated as such):
    (i) Is classified;
    (ii) Contains classified software directly related to defense 
articles in this subchapter or 600 series items subject to the EAR; or

[[Page 494]]

    (iii) Is being developed using classified information (see Sec.  
120.10(a)(2) of this subchapter).

    Note to paragraph (c)(19): ``Classified'' means classified pursuant 
to Executive Order 13526, or predecessor order, and a security 
classification guide developed pursuant thereto or equivalent, or to the 
corresponding classification rules of another government or 
international organization.
    Note to paragraph (c)(19)(ii): Parts and components controlled by 
this paragraph are limited to those that store, process, or transmit 
classified software (see Sec.  121.8(f) of this subchapter).

    (d) Technical data (see Sec.  120.10 of this subchapter) and defense 
services (see Sec.  120.9 of this subchapter) directly related to the 
defense articles described in paragraphs (a) through (c) of this 
category and classified technical data directly related to items 
controlled in CCL ECCNs 3A611, 3B611, 3C611, and 3D611 and defense 
services using the classified technical data. (See Sec.  125.4 of this 
subchapter for exemptions.) (MT for technical data and defense services 
related to articles designated as such.)
    (e)-(w) [Reserved];
    (x) Commodities, software, and technology subject to the EAR (see 
Sec.  120.42 of this subchapter) used in or with defense articles.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles where the purchase documentation 
includes commodities, software, or technology subject to the EAR (see 
Sec.  123.1(b) of this subchapter).
    Note to Category XI: Category XI does not control transmit/receive 
modules, transmit/receive MMICs, transmit modules, or transmit MMICs 
that incorporate or are MMICs fabricated exclusively with homojunction 
CMOS silicon-based circuits on silicon substrates, or radars and radar 
antennas specially designed to use only such modules or MMICs.

   Category XII--Fire Control, Laser, Imaging, and Guidance Equipment

    (a) Fire control, aiming, detection, guidance, and tracking systems, 
as follows:
    * (1) Fire control systems;
    * (2) Electronic or optical weapon positioning, laying, or spotting 
systems;
    * (3) Laser spot trackers or laser spot detection, location, or 
imaging systems, with an operational wavelength shorter than 400 nm or 
longer than 710 nm and that are for laser target designators or coded 
target markers controlled in paragraph (b)(1);

    Note to paragraph (a)(3): For controls on LIDAR, see paragraph 
(b)(6) of this category.

    * (4) Bomb sights or bombing computers;
    * (5) Electro-optical systems that automatically detect and locate 
ordnance launch, blast, or fire;
    * (6) Electro-optical ordnance guidance systems;
    * (7) Missile or ordnance electro-optical tracking systems;
    * (8) Remote wind-sensing systems specially designed for ballistic-
corrected aiming; or
    (9) Helmet mounted display (HMD) systems or end items (e.g., Combat 
Vehicle Crew HMD, Mounted Warrior HMD, Integrated Helmet Assembly 
Subsystem, Drivers Head Tracked Vision System), other than such items 
controlled in Category VIII, that:
    (i) Incorporate or interface (either via wired or wireless 
connection) with optical sights or slewing devices that aim, launch, 
track, or manage munitions; or
    (ii) Control infrared imaging systems or end items described in 
paragraphs (a) through (d) of this category.
    * (b) Laser systems and end items, as follows:
    (1) Laser target designators or coded target markers, that mediate 
the delivery of ordnance to a target;
    (2) Target illumination systems having a variable beam divergence 
and a laser output wavelength exceeding 710 nm, to artificially light an 
area to search, locate, or track a target;
    (3) Laser rangefinders having any of the following:
    (i) Output wavelength of 1064 nm and any Q-switched pulse output; or
    (ii) Output wavelength exceeding 1064 nm and any of the following:
    (A) Single or multiple shot(s) within one second ranging capability 
of 3 km or greater against a standard 2.3 m x 2.3 m NATO target having 
10% reflectivity and 23 km atmospheric visibility; or
    (B) Multiple shot ranging capability at 3 Hz or greater of 1 km or 
greater against a standard 2.3 m x 2.3 m NATO target having 10% 
reflectivity and 23 km atmospheric visibility;
    (4) Targeting systems and target location systems, incorporating or 
specially designed to incorporate both of the following:
    (i) A laser rangefinder; and
    (ii) A defense article controlled in paragraph (d) of this category 
(MT if designed or modified for rockets, missiles, space launch vehicles 
(SLVs), drones, or unmanned aerial vehicle systems capable of delivering 
at least a 500 kg payload to a range of at least 300 km);
    (5) Systems specially designed to use laser energy with an output 
wavelength exceeding 710 nm for exploiting differential target-
background retroreflectance in order to detect optical/electro-optical 
equipment (e.g., optical augmentation systems);

[[Page 495]]

    (6) Light detection and ranging (LIDAR), laser detection and ranging 
(LADAR), or range-gated systems, specially designed for a military end 
user
    (MT if designed or modified for rockets, missiles, SLVs, drones, or 
unmanned aerial vehicle systems capable of delivering at least a 500 kg 
payload to a range of at least 300 km); or
    (7) Developmental lasers or laser systems funded by the Department 
of Defense via contract or other funding authorization.

    Note 1 to paragraph (b)(7): This paragraph does not control lasers 
or laser systems: (a) In production, (b) determined to be subject to the 
EAR via a Commodity Jurisdiction determination (see Sec.  120.4 of this 
subchapter), or (c) identified in the relevant Department of Defense 
contract or other funding authorization as being developed for both 
civil and military applications.
    Note 2 to paragraph (b)(7): Note 1 does not apply to defense 
articles enumerated on the U.S. Munitions List, whether in production or 
development.
    Note 3 to paragraph (b)(7): This provision is applicable to those 
contracts or other funding authorizations that are dated October 12, 
2017 or later.

    * (c) Imaging systems or end items, as follows:
    (1) Binoculars, bioculars, monoculars, goggles, or head or helmet-
mounted imaging systems (including video-based articles having a 
separate near-to-eye display), as follows:
    (i) Employing an autogated third generation image intensifier tube 
or a higher generation image intensifier tube;
    (ii) Fusing output of an image intensifier tube and an infrared 
focal plane array having a peak response wavelength greater than 1,000 
nm; or
    (iii) Having an infrared focal plane array or infrared imaging 
camera, and specially designed for a military end user;
    (2) Weapon sights (i.e., with a reticle) or aiming or imaging 
systems (e.g., clip-on), specially designed to mount to a weapon or to 
withstand weapon shock or recoil, with or without an integrated viewer 
or display, and also incorporating or specially designed to incorporate 
any of the following:
    (i) An infrared focal plane array having a peak response wavelength 
exceeding 1,000 nm;
    (ii) Second generation with luminous sensitivity greater than 350 
[micro]A/lm, third generation, or higher generation, image intensifier 
tubes;
    (iii) Ballistic computing electronics for adjusting the aim point 
display; or
    (iv) Infrared laser having a wavelength exceeding 710 nm;
    (3) Electro-optical reconnaissance, surveillance, target detection, 
or target acquisition systems, specially designed for articles in this 
subchapter or specially designed for a military end user (MT if for 
determining bearings to specific electromagnetic sources (direction 
finding equipment) or terrain characteristics and designed or modified 
for rockets, missiles, SLVs, drones, or unmanned aerial vehicle systems 
capable of delivering at least a 500 kg payload to a range of at least 
300 km);
    (4) Infrared search and track (IRST) systems having one of the 
following:
    (i) Airborne or naval systems, that:
    (A) Have range performance of 3 km or greater;
    (B) Incorporate or are specially designed to incorporate an infrared 
focal plane array or imaging camera, having a peak response wavelength 
exceeding 3 microns or greater; and
    (C) Maintain positional or angular state of a target through time; 
or
    (ii) Specially designed for a military end user;
    (5) Distributed aperture systems having a peak response wavelength 
exceeding 710 nm specially designed for articles in this subchapter or 
specially designed for a military end user;
    (6) Infrared imaging systems, as follows:
    (i) Mobile reconnaissance, scout, or surveillance systems providing 
real-time target recognition at ranges greater than 3 km (e.g., LRAS, 
CIV, HTI, SeeSpot, MMS);

    Note to paragraph (c)(6)(i): Target is defined as a NATO standard 
tank target having a frontal cross-section of 2.3 x 2.3 meters, and a 
side cross-section of 2.3 x 6.4 meters.

    (ii) Airborne stabilized systems specially designed for military 
reconnaissance (e.g., DB-110, C-B4);
    (iii) Multispectral imaging systems that provide automated 
classification or identification of military or intelligence targets or 
characteristics;
    (iv) Automated missile detection or warning systems;
    (v) Systems hardened to withstand electromagnetic pulse (EMP), 
directed energy, chemical, biological, or radiological threats;
    (vi) Systems incorporating mechanism(s) to reduce the optical chain 
signature for optical augmentation;
    (vii) Persistent surveillance systems with a ground sample distance 
(GSD) of 0.5 m or better (smaller) at 10,000 ft or higher above ground 
level and a simultaneous coverage area of 3 km\2\ or greater;
    (viii) Gimbaled infrared systems, as follows:
    (A) Having a stabilization better (less) than 30 microradians RMS 
and a turret with a ball diameter of 15 inches or greater; or
    (B) Specially designed for articles in this subchapter or specially 
designed for a military end user;

[[Page 496]]

    (7) Terahertz imaging systems as follows:
    (i) Concealed object detection systems operating in the frequency 
range from 30 GHz to 3000 GHz, and having a resolution less (better) 
than 0.1 milliradians at a standoff range of 100 m; or
    (ii) Specially designed for a military end user;
    (8) Systems or equipment, incorporating an ultraviolet or infrared 
(IR) beacon or emitter, specially designed for Combat Identification;
    (9) Systems that project radiometrically calibrated scenes at a 
frame rate greater than 30 Hz directly into the entrance aperture of an 
electro-optical or infrared (EO/IR) sensor controlled in this subchapter 
within either the spectral band exceeding 10 nm but not exceeding 400 
nm, or the spectral band exceeding 900 nm but not exceeding 30,000 nm;
    (10) Developmental electro-optical, infrared, or terahertz systems 
funded by the Department of Defense.

    Note 1 to paragraph (c)(10): This paragraph does not control 
electro-optical, infrared, or terahertz imaging systems: (a) In 
production, (b) determined to be subject to the EAR via a Commodity 
Jurisdiction determination (see Sec.  120.4 of this subchapter), or (c) 
identified in the relevant Department of Defense contract or other 
funding authorization as being developed for both civil and military 
applications.
    Note 2 to paragraph (c)(10): Note 1 does not apply to defense 
articles enumerated on the U.S. Munitions List, whether in production or 
development.
    Note 3 to paragraph (c)(10): This provision is applicable to those 
contracts or other funding authorizations that are dated October 12, 
2017 or later.

    (d) Guidance and navigation systems or end items, as follows:
    (1) Guidance or navigation systems (e.g., inertial navigation 
systems, inertial reference units, attitude and heading reference 
systems) having any of the following:
    (i) A circular error probability at fifty percent (CEP50) of 
position error rate less (better) than 0.28 nautical miles per hour, 
without the use of positional aiding references;
    (ii) A heading error or true north determination of less (better) 
than 0.28 mrad secant (latitude) (0.016043 degrees secant (latitude)), 
without the use of positional aiding references;
    (iii) A CEP50 of position error rate less than 0.2 nautical miles in 
an 8 hour period, without the use of positional aiding references; or
    (iv) Meeting or exceeding specified performance at linear 
acceleration levels exceeding 25g (MT if designed or modified for 
rockets, missiles, SLVs, drones, or unmanned aerial vehicle systems 
capable of a range greater than or equal to 300 km or incorporating 
accelerometers specified in paragraph (e)(11) or gyroscopes or angular 
rate sensors specified in paragraph (e)(12) of this category that are 
designated MT);

    Note 1 to paragraph (d)(1): For rocket, SLV, or missile flight 
control and guidance systems (including guidance sets), see Category 
IV(h).
    Note 2 to paragraph (d)(1): Inertial measurement units are described 
in paragraph (e) of this category.

    (2) Global Navigation Satellite System (GNSS) receiving equipment, 
as follows:
    (i) GNSS receiving equipment specially designed for military 
applications (MT if designed or modified for airborne applications and 
capable of providing navigation information at speeds in excess of 600 
m/s);
    (ii) Global Positioning System (GPS) receiving equipment specially 
designed for encryption or decryption (e.g., Y-Code, M-Code) of GPS 
precise positioning service (PPS) signals (MT if designed or modified 
for airborne applications);
    (iii) GNSS receiving equipment specially designed for use with an 
antenna described in Category XI(c)(10) (MT if designed or modified for 
airborne applications); or
    (iv) GNSS receiving equipment specially designed for use with 
rockets, missiles, SLVs, drones, or unmanned air vehicle systems capable 
of delivering at least a 500 kg payload to a range of at least 300 km 
(MT);

    Note to paragraph (d)(2)(iv): ``Payload'' is the total mass that can 
be carried or delivered by the specified rocket, missile, SLV, drone, or 
unmanned aerial vehicle that is not used to maintain flight. For 
definition of ``range'' as it pertains to rocket systems, see Note 1 to 
paragraph (a) of USML Category IV. For definition of ``range'' as it 
pertains to aircraft systems, see Note 2 to paragraph (a) of USML 
Category VIII.

    (3) GNSS anti-jam systems specially designed for use with an antenna 
described in Category XI(c)(10);
    (4) Mobile relative gravimeters having automatic motion compensation 
with an in-service accuracy of less (better) than 0.4 mGal (MT if 
designed or modified for airborne or marine use and having a time to 
steady-state registration of two minutes or less);
    (5) Mobile gravity gradiometers having an accuracy of less (better) 
than 10 Eotvos squared per radian per second for any component of the 
gravity gradient tensor, and having a spatial gravity wavelength 
resolution of 50 m or less (MT if designed or modified for airborne or 
marine use);

    Note to paragraph (d)(5): ``Eotvos'' is a unit of acceleration 
divided by distance that

[[Page 497]]

was used in conjunction with the older centimeter-gram-second system of 
units. The Eotvos is defined as \1/1,000,000,000\ Galileo (Gal) per 
centimeter.

    (6) Developmental guidance or navigation systems funded by the 
Department of Defense (MT if designed or modified for rockets, missiles, 
SLVs, drones, or unmanned aerial vehicle systems capable of a range 
equal to or greater than 300 km).

    Note 1 to paragraph (d)(6): This paragraph does not control guidance 
or navigation systems: (a) in production, (b) determined to be subject 
to the EAR via a Commodity Jurisdiction determination (see Sec.  120.4 
of this subchapter), or (c) identified in the relevant Department of 
Defense contract or other funding authorization as being developed for 
both civil and military applications.
    Note 2 to paragraph (d)(6): Note 1 does not apply to defense 
articles enumerated on the U.S. Munitions List, whether in production or 
development.
    Note 3 to paragraph (d)(6): This provision is applicable to those 
contracts or other funding authorizations that are dated October 12, 
2017 or later.
    Note 4 to paragraph (d)(6): For definition of ``range'' as it 
pertains to rocket systems, see Note 1 to paragraph (a) of USML Category 
IV. For definition of ``range'' as it pertains to aircraft systems, see 
Note 2 to paragraph (a) of USML Category VIII.

    (e) Parts, components, accessories, or attachments, as follows:
    (1) Parts and components specially designed for articles described 
in paragraph (a)(1) or (a)(5) of this category;
    (2) Lasers specially designed for articles in this subchapter;
    (3) Laser stacked arrays specially designed for articles in this 
subchapter;
    (4) Night vision or infrared cameras (e.g., camera core) specially 
designed for articles in this subchapter;

    Note to paragraph (e)(4): The articles controlled by this paragraph 
have sufficient electronics to enable at a minimum the output of an 
analog or digital signal once power is applied.

    (5) Infrared focal plane arrays specially designed for articles in 
this subchapter;
    (6) Charge multiplication focal plane arrays exceeding 50 mA/W for 
any wavelength exceeding 760 nm and specially designed for articles 
described in this subchapter;
    (7) Second generation and greater image intensifier tubes specially 
designed for articles in this subchapter, and specially designed parts 
and components therefor;

    Note to paragraph (e)(7): Second and third generation image 
intensifier tubes are defined as having a peak response within the 0.4 
to 1.05 micron wavelength range and incorporating a microchannel plate 
for electron image amplification having a hole pitch (center-to-center 
spacing) of less than 25 microns and having either: (a) an S-20, S-25, 
or multialkali photo cathode; or (b) a GaAs, GaInAs, or other III-V 
compound semiconductor photocathode.

    (8) Parts and components specially designed for articles described 
in paragraph (c)(3), (c)(4), (c)(5) or (c)(6)(vi)-(vii) of this 
category;
    (9) Inertial measurement units specially designed for articles in 
this subchapter (MT for systems incorporating accelerometers specified 
in paragraph (e)(11) or gyroscopes or angular rate sensors specified in 
paragraph (e)(12) that are designated MT);
    (10) GNSS security devices (e.g., Selective Availability Anti-
Spoofing Modules (SAASM), Security Modules (SM), and Auxiliary Output 
Chips (AOC));
    (11) Accelerometers having a bias repeatability of less (better) 
than 10 [micro]g and a scale factor repeatability of less (better) than 
10 parts per million, or capable of measuring greater than 100,000 g 
(MT);

    Note 1 to paragraph (e)(11): For weapon fuze accelerometers, see 
Category III(d) or IV(h).
    Note 2 to paragraph (e)(11): MT designation does not include 
accelerometers that are designed to measure vibration or shock.

    (12) Gyroscopes or angular rate sensors as follows:
    (i) Having an angle random walk of less (better) than 0.001 degrees 
per square root hour; or
    (ii) Mechanical gyroscopes or rate sensors having a bias 
repeatability less (better) than 0.0015 degrees per hour (MT if having a 
rated drift stability of less than 0.5 degrees (1 sigma or rms) per hour 
in a 1 g environment or specified to function at acceleration levels 
greater than 100 g);

    Note to paragraphs (e)(11) and (e)(12): ``Repeatability'' is the 
closeness of agreement among repeated measurements of the same variable 
under the same operating conditions when changes in conditions or non-
operating periods occur between measurements.
    ``Bias'' is the accelerometer output when no acceleration is 
applied.
    ``Scale factor'' is the ratio of change in output to a change in the 
input.
    The measurements of ``bias'' and ``scale factor'' refer to one sigma 
standard deviation with respect to a fixed calibration over a period of 
one year.
    ``Drift Rate'' is the component of gyro output that is functionally 
independent of input rotation and is expressed as an angular rate.

[[Page 498]]

    ``Stability'' is a measure of the ability of a specific mechanism or 
performance coefficient to remain invariant when continuously exposed to 
a fixed operating condition. (This definition does not refer to dynamic 
or servo stability.)

    (13) Optical sensors having a spectral filter specially designed for 
systems or equipment controlled in USML Category XI(a)(4), or optical 
sensor assemblies that provide threat warning or tracking for systems or 
equipment controlled in Category XI(a)(4);
    (14) Infrared focal plane array read-out integrated circuits (ROICs) 
specially designed for articles in this subchapter;
    (15) Integrated dewar cooler assemblies specially designed for 
articles in this subchapter, with or without an infrared focal plane 
array, and specially designed parts and components therefor;;
    (16) Gimbals specially designed for articles in this category;
    (17) Infrared focal plane array Joule-Thomson (JT) self-regulating 
cryostats specially designed for articles controlled in this subchapter;
    (18) Infrared lenses, mirrors, beam splitters or combiners, filters, 
and treatments and coatings, specially designed for articles controlled 
in this category;

    Note to paragraph (e)(18): For the purposes of this paragraph, 
treatments and coatings may be analyzed as a part, component, accessory, 
or attachment under paragraph (b) of Sec.  120.41 to determine if they 
are specially designed.

    (19) Drive, control, signal, or image processing electronics, 
specially designed for articles controlled in this category;
    (20) Near-to-eye displays (e.g., micro-displays) specially designed 
for articles controlled in this category;
    (21) Resonators, receivers, transmitters, modulators, gain media, 
drive electronics, and frequency converters, specially designed for 
laser systems controlled in this category;
    (22) Two-dimensional infrared scene projector emitter arrays (i.e., 
resistive arrays) specially designed for infrared scene generators 
controlled in USML Category IX(a)(10);
    * (23) Any part, component, accessory, attachment, or associated 
equipment, that:
    (i) Is classified;
    (ii) Contains classified software;
    (iii) Is manufactured using classified production data; or
    (iv) Is being developed using classified information.

    Note to paragraph (e)(23): ``Classified'' means classified pursuant 
to Executive Order 13526, or predecessor order, and a security 
classification guide developed pursuant thereto or equivalent, or to the 
corresponding classification rules of another government.

    (24) Developmental image intensifier tubes, focal plane arrays, 
read-out-integrated circuits, accelerometers, gyroscopes, angular rate 
sensors, and inertial measurement units funded by the Department of 
Defense (MT if designed or modified for rockets, missiles, SLVs, drones, 
or unmanned aerial vehicle systems capable of a range equal to or 
greater than 300 km).

    Note 1 to paragraph (e)(24): This paragraph does not control items: 
(a) In production, (b) determined to be subject to the EAR via a 
Commodity Jurisdiction determination (see Sec.  120.4 of this 
subchapter), or (c) identified in the relevant Department of Defense 
contract or other funding authorization as being developed for both 
civil and military applications.
    Note 2 to paragraph (e)(24): Note 1 does not apply to defense 
articles enumerated on the U.S. Munitions List, whether in production or 
development.
    Note 3 to paragraph (e)(24): This provision is applicable to those 
contracts or other funding authorizations that are dated October 12, 
2017 or later.

    (f) Technical data (see Sec.  120.10) and defense services (see 
Sec.  120.9) directly related to the defense articles described in 
paragraphs (a) through (e) of this category and classified technical 
data directly related to items controlled in ECCNs 7A611, 7B611, and 
7D611. (See Sec.  125.4 for exemptions.) (MT for technical data and 
defense services related to articles designated as such.)
    (g)-(w) [Reserved]
    (x) Commodities, software, and technology subject to the EAR (see 
Sec.  120.42 of this subchapter) used in or with defense articles 
controlled in this category.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles controlled in this category where the 
purchase documentation includes commodities, software, or technology 
subject to the EAR (see Sec.  123.1(b) of this subchapter).
    Note to Category XII: For purposes of paragraphs (b)(6), 
(c)(1)(iii), (c)(3), (c)(4)(ii), (c)(5), (c)(6)(viii)(b), and (c)(7)(ii) 
of this category, a ``military end user'' means the national armed 
services (army, navy, marine, air force, or coast guard), national 
guard, national police, government intelligence or reconnaissance 
organizations, or any person or entity whose actions or functions are 
intended to support military end uses. A system or end item is not 
specially designed for a military end user if the item was developed 
with knowledge that it is or would be for use by both military end users 
and non-military end users, or if the item was or is being developed 
with no knowledge of use by a particular end user. For the purpose of 
conducting a self-determination of jurisdiction,

[[Page 499]]

documents contemporaneous with the development must establish such 
knowledge. For the purpose of a Commodity Jurisdiction determination, 
the government may base a determination on post-development information 
that evidences such knowledge or is otherwise consistent with Sec.  
120.4 of this subchapter.

          Category XIII-- Materials and Miscellaneous Articles

    (a) [Reserved]
    (b) Information security or information assurance systems and 
equipment, cryptographic devices, software, and components, as follows:
    (1) Military or intelligence cryptographic (including key 
management) systems, equipment, assemblies, modules, integrated 
circuits, components, and software (including their cryptographic 
interfaces) capable of maintaining secrecy or confidentiality of 
information or information systems, including equipment or software for 
tracking, telemetry, and control (TT&C) encryption and decryption;
    (2) Military or intelligence cryptographic (including key 
management) systems, equipment, assemblies, modules, integrated 
circuits, components, and software (including their cryptographic 
interfaces) capable of generating spreading or hopping codes for spread 
spectrum systems or equipment;
    (3) Military or intelligence cryptanalytic systems, equipment, 
assemblies, modules, integrated circuits, components and software;
    (4) Military or intelligence systems, equipment, assemblies, 
modules, integrated circuits, components, or software (including all 
previous or derived versions) authorized to control access to or 
transfer data between different security domains as listed on the 
Unified Cross Domain Management Office (UCDMO) Control List (UCL); or
    (5) Ancillary equipment specially designed for the articles in 
paragraphs (b)(1)-(b)(4) of this category.
    (c) [Reserved]
    (d) Materials, as follows:
    * (1) Ablative materials fabricated or semi-fabricated from advanced 
composites (e.g., silica, graphite, carbon, carbon/carbon, and boron 
filaments) specially designed for the articles in USML Category IV or XV 
(MT if usable for nozzles, re-entry vehicles, nose tips, or nozzle flaps 
usable in rockets, space launch vehicles (SLVs), or missiles capable of 
achieving a range greater than or equal to 300 km); or
    (2) Carbon/carbon billets and preforms that are reinforced with 
continuous unidirectional fibers, tows, tapes, or woven cloths in three 
or more dimensional planes (MT if designed for rocket, SLV, or missile 
systems and usable in rockets, SLVs, or missiles capable of achieving a 
range greater than or equal to 300 km).

    Note to paragraph (d): ``Range'' is the maximum distance that the 
specified rocket system is capable of traveling in the mode of stable 
flight as measured by the projection of its trajectory over the surface 
of the Earth. The maximum capability based on the design characteristics 
of the system, when fully loaded with fuel or propellant, will be taken 
into consideration in determining range. The range for rocket systems 
will be determined independently of any external factors such as 
operational restrictions, limitations imposed by telemetry, data links, 
or other external constraints. For rocket systems, the range will be 
determined using the trajectory that maximizes range, assuming 
International Civil Aviation Organization (ICAO) standard atmosphere 
with zero wind.
    Note to paragraph (d)(2): This paragraph does not control carbon/
carbon billets and preforms where reinforcement in the third dimension 
is limited to interlocking of adjacent layers only.

    (e) Armor (e.g., organic, ceramic, metallic) and armor materials, as 
follows:
    (1) Spaced armor with Em greater than 1.4 and meeting NIJ 
Level III or better;
    (2) Transparent armor having Em greater than or equal to 
1.3 or having Em less than 1.3 and meeting and exceeding NIJ 
Level III standards with areal density less than or equal to 40 pounds 
per square foot;
    (3) Transparent ceramic plate greater than \1/4\ inch-thick and 
larger than 8 inches x 8 inches, excluding glass, for transparent armor;
    (4) Non-transparent ceramic plate or blanks, greater than \1/4\ 
inches thick and larger than 8 inches x 8 inches for transparent armor. 
This includes spinel and aluminum oxynitride (ALON);
    (5) Composite armor with Em greater than 1.4 and meeting 
or exceeding NIJ Level III;
    (6) Metal laminate armor with Em greater than 1.4 and 
meeting or exceeding NIJ Level III; or
    (7) Developmental armor funded by the Department of Defense via 
contract or other funding authorization.

    Note 1 to paragraph (e)(7): This paragraph does not control armor 
(a) in production, (b) determined to be subject to the EAR via a 
commodity jurisdiction determination (see Sec.  120.4 of this 
subchapter), or (c) identified in the relevant Department of Defense 
contract or other funding authorization as being developed for both 
civil and military applications.
    Note 2 to paragraph (e)(7): Note 1 does not apply to defense 
articles enumerated on the USML, whether in production or development.
    Note 3 to paragraph (e)(7): This provision is applicable to those 
contracts and funding authorizations that are dated July 8, 2014, or 
later.


[[Page 500]]


    * (f) Any article enumerated in this category that (MT for those 
articles designated as such):
    (i) Is classified;
    (ii) Contains classified software directly related to defense 
articles in this subchapter or 600 series items subject to the EAR; or
    (iii) Is being developed using classified information.
    ``Classified'' means classified pursuant to Executive Order 13526, 
or predecessor order, and a security classification guide developed 
pursuant thereto or equivalent, or to the corresponding classification 
rules of another government or international organization.
    * (g) Concealment and deception equipment, as follows (MT for 
applications usable for rockets, SLVs, missiles, drones, or unmanned 
aerial vehicles (UAVs) capable of achieving a range greater than or 
equal to 300 km and their subsystems. See note to paragraph (d) of this 
category):
    (1) Polymers loaded with carbonyl iron powder, ferrites, iron 
whiskers, fibers, flakes, or other magnetic additives having a surface 
resistivity of less than 5000 ohms/square and greater than 10 ohms/
square with electrical isotropy of less than 5%;
    (2) Multi-layer camouflage systems specially designed to reduce 
detection of platforms or equipment in the infrared or ultraviolet 
frequency spectrums;
    (3) High temperature (greater than 300 [deg]F operation) ceramic or 
magnetic radar absorbing material (RAM) specially designed for use on 
defense articles or military items subject to the EAR; or
    (4) Broadband (greater than 30% bandwidth) lightweight (less than 2 
lbs/sq ft) magnetic radar absorbing material (RAM) specially designed 
for use on defense articles or military items subject to the EAR.
    (h) Energy conversion devices not otherwise enumerated in this 
subchapter, as follows:
    (1) Fuel cells specially designed for platforms or soldier systems 
specified in this subchapter;
    (2) Thermal engines specially designed for platforms or soldier 
systems specified in this subchapter;
    (3) Thermal batteries (MT if designed or modified for rockets, SLVs, 
missiles, drones, or UAVs capable of achieving a range equal to or 
greater than 300 km. See note to paragraph (d) of this category); or

    Note to paragraph (h)(3): Thermal batteries are single use batteries 
that contain a solid non-conducting inorganic salt as the electrolyte. 
These batteries incorporate a pyrolitic material that, when ignited, 
melts the electrolyte and activates the battery.

    (4) Thermionic generators specially designed for platforms or 
soldier systems enumerated in this subchapter.
    * (i) Signature reduction software, and technical data as follows 
(MT for software specially designed for reduced observables, for 
applications usable for rockets, SLVs, missiles, drones, or UAVs capable 
of achieving a range (see note to paragraph (d) of this category) 
greater than or equal to 300 km, and their subsystems, including 
software specially designed for analysis of signature reduction; MT for 
technical data for the development, production, or use of equipment, 
materials, or software designated as such, including databases specially 
designed for analysis of signature reduction):
    (1) Software associated with the measurement or modification of 
system signatures for defense articles to reduce detectability or 
observability;
    (2) Software for design of low-observable platforms;
    (3) Software for design, analysis, prediction, or optimization of 
signature management solutions for defense articles;
    (4) Infrared signature measurement or prediction software for 
defense articles or radar cross section measurement or prediction 
software;
    (5) Signature management technical data, including codes and 
algorithms for defense articles to reduce detectability or 
observability;
    (6) Signature control design methodology (see Sec.  125.4(c)(4) of 
this subchapter) for defense articles to reduce detectability or 
observability;
    (7) Technical data for use of micro-encapsulation or micro-spheres 
to reduce infrared, radar, or visual detection of platforms or 
equipment;
    (8) Multi-layer camouflage system technical data for reducing 
detection of platforms or equipment;
    (9) Multi-spectral surface treatment technical data for modifying 
infrared, visual or radio frequency signatures of platforms or 
equipment;
    (10) Technical data for modifying visual, electro-optical, 
radiofrequency, electric, magnetic, electromagnetic, or wake signatures 
(e.g., low probability of intercept (LPI) techniques, methods or 
applications) of defense platforms or equipment through shaping, active, 
or passive techniques; or
    (11) Technical data for modifying acoustic signatures of defense 
platforms or equipment through shaping, active, or passive techniques.
    (j) Equipment, materials, coatings, and treatments not elsewhere 
specified, as follows:
    (1) Specially treated or formulated dyes, coatings, and fabrics used 
in the design, manufacture, or production of personnel protective 
clothing, equipment, or face paints designed to protect against or 
reduce detection by radar, infrared, or other sensors at

[[Page 501]]

wavelengths greater than 900 nanometers (see USML Category X(a)(2)); or
    * (2) Equipment, materials, coatings, and treatments that are 
specially designed to modify the electro-optical, radiofrequency, 
infrared, electric, laser, magnetic, electromagnetic, acoustic, electro-
static, or wake signatures of defense articles or 600 series items 
subject to the EAR through control of absorption, reflection, or 
emission to reduce detectability or observability (MT for applications 
usable for rockets, SLVs, missiles, drones, or UAVs capable of achieving 
a range greater than or equal to 300 km, and their subsystems. See note 
to paragraph (d) of this category).
    * (k) Tooling and equipment, as follows:
    (1) Tooling and equipment specially designed for production of low 
observable (LO) components; or
    (2) Portable platform signature field repair validation equipment 
(e.g., portable optical interrogator that validates integrity of a 
repair to a signature reduction structure).
    (l) Technical data (see Sec.  120.10 of this subchapter) directly 
related to the defense articles described in paragraphs (a) through (h), 
(j), and (k) of this category and defense services (see Sec.  120.9 of 
this subchapter) directly related to the defense articles described in 
this category. (See also Sec.  123.20 of this subchapter.) (MT for 
technical data and defense services related to articles designated as 
such.)
    (m) The following interpretations explain and amplify terms used in 
this category and elsewhere in this subchapter:
    (1) Composite armor is defined as having more than one layer of 
different materials or a matrix.
    (2) Spaced armors are metallic or non-metallic armors that 
incorporate an air space or obliquity or discontinuous material path 
effects as part of the defeat mechanism.
    (3) Reactive armor employs explosives, propellants, or other 
materials between plates for the purpose of enhancing plate motion 
during a ballistic event or otherwise defeating the penetrator.
    (4) Electromagnetic armor (EMA) employs electricity to defeat 
threats such as shaped charges.
    (5) Materials used in composite armor could include layers of 
metals, plastics, elastomers, fibers, glass, ceramics, ceramic-glass 
reinforced plastic laminates, encapsulated ceramics in a metallic or 
non-metallic matrix, functionally gradient ceramic-metal materials, or 
ceramic balls in a cast metal matrix.
    (6) For this category, a material is considered transparent if it 
allows 75% or greater transmission of light, corrected for index of 
refraction, in the visible spectrum through a 1 mm thick nominal sample.
    (7) The material controlled in paragraph (e)(4) of this category has 
not been treated to reach the 75% transmission level referenced in 
(m)(6) of this category.
    (8) Metal laminate armors are two or more layers of metallic 
materials which are mechanically or adhesively bonded together to form 
an armor system.
    (9) Em is the line-of-sight target mass effectiveness 
ratio and provides a measure of the tested armor's performance to that 
of rolled homogenous armor, where Em is defined as follows:
[GRAPHIC] [TIFF OMITTED] TR02JA14.000

Where:

[rho]RHA = density of RHA, (7.85 g/cm\3\)
Po = Baseline Penetration of RHA, (mm)
Pr = Residual Line of Sight Penetration, either positive or negative (mm 
          RHA equivalent)
ADTARGET = Line-of-Sight Areal Density of Target (kg/m\2\)

If witness plate is penetrated, Pr is the distance from the 
projectile to the front edge of the witness plate. If not penetrated, 
Pr is negative and is the distance from the back edge of the 
target to the projectile.
    (10) NIJ is the National Institute of Justice and Level III refers 
to the requirements specified in NIJ standard 0108.01 Ballistic 
Resistant Protective Materials.
    (n)-(w) [Reserved]
    (x) Commodities, software, and technical data subject to the EAR 
(see Sec.  120.42 of this subchapter) used in or with defense articles.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles where the purchase documentation 
includes commodities, software, or technical data subject to the EAR 
(see Sec.  123.1(b) of this subchapter).

[[Page 502]]

     Category XIV--Toxicological Agents, Including Chemical Agents, 
               Biological Agents, and Associated Equipment

    * (a) Chemical agents, as follows:
    (1) Nerve agents, as follows:
    (i) O-Alkyl (equal to or less than C10, including 
cycloalkyl) alkyl (Methyl, Ethyl, n-Propyl or Isopropyl) 
phosphonofluoridates, such as: Sarin (GB): O-Isopropyl 
methylphosphonofluoridate (CAS 107-44-8) (CWC Schedule 1A); and Soman 
(GD): O-Pinacolyl methylphosphonofluoridate (CAS 96-64-0) (CWC Schedule 
1A);
    (ii) O-Alkyl (equal to or less than C10, including 
cycloalkyl) N,N-dialkyl (Methyl, Ethyl, n-Propyl or Isopropyl) 
phosphoramidocyanidates, such as: Tabun (GA): O-Ethyl N, N-
dimethylphosphoramidocyanidate (CAS 77-81-6) (CWC Schedule 1A); or
    (iii) O-Alkyl (H or equal to or less than C10, including 
cycloalkyl) S-2-dialkyl (Methyl, Ethyl, n-Propyl or Isopropyl) 
aminoethyl alkyl (Methyl, Ethyl, n-Propyl or Isopropyl) 
phosphonothiolates and corresponding alkylated and protonated salts, 
such as VX: O-Ethyl S-2-diisopropylaminoethyl methyl phosphonothiolate 
(CAS 50782-69-9) (CWC Schedule 1A);
    (2) Amiton: O,O-Diethyl S-[2(diethylamino)ethyl] phosphorothiolate 
and corresponding alkylated or protonated salts (CAS 78-53-5) (CWC 
Schedule 2A);
    (3) Vesicant agents, as follows:
    (i) Sulfur mustards, such as: 2-Chloroethylchloromethylsulfide (CAS 
2625-76-5) (CWC Schedule 1A); Bis(2-chloroethyl)sulfide (HD) (CAS 505-
60-2) (CWC Schedule 1A); Bis(2-chloroethylthio)methane (CAS 63839-13-6) 
(CWC Schedule 1A); 1,2-bis (2-chloroethylthio)ethane (CAS 3563-36-8) 
(CWC Schedule 1A); 1,3-bis (2-chloroethylthio)-n-propane (CAS 63905-10-
2) (CWC Schedule 1A); 1,4-bis (2-chloroethylthio)-n-butane (CWC Schedule 
1A); 1,5-bis (2-chloroethylthio)-n-pentane (CWC Schedule 1A); Bis (2-
chloroethylthiomethyl)ether (CWC Schedule 1A); Bis (2-
chloroethylthioethyl)ether (CAS 63918-89-8) (CWC Schedule 1A);
    (ii) Lewisites, such as: 2-chlorovinyldichloroarsine (CAS 541-25-3) 
(CWC Schedule 1A); Tris (2-chlorovinyl) arsine (CAS 40334-70-1) (CWC 
Schedule 1A); Bis (2-chlorovinyl) chloroarsine (CAS 40334-69-8) (CWC 
Schedule 1A);
    (iii) Nitrogen mustards, or their protonated salts, as follows:
    (A) HN1: Bis (2-chloroethyl) ethylamine (CAS 538-07-8) (CWC Schedule 
1A);
    (B) HN2: Bis (2-chloroethyl) methylamine (CAS 51-75-2) (CWC Schedule 
1A);
    (C) HN3: Tris (2-chloroethyl) amine (CAS 555-77-1) (CWC Schedule 
1A); or
    (D) Other nitrogen mustards, or their salts, having a propyl, 
isopropyl, butyl, isobutyl, or tertiary butyl group on the bis(2-
chloroethyl) amine base;

    Note 1 to paragraph (a)(3)(iii): Pharmaceutical formulations 
containing nitrogen mustards or certain reference standards for these 
formulations are not considered to be chemical agents and are subject to 
the EAR when: (1) The pharmaceutical is in the form of a final medical 
product; or (2) the reference standard contains salts of HN2 [bis(2-
chloroethyl) methylamine], the quantity to be shipped is 150 milligrams 
or less, and individual shipments do not exceed twelve per calendar year 
per end user.
    Note 2 to paragraph (a)(3)(iii): A ``final medical product,'' as 
used in this paragraph, is a pharmaceutical formulation that is (1) 
designed for testing and administration in the treatment of human 
medical conditions, (2) prepackaged for distribution as a clinical or 
medical product, and (3) approved for marketing by the Food and Drug 
Administration or has a valid investigational new drug application (IND) 
in effect, in accordance with 21 CFR part 312.

    (iv) Ethyldichloroarsine (ED) (CAS 598-14-1); or
    (v) Methyldichloroarsine (MD) (CAS 593-89-5);
    (4) Incapacitating agents, such as:
    (i) 3-Quinuclindinyl benzilate (BZ) (CAS 6581-06-2) (CWC Schedule 
2A);
    (ii) Diphenylchloroarsine (DA) (CAS 712-48-1); or
    (iii) Diphenylcyanoarsine (DC) (CAS 23525-22-6);
    (5) Chemical warfare agents not enumerated above adapted for use in 
war to produce casualties in humans or animals, degrade equipment, or 
damage crops or the environment. (See the CCL at ECCNs 1C350, 1C355, and 
1C395 for control of certain chemicals not adapted for use in war.)

    Note to paragraph (a)(5): ``Adapted for use in war'' means any 
modification or selection (such as altering purity, shelf life, 
dissemination characteristics, or resistance to ultraviolet radiation) 
designed to increase the effectiveness in producing casualties in humans 
or animals, degrading equipment, or damaging crops or the environment.
    Note 1 to paragraph (a): Paragraph (a) of this category does not 
include the following: Cyanogen chloride, Hydrocyanic acid, Chlorine, 
Carbonyl chloride (Phosgene), Ethyl bromoacetate, Xylyl bromide, Benzyl 
bromide, Benzyl iodide, Chloro acetone, Chloropicrin 
(trichloronitromethane), Fluorine, and Liquid pepper.
    Note 2 to paragraph (a): Regarding U.S. obligations under the 
Chemical Weapons Convention (CWC), refer to Chemical Weapons Convention 
Regulations (CWCR) (15 CFR parts 710 through 721). As appropriate, the

[[Page 503]]

CWC schedule is provided to assist the exporter.

    * (b) Biological agents and biologically derived substances and 
genetic elements thereof as follows:
    (1) Genetically modified biological agents:
    (i) Having non-naturally occurring genetic modifications that are 
known to or are reasonably expected to result in an increase in any of 
the following:
    (A) Persistence in a field environment (i.e., resistance to oxygen, 
UV damage, temperature extremes, arid conditions, or decontamination 
processes); or
    (B) The ability to defeat or overcome standard detection methods, 
personnel protection, natural or acquired host immunity, host immune 
response, or response to standard medical countermeasures; and
    (ii) Being any micro-organisms/toxins or their non-naturally 
occurring genetic elements as listed below:
    (A) Bacillus anthracis;
    (B) Botulinum neurotoxin producing species of Clostridium;
    (C) Burkholderia mallei;
    (D) Burkholderia pseudomallei;
    (E) Ebola virus;
    (F) Foot-and-mouth disease virus;
    (G) Francisella tularensis;
    (H) Marburg virus;
    (I) Variola major virus (Smallpox virus);
    (J) Variola minor virus (Alastrim);
    (K) Yersinia pestis; or
    (L) Rinderpest virus.
    (2) Biological agent or biologically derived substances controlled 
in ECCNs 1C351, 1C353, or 1C354:
    (i) Physically modified, formulated, or produced as any of the 
following:
    (A) 1-10 micron particle size;
    (B) Particle-absorbed or combined with nano-particles;
    (C) Having coatings/surfactants, or
    (D) By microencapsulation; and
    (ii) Meeting the criteria of paragraph (b)(2)(i) of this category in 
a manner that is known to or is reasonably expected to result in an 
increase in any of the following:
    (A) Persistence in a field environment (i.e., resistant to oxygen, 
UV damage, temperature extremes, arid conditions, or decontamination 
processes);
    (B) Dispersal characteristics (e.g., reduced susceptibility to shear 
forces, optimized electrostatic charges); or
    (C) The ability to defeat or overcome: standard detection methods, 
personnel protection, natural or acquired host immunity, or response to 
standard medical countermeasures.

    Note 1 to paragraph (b): Non-naturally occurring means that the 
modification has not already been observed in nature, was not discovered 
from samples obtained from nature, and was developed with human 
intervention.
    Note 2 to paragraph (b): This paragraph does not control biological 
agents or biologically derived substances when these agents or 
substances have been demonstrated to be attenuated relative to natural 
pathogenic isolates and are incapable of causing disease or intoxication 
of ordinarily affected and relevant species (e.g., humans, livestock, 
crop plants) due to the attenuation of virulence or pathogenic factors. 
This paragraph also does not control genetic elements, nucleic acids, or 
nucleic acid sequences (whether recombinant or synthetic) that are 
unable to produce or direct the biosynthesis of infectious or functional 
forms of the biological agents or biologically derived substances that 
are capable of causing disease or intoxication of ordinarily affected 
and relevant species.
    Note 3 to paragraph (b): Biological agents or biologically derived 
substances that meet both paragraphs (b)(1) and (b)(2) of this category 
are controlled in paragraph (b)(1).

    * (c) Chemical agent binary precursors and key precursors, as 
follows:
    (1) Alkyl (Methyl, Ethyl, n-Propyl or Isopropyl) phosphonyl 
difluorides, such as: DF: Methyl Phosphonyldifluoride (CAS 676-99-3) 
(CWC Schedule 1B); Methylphosphinyldifluoride (CAS 753-59-3) (CWC 
Schedule 2B);
    (2) O-Alkyl (H or equal to or less than C10, including 
cycloalkyl) O-2-dialkyl (methyl, ethyl, n-Propyl or isopropyl) 
aminoethyl alkyl (methyl, ethyl, N-propyl or isopropyl) phosphonite and 
corresponding alkylated and protonated salts, such as QL: O-Ethyl-2-di-
isopropylaminoethyl methylphosphonite (CAS 57856-11-8) (CWC Schedule 
1B);
    (3) Chlorosarin: O-Isopropyl methylphosphonochloridate (CAS 1445-76-
7) (CWC Schedule 1B);
    (4) Chlorosoman: O-Pinacolyl methylphosphonochloridate (CAS 7040-57-
5) (CWC Schedule 1B); or
    (5) Methylphosphonyl dichloride (CAS 676-97-1) (CWC Schedule 2B); 
Methylphosphinyldichloride (CAS 676-83-5) (CWC Schedule 2B).
    (d) [Reserved]
    (e) Defoliants, as follows:
    (1) 2,4,5-trichlorophenoxyacetic acid (CAS 93-76-5) mixed with 2,4-
dichlorophenoxyacetic acid (CAS 94-75-7) (Agent Orange (CAS 39277-47-
9)); or
    (2) Butyl 2-chloro-4-fluorophenoxyacetate (LNF).
    * (f) Parts, components, accessories, attachments, associated 
equipment, materials, and systems, as follows:
    (1) Any equipment for the dissemination, dispersion, or testing of 
articles controlled in paragraphs (a), (b), (c), or (e) of this 
category, as follows:

[[Page 504]]

    (i) Any equipment ``specially designed'' for the dissemination and 
dispersion of articles controlled in paragraphs (a), (b), (c), or (e) of 
this category; or
    (ii) Any equipment ``specially designed'' for testing the articles 
controlled in paragraphs (a), (b), (c), (e), or (f)(4) of this category 
and developed under a Department of Defense contract or other funding 
authorization.
    (2) Any equipment, containing reagents, algorithms, coefficients, 
software, libraries, spectral databases, or alarm set point levels 
developed under a Department of Defense contract or other funding 
authorization, for the detection, identification, warning, or monitoring 
of:
    (i) Articles controlled in paragraphs (a) or (b) of this category; 
or
    (ii) Chemical agents or biological agents specified in the 
Department of Defense contract or other funding authorization.

    Note 1 to paragraph (f)(2): This paragraph does not control articles 
that are (a) determined to be subject to the EAR via a commodity 
jurisdiction determination (see Sec.  120.4 of this subchapter), or (b) 
identified in the relevant Department of Defense contract or other 
funding authorization as being developed for both civil and military 
applications.
    Note 2 to paragraph (f)(2): Note 1 does not apply to defense 
articles enumerated on the USML.

    (3) [Reserved]
    (4) For individual protection or collective protection against the 
articles controlled in paragraphs (a) and (b) of this category, as 
follows:
    (i) M53 Chemical Biological Protective Mask or M50 Joint Service 
General Purpose Mask (JSGPM);
    (ii) Filter cartridges containing sorbents controlled in paragraph 
(f)(4)(iii) or (n) of this category;
    (iii) Carbon meeting MIL-DTL-32101 specifications (e.g., ASZM-TEDA 
carbon); or
    (iv) Ensembles, garments, suits, jackets, pants, boots, or socks for 
individual protection, and liners for collective protection that allow 
no more than 1% breakthrough of GD or no more than 2% breakthrough of 
any other chemical controlled in paragraph (a) of this category, when 
evaluated by executing the applicable standard method(s) of testing 
described in the current version of Test Operating Protocols (TOPs) 08-
2-201 or 08-2-501 and using the defined Department of Defense-specific 
requirements;
    (5)-(6) [Reserved]
    (7) Chemical Agent Resistant Coatings that have been qualified to 
military specifications (MIL-PRF-32348, MIL-DTL-64159, MIL-C-46168, or 
MIL-DTL-53039); or
    (8) Any part, component, accessory, attachment, equipment, or system 
that:
    (i) Is classified;
    (ii) Is manufactured using classified production data; or
    (iii) Is being developed using classified information.

    Note to paragraph (f)(8): ``Classified'' means classified pursuant 
to Executive Order 13526, or predecessor order, and a security 
classification guide developed pursuant thereto or equivalent, or to the 
corresponding classification rules of another government.

    (g) Antibodies, recombinant protective antigens, polynucleotides, 
biopolymers, or biocatalysts (including their expression vectors, 
viruses, plasmids, or cultures of specific cells modified to produce 
them) as follows:
    (1) When exclusively funded by a Department of Defense contract for 
detection of the biological agents at paragraph (b)(1)(ii) of this 
category even if naturally occurring;
    (2) Joint Biological Agent Identification and Diagnostic System 
(JBAIDS) Freeze Dried reagents listed by JRPD-ASY-No and Description 
respectively as follows:
    (i) JRPD-ASY-0016 Q-Fever IVD Kit;
    (ii) JRPD-ASY-0100 Vaccinia (Orthopox);
    (iii) JRPD-ASY-0106 Brucella melitensis (Brucellosis);
    (iv) JRPD-ASY-0108 Rickettsia prowazekii (Rickettsia);
    (v) JRPD-ASY-0109 Burkholderia ssp. (Burkholderia);
    (vi) JRPD-ASY-0112 Eastern equine encephalitis (EEE);
    (vii) JRPD-ASY-0113 Western equine encephalitis (WEE);
    (viii) JRPD-ASY-0114 Venezuelan equine encephalitis (VEE);
    (ix) JRPD-ASY-0122 Coxiella burnetii (Coxiella);
    (x) JRPD-ASY-0136 Influenza A/H5 IVD Detection Kit;
    (xi) JRPD-ASY-0137 Influenza A/B IVD Detection Kit; or
    (xii) JRPD-ASY-0138 Influenza A Subtype IVD Detection Kit;
    (3) Critical Reagent Polymerase (CRP) Chain Reactions (PCR) assay 
kits with Catalog-ID and Catalog-ID Product respectively as follows:
    (i) PCR-BRU-1FB-B-K Brucella Target 1 FastBlock Master Mix 
Biotinylated;
    (ii) PCR-BRU-1FB-K Brucella Target 1 FastBlock Master Mix;
    (iii) PCR-BRU-1R-K Brucella Target 1 LightCycler/RAPID Master Mix;
    (iv) PCR-BURK-2FB-B-K Burkholderia Target 2 FastBlock Master Mix 
Biotinylated;
    (v) PCR-BURK-2FB-K Burkholderia Target 2 FastBlock Master Mix;
    (vi) PCR-BURK-2R-K Burkholderia Target 2 LightCycler/RAPID Master 
Mix;
    (vii) PCR-BURK-3FB-B-K Burkholderia Target 3 FastBlock Master Mix 
Biotinylated;
    (viii) PCR-BURK-3FB-K Burkholderia Target 3 FastBlock Master Mix;

[[Page 505]]

    (ix) PCR-BURK-3R-K Burkholderia Target 3 LightCycler/RAPID Master 
Mix;
    (x) PCR-COX-1FB-B-K Coxiella burnetii Target 1 FastBlock Master Mix 
Biotinylated;
    (xi) PCR-COX-1R-K Coxiella burnetii Target 1 LightCycler/RAPID 
Master Mix;
    (xii) PCR-COX-2R-K Coxiella burnetii Target 2 LightCycler/RAPID 
Master Mix;
    (xiii) PCR-OP-1FB-B-K Orthopox Target 1 FastBlock Master Mix 
Biotinylated;
    (xiv) PCR-OP-1FB-K Orthopox Target 1 FastBlock Master Mix;
    (xv) PCR-OP-1R-K Orthopox Target 1 LightCycler/RAPID Master Mix;
    (xvi) PCR-OP-2FB-B-K Orthopox Target 2 FastBlock Master Mix 
Biotinylated;
    (xvii) PCR-OP-3R-K Orthopox Target 3 LightCycler/RAPID Master Mix;
    (xviii) PCR-RAZOR-BT-X PCR-RAZOR-BT-X RAZOR CRP BioThreat-X 
Screening Pouch;
    (xix) PCR-RIC-1FB-K Ricin Target 1 FastBlock Master Mix;
    (xx) PCR-RIC-1R-K Ricin Target 1 LightCycler/RAPID Master Mix;
    (xxi) PCR-RIC-2R-K Ricin Target 2 LightCycler/RAPID Master Mix; or
    (xxii) PCR-VEE-1R-K Venezuelan equine encephalitis Target 1 
LightCycler/RAPID Master Mix; or
    (4) Critical Reagent Program Antibodies with Catalog ID and Product 
respectively as follows:
    (i) AB-AG-RIC Aff. Goat anti-Ricin;
    (ii) AB-ALVG-MAB Anti-Alphavirus Generic Mab;
    (iii) AB-AR-SEB Aff. Rabbit anti-SEB;
    (iv) AB-BRU-M-MAB1 Anti-Brucella melitensis Mab 1;
    (v) AB-BRU-M-MAB2 Anti-Brucella melitensis Mab 2;
    (vi) AB-BRU-M-MAB3 Anti-Brucella melitensis Mab 3;
    (vii) AB-BRU-M-MAB4 Anti-Brucella melitensis Mab 4;
    (viii) AB-CHOL-0139-MAB Anti-V.cholerae 0139 Mab;
    (ix) AB-CHOL-01-MAB Anti-V. cholerae 01 Mab;
    (x) AB-COX-MAB Anti-Coxiella Mab;
    (xi) AB-EEE-MAB Anti-EEE Mab;
    (xii) AB-G-BRU-A Goat anti-Brucella abortus;
    (xiii) AB-G-BRU-M Goat anti-Brucella melitensis;
    (xiv) AB-G-BRU-S Goat anti-Brucella suis;
    (xv) AB-G-CHOL-01 Goat anti-V.cholerae 0:1;
    (xvi) AB-G-COL-139 Goat anti-V.cholerae 0:139;
    (xvii) AB-G-DENG Goat anti-Dengue;
    (xviii) AB-G-RIC Goat anti-Ricin;
    (xix) AB-G-SAL-T Goat anti-S. typhi;
    (xx) AB-G-SEA Goat anti-SEA;
    (xxi) AB-G-SEB Goat anti-SEB;
    (xxii) AB-G-SEC Goat anti-SEC;
    (xxiii) AB-G-SED Goat anti-SED;
    (xxiv) AB-G-SEE Goat anti-SEE;
    (xxv) AB-G-SHIG-D Goat anti-Shigella dysenteriae;
    (xxvi) AB-R-BA-PA Rabbit anti-Protective Antigen;
    (xxvii) AB-R-COX Rabbit anti-C. burnetii;
    (xxviii) AB-RIC-MAB1 Anti-Ricin Mab 1;
    (xxix) AB-RIC-MAB2 Anti-Ricin Mab 2;
    (xxx) AB-RIC-MAB3 Anti-Ricin Mab3;
    (xxxi) AB-R-SEB Rabbit anti-SEB;
    (xxxii) AB-R-VACC Rabbit anti-Vaccinia;
    (xxxiii) AB-SEB-MAB Anti-SEB Mab;
    (xxxiv) AB-SLT2-MAB Anti-Shigella-like t x2 Mab;
    (xxxv) AB-T2T-MAB1 Anti-T2 Mab 1;
    (xxxvi) AB-T2T-MAB2 Anti-T2 Toxin 2;
    (xxxvii) AB-VACC-MAB1 Anti-Vaccinia Mab 1;
    (xxxviii) AB-VACC-MAB2 Anti-Vaccinia Mab 2;
    (xxxix) AB-VACC-MAB3 Anti-Vaccinia Mab 3;
    (xl) AB-VACC-MAB4 Anti-Vaccinia Mab 4;
    (xli) AB-VACC-MAB5 Anti-Vaccinia Mab 5;
    (xlii) AB-VACC-MAB6 Anti-Vaccinia Mab 6;
    (xliii) AB-VEE-MAB1 Anti-VEE Mab 1;
    (xliv) AB-VEE-MAB2 Anti-VEE Mab 2;
    (xlv) AB-VEE-MAB3 Anti-VEE Mab 3;
    (xlvi) AB-VEE-MAB4 Anti-VEE Mab 4;
    (xlvii) AB-VEE-MAB5 Anti-VEE Mab 5;
    (xlviii) AB-VEE-MAB6 Anti-VEE Mab 6; or
    (xlix) AB-WEE-MAB Anti-WEE Complex Mab.
    (h) Vaccines exclusively funded by a Department of Defense contract, 
as follows:
    (1) Recombinant Botulinum ToxinA/B Vaccine;
    (2) Recombinant Plague Vaccine;
    (3) Trivalent Filovirus Vaccine; or
    (4) Vaccines specially designed for the sole purpose of protecting 
against biological agents and biologically derived substances identified 
in paragraph (b) of this category.

    Note to paragraph (h): See ECCN 1A607.k for military medical 
countermeasures such as autoinjectors, combopens, and creams.

    (i) Modeling or simulation tools, including software controlled in 
paragraph (m) of this category, for chemical or biological weapons 
design, development, or employment developed or produced under a 
Department of Defense contract or other funding authorization (e.g., the 
Department of Defense's HPAC, SCIPUFF, and the Joint Effects Model 
(JEM)).
    (j)-(l) [Reserved]
    (m) Technical data (as defined in Sec.  120.10 of this subchapter) 
and defense services (as defined in Sec.  120.9 of this subchapter) 
directly related to the defense articles enumerated in paragraphs (a) 
through (l) and (n) of this category. (See Sec.  125.4 of this 
subchapter for exemptions.)

[[Page 506]]

    (n) Developmental countermeasures or sorbents funded by the 
Department of Defense via contract or other funding authorization;

    Note 1 to paragraph (n): This paragraph does not control 
countermeasures or sorbents that are (a) in production, (b) determined 
to be subject to the EAR via a commodity jurisdiction determination (see 
Sec.  120.4 of this subchapter), or (c) identified in the relevant 
Department of Defense contract or other funding authorization as being 
developed for both civil and military applications.
    Note 2 to paragraph (n): Note 1 does not apply to defense articles 
enumerated on the USML, whether in production or development.
    Note 3 to paragraph (n): This paragraph is applicable only to those 
contracts and funding authorizations that are dated July 28, 2017, or 
later.

    (o)-(w) [Reserved]
    (x) Commodities, software, and technology subject to the EAR (see 
Sec.  120.42 of this subchapter) used in or with defense articles 
controlled in this category.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles controlled in this category where the 
purchase documentation includes commodities, software, or technology 
subject to the EAR (see Sec.  123.1(b) of this subchapter).

              Category XV-- Spacecraft and Related Articles

    (a) Spacecraft, including satellites and space vehicles, whether 
designated developmental, experimental, research, or scientific, or 
having a commercial, civil, or military end-use, that:
    * (1) Are specially designed to mitigate effects (e.g., 
scintillation) of or for detection of a nuclear detonation;
    * (2) Autonomously detect and track moving ground, airborne, 
missile, or space objects other than celestial bodies, in real-time 
using imaging, infrared, radar, or laser systems;
    * (3) Conduct signals intelligence (SIGINT) or measurement and 
signatures intelligence (MASINT);
    * (4) Are specially designed to be used in a constellation or 
formation that when operated together, in essence or effect, form a 
virtual satellite (e.g., functioning as if one satellite) with the 
characteristics or functions of other items in paragraph (a);
    * (5) Are anti-satellite or anti-spacecraft (e.g., kinetic, RF, 
laser, charged particle);
    * (6) Have space-to-ground weapons systems (e.g., kinetic or 
directed energy);
    * (7) Have any of the following electro-optical remote sensing 
capabilities or characteristics:
    (i) Electro-optical visible and near infrared (VNIR) (i.e., 400nm to 
1,000nm) or infrared (i.e., greater than 1,000nm to 30,000nm) with less 
than 40 spectral bands and having a clear aperture greater than 0.50m;
    (ii) Electro-optical hyperspectral with 40 spectral bands or more in 
the VNIR, short-wavelength infrared (SWIR) (i.e., greater than 1,000nm 
to 2,500nm) or any combination of the aforementioned and having a Ground 
Sample Distance (GSD) less than 30 meters;
    (iii) Electro-optical hyperspectral with 40 spectral bands or more 
in the mid-wavelength infrared (MWIR) (i.e., greater than 2,500nm to 
5,500nm) having a narrow spectral bandwidth of [Delta][lambda] less than 
or equal to 20nm full width at half maximum (FWHM) or having a wide 
spectral bandwidth with [Delta][lambda] greater than 20nm FWHM and a GSD 
less than 200 meters; or
    (iv) Electro-optical hyperspectral with 40 spectral bands or more in 
the long-wavelength infrared (LWIR) (i.e., greater than 5,500nm to 
30,000nm) having a narrow spectral bandwidth of [Delta][lambda] less 
than or equal to 50nm FWHM or having a wide spectral bandwidth with 
[Delta][lambda] greater than 50nm FWHM and a GSD less than 500 meters;

    Note 1 to paragraph (a)(7): Ground Sample Distance (GSD) is measured 
from a spacecraft's nadir (i.e., local vertical) position.
    Note 2 to paragraph (a)(7): Optical remote sensing spacecraft or 
satellite spectral bandwidth is the smallest difference in wavelength 
(i.e., [Delta][lambda]) that can be distinguished at full width at half 
maximum (FWHM) of wavelength [lambda].
    Note 3 to paragraph (a)(7): An optical satellite or spacecraft is 
not Significant Military Equipment (see Sec.  120.7 of this subchapter) 
if non-earth pointing.

    * (8) Have radar remote sensing capabilities or characteristics 
(e.g., active electronically scanned array (AESA), synthetic aperture 
radar (SAR), inverse synthetic aperture radar (ISAR), ultra-wideband 
SAR), except those having a center frequency equal to or greater than 1 
GHz but less than or equal to 10 GHz and having a bandwidth less than 
300 MHz;
    (9) Provide Positioning, Navigation, and Timing (PNT) signals;

    Note to paragraph (a)(9): This paragraph does not control a 
satellite or spacecraft that provides only a differential correction 
broadcast for the purposes of positioning, navigation, or timing.

    (10) Autonomously perform collision avoidance;
    (11) Are sub-orbital, incorporate propulsion systems described in 
paragraph (e) of this category or Category IV(d)(1)-(6) of this section, 
and are specially designed for atmospheric entry or re-entry;

[[Page 507]]

    (12) Are specially designed to provide inspection or surveillance of 
another spacecraft, or service another spacecraft via grappling or 
docking; or

    Note to paragraph (a)(12): This paragraph does not control 
spacecraft that dock exclusively via the NASA Docking System (NDS), 
which are controlled by ECCN 9A515.a.4.

    * (13) Are classified, contain classified software or hardware, are 
manufactured using classified production data, or are being developed 
using classified information (e.g., having classified requirements, 
specifications, functions, or operational characteristics or include 
classified cryptographic items controlled under USML Category XIII of 
this subchapter). ``Classified'' means classified pursuant to Executive 
Order 13526, or predecessor order, and a security classification guide 
developed pursuant thereto or equivalent, or to the corresponding 
classification rules of another government or international 
organization.

    Note 1 to paragraph (a): Spacecraft not identified in this paragraph 
are subject to the EAR (see ECCNs 9A004 and 9A515). Spacecraft described 
in ECCNs 9A004 and 9A515 remain subject to the EAR even if defense 
articles described on the USML are incorporated therein, except when 
such incorporation results in a spacecraft described in this paragraph.
    Note 2 to paragraph (a): This paragraph does not control (a) the 
International Space Station (ISS) and its specially designed (as defined 
in the EAR) parts and components, which are subject to the EAR, or (b) 
those articles for the ISS that are determined to be subject to the EAR 
via a commodity jurisdiction determination (see Sec.  120.4 of this 
subchapter). Use of a defense article on the ISS that was not specially 
designed (as defined in the EAR) for the ISS does not cause the item to 
become subject to the EAR.
    Note 3 to paragraph (a): This paragraph does not control the James 
Webb Space Telescope, which is subject to the EAR.

    (b) Ground control systems or training simulators, specially 
designed for telemetry, tracking, and control (TT&C) of spacecraft in 
paragraph (a) of this category.

    Note to paragraph (b): Parts, components, accessories, attachments, 
equipment, or systems that are common to ground control systems or 
training simulators controlled in this paragraph and those that are used 
for spacecraft not controlled in paragraph (a) of this category are 
subject to the EAR.

    (c)-(d) [Reserved]
    (e) Spacecraft parts, components, accessories, attachments, 
equipment, or systems, as follows:
    (1) Antenna systems specially designed for spacecraft that:
    (i) Have a dimension greater than 25 meters in diameter or length of 
the major axis;
    (ii) Employ active electronic scanning;
    (iii) Are adaptive beam forming; or
    (iv) Are for interferometric radar;
    (2) Space-qualified optics (i.e., lens, mirror or membrane) having 
one of the following:
    (i) Active properties (e.g., adaptive, deformable) with a largest 
lateral clear aperture dimension greater than 0.35m; or
    (ii) A largest lateral clear aperture dimension greater than 0.50m;
    (3) Space-qualified focal plane arrays (FPA) having a peak response 
in the wavelength range exceeding 900nm and readout integrated circuit 
(ROIC), whether separate or integrated, specially designed therefor;
    (4) Space-qualified mechanical (i.e., active) cryocooler or active 
cold finger systems, and associated control electronics specially 
designed therefor;
    (5) Space-qualified active vibration suppression systems, including 
active isolation and active dampening systems, and associated control 
electronics specially designed therefor;
    (6) Optical bench assemblies specially designed to enable spacecraft 
to meet or exceed the parameters described in paragraph (a) of this 
category;
    (7) Space-qualified kinetic or directed-energy systems (e.g., RF, 
laser, charged particle) specially designed for spacecraft in paragraph 
(a)(5) or (a)(6) of this category, and specially designed parts and 
components therefor (e.g., power conditioning and beam-handling/
switching, propagation, tracking, and pointing equipment);
    (8) [Reserved]
    (9) Space-qualified cesium, rubidium, hydrogen maser, or quantum 
(e.g., based upon Al, Hg, Yb, Sr, Be Ions) atomic clocks, and specially 
designed parts and components therefor;
    (10) Attitude determination and control systems, and specially 
designed parts and components therefor, that provide a spacecraft's 
geolocation accuracy, without using Ground Location Points, better than 
or equal to:
    (i) 5 meters (CE90) from low earth orbit (LEO);
    (ii) 30 meters (CE90) from medium earth orbit (MEO);
    (iii) 150 meters (CE90) from geosynchronous orbit (GEO); or
    (iv) 225 meters (CE90) from high earth orbit (HEO);
    (11) Space-based systems, and specially designed parts and 
components therefor, as follows:
    (i) Nuclear reactors and associated power conversion systems (e.g., 
liquid metal or gas-cooled fast reactors);

[[Page 508]]

    (ii) Radioisotope-based power systems (e.g., radioisotope 
thermoelectric generators);
    (iii) Nuclear thermal propulsion systems (e.g., solid core, liquid 
core, gas core fission); or
    (iv) Electric (Plasma/Ion) propulsion systems that provide a thrust 
greater than 300 milli-Newtons and a specific impulse greater than 1,500 
sec; or that operate at an input power of more than 15kW;
    (12) Thrusters (e.g., spacecraft or rocket engines) using bi-
propellants or mono-propellant that provide greater than 150 lbf (i.e., 
667.23 N) vacuum thrust (MT for rocket motors or engines having a total 
impulse capacity equal to or greater than 8.41 x 10[caret]5 
newton seconds);
    (13) Control moment gyroscope (CMG) specially designed for 
spacecraft;
    (14) Space-qualified monolithic microwave integrated circuits (MMIC) 
that combine transmit and receive (T/R) functions on a single die as 
follows:
    (i) Having a power amplifier with maximum saturated peak output 
power (in watts), Psat, greater than 200 divided by the maximum 
operating frequency (in GHz) squared [Psat 200 W* GHz2/
fGHz2]; or
    (ii) Having a common path (e.g., phase shifter-digital attenuator) 
circuit with greater than 3 bits phase shifting at operating frequencies 
10 GHz or below, or greater than 4 bits phase shifting at operating 
frequencies above 10 GHz;
    (15) Space-qualified oscillator for radar in paragraph (a) of this 
category with phase noise less than -120 dBc/Hz + (20 log10(RF) (in 
GHz)) measured at 2 KHz* RF (in GHz) from carrier;
    (16) Space-qualified star tracker or star sensor with angular 
accuracy less than or equal to 1 arcsec (1-Sigma) per star coordinate, 
and a tracking rate equal to or greater than 3.0 deg/sec, and specially 
designed parts and components therefor (MT);
    * (17) Primary, secondary, or hosted payload that performs any of 
the functions described in paragraph (a) of this category;

    Note 1 to paragraph (e)(17): Primary payload is that complement of 
equipment designed from the outset to accomplish the prime mission 
function of the spacecraft payload mission set. The primary payload may 
operate independently from the secondary payload(s). Secondary payload 
is that complement of equipment designed from the outset to be fully 
integrated into the spacecraft payload mission set. The secondary 
payload may operate separately from the primary payload. Hosted payload 
is a complement of equipment or sensors that uses the available or 
excess capacity (mass, volume, power, etc.) of a spacecraft to 
accommodate an additional, independent mission. The hosted payload may 
share the spacecraft bus support infrastructure. The hosted payload 
performs an additional, independent mission which does not dictate 
control or operation of the spacecraft. A hosted payload is not capable 
of operating as an independent spacecraft. Spacecraft bus (distinct from 
the spacecraft payload), provides the support infrastructure of the 
spacecraft (e.g., command and data handling, communications and 
antenna(s), electrical power, propulsion, thermal control, attitude and 
orbit control, guidance, navigation and control, structure and truss, 
life support (for crewed mission)) and location (e.g., attachment, 
interface) for the spacecraft payload. Spacecraft payload is that 
complement of equipment attached to the spacecraft bus that performs a 
particular mission in space (e.g., communications, observation, 
science).
    Note 2 to paragraph e)(17): An ECCN 9A004 or ECCN 9A515.a spacecraft 
remains a spacecraft subject to the EAR even when incorporating a hosted 
payload performing a function described in paragraph (a) of this 
category. All spacecraft that incorporate primary or secondary payloads 
that perform a function described in paragraph (a) of this category are 
controlled by that paragraph. This paragraph does not control primary or 
secondary payloads of the James Webb Space Telescope, which are subject 
to the EAR.

    * (18) Secondary or hosted payload, and specially designed parts and 
components therefor, developed with Department of Defense-funding;

    Note 1 to paragraph (e)(18): This paragraph does not control 
payloads that are (a) determined to be subject to the EAR via a 
commodity jurisdiction determination (see Sec.  120.4 of this 
subchapter), or (b) identified in the relevant Department of Defense 
contract or other funding authorization or agreement as being developed 
for both military and either civil or commercial applications.
    Note 2 to paragraph (e)(18): This paragraph is applicable only to 
those contracts or funding authorizations or agreements that are dated 
May 13, 2015, or later.

    (19) Spacecraft heat shields or heat sinks specially designed for 
atmospheric entry or re-entry, and specially designed parts and 
components therefor (MT if usable in rockets, SLVs, missiles, drones, or 
UAVs capable of delivering a payload of at least 500 kg to a range of at 
least 300 km);

    Note to paragraph (e)(19): ``Payload'' is the total mass that can be 
carried or delivered by the specified rocket, SLV, missile, drone, or 
UAV that is not used to maintain flight. For definition of ``range'' as 
it pertains to aircraft systems, see note to paragraph (a) of USML 
Category VIII. For definition of ``range'' as it pertains to rocket 
systems, see note 1 to paragraph (a) of USML Category IV.


[[Page 509]]


    (20) Equipment modules, stages, or compartments that incorporate 
propulsion systems described in paragraph (e) of this category or 
Category IV(d)(1)-(6) of this section, and can be separated or 
jettisoned from another spacecraft; or
    * (21) Any part, component, accessory, attachment, equipment, or 
system that:
    (i) Is classified;
    (ii) Contains classified software; or
    (iii) Is being developed using classified information.

    Note to paragraph (e)(21): ``Classified'' means classified pursuant 
to Executive Order 13526, or predecessor order, and a security 
classification guide developed pursuant thereto or equivalent, or to the 
corresponding classification rules of another government or 
international organization.
    Note 1 to paragraph (e): Parts, components, accessories, 
attachments, equipment, or systems specially designed for spacecraft or 
other articles enumerated in this category but not listed in paragraph 
(e) are subject to the EAR.
    Note 2 to paragraph (e): The articles described in this paragraph 
are subject to the EAR when, prior to export, reexport, retransfer, or 
temporary import, they are integrated into and included as an integral 
part of an item subject to the EAR (see note 2 to paragraph (e)(17) of 
this category). Articles do not become subject to the EAR until 
integrated into the item subject to the EAR. Export, reexport, 
retransfer, or temporary import of, and technical data and defense 
services directly related to defense articles intended to be integrated 
remain subject to the ITAR.
    Note 3 to paragraph (e): For the purposes of this paragraph, an 
article is space-qualified if it is designed, manufactured, or qualified 
through successful testing, for operation at altitudes greater than 100 
km above the surface of the Earth. The use of an altitude of 100 km 
above the surface of the Earth in this paragraph does not represent a 
legal demarcation between national air space and outer space under 
United States or international law.
    Note 4 to paragraph (e): (1) A determination that a specific article 
(or commodity) (e.g., by product serial number) is space-qualified by 
virtue of testing alone does not mean that other articles in the same 
production run or model series are space-qualified if not individually 
tested. (2) ``Article'' is synonymous with ``commodity,'' as defined in 
EAR Sec.  772.1. (3) A specific article not designed or manufactured for 
use at altitudes greater than 100 km above the surface of the Earth is 
not space-qualified before it is successfully tested. (4) The terms 
``designed'' and ``manufactured'' in this definition are synonymous with 
``specially designed.''

    (f) Technical data (see Sec.  120.10 of this subchapter) and defense 
services (see Sec.  120.9 of this subchapter) directly related to the 
defense articles described in paragraphs (a) through (e) of this 
category and classified technical data directly related to items 
controlled in ECCNs 9A515, 9B515, or 9D515 and defense services using 
the classified technical data. Defense services include the furnishing 
of assistance (including training) to a foreign person in the 
integration of a satellite or spacecraft to a launch vehicle, including 
both planning and onsite support, regardless of the jurisdiction, 
ownership, or origin of the satellite or spacecraft, or whether 
technical data is used. It also includes the furnishing of assistance 
(including training) to a foreign person in the launch failure analysis 
of a satellite or spacecraft, regardless of the jurisdiction, ownership, 
or origin of the satellite of spacecraft, or whether technical data is 
used. (See Sec.  125.4 of this subchapter for exemptions, and Sec.  
124.15 of this subchapter for special export controls for satellites and 
satellite launches.) (MT for technical data and defense services related 
to articles designated as such.)

    Note 1 to paragraph (f): The technical data control of this 
paragraph does not apply to certain technical data directly related to 
articles described in paragraphs (c) or (e) of this category when such 
articles are integrated into and included as an integral part of a 
satellite subject to the EAR. For controls in these circumstances, see 
ECCN 9E515. This only applies to that level of technical data (including 
marketing data) necessary and reasonable for a purchaser to have 
assurance that a U.S. built item intended to operate in space has been 
designed, manufactured, and tested in conformance with specified 
contract requirements (e.g., operational performance, reliability, 
lifetime, product quality, or delivery expectations) as well as data 
necessary for normal orbit satellite operations, to evaluate in-orbit 
anomalies, and to operate and maintain associated ground station 
equipment (except encryption hardware).
    Note 2 to paragraph (f): Activities and technology/technical data 
directly related to or required for the spaceflight (e.g., sub-orbital, 
orbital, lunar, interplanetary, or otherwise beyond Earth orbit) 
passenger or participant experience, regardless of whether the passenger 
or participant experience is for space tourism, scientific or commercial 
research, commercial manufacturing/production activities, educational, 
media, or commercial transportation purposes, are not subject to the 
ITAR or the EAR. Such activities and technology/technical data include 
those directly related to or required for: (a) Spacecraft access, 
ingress, and egress, including the operation of all spacecraft doors, 
hatches, and airlocks; (b) physiological

[[Page 510]]

training (e.g., human-rated centrifuge training or parabolic flights, 
pressure suit or spacesuit training/operation); (c) medical evaluation 
or assessment of the spaceflight passenger or participant; (d) training 
for and operation by the passenger or participant of health and safety 
related hardware (e.g., seating, environmental control and life support, 
hygiene facilities, food preparation, exercise equipment, fire 
suppression, communications equipment, safety-related clothing or 
headgear) or emergency procedures; (e) viewing of the interior and 
exterior of the spacecraft or terrestrial mock-ups; (f) observing 
spacecraft operations (e.g., pre-flight checks, landing, in-flight 
status); (g) training in spacecraft or terrestrial mock-ups for 
connecting to or operating passenger or participant equipment used for 
purposes other than operating the spacecraft; or (h) donning, wearing, 
or utilizing the passenger's or participant's flight suit, pressure 
suit, or spacesuit, and personal equipment.
    Note 3 to paragraph (f): Paragraph (f) and ECCNs 9E001, 9E002 and 
9E515 do not control the data transmitted to or from a satellite or 
spacecraft, whether real or simulated, when limited to information about 
the health, operational status, or measurements or function of, or raw 
sensor output from, the spacecraft, spacecraft payload(s), or its 
associated subsystems or components. Such information is not within the 
scope of information captured within the definition of technology in the 
EAR for purposes of Category 9 Product Group E. Examples of such 
information, which are commonly referred to as ``housekeeping data,'' 
include (i) system, hardware, component configuration, and operation 
status information pertaining to temperatures, pressures, power, 
currents, voltages, and battery charges; (ii) spacecraft or payload 
orientation or position information, such as state vector or ephemeris 
information; (iii) payload raw mission or science output, such as 
images, spectra, particle measurements, or field measurements; (iv) 
command responses; (v) accurate timing information; and (vi) link budget 
data. The act of processing such telemetry data--i.e., converting raw 
data into engineering units or readable products--or encrypting it does 
not, in and of itself, cause the telemetry data to become subject to the 
ITAR or to ECCN 9E515 for purposes of 9A515, or to ECCNs 9E001 or 9E002 
for purposes of 9A004. All classified technical data directly related to 
items controlled in USML Category XV or ECCNs 9A515, and defense 
services using the classified technical data, remains subject to the 
ITAR. This note does not affect controls in USML XV(f), ECCN 9D515, or 
ECCN 9E515 on software source code or commands that control a 
spacecraft, payload, or associated subsystems for purposes of 9A515. 
This note also does not affect controls in ECCNs 9D001, 9D002, 9E001, or 
9E002 on software source code or commands that control a spacecraft, 
payload, or associated subsystems for purposes of 9A004.

    (g)-(w) [Reserved]
    (x) Commodities, software, and technology subject to the EAR (see 
Sec.  120.42 of this subchapter) used in or with defense articles.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles where the purchase documentation also 
includes commodities, software, or technology subject to the EAR (see 
Sec.  123.21(b) of this subchapter).

             Category XVI--Nuclear Weapons Related Articles

    (a) [Reserved]
    * (b) Modeling or simulation tools that model or simulate the 
environments generated by nuclear detonations or the effects of these 
environments on systems, subsystems, components, structures, or humans.
    (c) [Reserved]
    (d) Parts, components, accessories, attachments, associated 
equipment, and production, testing, and inspection equipment and 
tooling, specially designed for the articles in paragraph (b) of this 
category.
    (e) Technical data (see Sec.  120.10 of this subchapter) and defense 
services (see Sec.  120.9 of this subchapter) directly related to the 
defense articles described in paragraph (b) of this category. (See Sec.  
123.20 of this subchapter for nuclear related controls.)
    (f)-(w) [Reserved]
    (x) Commodities, software, and technical data subject to the EAR 
(see Sec.  120.42 of this subchapter) used in or with defense articles.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles where the purchase documentation 
includes commodities, software, or technical data subject to the EAR 
(see Sec.  123.1(b) of this subchapter).

Category XVII--Classified Articles, Technical Data, and Defense Services 
                        Not Otherwise Enumerated

    * (a) All articles, and technical data (see Sec.  120.10 of this 
subchapter) and defense services (see Sec.  120.9 of this subchapter) 
relating thereto, that are classified in the interests of national 
security and that are not otherwise enumerated on the U.S. Munitions 
List.

                 Category XVIII--Directed Energy Weapons

    * (a) Directed energy weapons as follows:
    (1) Systems or equipment that, other than as a result of incidental, 
accidental, or collateral effect:
    (i) Degrade, destroy or cause mission-abort of a target;

[[Page 511]]

    (ii) Disturb, disable, or damage electronic circuitry, sensors or 
explosive devices remotely;
    (iii) Deny area access;
    (iv) Cause lethal effects; or
    (v) Cause ocular disruption or blindness; and
    (2) Use any non-acoustic technique such as lasers (including 
continuous wave or pulsed lasers), particle beams, particle accelerators 
that project a charged or neutral particle beam, high power radio-
frequency (RF), or high pulsed power or high average power radio 
frequency beam transmitters.
    * (b) Systems or equipment specially designed to detect, identify, 
or provide defense against articles specified in paragraph (a) of this 
category.
    (c)-(d) [Reserved]
    (e) Components, parts, accessories, attachments, systems or 
associated equipment specially designed for any of the articles in 
paragraphs (a) or (b) of this category.
    (f) Developmental directed energy weapons funded by the Department 
of Defense via contract or other funding authorization, and specially 
designed parts and components therefor;

    Note 1 to paragraph (f): This paragraph does not control directed 
energy weapons (a) in production, (b) determined to be subject to the 
EAR via a commodity jurisdiction determination (see Sec.  120.4 of this 
subchapter), or (c) identified in the relevant Department of Defense 
contract or other funding authorization as being developed for both 
civil and military applications.
    Note 2 to paragraph (f): Note 1 does not apply to defense articles 
enumerated on the USML, whether in production or development.
    Note 3 to paragraph (f): This paragraph is applicable only to those 
contracts and funding authorizations that are dated July 28, 2017, or 
later.

    (g) Technical data (see Sec.  120.10 of this subchapter) and defense 
services (as defined in Sec.  120.9 of this subchapter) directly related 
to the defense articles enumerated in paragraphs (a) through (e) of this 
category;
    (x) Commodities, software, and technology subject to the EAR (see 
Sec.  120.42 of this subchapter) used in or with defense articles 
controlled in this category.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles controlled in this category where the 
purchase documentation includes commodities, software, or technology 
subject to the EAR (see Sec.  123.1(b) of this subchapter).

       Category XIX--Gas Turbine Engines and Associated Equipment

    * (a) Turbofan and Turbojet engines (including those that are 
technology demonstrators, developmental engines, or variable cycle 
engines) capable of 15,000 lbf (66.7 kN) of thrust or greater that have 
any of the following:
    (1) With or specially designed for thrust augmentation 
(afterburner);
    (2) Thrust or exhaust nozzle vectoring;
    (3) Parts or components controlled in paragraph (f)(6) of this 
category;
    (4) Specially designed for sustained 30 second inverted flight or 
negative g maneuver; or
    (5) Specially designed for high power extraction (greater than 50 
percent of engine thrust at altitude) at altitudes greater than 50,000 
feet.
    * (b) Turboshaft and Turboprop engines (including those that are 
technology demonstrators or developmental engines) that have any of the 
following:
    (1) Capable of 2000 mechanical shp (1491 kW) or greater and 
specially designed with oil sump sealing when the engine is in the 
vertical position; or
    (2) Capable of a specific power of 225 shp/(lbm/sec) or greater and 
specially designed for armament gas ingestion and non-civil transient 
maneuvers, where specific power is defined as maximum takeoff shaft 
horsepower (shp) divided by compressor inlet flow (lbm/sec).
    * (c) Gas turbine engines (including technology demonstrators, 
developmental engines, and variable cycle engines) specially designed 
for unmanned aerial vehicle systems controlled in this subchapter, 
cruise missiles, or target drones (MT if for an engine used in an 
aircraft, excluding manned aircraft, or missile that has a ``range'' 
equal to or greater than 300 km).
    * (d) GE38, AGT1500, CTS800, MT7, T55, HPW3000, GE3000, T408, and 
T700 engines.

    Note to paragraph (d): Engines subject to the control of this 
paragraph are licensed by the Department of Commerce when incorporated 
in an aircraft subject to the EAR and controlled under ECCN 9A610. Such 
engines are subject to the controls of the ITAR in all other 
circumstances.

    * (e) Digital engine control systems (e.g., Full Authority Digital 
Engine Controls (FADEC) and Digital Electronic Engine Controls (DEEC)) 
specially designed for gas turbine engines controlled in this category 
(MT if the digital engine control system is for an aircraft, excluding 
manned aircraft, or missile that has a range equal to or greater than 
300 km).

    Note to paragraph (e): Digital electronic control systems 
autonomously control the engine throughout its whole operating range

[[Page 512]]

from demanded engine start until demanded engine shut-down, in both 
normal and fault conditions.

    (f) Parts, components, accessories, attachments, associated 
equipment, and systems as follows:
    (1) Parts, components, accessories, and attachments specially 
designed for the following U.S.-origin engines (and military variants 
thereof): F101, F107, F112, F118, F119, F120, F135, F136, F414, F415, 
and J402;

    Note to paragraph (f)(1): This paragraph does not control parts, 
components, accessories, and attachments that are common to engines 
enumerated in paragraph (a) through (d) of this category but not 
identified in paragraph (f)(1), and those identified in paragraph 
(f)(1). For example, a part common to only the F110 and F136 is not 
specially designed for purposes of this paragraph. A part common to only 
the F119 and F135--two engine models identified in paragraph (f)(1)--is 
specially designed for purposes of this paragraph, unless one of the 
other paragraphs is applicable under Sec.  120.41(b).

    * (2) Hot section components (i.e., combustion chambers and liners; 
high pressure turbine blades, vanes, disks and related cooled structure; 
cooled intermediate pressure turbine blades, vanes, disks and related 
cooled structures; cooled low pressure turbine blades, vanes, disks and 
related cooled structures; cooled shaft-driving power turbine blades, 
vanes, disks and related cooled structures; cooled augmenters; and 
cooled nozzles) specially designed for gas turbine engines controlled in 
this category;
    (3) Uncooled turbine blades, vanes, disks, and tip shrouds specially 
designed for gas turbine engines controlled in this category;
    (4) Combustor cowls, diffusers, domes, and shells specially designed 
for gas turbine engines controlled in this category;
    (5) Engine monitoring systems (i.e., prognostics, diagnostics, and 
health) specially designed for gas turbine engines and components 
controlled in this category;
    * (6) Any part, component, accessory, attachment, equipment, or 
system that:
    (i) Is classified;
    (ii) Contains classified software directly related to defense 
articles in this subchapter or 600 series items subject to the EAR; or
    (iii) Is being developed using classified information.

    Note to paragraph (f)(6): ``Classified'' means classified pursuant 
to Executive Order 13526, or predecessor order, and a security 
classification guide developed pursuant thereto or equivalent, or to the 
corresponding classification rules of another government or 
international organization;

    (7) Investment casting cores, core dies, or wax pattern dies for 
parts or components enumerated in paragraphs (f)(1), (f)(2), or (f)(3) 
of this category;
    (8) Pressure gain combustors specially designed for engines 
controlled in this category, and specially designed parts and components 
therefor;
    (9) Three-stream fan systems, specially designed for gas turbine 
engines controlled in this Category, that allow the movement of airflow 
between the streams to control fan pressure ratio or bypass ratio (by 
means other than use of fan corrected speed or the primary nozzle area 
to change the fan pressure ratio or bypass ratio), and specially 
designed parts, components, accessories, and attachments therefor;
    (10) High pressure compressors, specially designed for gas turbine 
engines controlled in this Category, with core-driven bypass streams 
that have a pressure ratio greater than one, occurring across any 
section of the bypass duct, and specially designed parts, components, 
accessories, and attachments therefor;
    (11) Intermediate compressors of a three-spool compression system, 
specially designed for gas turbine engines controlled in this Category, 
with an intermediate spool-driven bypass stream that has a pressure 
ratio greater than one, occurring across any section of the bypass duct, 
and specially designed parts, components, accessories, and attachments 
therefor; or
    (12) Any of the following equipment if specially designed for a 
defense article described in paragraph (f)(1): Jigs, locating fixtures, 
templates, gauges, molds, dies, caul plates, or bellmouths.
    (g) Technical data (see Sec.  120.10 of this subchapter) and defense 
services (see Sec.  120.9 of this subchapter) directly related to the 
defense articles described in paragraphs (a) through (f) of this 
category and classified technical data directly related to items 
controlled in ECCNs 9A619, 9B619, 9C619, and 9D619 and defense services 
using the classified technical data. (See Sec.  125.4 of this subchapter 
for exemptions.) (MT for technical data and defense services related to 
articles designated as such.)
    (h)-(w) [Reserved]
    (x) Commodities, software, and technology subject to the EAR (see 
Sec.  120.42 of this subchapter) used in or with defense articles 
controlled in this category.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles controlled in this category where the 
purchase documentation includes commodities, software, or technology 
subject to the EAR (see Sec.  123.1(b) of this subchapter).

[[Page 513]]

          Category XX--Submersible Vessels and Related Articles

    (a) Submersible and semi-submersible vessels that are:
    * (1) Submarines specially designed for military use;
    (2) Mine countermeasure vehicles;
    (3) Anti-submarine warfare vehicles;
    (4) Armed or are specially designed to be used as a platform to 
deliver munitions or otherwise destroy or incapacitate targets (e.g., 
firing torpedoes, launching rockets, firing missiles, deploying mines, 
deploying countermeasures) or deploy military payloads;
    (5) Swimmer delivery vehicles specially designed for the deployment, 
recovery, or support of swimmers or divers from submarines;
    (6) Integrated with nuclear propulsion systems;
    (7) Equipped with any mission systems controlled under this 
subchapter; or

    Note to paragraph (a)(7): ``Mission system'' is defined as a 
``system'' (see Sec.  120.45(g) of this subchapter) that are defense 
articles that perform specific military functions such as by providing 
military communication, electronic warfare, target designation, 
surveillance, target detection, or sensor capabilities.

    (8) Developmental vessels funded by the Department of Defense via 
contract or other funding authorization.

    Note 1 to paragraph (a)(8): This paragraph does not control vessels, 
and specially designed parts, components, accessories, attachments, and 
associated equipment therefor, (a) in production, (b) determined to be 
subject to the EAR via a commodity jurisdiction determination (see Sec.  
120.4 of this subchapter) or (c) identified in the relevant Department 
of Defense contract or other funding authorization as being developed 
for both civil and military applications.
    Note 2 to paragraph (a)(8): Note 1 does not apply to defense 
articles enumerated on the U.S. Munitions List, whether in production or 
development.
    Note 3 to paragraph (a)(8): This provision is applicable to those 
contracts and funding authorizations that are dated July 8, 2014, or 
later.

    * (b) Engines, electric motors, and propulsion plants as follows:
    (1) Naval nuclear propulsion plants and prototypes, and special 
facilities for construction, support, and maintenance therefor (see 
Sec.  123.20 of this subchapter);
    (2) Electric motors specially designed for submarines that have the 
following:
    (i) Power output of more than 0.75 MW (1,000 hp);
    (ii) Quick reversing;
    (iii) Liquid cooled; and
    (iv) Totally enclosed.
    (c) Parts, components, accessories, attachments, and associated 
equipment, including production, testing, and inspection equipment and 
tooling, specially designed for any of the articles in paragraphs (a) 
and (b) of this category (MT for launcher mechanisms specially designed 
for rockets, space launch vehicles, or missiles capable of achieving a 
range greater than or equal to 300 km).

    Note to paragraph (c): ``Range'' is the maximum distance that the 
specified rocket system is capable of traveling in the mode of stable 
flight as measured by the projection of its trajectory over the surface 
of the Earth. The maximum capability based on the design characteristics 
of the system, when fully loaded with fuel or propellant, will be taken 
into consideration in determining range. The range for rocket systems 
will be determined independently of any external factors such as 
operational restrictions, limitations imposed by telemetry, data links, 
or other external constraints. For rocket systems, the range will be 
determined using the trajectory that maximizes range, assuming 
International Civil Aviation Organization (ICAO) standard atmosphere 
with zero wind.

    (d) Technical data (see Sec.  120.10 of this subchapter) and defense 
services (see Sec.  120.9 of this subchapter) directly related to the 
defense articles described in paragraphs (a) through (c) of this 
category. (MT for technical data and defense services related to 
articles designated as such.) (See Sec.  125.4 of this subchapter for 
exemptions.)
    (e)-(w) [Reserved]
    (x) Commodities, software, and technical data subject to the EAR 
(see Sec.  120.42 of this subchapter) used in or with defense articles.

    Note to paragraph (x): Use of this paragraph is limited to license 
applications for defense articles where the purchase documentation 
includes commodities, software, or technical data subject to the EAR 
(see Sec.  123.1(b) of this subchapter).

    Category XXI--Articles, Technical Data, and Defense Services Not 
                          Otherwise Enumerated

    * (a) Any article not enumerated on the U.S. Munitions List may be 
included in this category until such time as the appropriate U.S. 
Munitions List category is amended. The decision on whether any article 
may be included in this category, and the designation of the defense 
article as not Significant Military Equipment (see Sec.  120.7 of this 
subchapter), shall be made by the Director, Office of Defense Trade 
Controls Policy.
    (b) Technical data (see Sec.  120.10 of this subchapter) and defense 
services (see Sec.  120.9 of

[[Page 514]]

this subchapter) directly related to the defense articles covered in 
paragraph (a) of this category.

[58 FR 39287, July 22, 1993]

    Editorial Notes: 1. For Federal Register citations affecting Sec.  
121.1, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.govinfo.gov.

    2. At 79 FR 61228, Oct. 10, 2014, Sec.  121.1 was amended by 
removing the word ``enumerated'' and adding in its place the word 
``described'' in one place in Note 1 to paragraph (i) of Category VI; 
however, the amendment could not be incorporated because of inaccurate 
amendatory instruction.

    Effective Date Note: At 84 FR 45654, Aug. 30, 2019, Sec.  121.1, 
under Category XI, was amended by revising paragraph (b), effective Aug. 
30, 2021. For the convenience of the user, the revised text is set forth 
as follows:



Sec.  121.1  The United States Munitions List.

                                * * * * *

                    Category XI--Military Electronics

                                * * * * *

    *(b) Electronic systems or equipment, not elsewhere enumerated in 
this subchapter, specially designed for intelligence purposes that 
collect, survey, monitor, or exploit the electromagnetic spectrum 
(regardless of transmission medium), or for counteracting such 
activities.

                                * * * * *



Sec. Sec.  121.2-121.15  [Reserved]



Sec.  121.16  Missile Technology Control Regime Annex.

    Some of the items on the Missile Technology Control Regime Annex are 
controlled by both the Department of Commerce on the Commodity Control 
List and by the Department of State on the United States Munitions List. 
To the extent an article is on the United States Munitions List, a 
reference appears in parentheses listing the U.S. Munitions List 
category in which it appears. The following items constitute all items 
on the Missile Technology Control Regime Annex which are covered by the 
U.S. Munitions List:

                           Item 1--Category I

    Complete rocket systems (including ballistic missile systems, space 
launch vehicles, and sounding rockets (see Sec.  121.1, Cat. IV(a) and 
(b))) and unmanned air vehicle systems (including cruise missile 
systems, see Sec.  121.1, Cat. VIII (a), target drones and 
reconnaissance drones (see Sec.  121.1, Cat. VIII (a))) capable of 
delivering at least a 500 kg payload to a range of at least 300 km.

                           Item 2--Category I

    Complete subsystems usable in the systems in Item 1 as follows:
    (a) Individual rocket stages (see Sec.  121.1, Cat. IV(h));
    (b) Reentry vehicles (see Sec.  121.1, Cat. IV(g)), and equipment 
designed or modified therefor, as follows, except as provided in Note 
(1) below for those designed for non-weapon payloads;
    (1) Heat shields and components thereof fabricated of ceramic or 
ablative materials (see Sec.  121.1, Cat. IV(f));
    (2) Heat sinks and components thereof fabricated of light-weight, 
high heat capacity materials;
    (3) Electronic equipment specially designed for reentry vehicles 
(see Sec.  121.1, Cat. XI(a)(7));
    (c) Solid or liquid propellant rocket engines, having a total 
impulse capacity of 1.1 x 10 N-sec (2.5 x 10 lb-sec) or greater (see 
Sec.  121.1, Cat. IV, (h)).
    (d) ``Guidance sets'' capable of achieving system accuracy of 3.33 
percent or less of the range (e.g., a CEP of 1 j,. or less at a range of 
300 km), except as provided in Note (1) below for those designed for 
missiles with a range under 300 km or manned aircraft (see Sec.  121.1, 
Cat. XII(d));
    (e) Thrust vector control sub-systems, except as provided in Note 
(1) below for those designed for rocket systems that do not exceed the 
range/payload capability of Item 1 (see Sec.  121.1, Cat. IV);
    (f) Warhead safing, arming, fuzing, and firing mechanisms, except as 
provided in Note (1) below for those designed for systems other than 
those in Item 1 (see Sec.  121.1, Cat. IV(h)).

                             Notes to Item 2

    (1) The exceptions in (b), (d), (e), and (f) above may be treated as 
Category II if the subsystem is exported subject to end use statements 
and quantity limits appropriate for the excepted end use stated above.
    (2) CEP (circle of equal probability) is a measure of accuracy, and 
defined as the radius of the circle centered at the target, at a 
specific range, in which 50 percent of the payloads impact.
    (3) A ``guidance set'' integrates the process of measuring and 
computing a vehicle's position and velocity (i.e., navigation) with that 
of computing and sending commands to the vehicle's flight control 
systems to correct the trajectory.

[[Page 515]]

    (4) Examples of methods of achieving thrust vector control which are 
covered by (e) include:
    (i) Flexible nozzle;
    (ii) Fluid or secondary gas injection;
    (iii) Movable engine or nozzle; Deflection of exhaust gas stream 
(jet vanes or probes); or
    (v) Use of thrust tabs.

                           Item 3--Category II

    Propulsion components and equipment usable in the systems in Item 1, 
as follows:
    (a) Lightweight turbojet and turbofan engines (including) 
turbocompound engines) that are small and fuel efficient (see Sec.  
121.1, both Cat. IV(h) and VIII(b));
    (b) Ramjet/Scramjet/pulse jet/combined cycle engines, including 
devices to regulate combustion, and specially designed components 
therefor (see Sec.  121.1, both Cat. IV(h) and Cat. VIII(b));
    (c) Rocket motor cases, ``interior lining'', ``insulation'' and 
nozzles therefor (see Sec.  121.1, Cat. IV(h) and Cat. V(c));
    (d) Staging mechanisms, separation mechanisms, and interstages 
therefor (see Sec.  121.1, Cat. IV(c) and (h));
    (e) Liquid and slurry propellant (including oxidizers) control 
systems, and specially designed components therefor, designed or 
modified to operate in vibration environments of more than 100 g RMS 
between 20 Hz and,000 Hz (see Sec.  121.1, Cat. IV(c) and (h));
    (f) Hybrid rocket motors and specially designed components therefor 
(see Sec.  121.1, Cat. IV(h)).

                             Notes to Item 3

    (1) Item 3(a) engines may be exported as part of a manned aircraft 
or in quantities appropriate for replacement parts for manned aircraft.
    (2) In Item 3(C), ``interior lining'' suited for the bond interface 
between the solid propellant and the case or insulating liner is usually 
a liquid polymer based dispersion of refractory or insulating materials, 
e.g., carbon filled HTPB or other polymer with added curing agents to be 
sprayed or screeded over a case interior (see Sec.  121.1, Cat. V(c)).
    (3) In Item 3(c), ``insulation'' intended to be applied to the 
components of a rocket motor, i.e., the case, nozzle inlets, case 
closures, includes cured or semi-cured compounded rubber sheet stock 
containing an insulating or refractory material. It may also be 
incorporated as stress relief boots or flaps.
    (4) The only servo valves and pumps covered in (e) above, are the 
following:
    (i) Servo valves designed for flow rates of 24 liters per minute or 
greater, at an absolute pressure of 7,000 kPa (1,000 psi) or greater, 
that have an actuator response time of less than 100 msec;
    (ii) Pumps, for liquid propellants, with shaft speeds equal to or 
greater than 8,000 RPM or with discharge pressures equal to or greater 
than 7,000 kPa (1,000 psi).
    (5) Item 3(e) systems and components may be exports as part of a 
satellite.

                           Item 4--Category II

    Propellants and constituent chemicals for propellants as follows:
    (a) Propulsive substances:
    (1) Hydrazine with a concentration of more than 70 percent and its 
derivatives including monomethylhydrazine (MMH);
    (2) Unsymmetric dimethylhydrazine (UDHM);
    (3) Ammonium perchlorate;
    (4) Sphercical aluminum powder with particle of uniform diameter of 
less than 500 x 10-6M (500 microns) and an aluminum content 
of 97 percent or greater;
    (5) Metal fuels in particle sizes less than 500 x 10-6M 
(500 microns), whether spherical, atomized, spheriodal, flaked or 
ground, consisting of 97 percent or more of any of the following: 
zirconium, beryllium, boron, magnesium, zinc, and alloys of these;
    (6) Nitroamines (cyclotetramethylenetetranitramene (HMX), 
cyclotrimethylenetrinitramine (RDX);
    (7) Percholrates, chlorates or chromates mixed with powdered metals 
or other high energy fuel components;
    (8) Carboranes, decaboranes, pentaboranes and derivatives thereof;
    (9) Liquid oxidizers, as follows:
    (i) Nitrogen dioxide/dinitrogen tetroxide;
    (ii) Inhibited Red Fuming Nitric Acid (IRFNA);
    (iii) Compounds composed of fluorine and one or more of other 
halogens, oxygen or nitrogen.
    (b) Polymeric substances:
    (1) Hydroxyterminated polybutadiene (HTPB);
    (2) Glycidylazide polymer (GAP).
    (c) Other high energy density propellants such a Boron Slurry having 
an energy density of 40 x 10 joules/kg or greater.
    (d) Other propellants additives and agents:
    (1) Bonding agents as follows:
    (i) Tris (1(2methyl)aziridinyl phosphine oxide (MAPO);
    (ii) Trimesol 1(2)ethyl)aziridine (HX868, BITA);
    (iii) ``Tepanol'' (HX878), reaction product of 
tetraethylenepentamine, acrylonitrile and glycidol;
    (iv) ``Tepan'' (HX879), reaction product of tet enepentamine and 
acrylonitrile;
    (v) Polyfunctional aziridene amides with isophthalic, trimesic, 
isocyanuric, or trimethyladipic backbone also having a 2methyl or 2ethyl 
aziridine group (HX752, HX872 and HX877).
    (2) Curing agents and catalysts as follows:
    (i) Triphenyl bismuth (TPB);

[[Page 516]]

    (ii) Burning rate modifiers as follows:
    (iii) Catocene;
    (iv) Nbutylferrocene;
    (v) Other ferrocene derivatives.
    (3) Nitrate esters and nitrato plasticizers as follows:
    (i) 1,2,4butanetriol trinitrate (BTTN).
    (4) Stabilizers as follows:
    (i) Nmethylpnitroaniline.

                           Item 8--Category II

    Structural materials usable in the systems in Item 1, as follows:
    (a) Composite structures, laminates, and manufactures thereof, 
including resin impregnated fibre prepregs and metal coated fibre 
preforms therefor, specially designed for use in the systems in Item 1 
and the subsystems in Item 2 made either with organix matrix or metal 
matrix utilizing fibrous or filamentary reinforcements having a specific 
tensile strength greater than 7.62 x 10\4\ m (3 x 10\6\ inches) and a 
specific modules greater than 3.18 x 10\6\ m (1.25 x 10\8\ inches), (see 
Sec.  121.1, Category IV (f), and Category XIII (d));
    (b) Resaturated pyrolized (i.e., carbon-carbon) materials designed 
for rocket systems, (see Sec.  121.1 Category IV (f));
    (c) Fine grain recrystallized bulk graphites (with a bulk density of 
at least 1.72 g/cc measured at 15 degrees C), pyrolytic, or fibrous 
reinforced graphites useable for rocket nozzles and reentry vehicle nose 
tips (see Sec.  121.1, Category IV (f) and Category XIII;
    (d) Ceramic composites materials (dielectric constant less than 6 at 
frequencies from 100 Hz to 10,000 MHz) for use in missile radomes, and 
bulk machinable silicon-carbide reinforced unfired ceramic useable for 
nose tips (see Sec.  121.1, Category IV (f));

                           Item 9--Category II

    Instrumentation, navigation and direction finding equipment and 
systems, and associated production and test equipment as follows; and 
specially designed components and software therefor:
    (a) Integrated flight instrument systems, which include 
gyrostabilizers or automatic pilots and integration software therefor; 
designed or modified for use in the systems in Item 1 (See Sec.  121.1, 
Category XII(d));
    (b) Gyro-astro compasses and other devices which derive position or 
orientation by means of automatically tracking celestial bodies or 
satellites (see Sec.  121.1, Category XV(d));
    (c) Accelerometers with a threshold of 0.05 g or less, or a 
linearity error within 0.25 percent of full scale output, or both, which 
are designed for use in inertial navigation systems or in guidance 
systems of all types (see Sec.  121.1, Category VIII(e) and Category XII 
(d));
    (d) All types of gyros usable in the systems in Item 1, with a rated 
drift rate stability of less than 0.5 degree (1 sigma or rms) per hour 
in a 1 q environment (see Sec.  121.1, Category VIII(e) and Category 
XII(d));
    (e) Continuous output accelerometers or gyros of any type, specified 
to function at acceleration levels greater than 100 g (see Sec.  121.1, 
Category XII(d));
    (f) Inertial or other equipment using accelerometers described by 
subitems (c) and (e) above, and systems incorporating such equipment, 
and specially designed integration software therefor (see Sec.  121.1, 
Category VIII (e) and Category XII(d));

                             Notes to Item 9

    (1) Items (a) through (f) may be exported as part of a manned 
aircraft or satellite or in quantities appropriate for replacement parts 
for manned aircraft.
    (2) In subitem (d):
    (i) Drift rate is defined as the time rate of output deviation from 
the desired output. It consists of random and systematic components and 
is expressed as an equivalent angular displacement per unit time with 
respect to inertial space.
    (ii) Stability is defined as standard deviation (1 sigma) of the 
variation of a particular parameter from its calibrated value measured 
under stable temperature conditions. This can be expressed as a function 
of time.

                          Item 10--Category II

    Flight control systems and ``technology'' as follows; designed or 
modified for the systems in Item 1.
    (a) Hydraulic, mechanical, electro-optical, or electro-mechanical 
flight control systems (including fly-by-wire systems), (see Sec.  
121.1, Category IV (h));
    (b) Attitude control equipment, (see Sec.  121.1, Category IV, (c) 
and (h));
    (c) Design technology for integration of air vehicle fuselage, 
propulsion system and lifting control surfaces to optimize aerodynamic 
performance throughout the flight regime of an unmanned air vehicle, 
(see Sec.  121.1, Category VIII (k));
    (d) Design technology for integration of the flight control, 
guidance, and propulsion data into a flight management system for 
optimization of rocket system trajectory, (see Sec.  121.1, Category IV 
(i)).

                             Note to Item 10

    Items (a) and (b) may be exported as part of a manned aircraft or 
satellite or in quantities appropriate for replacement parts for manned 
aircraft.

                          Item 11--Category II

    Avionics equipment, ``technology'' and components as follows; 
designed or modified

[[Page 517]]

for use in the systems in Item 1, and specially designed software 
therefor:
    (a) Radar and laser radar systems, including altimeters (see Sec.  
121.1, Category XI(a)(3));
    (b) Passive sensors for determining bearings to specific 
electromagnetic sources (direction finding equipment) or terrain 
characteristics (see Sec.  121.1, Category XI(b) and (d));
    (c) Global Positioning System (GPS) or similar satellite receivers;
    (1) Capable of providing navigation information under the following 
operational conditions:
    (i) At speeds in excess of 515 m/sec (1,000 nautical miles/hours); 
and
    (ii) At altitudes in excess of 18 km (60,000 feet), (see Sec.  
121.1, Category XV(d)(2); or
    (2) Designed or modified for use with unmanned air vehicles covered 
by Item 1 (see Sec.  121.1, Category XV(d)(4)).
    (d) Electronic assemblies and components specifically designed for 
military use and operation at temperatures in excess of 125 degrees C, 
(see Sec.  121.1, Category XI(a)(7)).
    (e) Design technology for protection of avionics and electrical 
subsystems against electromagnetic pulse (EMP) and electromagnetic 
interference (EMI) hazards from external sources, as follows, (see Sec.  
121.1, Category XI (b)).
    (1) Design technology for shielding systems;
    (2) Design technology for the configuration of hardened electrical 
circuits and subsystems;
    (3) Determination of hardening criteria for the above.

                            Notes to Item 11

    (1) Item 11 equipment may be exported as part of a manned aircraft 
or satellite or in quantities appropriate for replacement parts for 
manned aircraft.
    (2) Examples of equipment included in this Item:
    (i) Terrain contour mapping equipment;
    (ii) Scene mapping and correlation (both digital and analog) 
equipment;
    (iii) Doppler navigation radar equipment;
    (iv) Passive interferometer equipment;
    (v) Imaging sensor equipment (both active and passive);
    (3) In subitem (a), laser radar systems embody specialized 
transmission, scanning, receiving and signal processing techniques for 
utilization of lasers for echo ranging, direction finding and 
discrimination of targets by location, radial speed and body reflection 
characteristics.

                          Item 12--Category II

    Launch support equipment, facilities and software for the systems in 
Item 1, as follows:
    (a) Apparatus and devices designed or modified for the handling, 
control, activation and launching of the systems in Item 1, (see Sec.  
121.1, Category IV(c));
    (b) Vehicles designed or modified for the transport, handling, 
control, activation and launching of the systems in Item 1, (see Sec.  
121.1, Category VII(d));
    (c) Telemetering and telecontrol equipment usable for unmanned air 
vehicles or rocket systems, (see Sec.  121.1, Category XI(a));
    (d) Precision tracking systems:
    (1) Tracking systems which use a translb nv installed on the rocket 
system or unmanned air vehicle in conjunction with either surface or 
airborne references or navigation satellite systems to provide real-time 
measurements of in-flight position and velocity, (see Sec.  121.1, 
Category XI(a));
    (2) Range instrumentation radars including associated optical/
infrared trackers and the specially designed software therefor with all 
of the following capabilities (see Sec.  121.1, Category XI(a)(3)):
    (i) angular resolution better than 3 milli-radians (0.5 mils);
    (ii) range of 30 km or greater with a range resolution better than 
10 meters RMS;
    (iii) velocity resolution better than 3 meters per second.
    (3) Software which processes post-flight, recorded data, enabling 
determination of vehicle position throughout its flight path (see Sec.  
121.1, Category IV(i)).

                          Item 13--Category II

    Analog computers, digital computers, or digital differential 
analyzers designed or modified for use in the systems in Item 1 (see 
Sec.  121.1, Category XI (a)(6), having either of the following 
characteristics:
    (a) Rated for continuous operation at temperature from below minus 
45 degrees C to above plus 55 degrees C; or
    (b) Designed as ruggedized or ``radiation hardened''.

                             Note to Item 13

    Item 13 equipment may be exported as part of a manned aircraft or 
satellite or in quantities appropriate for replacement parts for manned 
aircraft.

                          Item 14--Category II

    Analog-to-digital converters, usable in the system in Item 1, having 
either of the following characteristics:
    (a) Designed to meet military specifications for ruggedized 
equipment (see Sec.  121.1, Category XI(d)); or,
    (b) Designed or modified for military use (see Sec.  121.1, Category 
XI(d)); and being one of the following types:
    (1) Analog-to-digital converter ``microcircuits,'' which are 
``radiation hardened'' or have all of the following characteristics:
    (i) Having a resolution of 8 bits or more;

[[Page 518]]

    (ii) Rated for operation in the temperature range from below minus 
54 degrees C to above plus 125 degrees C; and
    (iii) Hermetically sealed.
    (2) Electrical input type analog-to-digital converter printed 
circuit boards or modules, with all of the following characteristics:
    (i) Having a resolution of 8 bits or more;
    (ii) Rated for operation in the temperature range from below minus 
45 degrees C to above plus 55 degrees C; and
    (iii) Incorporated ``microcircuits'' listed in (1), above.

                          Item 16--Category II

    Specially designed software, or specially designed software with 
related specially designed hybrid (combined analog/digital) computers, 
for modeling, simulation, or design integration of the systems in Item 1 
and Item 2 (see Sec.  121.1, Category IV(i) and Category XI(a)(6)).

                             Note to Item 16

    The modelling includes in particular the aerodynamic and 
thermodynamic analysis of the system.

                          Item 17--Category II

    Materials, devices, and specially designed software for reduced 
observables such as radar reflectivity, ultraviolet/infrared signatures 
on acoustic signatures (i.e., stealth technology), for applications 
usable for the systems in Item 1 or Item 2 (see Sec.  121.1, Category 
XIII (e) and (k)), for example:
    (a) Structural material and coatings specially designed for reduced 
radar reflectivity;
    (b) Coatings, including paints, specially designed for reduced or 
tailored reflectivity or emissivity in the microwave, infrared or 
ultraviolet spectra, except when specially used for thermal control of 
satellites.
    (c) Specially designed software or databases for analysis of 
signature reduction.
    (d) Specially designed radar cross section measurement systems (see 
Sec.  121.1, Category XI(a)(3)).

                          Item 18--Category II

    Devices for use in protecting rocket systems and unmanned air 
vehicles against nuclear effects (e.g. Electromagnetic Pulse (EMP), X-
rays, combined blast and thermal effects), and usable for the systems in 
Item 1, as follows (see Sec.  121.1, Category IV (c) and (h)):
    (a) ``Radiation Hardened'' ``microcircuits'' and detectors (see 
Sec.  121.1, Category XI(c)(3) Note: This commodity has been formally 
proposed for movement to category XV(e)(2) in the near future).
    (b) Radomes designed to withstand a combined thermal shock greater 
than 1000 cal/sq cm accompanied by a peak over pressure of greater than 
50 kPa (7 pounds per square inch) (see Sec.  121.1, Category IV(h)).

                           Note to Item 18(a)

    A detector is defined as a mechanical, electrical, optical or 
chemical device that automatically identifies and records, or registers 
a stimulus such as an environmental change in pressure or temperature, 
an electrical or electromagnetic signal or radiation from a radioactive 
material. The following pages were removed from the final ITAR for 
replacement by DDTC's updated version Sec.  6(l) of the Export 
Administration Act of 1979 (50 U.S.C. App. 2405(l)), as amended. In 
accordance with this provision, the list of MTCR Annex items shall 
constitute all items on the U.S. Munitions List in Sec.  121.16.

[58 FR 39287, July 22, 1993, as amended at 71 FR 20539, Apr. 21, 2006; 
80 FR 37975, July 2, 2015; 80 FR 78131, Dec. 16, 2015]



PART 122_REGISTRATION OF MANUFACTURERS AND EXPORTERS--Table of Contents



Sec.
122.1 Registration requirements.
122.2 Submission of registration statement.
122.3 Registration fees.
122.4 Notification of changes in information furnished by registrants.
122.5 Maintenance of records by registrants.

    Authority: Sections 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22 
U.S.C. 2752, 2778); 22 U.S.C. 2651a; E.O. 13637, 78 FR 16129.

    Source: 58 FR 39298, July 22, 1993, unless otherwise noted.



Sec.  122.1  Registration requirements.

    (a) Any person who engages in the United States in the business of 
manufacturing or exporting or temporarily importing defense articles, or 
furnishing defense services, is required to register with the 
Directorate of Defense Trade Controls under Sec.  122.2. For the purpose 
of this subchapter, engaging in such a business requires only one 
occasion of manufacturing or exporting or temporarily importing a 
defense article or furnishing a defense service. A manufacturer who does 
not engage in exporting must nevertheless register. (See part 129 of 
this subchapter for requirements for registration of persons who engage 
in brokering activities.)
    (b) Exemptions. The registration requirements of paragraph (a) of 
this section do not apply to:

[[Page 519]]

    (1) Officers and employees of the U.S. Government acting in an 
official capacity;
    (2) Persons whose pertinent business activity is confined to the 
production of unclassified technical data only;
    (3) Persons all of whose manufacturing and export activities are 
licensed under the Atomic Energy Act of 1954, as amended; or
    (4) Persons who engage in the fabrication of articles solely for 
experimental or scientific purposes, including research and development.

    Note to paragraph (b): Persons who qualify for the exemptions in 
paragraphs (b)(2) or (b)(4) of this section remain subject to the 
requirements for licenses or other approvals for exports of defense 
articles and defense services and may not receive an export license or 
approval unless registered under Sec.  122.2.

    (c) Purpose. Registration is primarily a means to provide the U.S. 
Government with necessary information on who is involved in certain 
manufacturing and exporting activities. Registration does not confer any 
export rights or privileges. It is generally a precondition to the 
issuance of any license or other approval under this subchapter, unless 
an exception is granted by the Directorate of Defense Trade Controls.

[78 FR 52686, Aug. 26, 2013]



Sec.  122.2  Submission of registration statement.

    (a) General. An intended registrant must submit a Statement of 
Registration (Department of State form DS-2032) to the Office of Defense 
Trade Controls Compliance by following the submission guidelines 
available on the Directorate of Defense Trade Controls Web site at 
www.pmddtc.state.gov. The Statement of Registration must be signed by a 
U.S. person senior officer (e.g., chief executive officer, president, 
secretary, partner, member, treasurer, general counsel) who has been 
empowered by the intended registrant to sign such documents. The 
Statement of Registration may include subsidiaries and affiliates when 
more than 50 percent of the voting securities are owned by the 
registrant or the subsidiaries and affiliates are otherwise controlled 
by the registrant (see Sec.  120.40 of this subchapter). The intended 
registrant also shall submit documentation that demonstrates that it is 
incorporated or otherwise authorized to do business in the U.S. The 
Directorate of Defense Trade Controls will notify the registrant if the 
Statement of Registration is incomplete either by notifying the 
registrant of what information is required or through the return of the 
entire registration package. Registrants may not establish new entities 
for the purpose of reducing registration fees.
    (b) Statement of Registration Certification. The Statement of 
Registration of the intended registrant shall include a certification by 
an authorized senior officer of the following:
    (1) Whether the intended registrant or its parent, subsidiary, or 
other affiliate listed in the Statement of Registration, or any of its 
chief executive officers, presidents, vice presidents, secretaries, 
partners, members, other senior officers or officials (e.g., 
comptroller, treasurer, general counsel), or any member of the board of 
directors of the intended registrant, or of any parent, subsidiary, or 
other affiliate listed in the Statement of Registration:
    (i) Has ever been indicted or otherwise charged (e.g., charged by 
criminal information in lieu of indictment) for or has been convicted of 
violating any U.S. criminal statutes enumerated in Sec.  120.27 of this 
subchapter or violating a foreign criminal law on exportation of defense 
articles where conviction of such law carries a minimum term of 
imprisonment of greater than 1 year; or
    (ii) Is ineligible to contract with, or to receive a license or 
other approval to import defense articles or defense services from, or 
to receive an export license or other approval from, any agency of the 
U.S. Government; and
    (2) Whether the intended registrant is foreign owned or foreign 
controlled (see Sec.  120.37 of this subchapter). If the intended 
registrant is foreign owned or foreign controlled, the certification 
shall include an explanation of such ownership or control, including the 
identities of the foreign person or persons who ultimately own or 
control the registrant. This requirement applies to a registrant who is 
a U.S. person and is

[[Page 520]]

owned or controlled by a foreign person. It also applies to a registrant 
who is a foreign person and is owned or controlled by a foreign person 
from the same country or a foreign person from another country.

[76 FR 45197, July 28, 2011, as amended at 76 FR 76036, Dec. 6, 2011; 78 
FR 52686, Aug. 26, 2013]



Sec.  122.3  Registration fees.

    (a) Frequency of registration and fee. A person who is required to 
register must do so on an annual basis by submitting a completed 
Statement of Registration (form DS-2032) and payment of a fee following 
the payment guidelines available on the Directorate of Defense Trade 
Controls Web site at www.pmddtc.state.gov. For those renewing a 
registration, notice of the fee due for the next year's registration 
will be sent to the registrant of record at least 60 days prior to its 
expiration date.
    (b) Expiration of registration. A registrant must submit its request 
for registration renewal at least 30 days but no earlier than 60 days 
prior to the expiration date.
    (c) Lapse in registration. A registrant who fails to renew a 
registration and, after an intervening period, seeks to register again 
must pay registration fees for any part of such intervening period 
during which the registrant engaged in the business of manufacturing or 
exporting defense articles or defense services.

[58 FR 39298, July 22, 1993, as amended at 62 FR 27497, May 20, 1997; 69 
FR 70889, Dec. 8, 2004; 70 FR 50959, Aug. 29, 2005; 73 FR 41259, July 
18, 2008; 73 FR 55440, Sept. 25, 2008; 76 FR 45197, July 28, 2011; 78 FR 
52687, Aug. 26, 2013]



Sec.  122.4  Notification of changes in information furnished by registrants.

    (a) A registrant must, within five days of the event, provide to the 
Directorate of Defense Trade Controls a written notification, signed by 
a senior officer (e.g., chief executive officer, president, secretary, 
partner, member, treasurer, general counsel), if:
    (1) Any of the persons referred to in Sec.  122.2(b) is indicted or 
otherwise charged (e.g., by criminal information in lieu of indictment) 
for or convicted of violating any of the U.S. criminal statutes 
enumerated in Sec.  120.27 of this subchapter or violating a foreign 
criminal law on exportation of defense articles where conviction of such 
law carries a minimum term of imprisonment of greater than 1 year, or 
becomes ineligible to contract with, or to receive a license or other 
approval to export or temporarily import defense articles or defense 
services from any agency of the U.S. Government; or
    (2) There is a change in the following information contained in the 
Statement of Registration:
    (i) Registrant's name;
    (ii) Registrant's address;
    (iii) Registrant's legal organization structure;
    (iv) Ownership or control;
    (v) The establishment, acquisition, or divestment of a U.S. or 
foreign subsidiary or other affiliate who is engaged in manufacturing 
defense articles, exporting defense articles or defense services; or
    (vi) Board of directors, senior officers, partners, or owners.

    Note 1 to paragraph (a): All other changes in the Statement of 
Registration must be provided as part of annual registration renewal.
    Note 2 to paragraph (a): For one year from the effective date of the 
rule, ``Amendment to the International Traffic in Arms Regulations: 
Registration and Licensing of Brokers, Brokering Activities, and Related 
Provisions,'' RIN 1400-AC37, the following changes must be provided as 
part of the annual registration renewal: Pursuant to Sec.  129.3(d) of 
this subchapter, changes to combine an existing broker registration with 
an existing manufacturer/exporter registration; and pursuant to Sec.  
122.2(a) of this subchapter, changes to an existing registration to 
remove partially owned and not otherwise controlled subsidiaries or 
affiliates, which are not the subject of an internal reorganization, 
merger, acquisition, or divestiture.

    (b) A registrant must notify the Directorate of Defense Trade 
Controls by registered mail at least 60 days in advance of any intended 
sale or transfer to a foreign person of ownership or control of the 
registrant or any entity thereof. Such notice does not relieve the 
registrant from obtaining the approval required under this subchapter 
for the export of defense articles or defense services to a foreign 
person, including the approval required prior to disclosing technical 
data. Such notice provides the Directorate of Defense

[[Page 521]]

Trade Controls with the information necessary to determine whether the 
authority of Sec.  38(g)(6) of the Arms Export Control Act regarding 
licenses or other approvals for certain sales or transfers of defense 
articles or data on the U.S. Munitions List should be invoked (see 
Sec. Sec.  120.10 and 126.1(e) of this subchapter).
    (c) The new entity formed when a registrant merges with another 
company or acquires, or is acquired by, another company or a subsidiary 
or division of another company shall advise the Directorate of Defense 
Trade Controls of the following:
    (1) The new firm name and all previous firm names being disclosed;
    (2) The registration number that will survive and those that are to 
be discontinued (if any);
    (3) The license numbers of all approvals on which unshipped balances 
will be shipped under the surviving registration number, since any 
license not the subject of notification will be considered invalid; and
    (4) Amendments to agreements approved by the Directorate of Defense 
Trade Controls to change the name of a party to those agreements. The 
registrant must provide to the Directorate of Defense Trade Controls a 
signed copy of such an amendment to each agreement signed by the new 
U.S. entity, the former U.S. licensor and the foreign licensee, within 
60 days of this notification, unless an extension of time is approved by 
the Directorate of Defense Trade Controls. Any agreement not so amended 
may be considered invalid.
    (d) Prior approval by the Directorate of Defense Trade Controls is 
required for any amendment making a substantive change.

[58 FR 39298, July 22, 1993, as amended at 71 FR 20540, Apr. 21, 2006; 
78 FR 52687, Aug. 26, 2013; 81 FR 87429, Dec. 5, 2016]



Sec.  122.5  Maintenance of records by registrants.

    (a) A person who is required to register must maintain records 
concerning the manufacture, acquisition and disposition (to include 
copies of all documentation on exports using exemptions and applications 
and licenses and their related documentation), of defense articles; of 
technical data; the provision of defense services; brokering activities; 
and information on political contributions, fees, or commissions 
furnished or obtained, as required by part 130 of this subchapter. 
Records in an electronic format must be maintained using a process or 
system capable of reproducing all records on paper. Such records when 
displayed on a viewer, monitor, or reproduced on paper, must exhibit a 
high degree of legibility and readability. (For the purpose of this 
section, ``legible'' and ``legibility'' mean the quality of a letter or 
numeral that enables the observer to identify it positively and quickly 
to the exclusion of all other letters or numerals. ``Readable'' and 
``readability'' means the quality of a group of letters or numerals 
being recognized as complete words or numbers.) This information must be 
stored in such a manner that none of it may be altered once it is 
initially recorded without recording all changes, who made them, and 
when they were made. For processes or systems based on the storage of 
digital images, the process or system must afford accessibility to all 
digital images in the records being maintained. All records subject to 
this section must be maintained for a period of five years from the 
expiration of the license or other approval, to include exports using an 
exemption (see Sec.  123.26 of this subchapter); or, from the date of 
the transaction (e.g., expired licenses or other approvals relevant to 
the export transaction using an exemption). The Deputy Assistant 
Secretary of State for Defense Trade Controls and the Director of the 
Office of Defense Trade Controls Licensing may prescribe a longer or 
shorter period in individual cases.
    (b) Records maintained under this section shall be available at all 
times for inspection and copying by the Directorate of Defense Trade 
Controls or a person designated by the Directorate of Defense Trade 
Controls (e.g., the Diplomatic Security Service) or U.S. Immigration and 
Customs Enforcement, or U.S. Customs and Border Protection. Upon such 
request, the person maintaining the records must furnish the records, 
the equipment, and if necessary, knowledgeable personnel for locating, 
reading, and reproducing any

[[Page 522]]

record that is required to be maintained in accordance with this 
section.

[70 FR 50959, Aug. 29, 2005, as amended at 79 FR 8084, Feb. 11, 2014]



PART 123_LICENSES FOR THE EXPORT AND TEMPORARY IMPORT OF DEFENSE ARTICLES--
Table of Contents



Sec.
123.1 Requirement for export or temporary import licenses.
123.2 Import jurisdiction.
123.3 Temporary import licenses.
123.4 Temporary import license exemptions.
123.5 Temporary export licenses.
123.6 Foreign trade zones and U.S. Customs and Border Protection bonded 
          warehouses.
123.7 Exports to warehouses or distribution points outside the United 
          States.
123.8 Special controls on vessels, aircraft and satellites covered by 
          the U.S. Munitions List.
123.9 Country of ultimate destination and approval of reexports or 
          retransfers.
123.10 Non-transfer and use assurances.
123.11 Movements of vessels and aircraft covered by the U.S. Munitions 
          List outside the United States.
123.12 Shipments between U.S. possessions.
123.13 Domestic aircraft shipments via a foreign country.
123.14 Import certificate/delivery verification procedure.
123.15 Congressional certification pursuant to Section 36(c) of the Arms 
          Export Control Act.
123.16 Exemptions of general applicability.
123.17 Exemption for personal protective gear.
123.18 [Reserved]
123.19 Canadian and Mexican border shipments.
123.20 Nuclear related controls.
123.21 Duration, renewal, and disposition of licenses.
123.22 Filing, retention, and return of export licenses and filing of 
          export information.
123.23 Monetary value of shipments.
123.24 Shipments by U.S. Postal Service.
123.25 Amendments to licenses.
123.26 Recordkeeping for exemptions.
123.27 Special licensing regime for export to U.S. allies of commercial 
          communications satellite components, systems, parts, 
          accessories, attachments and associated technical data.
123.28 Scope of a license.

    Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 
U.S.C. 2752, 2778, 2797); 22 U.S.C. 2753; 22 U.S.C. 2651a; 22 U.S.C. 
2776; Pub. L. 105-261, 112 Stat. 1920; Sec. 1205(a), Pub. L. 107-228; 
Sec. 520, Pub. L. 112-55; Section 1261, Pub. L. 112-239; E.O. 13637, 78 
FR 16129.

    Source: 58 FR 39299, July 22, 1993, unless otherwise noted.



Sec.  123.1  Requirement for export or temporary import licenses.

    (a) Any person who intends to export or to import temporarily a 
defense article must obtain the approval of the Directorate of Defense 
Trade Controls prior to the export or temporary import, unless the 
export or temporary import qualifies for an exemption under the 
provisions of this subchapter. The applicant must be registered with the 
Directorate of Defense Trade Controls pursuant to part 122 of this 
subchapter prior to submitting an application. Applications for 
unclassified exports and temporary imports must be submitted 
electronically. Applications for classified exports and classified 
temporary imports must be submitted via paper. Further guidance is 
provided on the Internet Web site of the Directorate of Defense Trade 
Controls. The application forms for export or temporary import are as 
follows:
    (1) Unclassified permanent exports must be made on Form DSP-5;
    (2) Unclassified temporary exports must be made on Form DSP-73;
    (3) Unclassified temporary imports must be made on Form DSP-61; or
    (4) Classified exports or temporary imports must be made on Form 
DSP-85.
    (b) Applications for Department of State export or temporary import 
licenses for proposed exports or temporary imports of defense articles, 
including technical data, may include commodities, software, and 
technical data subject to the EAR (see Sec.  120.42 of this subchapter) 
if:
    (1) The purchase documentation (e.g., purchase order, contract, 
letter of intent, or other appropriate documentation) includes both 
defense articles described on the U.S. Munitions List and items on the 
Commerce Control List;
    (2) The commodities, software, and technical data subject to the EAR 
are for end-use in or with the U.S. Munitions List defense article(s) 
proposed for export; and

[[Page 523]]

    (3) The license application separately enumerates the commodities, 
software, and technical data subject to the EAR in a U.S. Munitions List 
``(x)'' paragraph entry.
    (c) As a condition to the issuance of a license or other approval, 
the Directorate of Defense Trade Controls may require all pertinent 
documentation regarding the proposed transaction and proper completion 
of the application form as follows:
    (1) Form DSP-5, DSP-61, DSP-73, and DSP-85 applications must have an 
entry in each block where space is provided for an entry. All requested 
information must be provided. Stating ``Not Applicable'' or ``See 
Attached'' is not acceptable. See the Directorate of Defense Trade 
Controls Internet Web site for additional guidance on the completion of 
a license application form;
    (2) Attachments and supporting technical data or brochures should be 
submitted with the license application. All freight forwarders and U.S. 
consignors must be listed in the license application. See the 
Directorate of Defense Trade Controls Internet Web site for instructions 
and limitations on attaching documentation;
    (3) Certification by an empowered official must accompany all 
application submissions (see Sec.  126.13 of this subchapter);
    (4) An application for a license for the permanent export of defense 
articles sold commercially must be accompanied by purchase documentation 
(e.g., purchase order, contract, letter of intent, or other appropriate 
documentation). In cases involving the Foreign Military Sales program, a 
copy of the relevant Letter of Offer and Acceptance is required, unless 
the procedures of Sec.  126.4(c) or Sec.  126.6 of this subchapter are 
followed;
    (5) Form DSP-83, duly executed, must accompany all license 
applications for the permanent export of significant military equipment, 
including classified defense articles or classified technical data (see 
Sec. Sec.  123.10 and 125.3 of this subchapter); and
    (6) A statement concerning the payment of political contributions, 
fees, and commissions must accompany a permanent export application if 
the export involves defense articles or defense services valued in an 
amount of $500,000 or more and is being sold commercially to or for the 
use of the armed forces of a foreign country or international 
organization (see part 130 of this subchapter).
    (d) Provisions for furnishing the type of defense services described 
in Sec.  120.9(a) of this subchapter are contained in part 124 of this 
subchapter. Provisions for the export or temporary import of technical 
data and classified defense articles are contained in part 125 of this 
subchapter.
    (e) A request for a license for the export of unclassified technical 
data (DSP-5) related to a classified defense article should specify any 
classified technical data or material that subsequently will be required 
for export in the event of a sale.

[58 FR 39299, July 22, 1993, as amended at 70 FR 50960, Aug. 29, 2005; 
71 FR 20540, Apr. 21, 2006; 77 FR 22670, Apr. 17, 2012; 78 FR 22758, 
Apr. 16, 2013; 79 FR 61230, Oct. 10, 2014]



Sec.  123.2  Import jurisdiction.

    The Department of State regulates the temporary import of defense 
articles. Permanent imports of defense articles into the United States 
are regulated by the Department of the Justice's Bureau of Alcohol, 
Tobacco, Firearms and Explosives under the direction of the Attorney 
General (see 27 CFR parts 447, 478, 479, and 555).

[71 FR 20540, Apr. 21, 2006]



Sec.  123.3  Temporary import licenses.

    (a) A license (DSP-61) issued by the Directorate of Defense Trade 
Controls is required for the temporary import and subsequent export of 
unclassified defense articles, unless exempted from this requirement 
pursuant to Sec.  123.4. This requirement applies to:
    (1) Temporary imports of unclassified defense articles that are to 
be returned directly to the country from which they were shipped to the 
United States;
    (2) Temporary imports of unclassified defense articles in transit to 
a third country;
    (b) A bond may be required as appropriate (see part 125 of this 
subchapter for license requirements for technical data and classified 
defense articles.)

[[Page 524]]

    (c) A DSP-61 license may be obtained by a U.S. importer in 
satisfaction of Sec.  123.4(c)(4) of this subchapter. If a foreign 
exporter requires documentation for a permanent import, the U.S. 
importer must contact the Department of Justice's Bureau of Alcohol, 
Tobacco, Firearms and Explosives for the appropriate documentation. A 
DSP-61 will not be approved to support permanent import requirements.

[58 FR 39299, July 22, 1993, as amended at 71 FR 20540, Apr. 21, 2006; 
77 FR 22670, Apr. 17, 2012]



Sec.  123.4  Temporary import license exemptions.

    (a) Port Directors of U.S. Customs and Border Protection shall 
permit the temporary import (and subsequent export) without a license, 
for a period of up to 4 years, of unclassified U.S.-origin defense items 
(including any items manufactured abroad pursuant to U.S. Government 
approval) if the item temporarily imported:
    (1) Is serviced (e.g., inspection, testing, calibration or repair, 
including overhaul, reconditioning and one-to-one replacement of any 
defective items, parts or components, but excluding any modifications, 
enhancement, upgrade or other form of alteration or improvement that 
changes the basic performance of the item), and is subsequently returned 
to the country from which it was imported. Shipment may be made by the 
U.S. importer or a foreign government representative of the country from 
which the goods were imported; or
    (2) Is to be enhanced, upgraded or incorporated into another item 
which has already been authorized by the Directorate of Defense Trade 
Controls for permanent export; or
    (3) Is imported for the purpose of exhibition, demonstration or 
marketing in the United States and is subsequently returned to the 
country from which it was imported; or
    (4) Has been rejected for permanent import by the Department of 
Justice and is being returned to the country from which it was shipped; 
or
    (5) Is approved for such import under the U.S. Foreign Military 
Sales (FMS) program pursuant to an executed U.S. Department of Defense 
Letter of Offer and Acceptance (LOA).

    Note: These Exceptions do not apply to shipments that transit the 
U.S. to or from Canada (see Sec.  123.19 and Sec.  126.5 of this 
subchapter for exceptions).

    (b) Port Directors of U.S. Customs and Border Protection shall 
permit the temporary import (but not the subsequent export) without a 
license of unclassified defense articles that are to be incorporated 
into another article, or modified, enhanced, upgraded, altered, improved 
or serviced in any other manner that changes the basic performance or 
productivity of the article prior to being returned to the country from 
which they were shipped or prior to being shipped to a third country. A 
DSP-5 is required for the reexport of such unclassified defense articles 
after incorporation into another article, modification, enhancement, 
upgrading, alteration or improvement.
    (c) Requirements. To use an exemption under Sec.  123.4 (a) or (b), 
the following criteria must be met:
    (1) The importer must meet the eligibility requirements set forth in 
Sec.  120.1(c) of this subchapter;
    (2) At the time of export, the ultimate consignee named on the 
Electronic Export Information (EEI) must be the same as the foreign 
consignee or end-user of record named at the time of import;
    (3) A stated in Sec.  126.1 of this subchapter, the temporary import 
must not be from or on behalf of a proscribed country, area, or person 
listed in that section unless an exception has been granted in 
accordance with Sec.  126.3 of this subchapter; and
    (4) The foreign exporter must not require documentation of U.S. 
Government approval of the temporary import. If the foreign exporter 
requires documentation for a temporary import that qualifies for an 
exemption under this subchapter, the U.S. importer will not be able to 
claim the exemption and is required to obtain a DSP-61 Application/
License for Temporary Import of Unclassified Defense Articles.
    (d) Procedures. To the satisfaction of the Port Directors of U.S. 
Customs and Border Protection, the importer and exporter must comply 
with the following procedures:

[[Page 525]]

    (1) At the time of temporary import--
    (i) File and annotate the applicable U.S. Customs and Border 
Protection document (e.g., Form CF 3461, 7512, 7501, 7523 or 3311) to 
read: ``This shipment is being imported in accordance with and under the 
authority of 22 CFR 123.4(a) (identify subsection),'' and
    (ii) Include, on the invoice or other appropriate documentation, a 
complete list and description of the defense article(s) being imported, 
including quantity and U.S. dollar value; and
    (2) At the time of export, in accordance with the U.S. Customs and 
Border Protection (CBP) procedures, the Directorate of Defense Trade 
Controls (DDTC) registered and eligible exporter, or an agent acting on 
the filer's behalf, must electronically file the export information with 
CBP, identify 22 CFR 123.4 as the authority for the export, and provide, 
as requested by CBP, the entry document number or a copy of the CBP 
document under which the article was imported.

[58 FR 39299, July 22, 1993, as amended at 64 FR 17533, Apr. 12, 1999; 
68 FR 61101, Oct. 27, 2003; 70 FR 50960, Aug. 29, 2005; 77 FR 16597, 
Mar. 21, 2012; 77 FR 22670, Apr. 17, 2012; 81 FR 54735, Aug. 17, 2016; 
82 FR 17, Jan. 3, 2017]



Sec.  123.5  Temporary export licenses.

    (a) The Directorate of Defense Trade Controls may issue a license 
for the temporary export of unclassified defense articles (DSP-73). Such 
licenses are valid only if the article will be exported for a period of 
less than 4 years and will be returned to the United States and transfer 
of title will not occur during the period of temporary export. 
Accordingly, articles exported pursuant to a temporary export license 
may not be sold or otherwise permanently transferred to a foreign person 
while they are overseas under a temporary export license. A renewal of 
the license or other written approval must be obtained from the 
Directorate of Defense Trade Controls if the article is to remain 
outside the United States beyond the period for which the license is 
valid.
    (b) Requirements. Defense articles authorized for temporary export 
under this section may be shipped only from a port in the United States 
where a Port Director of U.S. Customs and Border Protection is 
available, or from a U.S. Post Office (see 39 CFR part 20), as 
appropriate. The license for temporary export must be presented to the 
Port Director of U.S. Customs and Border Protection who, upon 
verification, will endorse the exit column on the reverse side of the 
license. The license for temporary export must be electronically 
submitted to U.S. Customs and Border Protection, unless electronic 
reporting of such information is unavailable, in which case U.S. Customs 
and Border Protection will issue instructions. In the event a physical 
license is required by U.S. Customs and Border Protection, the licensee 
is to retain the duly endorsed license for temporary export in 
accordance with Sec.  123.22(b) of this subchapter. In the case of a 
military aircraft or vessel temporarily exported under its own power, 
evidence that the Department of State has duly authorized it to leave 
the United States must be readily available on board the aircraft or 
vessel.
    (c) Any temporary export license for hardware that is used, 
regardless of whether the hardware was exported directly to the foreign 
destination or returned directly from the foreign destination, must be 
endorsed by the U.S. Customs and Border Protection in accordance with 
the procedures in Sec.  123.22 of this subchapter.

[70 FR 50960, Aug. 29, 2005, as amended at 82 FR 17, Jan. 3, 2017]



Sec.  123.6  Foreign trade zones and U.S. Customs and Border Protection 
bonded warehouses.

    Foreign trade zones in the United States and U.S. Customs and Border 
Protection bonded warehouses are considered integral parts of the United 
States for the purpose of this subchapter. An export license is 
therefore not required for shipment between the United States and a 
foreign trade zone or a U.S. Customs and Border Protection bonded 
warehouse. In the case of classified defense articles, the provisions of 
the Department of Defense National Industrial Security Program Operating 
Manual will apply. An export license is required for all shipments of 
articles on the U.S. Munitions List

[[Page 526]]

from foreign trade zones and U.S. Customs and Border Protection bonded 
warehouses to foreign countries, regardless of how the articles reached 
the zone or warehouse.

[71 FR 20540, Apr. 21, 2006]



Sec.  123.7  Exports to warehouses or distribution points 
outside the United States.

    Unless the exemption under Sec.  123.16(b)(1) is used, a license is 
required to export defense articles to a warehouse or distribution point 
outside the United States for subsequent resale and will normally be 
granted only if an agreement has been approved pursuant to Sec.  124.14 
of this subchapter.



Sec.  123.8  Special controls on vessels, aircraft and satellites 
covered by the U.S. Munitions List.

    (a) Transferring registration or control to a foreign person of any 
aircraft, vessel, or satellite on the U.S. Munitions List is an export 
for purposes of this subchapter and requires a license or written 
approval from the Directorate of Defense Trade Controls. This 
requirement applies whether the aircraft, vessel, or satellite is 
physically located in the United States or abroad.
    (b) The registration in a foreign country of any aircraft, vessel or 
satellite covered by the U.S. Munitions List which is not registered in 
the United States but which is located in the United States constitutes 
an export. A license or written approval from the Directorate of Defense 
Trade Controls is therefore required. Such transactions may also require 
the prior approval of the U.S. Department of Transportation's Maritime 
Administration, the Federal Aviation Administration or other agencies of 
the U.S. Government.

[71 FR 20540, Apr. 21, 2006]



Sec.  123.9  Country of ultimate destination and approval of reexports 
or retransfers.

    (a) The country designated as the country of ultimate destination on 
an application for an export license, or in an Electronic Export 
Information filing where an exemption is claimed under this subchapter, 
must be the country of ultimate end-use. The written approval of the 
Directorate of Defense Trade Controls must be obtained before reselling, 
transferring, reexporting, retransferring, transshipping, or disposing 
of a defense article to any end-user, end-use, or destination other than 
as stated on the export license, or in the Electronic Export Information 
filing in cases where an exemption is claimed under this subchapter, 
except in accordance with the provisions of an exemption under this 
subchapter that explicitly authorizes the resell, transfer, reexport, 
retransfer, transshipment, or disposition of a defense article without 
such approval. Exporters must determine the specific end-user, end-use, 
and destination prior to submitting an application to the Directorate of 
Defense Trade Controls or claiming an exemption under this subchapter.

    Note to paragraph (a): In making the aforementioned determination, a 
person is expected to review all readily available information, 
including information readily available to the public generally as well 
as information readily available from other parties to the transaction.

    (b) The exporter, U.S. or foreign, must inform the end-user and all 
consignees that the defense articles being exported are subject to U.S. 
export laws and regulations as follows:
    (1) The exporter must incorporate the following information as an 
integral part of the commercial invoice, whenever defense articles are 
to be shipped (exported in tangible form), retransferred (in tangible 
form), or reexported (in tangible form) pursuant to a license or other 
approval under this subchapter:
    (i) The country of ultimate destination;
    (ii) The end-user;
    (iii) The license or other approval number or exemption citation; 
and
    (iv) The following statement: ``These items are controlled by the 
U.S. government and authorized for export only to the country of 
ultimate destination for use by the ultimate consignee or end-user(s) 
herein identified. They may not be resold, transferred, or otherwise 
disposed of, to any other country or to any person other than the 
authorized ultimate consignee or end-user(s), either in their original 
form or after

[[Page 527]]

being incorporated into other items, without first obtaining approval 
from the U.S. government or as otherwise authorized by U.S. law and 
regulations.''

    Note to paragraph (b)(1)(iv): The phrase ``or as otherwise 
authorized by U.S. law and regulations'' is included because U.S. 
regulations contain specific exemptions from licensing requirements 
(e.g., ITAR exemptions, and EAR license exceptions and No License 
Required designations) and allow for certain amounts of U.S. origin 
content in foreign made items (see 15 CFR 734).

    (2) When exporting items subject to the EAR (see Sec. Sec.  120.5, 
120.42 and 123.1(b) of this subchapter) pursuant to a Department of 
State license or other approval, the U.S. exporter must also provide the 
end-user and consignees with the appropriate EAR classification 
information for each item. This includes the Export Control 
Classification Number (ECCN) or EAR99 designation.
    (c) Any U.S. person or foreign person requesting written approval 
from the Directorate of Defense Trade Controls for the reexport, 
retransfer, other disposition, or change in end-use, end-user, or 
destination of a defense article initially exported or transferred 
pursuant to a license or other written approval, or an exemption under 
this subchapter, must submit all the documentation required for a 
permanent export license (see Sec.  123.1 of this subchapter) and shall 
also submit the following:
    (1) The license number, written authorization, or exemption under 
which the defense article or defense service was previously authorized 
for export from the United States (Note: For exports under exemptions at 
Sec.  126.16 or Sec.  126.17 of this subchapter, the original end-use, 
program, project, or operation under which the item was exported must be 
identified.);
    (2) A precise description, quantity, and value of the defense 
article or defense service;
    (3) A description and identification of the new end-user, end-use, 
and destination; and
    (4) With regard to any request for such approval relating to a 
defense article or defense service initially exported pursuant to an 
exemption contained in Sec.  126.16 or Sec.  126.17 of this subchapter, 
written request for the prior approval of the transaction from the 
Directorate of Defense Trade Controls must be submitted: By the original 
U.S. exporter, provided a written request is received from a member of 
the Australian Community, as identified in Sec.  126.16 of this 
subchapter, or the United Kingdom Community, as identified in Sec.  
126.17 of this subchapter (where such a written request includes a 
written certification from the member of the Australian Community or the 
United Kingdom Community providing the information set forth in Sec.  
126.17 of this subchapter); or by a member of the Australian Community 
or the United Kingdom Community, where such request provides the 
information set forth in this section. All persons must continue to 
comply with statutory and regulatory requirements outside of this 
subchapter concerning the import of defense articles and defense 
services or the possession or transfer of defense articles, including, 
but not limited to, regulations issued by the Bureau of Alcohol, 
Tobacco, Firearms and Explosives found at 27 CFR parts 447, 478, and 
479, which are unaffected by the Defense Trade Cooperation Treaty 
between the United States and the United Kingdom and continue to apply 
fully to defense articles and defense services subject to either of the 
aforementioned treaties and the exemptions contained in Sec.  126.17 of 
this subchapter.
    (d) The Directorate of Defense Trade Controls may authorize reexport 
or retransfer of an item subject to the EAR provided that:
    (1) The item was initially exported, reexported or transferred 
pursuant to a Department of State license or other approval;
    (2) The item is for end-use in or with a defense article; and
    (3) All requirements of paragraph (c) of this section are satisfied 
for the item subject to the EAR, as well as for the associated defense 
article.
    (e) Reexports or retransfers of U.S.-origin components incorporated 
into a foreign defense article to NATO, NATO agencies, a government of a 
NATO country, or the governments of Australia, Israel, Japan, New 
Zealand, or the Republic of Korea are authorized

[[Page 528]]

without the prior written approval of the Directorate of Defense Trade 
Controls, provided:
    (1) The U.S.-origin components were previously authorized for export 
from the United States, either by a license, written authorization, or 
an exemption other than those described in either Sec.  126.16 or Sec.  
126.17 of this subchapter;
    (2) The U.S.-origin components are not significant military 
equipment, the items are not major defense equipment sold under contract 
in the amount of $25,000,000 ($25 million) or more; the articles are not 
defense articles or defense services sold under a contract in the amount 
of $100,000,000 ($100 million) or more; and are not identified in part 
121 of this subchapter as Missile Technology Control Regime (MTCR) 
items; and
    (3) The person reexporting the defense article provides written 
notification to the Directorate of Defense Trade Controls of the 
retransfer not later than 30 days following the reexport. The 
notification must state the articles being reexported and the recipient 
government.
    (4) The original license or other approval of the Directorate of 
Defense Trade Controls did not include retransfer or reexport 
restrictions prohibiting use of this exemption.

[58 FR 39299, July 22, 1993, as amended at 71 FR 20541, Apr. 21, 2006; 
73 FR 15885, Mar. 26, 2008; 73 FR 38343, Aug. 3, 2009; 77 FR 16597, Mar. 
21, 2012; 78 FR 22759, Apr. 16, 2013; 78 FR 61755, Oct. 3, 2013; 81 FR 
54735, Aug. 17, 2016]



Sec.  123.10  Non-transfer and use assurances.

    (a) A nontransfer and use certificate (Form DSP-83) is required for 
the export of significant military equipment and classified articles, 
including classified technical data. A license will not be issued until 
a completed Form DSP-83 has been received by the Directorate of Defense 
Trade Controls. This form is to be executed by the foreign consignee, 
foreign end-user, and the applicant. The certificate stipulates that, 
except as specifically authorized by prior written approval of the 
Department of State, the foreign consignee and foreign end-user will not 
reexport, resell or otherwise dispose of the significant military 
equipment enumerated in the application outside the country named as the 
location of the foreign end-use or to any other person.
    (b) The Directorate of Defense Trade Controls may also require a 
DSP-83 for the export of any other defense articles, including technical 
data, or defense services.
    (c) When a DSP-83 is required for an export of any defense article 
or defense service to a non-governmental foreign end-user, the 
Directorate of Defense Trade Controls may require as a condition of 
issuing the license that the appropriate authority of the government of 
the country of ultimate destination also execute the certificate.

[71 FR 20541, Apr. 21, 2006]



Sec.  123.11  Movements of vessels and aircraft covered by 
the U.S. Munitions List outside the United States.

    (a) A license issued by the Directorate of Defense Trade Controls is 
required whenever a privately-owned aircraft or vessel on the U.S. 
Munitions List makes a voyage outside the United States.
    (b) Exemption. An export license is not required when a vessel or 
aircraft referred to in paragraph (a) of this section departs from the 
United States and does not enter the territorial waters or airspace of a 
foreign country if no defense articles are carried as cargo. Such a 
vessel or aircraft may not enter the territorial waters or airspace of a 
foreign country before returning to the United States, or carry as cargo 
any defense article, without a temporary export license (Form DSP-73) 
from the Department of State. (See Sec.  123.5.)

[58 FR 39299, July 22, 1993, as amended at 71 FR 20541, Apr. 21, 2006]



Sec.  123.12  Shipments between U.S. possessions.

    An export license is not required for the shipment of defense 
articles between the United States, the Commonwealth of Puerto Rico, and 
U.S. possessions. A license is required, however, for the export of 
defense articles from these areas to foreign countries.

[[Page 529]]



Sec.  123.13  Domestic aircraft shipments via a foreign country.

    A license is not required for the shipment by air of a defense 
article from one location in the United States to another location in 
the United States via a foreign country.

[81 FR 54736, Aug. 17, 2016]



Sec.  123.14  Import certificate/delivery verification procedure.

    (a) The Import Certificate/Delivery Verification Procedure is 
designed to assure that a commodity imported into the territory of those 
countries participating in IC/DV procedures will not be diverted, 
transshipped, or reexported to another destination except in accordance 
with export control regulations of the importing country.
    (b) Exports. The Directorate of Defense Trade Controls may require 
the IC/DV procedure on proposed exports of defense articles to non-
government entities in those countries participating in IC/DV 
procedures. In such cases, U.S. exporters must submit both an export 
license application (the completed Form DSP-5) and the original Import 
Certificate, which must be provided and authenticated by the government 
of the importing country. This document verifies that the foreign 
importer complied with the import regulations of the government of the 
importing country and that the importer declared the intention not to 
divert, transship or reexport the material described therein without the 
prior approval of that government. After delivery of the commodities to 
the foreign consignee, the Directorate of Defense Trade Controls may 
also require U.S. exporters to furnish Delivery Verification 
documentation from the government of the importing country. This 
documentation verifies that the delivery was in accordance with the 
terms of the approved export license. Both the Import Certificate and 
the Delivery Verification must be furnished to the U.S. exporter by the 
foreign importer.
    (c) Triangular transactions. When a transaction involves three or 
more countries that have adopted the IC/DV procedure, the governments of 
these countries may stamp a triangular symbol on the Import Certificate. 
This symbol is usually placed on the Import Certificate when the 
applicant for the Import Certificate (the importer) states either (1) 
that there is uncertainty whether the items covered by the Import 
Certificate will be imported into the country issuing the Import 
Certificate; (2) that he or she knows that the items will not be 
imported into the country issuing the Import Certificate; or (3) that, 
if the items are to be imported into the country issuing the Import 
Certificate, they will subsequently be reexported to another 
destination. All parties, including the ultimate consignee in the 
country of ultimate destination, must be shown on the completed Import 
Certificate.

[58 FR 39299, July 22, 1993, as amended at 71 FR 20541, Apr. 21, 2006]



Sec.  123.15  Congressional certification pursuant to Section 36(c) 
of the Arms Export Control Act.

    (a) The Arms Export Control Act requires that a certification be 
provided to the Congress prior to the granting of any license or other 
approval for transactions, in the amounts described below, involving 
exports of any defense articles and defense services and for exports of 
major defense equipment, as defined in Sec.  120.8 of this subchapter. 
Approvals may not be granted when the Congress has enacted a joint 
resolution prohibiting the export. Certification is required for any 
transaction involving:
    (1) A license for the export of major defense equipment sold under a 
contract in the amount of $14,000,000 or more, or for defense articles 
and defense services sold under a contract in the amount of $50,000,000 
or more, to any country that is not a member of the North Atlantic 
Treaty Organization (NATO), or Australia, Israel, Japan, New Zealand, or 
the Republic of Korea that does not authorize a new sales territory; or
    (2) A license for export to a country that is a member country of 
NATO, or Australia, Israel, Japan, New Zealand, or the Republic of 
Korea, of major defense equipment sold under a contract in the amount of 
$25,000,000 or more, or for defense articles and defense services sold 
under a contract in the

[[Page 530]]

amount of $100,000,000 or more, and provided the transfer does not 
include any other countries; or
    (3) A license for export of defense articles controlled under 
Category I paragraphs (a) through (g) of the United States Munitions 
List, Sec.  121.1 of this subchapter, in an amount of $1,000,000 or 
more.
    (b) Unless an emergency exists which requires the final export in 
the national security interests of the United States, approval may not 
be granted for any transaction until at least 15 calendar days have 
elapsed after receipt by the Congress of the certification required by 
22 U.S.C. 2776(c)(1) involving NATO, or Australia, Israel, Japan, New 
Zealand, or the Republic of Korea or at least 30 calendar days have 
elapsed for any other country; in the case of a license for an export of 
a commercial communications satellite for launch from, and by nationals 
of, the Russian Federation, Ukraine, or Kazakhstan, until at least 15 
calendar days after the Congress receives such certification.
    (c) Persons who intend to export defense articles and defense 
services pursuant to any exemption in this subchapter under the 
circumstances described in this section must provide written 
notification to the Directorate of Defense Trade Controls and include a 
signed contract and a DSP-83 signed by the applicant, the foreign 
consignee and the end-user.

[70 FR 34654, June 15, 2005, as amended at 73 FR 38343, Aug. 3, 2009; 77 
FR 16598, Mar. 21, 2012; 85 FR 3832, Jan. 23, 2020]



Sec.  123.16  Exemptions of general applicability.

    (a) The following exemptions apply to exports of unclassified 
defense articles for which no approval is needed from the Directorate of 
Defense Trade Controls. These exemptions do not apply to: Proscribed 
destinations under Sec.  126.1 of this subchapter; exports for which 
Congressional notification is required (see Sec.  123.15 of this 
subchapter); MTCR articles; Significant Military Equipment (SME); and 
may not be used by persons who are generally ineligible as described in 
Sec.  120.1(c) of this subchapter. All shipments of defense articles, 
including but not limited to those to Australia, Canada, and the United 
Kingdom, require an Electronic Export Information (EEI) filing or 
notification letter. If the export of a defense article is exempt from 
licensing, the EEI filing must cite the exemption. Refer to Sec.  123.22 
of this subchapter for EEI filing and letter notification requirements.
    (b) The following exports are exempt from the licensing requirements 
of this subchapter.
    (1) Port Directors of U.S. Customs and Border Protection shall 
permit the export without a license of defense hardware being exported 
in furtherance of a manufacturing license agreement, technical 
assistance agreement, distribution agreement or an arrangement for 
distribution of items identified in Category XIII(b)(1), approved in 
accordance with part 124, provided that:
    (i) The defense hardware to be exported supports the activity and is 
identified by item, quantity and value in the agreement or arrangement; 
and
    (ii) Any provisos or limitations placed on the authorized agreement 
or arrangement are adhered to; and
    (iii) The exporter identifies in the EEI filing by selecting the 
appropriate code that the export is exempt from the licensing 
requirements of this subchapter; and
    (iv) The total value of all shipments does not exceed the value 
authorized in the agreement or arrangement.
    (v) In the case of a distribution agreement, export must be made 
directly to the approved foreign distributor.
    (2) Port Directors of U.S. Customs and Border Protection shall 
permit the export of parts or components without a license when the 
total value does not exceed $500 in a single transaction and:
    (i) The components or spare parts are being exported to support a 
defense article previously authorized for export; and
    (ii) The spare parts or components are not going to a distributor, 
but to a previously approved end-user of the defense articles; and
    (iii) The spare parts or components are not to be used to enhance 
the capability of the defense article;
    (iv) Exporters shall not split orders so as not to exceed the dollar 
value of this exemption;

[[Page 531]]

    (v) The exporter may not make more than 24 shipments per calendar 
year to the previously authorized end user;
    (vi) The exporter must certify on the invoice, the bill of lading, 
air waybill, or shipping documents that the export is exempt from the 
licensing requirements of this subchapter. This is done by writing ``22 
CFR 123.16(b)(2) applicable.''
    (3) Port Directors of U.S. Customs and Border Protection shall 
permit the export without a license, of packing cases specially designed 
to carry defense articles.
    (4) Port Directors of U.S. Customs and Border Protection shall 
permit the export without a license, of unclassified models or mock-ups 
of defense articles, provided that such models or mock-ups are 
inoperable and do not reveal any technical data in excess of that which 
is exempted from the licensing requirements of Sec.  125.4(b) of this 
subchapter and do not contain components (see Sec.  120.45(b) of this 
subchapter) covered by the U.S. Munitions List (see Sec.  121.1 of this 
subchapter). Some models or mockups built to scale or constructed of 
original materials can reveal technical data. U.S. persons who avail 
themselves of this exemption must electronically submit a certification 
to U.S. Customs and Border Protection that these conditions are met, 
unless directed by U.S. Customs and Border Protection to provide such a 
certification in another manner. This exemption does not imply that the 
Directorate of Defense Trade Controls will approve the export of any 
defense articles for which models or mocks-ups have been exported 
pursuant to this exemption.
    (5) Port Directors of U.S. Customs and Border Protection shall 
permit the temporary export without a license of unclassified defense 
articles to any public exhibition, trade show, air show or related event 
if that article has previously been licensed for a public exhibition, 
trade show, air show or related event and the license is still valid. 
U.S. persons who avail themselves of this exemption must electronically 
submit a certification to U.S. Customs and Border Protection that these 
conditions are met, unless directed by U.S. Customs and Border 
Protection to provide such a certification in another manner.
    (6) For exemptions for personal protective gear, refer to Sec.  
123.17.
    (7) [Reserved]
    (8) For exports to Canada refer to Sec.  126.5 of this subchapter.
    (9) Port Directors of U.S. Customs and Border Protection shall 
permit the temporary export without a license by a U.S. person of any 
unclassified component, part, tool or test equipment to a subsidiary, 
affiliate or facility owned or controlled by the U.S. person (see Sec.  
120.37 of this subchapter for definition of foreign ownership and 
foreign control) if the component, part, tool or test equipment is to be 
used for manufacture, assembly, testing, production, or modification 
provided:
    (i) The U.S. person is registered with the Directorate of Defense 
Trade Controls and complies with all requirements set forth in part 122 
of this subchapter;
    (ii) No defense article exported under this exemption may be sold or 
transferred without the appropriate license or other approval from the 
Directorate of Defense Trade Controls.
    (10) [Reserved]

[58 FR 39299, July 22, 1993, as amended at 59 FR 29951, June 10, 1994; 
59 FR 45622, Sept. 2, 1994; 67 FR 15100, Mar. 29, 2002; 70 FR 50961, 
Aug. 29, 2005; 71 FR 20541, Apr. 21, 2006; 76 FR 45197, July 28, 2011; 
77 FR 16598, Mar. 21, 2012; 78 FR 40631, July 8, 2013; 79 FR 61230, Oct. 
10, 2014; 79 FR 66609, Nov. 10, 2014; 82 FR 17, Jan. 3, 2017; 85 FR 
3832, Jan. 23, 2020]



Sec.  123.17  Exemption for personal protective gear.

    (a)-(e) [Reserved]
    (f) Port Directors of U.S. Customs and Border Protection (CBP) shall 
permit U.S. persons to export temporarily from the United States without 
a license one set of body armor covered by U.S. Munitions List Category 
X(a)(1), which may include one helmet covered by U.S. Munitions List 
Category X(a)(6), or one set of chemical agent protective gear covered 
by U.S. Munitions List Category XIV(f)(4), which may include one 
additional filter canister, provided:
    (1) The person declares the articles to a CBP officer upon each 
departure from

[[Page 532]]

the United States, presents the Internal Transaction Number from 
submission of the export information through CBP's electronic system(s) 
per Sec.  123.22 (unless electronic reporting of such information is 
unavailable, in which case U.S. Customs and Border Protection will issue 
instructions), and the articles are presented to the CBP officer for 
inspection;
    (2) The body armor, which may include a helmet, or chemical agent 
protective gear, which may include one additional filter canister, to be 
exported is with the individual's baggage or effects, whether 
accompanied or unaccompanied (but not mailed); and
    (3) The body armor, which may include a helmet, or chemical agent 
protective gear, which may include one additional filter canister, to be 
exported is for that person's exclusive use and not for reexport or 
other transfer of ownership. The person must declare it is his intention 
to return the article(s) to the United States at the end of tour, 
contract, or assignment for which the articles were temporarily 
exported.
    (g) The license exemption set forth in paragraph (f) of this section 
is available for the temporary export of body armor or chemical agent 
protective gear for personal use to countries listed in Sec.  126.1 of 
this subchapter provided:
    (1) The conditions in paragraph (f) of this section are met; and
    (2) The person is affiliated with the U.S. Government traveling on 
official business or is traveling in support of a U.S. Government 
contract. The person shall electronically submit documentation to this 
effect, along with the Internal Transaction Number from U.S. Customs and 
Border Protection's electronic system(s), unless electronic reporting of 
such information is unavailable, in which case U.S. Customs and Border 
Protection will issue instructions.
    (h) The license exemption set forth in paragraph (f) of this section 
is available for the temporary export of body armor, which may include a 
helmet, or chemical agent protective gear, which may include one 
additional filter canister, for personal use to Iraq, provided the 
conditions in paragraph (f) are met, and the person is either affiliated 
with the U.S. Government traveling on official business or is traveling 
in support of a U.S. Government contract, or is traveling to Iraq under 
a direct authorization by the Government of Iraq and engaging in 
activities for, on behalf of, or at the request of, the Government of 
Iraq. The person shall electronically submit documentation to this 
effect, along with the Internal Transaction Number using U.S. Customs 
and Border Protection's electronic system(s), unless electronic 
reporting of such information is unavailable, in which case U.S. Customs 
and Border Protection will issue instructions. Documentation regarding 
direct authorization from the Government of Iraq shall include an 
English translation.
    (i) The license exemption set forth in paragraph (f) of this section 
is available for the temporary export of body armor, which may include a 
helmet, or chemical agent protective gear, which may include one 
additional filter canister, for personal use to Afghanistan, provided 
the conditions in paragraph (f) are met.
    (j) If the articles temporarily exported pursuant to paragraphs (f) 
through (i) of this section are not returned to the United States, a 
detailed report must be submitted to the Office of Defense Trade 
Controls Compliance in accordance with the requirements of Sec.  
127.12(c)(2) of this subchapter.
    (k) To use the exemptions in this section, individuals are not 
required to be registered with the Department of State (the registration 
requirement is described in part 122 of this subchapter). All other 
entities must be registered and eligible, as provided in Sec. Sec.  
120.1(c) and (d) and part 122 of this subchapter.

[58 FR 39299, July 22, 1993, as amended at 64 FR 17534, Apr. 12, 1999; 
70 FR 50962, Aug. 29, 2005; 71 FR 20541, Apr. 21, 2006; 74 FR 39213, 
Aug. 6, 2009; 77 FR 25867, May 2, 2012; 78 FR 40631, July 8, 2013; 82 FR 
18, Jan. 3, 2017; 85 FR 3832, Jan. 23, 2020]



Sec.  123.18  [Reserved]



Sec.  123.19  Canadian and Mexican border shipments.

    A shipment originating in Canada or Mexico which incidentally 
transits the United States en route to a delivery

[[Page 533]]

point in the same country that originated the shipment is exempt from 
the requirement for an in transit license.



Sec.  123.20  Nuclear related controls.

    (a) The provisions of this subchapter do not apply to articles, 
technical data, or services in Category VI, Category XV, Category XVI, 
or Category XX of Sec.  121.1 of this subchapter to the extent that 
exports of such articles, technical data, or services are controlled by 
the Department of Energy or the Nuclear Regulatory Commission pursuant 
to the Atomic Energy Act of 1954, as amended, and the Nuclear Non-
Proliferation Act of 1978, as amended, or is a government transfer 
authorized pursuant to these Acts. For Department of Commerce controls, 
see 15 CFR 742.3 and 744.2, administered pursuant to Section 309(c) of 
the Nuclear Nonproliferation Act of 1978, as amended (42 U.S.C. 
2139a(c)), and 15 CFR 744.5, which are not subject to this subchapter.
    (b) The transfer of materials, including special nuclear materials, 
nuclear parts of nuclear weapons, or other non-nuclear parts of nuclear 
weapons systems involving Restricted Data or of assistance involving any 
person directly or indirectly engaging in the production or use thereof 
is prohibited except as authorized by the Atomic Energy Act of 1954, as 
amended. The transfer of Restricted Data or such assistance is 
prohibited except as authorized by the Atomic Energy Act of 1954, as 
amended. The technical data or defense services relating to nuclear 
weapons, nuclear weapons systems or related defense purposes (and such 
data or services relating to applications of atomic energy for peaceful 
purposes, or related research and development) may constitute Restricted 
Data or such assistance, subject to the foregoing prohibition.
    (c) A license for the export of a defense article, technical data, 
or the furnishing of a defense service relating to defense articles 
referred to in Category VI(e) or Category XX(b)(1) of Sec.  121.1 of 
this subchapter will not be granted unless the defense article, 
technical data, or defense service comes within the scope of an existing 
Agreement for Cooperation for Mutual Defense Purposes concluded pursuant 
to the Atomic Energy Act of 1954, as amended, with the government of the 
country to which the defense article, technical data, or defense service 
is to be exported. Licenses may be granted in the absence of such an 
agreement only:
    (1) If the proposed export involves an article which is identical to 
that in use in an unclassified civilian nuclear power plant,
    (2) If the proposed export has no relationship to naval nuclear 
propulsion, and
    (3) If it is not for use in a naval propulsion plant.

[67 FR 58988, Sept. 19, 2002, as amended at 78 FR 40933, July 8, 2013; 
79 FR 47, Jan. 2, 2014; 79 FR 36393, June 27, 2014; 79 FR 66609, Nov. 
10, 2014]



Sec.  123.21  Duration, renewal, and disposition of licenses.

    (a) A license is valid for four years. The license expires when the 
total value or quantity authorized has been shipped or when the date of 
expiration has been reached, whichever occurs first. Defense articles to 
be shipped thereafter require a new application and license. The new 
application should refer to the expired license. It should not include 
references to any defense articles other than those of the unshipped 
balance of the expired license.
    (b) Unused, expired, suspended, or revoked licenses must be handled 
in accordance with Sec.  123.22(c) of this subchapter.

[58 FR 39299, July 22, 1993, as amended at 76 FR 68312, Nov. 4, 2011]



Sec.  123.22  Filing, retention, and return of export licenses and filing 
of export information.

    (a) Any export, as defined in this subchapter, of a defense article 
controlled by this subchapter, to include defense articles transiting 
the United States, requires the electronic reporting of export 
information. The reporting of the export information shall be to the 
U.S. Customs and Border Protection using its electronic system(s), or 
directly to the Directorate of Defense Trade Controls (DDTC), as 
appropriate. Before the export of any hardware, via a license or other 
authorization, the DDTC

[[Page 534]]

registered applicant/exporter, or an agent acting on the filer's behalf, 
must electronically submit export information to U.S. Customs and Border 
Protection, unless electronic reporting is unavailable, in which case 
U.S. Customs and Border Protection will issue instructions (see 
paragraph (b) of this section). In addition to electronically providing 
the export information to U.S. Customs and Border Protection before 
export, all mandatory supporting documentation (e.g., attachments, 
certifications, proof of filing in U.S. Customs and Border Protection's 
system(s) such as the Internal Transaction Number (ITN)) must be 
submitted electronically, unless electronic reporting of such 
information is unavailable, in which case U.S. Customs and Border 
Protection will issue instructions.
    (1) If necessary, an export may be made through a port other than 
the one designated on the license if the exporter complies with the 
procedures established by U.S. Customs and Border Protection.
    (2) When a defense article is temporarily exported from the United 
States and subsequently moved from one destination authorized on a 
license to another destination authorized on the same or another 
temporary license, the applicant, or an agent acting on the applicant's 
behalf, must ensure that U.S. Customs and Border Protection decrements 
both temporary licenses to show the exit and entry of the hardware.
    (b) Filing and reporting of export information--(1) Filing of export 
information with the U.S. Customs and Border Protection. Before 
exporting any hardware controlled by this subchapter using a license or 
exemption, the DDTC registered applicant/exporter, or an agent acting on 
the filer's behalf, must electronically file the export information with 
U.S. Customs and Border Protection in accordance with the following 
timelines:
    (i) Air or truck shipments. The export information must be 
electronically filed at least 8 hours prior to departure.
    (ii) Sea or rail Shipments. The export information must be 
electronically filed at least 24 hours prior to departure.
    (2) Emergency shipments of hardware that cannot meet the pre-
departure filing requirements. U.S. Customs and Border Protection may 
permit an emergency export of hardware by truck or air by a U.S. 
registered person when the exporter is unable to comply with the 
Electronic Export Information (EEI) filing timeline in paragraph 
(b)(1)(i) of this section. The applicant, or an agent acting on the 
applicant's behalf, must provide documentation required by the U.S. 
Customs and Border Protection and this subchapter. The documentation 
provided to U.S. Customs and Border Protection must include the Internal 
Transaction Number (ITN) for the shipment and must be accompanied by an 
explanation for urgency. The export filing via U.S. Customs and Border 
Protection's electronic system(s) must be made at least two hours prior 
to any departure by air from the United States. When shipping via 
ground, the filing in U.S. Customs and Border Protection's electronic 
system(s) must be made when the exporter provides the articles to the 
carrier or at least one hour prior to departure from the United States, 
when the permanent export of the hardware has been authorized for 
export:
    (i) In accordance with Sec.  126.4 of this subchapter, or
    (ii) On a valid license, and the ultimate recipient and ultimate 
end-user identified on the license is a foreign government.
    (3) Reporting of export information on technical data and defense 
service. When an export is being made using a DDTC authorization (e.g., 
technical data license, agreement or a technical data exemption provided 
in this subchapter), the DDTC registered exporter will retain the 
license or other approval and provide the export information 
electronically to DDTC as follows:
    (i) Technical data license. Prior to the permanent export of 
technical data licensed using a Form DSP-5, the applicant shall 
electronically provide export information using the system for direct 
electronic reporting to DDTC of export information and self-validate the 
original of the license. Exports of copies of the licensed technical 
data should be

[[Page 535]]

made in accordance with existing exemptions in this subchapter. Should 
an exemption not apply, the applicant may request a new license.
    (ii) Manufacturing license and technical assistance agreements. 
Prior to the initial export of any technical data and defense services 
authorized in an agreement the U.S. agreement holder must electronically 
inform DDTC that exports have begun. In accordance with this subchapter, 
all subsequent exports of technical data and services are not required 
to be filed electronically with DDTC except when the export is done 
using a U.S. Port. Records of all subsequent exports of technical data 
shall be maintained by the exporter in accordance with this subchapter 
and shall be made immediately available to DDTC upon request. Exports of 
technical data in furtherance of an agreement using a U.S. Port shall be 
made in accordance with Sec.  125.4 of this subchapter and made in 
accordance with the procedures in paragraph (b)(3)(iii) of this section.
    (iii) Technical data and defense service exemptions. In any instance 
when technical data is exported using an exemption in this subchapter 
(e.g., Sec. Sec.  125.4(b)(2), 125.4(b)(4), 126.5) from a U.S. port, the 
exporter must provide the export data electronically to DDTC. A copy of 
the electronic notification to DDTC must accompany the technical data 
shipment and be made available to the U.S. Customs and Border Protection 
upon request.

    Note to paragraph (b)(3)(iii): Future changes to the electronic 
reporting procedure will be amended by publication of a rule in the 
Federal Register. Exporters are reminded to continue maintaining records 
of all export transactions, including exemption shipments, in accordance 
with this subchapter.

    (c) Return of licenses. Licenses issued by the Directorate of 
Defense Trade Controls are subject to return requirements as follows:
    (1) A license issued electronically by DDTC and electronically 
decremented by U.S. Customs and Border Protection through its electronic 
system(s) is not required to be returned to DDTC. A copy of the license 
must be maintained by the applicant in accordance with Sec.  122.5 of 
this subchapter.
    (2) Licenses issued by DDTC but not decremented by U.S. Customs and 
Border Protection through its electronic system(s) (e.g., oral or visual 
technical data releases) must be maintained by the applicant in 
accordance with Sec.  122.5 of this subchapter.
    (3) A license issued by DDTC but not used by the applicant does not 
need to be returned to DDTC, even when expired.
    (4) A license revoked by DDTC is considered expired and must be 
handled in accordance with paragraphs (c)(1) and (c)(2) of this section.

[68 FR 61101, Oct. 27, 2003, as amended at 70 FR 50962, Aug. 29, 2005; 
76 FR 68312, Nov. 4, 2011; 77 FR 16599, Mar. 21, 2012; 82 FR 18, Jan. 3, 
2017; 83 FR 50007, Oct. 4, 2018]



Sec.  123.23  Monetary value of shipments.

    Port Directors of U.S. Customs and Border Protection shall permit 
the shipment of defense articles identified on any license when the 
total value of the export does not exceed the aggregate monetary value 
(not quantity) stated on the license by more than ten percent, provided 
that the additional monetary value does not make the total value of the 
license or other approval for the export of any major defense equipment 
sold under a contract reach $14,000,000 or more, and provided that the 
additional monetary value does not make defense articles or defense 
services sold under a contract reach the amount of $50,000,000 or more.

[70 FR 50963, Aug. 29, 2005]



Sec.  123.24  Shipments by U.S. Postal Service.

    (a) The export of any defense hardware using a license or exemption 
in this subchapter by the U.S. Postal Service must be filed with U.S. 
Customs and Border Protection using its electronic system(s) and the 
license must be filed with U.S. Customs and Border Protection before any 
hardware is actually sent abroad by mail. The exporter must certify the 
defense hardware being exported in accordance with this subchapter by 
clearly marking on the package: ``This export is subject to the controls 
of the ITAR, 22 CFR (identify section for an exemption) or (state 
license number) and the export has

[[Page 536]]

been electronically filed with U.S. Customs and Border Protection.''
    (b) The export of any technical data using a license in this 
subchapter by the U.S. Postal Service must be notified electronically 
directly to the Directorate of Defense Trade Controls (DDTC). The 
exporter, using either a license or exemption, must certify, by clearly 
marking on the package, ``This export is subject to the controls of the 
ITAR, 22 CFR (identify section for an exemption) or (state license 
number).'' For those exports using a license, the exporter must also 
state ``The export has been electronically notified directly to DDTC.'' 
The license must be returned to DDTC upon completion of the use of the 
license (see Sec.  123.22(c)).

[68 FR 61102, Oct. 27, 2003, as amended at 70 FR 50963, Aug. 29, 2005; 
82 FR 19, Jan. 3, 2017]



Sec.  123.25  Amendments to licenses.

    (a) The Directorate of Defense Trade Controls may approve an 
amendment to a license for permanent export, temporary export and 
temporary import of unclassified defense articles. A suggested format is 
available from the Directorate of Defense Trade Controls.
    (b) The following types of amendments to a license will be 
considered: Addition of U.S. freight forwarder or U.S. consignor; change 
due to an obvious typographical error; change in source of commodity; 
and change of foreign intermediate consignee if that party is only 
transporting the equipment and will not process (e.g., integrate, 
modify) the equipment. For changes in U.S. dollar value see Sec.  
123.23.
    (c) The following types of amendments to a license will not be 
approved: Additional quantity, changes in commodity, country of ultimate 
destination, end-use or end-user, foreign consignee and/or extension of 
duration. The foreign intermediate consignee may only be amended if that 
party is acting as freight forwarder and the export does not involve 
technical data. A new license is required for these changes. Any new 
license submission must reflect only the unshipped balance of quantity 
and dollar value.

[58 FR 39299, July 22, 1993, as amended at 71 FR 20542, Apr. 21, 2006; 
77 FR 22671, Apr. 17, 2012]



Sec.  123.26  Recordkeeping for exemptions.

    Any person engaging in any export, reexport, transfer, or retransfer 
of a defense article or defense service pursuant to an exemption must 
maintain records of each such export, reexport, transfer, or retransfer. 
The records shall, to the extent applicable to the transaction and 
consistent with the requirements of Sec.  123.22 of this subchapter, 
include the following information: A description of the defense article, 
including technical data, or defense service; the name and address of 
the end-user and other available contact information (e.g., telephone 
number and electronic mail address); the name of the natural person 
responsible for the transaction; the stated end-use of the defense 
article or defense service; the date of the transaction; the Electronic 
Export Information (EEI) Internal Transaction Number (ITN); and the 
method of transmission. The person using or acting in reliance upon the 
exemption shall also comply with any additional recordkeeping 
requirements enumerated in the text of the regulations concerning such 
exemption (e.g., requirements specific to the Defense Trade Cooperation 
Treaties in Sec.  126.16 and Sec.  126.17 of this subchapter).

[77 FR 16599, Mar. 21, 2012]



Sec.  123.27  Special licensing regime for export to U.S. allies of commercial 
communications satellite components, systems, parts, accessories, attachments 
and associated technical data.

    (a) U.S. persons engaged in the business of exporting specifically 
designed or modified components, systems, parts, accessories, 
attachments, associated equipment and certain associated technical data 
for commercial communications satellites, and who are so registered with 
the Directorate of Defense Trade Controls pursuant to part 122 of this 
subchapter, may submit license applications for multiple permanent and 
temporary exports and temporary imports of such articles for expeditious 
consideration without meeting the documentary requirements of Sec.  
123.1(c)(4) and (5) concerning purchase orders, letters of intent, 
contracts and non-transfer and end use certificates,

[[Page 537]]

or the documentary requirements of Sec.  123.9, concerning approval of 
re-exports or re-transfers, when all of the following requirements are 
met:
    (1) The proposed exports or re-exports concern exclusively one or 
more countries of the North Atlantic Treaty Organization (see Sec.  
120.31 of this subchapter) and/or one or more countries which have been 
designated in accordance with section 517 of the Foreign Assistance Act 
of 1961 and with section 1206 of the Foreign Relations Authorization 
Act, Fiscal Year 2003 as a major non-NATO ally (see Sec.  120.32 of this 
subchapter).
    (2) The proposed exports concern exclusively one or more foreign 
persons (e.g., companies or governments) located within the territories 
of the countries identified in paragraph (a)(1) of this section, and one 
or more commercial communications satellite programs included within a 
list of such persons and programs approved by the U.S. Government for 
purposes of this section, as signified in a list of such persons and 
programs that will be publicly available through the Internet Web site 
of the Directorate of Defense Trade Controls and by other means.
    (3) The articles are not major defense equipment sold under a 
contract in the amount of $14,000,000 or more or defense articles or 
defense services sold under a contract in the amount of $50,000,000 or 
more (for which purpose, as is customary, exporters may not split 
contracts or purchase orders). Items meeting these statutory thresholds 
must be submitted on a separate license application to permit the 
required notification to Congress pursuant to section 36(c) of the Arms 
Export Control Act.
    (4) The articles are not detailed design, development, manufacturing 
or production data and do not involve the manufacture abroad of 
significant military equipment.
    (5) The U.S. exporter provides complete shipment information to the 
Directorate of Defense Trade Controls within 15 days of shipment by 
submitting a report containing a description of the item and the 
quantity, value, port of exit, and end-user and country of destination 
of the item, and at that time meets the documentary requirements of 
Sec.  123.1(c)(4) and (5), the documentary requirements of Sec.  123.9 
in the case of re-exports or re-transfers, and, other documentary 
requirements that may be imposed as a condition of a license (e.g., 
parts control plans for MTCR-controlled items). The shipment information 
reported must include a description of the item and quantity, value, 
port of exit and end user and country of destination of the item.
    (6) At any time in which an item exported pursuant to this section 
is proposed for re-transfer outside of the approved territory, programs 
or persons (e.g., such as in the case of an item included in a satellite 
for launch beyond the approved territory), the detailed requirements of 
Sec.  123.9 apply with regard to obtaining the prior written consent of 
the Directorate of Defense Trade Controls.
    (b) The re-export or re-transfer of the articles authorized for 
export (including to specified re-export destinations) in accordance 
with this section do not require the separate prior written approval of 
the Directorate of Defense Trade Controls provided all of the 
requirements in paragraph (a) of this section are met.
    (c) The Directorate of Defense Trade Controls will consider, on a 
case-by-case basis, requests to include additional foreign companies and 
satellite programs within the geographic coverage of a license 
application submitted pursuant to this section from countries not 
otherwise covered, who are members of the European Space Agency or the 
European Union. In no case, however, can the provisions of this section 
apply or be relied upon by U.S. exporters in the case of countries who 
are subject to the mandatory requirements of Section 1514 of the Strom 
Thurmond National Defense Authorization Act for Fiscal Year 1999 (Pub. 
L. 105-261), concerning national security controls on satellite export 
licensing.
    (d) Registered U.S. exporters may request at the time of a license 
application submitted pursuant to this section that additional foreign 
persons or communications satellite programs be added to the lists 
referred to in paragraph (a)(2) of this section, which additions, if 
approved, will be included

[[Page 538]]

within the publicly available lists of authorized recipients and 
programs.

[65 FR 34091, May 26, 2000, as amended at 67 FR 58988, Sept. 19, 2002; 
69 FR 40314, July 2, 2004; 70 FR 50963, Aug. 29, 2005; 71 FR 20542, Apr. 
21, 2006]



Sec.  123.28  Scope of a license.

    Unless limited by a condition set out in a license, the export, 
reexport, retransfer, or temporary import authorized by a license is for 
the item(s), end-use(s), and parties described in the license 
application and any letters of explanation. DDTC grants licenses in 
reliance on representations the applicant made in or submitted in 
connection with the license application, letters of explanation, and 
other documents submitted.

[81 FR 35616, June 3, 2016]



PART 124_AGREEMENTS, OFF-SHORE PROCUREMENT, AND OTHER DEFENSE SERVICES--
Table of Contents



Sec.
124.1 Manufacturing license agreements and technical assistance 
          agreements.
124.2 Exemptions for training and military service.
124.3 Exports of technical data in furtherance of an agreement.
124.4 Deposit of signed agreements with the Directorate of Defense Trade 
          Controls.
124.5 Proposed agreements that are not concluded.
124.6 Termination of manufacturing license agreements and technical 
          assistance agreements.
124.7 Information required in all manufacturing license agreements and 
          technical assistance agreements.
124.8 Clauses required both in manufacturing license agreements and 
          technical assistance agreements.
124.9 Additional clauses required only in manufacturing license 
          agreements.
124.10 Nontransfer and use assurances.
124.11 Congressional certification pursuant to Section 36(d) of the Arms 
          Export Control Act.
124.12 Required information in letters of transmittal.
124.13 Procurement by United States persons in foreign countries 
          (offshore procurement).
124.14 Exports to warehouses or distribution points outside the United 
          States.
124.15 Special Export Controls for Defense Articles and Defense Services 
          Controlled under Category XV: Space Systems and Space 
          Launches.
124.16 [Reserved]

    Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 
U.S.C. 2752, 2778, 2797); 22 U.S.C. 2651a; 22 U.S.C. 2776; Section 1514, 
Pub. L. 105-261; Pub. L. 111-266; Section 1261, Pub. L. 112-239; E.O. 
13637, 78 FR 16129.

    Source: 58 FR 39305, July 22, 1993, unless otherwise noted.



Sec.  124.1  Manufacturing license agreements and technical 
assistance agreements.

    (a) Approval. The approval of the Directorate of Defense Trade 
Controls must be obtained before the defense services described in Sec.  
120.9(a) of this subchapter may be furnished. In order to obtain such 
approval, the U.S. person must submit a proposed agreement to the 
Directorate of Defense Trade Controls. Such agreements are generally 
characterized as manufacturing license agreements, technical assistance 
agreements, distribution agreements, or off-shore procurement 
agreements, and may not enter into force without the prior written 
approval of the Directorate of Defense Trade Controls. Once approved, 
the defense services described in the agreements may generally be 
provided without further licensing in accordance with Sec. Sec.  124.3 
and 125.4(b)(2) of this subchapter. The requirements of this section 
apply whether or not technical data is to be disclosed or used in the 
performance of the defense services described in Sec.  120.9(a) of this 
subchapter (e.g., all the information relied upon by the U.S. person in 
performing the defense service is in the public domain or is otherwise 
exempt from licensing requirements of this subchapter pursuant to Sec.  
125.4 of this subchapter). This requirement also applies to the training 
of any foreign military forces, regular and irregular, in the use of 
defense articles. Technical assistance agreements must be submitted in 
such cases. In exceptional cases, the Directorate of Defense Trade 
Controls, upon written request, will consider approving the provision of 
defense services described in Sec.  120.9(a) of this subchapter by 
granting a license under part 125 of this subchapter.

[[Page 539]]

    (b) Classified articles. Copies of approved agreements involving the 
release of classified defense articles will be forwarded by the 
Directorate of Defense Trade Controls to the Defense Security Service of 
the Department of Defense.
    (c) Amendments. Changes to the scope of approved agreements, 
including modifications, upgrades, or extensions must be submitted for 
approval. The amendments may not enter into force until approved by the 
Directorate of Defense Trade Controls.
    (d) Minor amendments. Amendments which only alter delivery or 
performance schedules, or other minor administrative amendments which do 
not affect in any manner the duration of the agreement or the clauses or 
information which must be included in such agreements because of the 
requirements of this part, do not have to be submitted for approval. One 
copy of all such minor amendments must be submitted to the Directorate 
of Defense Trade Controls within thirty days after they are concluded.
    (e) Unless limited by a condition set out in an agreement, the 
export, reexport, retransfer, or temporary import authorized by a 
license is for the item(s), end-use(s), and parties described in the 
agreement, license, and any letters of explanation. DDTC approves 
agreements and grants licenses in reliance on representations the 
applicant made in or submitted in connection with the agreement, letters 
of explanation, and other documents submitted.

[71 FR 20542, Apr. 21, 2006, as amended at 75 FR 52624, Aug. 27, 2010; 
81 FR 35616, June 3, 2016]



Sec.  124.2  Exemptions for training and military service.

    (a) Technical assistance agreements are not required for the 
provision of training in the basic operation and maintenance of defense 
articles lawfully exported or authorized for export to the same 
recipient. This does not include training in intermediate and depot 
level maintenance.
    (b) Services performed as a member of the regular military forces of 
a foreign nation by U.S. persons who have been drafted into such forces 
are not deemed to be defense services for purposes of Sec.  120.9 of 
this subchapter.
    (c) NATO countries, Australia, Japan, and Sweden, in addition to the 
basic maintenance training exemption provided in Sec.  124.2(a) and 
basic maintenance information exemption in Sec.  125.4(b)(5) of this 
subchapter, no technical assistance agreement is required for 
maintenance training or the performance of maintenance, including the 
export of supporting technical data, when the following criteria can be 
met:
    (1) Defense services are for unclassified U.S.-origin defense 
articles lawfully exported or authorized for export and owned or 
operated by and in the inventory of NATO or the Federal Governments of 
NATO countries, Australia, Japan or Sweden.
    (2) This defense service exemption does not apply to any transaction 
involving defense services for which congressional notification is 
required in accordance with Sec.  123.15 and Sec.  124.11 of this 
subchapter.
    (3) Maintenance training or the performance of maintenance must be 
limited to inspection, testing, calibration or repair, including 
overhaul, reconditioning and one-to-one replacement of any defective 
items, parts or components; and excluding any modification, enhancement, 
upgrade or other form of alteration or improvement that enhances the 
performance or capability of the defense article. This does not preclude 
maintenance training or the performance of maintenance that would result 
in enhancements or improvements only in the reliability or 
maintainability of the defense article, such as an increased mean time 
between failure (MTBF).
    (4) Supporting technical data must be unclassified and must not 
include software documentation on the design or details of the computer 
software, software source code, design methodology, engineering analysis 
or manufacturing know-how such as that described in paragraphs (c)4)(i) 
through (c)(4)(iii) as follows:
    (i) Design methodology, such as: The underlying engineering methods 
and design philosophy utilized (i.e., the ``why'' or information that 
explains

[[Page 540]]

the rationale for particular design decision, engineering feature, or 
performance requirement); engineering experience (e.g., lessons 
learned); and the rationale and associated databases (e.g., design 
allowables, factors of safety, component life predictions, failure 
analysis criteria) that establish the operational requirements (e.g., 
performance, mechanical, electrical, electronic, reliability and 
maintainability) of a defense article.
    (ii) Engineering analysis, such as: Analytical methods and tools 
used to design or evaluate a defense article's performance against the 
operational requirements. Analytical methods and tools include the 
development and/or use of mockups, computer models and simulations, and 
test facilities.
    (iii) Manufacturing know-how, such as: Information that provides 
detailed manufacturing processes and techniques needed to translate a 
detailed design into a qualified, finished defense article.
    (5) This defense service exemption does not apply to maintenance 
training or the performance of maintenance and service or the transfer 
of supporting technical data for the following defense articles:
    (i) All Missile Technology Control Regime Annex Items;
    (ii) Firearms listed in Category I; and ammunition listed in 
Category III for the firearms in Category I;
    (iii) [Reserved]
    (iv) Naval nuclear propulsion equipment listed in USML Category VI 
and USML Category XX;
    (v) Gas turbine engine hot sections covered by Category XIX(f);
    (vi) Category VIII(f);
    (vii) Category XII(c);
    (viii) Chemical agents listed in Category XIV (a), biological agents 
in Category XIV (b), and equipment listed in Category XIV (c) for 
dissemination of the chemical agents and biological agents listed in 
Categories XIV (a) and (b);
    (ix) [Reserved]
    (x) Category XV;
    (xi) [Reserved]
    (xii) Submersible and semi-submersible vessels and related articles 
covered in USML Category XX; or
    (xiii) Miscellaneous articles covered by Category XXI.
    (6) Eligibility criteria for foreign persons. Foreign persons 
eligible to receive technical data or maintenance training under this 
exemption are limited to nationals of the NATO countries, Australia, 
Japan, or Sweden.

[58 FR 39305, July 22, 1993, as amended at 65 FR 45283, July 21, 2000; 
66 FR 35899, July 10, 2001; 71 FR 20543, Apr. 21, 2006; 78 FR 40933, 
July 8, 2013; 79 FR 47, Jan. 2, 2014; 81 FR 87429, Dec. 5, 2016]



Sec.  124.3  Exports of technical data in furtherance of an agreement.

    (a) Unclassified technical data. The U.S. Customs and Border 
Protection or U.S. Postal authorities shall permit the export without a 
license of unclassified technical data if the export is in furtherance 
of a manufacturing license or technical assistance agreement which has 
been approved in writing by the Directorate of Defense Trade Controls 
(DDTC) and the technical data does not exceed the scope or limitations 
of the relevant agreement. The approval of the DDTC must be obtained for 
the export of any unclassified technical data that may exceed the terms 
of the agreement.
    (b) Classified technical data. The export of classified information 
in furtherance of an approved manufacturing license or technical 
assistance agreement which provides for the transmittal of classified 
information does not require further approval from the Directorate of 
Defense Trade Controls when:
    (1) The United States party certifies to the Department of Defense 
transmittal authority that the classified information does not exceed 
the technical or product limitations in the agreement; and
    (2) The U.S. party complies with the requirements of the Department 
of Defense National Industrial Security Program Operating Manual 
concerning the transmission of classified information (unless such 
requirements are in direct conflict with guidance provided by the 
Directorate of Defense Trade Controls, in which case the latter guidance 
must

[[Page 541]]

be followed) and any other requirements of cognizant U.S. departments or 
agencies.

[58 FR 39305, July 22, 1993, as amended at 68 FR 61102, Oct. 27, 2003; 
70 FR 50963, Aug. 29, 2005; 71 FR 20543, Apr. 21, 2006]



Sec.  124.4  Deposit of signed agreements with the Directorate 
of Defense Trade Controls.

    (a) The United States party to a manufacturing license or a 
technical assistance agreement must file one copy of the concluded 
agreement with the Directorate of Defense Trade Controls not later than 
30 days after it enters into force. If the agreement is not concluded 
within one year of the date of approval, the Directorate of Defense 
Trade Controls must be notified in writing and be kept informed of the 
status of the agreement until the requirements of this paragraph or the 
requirements of Sec.  124.5 are satisfied.
    (b) In the case of concluded agreements involving coproduction or 
licensed production outside of the United States of defense articles of 
United States origin, a written statement must accompany filing of the 
concluded agreement with the Directorate of Defense Trade Controls, 
which shall include:
    (1) The identity of the foreign countries, international 
organization, or foreign firms involved;
    (2) A description and the estimated value of the articles authorized 
to be produced, and an estimate of the quantity of the articles 
authorized to be produced:
    (3) A description of any restrictions on third-party transfers of 
the foreign-manufactured articles; and
    (4) If any such agreement does not provide for United States access 
to and verification of quantities of articles produced overseas and 
their disposition in the foreign country, a description of alternative 
measures and controls to ensure compliance with restrictions in the 
agreement on production quantities and third-party transfers.

[62 FR 67276, Dec. 24, 1997, as amended at 71 FR 20543, Apr. 21, 2006]



Sec.  124.5  Proposed agreements that are not concluded.

    The United States party to any proposed manufacturing license 
agreement or technical assistance agreement must inform the Directorate 
of Defense Trade Controls if a decision is made not to conclude the 
agreement. The information must be provided within 60 days of the date 
of the decision. These requirements apply only if the approval of the 
Directorate of Defense Trade Controls was obtained for the agreement to 
be concluded (with or without any provisos).

[71 FR 20543, Apr. 21, 2006]



Sec.  124.6  Termination of manufacturing license agreements 
and technical assistance agreements.

    The U.S. party to a manufacturing license or a technical assistance 
agreement must inform the Directorate of Defense Trade Controls in 
writing of the impending termination of the agreement not less than 30 
days prior to the expiration date of such agreement.

[71 FR 20543, Apr. 21, 2006]



Sec.  124.7  Information required in all manufacturing license agreements 
and technical assistance agreements.

    (a) The following information must be included in all proposed 
manufacturing license agreements and technical assistance agreements. 
The information should be provided in terms which are as precise as 
possible. If the applicant believes that a clause or that required 
information is not relevant or necessary, the applicant may request the 
omission of the clause or information. The transmittal letter 
accompanying the agreement must state the reasons for any proposed 
variation in the clauses or required information.
    (1) The agreement must describe the defense article to be 
manufactured and all defense articles to be exported, including any test 
and support equipment or advanced materials. They should be described by 
military nomenclature, contract number, National Stock Number, nameplate 
data, or other specific information. Only defense articles listed in the 
agreement

[[Page 542]]

will be eligible for export under the exemption in Sec.  123.16(b)(1) of 
this subchapter.
    (2) The agreement must specifically describe the assistance and 
technical data, including the design and manufacturing know-how 
involved, to be furnished and any manufacturing rights to be granted;
    (3) The agreement must specify its duration; and
    (4) The agreement must specifically identify the countries or areas 
in which manufacturing, production, processing, sale or other form of 
transfer is to be licensed.
    (b) [Reserved]

[58 FR 39305, July 22, 1993, as amended at 81 FR 54736, Aug. 17, 2016]



Sec.  124.8  Clauses required both in manufacturing license agreements 
and technical assistance agreements.

    (a) The following statements must be included both in manufacturing 
license agreements and in technical assistance agreements:
    (1) ``This agreement shall not enter into force, and shall not be 
amended or extended, without the prior written approval of the 
Department of State of the U.S. Government.''
    (2) ``This agreement is subject to all United States laws and 
regulations relating to exports and to all administrative acts of the 
U.S. Government pursuant to such laws and regulations.''
    (3) ``The parties to this agreement agree that the obligations 
contained in this agreement shall not affect the performance of any 
obligations created by prior contracts or subcontracts which the parties 
may have individually or collectively with the U.S. Government.''
    (4) ``No liability will be incurred by or attributed to the U.S. 
Government in connection with any possible infringement of privately 
owned patent or proprietary rights, either domestic or foreign, by 
reason of the U.S. Government's approval of this agreement.''
    (5) The technical data or defense service exported from the United 
States in furtherance of this agreement and any defense article which 
may be produced or manufactured from such technical data or defense 
service may not be transferred to a foreign person except pursuant to 
Sec.  126.18, as specifically authorized in this agreement, or where 
prior written approval of the Department of State has been obtained.
    (6) ``All provisions in this agreement which refer to the United 
States Government and the Department of State will remain binding on the 
parties after the termination of the agreement.''
    (b) [Reserved]

[58 FR 39305, July 22, 1993, as amended at 76 FR 28177, May 16, 2011; 81 
FR 35616, June 3, 2016; 81 FR 54736, Aug. 17, 2016]



Sec.  124.9  Additional clauses required only in manufacturing 
license agreements.

    (a) Clauses for all manufacturing license agreements. The following 
clauses must be included only in manufacturing license agreements:
    (1) ``No export, sale, transfer, or other disposition of the 
licensed article is authorized to any country outside the territory 
wherein manufacture or sale is herein licensed without the prior written 
approval of the U.S. Government unless otherwise exempted by the U.S. 
Government. Sales or other transfers of the licensed article shall be 
limited to governments of countries wherein manufacture or sale is 
hereby licensed and to private entities seeking to procure the licensed 
article pursuant to a contract with any such government unless the prior 
written approval of the U.S. Government is obtained.''
    (2) ``It is agreed that sales by licensee or its sub-licensees under 
contracts made through the U.S. Government will not include either 
charges for patent rights in which the U.S. Government holds a royalty-
free license, or charges for data which the U.S. Government has a right 
to use and disclose to others, which are in the public domain, or which 
the U.S. Government has acquired or is entitled to acquire without 
restrictions upon their use and disclosure to others.''
    (3) ``If the U.S. Government is obligated or becomes obligated to 
pay to the licensor royalties, fees, or other charges for the use of 
technical data or patents which are involved in the manufacture, use, or 
sale of any licensed article, any royalties, fees or other charges in 
connection with purchases

[[Page 543]]

of such licensed article from licensee or its sub-licensees with funds 
derived through the U.S. Government may not exceed the total amount the 
U.S. Government would have been obligated to pay the licensor 
directly.''
    (4) ``If the U.S. Government has made financial or other 
contributions to the design and development of any licensed article, any 
charges for technical assistance or know-how relating to the item in 
connection with purchases of such articles from licensee or sub-
licensees with funds derived through the U.S. Government must be 
proportionately reduced to reflect the U.S. Government contributions, 
and subject to the provisions of paragraphs (a) (2) and (3) of this 
section, no other royalties, or fees or other charges may be assessed 
against U.S. Government funded purchases of such articles. However, 
charges may be made for reasonable reproduction, handling, mailing, or 
similar administrative costs incident to the furnishing of such data.''
    (5) ``The parties to this agreement agree that an annual report of 
sales or other transfers pursuant to this agreement of the licensed 
articles, by quantity, type, U.S. dollar value, and purchaser or 
recipient, shall be provided by (applicant or licensee) to the 
Department of State.'' This clause must specify which party is obligated 
to provide the annual report. Such reports may be submitted either 
directly by the licensee or indirectly through the licensor, and may 
cover calendar or fiscal years. Reports shall be deemed proprietary 
information by the Department of State and will not be disclosed to 
unauthorized persons. See Sec.  126.10(b) of this subchapter.
    (6) (Licensee) agrees to incorporate the following statement as an 
integral provision of a contract, commercial invoice or other 
appropriate document whenever the licensed articles are sold or 
otherwise transferred:

    These items are controlled by the U.S. government and authorized for 
export only to the country of ultimate destination for use by the 
ultimate consignee or end-user(s) herein identified. They may not be 
resold, transferred, or otherwise disposed of, to any other country or 
to any person other than the authorized ultimate consignee or end-
user(s), either in their original form or after being incorporated into 
other items, without first obtaining approval from the U.S. government 
or as otherwise authorized by U.S. law and regulations.

    (b) Special clause for agreements relating to significant military 
equipment. With respect to an agreement for the production of 
significant military equipment, the following additional provisions must 
be included in the agreement:
    (1) ``A completed nontransfer and use certificate (DSP-83) must be 
executed by the foreign end-user and submitted to the Department of 
State of the United States before any transfer may take place.''
    (2) ``The prior written approval of the U.S. Government must be 
obtained before entering into a commitment for the transfer of the 
licensed article by sale or otherwise to any person or government 
outside of the approved sales territory.''

[58 FR 39305, July 22, 1993, as amended at 81 FR 54736, Aug. 17, 2016]



Sec.  124.10  Nontransfer and use assurances.

    (a) Types of agreements requiring assurances. With respect to any 
manufacturing license agreement or technical assistance agreement which 
relates to significant military equipment or classified defense 
articles, including classified technical data, a Nontransfer and Use 
Certificate (Form DSP-83) (see Sec.  123.10 of this subchapter) signed 
by the applicant and the foreign party must be submitted to the 
Directorate of Defense Trade Controls. With respect to all agreements 
involving classified articles, including classified technical data, an 
authorized representative of the foreign government must sign the DSP-83 
(or provide the same assurances in the form of a diplomatic note), 
unless the Directorate of Defense Trade Controls has granted an 
exception to this requirement. The Directorate of Defense Trade Controls 
may require that a DSP-83 be provided in conjunction with an agreement 
that does not relate to significant military equipment or classified 
defense articles. The Directorate of Defense Trade Controls may also 
require with respect to any agreement that an appropriate authority of 
the foreign party's government also sign the DSP-83 (or provide

[[Page 544]]

the same assurances in the form of a diplomatic note).
    (b) Timing of submission of assurances. Submission of a Form DSP-83 
and/or diplomatic note must occur as follows:
    (1) Agreements which have been signed by all parties before being 
submitted to the Directorate of Defense Trade Controls may only be 
submitted along with any required DSP-83 and/or diplomatic note.
    (2) If an agreement has not been signed by all parties before being 
submitted, the required DSP-83 and/or diplomatic note must be submitted 
along with the signed agreement.

    Note to paragraph (b): In no case may a transfer occur before a 
required DSP-83 and/or diplomatic note has been submitted to the 
Directorate of Defense Trade Controls.

[59 FR 29951, June 10, 1994, as amended at 71 FR 20543, Apr. 21, 2006]



Sec.  124.11  Congressional certification pursuant to Section 36(d) 
of the Arms Export Control Act.

    (a) The Arms Export Control Act requires that a certification be 
provided to the Congress prior to the granting of any approval of a 
manufacturing license agreement or technical assistance agreement as 
defined in Sections 120.21 and 120.22 respectively for the manufacturing 
abroad of any item of significant military equipment (see Sec.  120.7 of 
this subchapter) that is entered into with any country regardless of 
dollar value. Additionally, any manufacturing license agreement or 
technical assistance agreement providing for the export of major defense 
equipment, as defined in Sec.  120.8 of this subchapter shall also 
require a certification when meeting the requirements of Sec.  123.15 of 
this subchapter.
    (b) Unless an emergency exists which requires the immediate approval 
of the agreement in the national security interests of the United 
States, approval may not be granted until at least 15 calendar days have 
elapsed after receipt by the Congress of the certification required by 
22 U.S.C. 2776(d)(1) involving the North Atlantic Treaty Organization, 
any member country of that Organization, or Australia, Israel, Japan, 
New Zealand, or the Republic of Korea or at least 30 calendar days have 
elapsed for any other country. Approvals may not be granted when the 
Congress has enacted a joint resolution prohibiting the export.
    (c) Persons who intend to export defense articles and defense 
services pursuant to any exemption in this subchapter under the 
circumstances described in this section and section 123.15 must provide 
written notification to the Directorate of Defense Trade Controls and 
include a signed contract and a DSP-83 signed by the applicant, the 
foreign consignee and the end-user.

[70 FR 34654, June 15, 2005, as amended at 73 FR 38343, Aug. 3, 2009; 77 
FR 16599, Mar. 21, 2012]



Sec.  124.12  Required information in letters of transmittal.

    (a) An application for the approval of a manufacturing license or 
technical assistance agreement with a foreign person must be accompanied 
by an explanatory letter. The explanatory letter shall contain:
    (1) A statement giving the applicant's Directorate of Defense Trade 
Controls registration number.
    (2) A statement identifying the licensee and the scope of the 
agreement.
    (3) A statement identifying the U.S. Government contract under which 
the equipment or technical data was generated, improved, or developed 
and supplied to the U.S. Government, and whether the equipment or 
technical data was derived from any bid or other proposal to the U.S. 
Government.
    (4) A statement giving the military security classification of the 
equipment or technical data.
    (5) A statement identifying any patent application which discloses 
any of the subject matter of the equipment or technical data covered by 
an invention secrecy order issued by the U.S. Patent and Trademark 
Office.
    (6) A statement of the actual or estimated value of the agreement, 
including the estimated value of all defense articles to be exported in 
furtherance of the agreement or amendments thereto. If the value is 
$500,000 or more, an additional statement must be made regarding the 
payment of political contributions, fees or commissions, pursuant to 
part 130 of this subchapter.

[[Page 545]]

    (7) A statement indicating whether any foreign military sales 
credits or loan guarantees are or will be involved in financing the 
agreement.
    (8) The agreement must describe any classified information involved 
and identify, from Department of Defense form DD254, the address and 
telephone number of the U.S. Government office that classified the 
information.
    (9) For agreements that may require the export of classified 
information, the Defense Security Service cognizant security offices 
that have responsibility for the facilities of the U.S. parties to the 
agreement shall be identified. The facility security clearance codes of 
the U.S. parties shall also be provided.
    (b) The following statements must be made in the letter of 
transmittal:
    (1) ``If the agreement is approved by the Department of State, such 
approval will not be construed by (the applicant) as passing on the 
legality of the agreement from the standpoint of antitrust laws or other 
applicable statutes, nor will (the applicant) construe the Department's 
approval as constituting either approval or disapproval of any of the 
business terms or conditions between the parties to the agreement.''
    (2) ``The (applicant) will not permit the proposed agreement to 
enter into force until it has been approved by the Department of 
State.''
    (3) ``The (applicant) will furnish the Department of State with one 
copy of the signed agreement (or amendment) within 30 days from the date 
that the agreement is concluded and will inform the Department of its 
termination not less than 30 days prior to expiration and provide 
information on the continuation of any foreign rights or the flow of 
technical data to the foreign party. If a decision is made not to 
conclude the proposed agreement, the applicant will so inform the 
Department within 60 days.''
    (4) ``If this agreement grants any rights to sub-license, it will be 
amended to require that all sub-licensing arrangements incorporate all 
the provisions of the basic agreement that refer to the U.S. Government 
and the Department of State (i.e., 22 CFR 124.8 and 124.9).''

[58 FR 39305, July 22, 1993, as amended at 71 FR 20543, Apr. 21, 2006; 
72 FR 71786, Dec. 19, 2007; 81 FR 35617, June 3, 2016; 81 FR 54736, Aug. 
17, 2016; 81 FR 87430, Dec. 5, 2016]



Sec.  124.13  Procurement by United States persons in foreign countries 
(offshore procurement).

    Notwithstanding the other provisions in part 124 of this subchapter, 
the Directorate of Defense Trade Controls may authorize by means of a 
license (DSP-5) the export of unclassified technical data to foreign 
persons for offshore procurement of defense articles, provided that:
    (a) The contract or purchase order for offshore procurement limits 
delivery of the defense articles to be produced only to the person in 
the United States or to an agency of the U.S. Government; and
    (b) The technical data of U.S.-origin to be used in the foreign 
manufacture of defense articles does not exceed that required for bid 
purposes on a build-to-print basis (build-to-print means producing an 
end-item (i.e., system, subsystem or component) from technical drawings 
and specifications (which contain no process or know-how information) 
without the need for additional technical assistance). Release of 
supporting documentation (e.g., acceptance criteria, object code 
software for numerically controlled machines) is permissible. Build-to-
print does not include the release of any information which discloses 
design methodology, engineering analysis, detailed process information 
or manufacturing know-how); and
    (c) The contract or purchase order between the person in the United 
States and the foreign person:
    (1) Limits the use of the technical data to the manufacture of the 
defense articles required by the contract or purchase order only; and
    (2) Prohibits the disclosure of the data to any other person except 
subcontractors within the same country; and
    (3) Prohibits the acquisition of any rights in the data by any 
foreign person; and

[[Page 546]]

    (4) Provides that any subcontracts between foreign persons in the 
approved country for manufacture of equipment for delivery pursuant to 
the contract or purchase order contain all the limitations of this 
paragraph (c); and
    (5) Requires the foreign person, including subcontractors, to 
destroy or return to the person in the United States all of the 
technical data exported pursuant to the contract or purchase order upon 
fulfillment of their terms; and
    (6) Requires delivery of the defense articles manufactured abroad 
only to the person in the United States or to an agency of the U.S. 
Government; and
    (d) The person in the United States provides the Directorate of 
Defense Trade Controls with a copy of each contract, purchase order or 
subcontract for offshore procurement at the time it is accepted. Each 
such contract, purchase order or subcontract must clearly identify the 
article to be produced and must identify the license number or exemption 
under which the technical data was exported; and
    (e) Licenses issued pursuant to this section must be renewed prior 
to their expiration if offshore procurement is to be extended beyond the 
period of validity of the original approved license. In all instances a 
license for offshore procurement must state as the purpose ``Offshore 
procurement in accordance with the conditions established in the ITAR, 
including Sec.  124.13. No other use will be made of the technical 
data.'' If the technical data involved in an offshore procurement 
arrangement is otherwise exempt from the licensing requirements of this 
subchapter (e.g., Sec.  126.4), the DSP-5 referred to in the first 
sentence of this section is not required. However, the exporter must 
comply with the other requirements of this section and provide a written 
certification to the Directorate of Defense Trade Controls annually of 
the offshore procurement activity and cite the exemption under which the 
technical data was exported. The exemptions under Sec.  125.4 of this 
subchapter may not be used to establish offshore procurement 
arrangements.

[58 FR 39305, July 22, 1993, as amended at 64 FR 17534, Apr. 12, 1999; 
71 FR 20543, Apr. 21, 2006]



Sec.  124.14  Exports to warehouses or distribution points 
outside the United States.

    (a) Agreements. Agreements (e.g., contracts) between U.S. persons 
and foreign persons for the warehousing and distribution of defense 
articles must be approved by the Directorate of Defense Trade Controls 
before they enter into force. Such agreements will be limited to 
unclassified defense articles and must contain conditions for special 
distribution, end-use and reporting. Licenses for exports pursuant to 
such agreements must be obtained prior to exports of the defense 
articles unless an exemption under Sec.  123.16(b)(1) of this subchapter 
is applicable.
    (b) Required information. Proposed warehousing and distribution 
agreements (and amendments thereto) shall be submitted to the 
Directorate of Defense Trade Controls for approval. The following 
information must be included in all such agreements:
    (1) A description of the defense articles involved including test 
and support equipment covered by the U.S. Munitions List. This shall 
include when applicable the military nomenclature, the Federal stock 
number, nameplate data, and any control numbers under which the defense 
articles were developed or procured by the U.S. Government. Only those 
defense articles specifically listed in the agreement will be eligible 
for export under the exemption in Sec.  123.16(b)(1) of this subchapter.
    (2) A detailed statement of the terms and conditions under which the 
defense articles will be exported and distributed;
    (3) The duration of the proposed agreement;
    (4) Specific identification of the country or countries that 
comprise the distribution territory. Distribution must be specifically 
limited to the governments of such countries or to private entities 
seeking to procure defense articles pursuant to a contract

[[Page 547]]

with a government within the distribution territory or to other eligible 
entities as specified by the Directorate of Defense Trade Controls. 
Consequently, any deviation from this condition must be fully explained 
and justified. A nontransfer and use certificate (DSP-83) will be 
required to the same extent required in licensing agreements under Sec.  
124.9(b).
    (c) Required statements. The following statements must be included 
in all warehousing and distribution agreements:
    (1) ``This agreement shall not enter into force, and may not be 
amended or extended, without the prior written approval of the 
Department of State of U.S. Government.''
    (2) ``This agreement is subject to all United States laws and 
regulations related to exports and to all administrative acts of the 
United States Government pursuant to such laws and regulations.
    (3) ``The parties to this agreement agree that the obligations 
contained in this agreement shall not affect the performance of any 
obligations created by prior contracts or subcontracts which the parties 
may have individually or collectively with the U.S. Government.''
    (4) ``No liability will be incurred by or attributed to the U.S. 
Government in connection with any possible infringement of privately 
owned patent or proprietary rights, either domestic or foreign by reason 
of the U.S. Government's approval of this agreement.''
    (5) ``No export, sale, transfer, or other disposition of the defense 
articles covered by this agreement is authorized to any country outside 
the distribution territory without the prior written approval of the 
Directorate of Defense Trade Controls of the U.S. Department of State.''
    (6) ``The parties to this agreement agree that an annual report of 
sales or other transfers pursuant to this agreement of the licensed 
articles, by quantity, type, U.S. dollar value, and purchaser or 
recipient shall be provided by (applicant or licensee) to the Department 
of State.'' This clause must specify which party is obligated to provide 
the annual report. Such reports may be submitted either directly by the 
licensee or indirectly through the licensor, and may cover calendar or 
fiscal years. Reports shall be deemed proprietary information by the 
Department of State and will not be disclosed to unauthorized persons. 
(See Sec.  126.10(b) of this subchapter.)
    (7) ``(Licensee) agrees to incorporate the following statement as an 
integral provision of a contract, invoice or other appropriate document 
whenever the articles covered by this agreement are sold or otherwise 
transferred: `These items are controlled by the U.S. government and 
authorized for export only to the country of ultimate destination for 
use by the ultimate consignee or end-user(s) herein identified. They may 
not be resold, transferred, or otherwise disposed of, to any other 
country or to any person other than the authorized ultimate consignee or 
end-user(s), either in their original form or after being incorporated 
into other items, without first obtaining approval from the U.S. 
government or as otherwise authorized by U.S. law and regulations.' ''
    (8) ``All provisions in this agreement which refer to the United 
States Government and the Department of State will remain binding on the 
parties after the termination of the agreement.''
    (9) Unless the articles covered by the agreement are in fact 
intended to be distributed to private persons or entities (e.g., 
cryptographic devices and software for financial and business 
applications), the following clause must be included in all warehousing 
and distribution agreements: ``Sales or other transfers of the licensed 
article shall be limited to governments of the countries in the 
distribution territory and to private entities seeking to procure the 
licensed article pursuant to a contract with a government within the 
distribution territory, unless the prior written approval of the U.S. 
Department of State is obtained.''
    (d) Special clauses for agreements relating to significant military 
equipment. With respect to agreements for the warehousing and 
distribution of significant military equipment, the following additional 
provisions must be included in the agreement:
    (1) A completed nontransfer and use certificate (DSP-83) must be 
executed

[[Page 548]]

by the foreign end-user and submitted to the U.S. Department of State 
before any transfer may take place.
    (2) The prior written approval of the U.S. Department of State must 
be obtained before entering into a commitment for the transfer of the 
licensed article by sale or otherwise to any person or government 
outside the approved distribution territory.
    (e) Transmittal letters. Requests for approval of warehousing and 
distribution agreements with foreign persons must be made by letter. The 
letter shall contain:
    (1) A statement giving the applicant's Directorate of Defense Trade 
Controls registration number.
    (2) A statement identifying the foreign party to the agreement.
    (3) A statement identifying the defense articles to be distributed 
under the agreement.
    (4) A statement identifying any U.S. Government contract under which 
the equipment may have been generated, improved, developed or supplied 
to the U.S. Government, and whether the equipment was derived from any 
bid or other proposal to the U.S. Government.
    (5) A statement that no classified defense articles or classified 
technical data are involved.
    (6) A statement identifying any patent application which discloses 
any of the subject matter of the equipment or related technical data 
covered by an invention secrecy order issued by the U.S. Patent and 
Trademark Office.
    (f) Required clauses. The following statements must be made in the 
letter of transmittal:
    (1) ``If the agreement is approved by the Department of State, such 
approval will not be construed by (applicant) as passing on the legality 
of the agreement from the standpoint of antitrust laws or other 
applicable statutes, nor will (the applicant) construe the Department's 
approval as constituting either approval or disapproval of any of the 
business terms or conditions between the parties to the agreement.''
    (2) ``The (applicant) will not permit the proposed agreement to 
enter into force until it has been approved by the Department of 
State.''
    (3) ``(Applicant) will furnish the Department of State with one copy 
of the signed agreement (or amendment thereto) within 30 days from the 
date that the agreement is concluded, and will inform the Department of 
its termination not less than 30 days prior to expiration. If a decision 
is made not to conclude the proposed agreement, (applicant) will so 
inform the Department within 60 days.''

[58 FR 39305, July 22, 1993, as amended at 71 FR 20544, Apr. 21, 2006; 
81 FR 54736, Aug. 17, 2016; 85 FR 3833, Jan. 23, 2020]



Sec.  124.15  Special Export Controls for Defense Articles 
and Defense Services Controlled under Category XV: Space Systems 
and Space Launches.

    (a) The export of a satellite or related item controlled by Category 
XV of part 121 of this subchapter or any defense service controlled by 
this subchapter associated with the launch in, or by nationals of, a 
country that is not a member of the North Atlantic Treaty Organization 
(NATO) or a major non-NATO ally of the United States always requires 
special export controls, in addition to other export controls required 
by this subchapter, as follows:
    (1) All licenses and other requests for approval require a 
technology transfer control plan (TTCP) approved by the Department of 
Defense and an encryption technology control plan approved by the 
National Security Agency. Drafts reflecting advance discussions with 
both agencies must accompany submission of the license application or 
proposed technical assistance agreement, and the letter of transmittal 
required in Sec.  124.12 must identify the U.S. Government officials 
familiar with the preparation of the draft TTCPs. The TTCP must require 
any U.S. person or entity involved in the export to notify the 
Department of Defense in advance of all meetings and interactions with 
any foreign person or entity that is a party to the export and require 
such U.S. person or entity to certify that it has complied with this 
notification requirement within 30 days after launch.
    (2) The U.S. person must make arrangements with the Department of 
Defense for monitoring. The costs of such monitoring services must be 
fully

[[Page 549]]

reimbursed to the Department of Defense by the U.S. person receiving 
such services. The letter of transmittal required under Sec.  124.12 
must also state that such reimbursement arrangements have been made with 
the Department of Defense and identify the specific Department of 
Defense official with whom these arrangements have been made. As 
required by Public Law 105-261, such monitoring will cover, but not be 
limited to--
    (i) Technical discussions and activities, including the design, 
development, operation, maintenance, modification, and repair of 
satellites, satellite components, missiles, other equipment, launch 
facilities, and launch vehicles;
    (ii) Satellite processing and launch activities, including launch 
preparation, satellite transportation, integration of the satellite with 
the launch vehicle, testing and checkout prior to launch, satellite 
launch, and return of equipment to the United States;
    (iii) Activities relating to launch failure, delay, or cancellation, 
including post-launch failure investigations or analyses with regard to 
either the launcher or the satellite; and
    (iv) All other aspects of the launch.
    (b) Mandatory licenses for launch failure (crash) investigations or 
analyses of any satellite controlled pursuant to this subchapter or 
subject to the EAR: In the event of a failure of a launch from a foreign 
country (including a post liftoff failure to reach proper orbit)--
    (1) The activities of U.S. persons or entities in connection with 
any subsequent investigation or analysis of the failure continue to be 
subject to the controls established under section 38 of the Arms Export 
Control Act, including the requirements under this subchapter for 
express approval prior to participation in such investigations or 
analyses, regardless of whether a license was issued under this 
subchapter for the initial export of the satellite or satellite 
component;
    (2) Officials of the Department of Defense must monitor all 
activities associated with the investigation or analyses to insure 
against unauthorized transfer of technical data or services and U.S. 
persons must follow the procedures set forth in paragraphs (a)(1) and 
(a)(2) of this section.
    (c) Although Public Law 105-261 does not require the application of 
special export controls for the launch of U.S.-origin satellites and 
components from or by nationals of countries that are members of NATO or 
major non-NATO allies, such export controls may nonetheless be applied, 
in addition to any other export controls required under this subchapter, 
as appropriate in furtherance of the security and foreign policy of the 
United States. Further, the export of any article or defense service 
controlled under this subchapter to any destination may also require 
that the special export controls identified in paragraphs (a)(1) and 
(a)(2) of this section be applied in furtherance of the security and 
foreign policy of the United States.
    (d) Mandatory licenses for exports to insurance providers and 
underwriters: None of the exemptions or sub-licensing provisions 
available in this subchapter may be used for the export of technical 
data in order to obtain or satisfy insurance requirements. Such exports 
are always subject to the prior approval and re-transfer requirements of 
sections 3 and 38 of the Arms Export Control Act, as applied by relevant 
provisions of this subchapter.

[64 FR 13681, Mar. 22, 1999, as amended at 79 FR 27189, May 13, 2014]



Sec.  124.16  [Reserved]



PART 125_LICENSES FOR THE EXPORT OF TECHNICAL DATA 
AND CLASSIFIED DEFENSE ARTICLES--Table of Contents



Sec.
125.1 Exports subject to this part.
125.2 Exports of unclassified technical data.
125.3 Exports of classified technical data and classified defense 
          articles.
125.4 Exemptions of general applicability.
125.5 Exemptions for plant visits.
125.6 Certification requirements for exemptions.
125.7 Procedures for the export of classified technical data and other 
          classified defense articles.
125.8 [Reserved]
125.9 Filing of licenses and other authorizations for exports of 
          classified technical data and classified defense articles.


[[Page 550]]


    Authority: Secs. 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 
2752, 2778); 22 U.S.C. 2651a; E.O. 13637, 78 FR 16129.

    Source: 58 FR 39310, July 22, 1993, unless otherwise noted.



Sec.  125.1  Exports subject to this part.

    (a) The controls of this part apply to the export of technical data 
and the export of classified defense articles. Information which is in 
the public domain (see Sec.  120.11 of this subchapter and Sec.  
125.4(b)(13)) is not subject to the controls of this subchapter.
    (b) A license for the export of technical data and the exemptions in 
Sec.  125.4 may not be used for foreign production purposes or for 
technical assistance unless the approval of the Directorate of Defense 
Trade Controls has been obtained. Such approval is generally provided 
only pursuant to the procedures specified in part 124 of this 
subchapter.
    (c) Technical data authorized for export may not be reexported, 
transferred or diverted from the country of ultimate end-use or from the 
authorized foreign end-user (as designated in the license or approval 
for export) or disclosed to a national of another country without the 
prior written approval of the Directorate of Defense Trade Controls.
    (d) The controls of this part apply to the exports referred to in 
paragraph (a) of this section regardless of whether the person who 
intends to export the technical data produces or manufactures defense 
articles if the technical data is determined by the Directorate of 
Defense Trade Controls to be subject to the controls of this subchapter.
    (e) For the export of technical data related to articles in Category 
VI(e), Category XVI, and Category XX(b)(1) of Sec.  121.1 of this 
subchapter, please see Sec.  123.20 of this subchapter.
    (f) Unless limited by a condition set out in an agreement, the 
export, reexport, retransfer, or temporary import authorized by a 
license is for the item(s), end-use(s), and parties described in the 
agreement, license, and any letters of explanation. DDTC approves 
agreements and grants licenses in reliance on representations the 
applicant made in or submitted in connection with the agreement, letters 
of explanation, and other documents submitted.

[58 FR 39310, July 22, 1993, as amended at 71 FR 20544, Apr. 21, 2006; 
78 FR 40933, July 8, 2013; 79 FR 47, Jan. 2, 2014; 81 FR 62008, Sept. 8, 
2016]



Sec.  125.2  Exports of unclassified technical data.

    (a) License. A license (DSP-5) is required for the export of 
unclassified technical data unless the export is exempt from the 
licensing requirements of this subchapter. In the case of a plant visit, 
details of the proposed discussions must be transmitted to the 
Directorate of Defense Trade Controls for an appraisal of the technical 
data.
    (b) Patents. A license issued by the Directorate of Defense Trade 
Controls is required for the export of technical data whenever the data 
exceeds that which is used to support a domestic filing of a patent 
application or to support a foreign filing of a patent application 
whenever no domestic application has been filed. Requests for the filing 
of patent applications in a foreign country, and requests for the filing 
of amendments, modifications or supplements to such patents, should 
follow the regulations of the U.S. Patent and Trademark Office in 
accordance with 37 CFR part 5. The export of technical data to support 
the filing and processing of patent applications in foreign countries is 
subject to regulations issued by the U.S. Patent and Trademark Office 
pursuant to 35 U.S.C. 184.
    (c) Disclosures. Unless otherwise expressly exempted in this 
subchapter, a license is required for the oral, visual or documentary 
disclosure of technical data by U.S. persons to foreign persons. A 
license is required regardless of the manner in which the technical data 
is transmitted (e.g., in person, by telephone, correspondence, 
electronic means, etc.). A license is required for such disclosures by 
U.S. persons in connection with visits to foreign diplomatic missions 
and consular offices.

[58 FR 39310, July 22, 1993, as amended at 71 FR 20544, Apr. 21, 2006; 
81 FR 54737, Aug. 17, 2016]

[[Page 551]]



Sec.  125.3  Exports of classified technical data and classified 
defense articles.

    (a) A request for authority to export defense articles, including 
technical data, classified by a foreign government or pursuant to 
Executive Order 12356, successor orders, or other legal authority must 
be submitted to the Directorate of Defense Trade Controls for approval. 
The application must contain full details of the proposed transaction. 
It should also list the facility security clearance code of all U.S. 
parties on the license and include the Defense Security Service 
cognizant security office of the party responsible for packaging the 
commodity for shipment. A nontransfer and use certificate (Form DSP-83) 
executed by the applicant, foreign consignee, end-user and an authorized 
representative of the foreign government involved will be required.
    (b) Classified technical data which is approved by the Directorate 
of Defense Trade Controls either for export or reexport after a 
temporary import will be transferred or disclosed only in accordance 
with the requirements in the Department of Defense National Industrial 
Security Program Operating Manual (unless such requirements are in 
direct conflict with guidance provided by the Directorate of Defense 
Trade Controls, in which case the latter guidance must be followed). Any 
other requirements imposed by cognizant U.S. departments and agencies 
must also be satisfied.
    (c) The approval of the Directorate of Defense Trade Controls must 
be obtained for the export of technical data by a U.S. person to a 
foreign person in the U.S. or in a foreign country unless the proposed 
export is exempt under the provisions of this subchapter.
    (d) All communications relating to a patent application covered by 
an invention secrecy order are to be addressed to the U.S. Patent and 
Trademark Office (see 37 CFR 5.11).

[58 FR 39310, July 22, 1993, as amended at 71 FR 20544, Apr. 21, 2006]



Sec.  125.4  Exemptions of general applicability.

    (a) The following exemptions apply to exports of technical data for 
which approval is not needed from the Directorate of Defense Trade 
Controls. The exemptions, except for paragraph (b)(13) of this section, 
do not apply to exports to proscribed destinations under Sec.  126.1 of 
this subchapter or for persons considered generally ineligible under 
Sec.  120.1(c) of this subchapter. The exemptions are also not 
applicable for purposes of establishing offshore procurement 
arrangements or producing defense articles offshore (see Sec.  124.13), 
except as authorized under Sec.  125.4(c). Transmission of classified 
information must comply with the requirements of the Department of 
Defense National Industrial Security Program Operating Manual (unless 
such requirements are in direct conflict with guidance provided by the 
Directorate of Defense Trade controls, in which case the latter guidance 
must be followed) and the exporter must certify to the transmittal 
authority that the technical data does not exceed the technical 
limitation of the authorized export.
    (b) The following exports are exempt from the licensing requirements 
of this subchapter.
    (1) Technical data, including classified information, to be 
disclosed pursuant to an official written request or directive from the 
U.S. Department of Defense;
    (2) Technical data, including classified information, in furtherance 
of a manufacturing license or technical assistance agreement approved by 
the Department of State under part 124 of this subchapter and which meet 
the requirements of Sec.  124.3 of this subchapter;
    (3) Technical data, including classified information, in furtherance 
of a contract between the exporter and an agency of the U.S. Government, 
if the contract provides for the export of the data and such data does 
not disclose the details of design, development, production, or 
manufacture of any defense article;
    (4) Copies of technical data, including classified information, 
previously authorized for export to the same recipient. Revised copies 
of such technical data are also exempt if they pertain to the identical 
defense article, and if the revisions are solely editorial and do not 
add to the content of technology previously exported or authorized for 
export to the same recipient;

[[Page 552]]

    (5) Technical data, including classified information, in the form of 
basic operations, maintenance, and training information relating to a 
defense article lawfully exported or authorized for export to the same 
recipient. Intermediate or depot-level repair and maintenance 
information may be exported only under a license or agreement approved 
specifically for that purpose;
    (6) Technical data, including classified information, related to 
firearms not in excess of caliber .50 and ammunition for such weapons, 
except detailed design, development, production or manufacturing 
information;
    (7) Technical data, including classified information, being returned 
to the original source of import;
    (8) Technical data directly related to classified information which 
has been previously exported or authorized for export in accordance with 
this part to the same recipient, and which does not disclose the details 
of the design, development, production, or manufacture of any defense 
article;
    (9) Technical data, including classified information, regardless of 
media or format, exported, reexported, or retransferred by or to a U.S. 
person, or a foreign person employee of a U.S. person travelling or on 
temporary assignment abroad, subject to the following restrictions:
    (i) Foreign persons may only export, reexport, retransfer, or 
receive such technical data as they are authorized to receive through a 
separate license or other approval.
    (ii) The technical data exported, reexported, or retransferred under 
this authorization may only be possessed or used by a U.S. person or 
authorized foreign person. Sufficient security precautions must be taken 
to prevent the unauthorized release of the technical data. Such security 
precautions may include encryption of the technical data; the use of 
secure network connections, such as virtual private networks; the use of 
passwords or other access restrictions on the electronic device or media 
on which the technical data is stored; and the use of firewalls and 
other network security measures to prevent unauthorized access.
    (iii) The individual is an employee of the U.S. government or is 
directly employed by a U.S. person and not by a foreign subsidiary.
    (iv) Technical data authorized under this exception may not be used 
for foreign production purposes or for defense services unless 
authorized through a license or other separate approval.
    (v) Classified information is sent or taken outside the United 
States in accordance with the requirements of the Department of Defense 
National Industrial Security Program Operating Manual (unless such 
requirements are in direct conflict with guidance provided by the 
Directorate of Defense Trade Controls, in which case such guidance must 
be followed).
    (10) Disclosures of unclassified technical data in the U.S. by U.S. 
institutions of higher learning to foreign persons who are their bona 
fide and full time regular employees. This exemption is available only 
if:
    (i) The employee's permanent abode throughout the period of 
employment is in the United States;
    (ii) The employee is not a national of a country to which exports 
are prohibited pursuant to Sec.  126.1 of this subchapter; and
    (iii) The institution informs the individual in writing that the 
technical data may not be transferred to other foreign persons without 
the prior written approval of the Directorate of Defense Trade Controls;
    (11) Technical data, including classified information, for which the 
exporter, pursuant to an arrangement with the Department of Defense, 
Department of Energy or NASA which requires such exports, has been 
granted an exemption in writing from the licensing provisions of this 
part by the Directorate of Defense Trade Controls. Such an exemption 
will normally be granted only if the arrangement directly implements an 
international agreement to which the United States is a party and if 
multiple exports are contemplated. The Directorate of Defense Trade 
Controls, in consultation with the relevant U.S. Government agencies, 
will determine whether the interests of the United States Government are 
best served by expediting exports under an arrangement through an

[[Page 553]]

exemption (see also paragraph (b)(3) of this section for a related 
exemption);
    (12) Technical data which is specifically exempt under part 126 of 
this subchapter; or
    (13) Technical data approved for public release (i.e., unlimited 
distribution) by the cognizant U.S. Government department or agency or 
Office of Freedom of Information and Security Review. This exemption is 
applicable to information approved by the cognizant U.S. Government 
department or agency for public release in any form. It does not require 
that the information be published in order to qualify for the exemption.
    (c) Defense services and related unclassified technical data are 
exempt from the licensing requirements of this subchapter, to nationals 
of NATO countries, Australia, Japan, and Sweden, for the purposes of 
responding to a written request from the Department of Defense for a 
quote or bid proposal. Such exports must be pursuant to an official 
written request or directive from an authorized official of the U.S. 
Department of Defense. The defense services and technical data are 
limited to paragraphs (c)(1), (c)(2), and (c)(3) of this section and 
must not include paragraphs (c)(4), (c)(5), and (c)(6) of this section 
which follow:
    (1) Build-to-Print. ``Build-to-Print'' means that a foreign 
consignee can produce a defense article from engineering drawings 
without any technical assistance from a U.S. exporter. This transaction 
is based strictly on a ``hands-off'' approach since the foreign 
consignee is understood to have the inherent capability to produce the 
defense article and only lacks the necessary drawings. Supporting 
documentation such as acceptance criteria, and specifications, may be 
released on an as-required basis (i.e. ``must have'') such that the 
foreign consignee would not be able to produce an acceptable defense 
article without this additional supporting documentation. Documentation 
which is not absolutely necessary to permit manufacture of an acceptable 
defense article (i.e. ``nice to have'') is not considered within the 
boundaries of a ``Build-to-Print'' data package;
    (2) Build/Design-to-Specification. ``Build/Design-to-Specification'' 
means that a foreign consignee can design and produce a defense article 
from requirement specifications without any technical assistance from 
the U.S. exporter. This transaction is based strictly on a ``hands-off'' 
approach since the foreign consignee is understood to have the inherent 
capability to both design and produce the defense article and only lacks 
the necessary requirement information;
    (3) Basic Research. ``Basic Research'' means a systemic study 
directed toward greater knowledge or understanding of the fundamental 
aspects of phenomena and observable facts without specific applications 
towards processes or products in mind. It does not include ``Applied 
Research'' (i.e. a systemic study to gain knowledge or understanding 
necessary to determine the means by which a recognized and specific need 
may be met. It is a systematic application of knowledge toward the 
production of useful materials, devices, and systems or methods, 
including design, development, and improvement of prototypes and new 
processes to meet specific requirements.);
    (4) Design Methodology, such as: The underlying engineering methods 
and design philosophy utilized (i.e., the ``why'' or information that 
explains the rationale for particular design decision, engineering 
feature, or performance requirement); engineering experience (e.g., 
lessons learned); and the rationale and associated databases (e.g., 
design allowables, factors of safety, component life predictions, 
failure analysis criteria) that establish the operational requirements 
(e.g., performance, mechanical, electrical, electronic, reliability and 
maintainability) of a defense article. (Final analytical results and the 
initial conditions and parameters may be provided.)
    (5) Engineering Analysis, such as: Analytical methods and tools used 
to design or evaluate a defense article's performance against the 
operational requirements. Analytical methods and tools include the 
development and/or use of mockups, computer models and simulations, and 
test facilities. (Final analytical results and the initial conditions 
and parameters may be provided.)

[[Page 554]]

    (6) Manufacturing Know-how, such as: information that provides 
detailed manufacturing processes and techniques needed to translate a 
detailed design into a qualified, finished defense article. (Information 
may be provided in a build-to-print package that is necessary in order 
to produce an acceptable defense article.)
    (d) [Reserved]

[58 FR 39310, July 22, 1993, as amended at 65 FR 45284, July 21, 2000; 
66 FR 35900, July 10, 2001; 67 FR 15101, Mar. 29, 2002; 71 FR 20545, 
Apr. 21, 2006; 75 FR 52624, 52626, Aug. 27, 2010; 79 FR 66609, Nov. 10, 
2014; 81 FR 35617, June 3, 2016]



Sec.  125.5  Exemptions for plant visits.

    (a) A license is not required for the oral and visual disclosure of 
unclassified technical data during the course of a classified plant 
visit by a foreign person, provided: The classified visit has itself 
been authorized pursuant to a license issued by the Directorate of 
Defense Trade Controls; or the classified visit was approved in 
connection with an actual or potential government-to-government program 
or project by a U.S. Government agency having classification 
jurisdiction over the classified defense article or classified technical 
data involved under Executive Order 12356 or other applicable Executive 
Order; and the unclassified information to be released is directly 
related to the classified defense article or technical data for which 
approval was obtained and does not disclose the details of the design, 
development, production or manufacture of any other defense articles. In 
the case of visits involving classified information, the requirements of 
the Department of Defense National Industrial Security Program Operating 
Manual must be met (unless such requirements are in direct conflict with 
guidance provided by the Directorate of Defense Trade Controls, in which 
case the latter guidance must be followed).
    (b) The approval of the Directorate of Defense Trade Controls is not 
required for the disclosure of oral and visual classified information to 
a foreign person during the course of a plant visit approved by the 
appropriate U.S. Government agency if: The requirements of the 
Department of Defense National Industrial Security Program Operating 
Manual have been met (unless such requirements are in direct conflict 
with guidance provided by the Directorate of Defense Trade Controls, in 
which case the latter guidance must be followed); the classified 
information is directly related to that which was approved by the U.S. 
Government agency; it does not exceed that for which approval was 
obtained; and it does not disclose the details of the design, 
development, production or manufacture of any defense articles.
    (c) A license is not required for the disclosure to a foreign person 
of unclassified technical data during the course of a plant visit 
(either classified or unclassified) approved by the Directorate of 
Defense Trade Controls or a cognizant U.S. Government agency provided 
the technical data does not contain information in excess of that 
approved for disclosure. This exemption does not apply to technical data 
which could be used for design, development, production or manufacture 
of a defense article.

[71 FR 20545, Apr. 21, 2006]



Sec.  125.6  Certification requirements for exemptions.

    (a) To claim an exemption for the export of technical data under the 
provisions of this subchapter (e.g., Sec. Sec.  125.4 and 125.5), the 
exporter must certify that the proposed export is covered by a relevant 
section of this subchapter, to include the paragraph and applicable 
subparagraph. Certifications consist of clearly marking the package or 
letter containing the technical data ``22 CFR [insert ITAR exemption] 
applicable.'' This certification must be made in written form and 
retained in the exporter's files for a period of 5 years (see Sec.  
123.22 of this subchapter).
    (b) For exports that are oral, visual, or electronic the exporter 
must also complete a written certification as indicated in paragraph (a) 
of this section and retain it for a period of 5 years.

[68 FR 61102, Oct. 27, 2003]

[[Page 555]]



Sec.  125.7  Procedures for the export of classified technical data 
and other classified defense articles.

    (a) All applications for the export or temporary import of 
classified technical data or other classified defense articles must be 
submitted to the Directorate of Defense Trade Controls on Form DSP-85.
    (b) An application for the export of classified technical data or 
other classified defense articles must be accompanied by a completed 
form DSP-83 (see Sec.  123.10 of this subchapter). All classified 
materials accompanying an application must be transmitted to the 
Directorate of Defense Trade Controls in accordance with the procedures 
contained in the Department of Defense National Industrial Security 
Program Operating Manual (unless such requirements are inconsistent with 
guidance provided by the Directorate of Defense Trade Controls, in which 
case the latter guidance must be followed).

[71 FR 20546, Apr. 21, 2006, as amended at 81 FR 54737, Aug. 17, 2016]



Sec.  125.8  [Reserved]



Sec.  125.9  Filing of licenses and other authorizations for exports 
of classified technical data and classified defense articles.

    Licenses and other authorizations for the export of classified 
technical data or classified defense articles will be forwarded by the 
Directorate of Defense Trade Controls to the Defense Security Service of 
the Department of Defense in accordance with the provisions of the 
Department of Defense National Industrial Security Program Operating 
Manual (unless such requirements are in direct conflict with guidance 
provided by the Directorate of Defense Trade Controls, in which case the 
latter guidance must be followed). The Directorate of Defense Trade 
Controls will forward a copy of the license to the applicant for the 
applicant's information. The Defense Security Service will return the 
endorsed license to the Directorate of Defense Trade Controls upon 
completion of the authorized export or expiration of the license, 
whichever occurs first.

[71 FR 20546, Apr. 21, 2006]



PART 126_GENERAL POLICIES AND PROVISIONS--Table of Contents



Sec.
126.1 Prohibited exports, imports, and sales to or from certain 
          countries.
126.2 Temporary suspension or modification of this subchapter.
126.3 Exceptions.
126.4 Transfers by or for the United States Government.
126.5 Canadian exemptions.
126.6 Foreign-owned military aircraft and naval vessels, and the Foreign 
          Military Sales program.
126.7 Denial, revocation, suspension, or amendment of licenses and other 
          approvals.
126.8 [Reserved]
126.9 Advisory opinions and related authorizations.
126.10 Disclosure of information.
126.11 Relations to other provisions of law.
126.12 Continuation in force.
126.13 Required information.
126.14 Special comprehensive export authorizations for NATO, Australia, 
          Japan, and Sweden.
126.15 Expedited processing of license applications for the export of 
          defense articles and defense services to Australia or the 
          United Kingdom.
126.16 Exemption pursuant to the Defense Trade Cooperation Treaty 
          between the United States and Australia.
126.17 Exemption pursuant to the Defense Trade Cooperation Treaty 
          between the United States and the United Kingdom.
126.18 Exemptions regarding intra-company, intra-organization, and 
          intra-governmental transfers to employees who are dual 
          nationals or third-country nationals.

Supplement No. 1 to Part 126

    Authority: 22 U.S.C. 2752, 2778, 2780, 2791, and 2797; 22 U.S.C. 
2651a; 22 U.S.C. 287c; Sec. 1225, Pub. L. 108-375; Sec. 7089, Pub. L. 
111-117; Pub. L. 111-266; Sections 7045 and 7046, Pub. L. 112-74; E.O. 
13637, 78 FR 16129.

    Source: 58 FR 39312, July 22, 1993, unless otherwise noted.



Sec.  126.1  Prohibited exports, imports, and sales to 
or from certain countries.

    (a) General. It is the policy of the United States to deny licenses 
and other approvals for exports and imports of defense articles and 
defense services, destined for or originating in certain countries. The 
exemptions provided in this subchapter, except Sec. Sec.  123.17, 
126.4(a)(1) or (3) and (b)(1), and

[[Page 556]]

126.4(a)(2) or (b)(2) when the export is destined for Russia and in 
support of government space cooperation, and Sec.  126.6, or when the 
recipient is a U.S. government department or agency, do not apply with 
respect to defense articles or defense services originating in or for 
export to any proscribed countries, areas, or persons. (See Sec.  129.7 
of this subchapter, which imposes restrictions on brokering activities 
similar to those in this section).
    (b) Shipments. A defense article licensed or otherwise authorized 
for export, temporary import, reexport, or retransfer under this 
subchapter may not be shipped on a vessel, aircraft, spacecraft, or 
other means of conveyance that is owned by, operated by, leased to, or 
leased from any of the proscribed countries, areas, or other persons 
referred to in this section.
    (c) Identification in Sec.  126.1 of the ITAR may derive from:
    (1) Exports and sales prohibited by United Nations Security Council 
sanctions measures. Whenever the United Nations Security Council 
mandates sanctions measures, all transactions that are prohibited by the 
aforementioned measures and involve U.S. persons (see Sec.  120.15 of 
this subchapter) inside or outside of the United States, or any person 
in the United States, and defense articles or defense services described 
on the United States Munitions List (22 CFR part 121), irrespective of 
origin, are prohibited under the ITAR for the duration of the sanction, 
unless the Department of State publishes a notice in the Federal 
Register specifying different measures.
    (2) Terrorism. Exports or temporary imports of defense articles or 
defense services to countries that the Secretary of State has determined 
to be State Sponsors of Terrorism are prohibited under the ITAR. These 
countries have repeatedly provided support for acts of international 
terrorism, which is contrary to the foreign policy of the United States 
and thus subject to the policy specified in paragraph (a) of this 
section and the requirements of section 40 of the Arms Export Control 
Act (22 U.S.C. 2780) and the Omnibus Diplomatic Security and Anti-
Terrorism Act of 1986 (22 U.S.C. 4801). Exports to countries that the 
Secretary of State has determined and certified to Congress, pursuant to 
section 40A of the Arms Export Control Act (22 U.S.C. 2781) and 
Executive Order 13637, are not cooperating fully with United States 
antiterrorism efforts are subject to the policy specified in paragraph 
(a) of this section. The Secretary of State makes such determinations 
and certifications annually.
    (3) Arms embargoes and sanctions. The policy specified in paragraph 
(a) of this section applies to countries subject to a United States arms 
embargo or sanctions regime, such as those described in the Foreign 
Assistance Act of 1961 (22 U.S.C. 2151 et seq.), the International 
Religious Freedom Act of 1998 (22 U.S.C. 6401 et seq.), or the Child 
Soldiers Prevention Act of 2008 (22 U.S.C. 2370c-2370c-2), or whenever 
an export of defense articles or defense services would not otherwise be 
in furtherance of world peace and the security and foreign policy of the 
United States.
    (d) Countries subject to certain prohibitions:
    (1) For defense articles and defense services, the following 
countries have a policy of denial:

------------------------------------------------------------------------
                                 Country
-------------------------------------------------------------------------
Belarus.
Burma.
China.
Cuba.
Iran.
North Korea.
Syria.
Venezuela.
------------------------------------------------------------------------

    (2) For defense articles and defense services, a policy of denial 
applies to the following countries except as specified in the associated 
paragraphs below:

------------------------------------------------------------------------
             Country                Country specific paragraph location
------------------------------------------------------------------------
Afghanistan......................  See also paragraph (g) of this
                                    section.
Central African Republic.........  See also paragraph (u) of this
                                    section.
Cyprus...........................  See also paragraph (r) of this
                                    section.

[[Page 557]]

 
Democratic Republic of Congo.....  See also paragraph (i) of this
                                    section.
Eritrea..........................  See also paragraph (h) of this
                                    section.
Haiti............................  See also paragraph (j) of this
                                    section.
Iraq.............................  See also paragraph (f) of this
                                    section.
Lebanon..........................  See also paragraph (t) of this
                                    section.
Libya............................  See also paragraph (k) of this
                                    section.
Russia...........................  See also paragraph (l) of this
                                    section.
Somalia..........................  See also paragraph (m) of this
                                    section.
South Sudan......................  See also paragraph (w) of this
                                    section.
Sudan............................  See also paragraph (v) of this
                                    section.
Zimbabwe.........................  See also paragraph (s) of this
                                    section.
------------------------------------------------------------------------

    (e)(1) Proposed and final sales. No sale, export, transfer, 
reexport, or retransfer of, and no proposal or presentation to sell, 
export, transfer, reexport, or retransfer, any defense articles or 
defense services subject to this subchapter may be made to any country 
referred to in this section (including the embassies or consulates of 
such a country), or to any person acting on its behalf, whether in the 
United States or abroad, without first obtaining a license or written 
approval of the Directorate of Defense Trade Controls. However, in 
accordance with paragraph (a) of this section, it is the policy of the 
Department of State to deny licenses and approvals in such cases.
    (2) Duty to notify. Any person who knows or has reason to know of a 
proposed, final, or actual sale, export, transfer, reexport, or 
retransfer of articles, services, or data as described in paragraph 
(e)(1) of this section must immediately inform the Directorate of 
Defense Trade Controls. Such notifications should be submitted to the 
Office of Defense Trade Controls Compliance, Directorate of Defense 
Trade Controls.

    Note to paragraph (e): ``Proposal'' and ``presentation'' mean the 
communication of information in sufficient detail that it would permit 
an intended purchaser to decide to acquire the article in question or to 
enter into an agreement as described in part 124 of this subchapter. For 
example, communicating information on the equipment's performance 
characteristics, price, and probable availability for delivery would be 
a proposal or presentation requiring a license or other approval.

    (f) Iraq. It is the policy of the United States to deny licenses or 
other approvals for exports and imports of defense articles and defense 
services, destined for or originating in Iraq, except that a license or 
other approval may be issued, on a case-by-case basis for:
    (1) Non-lethal military equipment; and
    (2) Lethal military equipment required by the Government of Iraq or 
coalition forces.
    (g) Afghanistan. It is the policy of the United States to deny 
licenses or other approvals for exports and imports of defense articles 
and defense services, destined for or originating in Afghanistan, except 
that a license or other approval may be issued, on a case-by-case basis, 
for the Government of Afghanistan or coalition forces. In addition, the 
names of individuals, groups, undertakings, and entities subject to arms 
embargoes, due to their affiliation with the Taliban, Al-Qaida, or those 
associated with them, are published in lists maintained by the United 
Nations Security Council's Sanctions Committees (established pursuant to 
United Nations Security Council resolutions (UNSCR) 1267, 1988, and 
1989).
    (h) Eritrea. It is the policy of the United States to deny licenses 
or other

[[Page 558]]

approvals for exports or imports of defense articles and defense 
services destined for or originating in Eritrea, except that a license 
or other approval may be issued, on a case-by-case basis, for:
    (1) Non-lethal military equipment intended solely for humanitarian 
or protective use, as approved in advance by the relevant committee of 
the Security Council; or
    (2) Personal protective clothing, including flak jackets and 
military helmets, temporarily exported to Eritrea by United Nations 
personnel, representatives of the media, humanitarian and development 
workers, and associated personnel for their personal use only.
    (i) Democratic Republic of the Congo. It is the policy of the United 
States to deny licenses or other approvals for exports or imports of 
defense articles and defense services destined for or originating in the 
Democratic Republic of the Congo, except that a license or other 
approval may be issued, on a case-by-case basis, for:
    (1) Defense articles and defense services for the Government of the 
Democratic Republic of the Congo as notified in advance to the Committee 
of the Security Council concerning the Democratic Republic of the Congo;
    (2) Defense articles and defense services intended solely for the 
support of or use by the United Nations Organization Stabilization 
Mission in the Democratic Republic of the Congo (MONUSCO) or the African 
Union-Regional Task Force;
    (3) Protective clothing, including flak jackets and military 
helmets, temporarily exported to the Democratic Republic of the Congo by 
United Nations personnel, representatives of the media, and humanitarian 
and development workers and associated personnel, for their personal use 
only;
    (4) Non-lethal military equipment intended solely for humanitarian 
or protective use, and related technical assistance and training, as 
notified in advance to the Committee of the Security Council concerning 
the Democratic Republic of the Congo.
    (5) Defense articles and defense services as approved by the 
relevant committee of the Security Council.
    (j) Haiti. (1) It is the policy of the United States to deny 
licenses or other approvals for exports or imports of defense articles 
and defense services destined for or originating in Haiti, except that a 
license or other approval may be issued, on a case-by-case basis, for:
    (i) Defense articles and defense services intended solely for the 
support of or use by security units that operate under the command of 
the Government of Haiti, to include the Coast Guard;
    (ii) Defense articles and defense services intended solely for the 
support of or use by the United Nations or a United Nations-authorized 
mission; and
    (iii) Personal protective gear for use by personnel from the United 
Nations and other international organizations, representatives of the 
media, and development workers and associated personnel.
    (2) All shipments of arms and related materials consistent with the 
above exceptions shall only be made to Haitian security units as 
designated by the Government of Haiti, in coordination with the U.S. 
Government.
    (k) Libya. It is the policy of the United States to deny licenses or 
other approvals for exports or imports of defense articles and defense 
services destined for or originating in Libya, except that a license or 
other approval may be issued, on a case-by-case basis, for:
    (1) Arms and related materiel intended solely for security or 
disarmament assistance to the Libyan government, notified to the 
Committee of the Security Council concerning Libya in advance and in the 
absence of a negative decision by the Committee within five working days 
of such a notification;
    (2) Non-lethal military equipment when intended solely for security 
or disarmament assistance to the Libyan government;
    (3) The provision of any technical assistance or training when 
intended solely for security or disarmament assistance to the Libyan 
government;
    (4) Small arms, light weapons, and related materiel temporarily 
exported to Libya for the sole use of United Nations personnel, 
representatives of the

[[Page 559]]

media, and humanitarian and development workers and associated 
personnel, notified to the Committee of the Security Council concerning 
Libya in advance and in the absence of a negative decision by the 
Committee within five working days of such a notification;
    (5) Non-lethal military equipment intended solely for humanitarian 
or protective use, and related technical assistance or training; or
    (6) Other sales or supply of arms and related materiel, or provision 
of assistance or personnel, as approved in advance by the Committee of 
the Security Council concerning Libya.
    (l) Russia. It is the policy of the United States to deny licenses 
or other approvals for exports of defense articles and defense services 
destined for Russia, except that a license or other approval may be 
issued, on a case-by-case basis:
    (1) For government space cooperation; and
    (2) Prior to September 1, 2021, for commercial space launches.
    (m) Somalia. It is the policy of the United States to deny licenses 
or other approvals for exports or imports of defense articles and 
defense services destined for or originating in Somalia, except that a 
license or other approval may be issued, on a case-by-case basis, for:
    (1) Defense articles and defense services intended solely for the 
support of or use by the following:
    (i) The African Union Mission in Somalia (AMISOM);
    (ii) United Nations personnel, including the United Nations 
Assistance Mission in Somalia (UNSOM);
    (iii) AMISOM's strategic partners, operating solely under the 
African Union (AU) Strategic Concept of January 5, 2012 (or subsequent 
AU strategic concepts), and in cooperation and coordination with AMISOM; 
or
    (iv) The European Union Training Mission (EUTM) in Somalia.
    (2) Defense articles and defense services intended solely for the 
development of the Security Forces of the Federal Government of Somalia, 
to provide security for the Somali people, notified to the relevant 
committee of the Security Council at least five days in advance, except 
in relation to deliveries of the following articles, the supply of which 
needs to be approved in advance by the relevant committee of the 
Security Council:
    (i) Surface to air missiles, including Man-Portable Air-Defense 
Systems (MANPADS);
    (ii) Guns, howitzers, and cannons with a caliber greater than 12.7 
mm, and ammunition and components specially designed for these (this 
does not include shoulder fired anti-tank rocket launchers such as RPGs 
or LAWs, rifle grenades, or grenade launchers);
    (iii) Mortars with a caliber greater than 82 mm;
    (iv) Anti-tank guided weapons, including Anti-tank Guided Missiles 
(ATGMs) and ammunition and components specially designed for these 
items;
    (v) Charges and devices intended for military use containing 
energetic material; mines, and related materiel; and
    (vi) Weapon sights with a night vision capability.
    (3) Defense articles and defense services supplied by United Nations 
member states or international, regional, or subregional organizations 
intended solely for the purposes of helping develop Somali security 
sector institutions, other than the Security Forces of the Federal 
Government of Somalia, and in the absence of a negative decision by the 
relevant committee of the Security Council within five working days of 
receiving a notification of any such assistance from the supplying 
State, international, regional or subregional organization;
    (4) Defense articles for the sole use by United Nations member 
states or international, regional, or subregional organizations 
undertaking measures to suppress acts of piracy and armed robbery at sea 
off the coast of Somalia, upon the request of the Federal Government of 
Somalia for which it has notified the Secretary-General, and provided 
that any measures undertaken shall be consistent with applicable 
international humanitarian and human rights laws;
    (5) Personal protective clothing, including flak jackets and 
military helmets, temporarily exported to Somalia

[[Page 560]]

by United Nations personnel, representatives of the media, humanitarian 
or development workers, or associated personnel for their personal use 
only; or
    (6) Supplies of non-lethal defense articles intended solely for 
humanitarian or protective use, notified to the relevant committee of 
the Security Council five days in advance for its information only, by 
the supplying State, international, regional, or subregional 
organization.
    (n)-(q) [Reserved]
    (r) Cyprus. It is the policy of the United States to deny licenses 
or other approvals for exports or imports of defense articles and 
defense services destined for or originating in Cyprus, except that a 
license or other approval may be issued, on a case-by-case basis, for 
the United Nations Forces in Cyprus (UNFICYP) or for civilian end-users. 
This policy of denial does not apply to exports, reexports, retransfers, 
and temporary imports of non-lethal defense articles and defense 
services destined for or originating in Cyprus if:
    (1) The request is made by or on behalf of the Government of the 
Republic of Cyprus;
    (2) The end-user of such defense articles or defense services is the 
Government of the Republic of Cyprus; and
    (3) There are no credible human rights concerns.
    (s) Zimbabwe. It is the policy of the United States to deny licenses 
or other approvals for exports or imports of defense articles and 
defense services destined for or originating in Zimbabwe, except that a 
license or other approval may be issued, on a case-by-case basis, for 
the temporary export of firearms and ammunition for personal use by 
individuals (not for resale or retransfer, including to the Government 
of Zimbabwe).
    (t) Lebanon. It is the policy of the United States to deny licenses 
or other approvals for exports or imports of defense articles and 
defense services destined for or originating in Lebanon, except that a 
license or other approval may be issued, on a case-by-case basis, for 
the United Nations Interim Force in Lebanon (UNIFIL) or as authorized by 
the Government of Lebanon.
    (u) Central African Republic. It is the policy of the United States 
to deny licenses or other approvals for exports and imports of defense 
articles and defense services destined for or originating in the Central 
African Republic, except that a license or other approval may be issued, 
on a case-by-case basis, for:
    (1) Defense articles intended solely for the support of or use by 
the UN Multidimensional Integrated Stabilization Mission in the Central 
African Republic (MINUSCA) and the European Union training missions 
deployed to the Central African Republic; French forces within the 
provisions of their bilateral agreement with the Central African 
Republic and the limits of their capacities and areas of deployment, and 
other Member States' forces providing training and assistance as 
notified in advance to the Committee of the Security Council concerning 
the Central African Republic;
    (2) Non-lethal equipment and the provision of assistance, including 
operational and non-operational training to the Central African Republic 
security forces, including state civilian law enforcement institutions, 
intended solely for the support of or use in the Central African 
Republic process of security sector reform, in coordination with 
MINUSCA, and as notified in advance to the Committee of the Security 
Council concerning the Central African Republic;
    (3) Supplies brought into the Central African Republic by Chadian or 
Sudanese forces solely for their use in international patrols of the 
tripartite force to enhance security in the common border areas, in 
cooperation with MINUSCA, as approved in advance by the Committee of the 
Security Council concerning the Central African Republic;
    (4) Non-lethal military equipment and related technical assistance 
or training intended solely for humanitarian and protective use, as 
notified in advance to the Committee of the Security Council concerning 
the Central African Republic;
    (5) Personal protective equipment temporarily exported to the 
Central African Republic by United Nations personnel, representatives of 
the

[[Page 561]]

media, and humanitarian and developmental workers and associated 
personnel, for their personal use only;
    (6) Small arms and related equipment intended solely for use in 
international-led patrols providing security in the Sangha River Tri-
national Protected Area and by armed wildlife rangers of the Chinko 
Project and the Bamingui-Bangoran National Park to defend against 
poaching, smuggling of ivory and arms, and other activities contrary to 
the laws of the Central African Republic or its international legal 
obligations, as notified in advance to the Committee of the Security 
Council concerning the Central African Republic;
    (7) Defense articles with a caliber of 14.5mm or less, and 
ammunition and components specially designed for such weapons, and 
defense articles that are unarmed ground military vehicles and ground 
military vehicles mounted with weapons with a caliber of 14.5mm or less, 
to the Central African Republic security forces, including state 
civilian law enforcement institutions, and intended solely for the 
support of or use in the Central African Republic security sector reform 
process, as notified in advance to the Committee of the Security Council 
concerning the Central African Republic;
    (8) Defense articles and any related lethal equipment that are not 
listed in (u)(7) to the Central African Republic security forces, 
including state civilian law enforcement institutions, and intended 
solely for the support of or use in the Central African Republic process 
of security sector reform, as approved in advance by the Committee of 
the Security Council concerning the Central African Republic; or
    (9) Other sales or supply of defense articles and related materiel, 
or provision of assistance or personnel, as approved in advance by the 
Committee of the Security Council concerning the Central African 
Republic.
    (v) Sudan. It is the policy of the United States to deny licenses or 
other approvals for exports or imports of defense articles and defense 
services destined for or originating in the Republic of the Sudan, 
except a license or other approval may be issued, on a case-by-case 
basis, for:
    (1) Supplies and related technical training and assistance to 
monitoring, verification, or peace support operations, including those 
authorized by the United Nations or operating with the consent of the 
relevant parties;
    (2) Supplies of non-lethal military equipment intended solely for 
humanitarian, human rights monitoring, or protective uses and related 
technical training and assistance;
    (3) Personal protective gear for the personal use of United Nations 
personnel, human rights monitors, representatives of the media, and 
humanitarian and development workers and associated personnel; or
    (4) Assistance and supplies provided in support of implementation of 
the Comprehensive Peace Agreement.
    (w) South Sudan. It is the policy of the United States to deny 
licenses or other approvals for exports of defense articles and defense 
services destined for South Sudan, except that a license or other 
approval may be issued, on a case-by-case basis, for:
    (1) Defense articles and defense services for monitoring, 
verification, or peacekeeping support operations, including those 
authorized by the United Nations or operating with the consent of the 
relevant parties;
    (2) Defense articles and defense services intended solely for the 
support of, or use by, African Union Regional Task Force (AU-RTF) or 
United Nations entities operating in South Sudan, including but not 
limited to the United Nations Mission in the Republic of South Sudan 
(UNMISS), the United Nations Mine Action Service (UNMAS), the United 
Nations Police (UNPOL), or the United Nations Interim Security Force for 
Abyei (UNISFA);
    (3) Defense articles and defense services intended solely for the 
support of or use by non-governmental organizations in furtherance of 
conventional weapons destruction or humanitarian demining activities;
    (4) Non-lethal defense articles intended solely for humanitarian or 
protective use and related technical training and assistance;
    (5) Personal protective equipment including flak jackets and 
helmets, temporarily exported to South Sudan by United Nations 
personnel, human

[[Page 562]]

rights monitors, representatives of the media, and humanitarian and 
development workers and associated personnel, for their personal use 
only; or
    (6) Any defense articles and defense services provided in support of 
implementation of the Comprehensive Peace Agreement, the Agreement on 
the Resolution of the Conflict in the Republic of South Sudan, or any 
successor agreement.

[58 FR 39312, July 22, 1993]

    Editorial Note: For Federal Register citations affecting Sec.  
126.1, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.govinfo.gov.

    Effective Date Note: At 85 FR 60699, Sept. 28, 2020, Sec.  126.1 was 
amended by revising paragraph (r), effective Oct. 1, 2020 until Sept. 
30, 2021.



Sec.  126.2  Temporary suspension or modification of this subchapter.

    The Deputy Assistant Secretary for Defense Trade Controls may order 
the temporary suspension or modification of any or all of the 
regulations of this subchapter in the interest of the security and 
foreign policy of the United States.

[79 FR 8085, Feb. 11, 2014]



Sec.  126.3  Exceptions.

    In a case of exceptional or undue hardship, or when it is otherwise 
in the interest of the United States Government, the Deputy Assistant 
Secretary of State for Defense Trade Controls may make an exception to 
the provisions of this subchapter.

[79 FR 8085, Feb. 11, 2014]



Sec.  126.4  Transfers by or for the United States Government.

    (a) By a department or agency. A license is not required for the 
export, reexport, retransfer, or temporary import of a defense article 
or the performance of a defense service, when made by a department or 
agency of the U.S. Government:
    (1) For official use by a department or agency of the U.S. 
Government, including:
    (i) By employees of the U.S. Government acting within their official 
capacity; or
    (ii) By persons or entities in a contractual relationship with the 
U.S. Government using the defense article or performing the defense 
service to conduct the contracted-for activities within the scope of the 
contractual relationship and:
    (A) Within a U.S. Government-controlled facility;
    (B) When an employee of the U.S. Government is empowered and 
responsible to ensure that the defense article is not diverted and is 
only used within the scope of the contractual relationship; or
    (C) Use of the exemption in paragraph (a)(1)(ii) is authorized by 
the Deputy Assistant Secretary of State for Defense Trade Controls at 
the request of a department or agency of the U.S. Government.
    (D) The provision in this paragraph (a)(1)(ii) may not be used to 
release technical data to a person or entity of a country identified in 
Sec.  126.1.
    (2) For carrying out a cooperative project, program, or other 
activity in furtherance of an agreement or arrangement that provides for 
the export, reexport, retransfer, or temporary import of the defense 
article, or the performance of activities that constitute the defense 
service, and is one of the following:
    (i) A binding international agreement to which the United States or 
any agency thereof is a party; or
    (ii) An arrangement with international partners authorized by Title 
10 or 22 of the United States Code or pertinent National Defense 
Authorization Act provisions.
    (3) For carrying out any foreign assistance or sales program 
authorized by law and subject to control by the President by other 
means.
    (4) For any other security cooperation programs and activities of 
the Department of Defense authorized by law and subject to control by 
the President by other means.
    (i) For purposes of this paragraph (a)(4), ``security cooperation 
programs and activities of the Department of Defense'' means any 
program, activity, or interaction of the Department of Defense with the 
security establishment of a foreign country to:

[[Page 563]]

    (A) Build and develop allied and friendly security capabilities for 
self-defense and multinational operations;
    (B) Provide the armed forces with access to the foreign country 
during peacetime or a contingency operation; or
    (C) Build relationships that promote specific United States security 
interests.
    (ii) The U.S. Government must obtain appropriate end-use and 
retransfer assurances from the foreign party and to ensure that the 
recipient is aware of and will comply with paragraph (f) of this 
section.
    (5) Authorization under this section is for compliance with the ITAR 
only and does not constitute any other U.S. Government approval that may 
be required prior to the transfer of a defense article, and does not 
satisfy other obligations of U.S. law or regulation, or applicable 
Government process, procedure, or practice, including the requirement 
that any export of an item listed on the MTCR Annex receive the case-by-
case review called for in the MTCR Guidelines.
    (6) The exemption in this paragraph (a) does not apply when a U.S. 
Government department or agency acts as a transmittal agent on behalf of 
a private individual or firm, either as a convenience or in satisfaction 
of security requirements.
    (7) The authorization requirement expressed in paragraph (f) of this 
section does not apply to defense articles and services exported from 
the United States pursuant to paragraphs (a)(1) and (3) of this section, 
provided the defense articles and services are subject to the terms 
thereof.
    (b) By a person on behalf of a department or agency. A license is 
not required for the export, reexport, retransfer, or temporary import 
of a defense article or the performance of a defense service, when made 
by another person for a department or agency of the U.S. Government:
    (1) To a department or agency of the U.S. Government at its request; 
or
    (2) To an entity other than the U.S. Government at the written 
direction of a department or agency of the U.S. Government or pursuant 
to an international agreement or arrangement, for an activity authorized 
for that department or agency in paragraphs (a)(1) through (4) of this 
section.
    (c) Return to the United States. No license is required under this 
subchapter for the return to the United States of a defense article 
exported pursuant to this section and not subsequently reexported or 
retransferred other than pursuant to this section, to:
    (1) A department or agency of the U.S. Government; or
    (2) The person who exported the item.
    (d) Prohibited activities and arms embargoes. This section does not 
authorize any department or agency of the U.S. Government to make or 
authorize any export that is otherwise prohibited by any other 
administrative provisions or by any statute or that is inconsistent with 
U.S. arms embargoes or United Nations Security Council Resolutions (see 
Sec.  126.1).
    (e) Export clearance. For exports shipped other than by a U.S. 
diplomatic pouch or a U.S. Government aircraft, vehicle, or vessel, an 
Electronic Export Information (EEI) filing must be submitted to U.S. 
Customs and Border Protection using its electronic system(s) at the time 
of export, unless electronic submission of such information is 
unavailable, in which case U.S. Customs and Border Protection or the 
Department of Defense transmittal authority will issue instructions.
    (f) Change in end-use or end-user. Any change in end-use or end-user 
of a defense article, to any party or use not authorized by this 
section, requires approval of the Directorate of Defense Trade Controls 
through a license or other approval.

[84 FR 16401, Apr. 19, 2019]



Sec.  126.5  Canadian exemptions.

    (a) Temporary import of defense articles. Port Directors of U.S. 
Customs and Border Protection and postmasters shall permit the temporary 
import and return to Canada without a license of any unclassified 
defense articles (see Sec.  120.6 of this subchapter) that originate in 
Canada for temporary use in the United States and return to Canada. All 
other temporary imports shall be in accordance with Sec. Sec.  123.3 and 
123.4 of this subchapter.

[[Page 564]]

    (b) Permanent and temporary export of defense articles. Except as 
provided in Supplement No. 1 to part 126 of this subchapter and for 
exports that transit third countries, Port Directors of U.S. Customs and 
Border Protection and postmasters shall permit, when for end-use in 
Canada by Canadian Federal or Provincial governmental authorities acting 
in an official capacity or by a Canadian-registered person, or for 
return to the United States, the permanent and temporary export to 
Canada without a license of unclassified defense articles and defense 
services identified on the U.S. Munitions List (22 CFR 121.1). The 
exceptions are subject to meeting the requirements of this subchapter, 
to include 22 CFR 120.1(c) and (d), parts 122 and 123 (except insofar as 
exemption from licensing requirements is herein authorized) and Sec.  
126.1, and the requirement to obtain non-transfer and use assurances for 
all significant military equipment. For purposes of this section, 
``Canadian-registered person'' is any Canadian national (including 
Canadian business entities organized under the laws of Canada), dual 
citizen of Canada and a third country other than a country listed in 
Sec.  126.1 of this subchapter, and permanent resident registered in 
Canada in accordance with the Canadian Defense Production Act, and such 
other Canadian Crown Corporations identified by the Department of State 
in a list of such persons publicly available through the Internet Web 
site of the Directorate of Defense Trade Controls and by other means.
    (c) [Reserved]
    (d) Reexports/retransfer. Reexport/retransfer in Canada to another 
end-user or end-use or from Canada to another destination, except the 
United States, must in all instances have the prior approval of the 
Directorate of Defense Trade Controls. Unless otherwise exempt in this 
subchapter, the original exporter is responsible, upon request from a 
Canadian-registered person, for obtaining or providing reexport/
retransfer approval. In any instance when the U.S. exporter is no longer 
available to the Canadian end-user the request for reexport/retransfer 
may be made directly to the Directorate of Defense Trade Controls. All 
requests must include the information in Sec.  123.9(c) of this 
subchapter. Reexport/retransfer approval is acquired by:
    (1) If the reexport/retransfer being requested could be made 
pursuant to this section (i.e., a retransfer within Canada to another 
eligible Canadian recipient under this section) if exported directly 
from the U.S., upon receipt by the U.S. company of a request by a 
Canadian end user, the original U.S. exporter is authorized to grant on 
behalf of the U.S. Government by confirming in writing to the Canadian 
requester that the reexport/retransfer is authorized subject to the 
conditions of this section; or
    (2) If the reexport/retransfer is to an end use or end user that, if 
directly exported from the U.S. requires a license, retransfer must be 
handled in accordance with Sec.  123.9 of this subchapter.

    Notes to Sec.  126.5: 1. In any instance when the exporter has 
knowledge that the defense article exempt from licensing is being 
exported for use other than by a qualified Canadian-registered person or 
for export to another foreign destination, other than the United States, 
in its original form or incorporated into another item, an export 
license must be obtained prior to the transfer to Canada.
    2. Additional exemptions exist in other sections of this subchapter 
that are applicable to Canada, for example Sec. Sec.  123.9, 125.4, and 
124.2, that allow for the performance of defense services related to 
training in basic operations and maintenance, without a license, for 
certain defense articles lawfully exported, including those identified 
in Supplement No. 1 to part 126 of this subchapter.

[66 FR 10576, Feb. 16, 2001; 66 FR 36834, July 13, 2001, as amended at 
67 FR 78686, Dec. 26, 2002; 70 FR 34654, June 15, 2005; 70 FR 39919, 
July 12, 2005; 70 FR 50964, Aug. 29, 2005; 71 FR 20546, Apr. 21, 2006; 
77 FR 16600, Mar. 21, 2012]



Sec.  126.6  Foreign-owned military aircraft and naval vessels, 
and the Foreign Military Sales program.

    (a) A license from the Directorate of Defense Trade Controls is not 
required if:
    (1) The article or technical data to be exported was sold, leased, 
or loaned by the Department of Defense to a foreign country or 
international organization pursuant to the Arms Export Control Act or 
the Foreign Assistance Act of 1961, as amended, and

[[Page 565]]

    (2) The article or technical data is delivered to representatives of 
such a country or organization in the United States; and
    (3) The article or technical data is to be exported from the United 
States on a military aircraft or naval vessel of that government or 
organization or via the Defense Transportation Service (DTS).
    (b) Foreign military aircraft and naval vessels. A license is not 
required for the entry into the United States of military aircraft or 
naval vessels of any foreign state if no overhaul, repair, or 
modification of the aircraft or naval vessel is to be performed. 
However, Department of State approval for overflight (pursuant to the 49 
U.S.C. 40103) and naval visits must be obtained from the Bureau of 
Political-Military Affairs, Office of International Security Operations.
    (c) Foreign Military Sales Program. A license from the Directorate 
of Defense Trade Controls is not required if the defense article or 
technical data or a defense service to be transferred was sold, leased 
or loaned by the Department of Defense to a foreign country or 
international organization under the Foreign Military Sales (FMS) 
Program of the Arms Export Control Act pursuant to an Letter of Offer 
and Acceptance (LOA) authorizing such transfer which meets the criteria 
stated below:
    (1) Transfers of the defense articles, technical data or defense 
services using this exemption may take place only during the period 
which the FMS Letter of Offer and Acceptance (LOA) and implementing USG 
FMS contracts and subcontracts are in effect and serve as authorization 
for the transfers hereunder in lieu of a license. After the USG FMS 
contracts and subcontracts have expired and the LOA no longer serves as 
such authorization, any further provision of defense articles, technical 
data or defense services shall not be covered by this section and shall 
instead be subject to other authorization requirements of this 
subchapter; and
    (2) The defense article, technical data or defense service to be 
transferred are specifically identified in an executed LOA, in 
furtherance of the Foreign Military Sales Program signed by an 
authorized Department of Defense Representative and an authorized 
representative of the foreign government, and
    (3) The transfer of the defense article and related technical data 
is effected during the duration of the relevant Letter of Offer and 
Acceptance (LOA), similarly a defense service is to be provided only 
during the duration of the USG FMS contract or subcontract and not to 
exceed the specified duration of the LOA, and
    (4) The U.S. person responsible for the transfer maintains records 
of all transfers in accordance with part 122 of this subchapter, and
    (5) For transfers of defense articles and technical data,
    (i) The transfer is made by the relevant foreign diplomatic mission 
of the purchasing country or its authorized freight forwarder, provided 
that the freight forwarder is registered with the Directorate of Defense 
Trade Controls pursuant to part 122 of this subchapter, and
    (ii) At the time of shipment, U.S. Customs and Border Protection is 
provided the Electronic Export Information, Internal Transaction Number 
and any other documents required by U.S. Customs and Border Protection 
in carrying out its responsibilities. The invoices for the shipment must 
be annotated: ``This shipment is authorized for export pursuant to 22 
CFR 126.6(c), under FMS Case [insert case identification]. The U.S. 
Government point of contact is __, telephone number __,'' and
    (iii) Any classified hardware and related technical data involved in 
the transfer must have the requisite U.S. Government security clearance 
and transportation plan and be shipped in accordance with the Department 
of Defense National Industrial Security Program Operating Manual. The 
exporter shall provide an electronic copy of the transportation plan via 
the U.S. Customs and Border Protection's electronic system(s), unless 
electronic reporting of such information is unavailable, in which case 
U.S. Customs and Border Protection will issue instructions, or
    (6) For transfers of defense services:

[[Page 566]]

    (i) A contract or subcontract between the U.S. person(s) responsible 
for providing the defense service and the USG exists that:
    (A) Specifically defines the scope of the defense service to be 
transferred;
    (B) Identifies the FMS case identifier,
    (C) Identifies the foreign recipients of the defense service
    (D) Identifies any other U.S. or foreign parties that may be 
involved and their roles/responsibilities, to the extent known when the 
contract is executed,
    (E) Provides a specified period of duration in which the defense 
service may be performed, and
    (ii) The U.S. person(s) identified in the contract maintain a 
registration with the Directorate of Defense Trade Controls for the 
entire time that the defense service is being provided. In any instance 
when the U.S. registered person(s) identified in the contract employs a 
subcontractor, the subcontractor may only use this exemption when 
registered with DDTC, and when such subcontract meets the above stated 
requirements, and
    (iii) In instances when the defense service involves the transfer of 
classified technical data, the U.S. person transferring the defense 
service must have the appropriate USG security clearance and a 
transportation plan, if appropriate, in compliance with the Department 
of Defense National Industrial Security Program Operating Manual.

[65 FR 45287, July 21, 2000, as amended at 70 FR 50964, Aug. 29, 2005; 
71 FR 20546, Apr. 21, 2006; 79 FR 77885, Dec. 29, 2014; 82 FR 19, Jan. 
3, 2017]



Sec.  126.7  Denial, revocation, suspension, or amendment of licenses 
and other approvals.

    (a) Policy. Licenses or approvals shall be denied or revoked 
whenever required by any statute of the United States (see Sec. Sec.  
127.7 and 127.11 of this subchapter). Any application for an export 
license or other approval under this subchapter may be disapproved, and 
any license or other approval or exemption granted under this subchapter 
may be revoked, suspended, or amended without prior notice whenever:
    (1) The Department of State deems such action to be in furtherance 
of world peace, the national security or the foreign policy of the 
United States, or is otherwise advisable; or
    (2) The Department of State believes that 22 U.S.C. 2778, any 
regulation contained in this subchapter, or the terms of any U.S. 
Government export authorization (including the terms of a manufacturing 
license or technical assistance agreement, or export authorization 
granted pursuant to the Export Administration Act, as amended) has been 
violated by any party to the export or other person having significant 
interest in the transaction; or
    (3) An applicant is the subject of a criminal complaint, other 
criminal charge (e.g., an information), or indictment for a violation of 
any of the U.S. criminal statutes enumerated in Sec.  120.27 of this 
subchapter; or
    (4) An applicant or any party to the export or the agreement has 
been convicted of violating any of the U.S. criminal statutes enumerated 
in Sec.  120.27 of this subchapter; or
    (5) An applicant is ineligible to contract with, or to receive a 
license or other authorization to import defense articles or defense 
services from, any agency of the U.S. Government; or
    (6) An applicant, any party to the export or agreement, any source 
or manufacturer of the defense article or defense service or any person 
who has a significant interest in the transaction has been debarred, 
suspended, or otherwise is ineligible to receive an export license or 
other authorization from any agency of the U.S. government (e.g., 
pursuant to debarment by the Department of Commerce under 15 CFR part 
760 or by the Department of State under part 127 or 128 of this 
subchapter); or
    (7) An applicant has failed to include any of the information or 
documentation expressly required to support a license application, 
exemption, or other request for approval under this subchapter, or as 
required in the instructions in the applicable Department of State form 
or has failed to provide notice or information as required under this 
subchapter; or
    (8) An applicant is subject to sanctions under other relevant U.S. 
laws

[[Page 567]]

(e.g., the Missile Technology Controls title of the National Defense 
Authorization Act for FY 1991 (Pub. L. 101-510); the Chemical and 
Biological Weapons Control and Warfare Elimination Act of 1991 (Pub. L. 
102-182); or the Iran-Iraq Arms Non-Proliferation Act of 1992 (Pub. L. 
102-484)).
    (b) Notification. The Directorate of Defense Trade Controls will 
notify applicants or licensees or other appropriate United States 
persons of actions taken pursuant to paragraph (a) of this section. The 
reasons for the action will be stated as specifically as security and 
foreign policy considerations permit.
    (c) Reconsideration. If a written request for reconsideration of an 
adverse decision is made within 30 days after a person has been informed 
of the decision, the U.S. person will be accorded an opportunity to 
present additional information. The case will then be reviewed by the 
Directorate of Defense Trade Controls.
    (d) Reconsideration of certain applications. Applications for 
licenses or other requests for approval denied for repeated failure to 
provide information or documentation expressly required will normally 
not be reconsidered during the thirty day period following denial. They 
will be reconsidered after this period only after a final decision is 
made on whether the applicant will be subject to an administrative 
penalty imposed pursuant to this subchapter. Any request for 
reconsideration shall be accompanied by a letter explaining the steps 
that have been taken to correct the failure and to ensure compliance 
with the requirements of this subchapter.
    (e) Special definition. For purposes of this subchapter, the term 
``party to the export'' means:
    (1) The chief executive officer, president, vice-presidents, other 
senior officers and officials (e.g., comptroller, treasurer, general 
counsel) and any member of the board of directors of the applicant;
    (2) The freight forwarders or designated exporting agent of the 
applicant; and
    (3) Any consignee or end-user of any item to be exported.

[58 FR 39312, July 22, 1993, as amended at 71 FR 20546, Apr. 21, 2006; 
77 FR 16600, Mar. 21, 2012]



Sec.  126.8  [Reserved]



Sec.  126.9  Advisory opinions and related authorizations.

    (a) Preliminary authorization determinations. A person may request 
information from the Directorate of Defense Trade Controls as to whether 
it would likely grant a license or other approval for a particular 
defense article or defense service to a particular country. Such 
information from the Directorate of Defense Trade Controls is issued on 
a case-by-case basis and applies only to the particular matters 
presented to the Directorate of Defense Trade Controls. These opinions 
are not binding on the Department of State and may not be used in future 
matters before the Department. A request for an advisory opinion must be 
made in writing and must outline in detail the equipment, its usage, the 
security classification (if any) of the articles or related technical 
data, and the country or countries involved.
    (b) Related authorizations. The Directorate of Defense Trade 
Controls may, as appropriate, in accordance with the procedures set 
forth in paragraph (a) of this section, provide export authorization, 
subject to all other relevant requirements of this subchapter, both for 
transactions that have been the subject of advisory opinions requested 
by prospective U.S. exporters, or for the Directorate's own initiatives. 
Such initiatives may cover pilot programs, or specifically anticipated 
circumstances for which the Directorate considers special authorizations 
appropriate.
    (c) Interpretations of the ITAR. Any person may request an 
interpretation of the requirements set forth in this subchapter in the 
form of an advisory opinion. A request for an advisory opinion must be 
made in writing. Any response to an advisory opinion provided by the 
Directorate of Defense Trade Controls pursuant to this paragraph shall 
not be an authorization to

[[Page 568]]

export and shall not bind the Department to grant or deny any such 
authorization.

[71 FR 20547, Apr. 21, 2006, as amended at 81 FR 54737, Aug. 17, 2016; 
81 FR 87430, Dec. 5, 2016]



Sec.  126.10  Disclosure of information.

    (a) Freedom of information. Subchapter R of this title contains 
regulations on the availability to the public of information and records 
of the Department of State. The provisions of subchapter R apply to such 
disclosures by the Directorate of Defense Trade Controls.
    (b) Determinations required by law. Section 38(e) of the Arms Export 
Control Act (22 U.S.C. 2778(e)) provides, by reference to section 12(c) 
of the Export Administration Act (50 U.S.C. 2411), that information 
obtained for the purpose of consideration of, or concerning, license 
applications shall be withheld from public disclosure unless the release 
of such information is determined by the Secretary to be in the national 
interest. Section 38(e) of the Arms Control Export Act further provides 
that, the names of countries and types and quantities of defense 
articles for which licenses are issued under this section shall not be 
withheld from public disclosure unless certain determinations are made 
that the release of such information would be contrary to the national 
interest. Such determinations required by section 38(e) shall be made by 
the Assistant Secretary of State for Political-Military Affairs.
    (c) Information required under part 130. Part 130 of this subchapter 
contains specific provisions on the disclosure of information described 
in that part.
    (d) National Interest Determinations. In accordance with section 
38(e) of the Arms Export Control Act (22 U.S.C. 2778(e)), the Secretary 
of State has determined that the following disclosures are in the 
national interest of the United States:
    (1) Furnishing information to foreign governments for law 
enforcement or regulatory purposes; and
    (2) Furnishing information to foreign governments and other agencies 
of the U.S. Government in the context of multilateral or bilateral 
export regimes (e.g., the Missile Technology Control Regime, the 
Australia Group, and Wassenaar Arrangement).

[58 FR 39312, July 22, 1993, as amended at 62 FR 67276, Dec. 24, 1997; 
70 FR 50965, Aug. 29, 2005; 71 FR 20547, Apr. 21, 2006; 81 FR 87430, 
Dec. 5, 2016]



Sec.  126.11  Relations to other provisions of law.

    The provisions in this subchapter are in addition to, and are not in 
lieu of, any other provisions of law or regulations. The sale of 
firearms in the United States, for example, remains subject to the 
provisions of the Gun Control Act of 1968 and regulations administered 
by the Department of Justice. The performance of defense services on 
behalf of foreign governments by retired military personnel continues to 
require consent pursuant to part 3a of this title. Persons who intend to 
export defense articles or furnish defense services should not assume 
that satisfying the requirements of this subchapter relieves one of 
other requirements of law.

[71 FR 20547, Apr. 21, 2006]



Sec.  126.12  Continuation in force.

    All determinations, authorizations, licenses, approvals of contracts 
and agreements and other action issued, authorized, undertaken, or 
entered into by the Department of State pursuant to section 414 of the 
Mutual Security Act of 1954, as amended, or under the previous 
provisions of this subchapter, continue in full force and effect until 
or unless modified, revoked or superseded by the Department of State.



Sec.  126.13  Required information.

    (a) All applications for licenses (DSP-5, DSP-61, DSP-73, and DSP-
85), all requests for approval of agreements and amendments thereto 
under part 124 of this subchapter, and all requests for other written 
authorizations (including requests for retransfer or reexport pursuant 
to Sec.  123.9 of this subchapter) must include a letter signed by a 
responsible official empowered by the applicant and addressed to the 
Directorate of Defense Trade Controls, stating whether:
    (1) The applicant or the chief executive officer, president, vice-
presidents,

[[Page 569]]

secretary, partner, member, other senior officers or officials (e.g., 
comptroller, treasurer, general counsel) or any member of the board of 
directors is the subject of an indictment or has been otherwise charged 
(e.g., by criminal information in lieu of indictment) for, or has been 
convicted of, violating any of the U.S. criminal statutes enumerated in 
Sec.  120.27 of this subchapter;
    (2) The applicant or the chief executive officer, president, vice-
presidents, secretary, partner, member, other senior officers or 
officials (e.g., comptroller, treasurer, general counsel) or any member 
of the board of directors is ineligible to contract with, or to receive 
a license or other approval to temporarily import or export defense 
articles or defense services from any agency of the U.S. Government;
    (3) To the best of the applicant's knowledge, any party to the 
export as defined in Sec.  126.7(e) has been convicted of violating any 
of the U.S. criminal statutes enumerated in Sec.  120.27 of this 
subchapter, or is ineligible to contract with, or to receive a license 
or other approval to temporarily import or export defense articles or 
defense services from any agency of the U.S. government; and
    (4) The natural person signing the application, notification, or 
other request for approval (including the statement required by this 
subchapter) is a citizen or national of the United States, has been 
lawfully admitted to the United States for permanent residence (and 
maintains such lawful permanent residence status) under the Immigration 
and Nationality Act, as amended (8 U.S.C. 1101(a)(20), 66 Stat. 163), or 
is an official of a foreign government entity in the United States, or 
is a foreign person making a request pursuant to Sec.  123.9 of this 
subchapter.
    (b) In addition, all applications for licenses must include the 
complete names and addresses of all U.S. consignors and freight 
forwarders, and all foreign consignees and foreign intermediate 
consignees involved in the transaction. Port Directors of U.S. Customs 
and Border Protection and Department of Defense transmittal authorities 
will permit only those U.S. consignors or freight forwarders listed on 
the license to make shipments under the license, and only to those 
foreign consignees and foreign intermediate consignees listed on the 
license. Applicants should list all freight forwarders who may be 
involved with shipments under the license to ensure that the list is 
complete and to avoid the need for amendments after the license has been 
approved. If there are unusual or extraordinary circumstances that 
preclude the specific identification of all the U.S. consignors and 
freight forwarders and all foreign consignees and foreign intermediate 
consignees, the applicant must provide a letter of explanation with each 
application.
    (c) In cases when natural foreign persons are employed at or 
assigned to security-cleared facilities, provision by the applicant of a 
technology control plan will facilitate processing.

[58 FR 39312, July 22, 1993, as amended at 70 FR 50965, Aug. 29, 2005; 
71 FR 20547, Apr. 21, 2006; 75 FR 52624, Aug. 27, 2010; 77 FR 16601, 
Mar. 21, 2012; 78 FR 52688, Aug. 26, 2013]



Sec.  126.14  Special comprehensive export authorizations for NATO, 
Australia, Japan, and Sweden.

    (a) Comprehensive authorizations. With respect to NATO members, 
Australia, Japan, and Sweden, the Directorate of Defense Trade Controls 
may provide the comprehensive authorizations described in paragraphs (a) 
and (b) of this section for circumstances where the full parameters of a 
commercial export endeavor including the needed defense exports can be 
well anticipated and described in advance, thereby making use of such 
comprehensive authorizations appropriate.
    (1) Major project authorization. With respect to NATO members, 
Australia, Japan, and Sweden, the Directorate of Defense Trade Controls 
may provide comprehensive authorizations for well circumscribed 
commercially developed ``major projects'', where a principal registered 
U.S. exporter/prime contractor identifies in advance the broad 
parameters of a commercial project including defense exports needed, 
other participants (e.g., exporters with whom they have ``teamed up,'' 
or subcontractors), and foreign government end

[[Page 570]]

users. Projects eligible for such authorization may include a commercial 
export of a major weapons system for a foreign government involving, for 
example, multiple U.S. suppliers under a commercial teaming agreement to 
design, develop and manufacture defense articles to meet a foreign 
government's requirements. U.S. exporters seeking such authorization 
must provide detailed information concerning the scope of the project, 
including other exporters, U.S. subcontractors, and planned exports 
(including re-exports) of defense articles, defense services, and 
technical data, and meet the other requirements set forth in paragraph 
(b) of this section.
    (2) Major program authorization. With respect to NATO members, 
Australia, Japan, and Sweden, the Directorate of Defense Trade Controls 
may provide comprehensive authorizations for well circumscribed 
commercially developed ``major program''. This variant would be 
available where a single registered U.S. exporter defines in advance the 
parameters of a broad commercial program for which the registrant will 
be providing all phases of the necessary support (including the needed 
hardware, technical data, defense services, development, manufacturing, 
and logistic support). U.S. exporters seeking such authorization must 
provide detailed information concerning the scope of the program, 
including planned exports (including re-exports) of defense articles, 
defense services, and technical data, and meet the other requirements 
set forth in paragraph (b) of this section.
    (3)(i) Global project authorization. With respect to NATO members, 
Australia, Japan, and Sweden, the Directorate of Defense Trade Controls 
may provide a comprehensive ``Global Project Authorization'' to 
registered U.S. exporters for exports of defense articles, technical 
data or defense services in support of government to government 
cooperative projects (covering research and development or production) 
with one of these countries undertaken pursuant to an agreement between 
the U.S. Government and the government of such country, or a memorandum 
of understanding/agreement between the Department of Defense and the 
country's Ministry of Defense.
    (ii) A set of standard terms and conditions derived from and 
corresponding to the breadth of the activities and phases covered in 
such a cooperative MOU will provide the basis for this comprehensive 
authorization for all U.S. exporters (and foreign end users) identified 
by DoD as participating in such cooperative project. Such authorizations 
may cover a broad range of defined activities in support of such 
programs including multiple shipments of defense articles and technical 
data and performance of defense services for extended periods, and re-
exports to approved end users.
    (iii) Eligible end users will be limited to ministries of defense of 
MOU signatory countries and foreign companies serving as contractors of 
such countries.
    (iv) Any requirement for non-transfer and use assurances from a 
foreign government may be deemed satisfied by the signature by such 
government of a cooperative agreement or by its ministry of defense of a 
cooperative MOU/MOA where the agreement or MOU contains assurances that 
are comparable to that required by a DSP-83 with respect to foreign 
governments and that clarifies that the government is undertaking 
responsibility for all its participating companies. The authorized non-
government participants or end users (e.g., the participating 
government's contractors) will still be required to execute DSP-83s.
    (4) Technical data supporting an acquisition, teaming arrangement, 
merger, joint venture authorization. With respect to NATO member 
countries, Australia, Japan, and Sweden, the Directorate of Defense 
Trade Controls may provide a registered U.S. defense company a 
comprehensive authorization to export technical data in support of the 
U.S. exporter's consideration of entering into a teaming arrangement, 
joint venture, merger, acquisition, or similar arrangement with 
prospective foreign partners. Specifically, the authorization is 
designed to permit the export of a broadly defined set of technical data 
to qualifying well established foreign defense firms in NATO countries, 
Australia, Japan, or Sweden in order to

[[Page 571]]

better facilitate a sufficiently in depth assessment of the benefits, 
opportunities and other relevant considerations presented by such 
prospective arrangements. U.S. exporters seeking such authorization must 
provide detailed information concerning the arrangement, joint venture, 
merger or acquisition, including any planned exports of defense 
articles, defense services, and technical data, and meet the other 
requirements set forth in paragraph (b) of this section.
    (b) Provisions and requirements for comprehensive authorizations. 
Requests for the special comprehensive authorizations set forth in 
paragraph (a) of this section should be by letter addressed to the 
Directorate of Defense Trade Controls. With regard to a commercial major 
program or project authorization, or technical data supporting a teaming 
arrangement, merger, joint venture or acquisition, registered U.S. 
exporters may consult the Deputy Assistant Secretary of State for 
Defense Trade Controls about eligibility for and obtaining available 
comprehensive authorizations set forth in paragraph (a) of this section 
or pursuant to Sec.  126.9(b) of this subchapter.
    (1) Requests for consideration of all such authorizations should be 
formulated to correspond to one of the authorizations set out in 
paragraph (a) of this section, and should include:
    (i) A description of the proposed program or project, including 
where appropriate a comprehensive description of all phases or stages; 
and
    (ii) Its value; and
    (iii) Types of exports needed in support of the program or project; 
and
    (iv) Projected duration of same, within permissible limits; and
    (v) Description of the exporter's plan for record keeping and 
auditing of all phases of the program or project; and
    (vi) In the case of authorizations for exports in support of 
government to government cooperative projects, identification of the 
cooperative project.
    (2) Amendments to the requested authorization may be requested in 
writing as appropriate, and should include a detailed description of the 
aspects of the activities being proposed for amendment.
    (3) The comprehensive authorizations set forth in paragraph (a) of 
this section may be made valid for the duration of the major commercial 
program or project, or cooperative project, not to exceed 10 years.
    (4) Included among the criteria required for such authorizations are 
those set out in part 124, e.g., Sec. Sec.  124.7, 124.8 and 124.9, as 
well as Sec. Sec.  125.4 (technical data exported in furtherance of an 
agreement) and 123.16 (hardware being included in an agreement). 
Provisions required will also take into account the congressional 
notification requirements in Sec. Sec.  123.15 and 124.11 of the ITAR. 
Specifically, comprehensive congressional notifications corresponding to 
the comprehensive parameters for the major program or project or 
cooperative project should be possible, with additional notifications 
such as those required by law for changes in value or other significant 
modifications.
    (5) All authorizations will be consistent with all other applicable 
requirements of the ITAR, including requirements for non-transfer and 
use assurances (see Sec. Sec.  123.10 and 124.10), congressional 
notifications (e.g., Sec. Sec.  123.15 and 124.11), and other 
documentation (e.g., Sec. Sec.  123.9 and 126.13).
    (6) Special auditing and reporting requirements will also be 
required for these authorizations. Exporters using special 
authorizations are required to establish an electronic system for 
keeping records of all defense articles, defense services and technical 
data exported and comply with all applicable requirements for submitting 
shipping or export information within the allotted time.

[65 FR 45285, July 21, 2000, as amended at 66 FR 35900, July 10, 2001; 
71 FR 20548, Apr. 21, 2006; 79 FR 8085, Feb. 11, 2014]



Sec.  126.15  Expedited processing of license applications for the export 
of defense articles and defense services to Australia or the United Kingdom.

    (a) Any application submitted for authorization of the export of 
defense articles or services to Australia or the United Kingdom will be 
expeditiously processed by the Department of State, in consultation with 
the Department of

[[Page 572]]

Defense. Such license applications will not be referred to any other 
Federal department or agency, except when the defense articles or 
defense services are classified or exceptional circumstances apply. (See 
section 1225, Pub. L. 108-375).
    (b) To be eligible for the expedited processing in paragraph (a) of 
this section, the destination of the prospective export must be limited 
to Australia or the United Kingdom. No other country may be included as 
intermediary or ultimate end-user.

[70 FR 39919, July 12, 2005]



Sec.  126.16  Exemption pursuant to the Defense Trade Cooperation Treaty 
between the United States and Australia.

    (a) Scope of exemption and required conditions--(1) Definitions. (i) 
An export means, for purposes of this section only, the initial movement 
of defense articles or defense services from the United States Community 
to the Australian Community.
    (ii) A transfer means, for purposes of this section only, the 
movement of a previously exported defense article or defense service by 
a member of the Australian Community within the Australian Community, or 
between a member of the United States Community and a member of the 
Australian Community.
    (iii) Reexport and retransfer. (A) Reexport means, for purposes of 
this section only, the movement of previously Exported Defense Articles 
by a member of the Australian Community from the Approved Community to a 
location outside the Territory of Australia.
    (B) Retransfer means, for purposes of this section only, the 
movement of previously Exported Defense Articles by a member of the 
Australian Community from the Approved Community to a location within 
the Territory of Australia;
    (iv) Intermediate consignee means, for purposes of this section, an 
entity or person who receives, but does not have access to, defense 
articles, including technical data, for the sole purpose of effecting 
onward movement to members of the Approved Community (see paragraph (k) 
of this section).
    (2) Persons or entities exporting or transferring defense articles 
or defense services are exempt from the otherwise applicable licensing 
requirements if such persons or entities comply with the regulations set 
forth in this section. Except as provided in Supplement No. 1 to part 
126 of this subchapter, Port Directors of U.S. Customs and Border 
Protection and postmasters shall permit the permanent and temporary 
export without a license from members of the United States Community to 
members of the Australian Community (see paragraph (d) of this section 
regarding the identification of members of the Australian Community) of 
defense articles and defense services not listed in Supplement No. 1 to 
part 126 of this subchapter, for the end-uses specifically identified 
pursuant to paragraphs (e) and (f) of this section. The purpose of this 
section is to specify the requirements to export, transfer, reexport, 
retransfer, or otherwise dispose of a defense article or defense service 
pursuant to the Defense Trade Cooperation Treaty between the United 
States and Australia. All persons must continue to comply with statutory 
and regulatory requirements outside of this subchapter concerning the 
import of defense articles and defense services or the possession or 
transfer of defense articles, including, but not limited to, regulations 
issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives found 
at 27 CFR parts 447, 478, and 479, which are unaffected by the Defense 
Trade Cooperation Treaty between the United States and Australia.
    (3) Export. In order for an exporter to export a defense article or 
defense service pursuant to the Defense Trade Cooperation Treaty between 
the United States and Australia, all of the following conditions must be 
met:
    (i) The exporter must be registered with the Directorate of Defense 
Trade Controls (DDTC) and must be eligible, according to the 
requirements and prohibitions of the Arms Export Control Act, this 
subchapter, and other provisions of United States law, to obtain an 
export license (or other forms of authorization to export) from any 
agency

[[Page 573]]

of the U.S. Government without restriction (see paragraphs (b) and (c) 
of this section for specific requirements);
    (ii) The recipient of the export must be a member of the Australian 
Community (see paragraph (d) of this section regarding the 
identification of members of the Australian Community). Australian non-
governmental entities and facilities that become ineligible for such 
membership will be removed from the Australian Community;
    (iii) Intermediate consignees involved in the export must not be 
ineligible, according to the requirements and prohibitions of the Arms 
Export Control Act, this subchapter, and other provisions of United 
States law, to handle or receive a defense article or defense service 
without restriction (see paragraph (k) of this section for specific 
requirements);
    (iv) The export must be for an end-use specified in the Defense 
Trade Cooperation Treaty between the United States and Australia and 
mutually agreed to by the U.S. Government and the Government of 
Australia pursuant to the Defense Trade Cooperation Treaty between the 
United States and Australia and the Implementing Arrangement thereto 
(the Australia Implementing Arrangement) (see paragraphs (e) and (f) of 
this section regarding authorized end-uses);
    (v) The defense article or defense service is not excluded from the 
scope of the Defense Trade Cooperation Treaty between the United States 
and Australia (see paragraph (g) of this section and Supplement No. 1 to 
part 126 of this subchapter for specific information on the scope of 
items excluded from export under this exemption) and is marked or 
identified, at a minimum, as ``Restricted USML'' (see paragraph (j) of 
this section for specific requirements on marking exports);
    (vi) All required documentation of such export is maintained by the 
exporter and recipient and is available upon the request of the U.S. 
Government (see paragraph (l) of this section for specific 
requirements); and
    (vii) The Department of State has provided advance notification to 
the Congress, as required, in accordance with this section (see 
paragraph (o) of this section for specific requirements).
    (4) Transfers. In order for a member of the Approved Community 
(i.e., the United States Community and Australian Community) to transfer 
a defense article or defense service under the Defense Trade Cooperation 
Treaty within the Approved Community, all of the following conditions 
must be met:
    (i) The defense article or defense service must have been previously 
exported in accordance with paragraph (a)(3) of this section or 
transitioned from a license or other approval in accordance with 
paragraph (i) of this section;
    (ii) The transferor and transferee of the defense article or defense 
service are members of the Australian Community (see paragraph (d) of 
this section regarding the identification of members of the Australian 
Community) or the United States Community (see paragraph (b) of this 
section for information on the United States Community/approved 
exporters);
    (iii) The transfer is required for an end-use specified in the 
Defense Trade Cooperation Treaty between the United States and Australia 
and mutually agreed to by the Government of the United States and the 
Government of Australia pursuant to the terms of the Defense Trade 
Cooperation Treaty between the United States and Australia and the 
Australia Implementing Arrangement (see paragraphs (e) and (f) of this 
section regarding authorized end-uses);
    (iv) The defense article or defense service is not identified in 
paragraph (g) of this section and Supplement No. 1 to part 126 of this 
subchapter as ineligible for export under this exemption, and is marked 
or otherwise identified, at a minimum, as ``Restricted USML'' (see 
paragraph (j) of this section for specific requirements on marking 
exports);
    (v) All required documentation of such transfer is maintained by the 
transferor and transferee and is available upon the request of the U.S. 
Government (see paragraph (l) of this section for specific 
requirements); and
    (vi) The Department of State has provided advance notification to 
the Congress in accordance with this section (see paragraph (o) of this 
section for specific requirements).

[[Page 574]]

    (5) This section does not apply to the export of defense articles or 
defense services from the United States pursuant to the Foreign Military 
Sales program. Once such items are delivered to the Australian 
Government, they may be treated as if they were exported pursuant to the 
Treaty and then must be marked, identified, transmitted, stored and 
handled in accordance with the Treaty, the Australia Implementing 
Arrangement, and the provisions of this section.
    (b) United States Community. The following persons compose the 
United States Community and may export or transfer defense articles and 
defense services pursuant to the Defense Trade Cooperation Treaty 
between the United States and Australia:
    (1) Departments and agencies of the U.S. Government, including their 
personnel acting in their official capacity, with, as appropriate, a 
security clearance and a need-to-know; and
    (2) Non-governmental U.S. persons registered with DDTC and eligible, 
according to the requirements and prohibitions of the Arms Export 
Control Act, this subchapter, and other provisions of United States law, 
to obtain an export license (or other forms of authorization to export) 
from any agency of the U.S. Government without restriction, including 
their employees acting in their official capacity with, as appropriate, 
a security clearance and a need-to-know.
    (c) An exporter that is otherwise an authorized exporter pursuant to 
paragraph (b) of this section may not export or transfer pursuant to the 
Defense Trade Cooperation Treaty between the United States and Australia 
if the exporter's president, chief executive officer, any vice-
president, any other senior officer or official (e.g., comptroller, 
treasurer, general counsel); any member of the board of directors of the 
exporter; any party to the export; or any source or manufacturer is 
ineligible to receive export licenses (or other forms of authorization 
to export) from any agency of the U.S. Government.
    (d) Australian Community. For purposes of the exemption provided by 
this section, the Australian Community consists of:
    (1) Government of Australia authorities with entities identified as 
members of the Approved Community through the DDTC Web site at the time 
of a transaction under this section; and
    (2) The non-governmental Australian entities and facilities 
identified as members of the Approved Community through the DDTC Web 
site at the time of a transaction under this section; non-governmental 
Australian entities and facilities that become ineligible for such 
membership will be removed from the Australian Community.
    (e) Authorized End-uses. The following end-uses, subject to 
paragraph (f) of this section, are specified in the Defense Trade 
Cooperation Treaty between the United States and Australia:
    (1) United States and Australian combined military or counter-
terrorism operations;
    (2) United States and Australian cooperative security and defense 
research, development, production, and support programs;
    (3) Mutually determined specific security and defense projects where 
the Government of Australia is the end-user; or
    (4) U.S. Government end-use.
    (f) Procedures for identifying authorized end-uses pursuant to 
paragraph (e) of this section:
    (1) Operations, programs, and projects that can be publicly 
identified will be posted on the DDTC Web site;
    (2) Operations, programs, and projects that cannot be publicly 
identified will be confirmed in written correspondence from DDTC; or
    (3) U.S. Government end-use will be identified specifically in a 
U.S. Government contract or solicitation as being eligible under the 
Treaty.
    (4) No other operations, programs, projects, or end-uses qualify for 
this exemption.
    (g) Items eligible under this section. With the exception of items 
listed in Supplement No. 1 to part 126 of this subchapter, defense 
articles and defense services may be exported under this section subject 
to the following:
    (1) An exporter authorized pursuant to paragraph (b)(2) of this 
section may market a defense article to members of the Australian 
Community if that exporter has been licensed by DDTC to

[[Page 575]]

export (as defined by Sec.  120.17 of this subchapter) the identical 
type of defense article to any foreign person and end-use of the article 
is for an end-use identified in paragraph (e) of this section.
    (2) The export of any defense article specific to the existence of 
(e.g., reveals the existence of or details of) anti-tamper measures made 
at U.S. Government direction always requires prior written approval from 
DDTC.
    (3) U.S.-origin classified defense articles or defense services may 
be exported only pursuant to a written request, directive, or contract 
from the U.S. Department of Defense that provides for the export of the 
classified defense article(s) or defense service(s).
    (4) U.S.-origin defense articles specific to developmental systems 
that have not obtained written Milestone B approval from the U.S. 
Department of Defense milestone approval authority are not eligible for 
export unless such export is pursuant to a written solicitation or 
contract issued or awarded by the U.S. Department of Defense for an end-
use identified pursuant to paragraph (e)(1), (2), or (4) of this 
section.
    (5) Defense articles excluded by paragraph (g) of this section or 
Supplement No. 1 to part 126 of this subchapter (e.g., USML Category XI 
(a)(3) electronically scanned array radar excluded by Note 2) that are 
embedded in a larger system that is eligible to ship under this section 
(e.g., a ship, an aircraft) must separately comply with any restrictions 
placed on that embedded defense article under this subchapter. The 
exporter must obtain a license or other authorization from DDTC for the 
export of such embedded defense articles (for example, USML Category XI 
(a)(3) electronically scanned array radar systems that are exempt from 
this section that are incorporated in an aircraft that is eligible to 
ship under this section continue to require separate authorization from 
DDTC for their export, transfer, reexport, or retransfer).
    (6) No liability shall be incurred by or attributed to the U.S. 
Government in connection with any possible infringement of privately 
owned patent or proprietary rights, either domestic or foreign, by 
reason of an export conducted pursuant to this section.
    (7) Sales by exporters made through the U.S. Government shall not 
include either charges for patent rights in which the U.S. Government 
holds a royalty-free license, or charges for information which the U.S. 
Government has a right to use and disclose to others, which is in the 
public domain, or which the U.S. Government has acquired or is entitled 
to acquire without restrictions upon its use and disclosure to others.
    (h) Transfers, retransfers, and reexports. (1) Any transfer of a 
defense article or defense service not exempted in Supplement No. 1 to 
part 126 of this subchapter by a member of the Australian Community (see 
paragraph (d) of this section for specific information on the 
identification of the Community) to another member of the Australian 
Community or the United States Community for an end-use that is 
authorized by this exemption (see paragraphs (e) and (f) of this section 
regarding authorized end-uses) is authorized under this exemption.
    (2) Any transfer or other provision of a defense article or defense 
service for an end-use that is not authorized by the exemption provided 
by this section is prohibited without a license or the prior written 
approval of DDTC (see paragraphs (e) and (f) of this section regarding 
authorized end-uses).
    (3) Any retransfer or reexport, or other provision of a defense 
article or defense service by a member of the Australian Community to a 
foreign person that is not a member of the Australian Community, or to a 
U.S. person that is not a member of the United States Community, is 
prohibited without a license or the prior written approval of DDTC (see 
paragraph (d) of this section for specific information on the 
identification of the Australian Community).
    (4) Any change in the use of a defense article or defense service 
previously exported, transferred, or obtained under this exemption by 
any foreign person, including a member of the Australian Community, to 
an end-use that is not authorized by this exemption is prohibited 
without a license or other written approval of DDTC (see paragraphs (e)

[[Page 576]]

and (f) of this section regarding authorized end-uses).
    (5) Any retransfer, reexport, or change in end-use requiring such 
approval of the U.S. Government shall be made in accordance with Sec.  
123.9 of this subchapter.
    (6) Defense articles excluded by paragraph (g) of this section or 
Supplement No. 1 to part 126 of this subchapter (e.g., USML Category XI 
(a)(3) electronically scanned array radar systems) that are embedded in 
a larger system that is eligible to ship under this section (e.g., a 
ship, an aircraft) must separately comply with any restrictions placed 
on that embedded defense article unless otherwise specified. A license 
or other authorization must be obtained from DDTC for the export, 
transfer, reexport, retransfer, or change in end-use of any such 
embedded defense article (for example, USML Category XI(a)(3) 
electronically scanned array radar systems that are excluded from this 
section by Supplement No. 1 to part 126 of this subchapter, Note 2 that 
are incorporated in an aircraft that is eligible to ship under this 
section continue to require separate authorization from DDTC for their 
export, transfer, reexport, or retransfer).
    (7) A license or prior approval from DDTC is not required for a 
transfer, retransfer, or reexport of an exported defense article or 
defense service under this section, if:
    (i) The transfer of defense articles or defense services is made by 
a member of the United States Community to Australian Department of 
Defence (ADOD) elements deployed outside the Territory of Australia and 
engaged in an authorized end-use (see paragraphs (e) and (f) of this 
section regarding authorized end-uses) using ADOD transmission channels 
or the provisions of this section (Note: For purposes of paragraph 
(h)(7)(i) through (iv) of this section, per Section 9(9) of the 
Australia Implementing Arrangement, ``ADOD Transmission channels'' 
includes electronic transmission of a defense article and transmission 
of a defense article by an ADOD contracted carrier or freight forwarder 
that merely transports or arranges transport for the defense article in 
this instance.);
    (ii) The transfer of defense articles or defense services is made by 
a member of the United States Community to an Approved Community member 
(either United States or Australian) that is operating in direct support 
of ADOD elements deployed outside the Territory of Australia and engaged 
in an authorized end-use (see paragraphs (e) and (f) of this section 
regarding authorized end-uses) using ADOD transmission channels or the 
provisions of this section;
    (iii) The reexport is made by a member of the Australian Community 
to ADOD elements deployed outside the Territory of Australia engaged in 
an authorized end-use (see paragraphs (e) and (f) of this section 
regarding authorized end-uses) using ADOD transmission channels or the 
provisions of this section;
    (iv) The reexport is made by a member of the Australian Community to 
an Approved Community member (either United States or Australian) that 
is operating in direct support of ADOD elements deployed outside the 
Territory of Australia engaged in an authorized end-use (see paragraphs 
(e) and (f) of this section regarding authorized end-uses) using ADOD 
transmission channels or the provisions of this section; or
    (v) The defense article or defense service will be delivered to the 
ADOD for an authorized end-use (see paragraphs (e) and (f) of this 
section regarding authorized end-uses); the ADOD may deploy the item as 
necessary when conducting official business within or outside the 
Territory of Australia. The item must remain under the effective control 
of the ADOD while deployed and access may not be provided to 
unauthorized third parties.
    (8) U.S. persons registered, or required to be registered, pursuant 
to part 122 of this subchapter and members of the Australian Community 
must immediately notify DDTC of any actual or proposed sale, retransfer, 
or reexport of a defense article or defense service on the U.S. 
Munitions List originally exported under this exemption to any of the 
countries listed in Sec.  126.1 of this subchapter or any person acting 
on behalf of such countries, whether within or outside the United

[[Page 577]]

States. Any person knowing or having reason to know of such a proposed 
or actual sale, reexport, or retransfer shall submit such information in 
writing to the Office of Defense Trade Controls Compliance, Directorate 
of Defense Trade Controls.
    (i) Transitions. (1) Any previous export of a defense article under 
a license or other approval of the U.S. Department of State remains 
subject to the conditions and limitations of the original license or 
authorization unless DDTC has approved in writing a transition to this 
section.
    (2) If a U.S. exporter desires to transition from an existing 
license or other approval to the use of the provisions of this section, 
the following is required:
    (i) The U.S. exporter must submit a written request to DDTC, which 
identifies the defense articles or defense services to be transitioned, 
the existing license(s) or other authorizations under which the defense 
articles or defense services were originally exported, and the Treaty-
eligible end-use for which the defense articles or defense services will 
be used. Any license(s) filed with U.S. Customs and Border Protection 
should remain on file until the exporter has received approval from DDTC 
to retire the license(s) and transition to this section. When this 
approval is conveyed to U.S. Customs and Border Protection by DDTC, the 
license(s) will be returned to DDTC by U.S. Customs and Border 
Protection in accord with existing procedures for the return of expired 
licenses in Sec.  123.22(c) of this subchapter.
    (ii) Any license(s) not filed with U.S. Customs and Border 
Protection must be returned to DDTC with a letter citing approval by 
DDTC to transition to this section as the reason for returning the 
license(s).
    (3) If a member of the Australian Community desires to transition 
defense articles received under an existing license or other approval to 
the processes established under the Treaty, the Australian Community 
member must submit a written request to the Government of Australia. The 
Government of Australia will submit the request to DDTC for review and 
approval. The defense article or defense service shall remain subject to 
the conditions and limitations of the existing license or other approval 
until the Australian Community member has received via the Government of 
Australia the approval from DDTC.
    (4) Authorized exporters identified in paragraph (b)(2) of this 
section who have exported a defense article or defense service that has 
subsequently been placed on the list of exempted items in Supplement No. 
1 to part 126 of this subchapter must review and adhere to the 
requirements in the relevant Federal Register notice announcing such 
removal. Once removed, the defense article or defense service will no 
longer be subject to this section, and such defense article or defense 
service previously exported shall remain on the U.S. Munitions List and 
be subject to the requirements of this subchapter unless the applicable 
Federal Register notice states otherwise. Subsequent reexport or 
retransfer must be made pursuant to Sec.  123.9 of this subchapter.
    (5) Any defense article or defense service transitioned from a 
license or other approval to treatment under this section must be marked 
in accordance with the requirements of paragraph (j) of this section.
    (j) Marking of exports. (1) All defense articles and defense 
services exported or transitioned pursuant to the Defense Trade 
Cooperation Treaty between the United States and Australia and this 
section shall be marked or identified prior to movement as follows:
    (i) For classified defense articles and defense services the 
standard marking or identification shall read``//CLASSIFICATION LEVEL 
USML//REL AUS and USA Treaty Community//.'' For example, for defense 
articles classified SECRET, the marking or identification shall be ``//
SECRET USML//REL AUS and USA Treaty Community//.''
    (ii) Unclassified defense articles and defense services exported 
under or transitioned pursuant to this section shall be handled while in 
Australia as ``Restricted USML'' and the standard marking or 
identification shall read``//RESTRICTED USML//REL AUS and USA Treaty 
Community//.''
    (2) Where U.S.-origin defense articles are returned to a member of 
the United

[[Page 578]]

States Community identified in paragraph (b) of this section, any 
defense articles marked or identified pursuant to paragraph (j)(1)(ii) 
of this section as ``//RESTRICTED USML//REL AUS and USA Treaty 
Community//'' will be considered unclassified and the marking or 
identification shall be removed; and
    (3) The standard marking and identification requirements are as 
follows:
    (i) Defense articles (other than technical data) shall be 
individually labeled with the appropriate identification detailed in 
paragraphs (j)(1) and (j)(2) of this section; or, where such labeling is 
impracticable (e.g., propellants, chemicals), shall be accompanied by 
documentation (such as contracts or invoices) clearly associating the 
defense articles with the appropriate markings as detailed in paragraphs 
(j)(1)(i) and (j)(1)(ii) of this section;
    (ii) Technical data (including data packages, technical papers, 
manuals, presentations, specifications, guides and reports), regardless 
of media or means of transmission (physical, oral, or electronic), shall 
be individually labeled with the appropriate identification detailed in 
paragraphs (j)(1) and (j)(2) of this section; or, where such labeling is 
impractical shall be accompanied by documentation (such as contracts or 
invoices) or verbal notification clearly associating the technical data 
with the appropriate markings as detailed in paragraphs (j)(1)(i) and 
(j)(1)(ii) of this section; and
    (4) Defense services shall be accompanied by documentation 
(contracts, invoices, shipping bills, or bills of lading) clearly 
labeled with the appropriate identification detailed in paragraphs 
(j)(1) and (j)(2) of this section.
    (5) The exporter shall incorporate the following statement as an 
integral part of the bill of lading and the invoice whenever defense 
articles are to be exported: ``These U.S. Munitions List commodities are 
authorized by the U.S. Government under the U.S.-Australia Defense Trade 
Cooperation Treaty for export only to Australia for use in approved 
projects, programs or operations by members of the Australian Community. 
They may not be retransferred or reexported or used outside of an 
approved project, program, or operation, either in their original form 
or after being incorporated into other end-items, without the prior 
written approval of the U.S. Department of State.''
    (k) Intermediate consignees. (1) Unclassified exports under this 
section may only be handled by:
    (i) U.S. intermediate consignees who are:
    (A) Exporters registered with DDTC and eligible;
    (B) Licensed customs brokers who are subject to background 
investigation and have passed a comprehensive examination administered 
by U.S. Customs and Border Protection; or
    (C) Commercial air freight and surface shipment carriers, freight 
forwarders, or other parties not exempt from registration under Sec.  
129.3(b)(3) of this subchapter, that are identified at the time of 
export as being on the U.S. Department of Defense Civil Reserve Air 
Fleet (CRAF) list of approved air carriers, a link to which is available 
on the DDTC Web site; or
    (ii) Australian intermediate consignees who are:
    (A) Members of the Australian Community; or
    (B) Freight forwarders, customs brokers, commercial air freight and 
surface shipment carriers, or other Australian parties that are 
identified at the time of export as being on the list of Authorized 
Australian Intermediate Consignees, which is available on the DDTC Web 
site.
    (2) Classified exports must comply with the security requirements of 
the National Industrial Security Program Operating Manual (DoD 5220.22-M 
and supplements or successors).
    (l) Records. (1) All exporters authorized pursuant to paragraph 
(b)(2) of this section who export defense articles or defense services 
pursuant to the Defense Trade Cooperation Treaty between the United 
States and Australia and this section shall maintain detailed records of 
their exports, imports, and transfers. Exporters shall also maintain 
detailed records of any reexports and retransfers approved or otherwise 
authorized by DDTC of defense articles or defense services subject to 
the Defense Trade Cooperation Treaty between the United States and 
Australia and this section. These records

[[Page 579]]

shall be maintained for a minimum of five years from the date of export, 
import, transfer, reexport, or retransfer and shall be made available 
upon request to DDTC or a person designated by DDTC (e.g., the 
Diplomatic Security Service) or U.S. Immigration and Customs 
Enforcement, or U.S. Customs and Border Protection. Records in an 
electronic format must be maintained using a process or system capable 
of reproducing all records on paper. Such records when displayed on a 
viewer, monitor, or reproduced on paper, must exhibit a high degree of 
legibility and readability. (For the purpose of this section, 
``legible'' and ``legibility'' mean the quality of a letter or numeral 
that enables the observer to identify it positively and quickly to the 
exclusion of all other letters or numerals. ``Readable'' and 
``readability'' means the quality of a group of letters or numerals 
being recognized as complete words or numbers.). These records shall 
consist of the following:
    (i) Port of entry/exit;
    (ii) Date of export/import;
    (iii) Method of export/import;
    (iv) Commodity code and description of the commodity, including 
technical data;
    (v) Value of export;
    (vi) Reference to this section and justification for export under 
the Treaty;
    (vii) End-user/end-use;
    (viii) Identification of all U.S. and foreign parties to the 
transaction;
    (ix) How the export was marked;
    (x) Security classification of the export;
    (xi) All written correspondence with the U.S. Government on the 
export;
    (xii) All information relating to political contributions, fees, or 
commissions furnished or obtained, offered, solicited, or agreed upon as 
outlined in paragraph (m) of this section;
    (xiii) Purchase order or contract;
    (xiv) Technical data actually exported;
    (xv) The Internal Transaction Number for the Electronic Export 
Information filing using U.S. Customs and Border Protection's electronic 
system(s);
    (xvi) All shipping documentation (including, but not limited to the 
airway bill, bill of lading, packing list, delivery verification, and 
invoice); and
    (xvii) Statement of Registration (Form DS-2032).
    (2) Filing of export information. All exporters of defense articles 
under the Defense Trade Cooperation Treaty between the United States and 
Australia and this section must electronically file Electronic Export 
Information (EEI) using U.S. Customs and Border Protection's electronic 
system(s), citing one of the four below referenced codes in the 
appropriate field in the EEI for each shipment:
    (i) For exports in support of United States and Australian combined 
military or counter-terrorism operations identify Sec.  126.16(e)(1) 
(the name or an appropriate description of the operation shall be placed 
in the appropriate field in the EEI, as well);
    (ii) For exports in support of United States and Australian 
cooperative security and defense research, development, production, and 
support programs identify Sec.  126.16(e)(2) (the name or an appropriate 
description of the program shall be placed in the appropriate field in 
the EEI, as well);
    (iii) For exports in support of mutually determined specific 
security and defense projects where the Government of Australia is the 
end-user identify Sec.  126.16(e)(3) (the name or an appropriate 
description of the project shall be placed in the appropriate field in 
the EEI, as well); or
    (iv) For exports that will have a U.S. Government end-use identify 
Sec.  126.16(e)(4) (the U.S. Government contract number or solicitation 
number (e.g., ``U.S. Government contract number XXXXX'') shall be placed 
in the appropriate field in the EEI, as well). Such exports must meet 
the required export documentation and filing guidelines, including for 
defense services, of Sec.  123.22(a), (b)(1), and (b)(2) of this 
subchapter.
    (m) Fees and commissions. All exporters authorized pursuant to 
paragraph (b)(2) of this section shall, with respect to each export, 
transfer, reexport, or retransfer, pursuant to the Defense Trade 
Cooperation Treaty between the United States and Australia and this 
section, submit a statement to DDTC containing the information 
identified in Sec.  130.10 of this subchapter relating to

[[Page 580]]

fees, commissions, and political contributions on contracts or other 
instruments valued in an amount of $500,000 or more.
    (n) Violations and enforcement. (1) Exports, transfers, reexports, 
and retransfers that do not comply with the conditions prescribed in 
this section will constitute violations of the Arms Export Control Act 
and this subchapter, and are subject to all relevant criminal, civil, 
and administrative penalties (see Sec.  127.1 of this subchapter), and 
may also be subject to penalty under other statutes or regulations.
    (2) U.S. Immigration and Customs Enforcement and U.S. Customs and 
Border Protection officers may take appropriate action to ensure 
compliance with this section as to the export or the attempted export of 
any defense article or technical data, including the inspection of 
loading or unloading of any vessel, vehicle, or aircraft.
    (3) U.S. Immigration and Customs Enforcement and U.S. Customs and 
Border Protection officers have the authority to investigate, detain, or 
seize any export or attempted export of defense articles or technical 
data that does not comply with this section or that is otherwise 
unlawful.
    (4) DDTC or a person designated by DDTC (e.g., the Diplomatic 
Security Service), U.S. Immigration and Customs Enforcement, or U.S. 
Customs and Border Protection may require the production of documents 
and information relating to any actual or attempted export, transfer, 
reexport, or retransfer pursuant to this section. Any foreign person 
refusing to provide such records within a reasonable period of time 
shall be suspended from the Australian Community and ineligible to 
receive defense articles or defense services pursuant to the exemption 
under this section or otherwise.
    (o) Procedures for legislative notification. (1) Exports pursuant to 
the Defense Trade Cooperation Treaty between the United States and 
Australia and this section by any person identified in paragraph (b)(2) 
of this section shall not take place until 30 days after DDTC has 
acknowledged receipt of a written notification from the exporter 
notifying the Department of State if the export involves one or more of 
the following:
    (i) A contract or other instrument for the export of major defense 
equipment in the amount of $25,000,000 or more, or for defense articles 
and defense services in the amount of $100,000,000 or more;
    (ii) A contract for the export of firearms controlled under Category 
I of the U.S. Munitions List of the International Traffic in Arms 
Regulations in an amount of $1,000,000 or more;
    (iii) A contract, regardless of value, for the manufacturing abroad 
of any item of significant military equipment (see Sec.  120.7 of this 
subchapter); or
    (iv) An amended contract that meets the requirements of paragraphs 
(o)(1)(i) through (o)(1)(iii) of this section.
    (2) The written notification required in paragraph (o)(1) of this 
section shall indicate the item/model number, general item description, 
U.S. Munitions List category, value, and quantity of items to be 
exported pursuant to the Defense Trade Cooperation Treaty between the 
United States and Australia and this section, and shall be accompanied 
by the following additional information:
    (i) The information identified in Sec.  130.10 and Sec.  130.11 of 
this subchapter;
    (ii) A statement regarding whether any offset agreement is final to 
be entered into in connection with the export and a description of any 
such offset agreement;
    (iii) A copy of the signed contract; and
    (iv) If the notification is for paragraph (o)(1)(ii) of this 
section, a statement of what will happen to the weapons in their 
inventory (for example, whether the current inventory will be sold, 
reassigned to another service branch, destroyed, etc.).
    (3) The Department of State will notify the Congress of exports that 
meet the requirements of paragraph (o)(1) of this section.

[78 FR 21526, Apr. 11, 2013, as amended at 81 FR 62008, Sept. 8, 2016; 
82 FR 19, Jan. 3, 2017]

[[Page 581]]



Sec.  126.17  Exemption pursuant to the Defense Trade Cooperation Treaty 
between the United States and the United Kingdom.

    (a) Scope of exemption and required conditions--(1) Definitions. (i) 
An export means, for purposes of this section only, the initial movement 
of defense articles or defense services from the United States Community 
to the United Kingdom Community.
    (ii) A transfer means, for purposes of this section only, the 
movement of a previously exported defense article or defense service by 
a member of the United Kingdom Community within the United Kingdom 
Community, or between a member of the United States Community and a 
member of the United Kingdom Community.
    (iii) Reexport and retransfer. (A) Reexport means, for purposes of 
this section only, movement of previously Exported Defense Articles by a 
member of the United Kingdom Community from the Approved Community to a 
location outside the Territory of the United Kingdom.
    (B) Retransfer means, for purposes of this section only, the 
movement of previously Exported Defense Articles by a member of the 
United Kingdom Community from the Approved Community to a location 
within the Territory of the United Kingdom.
    (iv) Intermediate consignee means, for purposes of this section, an 
approved entity or person who receives, but does not have access to, 
defense articles, including technical data, for the sole purpose of 
effecting onward movement to members of the Approved Community (see 
paragraph (k) of this section).
    (2) Persons or entities exporting or transferring defense articles 
or defense services are exempt from the otherwise applicable licensing 
requirements if such persons or entities comply with the regulations set 
forth in this section. Except as provided in Supplement No. 1 to part 
126 of this subchapter, Port Directors of U.S. Customs and Border 
Protection and postmasters shall permit the permanent and temporary 
export without a license from members of the United States Community to 
members of the United Kingdom Community (see paragraph (d) of this 
section regarding the identification of members of the United Kingdom 
Community) of defense articles and defense services not listed in 
Supplement No. 1 to part 126 of this subchapter, for the end-uses 
specifically identified pursuant to paragraphs (e) and (f) of this 
section. The purpose of this section is to specify the requirements to 
export, transfer, reexport, retransfer, or otherwise dispose of a 
defense article or defense service pursuant to the Defense Trade 
Cooperation Treaty between the United States and the United Kingdom. All 
persons must continue to comply with statutory and regulatory 
requirements outside of this subchapter concerning the import of defense 
articles and defense services or the possession or transfer of defense 
articles, including, but not limited to, regulations issued by the 
Bureau of Alcohol, Tobacco, Firearms and Explosives found at 27 CFR 
parts 447, 478, and 479, which are unaffected by the Defense Trade 
Cooperation Treaty between the United States and the United Kingdom and 
continue to apply fully to defense articles and defense services subject 
to either of the aforementioned treaties and the exemptions contained in 
this section.
    (3) Export. In order for an exporter to export a defense article or 
defense service pursuant to the Defense Trade Cooperation Treaty between 
the United States and the United Kingdom, all of the following 
conditions must be met:
    (i) The exporter must be registered with the Directorate of Defense 
Trade Controls (DDTC) and must be eligible, according to the 
requirements and prohibitions of the Arms Export Control Act, this 
subchapter, and other provisions of United States law, to obtain an 
export license (or other forms of authorization to export) from any 
agency of the U.S. Government without restriction (see paragraphs (b) 
and (c) of this section for specific requirements);
    (ii) The recipient of the export must be a member of the United 
Kingdom Community (see paragraph (d) of this section regarding the 
identification of members of the United Kingdom Community). United 
Kingdom non-governmental entities and facilities that become ineligible 
for such membership will be removed from the United Kingdom Community;

[[Page 582]]

    (iii) Intermediate consignees involved in the export must not be 
ineligible, according to the requirements and prohibitions of the Arms 
Export Control Act, this subchapter, and other provisions of United 
States law, to handle or receive a defense article or defense service 
without restriction (see paragraph (k) of this section for specific 
requirements);
    (iv) The export must be for an end-use specified in the Defense 
Trade Cooperation Treaty between the United States and the United 
Kingdom and mutually agreed to by the U.S. Government and the Government 
of the United Kingdom pursuant to the Defense Trade Cooperation Treaty 
between the United States and the United Kingdom and the Implementing 
Arrangement thereto (United Kingdom Implementing Arrangement) (see 
paragraphs (e) and (f) of this section regarding authorized end-uses);
    (v) The defense article or defense service is not excluded from the 
scope of the Defense Trade Cooperation Treaty between the United States 
and the United Kingdom (see paragraph (g) of this section and Supplement 
No. 1 to part 126 of this subchapter for specific information on the 
scope of items excluded from export under this exemption) and is marked 
or identified, at a minimum, as ``Restricted USML'' (see paragraph (j) 
of this section for specific requirements on marking exports);
    (vi) All required documentation of such export is maintained by the 
exporter and recipient and is available upon the request of the U.S. 
Government (see paragraph (l) of this section for specific 
requirements); and
    (vii) The Department of State has provided advance notification to 
the Congress, as required, in accordance with this section (see 
paragraph (o) of this section for specific requirements).
    (4) Transfers. In order for a member of the Approved Community 
(i.e., the United States Community and United Kingdom Community) to 
transfer a defense article or defense service under the Defense Trade 
Cooperation Treaty within the Approved Community, all of the following 
conditions must be met:
    (i) The defense article or defense service must have been previously 
exported in accordance with paragraph (a)(3) of this section or 
transitioned from a license or other approval in accordance with 
paragraph (i) of this section;
    (ii) The transferor and transferee of the defense article or defense 
service are members of the United Kingdom Community (see paragraph (d) 
of this section regarding the identification of members of the United 
Kingdom Community) or the United States Community (see paragraph (b) of 
this section for information on the United States Community/approved 
exporters);
    (iii) The transfer is required for an end-use specified in the 
Defense Trade Cooperation Treaty between the United States and the 
United Kingdom and mutually agreed to by the Government of the United 
States and the Government of the United Kingdom pursuant to the terms of 
the Defense Trade Cooperation Treaty between the United States and the 
United Kingdom and the United Kingdom Implementing Arrangement (see 
paragraphs (e) and (f) of this section regarding authorized end-uses);
    (iv) The defense article or defense service is not identified in 
paragraph (g) of this section and Supplement No. 1 to part 126 of this 
subchapter as ineligible for export under this exemption, and is marked 
or otherwise identified, at a minimum, as ``Restricted USML'' (see 
paragraph (j) of this section for specific requirements on marking 
exports);
    (v) All required documentation of such transfer is maintained by the 
transferor and transferee and is available upon the request of the U.S. 
Government (see paragraph (l) of this section for specific 
requirements); and
    (vi) The Department of State has provided advance notification to 
the Congress in accordance with this section (see paragraph (o) of this 
section for specific requirements).
    (5) This section does not apply to the export of defense articles or 
defense services from the United States pursuant to the Foreign Military 
Sales program. Once such items are delivered to Her Majesty's 
Government, they may be treated as if they were exported pursuant to the 
Treaty and then must be marked, identified, transmitted, stored and 
handled in accordance with the

[[Page 583]]

Treaty, the United Kingdom Implementing Arrangement, and the provisions 
of this section.
    (b) United States Community. The following persons compose the 
United States Community and may export or transfer defense articles and 
defense services pursuant to the Defense Trade Cooperation Treaty 
between the United States and the United Kingdom:
    (1) Departments and agencies of the U.S. Government, including their 
personnel acting in their official capacity, with, as appropriate, a 
security clearance and a need-to-know; and
    (2) Non-governmental U.S. persons registered with DDTC and eligible, 
according to the requirements and prohibitions of the Arms Export 
Control Act, this subchapter, and other provisions of United States law, 
to obtain an export license (or other form of authorization to export) 
from any agency of the U.S. Government without restriction, including 
their employees acting in their official capacity with, as appropriate, 
a security clearance and a need-to-know.
    (c) An exporter that is otherwise an authorized exporter pursuant to 
paragraph (b) of this section may not export or transfer pursuant to the 
Defense Trade Cooperation Treaty between the United States and the 
United Kingdom if the exporter's president, chief executive officer, any 
vice-president, any other senior officer or official (e.g., comptroller, 
treasurer, general counsel); any member of the board of directors of the 
exporter; any party to the export; or any source or manufacturer is 
ineligible to receive export licenses (or other forms of authorization 
to export) from any agency of the U.S. Government.
    (d) United Kingdom Community. For purposes of the exemption provided 
by this section, the United Kingdom Community consists of:
    (1) Her Majesty's Government entities and facilities identified as 
members of the Approved Community through the DDTC Web site at the time 
of a transaction under this section; and
    (2) The non-governmental United Kingdom entities and facilities 
identified as members of the Approved Community through the DDTC Web 
site (www.pmddtc.state.gov) at the time of a transaction under this 
section; non-governmental United Kingdom entities and facilities that 
become ineligible for such membership will be removed from the United 
Kingdom Community.
    (e) Authorized End-uses. The following end-uses, subject to 
paragraph (f) of this section, are specified in the Defense Trade 
Cooperation Treaty between the United States and the United Kingdom:
    (1) United States and United Kingdom combined military or counter-
terrorism operations;
    (2) United States and United Kingdom cooperative security and 
defense research, development, production, and support programs;
    (3) Mutually determined specific security and defense projects where 
the Government of the United Kingdom is the end-user; or
    (4) U.S. Government end-use.
    (f) Procedures for identifying authorized end-uses pursuant to 
paragraph (e) of this section:
    (1) Operations, programs, and projects that can be publicly 
identified will be posted on the DDTC Web site;
    (2) Operations, programs, and projects that cannot be publicly 
identified will be confirmed in written correspondence from DDTC; or
    (3) U.S. Government end-use will be identified specifically in a 
U.S. Government contract or solicitation as being eligible under the 
Treaty.
    (4) No other operations, programs, projects, or end-uses qualify for 
this exemption.
    (g) Items eligible under this section. With the exception of items 
listed in Supplement No. 1 to part 126 of this subchapter, defense 
articles and defense services may be exported under this section subject 
to the following:
    (1) An exporter authorized pursuant to paragraph (b)(2) of this 
section may market a defense article to members of the United Kingdom 
Community if that exporter has been licensed by DDTC to export (as 
defined by Sec.  120.17 of this subchapter) the identical type of 
defense article to any foreign person and end-use of the article is for 
an end-use identified in paragraph (e) of this section.

[[Page 584]]

    (2) The export of any defense article specific to the existence of 
(e.g., reveals the existence of or details of) anti-tamper measures made 
at U.S. Government direction always requires prior written approval from 
DDTC.
    (3) U.S.-origin classified defense articles or defense services may 
be exported only pursuant to a written request, directive, or contract 
from the U.S. Department of Defense that provides for the export of the 
classified defense article(s) or defense service(s).
    (4) U.S.-origin defense articles specific to developmental systems 
that have not obtained written Milestone B approval from the U.S. 
Department of Defense milestone approval authority are not eligible for 
export unless such export is pursuant to a written solicitation or 
contract issued or awarded by the U.S. Department of Defense for an end-
use identified pursuant to paragraph (e)(1), (2), or (4) of this 
section.
    (5) Defense articles excluded by paragraph (g) of this section or 
Supplement No. 1 to part 126 of this subchapter (e.g., USML Category XI 
(a)(3) electronically scanned array radar excluded by Note 2) that are 
embedded in a larger system that is eligible to ship under this section 
(e.g., a ship, an aircraft) must separately comply with any restrictions 
placed on that embedded defense article under this subchapter. The 
exporter must obtain a license or other authorization from DDTC for the 
export of such embedded defense articles (for example, USML Category XI 
(a)(3) electronically scanned array radar systems that are exempt from 
this section that are incorporated in an aircraft that is eligible to 
ship under this section continue to require separate authorization from 
DDTC for their export, transfer, reexport, or retransfer).
    (6) No liability shall be incurred by or attributed to the U.S. 
Government in connection with any possible infringement of privately 
owned patent or proprietary rights, either domestic or foreign, by 
reason of an export conducted pursuant to this section.
    (7) Sales by exporters made through the U.S. Government shall not 
include either charges for patent rights in which the U.S. Government 
holds a royalty-free license, or charges for information which the U.S. 
Government has a right to use and disclose to others, which is in the 
public domain, or which the U.S. Government has acquired or is entitled 
to acquire without restrictions upon its use and disclosure to others.
    (8) Defense articles on the European Union Dual Use List (as 
described in Annex 1 to EC Council Regulation No. 428/2009) are not 
eligible for export under the Defense Trade Cooperation Treaty between 
the United States and the United Kingdom. These articles have been 
identified and included in Supplement No.1 to part 126.
    (h) Transfers, retransfers, and reexports. (1) Any transfer of a 
defense article or defense service not exempted in Supplement No. 1 to 
part 126 of this subchapter by a member of the United Kingdom Community 
(see paragraph (d) of this section for specific information on the 
identification of the Community) to another member of the United Kingdom 
Community or the United States Community for an end-use that is 
authorized by this exemption (see paragraphs (e) and (f) of this section 
regarding authorized end-uses) is authorized under this exemption.
    (2) Any transfer or other provision of a defense article or defense 
service for an end-use that is not authorized by the exemption provided 
by this section is prohibited without a license or the prior written 
approval of DDTC (see paragraphs (e) and (f) of this section regarding 
authorized end-uses).
    (3) Any retransfer or reexport, or other provision of a defense 
article or defense service by a member of the United Kingdom Community 
to a foreign person that is not a member of the United Kingdom 
Community, or to a U.S. person that is not a member of the United States 
Community, is prohibited without a license or the prior written approval 
of DDTC (see paragraph (d) of this section for specific information on 
the identification of the United Kingdom Community).
    (4) Any change in the use of a defense article or defense service 
previously exported, transferred, or obtained under this exemption by 
any foreign person, including a member of the United Kingdom Community, 
to an end-use

[[Page 585]]

that is not authorized by this exemption is prohibited without a license 
or other written approval of DDTC (see paragraphs (e) and (f) of this 
section regarding authorized end-uses).
    (5) Any retransfer, reexport, or change in end-use requiring such 
approval of the U.S. Government shall be made in accordance with Sec.  
123.9 of this subchapter.
    (6) Defense articles excluded by paragraph (g) of this section or 
Supplement No. 1 to part 126 of this subchapter (e.g., USML Category XI 
(a)(3) electronically scanned array radar systems) that are embedded in 
a larger system that is eligible to ship under this section (e.g., a 
ship, an aircraft) must separately comply with any restrictions placed 
on that embedded defense article unless otherwise specified. A license 
or other authorization must be obtained from DDTC for the export, 
transfer, reexport, retransfer, or change in end-use of any such 
embedded defense article (for example, USML Category XI(a)(3) 
electronically scanned array radar systems that are excluded from this 
section by Supplement No. 1 to part 126 of this subchapter, Note 2 that 
are incorporated in an aircraft that is eligible to ship under this 
section continue to require separate authorization from DDTC for their 
export, transfer, reexport, or retransfer).
    (7) A license or prior approval from DDTC is not required for a 
transfer, retransfer, or reexport of an exported defense article or 
defense service under this section, if:
    (i) The transfer of defense articles or defense services is made by 
a member of the United States Community to United Kingdom Ministry of 
Defence (UK MOD) elements deployed outside the Territory of the United 
Kingdom and engaged in an authorized end-use (see paragraphs (e) and (f) 
of this section regarding authorized end-uses) using United Kingdom 
Armed Forces transmission channels or the provisions of this section;
    (ii) The transfer of defense articles or defense services is made by 
a member of the United States Community to an Approved Community member 
(either United States or UK) that is operating in direct support of UK 
MOD elements deployed outside the Territory of the United Kingdom and 
engaged in an authorized end-use (see paragraphs (e) and (f) of this 
section regarding authorized end-uses) using United Kingdom Armed Forces 
transmission channels or the provisions of this section;
    (iii) The reexport is made by a member of the United Kingdom 
Community to UK MOD elements deployed outside the Territory of the 
United Kingdom engaged in an authorized end-use (see paragraphs (e) and 
(f) of this section regarding authorized end-uses) using United Kingdom 
Armed Forces transmission channels or the provisions of this section;
    (iv) The reexport is made by a member of the United Kingdom 
Community to an Approved Community member (either U.S. or UK) that is 
operating in direct support of UK MOD elements deployed outside the 
Territory of the United Kingdom engaged in an authorized end-use (see 
paragraphs (e) and (f) of this section regarding authorized end-uses) 
using United Kingdom Armed Forces transmission channels or the 
provisions of this section; or
    (v) The defense article or defense service will be delivered to the 
UK MOD for an authorized end-use (see paragraphs (e) and (f) of this 
section regarding authorized end-uses); the UK MOD may deploy the item 
as necessary when conducting official business within or outside the 
Territory of the United Kingdom. The item must remain under the 
effective control of the UK MOD while deployed and access may not be 
provided to unauthorized third parties.
    (8) U.S. persons registered, or required to be registered, pursuant 
to part 122 of this subchapter and members of the United Kingdom 
Community must immediately notify DDTC of any actual or proposed sale, 
retransfer, or reexport of a defense article or defense service on the 
U.S. Munitions List originally exported under this exemption to any of 
the countries listed in Sec.  126.1 of this subchapter or any person 
acting on behalf of such countries, whether within or outside the United 
States. Any person knowing or having reason to know of such a proposed 
or actual sale, reexport, or retransfer

[[Page 586]]

shall submit such information in writing to the Office of Defense Trade 
Controls Compliance, Directorate of Defense Trade Controls.
    (i) Transitions. (1) Any previous export of a defense article under 
a license or other approval of the U.S. Department of State remains 
subject to the conditions and limitations of the original license or 
authorization unless DDTC has approved in writing a transition to this 
section.
    (2) If a U.S. exporter desires to transition from an existing 
license or other approval to the use of the provisions of this section, 
the following is required:
    (i) The U.S. exporter must submit a written request to DDTC, which 
identifies the defense articles or defense services to be transitioned, 
the existing license(s) or other authorizations under which the defense 
articles or defense services were originally exported, and the Treaty-
eligible end-use for which the defense articles or defense services will 
be used. Any license(s) filed with U.S. Customs and Border Protection 
should remain on file until the exporter has received approval from DDTC 
to retire the license(s) and transition to this section. When this 
approval is conveyed to U.S. Customs and Border Protection by DDTC, the 
license(s) will be returned to DDTC by U.S. Customs and Border 
Protection in accord with existing procedures for the return of expired 
licenses in Sec.  123.22(c) of this subchapter.
    (ii) Any license(s) not filed with U.S. Customs and Border 
Protection must be returned to DDTC with a letter citing approval by 
DDTC to transition to this section as the reason for returning the 
license(s).
    (3) If a member of the United Kingdom Community desires to 
transition defense articles received under an existing license or other 
approval to the processes established under the Treaty, the United 
Kingdom Community member must submit a written request to DDTC, either 
directly or through the original U.S. exporter, which identifies the 
defense articles or defense services to be transitioned, the existing 
license(s) or other authorizations under which the defense articles or 
defense services were received, and the Treaty-eligible end-use (see 
paragraphs (e) and (f) of this section regarding authorized end-uses) 
for which the defense articles or defense services will be used. The 
defense article or defense service shall remain subject to the 
conditions and limitations of the existing license or other approval 
until the United Kingdom Community member has received approval from 
DDTC.
    (4) Authorized exporters identified in paragraph (b)(2) of this 
section who have exported a defense article or defense service that has 
subsequently been placed on the list of exempted items in Supplement No. 
1 to part 126 of this subchapter must review and adhere to the 
requirements in the relevant Federal Register notice announcing such 
removal. Once removed, the defense article or defense service will no 
longer be subject to this section, and such defense article or defense 
service previously exported shall remain on the U.S. Munitions List and 
be subject to the requirements of this subchapter unless the applicable 
Federal Register notice states otherwise. Subsequent reexport or 
retransfer must be made pursuant to Sec.  123.9 of this subchapter.
    (5) Any defense article or defense service transitioned from a 
license or other approval to treatment under this section must be marked 
in accordance with the requirements of paragraph (j) of this section.
    (j) Marking of exports. (1) All defense articles and defense 
services exported or transitioned pursuant to the Defense Trade 
Cooperation Treaty between the United States and the United Kingdom and 
this section shall be marked or identified prior to movement as follows:
    (i) For classified defense articles and defense services the 
standard marking or identification shall read ``//CLASSIFICATION LEVEL 
USML//REL USA and GBR Treaty Community//.'' For example, for defense 
articles classified SECRET, the marking or identification shall be ``//
SECRET USML//REL USA and GBR Treaty Community//.''
    (ii) Unclassified defense articles and defense services exported 
under or transitioned pursuant to this section shall be handled while in 
the UK as ``Restricted USML'' and the standard marking or identification 
shall read ``//

[[Page 587]]

RESTRICTED USML//REL USA and GBR Treaty Community//.''
    (2) Where U.S.-origin defense articles are returned to a member of 
the United States Community identified in paragraph (b) of this section, 
any defense articles marked or identified pursuant to paragraph 
(j)(1)(ii) of this section as ``//RESTRICTED USML//REL USA and GBR 
Treaty Community//'' will be considered unclassified and the marking or 
identification shall be removed; and
    (3) The standard marking and identification requirements are as 
follows:
    (i) Defense articles (other than technical data) shall be 
individually labeled with the appropriate identification detailed in 
paragraphs (j)(1) and (j)(2) of this section; or, where such labeling is 
impracticable (e.g., propellants, chemicals), shall be accompanied by 
documentation (such as contracts or invoices) clearly associating the 
defense articles with the appropriate markings as detailed in paragraphs 
(j)(1)(i) and (j)(1)(ii) of this section;
    (ii) Technical data (including data packages, technical papers, 
manuals, presentations, specifications, guides and reports), regardless 
of media or means of transmission (physical, oral, or electronic), shall 
be individually labeled with the appropriate identification detailed in 
paragraphs (j)(1) and (j)(2) of this section; or, where such labeling is 
impractical shall be accompanied by documentation (such as contracts or 
invoices) or verbal notification clearly associating the technical data 
with the appropriate markings as detailed in paragraphs (j)(1)(i) and 
(j)(1)(ii) of this section; and
    (4) Defense services shall be accompanied by documentation 
(contracts, invoices, shipping bills, or bills of lading) clearly 
labeled with the appropriate identification detailed in paragraphs 
(j)(1) and (j)(2) of this section.
    (5) The exporter shall incorporate the following statement as an 
integral part of the bill of lading and the invoice whenever defense 
articles are to be exported: ``These U.S. Munitions List commodities are 
authorized by the U.S. Government under the U.S.-UK Defense Trade 
Cooperation Treaty for export only to United Kingdom for use in approved 
projects, programs or operations by members of the United Kingdom 
Community. They may not be retransferred or reexported or used outside 
of an approved project, program, or operation, either in their original 
form or after being incorporated into other end-items, without the prior 
written approval of the U.S. Department of State.''
    (k) Intermediate consignees. (1) Unclassified exports under this 
section may only be handled by:
    (i) U.S. intermediate consignees who are:
    (A) Exporters registered with DDTC and eligible;
    (B) Licensed customs brokers who are subject to background 
investigation and have passed a comprehensive examination administered 
by U.S. Customs and Border Protection; or
    (C) Commercial air freight and surface shipment carriers, freight 
forwarders, or other parties not exempt from registration under Sec.  
129.3(b)(3) of this subchapter, that are identified at the time of 
export as being on the U.S. Department of Defense Civil Reserve Air 
Fleet (CRAF) list of approved air carriers, a link to which is available 
on the DDTC Web site; or
    (ii) United Kingdom intermediate consignees who are:
    (A) Members of the United Kingdom Community; or
    (B) Freight forwarders, customs brokers, commercial air freight and 
surface shipment carriers, or other United Kingdom parties that are 
identified at the time of export as being on the list of Authorized 
United Kingdom Intermediate Consignees, which is available on the DDTC 
Web site.
    (2) Classified exports must comply with the security requirements of 
the National Industrial Security Program Operating Manual (DoD 5220.22-M 
and supplements or successors).
    (l) Records. (1) All exporters authorized pursuant to paragraph 
(b)(2) of this section who export defense articles or defense services 
pursuant to the Defense Trade Cooperation Treaty between the United 
States and the United Kingdom and this section shall maintain detailed 
records of their exports, imports, and transfers. Exporters shall also 
maintain detailed records of any reexports and retransfers approved or 
otherwise authorized by

[[Page 588]]

DDTC of defense articles or defense services subject to the Defense 
Trade Cooperation Treaty between the United States and the United 
Kingdom and this section. These records shall be maintained for a 
minimum of five years from the date of export, import, transfer, 
reexport, or retransfer and shall be made available upon request to DDTC 
or a person designated by DDTC (e.g., U.S. Department of State's Bureau 
of Diplomatic Security) or U.S. Immigration and Customs Enforcement, or 
U.S. Customs and Border Protection. Records in an electronic format must 
be maintained using a process or system capable of reproducing all 
records on paper. Such records when displayed on a viewer, monitor, or 
reproduced on paper, must exhibit a high degree of legibility and 
readability. (For the purpose of this section, ``legible'' and 
``legibility'' mean the quality of a letter or numeral that enables the 
observer to identify it positively and quickly to the exclusion of all 
other letters or numerals. ``Readable'' and ``readability'' means the 
quality of a group of letters or numerals being recognized as complete 
words or numbers.) These records shall consist of the following:
    (i) Port of entry/exit;
    (ii) Date of export/import;
    (iii) Method of export/import;
    (iv) Commodity code and description of the commodity, including 
technical data;
    (v) Value of export;
    (vi) Reference to this section and justification for export under 
the Treaty;
    (vii) End-user/end-use;
    (viii) Identification of all U.S. and foreign parties to the 
transaction;
    (ix) How the export was marked;
    (x) Security classification of the export;
    (xi) All written correspondence with the U.S. Government on the 
export;
    (xii) All information relating to political contributions, fees, or 
commissions furnished or obtained, offered, solicited, or agreed upon as 
outlined in paragraph (m) of this section;
    (xiii) Purchase order or contract;
    (xiv) Technical data actually exported;
    (xv) The Internal Transaction Number for the Electronic Export 
Information filing using U.S. Customs and Border Protection's electronic 
system(s);
    (xvi) All shipping documentation (including, but not limited to the 
airway bill, bill of lading, packing list, delivery verification, and 
invoice); and
    (xvii) Statement of Registration (Form DS-2032).
    (2) Filing of export information. All exporters of defense articles 
under the Defense Trade Cooperation Treaty between the United States and 
the United Kingdom and this section must electronically file Electronic 
Export Information (EEI) using U.S. Customs and Border Protection's 
electronic system(s), citing one of the four below referenced codes in 
the appropriate field in the EEI for each shipment:
    (i) For exports in support of United States and United Kingdom 
combined military or counter-terrorism operations identify Sec.  
126.17(e)(1) (the name or an appropriate description of the operation 
shall be placed in the appropriate field in the EEI, as well);
    (ii) For exports in support of United States and United Kingdom 
cooperative security and defense research, development, production, and 
support programs identify Sec.  126.17(e)(2) (the name or an appropriate 
description of the program shall be placed in the appropriate field in 
the EEI, as well);
    (iii) For exports in support of mutually determined specific 
security and defense projects where the Government of the United Kingdom 
is the end-user identify Sec.  126.17(e)(3) (the name or an appropriate 
description of the project shall be placed in the appropriate field in 
the EEI, as well); or
    (iv) For exports that will have a U.S. Government end-use identify 
Sec.  126.17(e)(4) (the U.S. Government contract number or solicitation 
number (e.g., ``U.S. Government contract number XXXXX'') shall be placed 
in the appropriate field in the EEI, as well). Such exports must meet 
the required export documentation and filing guidelines, including for 
defense services, of Sec.  123.22(a), (b)(1), and (b)(2) of this 
subchapter.
    (m) Fees and commissions. All exporters authorized pursuant to 
paragraph (b)(2) of this section shall, with respect to each export, 
transfer, reexport, or retransfer, pursuant to the Defense

[[Page 589]]

Trade Cooperation Treaty between the United States and the United 
Kingdom and this section, submit a statement to DDTC containing the 
information identified in Sec.  130.10 of this subchapter relating to 
fees, commissions, and political contributions on contracts or other 
instruments valued in an amount of $500,000 or more.
    (n) Violations and enforcement. (1) Exports, transfers, reexports, 
and retransfers that do not comply with the conditions prescribed in 
this section will constitute violations of the Arms Export Control Act 
and this subchapter, and are subject to all relevant criminal, civil, 
and administrative penalties (see Sec.  127.1 of this subchapter), and 
may also be subject to penalty under other statutes or regulations.
    (2) U.S. Immigration and Customs Enforcement and U.S. Customs and 
Border Protection officers may take appropriate action to ensure 
compliance with this section as to the export or the attempted export of 
any defense article or technical data, including the inspection of 
loading or unloading of any vessel, vehicle, or aircraft.
    (3) U.S. Immigration and Customs Enforcement and U.S. Customs and 
Border Protection officers have the authority to investigate, detain, or 
seize any export or attempted export of defense articles or technical 
data that does not comply with this section or that is otherwise 
unlawful.
    (4) DDTC or a person designated by DDTC (e.g., U.S. Department of 
State's Bureau of Diplomatic Security), U.S. Immigration and Customs 
Enforcement, or U.S. Customs and Border Protection may require the 
production of documents and information relating to any actual or 
attempted export, transfer, reexport, or retransfer pursuant to this 
section. Any foreign person refusing to provide such records within a 
reasonable period of time shall be suspended from the United Kingdom 
Community and ineligible to receive defense articles or defense services 
pursuant to the exemption under this section or otherwise.
    (o) Procedures for legislative notification. (1) Exports pursuant to 
the Defense Trade Cooperation Treaty between the United States and the 
United Kingdom and this section by any person identified in paragraph 
(b)(2) of this section shall not take place until 30 days after DDTC has 
acknowledged receipt of a written notification from the exporter 
notifying the Department of State if the export involves one or more of 
the following:
    (i) A contract or other instrument for the export of major defense 
equipment in the amount of $25,000,000 or more, or for defense articles 
and defense services in the amount of $100,000,000 or more;
    (ii) A contract for the export of firearms controlled under Category 
I of the U.S. Munitions List of the International Traffic in Arms 
Regulations in an amount of $1,000,000 or more;
    (iii) A contract, regardless of value, for the manufacturing abroad 
of any item of significant military equipment (see Sec.  120.7 of this 
subchapter); or
    (iv) An amended contract that meets the requirements of paragraphs 
(o)(1)(i) through (o)(1)(iii) of this section.
    (2) The written notification required in paragraph (o)(1) of this 
section shall indicate the item/model number, general item description, 
U.S. Munitions List category, value, and quantity of items to be 
exported pursuant to the Defense Trade Cooperation Treaty between the 
United States and the United Kingdom and this section, and shall be 
accompanied by the following additional information:
    (i) The information identified in Sec.  130.10 and Sec.  130.11 of 
this subchapter;
    (ii) A statement regarding whether any offset agreement is final to 
be entered into in connection with the export and a description of any 
such offset agreement;
    (iii) A copy of the signed contract; and
    (iv) If the notification is for paragraph (o)(1)(ii) of this 
section, a statement of what will happen to the weapons in their 
inventory (for example, whether the current inventory will be sold, 
reassigned to another service branch, destroyed, etc.).
    (3) The Department of State will notify the Congress of exports that 
meet

[[Page 590]]

the requirements of paragraph (o)(1) of this section.

[77 FR 16601, Mar. 21, 2012, as amended at 79 FR 8085, Feb. 11, 2014; 79 
FR 21616, Apr. 17, 2014; 81 FR 62008, Sept. 8, 2016; 82 FR 19, Jan. 3, 
2017]



Sec.  126.18  Exemptions regarding intra-company, intra-organization, 
and intra-governmental transfers to employees who are dual nationals 
or third-country nationals.

    (a) Subject to the requirements of paragraphs (b) and (c) of this 
section and notwithstanding any other provisions of this part, and where 
the exemption provided in paragraph (d) of this section cannot be 
implemented because of applicable domestic laws, no approval is needed 
from the Directorate of Defense Trade Controls (DDTC) for the transfer 
of unclassified defense articles, which includes technical data (see 
Sec.  120.6), to or within a foreign business entity, foreign 
governmental entity, or international organization that is an authorized 
end-user or consignee (including approved sub-licensees) for those 
defense articles, including the transfer to dual nationals or third-
country nationals who are bona fide regular employees, directly employed 
by the foreign consignee or end-user. The transfer of defense articles 
pursuant to this section must take place completely within the physical 
territory of the country where the end-user is located, where the 
governmental entity or international organization conducts official 
business, or where the consignee operates, and be within the scope of an 
approved export license, other export authorization, or license 
exemption.
    (b) The provisions of Sec.  127.1(b) are applicable to any transfer 
under this section. As a condition of transferring to foreign person 
employees described in paragraph (a) of this section any defense article 
under this provision, any foreign business entity, foreign governmental 
entity, or international organization, as a ``foreign person'' within 
the meaning of Sec.  120.16, that receives a defense article, must have 
effective procedures to prevent diversion to destinations, entities, or 
for purposes other than those authorized by the applicable export 
license or other authorization (e.g., written approval or exemption) in 
order to comply with the applicable provisions of the Arms Export 
Control Act and the ITAR.
    (c) The end-user or consignee may satisfy the condition in paragraph 
(b) of this section, prior to transferring defense articles, by 
requiring:
    (1) A security clearance approved by the host nation government for 
its employees, or
    (2) The end-user or consignee to have in place a process to screen 
its employees and to have executed a Non-Disclosure Agreement that 
provides assurances that the employee will not transfer any defense 
articles to persons or entities unless specifically authorized by the 
consignee or end-user. The end-user or consignee must screen its 
employees for substantive contacts with restricted or prohibited 
countries listed in Sec.  126.1. Substantive contacts include regular 
travel to such countries, recent or continuing contact with agents, 
brokers, and nationals of such countries, continued demonstrated 
allegiance to such countries, maintenance of business relationships with 
persons from such countries, maintenance of a residence in such 
countries, receiving salary or other continuing monetary compensation 
from such countries, or acts otherwise indicating a risk of diversion. 
Although nationality does not, in and of itself, prohibit access to 
defense articles, an employee who has substantive contacts with persons 
from countries listed in Sec.  126.1(d)(1) shall be presumed to raise a 
risk of diversion, unless DDTC determines otherwise. End-users and 
consignees must maintain a technology security/clearance plan that 
includes procedures for screening employees for such substantive 
contacts and maintain records of such screening for five years. The 
technology security/clearance plan and screening records shall be made 
available to DDTC or its agents for civil and criminal law enforcement 
purposes upon request.
    (d) Notwithstanding any other provisions of this subchapter, no 
approval is needed from the Directorate of Defense Trade Controls (DDTC) 
for the reexport of unclassified defense articles or defense services to 
individuals who are dual national or third-country national

[[Page 591]]

employees of a foreign business entity, foreign governmental entity, or 
international organization, that is an authorized end-user, foreign 
signatory, or consignee (including approved sub-licensees) for those 
defense articles or defense services, when such individuals are:
    (1) Regular employees of the foreign business entity, foreign 
governmental entity, or international organization;
    (2) Nationals exclusively of countries that are members of NATO, the 
European Union, Australia, Japan, New Zealand, or Switzerland;
    (3) Within the physical territories of the countries listed in 
paragraph (d)(2) of this section or the United States during the 
reexport;
    (4) Signatory to a Non-Disclosure Agreement, unless their employer 
is a signatory or sublicensee to an agreement under Sec.  124.1 
authorizing those defense articles or defense services; and
    (5) Not the recipient of any permanent transfer of hardware.

[76 FR 28177, May 16, 2011, as amended at 81 FR 35617, June 3, 2016; 81 
FR 62008, Sept. 8, 2016; 81 FR 66807, Sept. 29, 2016]



                    Sec. Supplement No. 1 to Part 126

   [Supplement No. 1*--*An ``X'' in the chart indicates that the item is excluded from use under the exemption
  referenced in the top of the column. An item excluded in any one row is excluded regardless of whether other
                          rows may contain a description that would include the item.]
----------------------------------------------------------------------------------------------------------------
                                                                          (CA) Sec.     (AS) Sec.     (UK) Sec.
             USML Category                         Exclusion                126.5        126.16        126.17
----------------------------------------------------------------------------------------------------------------
I-XXI.................................  Classified defense articles               X             X             X
                                         and services. See Note 1.
I-XXI.................................  Defense articles listed in the            X             X             X
                                         Missile Technology Control
                                         Regime (MTCR) Annex.
I-XXI.................................  U.S. origin defense articles    ............            X             X
                                         and services used for
                                         marketing purposes and not
                                         previously licensed for
                                         export in accordance with
                                         this subchapter.
I-XXI.................................  Defense services for or                   X
                                         technical data related to
                                         defense articles identified
                                         in this supplement as
                                         excluded from the Canadian
                                         exemption.
I-XXI.................................  Any transaction involving the             X
                                         export of defense articles
                                         and services for which
                                         congressional notification is
                                         required in accordance with
                                         Sec.   123.15 and Sec.
                                         124.11 of this subchapter.
                                         See Note 17.
I-XXI.................................  U.S. origin defense articles    ............            X             X
                                         and services specific to
                                         developmental systems that
                                         have not obtained written
                                         Milestone B approval from the
                                         U.S. Department of Defense
                                         milestone approval authority,
                                         unless such export is
                                         pursuant to a written
                                         solicitation or contract
                                         issued or awarded by the U.S.
                                         Department of Defense for an
                                         end-use identified in
                                         paragraph (e)(1), (e)(2), or
                                         (e)(4) of Sec.   126.16 or
                                         Sec.   126.17 of this
                                         subchapter and is consistent
                                         with other exclusions of this
                                         supplement.
I-XXI.................................  Nuclear weapons strategic                 X
                                         delivery systems and all
                                         components, parts,
                                         accessories, and attachments
                                         specifically designed for
                                         such systems and associated
                                         equipment.
I-XXI.................................  Defense articles and services   ............            X             X
                                         specific to the existence or
                                         method of compliance with
                                         anti-tamper measures, where
                                         such measures are readily
                                         identifiable, made at
                                         originating Government
                                         direction.
I-XXI.................................  Defense articles and services   ............            X             X
                                         specific to reduced
                                         observables or counter low
                                         observables in any part of
                                         the spectrum. See Note 2.
I-XXI.................................  Defense articles and services   ............            X             X
                                         specific to sensor fusion
                                         beyond that required for
                                         display or identification
                                         correlation. See Note 3.
I-XXI.................................  Defense articles and services   ............            X             X
                                         specific to the automatic
                                         target acquisition or
                                         recognition and cueing of
                                         multiple autonomous unmanned
                                         systems.
I-XXI.................................  Nuclear power generating        ............  ............            X
                                         equipment or propulsion
                                         equipment (e.g., nuclear
                                         reactors), specifically
                                         designed for military use and
                                         components therefor,
                                         specifically designed for
                                         military use. See also Sec.
                                         123.20 of this subchapter.
I-XXI.................................  Libraries (parametric           ............  ............            X
                                         technical databases)
                                         specially designed for
                                         military use with equipment
                                         controlled on the USML. See
                                         Note 13.

[[Page 592]]

 
I-XXI.................................  Defense services or technical             X
                                         data specific to applied
                                         research as defined in Sec.
                                         125.4(c)(3) of this
                                         subchapter, design
                                         methodology as defined in
                                         Sec.   125.4(c)(4) of this
                                         subchapter, engineering
                                         analysis as defined in Sec.
                                         125.4(c)(5) of this
                                         subchapter, or manufacturing
                                         know-how as defined in Sec.
                                         125.4(c)(6) of this
                                         subchapter. See Note 12.
I-XXI.................................  Defense services other than               X
                                         those required to prepare a
                                         quote or bid proposal in
                                         response to a written request
                                         from a department or agency
                                         of the United States Federal
                                         Government or from a Canadian
                                         Federal, Provincial, or
                                         Territorial Government; or
                                         defense services other than
                                         those required to produce,
                                         design, assemble, maintain or
                                         service a defense article for
                                         use by a registered U.S.
                                         company, or a U.S. Federal
                                         Government Program, or for
                                         end-use in a Canadian
                                         Federal, Provincial, or
                                         Territorial Government
                                         Program. See Note 14.
I.....................................  Firearms, close assault                   X
                                         weapons, and combat shotguns.
II(k).................................  Software source code related    ............            X             X
                                         to USML Category II(c),
                                         II(d), or II(i). See Note 4.
II(k).................................  Manufacturing know-how related            X             X             X
                                         to USML Category II(d). See
                                         Note 5.
III...................................  Ammunition for firearms, close            X
                                         assault weapons, and combat
                                         shotguns listed in USML
                                         Category I.
III...................................  Defense articles and services   ............  ............            X
                                         specific to ammunition and
                                         fuse setting devices for guns
                                         and armament controlled in
                                         USML Category II.
III(e)................................  Manufacturing know-how related            X             X             X
                                         to USML Category III(d)(1) or
                                         III(d)(2) and their specially
                                         designed components. See Note
                                         5.
III(e)................................  Software source code related    ............            X             X
                                         to USML Category III(d)(1) or
                                         III(d)(2). See Note 4.
IV....................................  Defense articles and services             X             X             X
                                         specific to man-portable air
                                         defense systems (MANPADS).
                                         See Note 6.
IV....................................  Defense articles and services   ............  ............            X
                                         specific to rockets, designed
                                         or modified for non-military
                                         applications that do not have
                                         a range of 300 km (i.e., not
                                         controlled on the MTCR Annex).
IV....................................  Defense articles and services   ............            X             X
                                         specific to torpedoes.
IV....................................  Defense articles and services             X             X             X
                                         specific to anti-personnel
                                         landmines. See Note 15.
IV....................................  Defense articles and services             X             X             X
                                         specific to cluster munitions.
IV(i).................................  Software source code related    ............            X             X
                                         to USML Category IV(a),
                                         IV(b), IV(c), or IV(g). See
                                         Note 4.
IV(i).................................  Manufacturing know-how related            X             X             X
                                         to USML Category IV(a),
                                         IV(b), IV(d), or IV(g) and
                                         their specially designed
                                         components. See Note 5.
V.....................................  The following energetic         ............  ............            X
                                         materials and related
                                         substances:.
                                        a. TATB
                                         (triaminotrinitrobenzene)
                                         (CAS 3058-38-6);.
                                        b. Explosives controlled in
                                         USML Category V(a)(38);.
                                        c. Iron powder (CAS 7439-89-6)
                                         with particle size of 3
                                         micrometers or less produced
                                         by reduction of iron oxide
                                         with hydrogen;.
                                        d. BOBBA-8 (bis(2-
                                         methylaziridinyl)2-(2-
                                         hydroxypropanoxy) propylamino
                                         phosphine oxide), and other
                                         MAPO derivatives;.
                                        e. N-methyl-p-nitroaniline
                                         (CAS 100-15-2); or.
                                        f.
                                         Trinitrophenylmethylnitramine
                                         (tetryl) (CAS 479-45-8).
V(a)(13)..............................  ANF or ANAzF as described in    ............  ............            X
                                         USML Category V(a)(13)(iii)
                                         and (iv).
V(a)(23)..............................  Difluoraminated derivative of   ............  ............            X
                                         RDX as described in USML
                                         Category V(a)(23)(iii).
V(c)(7)...............................  Pyrotechnics and pyrophorics    ............  ............            X
                                         specifically formulated for
                                         military purposes to enhance
                                         or control radiated energy in
                                         any part of the IR spectrum.
V(d)(3)...............................  Bis-2, 2-dinitropropylnitrate   ............  ............            X
                                         (BDNPN).

[[Page 593]]

 
V(i)..................................  Developmental explosives,       ............            X             X
                                         propellants, pyrotechnics,
                                         fuels, oxidizers, binders,
                                         additives, or precursors
                                         therefor, funded by the
                                         Department of Defense via
                                         contract or other funding
                                         authorization in accordance
                                         with notes 1 to 3 for USML
                                         Category V(i). This exclusion
                                         does not apply if such export
                                         is pursuant to a written
                                         solicitation or contract
                                         issued or awarded by the U.S.
                                         Department of Defense for an
                                         end-use identified in
                                         paragraph (e)(1), (e)(2), or
                                         (e)(4) of Sec.   126.16 or
                                         Sec.   126.17 of this
                                         subchapter and is consistent
                                         with other exclusions of this
                                         supplement.
VI....................................  Defense articles and services   ............  ............            X
                                         specific to cryogenic
                                         equipment, and specially
                                         designed components or
                                         accessories therefor,
                                         specially designed or
                                         configured to be installed in
                                         a vehicle for military
                                         ground, marine, airborne or
                                         space applications, capable
                                         of operating while in motion
                                         and of producing or
                                         maintaining temperatures
                                         below 103 K (-170 [deg]C).
VI....................................  Defense articles and services   ............  ............            X
                                         specific to superconductive
                                         electrical equipment
                                         (rotating machinery and
                                         transformers) specially
                                         designed or configured to be
                                         installed in a vehicle for
                                         military ground, marine,
                                         airborne, or space
                                         applications and capable of
                                         operating while in motion.
                                         This, however, does not
                                         include direct current hybrid
                                         homopolar generators which
                                         have single-pole normal metal
                                         armatures that rotate in a
                                         magnetic field produced by
                                         superconducting windings,
                                         provided those windings are
                                         the only superconducting
                                         component in the generator.
VI....................................  Defense articles and services   ............            X             X
                                         specific to naval technology
                                         and systems relating to
                                         acoustic spectrum control and
                                         awareness. See Note 10.
VI(a).................................  Nuclear powered vessels.......            X             X             X
VI(e).................................  Defense articles and services             X             X             X
                                         specific to naval nuclear
                                         propulsion equipment. See
                                         Note 7.
VI(g).................................  Software source code related    ............            X             X
                                         to USML Category VI(a) or
                                         VI(c). See Note 4.
VII...................................  Defense articles and services   ............  ............            X
                                         specific to cryogenic
                                         equipment, and specially
                                         designed components or
                                         accessories therefor,
                                         specially designed or
                                         configured to be installed in
                                         a vehicle for military
                                         ground, marine, airborne or
                                         space applications, capable
                                         of operating while in motion
                                         and of producing or
                                         maintaining temperatures
                                         below 103 K (-170 [deg]C).
VII...................................  Defense articles and services   ............  ............            X
                                         specific to superconductive
                                         electrical equipment
                                         (rotating machinery and
                                         transformers) specially
                                         designed or configured to be
                                         installed in a vehicle for
                                         military ground, marine,
                                         airborne, or space
                                         applications and capable of
                                         operating while in motion.
                                         This, however, does not
                                         include direct current hybrid
                                         homopolar generators which
                                         have single-pole normal metal
                                         armatures that rotate in a
                                         magnetic field produced by
                                         superconducting windings,
                                         provided those windings are
                                         the only superconducting
                                         component in the generator.
VIII..................................  Defense articles and services   ............  ............            X
                                         specific to cryogenic
                                         equipment, and specially
                                         designed components and
                                         accessories therefor,
                                         specially designed or
                                         configured to be installed in
                                         a vehicle for military
                                         ground, marine, airborne or
                                         space applications, capable
                                         of operating while in motion
                                         and of producing or
                                         maintaining temperatures
                                         below 103 K (-170 [deg]C).
VIII..................................  Defense articles and services   ............  ............            X
                                         specific to superconductive
                                         electrical equipment
                                         (rotating machinery and
                                         transformers) specially
                                         designed or configured to be
                                         installed in a vehicle for
                                         military ground, marine,
                                         airborne, or space
                                         applications and capable of
                                         operating while in motion.
                                         This, however, does not
                                         include direct current hybrid
                                         homopolar generators which
                                         have single-pole normal metal
                                         armatures that rotate in a
                                         magnetic field produced by
                                         superconducting windings,
                                         provided those windings are
                                         the only superconducting
                                         component in the generator.

[[Page 594]]

 
VIII(a)...............................  All USML Category VIII(a)                 X
                                         items..
VIII(f)...............................  Developmental aircraft parts,             X
                                         components, accessories, and
                                         attachments identified in
                                         USML Category VIII(f).
VIII(i)...............................  Manufacturing know-how related            X             X             X
                                         to USML Category VIII(a) or
                                         VIII(e), and specially
                                         designed parts or components
                                         therefor. See Note 5.
VIII(i)...............................  Software source code related    ............            X             X
                                         to USML Category VIII(a) or
                                         VIII(e). See Note 4.
IX....................................  Training or simulation          ............            X             X
                                         equipment for Man Portable
                                         Air Defense Systems
                                         (MANPADS). See Note 6.
IX(e).................................  Software source code related    ............            X             X
                                         to USML Category IX(a) or
                                         IX(b). See Note 4.
IX(e).................................  Software that is both           ............  ............            X
                                         specifically designed or
                                         modified for military use and
                                         specifically designed or
                                         modified for modeling or
                                         simulating military
                                         operational scenarios.
X(e)..................................  Manufacturing know-how related            X             X             X
                                         to USML Category X(a)(1) or
                                         X(a)(2), and specially
                                         designed components therefor.
                                         See Note 5.
XI(a) XI(c), XI(d)....................  Defense articles and services   ............            X             X
                                         specific to countermeasures
                                         and counter- countermeasures
                                         See Note 9.
XI(a).................................  High Frequency and Phased       ............            X
                                         Array Microwave Radar
                                         systems, with capabilities
                                         such as search, acquisition,
                                         tracking, moving target
                                         indication, and imaging radar
                                         systems. See Note 16.
XI(a), XI(c), XI(d)...................  Defense articles and services   ............            X             X
                                         specific to naval technology
                                         and systems relating to
                                         acoustic spectrum control and
                                         awareness. See Note 10.
XI(a), XI(c), XI(d)...................  Defense articles and services   ............            X             X
                                         specific to USML Category
                                         XI(b) (e.g., communications
                                         security (COMSEC) and
                                         TEMPEST).
XI(d).................................  Software source code related    ............            X             X
                                         to USML Category XI(a). See
                                         Note 4.
XI(d).................................  Manufacturing know-how related            X             X             X
                                         to USML Category XI(a)(3) or
                                         XI(a)(4), and specially
                                         designed components therefor.
                                         See Note 5.
XII...................................  Defense articles and services   ............            X             X
                                         specific to countermeasures
                                         and counter- countermeasures.
                                         See Note 9.
XII...................................  Defense articles and services             X
                                         specific to USML Category
                                         XII(c) articles, except any
                                         1st- and 2nd-generation image
                                         intensification tubes and 1st-
                                          and 2nd-generation image
                                         intensification night
                                         sighting equipment. End-items
                                         in USML Category XII(c) and
                                         related technical data
                                         limited to basic operations,
                                         maintenance, and training
                                         information as authorized
                                         under the exemption in Sec.
                                         125.4(b)(5) of this
                                         subchapter may be exported
                                         directly to a Canadian
                                         Government entity (i.e.,
                                         federal, provincial,
                                         territorial, or municipal)
                                         consistent with Sec.   126.5,
                                         other exclusions, and the
                                         provisions of this subchapter.
XII...................................  Technical data or defense                 X             X             X
                                         services for night vision
                                         equipment beyond basic
                                         operations, maintenance, and
                                         training data. However, the
                                         AS and UK Treaty exemptions
                                         apply when such export is
                                         pursuant to a written
                                         solicitation or contract
                                         issued or awarded by the U.S.
                                         Department of Defense for an
                                         end-use identified in
                                         paragraph (e)(1), (e)(2), or
                                         (e)(4) of Sec.   126.16 or
                                         Sec.   126.17 of this
                                         subchapter and is consistent
                                         with other exclusions of this
                                         supplement.
XII(f)................................  Manufacturing know-how related            X             X             X
                                         to USML Category XII(d) and
                                         specially designed components
                                         therefor. See Note 5.
XII(f)................................  Software source code related    ............            X             X
                                         to USML Category XII(a),
                                         XII(b), XII(c), or XII(d).
                                         See Note 4.
XIII(b)...............................  Defense articles and services   ............            X             X
                                         specific to USML Category
                                         XIII(b) (Military Information
                                         Security Assurance Systems,
                                         cryptographic devices,
                                         software, and components).
XIII(d)...............................  Carbon/carbon billets and       ............  ............            X
                                         preforms which are reinforced
                                         in three or more dimensional
                                         planes, specifically
                                         designed, developed,
                                         modified, configured or
                                         adapted for defense articles.

[[Page 595]]

 
XIII(e)...............................  Defense articles and services   ............  ............            X
                                         specific to armored plate
                                         manufactured to comply with a
                                         military standard or
                                         specification or suitable for
                                         military use. See Note 11.
XIII(g)...............................  Defense articles and services   ............  ............            X
                                         related to concealment and
                                         deception equipment and
                                         materials.
XIII(h)...............................  Energy conversion devices       ............  ............            X
                                         other than fuel cells.
XIII(j)...............................  Defense articles and services   ............            X             X
                                         related to hardware
                                         associated with the
                                         measurement or modification
                                         of system signatures for
                                         detection of defense articles
                                         as described in Note 2.
XIII(l)...............................  Software source code related    ............            X             X
                                         to USML Category XIII(a). See
                                         Note 4.
XIV...................................  Defense articles and services   ............            X             X
                                         related to toxicological
                                         agents, including chemical
                                         agents, biological agents,
                                         and associated equipment.
XIV(a), XIV(b), XIV(d), XIV(e), XIV(f)  Chemical agents listed in USML            X
                                         Category XIV(a), (d) and (e),
                                         biological agents and
                                         biologically derived
                                         substances in USML Category
                                         XIV(b), and equipment listed
                                         in USML Category XIV(f) for
                                         dissemination of the chemical
                                         agents and biological agents
                                         listed in USML Category
                                         XIV(a), (b), (d), and (e).
XV(a).................................  Defense articles and services             X             X             X
                                         specific to spacecraft/
                                         satellites. However, the
                                         Canadian exemption may be
                                         used for commercial
                                         communications satellites
                                         that have no other type of
                                         payload.
XV(b).................................  Defense articles and services   ............            X             X
                                         specific to ground control
                                         stations for spacecraft
                                         telemetry, tracking, and
                                         control. Defense articles and
                                         services are not excluded
                                         under this entry if they do
                                         not control the spacecraft.
                                         Receivers for receiving
                                         satellite transmissions are
                                         also not excluded under this
                                         entry.
XV(c).................................  Defense articles and services   ............            X             X
                                         specific to GPS/PPS security
                                         modules.
XV(c).................................  Defense articles controlled in            X
                                         USML Category XV(c) except
                                         end-items for end-use by the
                                         Federal Government of Canada
                                         exported directly or
                                         indirectly through a Canadian-
                                         registered person.
XV(e).................................  Anti-jam systems with the                 X
                                         ability to respond to
                                         incoming interference by
                                         adaptively reducing antenna
                                         gain (nulling) in the
                                         direction of the interference.
XV(e)(1)..............................  Antennas having any of the                X
                                         following:.
                                        a. Aperture (overall dimension
                                         of the radiating portions of
                                         the antenna) greater than 30
                                         feet;.
                                        b. All sidelobes less than or
                                         equal to -35 dB relative to
                                         the peak of the main beam; or.
                                        c. Designed, modified, or
                                         configured to provide
                                         coverage area on the surface
                                         of the earth less than 200
                                         nautical miles in diameter,
                                         where ``coverage area'' is
                                         defined as that area on the
                                         surface of the earth that is
                                         illuminated by the main beam
                                         width of the antenna (which
                                         is the angular distance
                                         between half power points of
                                         the beam).
XV(e)(12).............................  Propulsion systems which                  X
                                         permit acceleration of the
                                         satellite on-orbit (i.e.,
                                         after mission orbit
                                         injection) at rates greater
                                         than 0.1 g.
XV(e)(10).............................  Attitude determination and                X
                                         control systems designed to
                                         provide spacecraft pointing
                                         determination and control or
                                         payload pointing system
                                         control better than 0.02
                                         degrees per axis.
XV(e).................................  All parts, components,                    X
                                         accessories, attachments,
                                         equipment, or systems for
                                         USML Category XV(a) items,
                                         except when specially
                                         designed for use in
                                         commercial communications
                                         satellites.
XV(e).................................  Defense articles and services   ............            X             X
                                         specific to spacecraft,
                                         ground control station
                                         systems (only for spacecraft
                                         control as controlled in USML
                                         Category XV(b)), subsystems,
                                         components, parts,
                                         accessories, attachments, and
                                         associated equipment
                                         controlled in Category XV.

[[Page 596]]

 
XV(f).................................  Technical data and defense                X             X             X
                                         services directly related to
                                         the other defense articles
                                         excluded from the exemptions
                                         for USML Category XV.
XVI...................................  Defense articles and services             X             X             X
                                         specific to design and
                                         testing of nuclear weapons.
XVII..................................  Classified articles, and                  X             X             X
                                         technical data and defense
                                         services relating thereto,
                                         not elsewhere enumerated. See
                                         Note 1.
XVIII.................................  Defense articles and services   ............            X             X
                                         specific to directed energy
                                         weapon systems.
XIX(e), XIX(f)(1), XIX(f)(2), XIX(g)..  Defense articles and services   ............            X             X
                                         specific to gas turbine
                                         engine hot section components
                                         and to Full Authority Digital
                                         Engine Control Systems
                                         (FADEC) or Digital Electronic
                                         Engine Controls (DEEC). See
                                         Note 8.
XIX(g)................................  Technical data and defense                X             X             X
                                         services for gas turbine
                                         engine hot sections. (This
                                         does not include hardware).
                                         See Note 8.
XX....................................  Defense articles and services             X             X             X
                                         related to submersible
                                         vessels, oceanographic, and
                                         associated equipment.
XX....................................  Defense articles and services   ............            X             X
                                         specific to naval technology
                                         and systems relating to
                                         acoustic spectrum control and
                                         awareness. See Note 10.
XX....................................  Defense articles specific to    ............  ............            X
                                         cryogenic equipment, and
                                         specially designed components
                                         or accessories therefor,
                                         specially designed or
                                         configured to be installed in
                                         a vehicle for military
                                         ground, marine, airborne or
                                         space applications, capable
                                         of operating while in motion
                                         and of producing or
                                         maintaining temperatures
                                         below 103 K (-170 [deg]C).
XX....................................  Defense articles specific to    ............  ............            X
                                         superconductive electrical
                                         equipment (rotating machinery
                                         and transformers) specially
                                         designed or configured to be
                                         installed in a vehicle for
                                         military ground, marine,
                                         airborne, or space
                                         applications and capable of
                                         operating while in motion.
                                         This, however, does not
                                         include direct current hybrid
                                         homopolar generators that
                                         have single-pole normal metal
                                         armatures which rotate in a
                                         magnetic field produced by
                                         superconducting windings,
                                         provided those windings are
                                         the only superconducting
                                         component in the generator.
XX(a).................................  Nuclear powered vessels.......            X             X             X
XX(b).................................  Defense articles and services             X             X             X
                                         specific to naval nuclear
                                         propulsion equipment. See
                                         Note 7.
XX(c).................................  Defense articles and services   ............            X             X
                                         specific to submarine combat
                                         control systems.
XX(d).................................  Software source code related    ............            X             X
                                         to USML Category XX(a). See
                                         Note 4.
XXI...................................  Articles, and technical data              X             X             X
                                         and defense services relating
                                         thereto, not otherwise
                                         enumerated on the USML, but
                                         placed in this category by
                                         the Director, Office of
                                         Defense Trade Controls Policy.
----------------------------------------------------------------------------------------------------------------
Note 1: Classified defense articles and services are not eligible for export under the Canadian exemptions. U.S.
  origin articles, technical data, and services controlled in USML Category XVII are not eligible for export
  under the UK Treaty exemption. U.S. origin classified defense articles and services are not eligible for
  export under either the UK or AS Treaty exemptions except when being released pursuant to a U.S. Department of
  Defense written request, directive, or contract that provides for the export of the defense article or
  service.
Note 2: The phrase ``any part of the spectrum'' includes radio frequency (RF), infrared (IR), electro-optical,
  visual, ultraviolet (UV), acoustic, and magnetic. Defense articles related to reduced observables or counter
  reduced observables are defined as:
(a) Signature reduction (radio frequency (RF), infrared (IR), Electro-Optical, visual, ultraviolet (UV),
  acoustic, magnetic, RF emissions) of defense platforms, including systems, subsystems, components, materials
  (including dual-purpose materials used for Electromagnetic Interference (EM) reduction), technologies, and
  signature prediction, test and measurement equipment and software, and material transmissivity/reflectivity
  prediction codes and optimization software.
(b) Electronically scanned array radar, high power radars, radar processing algorithms, periscope-mounted radar
  systems (PATRIOT), LADAR, multistatic and IR focal plane array-based sensors, to include systems, subsystems,
  components, materials, and technologies.
Note 3: Defense articles and services related to sensor fusion beyond that required for display or
  identification correlation is defined as techniques designed to automatically combine information from two or
  more sensors/sources for the purpose of target identification, tracking, designation, or passing of data in
  support of surveillance or weapons engagement. Sensor fusion involves sensors such as acoustic, infrared,
  electro optical, frequency, etc. Display or identification correlation refers to the combination of target
  detections from multiple sources for assignment of common target track designation.
Note 4: Software source code beyond that source code required for basic operation, maintenance, and training for
  programs, systems, and/or subsystems is not eligible for use of the UK or AS Treaty exemptions, unless such
  export is pursuant to a written solicitation or contract issued or awarded by the U.S. Department of Defense
  for an end-use identified in paragraph (e)(1), (e)(2), or (e)(4) of Sec.   126.16 or Sec.   126.17 of this
  subchapter and is consistent with other exclusions of this supplement.

[[Page 597]]

 
Note 5: Manufacturing know-how, as defined in Sec.   125.4(c)(6) of this subchapter, is not eligible for use of
  the UK or AS Treaty exemptions, unless such export is pursuant to a written solicitation or contract issued or
  awarded by the U.S. Department of Defense for an end-use identified in paragraph (e)(1), (e)(2), or (e)(4) of
  Sec.   126.16 or Sec.   126.17 of this subchapter and is consistent with other exclusions of this supplement.
Note 6: Defense articles and services specific to Man Portable Air Defense Systems (MANPADS) includes missiles
  that can be used without modification in other applications. It also includes production and test equipment
  and components specifically designed or modified for MANPAD systems, as well as training equipment
  specifically designed or modified for MANPAD systems.
Note 7: Naval nuclear propulsion plants includes all of USML Category VI(e). Naval nuclear propulsion
  information consists of technical data that concern the design, arrangement, development, manufacture,
  testing, operation, administration, training, maintenance, and repair of the propulsion plants of naval
  nuclear-powered ships and prototypes, including the associated shipboard and shore-based nuclear support
  facilities. Examples of defense articles covered by this exclusion include nuclear propulsion plants and
  nuclear submarine technologies or systems; nuclear powered vessels (see USML Categories VI and XX).
Note 8: A complete gas turbine engine with embedded hot section components or digital engine controls is
  eligible for export or transfer under the Treaties. Technical data, other than those data required for routine
  external maintenance and operation, related to the hot section is not eligible for export under the Canadian
  exemption. Technical data, other than those data required for routine external maintenance and operation,
  related to the hot section or digital engine controls, as well as individual hot section parts or components
  are not eligible for the Treaty exemption whether shipped separately or accompanying a complete engine. Gas
  turbine engine hot section exempted defense article components and technology are combustion chambers and
  liners; high pressure turbine blades, vanes, disks and related cooled structure; cooled low pressure turbine
  blades, vanes, disks and related cooled structure; cooled augmenters; and cooled nozzles. Examples of gas
  turbine engine hot section developmental technologies are Integrated High Performance Turbine Engine
  Technology (IHPTET), Versatile, Affordable Advanced Turbine Engine (VAATE), and Ultra-Efficient Engine
  Technology (UEET), which are also excluded from export under the exemptions.
Note 9: Examples of countermeasures and counter-countermeasures related to defense articles not exportable under
  the AS or UK Treaty exemptions are:
(a) IR countermeasures;
(b) Classified techniques and capabilities;
(c) Exports for precision radio frequency location that directly or indirectly supports fire control and is used
  for situation awareness, target identification, target acquisition, and weapons targeting and Radio Direction
  Finding (RDF) capabilities. Precision RF location is defined as angle of arrival accuracy of less than five
  degrees (RMS) and RF emitter location of less than ten percent range error;
(d) Providing the capability to reprogram; and
(e) Acoustics (including underwater), active and passive countermeasures, and counter-countermeasures
Note 10: Examples of defense articles covered by this exclusion include underwater acoustic vector sensors;
  acoustic reduction; off-board, underwater, active and passive sensing, propeller/propulsor technologies; fixed
  mobile/floating/powered detection systems which include in-buoy signal processing for target detection and
  classification; autonomous underwater vehicles capable of long endurance in ocean environments (manned
  submarines excluded); automated control algorithms embedded in on-board autonomous platforms which enable (a)
  group behaviors for target detection and classification, (b) adaptation to the environment or tactical
  situation for enhancing target detection and classification; ``intelligent autonomy'' algorithms that define
  the status, group (greater than 2) behaviors, and responses to detection stimuli by autonomous, underwater
  vehicles; and low frequency, broad band ``acoustic color,'' active acoustic ``fingerprint'' sensing for the
  purpose of long range, single pass identification of ocean bottom objects, buried or otherwise (controlled
  under Category USML XI(a)(1), (a)(2), (b), (c), and (d)).
Note 11: This exclusion does not apply to the platforms (e.g., vehicles) for which the armored plates are
  applied. For exclusions related to the platforms, refer to the other exclusions in this list, particularly for
  the category in which the platform is controlled.
The excluded defense articles include constructions of metallic or non-metallic materials or combinations
  thereof specially designed to provide protection for military systems. The phrase ``suitable for military
  use'' applies to any articles or materials which have been tested to level IIIA or above IAW NIJ standard
  0108.01 or comparable national standard. This exclusion does not include military helmets, body armor, or
  other protective garments which may be exported IAW the terms of the AS or UK Treaty.
Note 12: Defense services or technical data specific to applied research (Sec.   125.4(c)(3) of this
  subchapter), design methodology (Sec.   125.4(c)(4) of this subchapter), engineering analysis (Sec.
  125.4(c)(5) of this subchapter), or manufacturing know-how (Sec.   125.4(c)(6) of this subchapter) are not
  eligible for export under the Canadian exemptions. However, this exclusion does not include defense services
  or technical data specific to build-to-print as defined in Sec.   125.4(c)(1) of this subchapter, build/design-
  to-specification as defined in Sec.   125.4(c)(2) of this subchapter, or basic research as defined in Sec.
  125.4(c)(3) of this subchapter, or maintenance (i.e., inspection, testing, calibration or repair, including
  overhaul, reconditioning and one-to-one replacement of any defective items parts or components, but excluding
  any modification, enhancement, upgrade or other form of alteration or improvement that changes the basic
  performance of the item) of non-excluded defense articles which may be exported subject to other exclusions or
  terms of the Canadian exemptions.
Note 13: The term ``libraries'' (parametric technical databases) means a collection of technical information of
  a military nature, reference to which may enhance the performance of military equipment or systems.
Note 14: In order to utilize the authorized defense services under the Canadian exemption, the following must be
  complied with:
(a) The Canadian contractor and subcontractor must certify, in writing, to the U.S. exporter that the technical
  data and defense services being exported will be used only for an activity identified in Supplement No. 1 to
  part 126 of this subchapter and in accordance with Sec.   126.5 of this subchapter; and
(b) A written arrangement between the U.S. exporter and the Canadian recipient must:
(1) Limit delivery of the defense articles being produced directly to an identified manufacturer in the United
  States registered in accordance with part 122 of this subchapter; a department or agency of the United States
  Federal Government; a Canadian-registered person authorized in writing to manufacture defense articles by and
  for the Government of Canada; a Canadian Federal, Provincial, or Territorial Government;
(2) Prohibit the disclosure of the technical data to any other contractor or subcontractor who is not a Canadian-
  registered person;
(3) Provide that any subcontract contain all the limitations of Sec.   126.5 of this subchapter;
(4) Require that the Canadian contractor, including subcontractors, destroy or return to the U.S. exporter in
  the United States all of the technical data exported pursuant to the contract or purchase order upon
  fulfillment of the contract, unless for use by a Canadian or United States Government entity that requires in
  writing the technical data be maintained. The U.S. exporter must be provided written certification that the
  technical data is being retained or destroyed; and
(5) Include a clause requiring that all documentation created from U.S. origin technical data contain the
  statement that, ``This document contains technical data, the use of which is restricted by the U.S. Arms
  Export Control Act. This data has been provided in accordance with, and is subject to, the limitations
  specified in Sec.   126.5 of the International Traffic in Arms Regulations (ITAR). By accepting this data, the
  consignee agrees to honor the requirements of the ITAR.''
(c) The U.S. exporter must provide the Directorate of Defense Trade Controls a semi-annual report regarding all
  of their on-going activities authorized under Sec.   126.5 of this subchapter. The report shall include the
  article(s) being produced; the end-user(s); the end-item into which the product is to be incorporated; the
  intended end-use of the product; and the names and addresses of all the Canadian contractors and
  subcontractors.
Note 15: This exclusion does not apply to demining equipment in support of the clearance of landmines and
  unexploded ordnance for humanitarian purposes.

[[Page 598]]

 
As used in this exclusion, ``anti-personnel landmine'' means any mine placed under, on, or near the ground or
  other surface area, or delivered by artillery, rocket, mortar, or similar means or dropped from an aircraft
  and which is designed to be detonated or exploded by the presence, proximity, or contact of a person; any
  device or material which is designed, constructed, or adapted to kill or injure and which functions
  unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe
  act; any manually-emplaced munition or device designed to kill, injure, or damage and which is actuated by
  remote control or automatically after a lapse of time.
Note 16: The radar systems described are controlled in USML Category XI(a)(3)(i) through (v). As used in this
  entry, the term ``systems'' includes equipment, devices, software, assemblies, modules, components, practices,
  processes, methods, approaches, schema, frameworks, and models.
Note 17: This exclusion does not apply to the export of defense articles previously notified to Congress
  pursuant to Sec.   123.15 or Sec.   124.11 of this subchapter. For use of the Australian and UK exemptions for
  congressional notification, see Sec.   126.16(o) and Sec.   126.17(o).


[79 FR 77885, Dec. 29, 2014]



PART 127_VIOLATIONS AND PENALTIES--Table of Contents



Sec.
127.1 Violations.
127.2 Misrepresentation and omission of facts.
127.3 Penalties for violations.
127.4 Authority of U.S. Immigration and Customs Enforcement and U.S. 
          Customs and Border Protection officers.
127.5 Authority of the Defense Security Service.
126.6 Seizure and forfeiture in attempts at illegal exports.
127.7 Debarment.
127.8 [Reserved]
127.9 Applicability of orders.
127.10 Civil penalty.
127.11 Past violations.
127.12 Voluntary disclosures.

    Authority: Sections 2, 38, and 42, Pub. L. 90-629, 90 Stat. 744 (22 
U.S.C. 2752, 2778, 2791); 22 U.S.C. 401; 22 U.S.C. 2651a; 22 U.S.C. 
2779a; 22 U.S.C. 2780; E.O. 13637, 78 FR 16129; Pub. L. 114-74, 129 
Stat. 584.

    Source: 58 FR 39316, July 22, 1993, unless otherwise noted.



Sec.  127.1  Violations.

    (a) Without first obtaining the required license or other written 
approval from the Directorate of Defense Trade Controls, it is unlawful:
    (1) To export or attempt to export from the United States any 
defense article or technical data or to furnish or attempt to furnish 
any defense service for which a license or written approval is required 
by this subchapter;
    (2) To reexport or retransfer or attempt to reexport or retransfer 
any defense article, technical data, or defense service from one foreign 
end-user, end-use, or destination to another foreign end-user, end-use, 
or destination for which a license or written approval is required by 
this subchapter, including, as specified in Sec.  126.16(h) and Sec.  
126.17(h) of this subchapter, any defense article, technical data, or 
defense service that was exported from the United States without a 
license pursuant to any exemption under this subchapter;
    (3) To import or attempt to import any defense article whenever a 
license is required by this subchapter;
    (4) To conspire to export, import, reexport, retransfer, furnish or 
cause to be exported, imported, reexported, retransferred or furnished, 
any defense article, technical data, or defense service for which a 
license or written approval is required by this subchapter; or
    (5) To possess or attempt to possess any defense article with intent 
to export or transfer such defense article in violation of 22 U.S.C. 
2778 and 2779, or any regulation, license, approval, or order issued 
thereunder.
    (b) It is unlawful:
    (1) To violate any of the terms or conditions of a license or 
approval granted pursuant to this subchapter, any exemption contained in 
this subchapter, or any rule or regulation contained in this subchapter;
    (2) To engage in the business of brokering activities for which 
registration and a license or written approval is required by this 
subchapter without first registering or obtaining the required license 
or written approval from the Directorate of Defense Trade Controls. For 
the purposes of this subchapter, engaging in the business of brokering 
activities requires only one occasion of engaging in an activity as 
reflected in Sec.  129.2(b) of this subchapter.
    (3) To engage in the United States in the business of either 
manufacturing or exporting defense articles or furnishing defense 
services without complying with the registration requirements. For the 
purposes of this subchapter,

[[Page 599]]

engaging in the business of manufacturing or exporting defense articles 
or furnishing defense services requires only one occasion of 
manufacturing or exporting a defense article or furnishing a defense 
service.
    (c) Any person who is granted a license or other approval or acts 
pursuant to an exemption under this subchapter is responsible for the 
acts of employees, agents, brokers, and all authorized persons to whom 
possession of the defense article, which includes technical data, has 
been entrusted regarding the operation, use, possession, transportation, 
and handling of such defense article abroad. All persons abroad subject 
to U.S. jurisdiction who obtain custody of a defense article exported 
from the United States or produced under an agreement described in part 
124 of this subchapter, and regardless of the number of intermediate 
transfers, are bound by the regulations of this subchapter in the same 
manner and to the same extent as the original owner or transferor.
    (d) A person who is ineligible pursuant to Sec.  120.1(c)(2) of this 
subchapter, or a person with knowledge that another person is ineligible 
pursuant to Sec.  120.1(c)(2) of this subchapter, may not, directly or 
indirectly, in any manner or capacity, without prior disclosure of the 
facts to and written authorization from the Directorate of Defense Trade 
Controls:
    (1) Apply for, obtain, or use any export control document as defined 
in Sec.  127.2(b) for such ineligible person; or
    (2) Order, buy, receive, use, sell, deliver, store, dispose of, 
forward, transport, finance, or otherwise service or participate in any 
manner in any transaction subject to this subchapter that may involve 
any defense article, which includes technical data, defense services, or 
brokering activities, where such ineligible person may obtain any 
benefit therefrom or have any direct or indirect interest therein.
    (e) No person may knowingly or willfully attempt, solicit, cause, or 
aid, abet, counsel, demand, induce, procure, or permit the commission of 
any act prohibited by, or the omission of any act required by 22 U.S.C. 
2778, 22 U.S.C. 2779, or any regulation, license, approval, or order 
issued thereunder.

[77 FR 16641, Mar. 21, 2012, as amended at 78 FR 52688, Aug. 26, 2013; 
79 FR 8088, Feb. 11, 2014]



Sec.  127.2  Misrepresentation and omission of facts.

    (a) It is unlawful to use or attempt to use any export or temporary 
import control document containing a false statement or misrepresenting 
or omitting a material fact for the purpose of exporting, transferring, 
reexporting, retransferring, obtaining, or furnishing any defense 
article, technical data, or defense service. Any false statement, 
misrepresentation, or omission of material fact in an export or 
temporary import control document will be considered as made in a matter 
within the jurisdiction of a department or agency of the United States 
for the purposes of 18 U.S.C. 1001, 22 U.S.C. 2778, and 22 U.S.C. 2779.
    (b) For the purpose of this subchapter, export or temporary import 
control documents include the following:
    (1) An application for a permanent export, reexport, retransfer, or 
a temporary import license and supporting documents.
    (2) Electronic Export Information filing.
    (3) Invoice.
    (4) Declaration of destination.
    (5) Delivery verification.
    (6) Application for temporary export.
    (7) Application for registration.
    (8) Purchase order.
    (9) Foreign import certificate.
    (10) Bill-of-lading.
    (11) Airway bill.
    (12) Nontransfer and use certificate.
    (13) Any other document used in the regulation or control of a 
defense article, defense service, or brokering activity regulated by 
this subchapter.
    (14) Any other shipping document that has information related to the 
export of the defense article or defense service.

[58 FR 39316, July 22, 1993, as amended at 77 FR 16642, Mar. 21, 2012; 
78 FR 52689, Aug. 26, 2013]



Sec.  127.3  Penalties for violations.

    Any person who willfully:

[[Page 600]]

    (a) Violates any provision of Sec.  38 or Sec.  39 of the Arms 
Export Control Act (22 U.S.C. 2778 and 2779) or any rule or regulation 
issued under either Sec.  38 or Sec.  39 of the Act, or any undertaking 
specifically required by part 124 of this subchapter; or
    (b) In a registration, license application, or report required by 
Sec.  38 or Sec.  39 of the Arms Export Control Act (22 U.S.C. 2778 and 
2779) or by any rule or regulation issued under either section, makes 
any untrue statement of a material fact or omits a material fact 
required to be stated therein or necessary to make the statements 
therein not misleading, shall upon conviction be subject to a fine or 
imprisonment, or both, as prescribed by 22 U.S.C. 2778(c).

[77 FR 16642, Mar. 21, 2012]



Sec.  127.4  Authority of U.S. Immigration and Customs Enforcement 
and U.S. Customs and Border Protection officers.

    (a) U.S. Immigration and Customs Enforcement and U.S. Customs and 
Border Protection officers may take appropriate action to ensure 
observance of this subchapter as to the export or the attempted export 
or the temporary import of any defense article or technical data, 
including the inspection of loading or unloading of any vessel, vehicle, 
or aircraft. This applies whether the export is authorized by license or 
by written approval issued under this subchapter or by exemption.
    (b) U.S. Immigration and Customs Enforcement and U.S. Customs and 
Border Protection officers have the authority to investigate, detain or 
seize any export or attempted export of defense articles or technical 
data contrary to this subchapter.
    (c) Upon the presentation to a U.S. Customs and Border Protection 
Officer of a license or written approval, or claim of an exemption, 
authorizing the export of any defense article, the customs officer may 
require the production of other relevant documents and information 
relating to the final export. This includes an invoice, order, packing 
list, shipping document, correspondence, instructions, and the documents 
otherwise required by the U.S. Customs and Border Protection or U.S. 
Immigration and Customs Enforcement.
    (d) If an exemption under this subchapter is used or claimed to 
export, transfer, reexport or retransfer, furnish, or obtain a defense 
article, technical data, or defense service, law enforcement officers 
may rely upon the authorities noted, additional authority identified in 
the language of the exemption, and any other lawful means or authorities 
to investigate such a matter.

[70 FR 50965, Aug. 29, 2005, as amended at 77 FR 16642, Mar. 21, 2012]



Sec.  127.5  Authority of the Defense Security Service.

    In the case of exports involving classified technical data or 
defense articles, the Defense Security Service may take appropriate 
action to ensure compliance with the Department of Defense National 
Industrial Security Program Operating Manual (unless such requirements 
are in direct conflict with guidance provided by the Directorate of 
Defense Trade Controls, in which case the latter guidance must be 
followed). Upon a request to the Defense Security Service regarding the 
export of any classified defense article or technical data, the Defense 
Security Service official or a designated government transmittal 
authority may require the production of other relevant documents and 
information relating to the proposed export.

[71 FR 20549, Apr. 21, 2006]



Sec.  127.6  Seizure and forfeiture in attempts at illegal exports.

    (a) An attempt to export from the United States any defense articles 
in violation of the provisions of this subchapter constitutes an offense 
punishable under section 401 of title 22 of the United States Code. 
Whenever it is known or there is probable cause to believe that any 
defense article is intended to be or is being or has been exported or 
removed from the United States in violation of law, such article and any 
vessel, vehicle or aircraft involved in such attempt is subject to 
seizure, forfeiture and disposition as provided in section 401 of title 
22 of the United States Code.

[[Page 601]]

    (b) Similarly, an attempt to violate any of the conditions under 
which a temporary export or temporary import license was issued pursuant 
to this subchapter or to violate the requirements of Sec.  123.2 of this 
subchapter also constitutes an offense punishable under section 401 of 
title 22 of the United States Code, and such article, together with any 
vessel, vehicle or aircraft involved in any such attempt is subject to 
seizure, forfeiture, and disposition as provided in section 401 of title 
22 of the United States Code.



Sec.  127.7  Debarment.

    (a) Administrative debarment. In implementing section 38 of the Arms 
Export Control Act, the Assistant Secretary of State for Political-
Military Affairs may debar and thereby prohibit any person from 
participating directly or indirectly in any activities that are subject 
to this subchapter for any of the reasons listed below. Any such 
prohibition is referred to as an administrative debarment for purposes 
of this subchapter. The Assistant Secretary of State for Political-
Military Affairs shall determine the appropriate period of time for 
administrative debarment, which generally shall be for a period of three 
years. Reinstatement is not automatic, however, and in all cases the 
debarred persons must submit a request for reinstatement and be approved 
for reinstatement before engaging in any activities subject to this 
subchapter. (See part 128 of this subchapter for administrative 
procedures.)
    (b) Statutory debarment. It is the policy of the Department of State 
not to consider applications for licenses or requests for approvals 
involving any person who has been convicted of violating the Arms Export 
Control Act or convicted of conspiracy to violate that Act for a three 
year period following conviction and to prohibit that person from 
participating directly or indirectly in any activities that are subject 
to this subchapter. Such individuals shall be notified in writing that 
they are statutorily debarred pursuant to this policy. A list of persons 
who have been convicted of such offenses and debarred for this reason 
shall be published periodically in the Federal Register. Statutory 
debarment in such cases is based solely upon the outcome of a criminal 
proceeding, conducted by a court of the United States, which established 
guilt beyond a reasonable doubt in accordance with due process. 
Reinstatement is not automatic, and in all cases the debarred person 
must submit a request for reinstatement to the Department of State and 
be approved for reinstatement before engaging in any activities subject 
to this subchapter. The procedures of part 128 of this subchapter are 
not applicable in such cases.
    (c) Grounds. (1) The basis for statutory debarment, as described in 
paragraph (b) of this section, is any conviction for violating the Arms 
Export Control Act (see Sec.  127.3) or any conspiracy to violate the 
Arms Export Control Act.
    (2) The basis for administrative debarment, as described in 
paragraph (a) of this section and in part 128 of this subchapter, is any 
violation of 22 U.S.C. 2778 or any rule or regulation issued thereunder 
when such a violation is of such a character as to provide a reasonable 
basis for the Directorate of Defense Trade Controls to believe that the 
violator cannot be relied upon to comply with the statute or these rules 
or regulations in the future, and when such violation is established in 
accordance with part 128 of this subchapter.
    (d) Appeals. Any person who is ineligible pursuant to paragraph (b) 
of this section may appeal to the Under Secretary of State for Arms 
Control and International Security for reconsideration of the 
ineligibility determination. The procedures specified in Sec.  128.13 of 
this subchapter will be used in submitting a reconsideration appeal.

[78 FR 52689, Aug. 26, 2013, as amended at 81 FR 87430, Dec. 5, 2016]



Sec.  127.8  [Reserved]



Sec.  127.9  Applicability of orders.

    For the purpose of preventing evasion, orders of the Assistant 
Secretary of State for Political-Military Affairs debarring a person 
under Sec.  127.7 may be made applicable to any other person who may 
then or thereafter (during the term of the order) be related to the

[[Page 602]]

debarred person by affiliation, ownership, control, position of 
responsibility, or other commercial connection. Appropriate notice and 
opportunity to respond to the basis for the suspension will be given.

[78 FR 52689, Aug. 26, 2013]



Sec.  127.10  Civil penalty.

    (a)(1) The Assistant Secretary of State for Political-Military 
Affairs is authorized to impose a civil penalty, as follows:
    (i) For each violation of 22 U.S.C. 2778, an amount not to exceed 
$1,197,728;
    (ii) For each violation of 22 U.S.C. 2779a, an amount not to exceed 
$870,856, or five times the amount of the prohibited incentive payment, 
whichever is greater; and
    (iii) For each violation of 22 U.S.C. 2780, an amount not to exceed 
$1,036,566.
    (2) The civil penalty may be either in addition to, or in lieu of, 
any other liability or penalty which may be imposed.
    (b) The Directorate of Defense Trade Controls may make:
    (1) The payment of a civil penalty under this section or
    (2) The completion of any administrative action pursuant to this 
part 127 or 128 of this subchapter a prior condition for the issuance, 
restoration, or continuing validity of any export license or other 
approval.

[58 FR 39316, July 22, 1993, as amended at 62 FR 67276, Dec. 24, 1997; 
71 FR 20550, Apr. 21, 2006; 77 FR 16642, Mar. 21, 2012; 81 FR 36793, 
June 8, 2016; 82 FR 3170, Jan. 11, 2017; 83 FR 237, Jan. 3, 2018; 83 FR 
2738, Jan. 19, 2018; 84 FR 9959, Mar. 19, 2019; 85 FR 2022, Jan. 14, 
2020; 86 FR 7807, Feb. 2, 2021]



Sec.  127.11  Past violations.

    (a) Presumption of denial. Pursuant to section 38 of the Arms Export 
Control Act, licenses or other approvals may not be granted to persons 
who have been convicted of violating any of the U.S. criminal statutes 
enumerated in Sec.  120.27 of this subchapter or who are ineligible to 
receive any export licenses from any agency of the U.S. Government, 
subject to a narrowly defined statutory exception. This provision 
establishes a presumption of denial for licenses or other approvals 
involving such persons. This presumption is applied by the Directorate 
of Defense Trade Controls to all persons convicted or deemed ineligible 
in this manner since the effective date of the Arms Export Control Act 
(Public Law 94-329; 90 Stat. 729) (June 30, 1976).
    (b) Policy. An exception to the policy of the Department of State to 
deny applications for licenses or other approvals that involve persons 
described in paragraph (a) of this section shall not be considered 
unless there are extraordinary circumstances surrounding the conviction 
or ineligibility to export, and only if the applicant demonstrates, to 
the satisfaction of the Assistant Secretary of State for Political-
Military Affairs, that the applicant has taken appropriate steps to 
mitigate any law enforcement and other legitimate concerns, and to deal 
with the causes that resulted in the conviction, ineligibility, or 
debarment. Any person described in paragraph (a) of this section who 
wishes to request consideration of any application must explain, in a 
letter to the Deputy Assistant Secretary of State for Defense Trade 
Controls the reasons why the application should be considered. If the 
Assistant Secretary of State for Political-Military Affairs concludes 
that the application and written explanation have sufficient merit, the 
Assistant Secretary shall consult with the Office of the Legal Adviser 
and the Department of the Treasury regarding law enforcement concerns, 
and may also request the views of other departments, including the 
Department of Justice. If the Directorate of Defense Trade Controls does 
grant the license or other approval, subsequent applications from the 
same person need not repeat the information previously provided but 
should instead refer to the favorable decision.
    (c) Debarred persons. Persons debarred pursuant to Sec.  127.7(b) 
(statutory debarment) may not utilize the procedures provided by 
paragraph (b) of this section while the statutory debarment is in force. 
Such persons may utilize only the procedures provided by Sec.  127.7(d).

[71 FR 20550, Apr. 21, 2006, as amended at 79 FR 8088, Feb. 11, 2014; 81 
FR 87430, Dec. 5, 2016]

[[Page 603]]



Sec.  127.12  Voluntary disclosures.

    (a) General policy. The Department strongly encourages the 
disclosure of information to the Directorate of Defense Trade Controls 
by persons (see Sec.  120.14 of this subchapter) that believe they may 
have violated any export control provision of the Arms Export Control 
Act, or any regulation, order, license, or other authorization issued 
under the authority of the Arms Export Control Act. The Department may 
consider a voluntary disclosure as a mitigating factor in determining 
the administrative penalties, if any, that should be imposed. Failure to 
report a violation may result in circumstances detrimental to U.S. 
national security and foreign policy interests, and will be an adverse 
factor in determining the appropriate disposition of such violations.
    (b) Limitations. (1) The provisions of this section apply only when 
information is provided to the Directorate of Defense Trade Controls for 
its review in determining whether to take administrative action under 
part 128 of this subchapter concerning a violation of the export control 
provisions of the Arms Export Control Act and these regulations.
    (2) The provisions of this section apply only when information is 
received by the Directorate of Defense Trade Controls for review prior 
to such time that either the Department of State or any other agency, 
bureau, or department of the United States Government obtains knowledge 
of either the same or substantially similar information from another 
source and commences an investigation or inquiry that involves that 
information, and that is intended to determine whether the Arms Export 
Control Act or these regulations, or any other license, order, or other 
authorization issued under the Arms Export Control Act has been 
violated.
    (3) The violation(s) in question, despite the voluntary nature of 
the disclosure, may merit penalties, administrative actions, sanctions, 
or referrals to the Department of Justice to consider criminal 
prosecution. In the latter case, the Directorate of Defense Trade 
Controls will notify the Department of Justice of the voluntary nature 
of the disclosure, although the Department of Justice is not required to 
give that fact any weight. The Directorate of Defense Trade Controls has 
the sole discretion to consider whether ``voluntary disclosure,'' in 
context with other relevant information in a particular case, should be 
a mitigating factor in determining what, if any, administrative action 
will be imposed. Some of the mitigating factors the Directorate of 
Defense Trade Controls may consider are:
    (i) Whether the transaction would have been authorized, and under 
what conditions, had a proper license request been made;
    (ii) Why the violation occurred;
    (iii) The degree of cooperation with the ensuing investigation;
    (iv) Whether the person has instituted or improved an internal 
compliance program to reduce the likelihood of future violation;
    (v) Whether the person making the disclosure did so with the full 
knowledge and authorization of the person's senior management. (If not, 
then the Directorate will not deem the disclosure voluntary as covered 
in this section.)
    (4) The provisions of this section do not, nor should they be relied 
on to, create, confer, or grant any rights, benefits, privileges, or 
protection enforceable at law or in equity by any person in any civil, 
criminal, administrative, or other matter.
    (5) Nothing in this section shall be interpreted to negate or lessen 
the affirmative duty pursuant to Sec. Sec.  126.1(e), 126.16(h)(5), and 
126.17(h)(5) of this subchapter upon persons to inform the Directorate 
of Defense Trade Controls of the actual or final sale, export, transfer, 
reexport, or retransfer of a defense article, technical data, or defense 
service to any country referred to in Sec.  126.1 of this subchapter, 
any citizen of such country, or any person acting on its behalf.
    (c) Notification. (1) Any person wanting to disclose information 
that constitutes a voluntary disclosure should, in the manner outlined 
below, initially notify the Directorate of Defense Trade Controls 
immediately after a violation

[[Page 604]]

is discovered and then conduct a thorough review of all defense trade 
transactions where a violation is suspected.
    (i) If the notification does not contain all the information 
required by 127.12(c)(2) of this section, a full disclosure must be 
submitted within 60 calendar days of the notification, or the 
Directorate of Defense Trade Controls will not deem the notification to 
qualify as a voluntary disclosure.
    (ii) If the person is unable to provide a full disclosure within the 
60 calendar day deadline, an empowered official (see Sec.  120.25 of 
this subchapter) or a senior officer may request an extension of time in 
writing. A request for an extension must specify what information 
required by Sec.  127.12(c)(2) of this section could not be immediately 
provided and the reasons why.
    (iii) Before approving an extension of time to provide the full 
disclosure, the Directorate of Defense Trade Controls may require the 
requester to certify in writing that they will provide the full 
disclosure within a specific time period.
    (iv) Failure to provide a full disclosure within a reasonable time 
may result in a decision by the Directorate of Defense Trade Controls 
not to consider the notification as a mitigating factor in determining 
the appropriate disposition of the violation. In addition, the 
Directorate of Defense Trade Controls may direct the requester to 
furnish all relevant information surrounding the violation.
    (2) Notification of a violation must be in writing and should 
include the following information:
    (i) A precise description of the nature and extent of the violation 
(e.g., an unauthorized shipment, doing business with a party denied U.S. 
export privileges, etc.);
    (ii) The exact circumstances surrounding the violation (a thorough 
explanation of why, when, where, and how the violation occurred);
    (iii) The complete identities and addresses of all persons known or 
suspected to be involved in the activities giving rise to the violation 
(including mailing, shipping, and e-mail addresses; telephone and fax/
facsimile numbers; and any other known identifying information);
    (iv) Department of State license numbers, exemption citation, or 
description of any other authorization, if applicable;
    (v) U.S. Munitions List category and subcategory, product 
description, quantity, and characteristics or technological capability 
of the hardware, technical data or defense service involved;
    (vi) A description of corrective actions already undertaken that 
clearly identifies the new compliance initiatives implemented to address 
the causes of the violations set forth in the voluntary disclosure and 
any internal disciplinary action taken; and how these corrective actions 
are designed to deter those particular violations from occurring again;
    (vii) The name and address of the person making the disclosure and a 
point of contact, if different, should further information be needed.
    (3) Factors to be addressed in the voluntary disclosure include, for 
example, whether the violation was intentional or inadvertent; the 
degree to which the person responsible for the violation was familiar 
with the laws and regulations, and whether the person was the subject of 
prior administrative or criminal action under the AECA; whether the 
violations are systemic; and the details of compliance measures, 
processes and programs, including training, that were in place to 
prevent such violations, if any. In addition to immediately providing 
written notification, persons are strongly urged to conduct a thorough 
review of all export-related transactions where a possible violation is 
suspected.
    (d) Documentation. The written disclosure should be accompanied by 
copies of substantiating documents. Where appropriate, the documentation 
should include, but not be limited to:
    (1) Licensing documents (e.g., license applications, export 
licenses, and end-user statements), exemption citation, or other 
authorization description, if any;
    (2) Shipping documents (e.g., Electronic Export Information filing, 
including the Internal Transaction Number, air waybills, and bills of 
laden, invoices, and any other associated documents); and

[[Page 605]]

    (3) Any other relevant documents must be retained by the person 
making the disclosure until the Directorate of Defense Trade Controls 
requests them or until a final decision on the disclosed information has 
been made.
    (e) Certification. A certification must be submitted stating that 
all of the representations made in connection with the voluntary 
disclosure are true and correct to the best of that person's knowledge 
and belief. Certifications should be executed by an empowered official 
(See Sec.  120.25 of this subchapter), or by a senior officer (e.g. 
chief executive officer, president, vice-president, comptroller, 
treasurer, general counsel, or member of the board of directors). If the 
violation is a major violation, reveals a systemic pattern of 
violations, or reflects the absence of an effective compliance program, 
the Directorate of Defense Trade Controls may require that such 
certification be made by a senior officer of the company.
    (f) Oral presentations. Oral presentation is generally not necessary 
to augment the written presentation. However, if the person making the 
disclosure believes a meeting is desirable, a request should be included 
with the written presentation.
    (g) Send voluntary disclosures to the Office of Defense Trade 
Controls Compliance, Directorate of Defense Trade Controls. Consult the 
Directorate of Defense Trade Controls Web site at http://
www.pmddtc.state.gov for the appropriate street address.

[58 FR 39316, July 22, 1993, as amended at 70 FR 34655, June 15, 2005; 
71 FR 20550, Apr. 21, 2006; 72 FR 70778, Dec. 13, 2007; 77 FR 16642, 
Mar. 21, 2012]



PART 128_ADMINISTRATIVE PROCEDURES--Table of Contents



Sec.
128.1 Exclusion of functions from the Administrative Procedure Act.
128.2 Administrative Law Judge.
128.3 Institution of Administrative Proceedings.
128.4 Default.
128.5 Answer and demand for oral hearing.
128.6 Discovery.
128.7 Prehearing conference.
128.8 Hearings.
128.9 Proceedings before and report of Administrative Law Judge.
128.10 Disposition of proceedings.
128.11 Consent agreements.
128.12 Rehearings.
128.13 Appeals.
128.14 Confidentiality of proceedings.
128.15 Orders containing probationary periods.
128.16 Extension of time.
128.17 Availability of orders.

    Authority: Sections. 2, 38, 40, 42, and 71, Arms Export Control Act. 
90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791, and 2797); 22 U.S.C. 
2651a; E.O. 12291, 46 FR 1981; E.O. 13637, 78 FR 16129.

    Source: 58 FR 39320, July 22, 1993, unless otherwise noted.



Sec.  128.1  Exclusion of functions from the Administrative Procedure Act.

    The Arms Export Control Act authorizes the President to control the 
import and export of defense articles and services in furtherance of 
world peace and the security and foreign policy of the United States. It 
authorizes the Secretary of State to make decisions on whether license 
applications or other written requests for approval shall be granted, or 
whether exemptions may be used. It also authorizes the Secretary of 
State to revoke, suspend or amend licenses or other written approvals 
whenever the Secretary deems such action to be advisable. The 
administration of the Arms Export Control Act is a foreign affairs 
function encompassed within the meaning of the military and foreign 
affairs exclusion of the Administrative Procedure Act and is thereby 
expressly exempt from various provisions of that Act. Because the 
exercising of the foreign affairs function, including the decisions 
required to implement the Arms Export Control Act, is highly 
discretionary, it is excluded from review under the Administrative 
Procedure Act.

[61 FR 48831, Sept. 17, 1996]



Sec.  128.2  Administrative Law Judge.

    The Administrative Law Judge referred to in this part is an 
Administrative Law Judge appointed by the Department of State. The 
Administrative Law Judge is authorized to exercise the powers and 
perform the duties provided

[[Page 606]]

for in Sec. Sec.  127.7 and 128.3 through 128.16 of this subchapter.

[78 FR 52689, Aug. 26, 2013]



Sec.  128.3  Institution of Administrative Proceedings.

    (a) Charging letters. The Deputy Assistant Secretary of State for 
Defense Trade Controls or the Director, Office of Defense Trade Controls 
Compliance, with the concurrence of the Office of the Legal Adviser, 
Department of State, may initiate proceedings to impose debarment or 
civil penalties in accordance with Sec.  127.7 or Sec.  127.10 of this 
subchapter, respectively. Administrative proceedings shall be initiated 
by means of a charging letter. The charging letter will state the 
essential facts constituting the alleged violation and refer to the 
regulatory or other provision involved. It will give notice to the 
respondent to answer the charges within 30 days, as provided in Sec.  
128.5(a), and indicate that a failure to answer will be taken as an 
admission of the truth of the charges. It will inform the respondent 
that he or she is entitled to an oral hearing if a written demand for 
one is filed with the answer or within seven days after service of the 
answer. The respondent will also be informed that he or she may, if so 
desired, be represented by counsel of his or her choosing. Charging 
letters may be amended from time to time, upon reasonable notice.
    (b) Service. A charging letter is served upon a respondent:
    (1) If the respondent is a resident of the United States, when it is 
mailed postage prepaid in a wrapper addressed to the respondent at that 
person's last known address; or when left with the respondent or the 
agent or employee of the respondent; or when left at the respondent's 
dwelling with some person of suitable age and discretion then residing 
herein; or
    (2) If the respondent is a non-resident of the United States, when 
served upon the respondent by any of the foregoing means. If such 
methods of service are not practicable or appropriate, the charging 
letter may be tendered for service on the respondent to an official of 
the government of the country wherein the respondent resides, provided 
that there is an agreement or understanding between the United States 
Government and the government of the country wherein the respondent 
resident permitting this action.

[61 FR 48831, Sept. 17, 1996, as amended at 71 FR 20551, Apr. 21, 2006; 
78 FR 52689, Aug. 26, 2013]



Sec.  128.4  Default.

    (a) Failure to answer. If the respondent fails to answer the 
charging letter, the respondent may be held in default. The case shall 
then be referred to the Administrative Law Judge for consideration in a 
manner as the Administrative Law Judge may consider appropriate. Any 
order issued shall have the same effect as an order issued following the 
disposition of contested charges.
    (b) Petition to set aside defaults. Upon showing good cause, any 
respondent against whom a default order has been issued may apply to set 
aside the default and vacate the order entered thereon. The petition 
shall be submitted to duplicate to the Assistant Secretary for 
Political-Military Affairs, U.S. Department of State, 2201 C Street, 
NW., Washington, DC 20520. The Director will refer the petition to the 
Administrative Law Judge for consideration and a recommendation. The 
Administrative law Judge will consider the application and may order a 
hearing and require the respondent to submit further evidence in support 
of his or her petition. The filing of a petition to set aside a default 
does not in any manner affect an order entered upon default and such 
order continues in full force and effect unless a further order is made 
modifying or terminating it.

[61 FR 48832, Sept. 17, 1996]



Sec.  128.5  Answer and demand for oral hearing.

    (a) When to answer. The respondent is required to answer the 
charging letter within 30 days after service.
    (b) Contents of answer. An answer must be responsive to the charging 
letter. It must fully set forth the nature of the respondent's defense 
or defenses. In the answer, the respondent must admit or deny 
specifically each separate allegation of the charging letter, unless the 
respondent is without

[[Page 607]]

knowledge, in which case the respondent's answer shall so state and the 
statement shall operate as denial. Failure to deny or controvert any 
particular allegation will be deemed an admission thereof. The answer 
may set forth such additional or new matter as the respondent believes 
support a defense or claim of mitigation. Any defense or partial defense 
not specifically set forth in an answer shall be deemed waived. Evidence 
offered thereon by the respondent at a hearing may be refused except 
upon good cause being shown. If the respondent does not demand an oral 
hearing, he or she shall transmit, within seven (7) days after the 
service of his or her answer, original or photocopies of all 
correspondence, papers, records, affidavits, and other documentary or 
written evidence having any bearing upon or connection with the matters 
in issue. If any such materials are in language other than English, 
translations into English shall be submitted at the same time.
    (c) Submission of answer. The answer, written demand for oral 
hearing (if any) and supporting evidence required by paragraph (b) of 
this section shall be in duplicate and mailed or delivered to the 
designated Administrative Law Judge. A copy shall be simultaneously 
mailed to the Deputy Assistant Secretary of State for Defense Trade 
Controls, SA-1, Room 1200, Department of State, Washington, DC 20522-
0112, or delivered to 2401 Street NW., Washington, DC addressed to the 
Deputy Assistant Secretary of State for Defense Trade Controls, SA-1, 
Room 1200, Department of State, Washington, DC 20037.

[58 FR 39320, July 22, 1993, as amended at 61 FR 48832, Sept. 17, 1996; 
71 FR 20551, Apr. 21, 2006; 79 FR 8089, Feb. 11, 2014]



Sec.  128.6  Discovery.

    (a) Discovery by the respondent. The respondent, through the 
Administrative Law Judge, may request from the Directorate of Defense 
Trade Controls any relevant information, not privileged or otherwise not 
authorized for release, that may be necessary or helpful in preparing a 
defense. The Directorate of Defense Trade Controls may provide any 
relevant information, not privileged or otherwise not authorized for 
release, that may be necessary or helpful in preparing a defense. The 
Directorate of Defense Trade Controls may supply summaries in place of 
original documents and may withhold information from discovery if the 
interests of national security or foreign policy so require, or if 
necessary to comply with any statute, executive order or regulation 
requiring that the information not be disclosed. The respondent may 
request the Administrative Law Judge to request any relevant 
information, books, records, or other evidence, from any other person or 
government agency so long as the request is reasonable in scope and not 
unduly burdensome.
    (b) Discovery by the Directorate of Defense Trade Controls. The 
Directorate of Defense Trade Controls or the Administrative Law Judge 
may make reasonable requests from the respondent of admissions of facts, 
answers to interrogatories, the production of books, records, or other 
relevant evidence, so long as the request is relevant and material.
    (c) Subpoenas. At the request of any party, the Administrative Law 
Judge may issue subpoenas, returnable before him, requiring the 
attendance of witnesses and the production of books, records, and other 
documentary or physical evidence determined by he Administrative Law 
Judge to be relevant and material to the proceedings, reasonable in 
scope, and not unduly burdensome.
    (d) Enforcement of discovery rights. If the Directorate of Defense 
Trade Controls fails to provide the respondent with information in its 
possession which is not otherwise available and which is necessary to 
the respondent's defense, the Administrative Law Judge may dismiss the 
charges on her or his own motion or on a motion of the respondent. If 
the respondent fails to respond with reasonable diligence to the 
requests for discovery by the Directorate of Defense Trade Controls or 
the Administrative Law Judge, on her or his own motion or motion of the 
Directorate of Defense Trade Controls, and upon such notice to the 
respondent as the Administrative Law Judge may direct, may strike 
respondent's answer and declare the respondent in default,

[[Page 608]]

or make any other ruling which the Administrative Law Judge deems 
necessary and just under the circumstances. If a third party fails to 
respond to the request for information, the Administrative Law Judge 
shall consider whether the evidence sought is necessary to a fair 
hearing, and if it is so necessary that a fair hearing may not be held 
without it, the Administrative Law Judge shall determine whether 
substitute information is adequate to protect the rights of the 
respondent. If the Administrative Law Judge decides that a fair hearing 
may be held with the substitute information, then the proceedings may 
continue. If not, then the Administrative Law Judge may dismiss the 
charges.

[61 FR 48832, Sept. 17, 1996, as amended at 71 FR 20551, Apr. 21, 2006]



Sec.  128.7  Prehearing conference.

    (a)(1) The Administrative Law Judge may, upon his own motion or upon 
motion of any party, request the parties or their counsel to a 
prehearing conference to consider:
    (i) Simplification of issues;
    (ii) The necessity or desirability of amendments to pleadings;
    (iii) Obtaining stipulations of fact and of documents to avoid 
unnecessary proof; or
    (iv) Such other matter as may expedite the disposition of the 
proceeding.
    (2) The Administrative Law Judge will prepare a summary of the 
action agreed upon or taken at the conference, and will incorporate 
therein any written stipulations or agreements made by the parties.
    (3) The conference proceedings may be recorded magnetically or taken 
by a reporter and transcribed, and filed with the Administrative Law 
Judge.
    (b) If a conference is impracticable , the Administrative Law Judge 
may request the parties to correspond with the person to achieve the 
purposes of a conference. The Administrative Law Judge shall prepare a 
summary of action taken as in the case of a conference.

[61 FR 48832, Sept. 17, 1996, as amended at 71 FR 20551, Apr. 21, 2006]



Sec.  128.8  Hearings.

    (a) A respondent who had not filed a timely written answer is not 
entitled to a hearing, and the case may be considered by the 
Administrative Law Judge as provided in Sec.  128.4(a). If any answer is 
filed, but no oral hearing demanded, the Administrative Law Judge may 
proceed to consider the case upon the written pleadings and evidence 
available. The Administrative Law Judge may provide for the making of 
the record in such manner as the Administrative Law Judge deems 
appropriate. If respondent answers and demands an oral hearing, the 
Administrative Law Judge, upon due notice, shall set the case for 
hearing, unless a respondent has raised in his answer no issues of 
material fact to be determined. If respondent fails to appear at a 
scheduled hearing, the hearing nevertheless may proceed in respondent's 
absence. The respondent's failure to appear will not affect the validity 
of the hearing or any proceedings or action thereafter.
    (b) The Administrative Law Judge may administer oaths and 
affirmations. Respondent may be represented by counsel. Unless otherwise 
agreed by the parties and the Administrative Law Judge the proceeding 
will be taken by a reporter or by magnetic recording, transcribed, and 
filed with the Administrative Law Judge. Respondent may examine the 
transcript and may obtain a copy upon payment of proper costs.

[61 FR 48833, Sept. 17, 1996]



Sec.  128.9  Proceedings before and report of Administrative Law Judge.

    (a) The Administrative Law Judge may conform any part of the 
proceedings before him or her to the Federal Rules of Civil Procedure. 
The record may be made available in any other administrative or other 
proceeding involving the same respondent.
    (b) The Administrative Law Judge, after considering the record, will 
prepare a written report. The report will include findings of fact, 
findings of law, a finding whether a law or regulation has been 
violated, and the Administrative Law Judge's recommendations. It shall 
be transmitted to the Assistant

[[Page 609]]

Secretary for Political-Military Affairs, Department of State.

[61 FR 48833, Sept. 17, 1996]



Sec.  128.10  Disposition of proceedings.

    Where the evidence is not sufficient to support the charges, the 
Deputy Assistant Secretary of State for Defense Trade Controls or the 
Administrative Law Judge will dismiss the charges. Where the 
Administrative Law Judge finds that a violation has been committed, the 
Administrative Law Judge's recommendation shall be advisory only. The 
Assistant Secretary of State for Political-Military Affairs will review 
the record, consider the report of the Administrative Law Judge, and 
make an appropriate disposition of the case. The Deputy Assistant 
Secretary of State for Defense Trade Controls may issue an order 
debarring the respondent from participating in the export of defense 
articles or technical data or the furnishing of defense services as 
provided in Sec.  127.7 of this subchapter, impose a civil penalty as 
provided in Sec.  127.10 of this subchapter, or take such action as the 
Administrative Law Judge may recommend. Any debarment order will be 
effective for the period of time specified therein and may contain such 
additional terms and conditions as are deemed appropriate. A copy of the 
order together with a copy of the Administrative Law Judge's report will 
be served upon the respondent.

[79 FR 8089, Feb. 11, 2014]



Sec.  128.11  Consent agreements.

    (a) The Directorate of Defense Trade Controls and the respondent 
may, by agreement, submit to the Administrative Law Judge a proposal for 
the issuance of a consent order. The Administrative Law Judge will 
review the facts of the case and the proposal and may conduct 
conferences with the parties and may require the presentation of 
evidence in the case. If the Administrative Law Judge does not approve 
the proposal, the Administrative Law Judge will notify the parties and 
the case will proceed as though no consent proposal had been made. If 
the proposal is approved, the Administrative Law Judge will report the 
facts of the case along with recommendations to the Assistant Secretary 
of State for Political-Military Affairs. If the Assistant Secretary of 
State for Political-Military Affairs does not approve the proposal, the 
case will proceed as though no consent proposal had been made. If the 
Assistant Secretary of State for Political-Military Affairs approves the 
proposal, an appropriate order may be issued.
    (b) Cases may also be settled prior to service of a charging letter. 
In such an event, a proposed charging letter shall be prepared, and a 
consent agreement and order shall be submitted for the approval and 
signature of the Assistant Secretary for Political-Military Affairs, and 
no action by the Administrative Law Judge shall be required. Cases which 
are settled may not be reopened or appealed.

[61 FR 48833, Sept. 17, 1996, as amended at 71 FR 20552, Apr. 21, 2006]



Sec.  128.12  Rehearings.

    The Administrative Law Judge may grant a rehearing or reopen a 
proceeding at any time for the purpose of hearing any relevant and 
material evidence which was not known or obtainable at the time of the 
original hearing. A report for rehearing or reopening must contain a 
summary of such evidence, and must explain the reasons why it could not 
have been presented at the original hearing. The Administrative Law 
Judge will inform the parties of any further hearing, and will conduct 
such hearing and submit a report and recommendations in the same manner 
as provided for the original proceeding (Described in Sec.  128.10).

[61 FR 48833, Sept. 17, 1996]



Sec.  128.13  Appeals.

    (a) Filing of appeals. An appeal must be in writing, and be 
addressed to and filed with the Under Secretary of State for Arms 
Control and International Security, Department of State, Washington, DC 
20520. An appeal from a final order denying export privileges or 
imposing civil penalties must be filed within 30 days after receipt of a 
copy of the order. If the Under Secretary cannot for any reason act on 
the appeal,

[[Page 610]]

he or she may designate another Department of State official to receive 
and act on the appeal.
    (b) Grounds and conditions for appeal. The respondent may appeal 
from the debarment or from the imposition of a civil penalty (except the 
imposition of civil penalties pursuant to a consent order pursuant to 
Sec.  128.11) upon the ground: (1) That the findings of a violation are 
not supported by any substantial evidence; (2) that a prejudicial error 
of law was committed: or (3) that the provisions of the order are 
arbitrary, capricious, or an abuse of discretion. The appeal must 
specify upon which of these grounds the appeal is based and must 
indicate from which provisions of the order the appeal is taken. An 
appeal from an order issued upon default will not be entertained if the 
respondent has failed to seek relief as provided in Sec.  128.4(b).
    (c) Matters considered on appeal. An appeal will be considered upon 
the basis of the assembled record. This record consists of (but is not 
limited to) the charging letter, the respondent's answer, the transcript 
or magnetic recording of the hearing before the Administrative Law 
Judge, the report of the Administrative Law Judge, the order of the 
Assistant Secretary of State for Political-Military Affairs, and any 
other relevant documents involved in the proceedings before the 
Administrative Law Judge. The Under Secretary of State for Arms Control 
and International Security may direct a rehearing and reopening of the 
proceedings before the Administrative Law Judge if he or she finds that 
the record is insufficient or that new evidence is relevant and material 
to the issues and was not known and was not reasonably available to the 
respondent at the time of the original hearings.
    (d) Effect of appeals. The taking of an appeal will not stay the 
operation of any order.
    (e) Preparation of appeals--(1) General requirements. An appeal 
shall be in letter form. The appeal and accompanying material should be 
filed in duplicate, unless otherwise indicated, and a copy 
simultaneously mailed to the Deputy Assistant Secretary of State for 
Defense Trade Controls, SA-1, Room 1200, Department of State, 
Washington, DC 20522-0112 or delivered to 2401 E Street NW., Washington, 
DC addressed to the Deputy Assistant Secretary of State for Defense 
Trade Controls, SA-1, Room 1200, Department of State, Washington, DC 
20037.
    (2) Oral presentation. The Under Secretary of State for Arms Control 
and International Security may grant the appellant an opportunity for 
oral argument and will set the time and place for oral argument and will 
notify the parties, ordinarily at least 10 days before the date set.
    (f) Decisions. All appeals will be considered and decided within a 
reasonable time after they are filed. An appeal may be granted or denied 
in whole or in part, or dismissed at the request of the appellant. The 
decision of the Under Secretary of State for Arms Control and 
International Security will be final.

[58 FR 39320, July 22, 1993, as amended at 61 FR 48833, Sept. 17, 1996; 
71 FR 20552, Apr. 21, 2006; 79 FR 8089, Feb. 11, 2014]



Sec.  128.14  Confidentiality of proceedings.

    Proceedings under this part are confidential. The documents referred 
to in Sec.  128.17 are not, however, deemed to be confidential. Reports 
of the Administrative Law Judge and copies of transcripts or recordings 
of hearings will be available to parties and, to the extent of their own 
testimony, to witnesses. All records are available to any U.S. 
Government agency showing a proper interest therein.

[61 FR 48834, Sept. 17, 1996]



Sec.  128.15  Orders containing probationary periods.

    (a) Revocation of probationary periods. A debarment order may set a 
probationary period during which the order may be held in abeyance for 
all or part of the debarment period, subject to the conditions stated 
therein. The Deputy Assistant Secretary of State for Defense Trade 
Controls may apply, without notice to any person to be affected thereby, 
to the Administrative Law Judge for a recommendation on the 
appropriateness of revoking probation when it appears that the 
conditions of the probation have been breached. The facts in support of 
the application will

[[Page 611]]

be presented to the Administrative Law Judge, who will report thereon 
and make a recommendation to the Assistant Secretary of State for 
Political-Military Affairs. The latter will make a determination whether 
to revoke probation and will issue an appropriate order. The party 
affected by this action may request the Assistant Secretary of State for 
Political-Military Affairs to reconsider the decision by submitting a 
request within 10 days of the date of the order.
    (b) Hearings--(1) Objections upon notice. Any person affected by an 
application upon notice to revoke probation, within the time specified 
in the notice, may file objections with the Administrative Law Judge.
    (2) Objections to order without notice. Any person adversely 
affected by an order revoking probation, without notice may request that 
the order be set aside by filing his objections thereto with the 
Administrative Law Judge. The request will not stay the effective date 
of the order or revocation.
    (3) Requirements for filing objections. Objections filed with the 
Administrative Law Judge must be submitted in writing and in duplicate. 
A copy must be simultaneously submitted to the Directorate of Defense 
Trade Controls. Denials and admissions, as well as any mitigating 
circumstances, which the person affected intends to present must be set 
forth in or accompany the letter of objection and must be supported by 
evidence. A request for an oral hearing may be made at the time of 
filing objections.
    (4) Determination. The application and objections thereto will be 
referred to the Administrative Law Judge. An oral hearing if requested, 
will be conducted at an early convenient date, unless the objections 
filed raise no issues of material fact to be determined. The 
Administrative Law Judge will report the facts and make a recommendation 
to the Assistant Secretary for Political-Military Affairs, who will 
determine whether the application should be granted or denied and will 
issue an appropriate order. A copy of the order and of the 
Administrative Law Judge's report will be furnished to any person 
affected thereby.
    (5) Effect of revocation on other actions. The revocation of a 
probationary period will not preclude any other action concerning a 
further violation, even where revocation is based on the further 
violation.

[61 FR 48834, Sept. 17, 1996, as amended at 71 FR 20552, Apr. 21, 2006; 
78 FR 52689, Aug. 26, 2013; 79 FR 8089, Feb. 11, 2014]



Sec.  128.16  Extension of time.

    The Administrative Law Judge, for good cause shown, may extend the 
time within which to prepare and submit an answer to a charging letter 
or to perform any other act required by this part.

[61 FR 48834, Sept. 17, 1996]



Sec.  128.17  Availability of orders.

    All charging letters, debarment orders, and orders imposing civil 
penalties and probationary periods are available for public inspection 
in the Public Reading Room of the Department of State.

[78 FR 52690, Aug. 26, 2013]



PART 129_REGISTRATION AND LICENSING OF BROKERS--Table of Contents



Sec.
129.1 Purpose.
129.2 Definitions.
129.3 Requirement to register.
129.4 Requirement for approval.
129.5 Exemption from requirement for approval.
129.6 Procedures for obtaining approval.
129.7 Policy on embargoes and other proscriptions.
129.8 Submission of Statement of Registration, registration fees, and 
          notification of changes in information furnished by 
          registrants.
129.9 Guidance.
129.10 Reports.
129.11 Maintenance of brokering records by registrants.

    Authority: Section 38, Pub. L. 104-164, 110 Stat. 1437, (22 U.S.C. 
2778); E.O. 13637, 78 FR 16129.

    Source: 62 FR 67276, Dec. 24, 1997, unless otherwise noted.

[[Page 612]]



Sec.  129.1  Purpose.

    (a) Section 38(b)(1)(A)(ii) of the Arms Export Control Act (22 
U.S.C. 2778) provides that persons engaged in the business of brokering 
activities shall register and pay a registration fee as prescribed in 
regulations, and that no person may engage in the business of brokering 
activities without a license issued in accordance with the Act.
    (b) All brokering activities identified in this subchapter apply 
equally to those defense articles and defense services designated in 
Sec.  121.1 of this subchapter and those items designated in 27 CFR 
447.21 (U.S. Munitions Import List).

[78 FR 52690, Aug. 26, 2013, as amended at 85 FR 3833, Jan. 23, 2020]



Sec.  129.2  Definitions.

    As used in this part:
    (a) Broker means any person (see Sec.  120.14 of this subchapter) 
described below who engages in the business of brokering activities:
    (1) Any U.S. person (see Sec.  120.15 of this subchapter) wherever 
located;
    (2) Any foreign person (see Sec.  120.16 of this subchapter) located 
in the United States; or
    (3) Any foreign person located outside the United States where the 
foreign person is owned or controlled by a U.S. person.

    Note to paragraph (a)(3): For purposes of this paragraph, ``owned by 
a U.S. person'' means more than 50 percent of the outstanding voting 
securities of the firm are owned by a U.S. person, and ``controlled by a 
U.S. person'' means one or more U.S. persons have the authority or 
ability to establish or direct the general policies or day-to-day 
operations of the firm. U.S. person control is rebuttably presumed to 
exist where U.S. persons own 25 percent or more of the outstanding 
voting securities unless one foreign person controls an equal or larger 
percentage.

    (b) Brokering activities means any action on behalf of another to 
facilitate the manufacture, export, permanent import, transfer, 
reexport, or retransfer of a U.S. or foreign defense article or defense 
service, regardless of its origin.
    (1) Such action includes, but is not limited to:
    (i) Financing, insuring, transporting, or freight forwarding defense 
articles and defense services; or
    (ii) Soliciting, promoting, negotiating, contracting for, arranging, 
or otherwise assisting in the purchase, sale, transfer, loan, or lease 
of a defense article or defense service.
    (2) Such action does not include:
    (i) Activities by a U.S. person in the United States that are 
limited exclusively to U.S. domestic sales or transfers (e.g., not for 
export);
    (ii) Activities by employees of the U.S. Government acting in an 
official capacity;
    (iii) Activities by regular employees (see Sec.  120.39 of this 
subchapter) acting on behalf of their employer, including those regular 
employees who are dual nationals or third-country nationals that satisfy 
the requirements of Sec.  126.18 of this subchapter;

    Note to paragraph (b)(2)(iii): The exclusion does not apply to 
persons subject to U.S. jurisdiction with respect to activities 
involving a defense article or defense service originating in or 
destined for any proscribed country, area, or person identified in Sec.  
126.1 of this subchapter.

    (iv) Activities that do not extend beyond administrative services, 
such as providing or arranging office space and equipment, hospitality, 
advertising, or clerical, visa, or translation services, collecting 
product and pricing information to prepare a response to Request for 
Proposal, generally promoting company goodwill at trade shows, or 
activities by an attorney that do not extend beyond the provision of 
legal advice to clients;
    (v) Activities performed by an affiliate, as defined in Sec.  120.40 
of this subchapter, on behalf of another affiliate;
    (vi) Activities by persons, including their regular employees (see 
Sec.  120.39 of this subchapter), that do not extend beyond acting as an 
end-user of a defense article or defense service exported pursuant to a 
license or other approval under parts 123, 124, or 125 of this 
subchapter, or subsequently acting as a reexporter or retransferor of 
such article or service under such license or other approval, or under 
an approval pursuant to Sec.  123.9 of this subchapter;
    (vii) Activities by persons to facilitate the manufacture in the 
United

[[Page 613]]

States or export of an item subject to the EAR; or
    (viii) Activities by persons to facilitate the reexport, or transfer 
of an item subject to the EAR that has been approved pursuant to a 
license, license exception, or no license required authorization under 
the EAR or a license or other approval under this subchapter.
    (c) For the purposes of this subchapter, engaging in the business of 
brokering activities requires only one occasion of brokering as 
described in paragraph (b) of this section.

[78 FR 52690, Aug. 26, 2013, as amended at 85 FR 3833, Jan. 23, 2020]



Sec.  129.3  Requirement to register.

    (a) Except as provided in paragraph (b) of this section, any person 
who engages in brokering activities (see Sec.  129.2) is required to 
register with the Directorate of Defense Trade Controls. Registration 
under this section is generally a precondition for the issuance of 
approval for brokering activities required under this part 129 or the 
use of exemptions.
    (b) Exemptions. Registration, approval, recordkeeping, and reporting 
under this section are not required for:
    (1) Foreign governments or international organizations, including 
their employees, acting in an official capacity; or
    (2) Persons exclusively in the business of financing, insuring, 
transporting, customs brokering, or freight forwarding, whose activities 
do not extend beyond financing, insuring, transporting, customs 
brokering, or freight forwarding. Examples include air carriers or 
freight forwarders that merely transport or arrange transportation for 
licensed defense articles, and banks or credit companies who merely 
provide commercially available lines or letters of credit to persons 
registered or required to register in accordance with parts 122 or 129 
of this subchapter. However, banks, firms, or other persons providing 
financing for defense articles or defense services are required to 
register under certain circumstances, such as when the bank or its 
employees are directly involved in arranging transactions involving 
defense articles or defense services or hold title to defense articles, 
even when no physical custody of defense articles is involved. In such 
circumstances, the banks, firms, or other persons providing financing 
for defense articles or defense services are not exempt.
    (c) Persons exempt from registration, approval, recordkeeping, and 
reporting as provided in Sec.  129.3(b) are subject to the policy on 
embargoes and other proscriptions as outlined in Sec.  129.7.
    (d) U.S. persons who are registered as a manufacturer or exporter in 
accordance with part 122 of this subchapter, including their U.S. or 
foreign subsidiaries and other affiliates listed on their Statement of 
Registration who are required to register under this part, are not 
required to submit a separate broker registration or pay a separate 
broker registration fee when more than 50 percent of the voting 
securities are owned by the registrant or such subsidiaries and 
affiliates are otherwise controlled by the registrant (see Sec.  120.40 
of this subchapter), and they are listed and identified as brokers 
within their manufacturer or exporter Statement of Registration. All 
other requirements of this part apply to such brokers and their 
brokering activities.
    (e) Registration under this section is a precondition for the 
issuance of approval for brokering activities required under this 
section or the use of exemptions, unless an exception is granted by the 
Directorate of Defense Trade Controls.

[78 FR 52690, Aug. 26, 2013]



Sec.  129.4  Requirement for approval.

    (a) Except as provided in Sec.  129.5, no person who is required to 
register as a broker pursuant to Sec.  129.3 of this subchapter may 
engage in the business of brokering activities pursuant to Sec.  
129.2(b) without first obtaining the approval of the Directorate of 
Defense Trade Controls for the brokering of any of the following:
    (1) Any foreign defense article or defense service enumerated in 
part 121 of this subchapter (see Sec.  120.44 of this subchapter, and 
Sec.  129.5 for exemptions) and those foreign origin items on the U.S. 
Munitions Import List (see 27 CFR 447.21); or

[[Page 614]]

    (2) Any of the following U.S. origin defense articles or defense 
services:
    (i) Firearms and other weapons of a nature described by Category 
I(a) through (d), Category II(a) and (d), and Category III(a) of Sec.  
121.1 of this subchapter or Category I(a) through (c), Category II(a), 
and Category III(a) of the U.S. Munitions Import List (see 27 CFR 
447.21);
    (ii) Rockets, bombs, and grenades as well as launchers for such 
defense articles of a nature described by Category IV(a), and launch 
vehicles and missile and anti-missile systems of a nature described by 
Category IV(b) of Sec.  121.1 of this subchapter (including man-portable 
air-defense systems);
    (iii) Vessels of war described by Category VI of Sec.  121.1 of this 
subchapter;
    (iv) Tanks and military vehicles described by Category VII of Sec.  
121.1 of this subchapter;
    (v) Aircraft and unmanned aerial vehicles described by Category VIII 
of Sec.  121.1 of this subchapter;
    (vi) Night vision-related defense articles and inertial platform, 
sensor, and guidance-related systems of a nature described by Category 
XII(c) and (d) of Sec.  121.1 of this subchapter;
    (vii) Chemical agents and precursors described by Category XIV(a), 
(c), and (e) of Sec.  121.1 of this subchapter, biological agents and 
biologically derived substances described by Category XIV(b) of Sec.  
121.1 of this subchapter, and equipment described by Category XIV(f) of 
Sec.  121.1 of this subchapter for dissemination of the chemical agents 
and biological agents described by Category XIV(a), (b), and (e) of 
Sec.  121.1 of this subchapter;
    (viii) Submersible vessels described by Category XX of Sec.  121.1 
of this subchapter; and
    (ix) Miscellaneous articles of a nature described by Category XXI of 
Sec.  121.1 of this subchapter.
    (b) [Reserved]

[78 FR 52691, Aug. 26, 2013, as amended at 85 FR 3833, Jan 23, 2020]



Sec.  129.5  Exemption from requirement for approval.

    (a) Unless paragraph (c) of this section applies, brokering 
activities undertaken for an agency of the U.S. Government pursuant to a 
contract between the broker and that agency are exempt from the 
requirement for approval provided that:
    (1) The brokering activities concern defense articles or defense 
services solely for the use of the agency; or
    (2) The brokering activities are undertaken for carrying out a 
foreign assistance or sales program authorized by law and subject to 
control by the President by other means, as demonstrated by one of the 
following conditions being met:
    (i) The U.S. Government agency contract with the broker contains an 
explicit provision stating the contract supports a foreign assistance or 
sales program authorized by law and the contracting agency has 
established control of the activity covered by the contract by other 
means equivalent to that established under this subchapter; or
    (ii) The Directorate of Defense Trade Controls provides written 
concurrence in advance that the condition is met.
    (b) Unless paragraph (c) of this section applies, brokering 
activities regarding a foreign defense article or defense service (see 
Sec.  120.44 of this subchapter) are exempt from the requirement for 
approval when arranged wholly within and destined exclusively for the 
North Atlantic Treaty Organization, any member country of that 
organization, Australia, Israel, Japan, New Zealand, or the Republic of 
Korea, except in the case of the defense articles or defense services 
specified in Sec.  129.4(a)(2), for which approval is required.
    (c) Brokers engaging in brokering activities described in paragraph 
(a) or (b) of this section are not exempt from obtaining approval from 
the Directorate of Defense Trade Controls if:
    (1) The broker is not registered as required by Sec.  129.3;
    (2) The broker or any person who has a direct or indirect interest 
in or may benefit from the brokering activities, including any related 
defense article or defense service transaction, is ineligible as defined 
in Sec.  120.1(c)(2) of this subchapter; or
    (3) A country or person referred to in Sec.  126.1 of this 
subchapter is involved in the brokering activities or such activities 
are otherwise subject to Sec.  129.7.

[[Page 615]]

    (d) Brokers who use the exemptions in this section must comply with 
all other provisions of this part 129.

[78 FR 52691, Aug. 26, 2013]



Sec.  129.6  Procedures for obtaining approval.

    (a) All requests for approval of brokering activities must be made 
to the Directorate of Defense Trade Controls, be signed by an empowered 
official, and include the following information:
    (1) The applicant's name, address and registration code;
    (2) A certification on whether:
    (i) The applicant or the chief executive officer, president, vice 
presidents, secretary, partner, member, other senior officers or 
officials (e.g., comptroller, treasurer, general counsel), or any member 
of the board of directors is the subject of an indictment or has been 
otherwise charged (e.g., by criminal information in lieu of indictment) 
for, or has been convicted of, violating any of the U.S. criminal 
statutes enumerated in Sec.  120.27 of this subchapter;
    (ii) The applicant or the chief executive officer, president, vice 
presidents, secretary, partner, member, other senior officers or 
officials (e.g., comptroller, treasurer, general counsel), or any member 
of the board of directors is ineligible to contract with, or to receive 
a license or other approval to import defense articles or defense 
services from, or to receive an export license or other approval from, 
any agency of the U.S. Government; and
    (iii) To the best of the applicant's knowledge, any other person 
involved in the brokering activities enumerated in the request for 
approval as defined in Sec.  129.2 is the subject of an indictment or 
has been otherwise charged (e.g., charged by criminal information in 
lieu of indictment) for or has been convicted of violating any of the 
U.S. criminal statutes enumerated in Sec.  120.27 of this subchapter, or 
is ineligible to contract with, or to receive a license or other 
approval to import defense articles or defense services from, or to 
receive an export license or other approval from, any agency of the U.S. 
Government.
    (b) The request for approval shall describe fully the brokering 
activities that will be undertaken, including:
    (1) The action to be taken by the applicant to facilitate the 
manufacture, export, import, or transfer of a defense article or defense 
service (which may be referred to as a ``defense article or defense 
service transaction'');
    (2) The name, nationality, address, and place of business of all 
persons who may participate in the brokering activities;
    (3) A description of each defense article or defense service that 
may be involved, including:
    (i) The U.S. Munitions List (see Sec.  121.1 of this subchapter) or 
U.S. Munitions Import List (see 27 CFR 447.21) category and sub-category 
for each article;
    (ii) The name or military nomenclature of each defense article;
    (iii) Whether the defense article is significant military equipment;
    (iv) Estimated quantity of each defense article;
    (v) Estimated U.S. dollar value of defense articles and defense 
services;
    (vi) Security classification; and
    (vii) End-user and end-use; and
    (4) A statement whether the brokering activities are related to a 
sale through direct commercial sale or under the U.S. Foreign Military 
Sales program or other activity in support of the U.S. Government.
    (c) The empowered official signing the request for approval shall 
include a certification that the request is complete and accurate.
    (d) If at the time of submission certain information required by 
paragraph (b) of this section is not yet available, this fact must be 
stated and explained in the certification required by paragraph (c) of 
this section. The Directorate of Defense Trade Controls will take any 
such explanation into account in deciding whether to approve the 
request.
    (e) The period of validity for an approval may not exceed four 
years.

[78 FR 52691, Aug. 26, 2013, as amended at 85 FR 3833, Jan. 23, 2020]



Sec.  129.7  Policy on embargoes and other proscriptions.

    (a) This section applies to brokering activities defined in Sec.  
129.2, regardless

[[Page 616]]

of whether the person involved in such activities has registered or is 
exempt from registration under Sec.  129.3. The exemptions in Sec.  
129.5 from the requirement for approval are not applicable to brokering 
activities subject to this section.
    (b) No person may engage in or make a proposal to engage in 
brokering activities that involve any country, area, or person referred 
to in Sec.  126.1 of this subchapter without first obtaining the 
approval of the Directorate of Defense Trade Controls.
    (c) No person may engage in or make a proposal to engage in 
brokering activities without first obtaining approval of the Directorate 
of Defense Trade Controls if such activities involve countries or 
persons identified by the Department of State through notice in the 
Federal Register, with respect to which certain limitations on defense 
articles or defense services are imposed for reasons of U.S. national 
security, foreign policy, or law enforcement interests (e.g., an 
individual subject to debarment pursuant to Sec.  127.7 of this 
subchapter). (See Sec.  127.1(c) of this subchapter for additional 
disclosure and approval requirements applicable to brokering 
activities.)
    (d) It is the policy of the Department of State to deny requests for 
approval of brokering activities or proposals to engage in brokering 
activities involving the countries or persons referred to in paragraph 
(b) or (c) of this section. Any person who knows or has reason to know 
of brokering activities involving such countries or persons must 
immediately inform the Directorate of Defense Trade Controls.

[78 FR 52692, Aug. 26, 2013]



Sec.  129.8  Submission of Statement of Registration, registration fees, 
and notification of changes in information furnished by registrants.

    (a) An intended registrant must submit a Department of State form 
DS-2032 (Statement of Registration) to the Office of Defense Trade 
Controls Compliance by following the submission guidelines available on 
the Directorate of Defense Trade Controls Web site at 
www.pmddtc.state.gov. The Statement of Registration must be signed by a 
U.S. person senior officer (e.g., chief executive officer, president, 
secretary, partner, member, treasurer, general counsel) who has been 
empowered by the intended registrant to sign such documents, with the 
exception that a foreign senior officer may sign the Statement of 
Registration if the intended registrant seeks only to register as a 
foreign broker. The Statement of Registration may include subsidiaries 
and affiliates when more than 50 percent of the voting securities are 
owned by the registrant or the subsidiaries and affiliates are otherwise 
controlled by the registrant (see Sec.  120.40 of this subchapter). The 
intended registrant, whether a U.S. or foreign person, shall submit 
documentation that demonstrates it is incorporated or otherwise 
authorized to do business in its respective country. Foreign persons who 
are required to register shall provide information that is substantially 
similar in content to that which a U.S. person would provide under this 
provision (e.g., foreign business license or similar authorization to do 
business). The Directorate of Defense Trade Controls will notify the 
registrant if the Statement of Registration (form DS-2032) is incomplete 
either by notifying the registrant of what information is required or 
through the return of the entire registration package.
    (b)(1) Frequency of registration and fee. A person who is required 
to register must do so on an annual basis by submitting a completed 
Statement of Registration (form DS-2032) and a fee following the fee 
guidelines available on the Directorate of Defense Trade Controls Web 
site at www.pmddtc.state.gov. Registrants are not required to submit a 
separate statement of registration and pay an additional fee when 
provisions in Sec.  129.3(d) are met.
    (2) Expiration of registration. A registrant must submit its request 
for registration renewal at least 30 days, but no earlier than 60 days, 
prior to the expiration date.
    (3) Lapse in registration. A registrant who fails to renew a 
registration and, after an intervening period, seeks to register again 
must pay registration fees for any part of such intervening period 
during which the registrant engaged in the business of brokering defense 
articles or defense services.

[[Page 617]]

    (c) Statement of Registration Certification. The Statement of 
Registration (form DS-2032) of the intended registrant shall include a 
certification by an authorized senior officer of the following:
    (1) Whether the intended registrant or its parent, subsidiary, or 
other affiliate listed in the Statement of Registration, or any of its 
chief executive officers, presidents, vice presidents, secretaries, 
partners, members, other senior officers or officials (e.g., 
comptroller, treasurer, general counsel), or any member of the board of 
directors of the intended registrant, or of any parent, subsidiary, or 
other affiliate listed in the Statement of Registration:
    (i) Has ever been indicted or otherwise charged (e.g., charged by 
criminal information in lieu of indictment) for or has been convicted of 
violating any U.S. criminal statutes enumerated in Sec.  120.27 of this 
subchapter or violating a foreign criminal law on exportation of defense 
articles where conviction of such law carries a minimum term of 
imprisonment of greater than 1 year; or
    (ii) Is ineligible to contract with, or to receive a license or 
other approval to import defense articles or defense services from, or 
to receive an export license or other approval from, any agency of the 
U.S. Government; and
    (2) Whether the intended registrant is foreign owned or foreign 
controlled (see Sec.  120.37 of this subchapter). If the intended 
registrant is foreign owned or foreign controlled, the certification 
shall include an explanation of such ownership or control, including the 
identities of the foreign person or persons who ultimately own or 
control the registrant. This requirement applies to a registrant who is 
a U.S. person and is owned or controlled by a foreign person. It also 
applies to a registrant who is a foreign person and is owned or 
controlled by a foreign person from the same country or a foreign person 
from another country.
    (d) A registrant must, within five days of the event, provide to the 
Directorate of Defense Trade Controls a written notification, signed by 
a senior officer (e.g., chief executive officer, president, secretary, 
partner, member, treasurer, general counsel), if:
    (1) Any of the persons referred to in Sec.  129.8(c) is indicted or 
otherwise charged (e.g., charged by criminal information in lieu of 
indictment) for or convicted of violating any of the U.S. criminal 
statutes enumerated in Sec.  120.27 of this subchapter or violating a 
foreign criminal law on exportation of defense articles where conviction 
of such law carries a minimum term of imprisonment of greater than 1 
year; or becomes ineligible to contract with, or to receive a license or 
other approval to export or import defense articles or defense services 
from, any agency of the U.S. government; or
    (2) There is a change in the following information contained in the 
Statement of Registration (form DS-2032):
    (i) Registrant's name;
    (ii) Registrant's address;
    (iii) Registrant's legal organization structure;
    (iv) Ownership or control;
    (v) The establishment, acquisition or divestment of a U.S. or 
foreign subsidiary or other affiliate who is engaged in brokering 
activities or otherwise required to be listed in registrant's Statement 
of Registration; or
    (vi) Board of directors, senior officers, partners and owners.

    Note 1 to paragraph (d): All other changes in the Statement of 
Registration must be provided as part of annual registration renewal.
    Note 2 to paragraph (d): For one year from October 25, 2013, 
``Amendment to the International Traffic in Arms Regulations: 
Registration and Licensing of Brokers, Brokering Activities, and Related 
Provisions,'' RIN 1400-AC37, the following changes must be provided as 
part of the annual registration renewal: pursuant to Sec.  129.3(d), 
changes to combine an existing broker registration with an existing 
manufacturer/exporter registration, and pursuant to Sec.  129.8(a), 
changes to an existing registration to remove partially owned and not 
otherwise controlled subsidiaries or affiliates, which are not the 
subject of an internal reorganization, merger, acquisition, or 
divestiture.

    (e) A U.S. or foreign registrant must provide written notification 
to the Directorate of Defense Trade Controls at least sixty (60) days in 
advance of any intended sale or transfer to a foreign person of 
ownership or control of the registrant or any parent, subsidiary, or 
other affiliate listed and covered in its Statement of Registration. 
Such notice

[[Page 618]]

does not relieve the registrant from obtaining any prior approval 
required under this subchapter.
    (f) The new entity formed when a registrant merges with another 
company or acquires, or is acquired by, another company or a subsidiary 
or division of another company, shall advise the Directorate of Defense 
Trade Controls of the following:
    (1) The new firm name and all previous firm names;
    (2) The registration number that will continue and those that are to 
be discontinued (if any); and
    (3) The numbers of all approvals for brokering activities under the 
continuing registration number, since any approval not the subject of 
notification will be considered invalid.
    (g) A registrant whose registration lapses because of failure to 
renew and, after an intervening period, seeks to register again must pay 
registration fees for any part of such intervening period during which 
the registrant engaged in the business of brokering activities.

[78 FR 52692, Aug. 26, 2013]



Sec.  129.9  Guidance.

    (a) Any person desiring guidance on whether an activity constitutes 
a brokering activity within the scope of this part 129 may request in 
writing guidance from the Directorate of Defense Trade Controls. The 
request for guidance shall identify the applicant and registrant code 
(if applicable) and describe fully the activities that will be 
undertaken, including:
    (1) The specific activities to be undertaken by the applicant and 
any other U.S. or foreign person;
    (2) The name, nationality, and geographic location of all U.S. and 
foreign persons who may participate in the activities;
    (3) A description of each defense article or defense service that 
may be involved, including:
    (i) The U.S. Munitions List category and sub-category for each 
article;
    (ii) The name or military nomenclature of each defense article;
    (iii) Whether the defense article is significant military equipment;
    (iv) Estimated quantity of each defense article;
    (v) Estimated U.S. dollar value of defense articles and defense 
services; and
    (vi) Security classification;
    (4) End-user and end-use; and
    (5) A copy of any agreement or documentation, if available, between 
or among the requester and other persons who will be involved in the 
activity or related transactions that describes the activity to be taken 
by such persons.
    (b) If at the time of submission certain information is not yet 
available, this circumstance must be stated and explained. The 
Directorate of Defense Trade Controls will take the completeness of the 
information into account in providing guidance on whether the activities 
constitute brokering activities. The guidance will constitute an 
official determination by the Department of State. The guidance shall 
not substitute for approval when required under Sec.  129.4.
    (c) Persons desiring guidance on other aspects of this part may also 
request guidance from the Directorate of Defense Trade Controls in a 
similar manner by submitting a description of the relevant facts or 
copies of relevant documentation.

[78 FR 52693, Aug. 26, 2013]



Sec.  129.10  Reports.

    (a) Any person required to register under this part (including those 
registered in accordance with Sec.  129.3(d)) shall provide to the 
Directorate of Defense Trade Controls on an annual basis a report of its 
brokering activities in the previous twelve months. Such report shall be 
submitted along with the registrant's annual renewal submission or, if 
not renewing, within 30 days after expiration of registration.
    (b) The report shall include brokering activities that received or 
were exempt from approval as follows:
    (1) The report shall identify the broker's name, address, and 
registration code and be signed by an empowered official who shall 
certify that the report is complete and accurate. The report shall 
describe each of the brokering activities, including the number assigned 
by the Directorate of Defense Trade Controls to the approval or the 
exemption claimed; and

[[Page 619]]

    (2) For each of the brokering activities, the report shall identify 
all persons who participated in the activities, including each person's 
name, address, nationality, and country where located and role or 
function; the quantity, description, and U.S. dollar value of the 
defense articles or defense services; the type and U.S. dollar value of 
any consideration received or expected to be received, directly or 
indirectly, by any person who participated in the brokering activities, 
and the source thereof.
    (c) If there were no brokering activities, the report shall certify 
that there were no such activities.

[78 FR 52694, Aug. 26, 2013]



Sec.  129.11  Maintenance of brokering records by registrants.

    A person who is required to register pursuant to this part 
(including those registered in accordance with Sec.  129.3(d)) must 
maintain records concerning brokering activities in accordance with 
Sec.  122.5 of this subchapter.

[78 FR 52694, Aug. 26, 2013]



PART 130_POLITICAL CONTRIBUTIONS, FEES AND COMMISSIONS--Table of Contents



Sec.
130.1 Purpose.
130.2 Applicant.
130.3 Armed forces.
130.4 Defense articles and defense services.
130.5 Fee or commission.
130.6 Political contribution.
130.7 Supplier.
130.8 Vendor.
130.9 Obligation to furnish information to the Directorate of Defense 
          Trade Controls.
130.10 Information to be furnished by applicant or supplier to the 
          Directorate of Defense Trade Controls.
130.11 Supplementary reports.
130.12 Information to be furnished by vendor to applicant or supplier.
130.13 Information to be furnished to applicant, supplier or vendor by a 
          recipient of a fee or commission.
130.14 Recordkeeping.
130.15 Confidential business information.
130.16 Other reporting requirements.
130.17 Utilization of and access to reports and records.

    Authority: Sec. 39, Pub. L. 94-329, 90 Stat. 767 (22 U.S.C. 2779); 
22 U.S.C. 2651a; E.O. 13637, 78 FR 16129.

    Source: 58 FR 39323, July 22, 1993, unless otherwise noted.



Sec.  130.1  Purpose.

    Section 39(a) of the Arms Export Control Act (22 U.S.C. 2779) 
provides that the Secretary of State shall prescribe regulations with 
respect to reporting on certain payments relating to sales of defense 
articles and defense services. The provisions of this part implement 
that requirement. Definitions which apply to this part are contained in 
Sec. Sec.  130.2 through 130.8.



Sec.  130.2  Applicant.

    Applicant means any person who applies to the Directorate of Defense 
Trade Controls for any license or approval required under this 
subchapter for the export, reexport, or retransfer of defense articles 
or defense services valued in an amount of $500,000 or more which are 
being sold commercially to or for the use of the armed forces of a 
foreign country or international organization. This term also includes a 
person to whom the required license or approval has been given.

[81 FR 62008, Sept. 8, 2016]



Sec.  130.3  Armed forces.

    Armed forces means the army, navy, marine, air force, or coast 
guard, as well as the national guard and national police, of a foreign 
country. This term also includes any military unit or military personnel 
organized under or assigned to an international organization.



Sec.  130.4  Defense articles and defense services.

    Defense articles and defense services have the meaning given those 
terms in paragraphs (3), (4) and (7) of section 47 of the Arms Export 
Control Act (22 U.S.C. 2794 (3), (4), and (7)). When used with reference 
to commercial sales, the definitions in Sec. Sec.  120.6 and 120.9 of 
this subchapter apply.

[[Page 620]]



Sec.  130.5  Fee or commission.

    (a) Fee or commission means, except as provided in paragraph (b) of 
this section, any loan, gift, donation or other payment of $1,000 or 
more made, or offered or agreed to be made directly or indirectly, 
whether in cash or in kind, and whether or not pursuant to a written 
contract, which is:
    (1) To or at the direction of any person, irrespective of 
nationality, whether or not employed by or affiliated with an applicant, 
a supplier or a vendor; and
    (2) For the solicitation or promotion or otherwise to secure the 
conclusion of a sale of defense articles or defense services to or for 
the use of the armed forces of a foreign country or international 
organization.
    (b) The term fee or commission does not include:
    (1) A political contribution or a payment excluded by Sec.  130.6 
from the definition of political contribution;
    (2) A normal salary (excluding contingent compensation) established 
at an annual rate and paid to a regular employee of an applicant, 
supplier or vendor;
    (3) General advertising or promotional expenses not directed to any 
particular sale or purchaser; or
    (4) Payments made, or offered or agreed to be made, solely for the 
purchase by an applicant, supplier or vendor of specific goods or 
technical, operational or advisory services, which payments are not 
disproportionate in amount with the value of the specific goods or 
services actually furnished.

[58 FR 39323, July 22, 1993, as amended at 71 FR 20554, Apr. 21, 2006]



Sec.  130.6  Political contribution.

    Political contribution means any loan, gift, donation or other 
payment of $1,000 or more made, or offered or agreed to be made, 
directly or indirectly, whether in cash or in kind, which is:
    (a) To or for the benefit of, or at the direction of, any foreign 
candidate, committee, political party, political faction, or government 
or governmental subdivision, or any individual elected, appointed or 
otherwise designated as an employee or officer thereof; and
    (b) For the solicitation or promotion or otherwise to secure the 
conclusion of a sale of defense articles or defense services to or for 
the use of the armed forces of a foreign country or international 
organization. Taxes, customs duties, license fees, and other charges 
required to be paid by applicable law or regulation are not regarded as 
political contributions.



Sec.  130.7  Supplier.

    Supplier means any person who enters into a contract with the 
Department of Defense for the sale of defense articles or defense 
services valued in an amount of $500,000 or more under section 22 of the 
Arms Export Control Act (22 U.S.C. 2762).



Sec.  130.8  Vendor.

    (a) Vendor means any distributor or manufacturer who, directly or 
indirectly, furnishes to an applicant or supplier defense articles 
valued in an amount of $500,000 or more which are end-items or major 
components as defined in Sec.  120.45 of this subchapter. It also means 
any person who, directly or indirectly, furnishes to an applicant or 
supplier defense articles or services valued in an amount of $500,000 or 
more when such articles or services are to be delivered (or incorporated 
in defense articles or defense services to be delivered) to or for the 
use of the armed forces of a foreign country or international 
organization under:
    (1) A sale requiring a license or approval from the Directorate of 
Defense Trade Controls under this subchapter; or
    (2) A sale pursuant to a contract with the Department of Defense 
under section 22 of the Arms Export Control Act (22 U.S.C. 2762).
    (b) [Reserved]

[58 FR 39323, July 22, 1993, as amended at 71 FR 20554, Apr. 21, 2006; 
79 FR 61236, Oct. 10, 2014]



Sec.  130.9  Obligation to furnish information to the Directorate 
of Defense Trade Controls.

    (a)(1) Each applicant must inform the Directorate of Defense Trade 
Controls

[[Page 621]]

as to whether the applicant or its vendors have paid, or offered or 
agreed to pay, in respect of any sale for which a license or approval is 
requested:
    (i) Political contributions in an aggregate amount of $5,000 or 
more, or
    (ii) Fees or commissions in an aggregate amount of $100,000 or more. 
If so, applicant must furnish to the Directorate of Defense Trade 
Controls the information specified in Sec.  130.10. The furnishing of 
such information or an explanation satisfactory to the Director of the 
Office of Defense Trade Controls Licensing as to why all the information 
cannot be furnished at that time is a condition precedent to the 
granting of the relevant license or approval.
    (2) The requirements of this paragraph do not apply in the case of 
an application with respect to a sale for which all the information 
specified in Sec.  130.10 which is required by this section to be 
reported shall already have been furnished.
    (b) Each supplier must inform the Directorate of Defense Trade 
Controls as to whether the supplier or its vendors have paid, or offered 
or agreed to pay, in respect of any sale:
    (1) Political contributions in an aggregate amount of $5,000 or 
more, or
    (2) Fees or commissions in an aggregate amount of $100,000 or more. 
If so, the supplier must furnish to the Directorate of Defense Trade 
Controls the information specified in Sec.  130.10. The information 
required to be furnished pursuant to this paragraph must be so furnished 
no later than 30 days after the contract award to such supplier, or such 
earlier date as may be specified by the Department of Defense. For 
purposes of this paragraph, a contract award includes a purchase order, 
exercise of an option, or other procurement action requiring a supplier 
to furnish defense articles or defense services to the Department of 
Defense for the purposes of Sec.  22 of the Arms Export Control Act (22 
U.S.C. 2762).
    (c) In determining whether an applicant or its vendors, or a 
supplier or its vendors, as the case may be, have paid, or offered or 
agreed to pay, political contributions in an aggregate amount of $5,000 
or more in respect of any sale so as to require a report under this 
section, there must be included in the computation of such aggregate 
amount any political contributions in respect of the sale which are paid 
by or on behalf of, or at the direction of, any person to whom the 
applicant, supplier or vendor has paid, or offered or agreed to pay, a 
fee or commission in respect of the sale. Any such political 
contributions are deemed for purposes of this part to be political 
contributions by the applicant, supplier or vendor who paid or offered 
or agreed to pay the fee or commission.
    (d) Any applicant or supplier which has informed the Directorate of 
Defense Trade Controls under this section that neither it nor its 
vendors have paid, or offered or agreed to pay, political contributions 
or fees or commissions in an aggregate amount requiring the information 
specified in Sec.  130.10 to be furnished, must subsequently furnish 
such information within 30 days after learning that it or its vendors 
had paid, or offered or agreed to pay, political contributions or fees 
or commissions in respect of a sale in an aggregate amount which, if 
known to applicant or supplier at the time of its previous communication 
with the Directorate of Defense Trade Controls, would have required the 
furnishing of information under Sec.  130.10 at that time. Any report 
furnished under this paragraph must, in addition to the information 
specified in Sec.  130.10, include a detailed statement of the reasons 
why applicant or supplier did not furnish the information at the time 
specified in paragraph (a) or paragraph (b) of this section, as 
applicable.

[58 FR 39323, July 22, 1993, as amended at 71 FR 20554, Apr. 21, 2006; 
79 FR 8089, Feb. 11, 2014]



Sec.  130.10  Information to be furnished by applicant or supplier 
to the Directorate of Defense Trade Controls.

    (a) Every person required under Sec.  130.9 to furnish information 
specified in this section in respect to any sale must furnish to the 
Directorate of Defense Trade Controls:
    (1) The total contract price of the sale to the foreign purchaser;
    (2) The name, nationality, address and principal place of business 
of the

[[Page 622]]

applicant or supplier, as the case may be, and, if applicable, the 
employer and title;
    (3) The name, nationality, address and principal place of business, 
and if applicable, employer and title of each foreign purchaser, 
including the ultimate end-user involved in the sale;
    (4) Except as provided in paragraph (c) of this section, a statement 
setting forth with respect to such sale:
    (i) The amount of each political contribution paid, or offered or 
agreed to be paid, or the amount of each fee or commission paid, or 
offered or agreed to be paid;
    (ii) The date or dates on which each reported amount was paid, or 
offered or agreed to be paid;
    (iii) The recipient of each such amount paid, or intended recipient 
if not yet paid;
    (iv) The person who paid, or offered or agreed to pay such amount; 
and
    (v) The aggregate amounts of political contributions and of fees or 
commission, respectively, which shall have been reported.
    (b) In responding to paragraph (a)(4) of this section, the statement 
must:
    (1) With respect to each payment reported, state whether such 
payment was in cash or in kind. If in kind, it must include a 
description and valuation thereof. Where precise amounts are not 
available because a payment has not yet been made, an estimate of the 
amount offered or agreed to be paid must be provided;
    (2) With respect to each recipient, state:
    (i) Its name;
    (ii) Its nationality;
    (iii) Its address and principal place of business;
    (iv) Its employer and title; and
    (v) Its relationship, if any, to applicant, supplier, or vendor, and 
to any foreign purchaser or end-user.
    (c) In submitting a report required by Sec.  130.9, the detailed 
information specified in paragraph (a)(4) and (b) of this section need 
not be included if the payments do not exceed:
    (1) $2,500 in the case of political contributions; and
    (2) $50,000 in the case of fees or commissions.

In lieu of reporting detailed information with respect to such payments, 
the aggregate amount thereof must be reported, identified as 
miscellaneous political contributions or miscellaneous fees or 
commissions, as the case may be.
    (d) Every person required to furnish the information specified in 
paragraphs (a) and (b) of this section must respond fully to each 
subdivision of those paragraphs and, where the correct response is 
``none'' or ``not applicable,'' must so state.

[58 FR 39323, July 22, 1993, as amended at 71 FR 20554, Apr. 21, 2006]



Sec.  130.11  Supplementary reports.

    (a) Every applicant or supplier who is required under Sec.  130.9 to 
furnish the information specified in Sec.  130.10 must submit a 
supplementary report in connection with each sale in respect of which 
applicant or supplier has previously been required to furnish 
information if:
    (1) Any political contributions aggregating $2,500 or more or fees 
or commissions aggregating $50,000 or more not previously reported or 
paid, or offered or agreed to be paid by applicant or supplier or any 
vendor;
    (2) Subsequent developments cause the information initially reported 
to be no longer accurate or complete (as in the case where a payment 
actually made is substantially different in amount from a previously 
reported estimate of an amount offered or agreed to be paid); or
    (3) Additional details are requested by the Directorate of Defense 
Trade Controls with respect to any miscellaneous payments reported under 
Sec.  130.10(c).
    (b) Supplementary reports must be sent to the Directorate of Defense 
Trade Controls within 30 days after the payment, offer or agreement 
reported therein or, when requested by the Directorate of Defense Trade 
Controls, within 30 days after such request, and must include:
    (1) Any information specified in Sec.  130.10 required or requested 
to be reported and which was not previously reported; and
    (2) The Directorate of Defense Trade Controls license number, if 
any, and

[[Page 623]]

the Department of Defense contract number, if any, related to the sale.

[58 FR 39323, July 22, 1993, as amended at 71 FR 20554, Apr. 21, 2006]



Sec.  130.12  Information to be furnished by vendor to applicant or supplier.

    (a) In order to determine whether it is obliged under Sec.  130.9 to 
furnish the information specified in Sec.  130.10 with respect to a 
sale, every applicant or supplier must obtain from each vendor, from or 
through whom the applicant acquired defense articles or defense services 
forming the whole or a part of the sale, a full disclosure by the vendor 
of all political contributions or fees or commission paid, by vendor 
with respect to such sale. Such disclosure must include responses to all 
the information pertaining to vendor required to enable applicant or 
supplier, as the case may be, to comply fully with Sec. Sec.  130.9 and 
130.10. If so required, they must include the information furnished by 
each vendor in providing the information specified.
    (b) Any vendor which has been requested by an applicant or supplier 
to furnish an initial statement under paragraph (a) of this section 
must, except as provided in paragraph (c) of this section, furnish such 
statement in a timely manner and not later than 20 days after receipt of 
such request.
    (c) If the vendor believes that furnishing information to an 
applicant or supplier in a requested statement would unreasonably risk 
injury to the vendor's commercial interests, the vendor may furnish in 
lieu of the statement an abbreviated statement disclosing only the 
aggregate amount of all political contributions and the aggregate amount 
of all fees or commissions which have been paid, or offered or agreed to 
be paid, or offered or agreed to be paid, by the vendor with respect to 
the sale. Any abbreviated statement furnished to an applicant or 
supplier under this paragraph must be accompanied by a certification 
that the requested information has been reported by the vendor directly 
to the Directorate of Defense Trade Controls. The vendor must 
simultaneously report fully to the Directorate of Defense Trade Controls 
all information which the vendor would otherwise have been required to 
report to the applicant or supplier under this section. Each such report 
must clearly identify the sale with respect to which the reported 
information pertains.
    (d)(1) If upon the 25th day after the date of its request to vendor, 
an applicant or supplier has not received from the vendor the initial 
statement required by paragraph (a) of this section, the applicant or 
supplier must submit to the Directorate of Defense Trade Controls a 
signed statement attesting to:
    (i) The manner and extent of applicant's or supplier's attempt to 
obtain from the vendor the initial statement required under paragraph 
(a) of this section;
    (ii) Vendor's failure to comply with this section; and
    (iii) The amount of time which has elapsed between the date of 
applicant's or supplier's request and the date of the signed statement;
    (2) The failure of a vendor to comply with this section does not 
relieve any applicant or supplier otherwise required by Sec.  130.9 to 
submit a report to the Directorate of Defense Trade Controls from 
submitting such a report.

[58 FR 39323, July 22, 1993, as amended at 71 FR 20555, Apr. 21, 2006]



Sec.  130.13  Information to be furnished to applicant, supplier or vendor 
by a recipient of a fee or commission.

    (a) Every applicant or supplier, and each vendor thereof;
    (1) In order to determine whether it is obliged under Sec.  130.9 or 
Sec.  130.12 to furnish information specified in Sec.  130.10 with 
respect to a sale; and
    (2) Prior to furnishing such information, must obtain from each 
person, if any, to whom it has paid, or offered or agreed to pay, a fee 
or commission in respect of such sale, a timely statement containing a 
full disclosure by such a person of all political contributions paid, or 
offered or agreed to be paid, by it or on its behalf, or at its 
direction, in respect of such sale. Such disclosure must include 
responses to all the information required to enable the applicant, 
supplier or vendor, as the case may be, to comply fully with Sec. Sec.  
130.9, 130.10, and 130.12.

[[Page 624]]

    (b) In obtaining information under paragraph (a) of this section, 
the applicant, supplier or vendor, as the case may be, must also require 
each person to whom a fee or commission is paid, or offered or agreed to 
be paid, to furnish from time to time such reports of its political 
contributions as may be necessary to enable the applicant, supplier or 
vendor, as the case may be, to comply fully with Sec. Sec.  130.9, 
130.10, 130.11, and 130.12.
    (c) The applicant supplier or vendor, as the case may be, must 
include any political contributions paid, or offered or agreed to be 
paid, by or on behalf of, or at the direction of, any person to whom it 
has paid, or offered or agreed to pay a fee or commission in determining 
whether applicant, supplier or vendor is required by Sec. Sec.  130.9, 
130.11, and 130.12 to furnish information specified in Sec.  130.10.



Sec.  130.14  Recordkeeping.

    Each applicant, supplier and vendor must maintain a record of any 
information it was required to furnish or obtain under this part and all 
records upon which its reports are based for a period of not less than 
five years following the date of the report to which they pertain.



Sec.  130.15  Confidential business information.

    (a) Any person who is required to furnish information under this 
part may identify any information furnished hereunder which the person 
considers to be confidential business information. No person, including 
any applicant or supplier, shall publish, divulge, disclose, or make 
known in any manner, any information so identified by a vendor or other 
person unless authorized by law or regulation.
    (b) For purposes of this section, confidential business information 
means commercial or financial information which by law is entitled to 
protection from disclosure. (See, e.g., 5 U.S.C. 552(b) (3) and (4); 18 
U.S.C. 1905; 22 U.S.C. 2778(e); Rule 26(c)(7), Federal Rules of Civil 
Procedure.)



Sec.  130.16  Other reporting requirements.

    The submission of reports under this part does not relieve any 
person of any requirements to furnish information to any federal, state, 
or municipal agency, department or other instrumentality as required by 
law, regulation or contract.



Sec.  130.17  Utilization of and access to reports and records.

    (a) All information reported and records maintained under this part 
will be made available, upon request for utilization by standing 
committees of the Congress and subcommittees thereof, and by United 
States Government agencies, in accordance with Sec.  39(d) of the Arms 
Export Control Act (22 U.S.C. 2779(d)), and reports based upon such 
information will be submitted to Congress in accordance with sections 
36(a)(7) and 36(b)(1) of that Act (22 U.S.C. 2776(a)(7) and (b)(1)) or 
any other applicable law.
    (b) All confidential business information provided pursuant to this 
part shall be protected against disclosure to the extent provided by 
law.
    (c) Nothing in this section shall preclude the furnishing of 
information to foreign governments for law enforcement or regulatory 
purposes under international arrangements between the United States and 
any foreign government.

[58 FR 39323, July 22, 1993, as amended at 71 FR 20555, Apr. 21, 2006]

[[Page 625]]



                       SUBCHAPTER N_MISCELLANEOUS





PART 131_CERTIFICATES OF AUTHENTICATION--Table of Contents



Sec.
131.1 Certification of documents.
131.2 Refusal of certification for unlawful purpose.



Sec.  131.1  Certification of documents.

    The Authentication Officer, Acting Authentication Officer, or any 
Assistant Authentication Officer designated by either of the former 
officers may, and is hereby authorized to, sign and issue certificates 
of authentication under the seal of the Department of State for and in 
the name of the Secretary of State or the Acting Secretary of State. The 
form of authentication shall be as follows:

    In testimony whereof, I, __________, Secretary of State have 
hereunto caused the seal of the Department of State to be affixed and my 
name subscribed by the Authentication Officer, Acting Authentication 
Officer, or an Assistant Authentication Officer, of the said Department, 
at____. in ______, this ________ day of ________ 19__

                                                    (Secretary of State)

By______________________________________________________________________

                (__________ Authentication Officer, Department of State)

(22 U.S.C. 2651a)

[61 FR 39585, July 30, 1996]



Sec.  131.2  Refusal of certification for unlawful purpose.

    (a) The Department will not certify to a document when it has good 
reason to believe that the certification is desired for an unlawful or 
improper purpose. It is therefore the duty of the Authentication Officer 
to examine not only the document which the Department is asked to 
authenticate, but also the fundamental document to which previous seals 
or other certifications may have been affixed by other authorities. The 
Authentication Officer shall request such additional information as may 
be necessary to establish that the requested authentication will serve 
the interests of justice and is not contrary to public policy.
    (b) In accordance with section 3, paragraph 5 of the Export 
Administration Act of 1969 (83 Stat. 841, Pub. L. 91-184) approved 
December 30, 1969, documents which have the effect of furthering or 
supporting the restrictive trade practices or boycotts fostered or 
imposed by foreign countries against countries friendly to the United 
States shall be considered contrary to public policy for purposes of 
these regulations.

(R.S. 203. sec. 4, 63 Stat. 111, as amended, sec. 1733, 62 Stat. 946, 
secs. 104, 332, 66 Stat. 174, 252; 22 U.S.C. 2657, 2658, 28 U.S.C. 1733, 
8 U.S.C. 1104, 1443)

[22 FR 10882, Dec. 27, 1957, as amended at 30 FR 12732, Oct. 6, 1965; 
Dept. Reg. 108.621, 35 FR 8887, June 9, 1970]



PART 132_BOOKS, MAPS, NEWSPAPERS, ETC.--Table of Contents





Sec.  132.1  Purchase.

    The purchase by the Department of State of books, maps, newspapers, 
periodicals, and other publications shall be made without regard to the 
provisions of the act approved March 3, 1933 (sec. 2, 47 Stat. 1520; 41 
U.S.C. 10a), since determination has been made by the Secretary, as 
permitted by the provisions of the act, that such purchase is 
inconsistent with the public interest.

(80 Stat. 379; 5 U.S.C. 301)

[22 FR 10883, Dec. 27, 1957]



PART 133_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)--Table of Contents



                     Subpart A_Purpose and Coverage

Sec.
133.100 What does this part do?
133.105 Does this part apply to me?
133.110 Are any of my Federal assistance awards exempt from this part?
133.115 Does this part affect the Federal contracts that I receive?

[[Page 626]]

      Subpart B_Requirements for Recipients Other Than Individuals

133.200 What must I do to comply with this part?
133.205 What must I include in my drug-free workplace statement?
133.210 To whom must I distribute my drug-free workplace statement?
133.215 What must I include in my drug-free awareness program?
133.220 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
133.225 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
133.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

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

  Subpart D_Responsibilities of Department of State Awarding Officials

133.400 What are my responsibilities as a Department of State awarding 
          official?

           Subpart E_Violations of This Part and Consequences

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

                          Subpart F_Definitions

133.605 Award.
133.610 Controlled substance.
133.615 Conviction.
133.620 Cooperative agreement.
133.625 Criminal drug statute.
133.630 Debarment.
133.635 Drug-free workplace.
133.640 Employee.
133.645 Federal agency or agency.
133.650 Grant.
133.655 Individual.
133.660 Recipient.
133.665 State.
133.670 Suspension.

    Authority: 22 U.S.C. 2658; 41 U.S.C. 701, et seq.

    Source: 68 FR 66557, 66582, Nov. 26, 2003, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 133 appear at 68 FR 
66582, Nov. 26, 2003.



                     Subpart A_Purpose and Coverage



Sec.  133.100  What does this part do?

    This part carries out the portion of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It also 
applies the provisions of the Act to cooperative agreements and other 
financial assistance awards, as a matter of Federal Government policy.



Sec.  133.105  Does this part apply to me?

    (a) Portions of this part apply to you if you are either--
    (1) A recipient of an assistance award from the Department of State; 
or
    (2) A Department of State awarding official. (See definitions of 
award and recipient in Sec. Sec.  133.605 and 133.660, respectively.)
    (b) The following table shows the subparts that apply to you:

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



Sec.  133.110  Are any of my Federal assistance awards exempt from this part?

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

[[Page 627]]



Sec.  133.115  Does this part affect the Federal contracts that I receive?

    It will affect future contract awards indirectly if you are debarred 
or suspended for a violation of the requirements of this part, as 
described in Sec.  133.510(c). However, this part does not apply 
directly to procurement contracts. The portion of the Drug-Free 
Workplace Act of 1988 that applies to Federal procurement contracts is 
carried out through the Federal Acquisition Regulation in chapter 1 of 
Title 48 of the Code of Federal Regulations (the drug-free workplace 
coverage currently is in 48 CFR part 23, subpart 23.5).



      Subpart B_Requirements for Recipients Other Than Individuals



Sec.  133.200  What must I do to comply with this part?

    There are two general requirements if you are a recipient other than 
an individual.
    (a) First, you must make a good faith effort, on a continuing basis, 
to maintain a drug-free workplace. You must agree to do so as a 
condition for receiving any award covered by this part. The specific 
measures that you must take in this regard are described in more detail 
in subsequent sections of this subpart. Briefly, those measures are to--
    (1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees (see Sec. Sec.  133.205 
through 133.220); and
    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace (see Sec.  133.225).
    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec.  133.230).



Sec.  133.205  What must I include in my drug-free workplace statement?

    You must publish a statement that--
    (a) Tells your employees that the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance 
is prohibited in your workplace;
    (b) Specifies the actions that you will take against employees for 
violating that prohibition; and
    (c) Lets each employee know that, as a condition of employment under 
any award, he or she:
    (1) Will abide by the terms of the statement; and
    (2) Must notify you in writing if he or she is convicted for a 
violation of a criminal drug statute occurring in the workplace and must 
do so no more than five calendar days after the conviction.



Sec.  133.210  To whom must I distribute my drug-free workplace statement?

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



Sec.  133.215  What must I include in my drug-free awareness program?

    You must establish an ongoing drug-free awareness program to inform 
employees about--
    (a) The dangers of drug abuse in the workplace;
    (b) Your policy of maintaining a drug-free workplace;
    (c) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (d) The penalties that you may impose upon them for drug abuse 
violations occurring in the workplace.



Sec.  133.220  By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?

    If you are a new recipient that does not already have a policy 
statement as described in Sec.  133.205 and an ongoing awareness program 
as described in Sec.  133.215, you must publish the statement and 
establish the program by the time given in the following table:

------------------------------------------------------------------------
                If . . .                          then you . . .
------------------------------------------------------------------------
(a) The performance period of the award  must have the policy statement
 is less than 30 days.                    and program in place as soon
                                          as possible, but before the
                                          date on which performance is
                                          expected to be completed.
(b) The performance period of the award  must have the policy statement
 is 30 days or more.                      and program in place within 30
                                          days after award.

[[Page 628]]

 
(c) You believe there are extraordinary  may ask the Department of State
 circumstances that will require more     awarding official to give you
 than 30 days for you to publish the      more time to do so. The amount
 policy statement and establish the       of additional time, if any, to
 awareness program.                       be given is at the discretion
                                          of the awarding official.
------------------------------------------------------------------------



Sec.  133.225  What actions must I take concerning employees who are convicted 
of drug violations in the workplace?

    There are two actions you must take if an employee is convicted of a 
drug violation in the workplace:
    (a) First, you must notify Federal agencies if an employee who is 
engaged in the performance of an award informs you about a conviction, 
as required by Sec.  133.205(c)(2), or you otherwise learn of the 
conviction. Your notification to the Federal agencies must_
    (1) Be in writing;
    (2) Include the employee's position title;
    (3) Include the identification number(s) of each affected award;
    (4) Be sent within ten calendar days after you learn of the 
conviction; and
    (5) Be sent to every Federal agency on whose award the convicted 
employee was working. It must be sent to every awarding official or his 
or her official designee, unless the Federal agency has specified a 
central point for the receipt of the notices.
    (b) Second, within 30 calendar days of learning about an employee's 
conviction, you must either_
    (1) Take appropriate personnel action against the employee, up to 
and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
    (2) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for these purposes 
by a Federal, State or local health, law enforcement, or other 
appropriate agency.



Sec.  133.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each Department of 
State award. A failure to do so is a violation of your drug-free 
workplace requirements. You may identify the workplaces_
    (1) To the Department of State official that is making the award, 
either at the time of application or upon award; or
    (2) In documents that you keep on file in your offices during the 
performance of the award, in which case you must make the information 
available for inspection upon request by Department of State officials 
or their designated representatives.
    (b) Your workplace identification for an award must include the 
actual address of buildings (or parts of buildings) or other sites where 
work under the award takes place. Categorical descriptions may be used 
(e.g., all vehicles of a mass transit authority or State highway 
department while in operation, State employees in each local 
unemployment office, performers in concert halls or radio studios).
    (c) If you identified workplaces to the Department of State awarding 
official at the time of application or award, as described in paragraph 
(a)(1) of this section, and any workplace that you identified changes 
during the performance of the award, you must inform the Department of 
State awarding official.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec.  133.300  What must I do to comply with this part if I am 
an individual recipient?

    As a condition of receiving a Department of State award, if you are 
an individual recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any award activity, you will 
report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.

[[Page 629]]

    (3) To the Department of State awarding official or other designee 
for each award that you currently have, unless Sec.  133.301 or the 
award document designates a central point for the receipt of the 
notices. When notice is made to a central point, it must include the 
identification number(s) of each affected award.



Sec.  133.301  [Reserved]



  Subpart D_Responsibilities of Department of State Awarding Officials



Sec.  133.400  What are my responsibilities as a Department of State 
awarding official?

    As a Department of State awarding official, you must obtain each 
recipient's agreement, as a condition of the award, to comply with the 
requirements in--
    (a) Subpart B of this part, if the recipient is not an individual; 
or
    (b) Subpart C of this part, if the recipient is an individual.



           Subpart E_Violations of this Part and Consequences



Sec.  133.500  How are violations of this part determined for recipients 
other than individuals?

    A recipient other than an individual is in violation of the 
requirements of this part if the Procurement Executive determines, in 
writing, that--
    (a) The recipient has violated the requirements of subpart B of this 
part; or
    (b) The number of convictions of the recipient's employees for 
violating criminal drug statutes in the workplace is large enough to 
indicate that the recipient has failed to make a good faith effort to 
provide a drug-free workplace.



Sec.  133.505  How are violations of this part determined for recipients 
who are individuals?

    An individual recipient is in violation of the requirements of this 
part if the Procurement Executive determines, in writing, that--
    (a) The recipient has violated the requirements of subpart C of this 
part; or
    (b) The recipient is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any award activity.



Sec.  133.510  What actions will the Federal Government take against 
a recipient determined to have violated this part?

    If a recipient is determined to have violated this part, as 
described in Sec.  133.500 or Sec.  133.505, the Department of State may 
take one or more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under 2 CFR part 601, 
for a period not to exceed five years.

[68 FR 66557, 66582, Nov. 26, 2003, as amended at 72 FR 10035, Mar. 7, 
2007]



Sec.  133.515  Are there any exceptions to those actions?

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



                          Subpart F_Definitions



Sec.  133.605  Award.

    Award means an award of financial assistance by the Department of 
State or other Federal agency directly to a recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money 
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or 
not the grant is exempted from coverage under the Governmentwide rule 22 
CFR part 135 that implements OMB Circular A-102 (for availability, see 5 
CFR 1310.3) and specifies uniform administrative requirements.
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.

[[Page 630]]

    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.
    (7) Veterans' benefits to individuals (i.e., any benefit to 
veterans, their families, or survivors by virtue of the service of a 
veteran in the Armed Forces of the United States).



Sec.  133.610  Controlled substance.

    Controlled substance means a controlled substance in schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812), and as 
further defined by regulation at 21 CFR 1308.11 through 1308.15.



Sec.  133.615  Conviction.

    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes.



Sec.  133.620  Cooperative agreement.

    Cooperative agreement means an award of financial assistance that, 
consistent with 31 U.S.C. 6305, is used to enter into the same kind of 
relationship as a grant (see definition of grant in Sec.  133.650), 
except that substantial involvement is expected between the Federal 
agency and the recipient when carrying out the activity contemplated by 
the award. The term does not include cooperative research and 
development agreements as defined in 15 U.S.C. 3710a.



Sec.  133.625  Criminal drug statute.

    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance.



Sec.  133.630  Debarment.

    Debarment means an action taken by a Federal agency to prohibit a 
recipient from participating in Federal Government procurement contracts 
and covered nonprocurement transactions. A recipient so prohibited is 
debarred, in accordance with the Federal Acquisition Regulation for 
procurement contracts (48 CFR part 9, subpart 9.4) and the common rule, 
Government-wide Debarment and Suspension (Nonprocurement), that 
implements Executive Order 12549 and Executive Order 12689.



Sec.  133.635  Drug-free workplace.

    Drug-free workplace means a site for the performance of work done in 
connection with a specific award at which employees of the recipient are 
prohibited from engaging in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance.



Sec.  133.640  Employee.

    (a) Employee means the employee of a recipient directly engaged in 
the performance of work under the award, including--
    (1) All direct charge employees;
    (2) All indirect charge employees, unless their impact or 
involvement in the performance of work under the award is insignificant 
to the performance of the award; and
    (3) Temporary personnel and consultants who are directly engaged in 
the performance of work under the award and who are on the recipient's 
payroll.
    (b) This definition does not include workers not on the payroll of 
the recipient (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the payroll; 
or employees of subrecipients or subcontractors in covered workplaces).



Sec.  133.645  Federal agency or agency.

    Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency.



Sec.  133.650  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C. 6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of

[[Page 631]]

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



Sec.  133.655  Individual.

    Individual means a natural person.



Sec.  133.660  Recipient.

    Recipient means any individual, corporation, partnership, 
association, unit of government (except a Federal agency) or legal 
entity, however organized, that receives an award directly from a 
Federal agency.



Sec.  133.665  State.

    State means any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, or any territory or 
possession of the United States.



Sec.  133.670  Suspension.

    Suspension means an action taken by a Federal agency that 
immediately prohibits a recipient from participating in Federal 
Government procurement contracts and covered nonprocurement transactions 
for a temporary period, pending completion of an investigation and any 
judicial or administrative proceedings that may ensue. A recipient so 
prohibited is suspended, in accordance with the Federal Acquisition 
Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and 
the common rule, Government-wide Debarment and Suspension 
(Nonprocurement), that implements Executive Order 12549 and Executive 
Order 12689. Suspension of a recipient is a distinct and separate action 
from suspension of an award or suspension of payments under an award.



PART 134_EQUAL ACCESS TO JUSTICE ACT; IMPLEMENTATION--Table of Contents



                      Subpart A_General Provisions

Sec.
134.1 Purpose of these rules.
134.2 When the Act applies.
134.3 Proceedings covered.
134.4 Eligibility of applicants.
134.5 Standard for awards.
134.6 Allowable fees and expenses.
134.7 Rulemaking on maximum rates for attorney fees.
134.8 Official authorized to take final action under the Act.

             Subpart B_Information Required From Applicants

134.11 Contents of application.
134.12 Net worth exhibit.
134.13 Documentation of fees and expenses.
134.14 When application may be filed.

            Subpart C_Procedures for Considering Applications

134.21 Filing and service of documents.
134.22 Answer to application.
134.23 Reply.
134.24 Comments by other parties.
134.25 Settlement.
134.26 Further proceedings.
134.27 Decision.
134.28 Further Department of State review.
134.29 Judicial review.
134.30 Payment of award.

    Authority: Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C. 
504(c)(1)).

    Source: 46 FR 58301, Dec. 1, 1981, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  134.1  Purpose of these rules.

    The Equal Access to Justice Act, 5 U.S.C. 504 (called ``the Act'' in 
this part), provides for the award of attorney fees and other expenses 
to eligible individuals and entities who are parties to certain 
administrative proceedings (called ``adversary adjudications'') before 
the Department of State. An eligible party may receive an award when it 
prevails over the Department of State, unless the Department of State's 
position in the proceeding was substantially justified or special 
circumstances make an award unjust. The rules in this part describe the 
parties eligible for awards and the proceedings that are covered. They 
also explain how to apply for awards, and the procedures and standards 
that the Department will observe to make them.

[[Page 632]]



Sec.  134.2  When the Act applies.

    The Act applies to any adversary adjudication pending before the 
Department of State at any time between October 1, 1981 and September 
30, 1984. This includes proceedings begun before October 1, 1981 if 
final agency action has not been taken before that date, and proceedings 
pending on September 30, 1984, regardless of when they were initiated or 
when final agency action occurs.



Sec.  134.3  Proceedings covered.

    (a) The Act applies to adversary adjudications conducted by the 
Department of State. These are adjudications under 5 U.S.C. 554 in which 
the position of the Department of State is presented by an attorney or 
other representative who enters an appearance and participates in the 
proceeding. For the Department of State, the type of proceeding covered 
are proceedings relative to controlling export of defense articles 
through administrative sanctions pursuant to 22 U.S.C. 2778 and 50 
U.S.C. App. 2410 (c)(2)(B).
    (b) The Department of State may also designate a proceeding not 
listed in paragraph (a) of this section as an adversary adjudication for 
purposes of the Act by so stating in an order initiating the proceeding 
or designating the matter for hearing. The failure to designate a 
proceeding as an adversary adjudication shall not preclude the filing of 
an application by a party who believes the proceeding is covered by the 
Act; whether the proceeding is covered will then be an issue for 
resolution in proceedings on the application.
    (c) If a proceeding includes matters covered by the Act and matters 
specifically excluded from coverage, any award made will include only 
fees and expenses related to covered issues.



Sec.  134.4  Eligibility of applicants.

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, the applicant must be a party to the adversary 
adjudication for which it seeks an award. The term ``party'' is defined 
in 5 U.S.C. 551(3). The applicant must show by clear and convincing 
evidence that it meets all conditions of eligibility set out in this 
subpart and in subpart B and must submit additional information to 
verify its eligibility upon order by the adjudicative officer.
    (b) The types of eligible applicants are as follows:
    (1) An individual with a net worth of not more than $1 million;
    (2) The sole owner of an unincorporated business who has a net worth 
of not more than $5 million, including both personal and business 
interests, and not more than 500 employees;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees; and
    (5) Any other partnership, corporation, association, or public or 
private organization with a net worth of not more than $5 million and 
not more than 500 employees.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
proceeding was initiated.
    (d) An applicant who owns an unincorporated business will be 
considered as an ``individual'' rather than a ``sole owner of an 
unincorporated business'' if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (e) The employees of an applicant include all persons who regularly 
perform services for remuneration for the applicant, under the 
applicant's direction and control. Part-time employees shall be included 
on a proportional basis.
    (f) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation or other entity that directly or indirectly 
controls or owns a majority of the voting shares or other interest of 
the applicant, or any corporation or other entity of which the applicant 
directly or indirectly owns or controls a majority of the voting shares 
or other interest, will be considered an affiliate for purposes of this 
part, unless the adjudicative officer determines

[[Page 633]]

that such treatment would be unjust and contrary to the purposes of the 
Act in light of the actual relationship between the affiliated entities. 
In addition, the adjudicative officer may determine that financial 
relationships of the applicant other than those described in this 
paragraph constitute special circumstances that would make an award 
unjust.
    (g) An applicant that participates in a proceeding primarily on 
behalf of one or more other persons or entities that would be ineligible 
is not itself eligible for an award.



Sec.  134.5  Standard for awards.

    (a) A prevailing applicant may receive an award for fees and 
expenses incurred in connection with a proceeding, or in a significant 
and discrete substantive portion of the proceeding, unless the position 
of the agency over which the applicant has prevailed was substantially 
justified. The burden of proof that an award should not be made to an 
eligible prevailing applicant is on the Department of State which may 
avoid an award by showing that its position was reasonable in law and 
fact.
    (b) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceeding or if special circumstances 
make the award sought unjust.



Sec.  134.6  Allowable fees and expenses.

    (a) Awards will be based on rates customarily charged by persons 
engaged in the business of acting as attorneys, agents and expert 
witnesses, even if the services were made available without charge or at 
a reduced rate to the applicant.
    (b) No award for the fee of an attorney or agent under these rules 
may exceed $75.00 per hour. No award to compensate an expert witness may 
exceed the highest rate at which the Department of State pays expert 
witnesses, which is generally $50.00 per hour. However, an award may 
also include the reasonable expenses of the attorney, agent or witness 
as a separate item, if the attorney, agent or witness ordinarily charges 
clients separately for such expenses.
    (c) In determining the reasonableness of the fee sought for an 
attorney, agent or expert witness, the adjudicative officer shall 
consider the following:
    (1) If the attorney, agent or witness is in private practice, his or 
her customary fee for similar services, or, if an employee of the 
applicant, the fully allocated cost of the services;
    (2) The prevailing rate for similar services in the community in 
which the attorney, agent or witness ordinarily performs services;
    (3) The time actually spent in the representation of the applicant;
    (4) the time reasonably spent in light of the difficulty or 
complexity of the issues in the proceeding; and
    (5) Such other factors as may bear on the value of the services 
provided.
    (d) The reasonable cost of any study, analysis, engineering report, 
test, project or similar matter prepared on behalf of a party may be 
awarded, to the extent that the charge for the service does not exceed 
the prevailing rate for similar services, and the study or other matter 
was necessary for preparation of applicant's case.



Sec.  134.7  Rulemaking on maximum rates for attorney fees.

    (a) If warranted by an increase in the cost of living or by special 
circumstances (such as limited availability of attorneys qualified to 
handle certain types of proceedings), the Department of State may adopt 
regulations providing that attorney fees may be awarded at a rate higher 
than $75 per hour in some or all of the types of proceedings covered by 
this part. The Department of State will conduct any rulemaking 
proceedings for this purpose under the informal rulemaking procedures of 
the Administrative Procedure Act.
    (b) Any person may request the Department of State to initiate a 
rulemaking proceeding to increase the maximum rate for attorney fees. 
The request should identify the rate the person believes the Department 
of State should establish and the types of proceedings in which the rate 
should be used. It should also explain fully the reasons why the higher 
rate is warranted. The Department of State will respond to the request 
within 60 days

[[Page 634]]

after it is filed, by determining to initiate a rulemaking proceeding, 
denying the request, or taking other appropriate action.



Sec.  134.8  Official authorized to take final action under the Act.

    The Department of State official who renders the final agency 
decision in a covered proceeding is authorized to take final action on 
matters pertaining to the Equal Access to Justice Act as applied to the 
proceeding.



             Subpart B_Information Required From Applicants



Sec.  134.11  Contents of application.

    (a) An application for an award of fees and expenses under the Act 
shall identify the applicant and the proceeding for which an award is 
sought. The application shall show that the applicant has prevailed and 
identify the position of the Department of State in the proceeding that 
the applicant alleges was not substantially justified. Unless the 
applicant is an individual, the application shall also state the number 
of employees of the applicant and describe briefly the type and purpose 
of its organization or business.
    (b) The application shall also include a statement that the 
applicant's net worth does not exceed $1 million (if an individual) or 
$5 million (for all other applicants, including their affiliates). 
However, an applicant may omit this statement if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a 
tax-exempt organization not required to obtain a ruling from the 
Internal Revenue Service on its exempt status, a statement that 
describes the basis for the applicant's belief that it qualfies under 
such section; or
    (2) It states on the application that it is a cooperative 
association as defined in section 15(a) of the Agricultural Marketing 
Act (12 U.S.C. 1141j(a)).
    (c) The application shall state the amount of fees and expenses for 
which an award is sought.
    (d) The application may also include any other matters that the 
applicant wishes the Department of State to consider in determining 
whether and in what amount an award should be made.
    (e) The application shall be signed by the applicant or an 
authorized officer or attorney of the applicant. It shall also contain 
or be accompanied by a written verification under oath or under penalty 
of prejury that the information provided in the application is true and 
correct.



Sec.  134.12  Net worth exhibit.

    (a) Each applicant except a qualifed tax-exempt organization or 
cooperative association must provide with its application a detailed 
exhibit showing the net worth of the applicant and any affiliates (as 
defined in Sec.  960.4(f)) when the proceeding was initiated. The 
exhibit may be in any form convenient to the applicant that provides 
full disclosure of the applicant's and its affiliates' assets and 
liabilities and is sufficient to determine whether the applicant 
qualifies under the standards in his part. The adjudicative officer may 
require an applicant to file additional information to determine its 
eligibility for an award.
    (b) Ordinarily, the net worth exhibit will be included in the public 
record of the proceeding. However, an applicant that objects to public 
disclosure of information in any portion of the exhibit and believes 
there are legal grounds for withholding it from disclosure may submit 
that portion of the exhibit directly to the adjudicative officer in a 
sealed envelope labeled ``Confidential Financial Information'', 
accompanied by a motion to withhold the information from public 
disclosure. The motion shall describe the information sought to be 
withheld and explain, in detail, why it falls within one or more of the 
specific exemptions from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 551(b) (1)-(9), why public disclosure of the 
information would adversely affect the applicant, and why disclosure is 
not required in the public interest. The material in question shall be 
served on counsel representing the agency against which the applicant 
seeks an award, but need not be served on any other party to the 
proceeding. If the

[[Page 635]]

adjudicative officer finds that the information should not be withheld 
from disclosure, it shall be placed in the public record of the 
proceeding. Otherwise, any request to inspect or copy the exhibit shall 
be disposed of in accordance with the Department of State established 
procedures under the Freedom of Information Act, part 6 of this title.



Sec.  134.13  Documentation of fees and expenses.

    The application shall be accompanied by full documentation of the 
fees and expenses, including the cost of any study, analysis, 
engineering report, test project or similar matter, for which an award 
is sought. A separate itemized statement shall be submitted for each 
professional firm or individual whose services are covered by the 
application, showing the hours spent in connection with the proceeding 
by each individual, a description of the specific services performed, 
the rate at which each fee has been computed, any expenses for which 
reimbursement is sought, the total amount claimed, and the total amount 
paid or payable by the applicant or by any other person or entity for 
the services provided. The adjudicative officer may require the 
applicant to provide vouchers, receipts, or other substantiation for any 
expenses claimed.



Sec.  134.14  When application may be filed.

    (a) An application may be filed whenever the applicant has prevailed 
in the proceeding or in a significant and discrete substantive portion 
of the proceeding, but in no case later than 30 days after the 
Department of State's final disposition of the proceeding.
    (b) If review or reconsideration is sought or taken of a decision as 
to which an applicant believes it has prevailed, proceedings for the 
award of fees shall be stayed pending final disposition of the 
underlying controversy.
    (c) For purposes of this rule, final disposition means the later of 
(1) the date on which an initial decision or other recommended 
disposition of the merits of the proceeding by an adjudicative officer 
or intermediate review board becomes administratively final; (2) 
issuance of an order disposing of any petitions for reconsideration of 
the Department of State's final order in the proceeding; (3) if no 
petition for reconsideration is filed, the last date on which such a 
petition could have been filed; or (4) issuance of a final order or any 
other final resolution of a proceeding, such as a settlement or 
voluntary dismissal, which is not subject to a petition for 
reconsideration or to a petition for judicial review; or (5) completion 
of judicial action on the underlying controversy and any subsequent 
Department of State action pursuant to judicial mandate.



            Subpart C_Procedures for Considering Applications



Sec.  134.21  Filing and service of documents.

    Any application for an award or other pleading or document related 
to an application shall be filed and served on all parties to the 
proceeding in the same manner as other pleadings in the proceeding, 
except as provided in Sec.  134.12(b) for confidential financial 
information.



Sec.  134.22  Answer to application.

    (a) Within 30 days after service of an application, counsel 
representing the Department of State may file an answer to the 
application. Unless the Department of State counsel requests an 
extension of time for filing or files a statement of intent to negotiate 
under paragraph (b) of this section, failure to file an answer within 
the 30 day period may be treated as a consent to the award requested.
    (b) If the Department of State counsel and the applicant believe 
that the issues in the fee application can be settled, they may jointly 
file a statement of their intent to negotiate a settlement. The filing 
of this statement shall extend the time for filing an answer for an 
additional 30 days, and further extensions may be granted by the 
adjudicative officer upon request by Department of State counsel and the 
applicant.
    (c) The answer shall explain in detail any objections to the award 
requested

[[Page 636]]

and identify the facts relied on in support of the Department of State 
position. If the answer is based on any alleged facts not already in the 
record of the proceeding the Department of State shall include with the 
answer either supporting affidavits or a request for further proceedings 
under Sec.  134.26.



Sec.  134.23  Reply.

    Within 15 days after service of an answer, the applicant may file a 
reply. If the reply is based on any alleged facts not already in the 
record of the proceeding, the applicant shall include with the reply 
either supporting affidavits or a request for further proceedings under 
Sec.  134.26.



Sec.  134.24  Comments by other parties.

    Any party to a proceeding other than the applicant and Department of 
State may file comments on an application within 30 days after it is 
served or on an answer within 15 days after it is served. A commenting 
party may not participate further in proceedings on the application 
unless the adjudicative officer determines that the public interest 
requires such participation in order to permit full exploration of 
matters raised in the comment.



Sec.  134.25  Settlement.

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



Sec.  134.26  Further proceedings.

    (a) Ordinarily, the determination of an award will be made on the 
basis of the written record. However, on request of either the applicant 
or Department of State counsel, or on his or her own initiative, the 
adjudicative officer may order further proceedings, such as an informal 
conference, oral argument, additional written submissions, or an 
evidentiary hearing. Such further proceedings shall be held only when 
necessary for full and fair resolution of the issues arising from the 
application, and shall be conducted as promptly as possible.
    (b) A request that the adjudicative officer order further 
proceedings under this section shall specifically identify the 
information sought or the disputed issues and shall explain why the 
additional proceedings are necessary to resolve the issues.



Sec.  134.27  Decision.

    The adjudicative officer shall issue an initial decision on the 
application as promptly as possible after completion of proceedings on 
the application. The decision shall include written fundings and 
conclusions on the applicant's eligibility and status as a prevailing 
party, and an explanation of the reasons for any difference between the 
amount requested and the amount awarded. The decision shall also 
include, if at issue, findings on whether the Department of State 
position was substantially justified, whether the applicant unduly 
protracted the proceedings, or whether special circumstances make an 
award unjust. If the applicant has sought an award against the 
Department of State and another agency, the decision shall allocate 
responsibility for payment of any award made between the Department of 
State and the other agency, and shall explain the reasons for the 
allocation made.



Sec.  134.28  Further Department of State review.

    Either the applicant or Department of State counsel may seek review 
of the initial decision. If neither the applicant nor the Department of 
State counsel seeks review, the initial decision shall become a final 
decision of the Department of State 30 days after it is issued. If 
review is taken the Judicial Officer will issue a final decision on the 
application or remand the application to the adjudicative officer for 
further proceedings.



Sec.  134.29  Judicial review.

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

[[Page 637]]



Sec.  134.30  Payment of award.

    An applicant seeking payment of an award shall submit to the 
Comptroller or other disbursing official of the Department of State a 
copy of the final decision granting the award accompanied by a statement 
that the applicant will not seek review of the decision in the United 
States courts. Requests for payment should be sent to: Executive 
Director, Office of the Comptroller, Room 1328, Department of State, 
2201 C Street, NW., Washington, DC 20520. The Department of State will 
pay the amount awarded to the applicant within 60 days, unless judicial 
review of the award or of the underlying decision of the adversary 
adjudication has been sought by the applicant or any other party to the 
proceeding.



PART 136_PERSONAL PROPERTY DISPOSITION AT POSTS ABROAD--Table of Contents



Sec.
136.1 Purpose.
136.2 Authority.
136.3 Definitions.
136.4 Restrictions on dispositions of personal property.
136.5 Chief of mission policies, rules or procedures.
136.6 Contractors.

    Authority: 22 U.S.C. 4341.

    Source: 53 FR 23188, June 20, 1988, unless otherwise noted.



Sec.  136.1  Purpose.

    The primary purpose of these regulations is to ensure that employees 
and members of their families do not profit personally from sales or 
other transactions with persons who are not themselves entitled to 
exemption from import restrictions, duties, or taxes.



Sec.  136.2  Authority.

    Section 303(a) of the State Department Basic Authorities Act of 1956 
authorizes the Secretary of State to issue regulations to carry out the 
purposes of title III of that Act.



Sec.  136.3  Definitions.

    (a) Basis of an item shall include the initial price paid (or retail 
value at the time of acquisition if acquired by gift), inland and 
overseas transportation costs (if not reimbursed by the United States 
Government), shipping insurance, taxes, customs fees, duties or other 
charges, and capital improvements, but shall not include insurance on an 
item while in use or storage, maintenance, repair or related costs, or 
financing charges.
    (b) Charitable contribution means a contribution or gift as defined 
in section 170(c) of the Internal Revenue Code, or other similar 
contribution or gift to a bona fide charitable foreign entity as 
determined pursuant to policies, rules or procedures issued by the chief 
of mission pursuant to Sec.  136.5(b).
    (c) Chief of mission has the meaning given such term by section 
102(e) of the Foreign Service Act of 1980 (22 U.S.C. 2902(3).
    (d) Contractor means: (1) An individual employed by personal 
services contract pursuant to section 2(c) of the State Department Basic 
Authorities Act of 1956 (22 U.S.C. 2669(c)), pursuant to section 
636(a)(3) of the Foreign Assistance Act of 1961 (22 U.S.C. 2396(a)(3)), 
or pursuant to any other similar authority including, in the case of an 
organization performing services under such authority, an individual 
involved in the performance of such service; and (2) any other 
individual or firm that enjoys exemptions from import limitations, 
customs duties or taxes on personal property from a foreign country in 
connection with performance of a contract for goods or services when 
such contract is with the United States Government or an agency or 
instrumentality thereof or when such contract is directly financed by 
grant assistance from the United States Government or an agency or 
instrumentality thereof and the individual or firm is a party to the 
contract, a subcontractor, or an employee of a contractor or 
subcontractor.
    (e) Employee means an individual who is under the jurisdiction of a 
chief of mission to a foreign country as provided under section 207 of 
the Foreign Service Act of 1980. (22 U.S.C. 3927) and who is--
    (1) An employee as defined by section 2105 of title 5, United States 
Code;
    (2) An officer or employee of the United States Postal Service or of 
the Postal Rate Commission;

[[Page 638]]

    (3) A member of a uniformed service who is not under the command of 
an area military commander, or
    (4) An expert or consultant as authorized pursuant to section 3109 
of title 5, United States Code, with the United States or any agency, 
department, or establishment thereof; but is not a national or permanent 
resident of the foreign country in which employed.
    (f) Family member means any member of the family of an employee who 
is entitled to exemption from import limitation, customs duties, or 
taxes which would otherwise apply by virtue of his or her status as a 
dependent or member of the household of the employee.
    (g) Foreign country means any country or territory, excluding the 
United States, the Commonwealth of Puerto Rico, the Commonwealth of the 
Northern Mariana Islands, the Trust Territory of the Pacific Islands, 
American Samoa, Guam, the Virgin Islands, and other territories and 
possessions of the United States.
    (h) Except as otherwise provided by a chief of mission in policies, 
rules or procedures issued pursuant to Sec.  136.5(b), an item shall be 
deemed of ``minimal value'' if its acquisition cost in U.S. dollars (or 
retail value if received as a gift) is within the limit determined by 
the Administrator of General Services for ``minimal value'' of foreign 
gifts under 5 U.S.C. 7342, currently $180. For purposes of determining 
``minimal value,'' all constitutent parts of components of an audio or 
visual system, automobile, boat, computer system, or other integrated 
machine, system or item of equipment must be valued as a single item 
even if acquired separately, except that spare or superseded parts 
(e.g., an old set of tires that has been replaced on vehicle) may be 
valued as separate items.
    (i) Personal property means any item of personal property, including 
automobiles, computers, boats, audio and video equipment and any other 
items acquired for personal use, except that items properly determined 
to be of ``minimal value'' shall not be subject to limitations on 
disposition except for purposes of Sec.  136.4(d) or as prescribed in 
policies, rules or procedures issued by a chief of mission.
    (j) Profit means any proceeds (including cash and other valuable 
consideration but not including amounts of such proceeds given as 
charitable contributions) for the sale, disposition or assignment of 
personal property in excess of the basis for such property.



Sec.  136.4  Restrictions on dispositions of personal property.

    (a) An employee or family member shall not sell, assign or otherwise 
dispose of personal property within a foreign country except with the 
prior written approval of the chief of mission or designee, except where 
the category of dispositions has been authorized to be undertaken 
without prior written approval in policies, rules or procedures issued 
by the chief of mission (cf. Sec.  136.5(b)(1)).
    (b) An employee or family member shall not retain any profit from 
the sale, assignment or other disposition within a foreign country of 
personal property that was imported into or purchased in that foreign 
country and that, by virtue of the official status of the employee, was 
exempt from import restrictions, customs duties, or taxes which would 
otherwise apply, when such sale, assignment or other disposition is made 
to persons not entitled to exemptions from import restrictions, duties, 
or taxes. An employee or family member shall not profit from an indirect 
disposition to persons not entitled to such exemptions, such as sale 
through a third country diplomat acting as a middleman, where the 
employee or family member knows or should know that the property is 
being acquired by the third party for resale to persons not entitled to 
exemptions, except that this restriction shall not apply to sales of 
personal property to official agencies of the foreign country in 
accordance with the laws or regulations of that country.
    (c) Profits obtained from dispositions of personal property by an 
employee or family member that cannot be retained under paragraph (b) of 
this section including any interest earned by the employee or family 
member on such profits, shall be disposed of within 90 days of receipt 
by contribution or gift as defined in section 170(c) of the Internal

[[Page 639]]

Revenue Code or by other similar contribution or gift to a bona fide 
charitable foreign entity as designated by the chief of mission pursuant 
to Sec.  136.5(b)(11) of this part.
    (d) Except as authorized in advance by the chief of mission on a 
case-by-case basis, no employee or family member shall sell, assign or 
otherwise dispose of personal property within a foreign country that was 
not acquired for bona fide personal use. There shall be a presumption 
that property that is new, unused or held by the employer or family 
member in unusual or commercial quantities was not acquired for bona 
fide personal use. For purposes of this subsection, there is no 
exemption for items of minimal value Sec.  136.3(h)).
    (e) No employee or family member shall import, sell, assign or 
otherwise dispose of personal property within a foreign country in a 
manner that violates the law or regulations of that country or governing 
international law.
    (f) Violations of the restrictions or requirements of paragraphs (a) 
through (e) of this section shall be grounds for disciplinary actions 
against the employee in accordance with the employing agency's 
procedures and regulations. Employees shall be responsible for ensuring 
compliance with these regulations by family members.
    (g) For purposes of computing profits on personal property 
dispositions subject to these regulations, where acquisition and 
disposition of the property were transacted in different currencies, 
proceeds received and costs incurred in a foreign currency shall be 
valued in United States dollars at the time of receipt or payment at the 
rate of exchange that was in effect for reverse accommodation exchanges 
at U.S. missions at the time of such receipt or payment. Where property 
was acquired and sold in the same currency, no conversion is required.



Sec.  136.5  Chief of mission policies, rules or procedures.

    (a) Each chief of mission shall establish a procedure under which 
employees may request approval for the sale of personal property and for 
conversion of proceeds of such sale from local currency into U.S. 
dollars, if applicable. This procedure may be modified to meet local 
conditions, but must produce a documentary record to be held by the post 
of the following:
    (1) The employee's signed request for permission to sell personal 
property, and, if applicable, to convert local currency proceeds to U.S. 
dollars;
    (2) A description of each item of personal property having more than 
minimal value, and the cost basis and actual sales price for each item;
    (3) All profits received and whether profit is retainable;
    (4) Donation to charities or other authorized recipients of non-
retainable profits;
    (5) Approvals to sell and, if applicable, to exchange proceeds, with 
any restrictions or refusals of the employee's request noted, signed by 
the chief of mission or designee; and
    (6) For privately owned vehicle transactions, data on purchaser and 
statement that customs requirements have been met and title has been 
transferred or arranged with an agent identified on document.
    (b) In order to ensure that due account is taken of local 
conditions, including applicable laws, markets, exchange rate factors, 
and accommodation exchange facilities, the chief of mission to each 
foreign country is authorized to establish policies, rules, and 
procedures governing the disposition of personal property by employees 
and family members in that country under the chief of mission's 
jurisdiction. Policies, rules and procedures issued by the chief of 
mission shall be consistent with the general restrictions set forth in 
Sec.  136.4 and may include at least the following:
    (1) Identification of categories of dispositions (e.g., sales of 
minimal value items) that may be made without prior written approval;
    (2) Identification of categories of individuals or entities to whom 
sales of personal property can be made without restrictions on profits 
(e.g., other employees, third country diplomats), individuals or 
entities to whom sales can be made but profits not retained, and 
individuals or entities to whom sales may not be made;
    (3) Requirements to report the total estimated and actual proceeds 
for all

[[Page 640]]

minimal value items, even if such items are otherwise exempted from 
limitations on profits of sale;
    (4) Categories of items of personal property excluded from 
restrictions on disposition because generally exempt from taxation and 
import duties under local law;
    (5) More restrictive definition of ``minimal value'' (see Sec.  
136.3(h) of this part);
    (6) Limitations on manner of disposition (e.g., restrictions on 
advertising or yard sales);
    (7) Limitations on total proceeds that may be generated by 
dispositions of personal property, including limitations on proceeds 
from disposition of ``minimal value'' items;
    (8) Limitations on total profits that may be generated by 
dispositions of personal property, including limitations on profits from 
dispositions of ``minimal value'' items;
    (9) Limitations on total proceeds from dispositions of personal 
property that may be converted into dollars by reverse accommodation 
exchange;
    (10) Limitations on the timing and number of reverse accommodation 
exchanges permitted for proceeds of dispositions of personal property 
(e.g., only in last six months of tour and no more than two exchange 
conversions);
    (11) Designation of bona fide charitable foreign entities to whom an 
employee or family member may donate profits that cannot be retained 
under these regulations.
    (12) Designation of post officials authorized to approve on behalf 
of chief of mission employee requests for permission to sell personal 
property and requests to convert local currency proceeds of sale to U.S. 
dollars by reverse accommodation exchange.
    (c) All policies, rules, and procedures that are issued by the chief 
of mission pursuant to paragraphs (a) and (b) of this section shall be 
announced by notice circulated to all affected mission employees and 
copies of all such policies, rules and procedures shall be made readily 
accessible to all affected employees and family members.
    (d) Violations of restrictions or requirements established by a 
chief of mission in policies, rules, or procedures issued by a chief of 
mission pursuant to paragraphs (a) and (b) of this section shall be 
grounds for disciplinary actions against the employee in accordance with 
the employing agency's procedures and regulations. Employees shall 
ensure compliance by family members with policies, rules or procedures 
issued by the chief of mission.



Sec.  136.6  Contractors.

    To the extent that contractors enjoy importation or tax privileges 
in a foreign country because of their contractual relationship to the 
United States Government, contracting agencies shall include provisions 
in their contracts that require the contractors to observe the 
requirements of these regulations and all policies, rules, and 
procedures issued by the chief of mission in that foreign country.



PART 138_RESTRICTIONS ON LOBBYING--Table of Contents



                            Subpart A_General

Sec.
138.100 Conditions on use of funds.
138.105 Definitions.
138.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

138.200 Agency and legislative liaison.
138.205 Professional and technical services.
138.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

138.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

138.400 Penalties.
138.405 Penalty procedures.
138.410 Enforcement.

                          Subpart E_Exemptions

138.500 Secretary of Defense.

                        Subpart F_Agency Reports

138.600 Semi-annual compilation.
138.605 Inspector General report.

Appendix A to Part 138--Certification Regarding Lobbying
Appendix B to Part 138--Disclosure Form To Report Lobbying

    Authority: 22 U.S.C. 2651a; 31 U.S.C. 1352; Pub. L. 114-74, 129 
Stat. 584.

[[Page 641]]


    Source: 55 FR 6737, 6749, 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.  138.100  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.  138.105  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 642]]

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 643]]

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.  138.110  Certification and disclosure.

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

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

Shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraphs 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but 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 644]]

    (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.  138.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec.  
138.100 (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.  138.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
138.100 (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 645]]

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.  138.210  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.  138.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
138.100 (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.  138.110 (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 646]]

    (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.  138.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $20,731 and not more than 
$207,314 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 $20,731 and not more than $207,314 
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 $20,396, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $20,731 and $207,314, 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.

[55 FR 6737, 6749, Feb. 26, 1990, as amended at 81 FR 36793, June 8, 
2016; 82 FR 3170, Jan. 11, 2017; 83 FR 237, Jan. 3, 2018; 84 FR 9959, 
Mar. 19, 2019; 85 FR 2022, Jan. 14, 2020; 86 FR 7807, Feb. 2, 2021]



Sec.  138.405  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.  138.410  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.  138.500  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.  138.600  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

[[Page 647]]

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



Sec.  138.605  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 138--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.

[[Page 648]]

    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

            Statement for Loan Guarantees and Loan Insurance

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

[[Page 649]]



     Sec. Appendix B to Part 138--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC06OC91.000


[[Page 650]]


[GRAPHIC] [TIFF OMITTED] TC06OC91.001


[[Page 651]]


[GRAPHIC] [TIFF OMITTED] TC06OC91.002


[[Page 652]]





PART 139 [RESERVED]--Table of Contents





PART 140_PROHIBITION ON ASSISTANCE TO DRUG TRAFFICKERS--Table of Contents



                            Subpart A_General

Sec.
140.1 Purpose.
140.2 Authorities.
140.3 Definitions.

                         Subpart B_Applicability

140.4 Applicability.

                          Subpart C_Enforcement

140.5 Overview.
140.6 Foreign government entities.
140.7 Multilateral institutions and international organizations.
140.8 Recipients of scholarships, fellowships, and participant training.
140.9 Other non-governmental entities and individuals.
140.10 Intermediate credit institutions.
140.11 Minimum enforcement procedures.
140.12 Interagency review procedures.
140.13 Notification to foreign entities and individuals.
140.14 Special procedures for U.S. entities and individuals.

    Authority: 22 U.S.C. 2651a(a)(4).

    Source: 63 FR 36574, July 7, 1998, unless otherwise noted.



                            Subpart A_General



Sec.  140.1  Purpose.

    (a) This part implements Section 487 of the Foreign Assistance Act 
of 1961, as amended (22 U.S.C. Sec. 2291f).
    (b) Section 487(a) directs the President to ``take all reasonable 
steps'' to ensure that assistance under the Foreign Assistance Act of 
1961 (FAA) and the Arms Export Control Act (AECA) ``is not provided to 
or through any individual or entity that the President knows or has 
reason to believe'':
    (1) Has been convicted of a violation of, or a conspiracy to 
violate, any law or regulation of the United States, a State or the 
District of Columbia, or a foreign country relating [to] narcotic or 
psychotropic drugs or other controlled substances; or
    (2) Is or has been an illicit trafficker in any such controlled 
substance or is or has been a knowing assistor, abettor, conspirator, or 
colluder with others in the illicit trafficking in any such substance.



Sec.  140.2  Authorities.

    Authority to implement FAA Section 487 was delegated by the 
President to the Secretary of State by E.O. 12163, as amended, and 
further delegated by the Secretary to the Assistant Secretary of State 
for International Narcotics and Law Enforcement Affairs by Delegation of 
Authority No. 145, dated Feb. 4, 1980 (45 FR 11655), as amended.



Sec.  140.3  Definitions.

    The following definitions shall apply for the purpose of this part:
    (a) Convicted. The act of being found guilty of or legally 
responsible for a criminal offense, and receiving a conviction or 
judgment by a court of competent jurisdiction, whether by verdict or 
plea, and including convictions entered upon a plea of nolo contendere.
    (b) Country Narcotics Coordinator. The individual assigned by the 
Chief of Mission of a U.S. diplomatic post, in consultation with the 
Assistant Secretary of State for International Narcotics and Law 
Enforcement Affairs, in each foreign country to coordinate United States 
government policies and activities within a country related to 
counternarcotics efforts.
    (c) Covered assistance. Any assistance provided by an agency of the 
United States government under the FAA or AECA, except that it does not 
include:
    (1) Assistance that by operation of the law is not subject to FAA 
Section 487, such as:
    (i) Disaster relief and rehabilitation provided under Chapter 9 of 
Part I of the FAA; and
    (ii) Assistance provided to small farmers when part of a community-
based alternative development program under Part I or Chapter 4 of Part 
II of the FAA;
    (2) Assistance in a total amount less than $100,000 regarding a 
specific activity, program, or agreement, except that the procedures in 
Sec.  140.8 for recipients of scholarships, fellowships, and participant 
training shall apply regardless of amount. However, assistance shall be 
deemed covered assistance regardless of amount if the agency providing 
assistance has reasonable

[[Page 653]]

grounds to suspect that a covered individual or entity may be or may 
have been involved in drug trafficking; or
    (3) Payments of dues or other assessed contributions to an 
international organization.
    (d) Covered country. A country that has been determined by the 
President to be either a ``major illicit drug producing'' or ``major 
drug-transit'' country under Chapter 8 of Part I of the FAA. The list of 
covered countries is submitted to Congress annually and set forth in the 
International Narcotics Control Strategy Report.
    (e) Drug trafficking. Any activity undertaken illicitly to 
cultivate, produce, manufacture, distribute, sell, finance or transport, 
or to assist, abet, conspire, or collude with others in illicit 
activities, including money laundering, relating to narcotic or 
psychotropic drugs, precursor chemicals, or other controlled substances.
    (f) Money laundering. The process whereby proceeds of criminal 
activity are transported, transferred, transformed, converted, or 
intermingled with legally acquired funds, for the purpose of concealing 
or disguising the true nature, source, disposition, movement, or 
ownership of those proceeds. The goal of money laundering is to make 
funds derived from or associated with illicit activity appear to have 
been acquired legally.
    (g) Narcotics offense. A violation of, or a conspiracy to violate, 
any law or regulation of the United States, a State or the District of 
Columbia, or a foreign country relating to narcotic or psychotropic 
drugs or other controlled substances.



                         Subpart B_Applicability



Sec.  140.4  Applicability.

    Except as otherwise provided herein or as otherwise specially 
determined by the Secretary of State or the Secretary's designee (except 
that decisions on notification and/or disclosure shall in all cases be 
subject to the provisions of Sec. Sec.  140.13 through 140.14), the 
procedures prescribed by this part apply to any ``covered individual or 
entity,'' i.e., any individual or entity, including a foreign government 
entity, a multilateral institution or international organization, or a 
U.S. or foreign non-governmental entity:
    (a)(1) That is receiving or providing covered assistance as a party 
to a grant, loan, guarantee, cooperative agreement, contract, or other 
direct agreement with an agency of the United States (a ``first-tier'' 
recipient); or
    (2) That is receiving covered assistance
    (A) Beyond the first tier if specifically designated to receive such 
assistance by a U.S. government agency; or
    (B) In the form of a scholarship, fellowship, or participant 
training, except certain recipients funded through a multilateral 
institution or international organization, as provided in Sec.  
140.7(c); and
    (b)(1) That is located in or providing covered assistance within a 
covered country or within any other country, or portion thereof, that 
the Secretary of State or the Secretary's designee may at any time 
determine should be treated, in order to fulfill the purpose of this 
part, as if it were a covered country; or
    (2) As to which the agency providing assistance or any other 
interested agency has reasonable grounds to suspect current or past 
involvement in drug trafficking or conviction of a narcotics offense, 
regardless of whether the assistance is provided within a covered 
country.

    Examples: (1) Under a $500,000 bilateral grant agreement with the 
Agency for International Development providing covered assistance, 
Ministry Y of Government A, the government of a covered country, enters 
into a $150,000 contract with Corporation X. Ministry Y is a covered 
entity. However, Corporation X is not a covered entity because the 
contract is not a direct contract with an agency of the United States.
    (2) Under a $1,000,000 grant from the Department of State providing 
covered assistance, Corporation B makes a $120,000 subgrant to 
University Y for the training of 12 individuals. If Corporation B is 
located in or providing assistance within a covered country, it is a 
covered entity and the 12 individuals receiving participant training are 
covered individuals. University Y is not a covered entity.
    (3) University C, which is not located in a covered country, 
receives a $1 million regional assistance research project grant from 
the Agency for International development, $80,000 of which is provided 
for research in

[[Page 654]]

covered countries. University C is not a covered entity. (However, if 
$100,000 or more were provided for research in a covered country or 
countries, or if University C were located in a covered country, then 
University C would be a covered entity.)



                          Subpart C_Enforcement



Sec.  140.5  Overview.

    This subpart sets forth the enforcement procedures applicable 
pursuant to Sec.  140.4 to the various types of covered individuals and 
entities with respect to covered assistance. Section 140.6 establishes 
the procedures applicable to foreign government entities, including any 
such entity that is covered by the definition of a ``foreign state'' set 
forth in the Foreign Sovereign Immunities Act, 28 U.S.C. Sec. 1603(a). 
Section 140.7 establishes the procedures applicable to multilateral 
institutions and international organizations. Section 140.8 establishes 
the procedures applicable to recipients of scholarships and fellowships 
and participant trainees. Section 140.9 establishes the procedures 
applicable to non-governmental entities. Section 140.10 sets forth 
additional procedures applicable to intermediate credit institutions. 
Sections 140.11 through 140.14 contain general provisions related to the 
enforcement process.



Sec.  140.6  Foreign government entities.

    (a) Determination Procedures. (1) The Country Narcotics Coordinator 
shall be responsible for establishing a system for reviewing available 
information regarding narcotics offense convictions and drug trafficking 
of proposed assistance recipients under this section and, except under 
the circumstances described in Sec.  140.6(a)(6), determining whether a 
proposed recipient is to be denied such assistance or other measures are 
to be taken as a result of the application of FAA Section 487.
    (2) Prior to providing covered assistance to or through a proposed 
recipient, the agency providing the assistance shall provide the Country 
Narcotics Coordinator in the country in which the proposed recipient is 
located or, as appropriate, where assistance is to be provided, the 
information specified in Sec.  140.6(a)(3) in order that the Country 
Narcotics Coordinator may carry out his or her responsibilities under 
this part.
    (3) In each case, the agency proposing the assistance shall provide 
to the Country Narcotics Coordinator the name of each key individual 
within the recipient entity who may be expected to control or benefit 
from assistance as well as other relevant identifying information (e.g., 
address, date of birth) that is readily available. If a question arises 
concerning who should be included within the group of key individuals of 
an entity, the agency providing the assistance shall consult with the 
Country Narcotics Coordinator, and the decision shall be made by the 
Country Narcotics Coordinator. If the agency proposing the assistance 
disagrees with the Country Narcotics Coordinator's decision regarding 
who should be included within the group of key individuals, the agency 
may request that the decision be reviewed by the Assistant Secretary of 
State for International Narcotics and Law Enforcement Affairs in 
consultation with other appropriate bureaus and agencies. Any such 
review undertaken by the Assistant Secretary of State for International 
Narcotics and Law Enforcement Affairs shall be completed expeditiously.
    (4) Within fourteen calendar days after receiving the name of a 
proposed recipient and other relevant information, the Country Narcotics 
Coordinator shall determine whether any available information may 
warrant withholding assistance or taking other measures under this part, 
based on the criteria set forth in Sec.  140.6(b). If, during that 
period, the Country Narcotics Coordinator determines that available 
information does not so indicate, he or she shall notify the proposing 
agency that the assistance may be provided to the proposed recipient.
    (5) If, during the initial fourteen-day period, the Country 
Narcotics Coordinator determines that information exists that may 
warrant withholding assistance or taking other measures under this part, 
then the Country Narcotics Coordinator shall have another fourteen 
calendar days to make a final determination whether the assistance

[[Page 655]]

shall be provided or withheld or such other measures taken.
    (6) A decision to withhold assistance or to take other measures 
based on information or allegations that a key individual who is a 
senior government official of the host nation has been convicted of a 
narcotics offense or has been engaged in drug trafficking shall be made 
by the Assistant Secretary of State for International Narcotics and Law 
Enforcement Affairs, or by a higher ranking official of the Department 
of State, in consultation with other appropriate bureaus and agencies. 
For the purpose of this part, ``senior government official'' includes 
host nation officials at or above the vice minister level, heads of host 
nation law enforcement agencies, and general or flag officers of the 
host nation armed forces.
    (b) Criteria to be Applied. (1) A decision to withhold assistance or 
take other measures shall be based on knowledge or reason to believe 
that the proposed recipient, within the past ten years, has:
    (i) Been convicted of a narcotics offense as defined in this part; 
or
    (ii) Been engaged in drug trafficking, regardless of whether there 
has been a conviction.
    (2) Factors that may support a decision to withhold assistance or 
take other measures based on reason to believe that the proposed 
recipient has been engaged in drug trafficking activities within the 
past ten years when there has been no conviction of such an offense may 
include, but are not limited to, the following:
    (i) Admission of participation in such activities;
    (ii) A long record of arrests for drug trafficking activities with 
an unexplained failure to prosecute by the local government;
    (iii) Adequate reliable information indicating involvement in drug 
trafficking.
    (3) If the Country Narcotics Coordinator knows or has reason to 
believe that a key individual (as described in Sec.  140.6(a)(3)) within 
a proposed recipient entity has been convicted of a narcotics offense or 
has been engaged in drug trafficking under the terms of this part, the 
Country Narcotics Coordinator must then decide whether withholding 
assistance from the entity or taking other measures to structure the 
provision of assistance to meet the requirements of section 487 is 
warranted. This decision shall be made in consultation with the agency 
proposing the assistance and other appropriate bureaus and agencies. In 
making this determination, the Country Narcotics Coordinator shall take 
into account:
    (i) The extent to which such individual would have control over 
assistance received;
    (ii) The extent to which such individual could benefit personally 
from the assistance;
    (iii) Whether such individual has acted alone or in collaboration 
with others associated with the entity;
    (iv) The degree to which financial or other resources of the entity 
itself have been used to support drug trafficking; and
    (v) Whether the provision of assistance to the entity can be 
structured in such a way as to exclude from the effective control or 
benefit of the assistance any key individuals with respect to whom a 
negative determination has been made.
    (c) Violations Identified Subsequent to Obligation. The foregoing 
procedures provide for a determination before funds are obligated. If, 
however, subsequent to an obligation of funds an assistance recipient or 
a key individual of such recipient is found to have been convicted of a 
narcotics offense or to have been engaged in drug trafficking (e.g., the 
head of a recipient entity changes during the course of an activity and 
the new head is found to have been engaged in drug trafficking), 
appropriate action should be taken, including, if necessary, termination 
of the assistance. Agreements shall be written to permit termination of 
assistance in such circumstances.



Sec.  140.7  Multilateral institutions and international organizations.

    Assistance provided to or through multilateral institutions or 
international organizations is subject to this part as follows:
    (a) Where the government agency providing assistance has reasonable 
grounds to suspect that a recipient

[[Page 656]]

multilateral institution or international organization may be or may 
have been involved in drug trafficking, the provisions of Sec.  140.6 
shall apply.
    (b) Where the government agency providing assistance designates the 
recipient of assistance from the multilateral institution or 
international organization and the designated recipient is a covered 
individual or entity, the provisions of this part shall apply as if the 
assistance were provided directly to the designated recipient.
    (c) Where the government agency providing assistance does not 
designate the recipient of assistance from the multilateral institution 
or international organization, this part do not apply, other than as 
provided in paragraph (a) of this section, except that the agency's 
agreement with the multilateral institution or international 
organization shall stipulate that such entity is to make reasonable 
efforts, as necessary, to ensure that the assistance is not diverted in 
support of drug trafficking.

    Example: The State Department provides $600,000 to the United 
Nations for the United Nations Drug Control Program, specifically 
designating that Government D of a covered country receive $150,000 and 
Corporation E receive $60,000 for training programs in a covered 
country. Individuals who will receive training are not specifically 
designated by the State Department. The United Nations is a covered 
entity based on Sec.  140.4(a)(1); Government D is a covered entity 
based on Sec. Sec.  140.4(b) and 140.7(b); Corporation E is not a 
covered entity under Sec. Sec.  140.4(b) and 140.7(b) because it has 
been designated to receive less than $100,000 in assistance (Sec.  
140.3(c)(2)). Participant trainees are not covered individuals because 
they fall under the exception contained in Sec.  140.7(c) (see also 
Sec.  140.4(a)(2)).



Sec.  140.8  Recipients of scholarships, fellowships, and participant training.

    (a) Procedures. Individuals who are located in a covered country and 
who are proposed recipients of scholarships, fellowships, or participant 
training, except those falling under the exception contained in Sec.  
140.7(c), are subject to the review procedures, criteria, and procedures 
concerning violations identified subsequent to obligation of funds set 
forth in Sec.  140.6. Such review of recipient individuals is in 
addition to the provisions applicable to the recipient entity providing 
the assistance.
    (b) Certifications. Individuals who are located in a covered country 
and who are proposed recipients of scholarships, fellowships, or 
participant training shall also be required to certify prior to approval 
that, within the last ten years, they have not been convicted of a 
narcotics offense, have not been engaged in drug trafficking, and have 
not knowingly assisted, abetted, conspired, or colluded with others in 
drug trafficking. False certification may subject the assistance 
recipient to U.S. criminal prosecution under 18 U.S.C. Sec. 1001 and to 
withdrawal of assistance under this part.



Sec.  140.9  Other non-governmental entities and individuals.

    (a) Procedures. Section 140.9 applies to private voluntary agencies, 
educational institutions, for-profit firms, other non-governmental 
entities and private individuals. A non-governmental entity that is not 
organized under the laws of the United States shall be subject to the 
review procedures and criteria set forth in Sec.  140.6(a) and (b). A 
non-governmental entity that is organized under the laws of the United 
States shall not be subject to such review procedures and criteria. 
However, an agency providing assistance shall follow such review 
procedures and criteria, as modified by section Sec.  140.14, if the 
agency has reasonable grounds to suspect that a proposed U.S. non-
governmental entity or a key individual of such entity may be or may 
have been involved in drug trafficking or may have been convicted of a 
narcotics offense. Procedures set forth in Sec.  140.6(c) concerning 
violations identified subsequent to obligation shall apply to both U.S. 
and foreign non-governmental entities.

    Examples: (1) A $100,000 grant to a covered U.S. university for 
participant training would not be subject to the review procedures and 
criteria in Sec.  140.6(a) and (b). However, a proposed participant 
would be subject to the review procedures and criteria in Sec.  140.6(a) 
and (b) as part of the agency's approval process.
    (2) A $100,000 grant to a covered foreign private voluntary agency 
for participant training would be subject to the review procedures and 
criteria in Sec.  140.6(a) and (b). In addition, each proposed 
participant would be subject to the review procedures and criteria

[[Page 657]]

in Sec.  140.6(a) and (b) as part of the agency's approval process.

    (b) Refunds. A clause shall be included in grants, contracts, and 
other agreements with both U.S. and foreign non-governmental entities 
requiring that assistance provided to or through such an entity that is 
subsequently found to have been engaged in drug trafficking, as defined 
in this part, shall be subject to refund or recall.
    (c) Certifications. Prior to approval of covered assistance, key 
individuals (as described in Sec.  140.6(a)(3)) in both U.S. and foreign 
non-governmental entities shall be required to certify that, within the 
last ten years, they have not been convicted of a narcotics offense, 
have not been engaged in drug trafficking and have not knowingly 
assisted, abetted, conspired, or colluded with others in drug 
trafficking. False certification may subject the signatory to U.S. 
criminal prosecution under 18 U.S.C. Sec. 1001.



Sec.  140.10  Intermediate credit institutions.

    (a) Treatment as non-governmental entity or as a foreign government 
entity. Intermediate credit institutions (``ICIs'') shall be subject to 
either the procedures applicable to foreign government entities or those 
applicable to non-governmental entities, depending on the nature of the 
specific entity. The Assistant Secretary of State for International 
Narcotics and Law Enforcement Affairs or the Assistant Secretary's 
designee, in consultation with the agency proposing the assistance and 
other appropriate bureaus and agencies, shall determine (consistent with 
the definition of ``foreign state'' set forth in the Foreign Sovereign 
Immunities Act, 28 U.S.C. 1603(a) and made applicable by Sec.  140.5) 
whether the ICI will be treated as a non-governmental entity or a 
foreign government entity.
    (b) Refunds. In addition to measures required as a consequence of an 
ICI's treatment as a non-governmental entity or a foreign government 
entity, a clause shall be included in agreements with all ICIs requiring 
that any loan greater than $1,000 provided by the ICI to an individual 
or entity subsequently found to have been convicted of a narcotics 
offense or engaged in drug trafficking, as defined in this part, shall 
be subject to refund or recall.



Sec.  140.11  Minimum enforcement procedures.

    Sections 140.6 through 140.10 represent the minimum procedures that 
each agency providing assistance must apply in order to implement FAA 
Section 487. Under individual circumstances, however, additional 
measures may be appropriate. In those cases, agencies providing 
assistance are encouraged to take additional steps, as necessary, to 
ensure that the statutory restrictions are enforced.



Sec.  140.12  Interagency review procedures.

    If the agency proposing the assistance disagrees with a 
determination by the Country Narcotics Coordinator to withhold 
assistance or take other measures, the agency may request that the 
determination be reviewed by the Assistant Secretary of State for 
International Narcotics and Law Enforcement Affairs in coordination with 
other appropriate bureaus and agencies. Unless otherwise determined by 
the Assistant Secretary of State for International Narcotics and Law 
Enforcement Affairs, the assistance shall continue to be withheld 
pending resolution of the review.



Sec.  140.13  Notification to foreign entities and individuals.

    (a) Unless otherwise determined under Sec.  140.13(b), if a 
determination has been made that assistance to a foreign entity or 
individual is to be withheld, suspended, or terminated under this part, 
the agency administering such assistance shall so inform the affected 
entity or individual. Except as the agency administering such 
assistance, the Country Narcotics Coordinator, and the agency or 
agencies that are the source of information that formed the basis for 
withholding, suspending, or terminating assistance may otherwise agree, 
the entity or individual shall be notified solely of the statutory basis 
for withholding, suspending, or terminating assistance.
    (b) Before such notification, the Country Narcotics Coordinator 
shall be

[[Page 658]]

responsible for ascertaining, in coordination with the investigating 
agency, that notification would not interfere with an on-going criminal 
investigation. If the investigating agency believes that there is a 
significant risk of such interference, the Country Narcotics 
Coordinator, in coordination with the investigating agency, shall 
determine the means of compliance with this statute that best minimizes 
such risk.



Sec.  140.14  Special procedures for U.S. entities and individuals.

    (a) If the Country Narcotics Coordinator makes a preliminary 
decision that evidence exists to justify withholding, suspending, or 
terminating assistance to a U.S. entity, U.S. citizen, or permanent U.S. 
resident, the matter shall be referred immediately to the Assistant 
Secretary of State for International Narcotics and Law Enforcement 
Affairs for appropriate action, to be taken in consultation with the 
agency proposing the assistance and the agency or agencies that provided 
information reviewed or relied upon in making the preliminary decision.
    (b) If a determination is made that assistance is to be withheld, 
suspended, or terminated under this part, the Assistant Secretary of 
State for International Narcotics and Law Enforcement Affairs, or the 
Assistant Secretary's designee, shall notify the affected U.S. entity, 
U.S. citizen, or permanent U.S. resident and provide such entity or 
individual with an opportunity to respond before action is taken. In no 
event, shall this part be interpreted to create a right to classified 
information or law enforcement investigatory information by such entity 
or individual.

[[Page 659]]



                        SUBCHAPTER O_CIVIL RIGHTS





PART 141_NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS 
OF THE DEPARTMENT OF STATE_EFFECTUATION OF TITLE VI 
OF THE CIVIL RIGHTS ACT OF 1964--Table of Contents



Sec.
141.1 Purpose.
141.2 Application of this part.
141.3 Discrimination prohibited.
141.4 Assurances required.
141.5 Compliance information.
141.6 Conduct of investigation.
141.7 Procedure for effecting compliance.
141.8 Hearings.
141.9 Decisions and notices.
141.10 Judicial review.
141.11 Effect on other regulations; forms and instructions.
141.12 Definitions.

Appendix A to Part 141--Federal Financial Assistance to Which This Part 
          Applies

    Authority: Sec. 602, 78 Stat. 252, sec. 4, 63 Stat. 111, as amended; 
42 U.S.C. 2000d-1, 22 U.S.C. 2658.

    Source: 30 FR 314, Jan. 9, 1965, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 141 appear at 68 FR 
51358, Aug. 26, 2003.



Sec.  141.1  Purpose.

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



Sec.  141.2  Application of this part.

    This part applies to any program for which Federal financial 
assistance, as defined in this part, is authorized under a law 
administered by the Department including, but not limited to, the types 
of Federal financial assistance listed in appendix A of this part. It 
applies to Federal financial assistance of any form, including property 
which may be acquired as a result of and in connection with such 
assistance, extended program after the effective date of this 
regulation, even if the application is approved prior to such effective 
date. This part does not apply to (a) any Federal financial assistance 
by way of insurance of guaranty contracts; (b) money paid, property 
transferred, or other assistance extended before the effective date of 
this regulation; (c) any assistance to any individual who is the 
ultimate beneficiary; or (d) any employment practice, under any such 
program, of any employer, employment agency, or labor organization, 
except to the extent described in Sec.  141.3 (d), or (e) any assistance 
to an activity carried on outside the United States by a person, 
institution, or other entity not located in the United States. The fact 
that a type of Federal financial assistance is not listed in appendix A 
of this part shall not mean, if title VI of the Act is otherwise 
applicable, that a program is not covered. Transfers of surplus property 
in the United States are subject to regulations issued by the 
Administrator of General Services (41 CFR 101-6.2).

[38 FR 17945, July 5, 1973]



Sec.  141.3  Discrimination prohibited.

    (a) General. No person in the United States shall, on the ground of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program to which this part applies.
    (b) Specific discriminatory actions prohibited. (1) A recipient to 
which this part applies may not, directly or through contractual or 
other arrangements on ground of race, color or national origin:
    (i) Deny an individual any service, financial aid, or other benefits 
provided under the program;
    (ii) Provide any service, financial aid, or other benefits to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;

[[Page 660]]

    (iii) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit under the program;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit under the program;
    (v) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership or other requirement or condition which individuals must meet 
in order to be provided any service, financial aid, or other benefit 
provided under the program;
    (vi) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise afford him an opportunity 
to do so which is different from that afforded others under the program, 
including the opportunity to participate in the program as an employee 
in accordance with paragraph (d) of this section.
    (vii) Deny a person the opportunity to participate as a member of a 
planning or advisory body which is an integral part of the program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the location or site of any facilities, or services, or 
the class of individuals to whom, or the situations in which, such 
services, financial aid, other benefits, or facilities will be provided 
under any such program or the class of individuals to be afforded an 
opportunity to participate in any such program, may not, directly or 
through contractual or other arrangements, utilize criteria or methods 
of administration or select locations or sites for any facilities or 
services, which have the effect of subjecting individuals to 
discrimination because of their race, color, or national origin, or have 
the effect of defeating or substantially impairing accomplishment of the 
objectives of the program as respect individuals of a particular race, 
color, or national origin.
    (3) As used in this section the services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
shall be deemed to include any service, financial aid, or other benefit 
provided in or through a facility provided with the aid of Federal 
financial assistance.
    (4) The enumeration of specific forms of prohibited discrimination 
in this paragraph does not limit the generality of the prohibition in 
paragraph (a) of this section.
    (5)(i) In administering a program regarding which the recipient has 
previously discriminated against persons on the ground of race, color, 
or national origin, the recipient must take affirmative action to 
overcome the effects of prior discrimination.
    (ii) Even in the absence of such prior discrimination, a recipient 
in administering a program may take affirmative action to overcome the 
effects of conditions which resulted in limiting participation by 
persons of a particular race, color, or national origin.
    (c) Special benefits. An individual shall not be deemed subjected to 
discrimination by reason of his exclusion from benefits limited by 
Federal law to individuals of a particular race, color, or national 
origin different from his.
    (d) Employment practices. (1) Where a primary objective of the 
Federal financial assistance to a program to which this part applies is 
to provide employment, a recipient may not (directly or through 
contractual or other arrangements) subject an individual to 
discrimination on the ground of race, color, or national origin in its 
employment practices under such program (including recruitment or 
recruitment advertising, employment layoff or termination, upgrading, 
demotion, or transfer, rates of pay or other forms of compensation, and 
use of facilities), including programs where a primary objective of the 
Federal financial assistance is: (i) To reduce the unemployment of such 
individuals or to help them through employment to meet subsistence 
needs; (ii) to assist such individuals through employment to meet 
expenses incident to the commencement or continuation of their education 
or training; (iii) to provide work experience which contributes to the 
education or training of such individuals;

[[Page 661]]

or (iv) to provide remunerative activity to such individuals who because 
of severe handicaps cannot be readily absorbed in the competitive labor 
market.
    (2) Where a primary objective of the Federal financial assistance is 
not to provide employment, but discrimination on the grounds of race, 
color, or national origin in the employment practices of the recipient 
or other persons subject to the regulation tends, on the grounds of 
race, color, or national origin, to exclude individuals from 
participation in, to deny them the benefits of, or to subject them to 
discrimination under any program to which this regulation applies, the 
provisions of paragraph (d)(1) of this section shall apply to the 
employment practices of the recipient or other persons subject to the 
regulation, to the extent necessary to assure equality of opportunity 
to, and nondiscriminatory treatment of, beneficiaries.

[30 FR 314, Jan. 9, 1965, as amended at 38 FR 17946, July 5, 1973; 68 FR 
51358, Aug. 26, 2003]



Sec.  141.4  Assurances required.

    (a) General. (1) Every application for Federal financial assistance 
to which this part applies, as a condition to its approval and the 
extension of any Federal financial assistance pursuant to the 
application, shall contain or be accompanied by an assurance that the 
program will be conducted or the facility operated in compliance with 
all requirements imposed by or pursuant to this part. The assurance 
shall obligate the recipient for the period during which Federal 
financial assistance is extended pursuant to the application.
    (2) In any case where the Federal assistance is to provide, or is in 
the form of personal property, or real property or structures or any 
interest therein, or such property is acquired as a result of and in 
connection with such assistance, the assurance shall obligate the 
recipient, or, in case of subsequent transfers, the transferees, for the 
period during which the property is used for a purpose for which the 
Federal assistance was, or is extended, or for another purpose involving 
the provision of similar services and benefits, or for as long as the 
recipient retains ownership or possession of the property, whichever is 
longer. Any assurance relating to property provided under or acquired as 
a result of or in connection with such assistance shall as appropriate 
require any instrument effecting or recording transfer, title or other 
evidence of ownership or right to possession, to include a covenant or 
condition assuring nondiscrimination for the period of obligation of the 
recipient or any transferee, which may contain a right to be reserved to 
the Department to revert title or right to possession. Where no transfer 
of property is involved, but property is improved or any interest of the 
recipient or transferee therein is increased as a result of Federal 
financial assistance, the recipient or transferee shall agree to include 
such covenant or condition in any subsequent transfer of such property. 
Failure to comply with any such conditions or requirements contained in 
such assurances shall render the recipient and the transferees, where 
appropriate, presumptively in noncompliance.
    (3) The responsible Departmental official shall specify the form of 
the foregoing assurances, and the extent to which like assurances will 
be required of subgrantees, contractors and subcontractors, transferees, 
successors in interest, and other participants. Any such assurance shall 
include provisions which give the United States a right to seek its 
judicial enforcement.
    (b) Assurances from institutions. (1) In the case of any application 
for Federal financial assistance to an institution of higher education, 
including assistance for construction, for research, for a special 
training project, for student loans, or for any other purpose, the 
assurance required by this section shall extend to admission practices 
and to all other practices relating to the treatment of students.
    (2) The assurance required with respect to an institution of higher 
education, or any other institution, insofar as the assurance relates to 
the institution's practices with respect to admission or other treatment 
of individuals as students, or clients of the institution or to the 
opportunity to participate in the provision of services or other 
benefits to such individuals, shall be applicable to the entire 
institution.

[[Page 662]]

    (c) Elementary and secondary schools. The requirements of paragraph 
(a)(1) of this section, with respect to any elementary or secondary 
school or school system shall be deemed to be satisfied if such school 
or school system (1) is subject to a final order of a court of the 
United States for the desegregation of such school or school system, and 
provides an assurance that it will comply with such order, or (2) 
submits a plan the desegregation of such school or school system which 
the responsible official of the Department of Health, Education, and 
Welfare determines is adequate to accomplish the purposes of the Act and 
this part within the earliest practicable time, and provides reasonable 
assurance that it will carry out such plan; in any case of continuing 
Federal financial assistance the responsible official of the Department 
of Health, Education and Welfare may reserve the right to redetermine, 
after such period as may be specified by him the adequacy of the plan to 
accomplish the purposes of the Act and this part. In any case in which a 
final order of a court of the United States for the desegregation of 
such school or school system is entered after submission of such a plan, 
such plan shall be revised to conform to such final order, including any 
future modification of such order.

[30 FR 314, Jan. 9, 1965, as amended at 38 FR 17946, July 5, 1973; 68 FR 
51358, Aug. 26, 2003]



Sec.  141.5  Compliance information.

    (a) Cooperation and assistance. Each responsible Department official 
shall to the fullest extent practicable seek the cooperation of 
recipients in obtaining compliance with this regulation and shall 
provide assistance and guidance to recipients to help them comply 
voluntarily with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the responsible Departmental official or his designee timely, 
complete and accurate compliance reports at such times, and in such form 
and containing such information, as a responsible Departmental official 
or his designee may determine to be necessary to enable him to ascertain 
whether the recipient has complied or is complying with this part. In 
general, recipients should have available for the Department racial and 
ethnic data showing the extent to which members of minority groups are 
beneficiaries of Federally assisted programs. In the case in which a 
primary recipient extends Federal financial assistance to any other 
recipient, such other recipient shall also submit such compliance 
reports to the primary recipient as may be necessary to enable the 
primary recipient to carry out his obligations under this part.
    (c) Access to sources of information. Each recipient shall permit 
access by the responsible Department official or his designee during 
normal business hours to such of its books, records, accounts, and other 
sources of information, and its facilities as may be pertinent to 
ascertain compliance with this part. Where any information required of a 
recipient is in the exclusive possession of any other agency, 
institution or person and this agency, institution or person shall fail 
or refuse to furnish this information, the recipient shall so certify in 
its report and shall set forth what efforts it has made to obtain the 
information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
part and its applicability to the program for which the recipient 
receives Federal financial assistance, and make such information 
available to them in such manner, as the responsible Department official 
finds necessary to apprise such persons of the protections against 
discrimination assured them by the Act and this part.

[30 FR 314, Jan. 9, 1965, as amended at 38 FR 17947, July 5, 1973]



Sec.  141.6  Conduct of investigation.

    (a) Periodic compliance reviews. The responsible Department official 
or his designee shall from time to time review the practices of 
recipients to determine whether they are complying with this part.
    (b) Complaints. Any person who believes himself or any specific 
class of individual to be subjected to discrimination prohibited by this 
part may by himself or by a representative file with the responsible 
Departmental official a

[[Page 663]]

written complaint. A complaint must be filed not later than 180 days 
from the date of the alleged discrimination, unless the time for filing 
is extended by the responsible Departmental official or his designee.
    (c) Investigations. The responsible Department official or his 
designee will make a prompt investigation whenever a compliance review, 
report, complaint, or any other information indicates a possible failure 
to comply with this part. The investigation should include, where 
appropriate, a review of the pertinent practices and policies of the 
recipient, the circumstances under which the possible noncompliance with 
this part occurred, and other factors relevant to a determination as to 
whether the recipient has failed to comply with this part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
part, the responsible Department official or his designee will so inform 
the recipient and the matter will be resolved by informal means whenever 
possible. If it has been determined that the matter cannot be resolved 
by informal means, action will be taken as provided for in Sec.  141.7.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section the responsible Department official or 
his designee will so inform the recipient and the complainant, if any, 
in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this part, or because he 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this part. The 
identity of complainants shall be kept confidential except to the extent 
necessary to carry out the purposes of this part, including the conduct 
of any investigation, hearing, or judicial proceeding arising 
thereunder.

[30 FR 314, Jan. 9, 1965, as amended at 38 FR 17947, July 5, 1973]



Sec.  141.7  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance or by any other 
means authorized by law. Such other means may include, but are not 
limited to, (1) a reference to Department of Justice with a 
recommendation that appropriate proceedings be brought to enforce any 
rights of the United States under any law of the United States 
(including other titles of the Act), or any assurance or other 
contractual undertaking, and (2) any applicable proceeding under State 
or local law.
    (b) Noncompliance with Sec.  141.4. If an applicant fails or refused 
to furnish an assurance required under Sec.  141.4 or otherwise fails or 
refuses to comply with a requirement imposed by or pursuant to that 
section Federal financial assistance may be refused in accordance with 
the procedures of paragraph (c) of this section. The Department shall 
not be required to provide assistance in such a case during the pendency 
of the administrative proceedings under such paragraph except that the 
Department shall continue assistance during the pendency of such 
proceedings where such assistance is due and payable pursuant to an 
application therefor approved prior to the effective date of this part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating or refusing to 
grant or continue Federal financial assistance shall become effective 
until (1) the responsible Department official has advised the applicant 
or recipient of his failure to comply and has determined that compliance 
cannot be secured by voluntary means, (2) there has been an express 
finding on the record, after opportunity for hearing, of a failure by 
the applicant or recipient to comply with a requirement imposed by or 
pursuant to this part, (3) the action has been approved by the Secretary 
pursuant to Sec.  141.9(e), and (4)

[[Page 664]]

the expiration of 30 days after the Secretary has filed with the 
committee of the House and the committee of the Senate having 
legislative jurisdiction over the program involved, a full written 
report of the circumstances and the grounds for such action. Any action 
to suspend or terminate or to refuse to grant or to continue Federal 
financial assistance shall be limited to the particular political 
entity, or part thereof, or other applicant or recipient as to whom such 
a finding has been made and shall be limited in its effect to the 
particular program, or part thereof, in which such noncompliance has 
been so found.
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until (1) the 
responsible Department official has determined that compliance cannot be 
secured by voluntary means, (2) the action has been approved by the 
Deputy Under Secretary for Administration, (3) the recipient or other 
person has been notified of its failure to comply and of the action to 
be taken to effect compliance, and (4) the expiration of at least 10 
days from the mailing of such notice to the recipient or other person. 
During this period of at least 10 days additional efforts shall be made 
to persuade the recipient or other person to comply with this part and 
to take such corrective action as may be appropriate.

[30 FR 314, Jan. 9, 1965, as amended at 38 FR 17947 July 5, 1973]



Sec.  141.8  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec.  141.7(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken and the 
matters of fact or law asserted as the basis for this action, and either 
(1) fix a date not less than 20 days after the date or such notice 
within which the applicant or recipient may request of the responsible 
Department official that the matter be scheduled for hearing or (2) 
advise the applicant or recipient that the matter in question has been 
set down for hearing at a stated place and time. The time and place so 
fixed shall be reasonable and shall be subject to change for cause. The 
complainant, if any, shall be advised of the time and place of the 
hearing. An applicant or recipient may waive a hearing and submit 
written information and argument for the record. The failure of an 
applicant or recipient to request a hearing under this paragraph or to 
appear at a hearing for which a date has been set shall be deemed to be 
a waiver of the right to a hearing under section 602 of the Act and 
Sec.  141.7(c) of this part and consent to the making of a decision on 
the basis of such information as is available.
    (b) Time and place of hearing. Hearings shall normally be held at 
the offices of the Department in Washington, DC, at a time fixed by the 
responsible Department official. Hearings shall be held before an 
official designated by the Secretary other than the responsible 
Department official, in accordance with 5 U.S.C. 3105 and 3344 (formerly 
Section 11 of the Administrative Procedure Act).
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Department shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted with as much 
conformity as is practicable with 5 U.S.C. 554-557 (formerly sections 5-
8 of the Administrative Procedure Act) and in accordance with such rules 
of procedure as are proper (and not inconsistent with this section) 
relating to the conduct of the hearing, giving of notices subsequent to 
those provided for in paragraph (a) of this section, taking of 
testimony, exhibits, arguments and briefs, requests for findings, and 
other related matters. Both the Department and the applicant or 
recipient shall be entitled to introduce all relevant evidence on the 
issues as stated in the notice for hearing or as determined by the 
officer conducting the hearing at the outset of or during the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules or principles

[[Page 665]]

designed to assure production of the most credible evidence available 
and to subject testimony to test by cross-examination shall be applied 
where reasonably necessary by the officer conducting the hearing. The 
office presiding at the hearing may exclude irrelevant, immaterial, or 
unduly repetitious evidence. All documents and other evidence offered or 
taken for the record shall be open to examination by the parties and 
opportunity shall be given to refute facts and arguments advanced on 
either side of the issues. A transcript shall be made of the oral 
evidence except to the extent the substance thereof is stipulated for 
the record. All decisions shall be based upon the hearing record and 
written findings shall be made.
    (e) Consolidated or joint hearings; hearings before other agencies. 
In cases in which the same or related facts are asserted to constitute 
noncompliance with this part with respect to two or more Federal 
statutes, authorities, or other means by which Federal financial 
assistance is extended and to which this part applies, or noncompliance 
with this part and regulations of one or more other Federal departments 
or agencies issued under title VI of the Act, the Secretary may, by 
agreement with such other departments or agencies where applicable, 
provide for the conduct of consolidated or joint hearings, and for the 
application to such hearings of rules of procedures not inconsistent 
with this part, except that procedural requirements of the hearing 
agency if other than this Department may be adopted insofar as it is 
determined by the Secretary that variations from the procedures 
described in this section or elsewhere as may be required under this 
part do not impair the rights of the parties. The Secretary may also 
transfer the hearing of any complaint to any other department or agency, 
with the consent of that Department or Agency (1) where Federal 
financial assistance to the applicant or recipient of the other 
Department or Agency is substantially greater than that of the 
Department of State, or (2) upon determination by the Secretary that 
such transfer would be in the best interests of the Government of 
effectuating this part. Final decisions in all such cases, insofar as 
this part is concerned, shall be made in accordance with Sec.  141.9.

[30 FR 314, Jan. 9, 1965, as amended at 38 FR 17947, July 5, 1973]



Sec.  141.9  Decisions and notices.

    (a) Decisions on record or review by the responsible Department 
official. The applicant or recipient shall be given reasonable 
opportunity to file with the officer presiding at the hearing briefs or 
other written statements of its contentions, and a copy of the final 
decision shall be given in writing to the applicant or recipient and to 
the complainant, if any. The officer presiding at the hearing shall 
render a decision on the matter.
    (b) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec.  141.8(a) a decision shall be made by 
the responsible Departmental official on the record and a copy of such 
decision shall be given in writing to the applicant or recipient, and to 
the complainant, if any.
    (c) Rulings required. Each decision of an officer presiding at the 
hearing shall set forth his ruling on each finding, conclusion, or 
exception presented, and shall identify the requirement or requirements 
imposed by or pursuant to this part with which it is found that the 
applicant or recipient has failed to comply.
    (d) Appeal. Either party may appeal from a decision of the officer 
presiding at the hearing to the responsible Department official within 
30 days of the mailing of the officer's decision. In the absence of such 
an appeal the decision of the officer presiding at the hearings shall 
constitute the final decision of the Department subject to paragraph (e) 
of this section.
    (e) Approval by Secretary. Any final decision by an officer (other 
than the Secretary) which provides for the suspension or termination of, 
or the refusal to grant or continue Federal financial assistance, or the 
imposition of any other sanction available under this part or the Act, 
shall promptly be transmitted to the Secretary who may approve such 
decision, may vacate it, or remit or mitigate any sanction imposed.

[[Page 666]]

    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in whole or in part, to which this regulation applies, and 
may contain such terms, conditions, and other provisions as are 
consistent with and will effectuate the purposes of the Act and this 
part, including provisions designed to assure that no Federal financial 
assistance to which this regulation applies will thereafter be extended 
to the applicant or recipient determined by such decision to be in 
default in its performance of an assurance given by it pursuant to this 
part, or to have otherwise failed to comply with this part, unless and 
until it corrects its noncompliance and satisfies the responsible 
Department official that it will fully comply with this part.
    (g) Post-termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this regulation and provides reasonable assurance that it will fully 
comply with this regulation.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the responsible Departmental official to restore fully its 
eligibility to receive Federal financial assistance. Any such request 
shall be supported by information establishing that the applicant or 
recipient has met the requirements of paragraph (g)(1) of this section. 
If the responsible Departmental official determines that those 
requirements have been satisfied, he shall restore such eligibility, but 
such determination shall be in writing and shall be supported by 
evidence and findings of fact which shall be retained by the Department.
    (3) If the responsible Departmental official denies any such 
request, the applicant or recipient may submit a request for a hearing 
in writing, specifying why it believes such official to have been in 
error. It shall thereupon be given an expeditious hearing, with a 
decision on the record, in accordance with rules of procedure issued by 
the responsible Departmental official. The burden of substantiating 
compliance with the requirements of paragraph (g)(1) of this section 
shall be on the applicant or recipient. While proceedings under this 
paragraph are pending, the sanctions imposed by the order issued under 
paragraph (f) of this section shall remain in effect.

[30 FR 314, Jan. 9, 1965, as amended at 38 FR 17947, July 5, 1973]



Sec.  141.10  Judicial review.

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



Sec.  141.11  Effect on other regulations; forms and instructions.

    Nothing in this part shall be deemed to supersede: Executive Orders 
10925 and 11114 and regulations issued thereunder, or any other 
regulations or instructions, insofar as such regulations, or 
instructions prohibit discrimination on the ground of race, color, or 
national origin in any program or situation to which this regulation is 
inapplicable, or prohibit discrimination on any other ground.
    (a) Forms and instructions. Each responsible Department official 
shall issue, and promptly make available to interested persons, forms 
and detailed instructions and procedures for effectuating this part as 
applied to programs to which this part applies and for which he is 
responsible.
    (b) Supervision and coordination. The Secretary may, from time to 
time, assign to officials of the Department, or to officials of other 
departments or agencies of the Government with the consent of such 
department or agencies, responsibilities in connection with the 
effectuation of the purposes of title VI of the Act and this part 
including the achievement of effectiveness coordination and maximum 
uniformity within the Department and within the executive branch of the 
Government in the application of title VI and this part to similar 
programs and in similar situations. Any action taken, determination 
made, or requirement imposed by an official of another department or

[[Page 667]]

agency acting pursuant to an assignment of responsibility under this 
subsection shall have the same effect as though such action had been 
taken by the responsible official of this Department.

[22 FR 10882, Dec. 27, 1957, as amended at 38 FR 19748, July 5, 1973]



Sec.  141.12  Definitions.

    As used in this part--
    (a) The term Department means the Department of State and includes 
each of its operating agencies and other organizational units except the 
Agency for International Development.
    (b) The term Secretary means the Secretary of State.
    (c) The term responsible Department official with respect to any 
program receiving Federal financial assistance means the official of the 
Department having responsibility within the Department for such 
assistance or such official of the Department as the Secretary 
designates.
    (d) The term United States means the States of the United States, 
the District of Columbia, Puerto Rico, the Virgin Islands, American 
Samoa, Guam, Wake Island, the Canal Zone, and the territories and 
possessions of the United States, and the term State means any one of 
the foregoing.
    (e) The term Federal financial assistance includes (1) grants and 
loans of Federal funds, (2) the grant or donation of Federal property 
and interests in property, (3) the detail of Federal personnel, and (4) 
any Federal agreement, arrangement, or other contract which has as one 
of its purposes the provision of assistance or other benefits to 
individuals whether provided through employees of the recipient of 
Federal financial assistance or provided by others through contracts or 
other arrangements with the recipient.
    (f) The terms program or activity and program mean all of the 
operations of any entity described in paragraphs (f)(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 (f)(1), (2), or (3) of this section.
    (g) The term recipient means any State, political subdivision of any 
State, or instrumentality of any State or political subdivision, any 
public or private agency, institution, or organization, or other entity, 
or any individual, in any State to whom Federal financial assistance is 
extended directly or through another recipient, including any successor, 
assign, or transferee thereof, but such term does not include any 
ultimate beneficiary.
    (h) The term primary recipient means any recipient which is 
authorized or required to extend Federal financial assistance to another 
recipient.
    (i) The term applicant means one who submits an application, 
request, or plan required to be approved by a responsible Department 
official, or by a primary recipient, as a condition to

[[Page 668]]

eligibility for Federal financial assistance, and the term application 
means such an application, request, or plan.
    (j) The term facility includes all or any portion of structures, 
equipment, or other real or personal property or interests therein, and 
the provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration, or acquisition of facilities.

[30 FR 314, Jan. 9, 1965, as amended at 38 FR 17948, July 5, 1973; 68 FR 
51358, Aug. 26, 2003]



Sec. Appendix A to Part 141--Federal Financial Assistance to Which This 
                              Part Applies

    1. Mutual understanding between people of the United States and the 
people of other countries by educational and cultural exchange--studies, 
research, instruction and other educational activities--cultural 
exchanges (Mutual Educational and Cultural Exchange Act of 1961--75 
Stat. 527-538).
    2. Center for Cultural and Technical Interchange Between East and 
West--grant to State of Hawaii (Pub. L. 86-472, 74 Stat. 141).
    3. Assistance to or in behalf of refugees designated by the 
President (Migration and Refugee Assistance Act of 1962--76 Stat. 121-
124).
    4. Donations of certain foreign language tapes and other training 
material to public and private institutions (Regulations of 
Administrator of General Services relating to surplus property--41 CFR 
101-6.2).

[30 FR 314, Jan. 9, 1965, as amended at 38 FR 17948, July 5, 1973]



PART 142_NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS 
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                      Subpart A_General Provisions

Sec.
142.1 Purpose.
142.2 Application.
142.3 Definitions.
142.4 Discrimination prohibited.
142.5 Assurances required.
142.6 Remedial action, voluntary action, and self-evaluation.
142.7 Designation of responsible employee and adoption of grievance 
          procedures.
142.8 Notice.
142.9 Administrative requirements for small recipients.
142.10 Effect of state and local law or other requirements and effect of 
          employment opportunities.

                     Subpart B_Employment Practices

142.11 Discrimination prohibited.
142.12 Reasonable accommodation.
142.13 Employment criteria.
142.14 Preemployment inquiries.

                         Subpart C_Accessibility

142.15 Discrimination prohibited.
142.16 Existing facilities.
142.17 New construction.
142.18-142.40 [Reserved]

                    Subpart D_Postsecondary Education

142.41 Application of this subpart.
142.42 Admissions and recruitment.
142.43 Treatment of students; general.
142.44 Academic adjustments.
142.45 Housing.
142.46 Financial and employment assistance to students.
142.47 Nonacademic services.
142.48-142.60 [Reserved]

          Subpart E_Health, Welfare, Social, and Other Services

142.61 Application of this subpart.
142.62 Health, welfare, social, and other services.
142.63 Drug and alcohol addicts.

                          Subpart F_Procedures

142.70 Procedures.

Appendix A to Part 142--Federal Financial Assistance to Which This Part 
          Applies

    Authority: 29 U.S.C. 794.

    Source: 45 FR 69438, Oct. 21, 1980, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 142 appear at 68 FR 
51359, Aug. 26, 2003.



                      Subpart A_General Provisions



Sec.  142.1  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.  142.2  Application.

    This part applies to all programs or activities directly affecting 
handicapped individuals in the United States

[[Page 669]]

carried on by recipients of Federal financial assistance pursuant to any 
authority held or delegated by the Secretary of State, including the 
types of Federal financial assistance listed in appendix A of this part. 
(appendix A may be revised from time-to-time by notice in the Federal 
Register.) It applies to money paid, property transferred, or other 
Federal financial assistance extended after the effective date of this 
regulation, even if the application for such assistance is approved 
prior to such effective date. This part does not apply to:
    (a) Any Federal financial assistance by way of insurance or guaranty 
contracts;
    (b) Money paid, property transferred or other assistance extended 
before the effective date of this part;
    (c) Any assistance to any individual who is the ultimate 
beneficiary; and
    (d) Any procurement of goods or services, including the procurement 
of training. This part does not bar selection and treatment reasonably 
related to the foreign affairs objective or such other authorized 
purpose as the Federal assistance may have. It does not bar selections 
which are limited to particular groups where the purpose of the Federal 
financial assistance calls for such a limitation, nor does it bar 
special treatment including special courses of training, orientation or 
counseling consistent with such purpose.



Sec.  142.3  Definitions.

    As used in this part, the term:
    (a) Executive order means Executive Order 11914, entitled 
``Nondiscrimination with Respect to the Handicapped in Federally-
Assisted Programs,'' issued April 28, 1976.
    (b) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as 
amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516, 
and the Rehabilitation Act of Amendments of 1978, Pub. L. 95-602.
    (c) Section 504 means section 504 of the Rehabilitation Act of 1973, 
Pub. L. 93-112, as amended by the Rehabilitation Act Amendments of 1974, 
Pub. L. 93-516, 29 U.S.C. 794: amendments of 1978, Pub. L. 95-602.
    (d) Department means the Department of State and includes each of 
its organizational units. It does not include the Agency for 
International Development.
    (e) Secretary means the Secretary of State or any officer or 
employee of the Department to whom the Secretary has heretofore 
delegated, or to whom the Secretary may hereafter delegate, the 
authority to act under the regulations in this part.
    (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 and any sovereign foreign government.
    (g) Applicant for Assistance means one who submits an application, 
request, or plan required to be approved by a Department official or by 
a recipient as a condition or becoming a recipient.
    (h) Federal financial assistance means any grant, loan, contract 
(other than a procurement contract or a contract of insurance or 
guaranty), cooperative agreement, or any other arrangement by which the 
Department 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) means any person who: (i) has a physical 
or mental impairment which substantially

[[Page 670]]

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; genitourinary; 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. 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.
    (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 story 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 substantially 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 impairments, 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:
    (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 pre-school, 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 standard 
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 recipient of such 
services.
    (l) Handicap means any conditions 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--

[[Page 671]]

    (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.

[45 FR 69438, Oct. 21, 1980, as amended at 68 FR 51359, Aug. 26, 2003]



Sec.  142.4  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 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 aid, benefit, or 
service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped person 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 any 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 
effective, are not required to produce identical result or level of 
achievement for handicapped and nonhandicapped persons, but must afford 
handicapped person 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 programs or 
activities provided in accordance with this part, a recipient may not 
deny a qualified handicapped person the opportunity to participate in 
such aid, benefits, or services 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 with 
respect to 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 or a facility, an applicant 
for assistance or a recipient may not make selections (i) that have the 
effect of excluding handicapped persons from, denying them the benefits 
of, or otherwise subjecting them to discrimination

[[Page 672]]

under any program or activity that receives Federal financial assistance 
of (ii) that have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of the program or 
activity with respect to handicapped persons.
    (6) As used in this section, the aid, benefit, or service provided 
under a program or activity receiving Federal financial assistance 
includes any aid, benefit, or service provided in or through a facility 
that has been constructed, expanded, altered, leased or rented, or 
otherwise acquired, in whole or in part with Federal financial 
assistance.
    (c) Aid, benefits, or services limited by Federal law. The exclusion 
of a handicapped person 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.
    (d) Recipients shall administer programs or activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.
    (e) Recipients shall ensure that communications with their 
applicants, employees, and handicapped persons participating in their 
programs or activities, or receiving aids, or benefits of services, are 
available to persons with impaired vision and hearing in appropriate 
modes, including braille, enlarged type, sign language and 
telecommunication devices for the deaf.



Sec.  142.5  Assurances required.

    (a) Assurances. An applicant for Federal financial assistance to 
which this part applies shall submit an assurance on a form specified by 
the Secretary, that the program or activity will be operated in 
compliance with this part. An applicant may incorporate these assurances 
by reference in subsequent applications to the Department.
    (b) Duration of obligations. (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 
purposes for which Federal financial assistance is extended or for 
another purpose involving the provision of similar services or benefits.
    (2) Where no transfer of property is involved but property is 
purchased or improved with Federal financial assistance, the recipient 
shall agree to include the covenant described in paragraph (c)(1) of 
this section in the instrument effecting or recording any subsequent 
transfer of the property.
    (3) Where Federal financial assistance is provided by the Department 
in the form of real property or interest in real property, the covenant 
shall also include a condition coupled with a right to be reserved by 
the Department to revert title to the property in the event of a breach 
of the covenant. If a transferee of real property proposes to mortgage 
or otherwise encumber the real property as security for financing 
construction of new, or improvement of existing facilities on the 
property for the purposes for which the property was transferred, the 
Secretary may, upon request of the transferee and if necessary to 
accomplish such financing and upon such conditions as the Secretary 
deems appropriate, agree to forbear the exercise of such right to revert 
title for so long as the lien of such mortgage or other encumbrance 
remains effective.



Sec.  142.6  Remedial action, voluntary action, and self-evaluation.

    (a) Remedial action. (1) If the Secretary finds that a recipient has 
discriminated against persons on the basis of handicap in violation of 
section 504 of the Act or this part, the recipient shall take such 
remedial action as the Secretary deems necessary to overcome the effects 
of the discrimination.
    (2) Where a recipient is found to have discriminated against persons 
on the basis of handicap in violation of section 504 of the Act or this 
part and where another recipient exercises control over the recipient 
that has discriminated, the Secretary, where appropriate, may require 
either or both recipients to take remedial action.
    (3) The Secretary may, where necessary to overcome the effects of 
discrimination in violation of section 504 of the Act or this part, 
require a recipient to take action (i) with respect to

[[Page 673]]

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 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 six months 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 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 Secretary upon request: (i) A list of the interested persons 
consulted, (ii) a description of areas examined and any problems 
identified, and (iii) a description of any modifications made and of any 
remedial steps taken.



Sec.  142.7  Designation of responsible employee and adoption 
of grievance procedures.

    (a) Designation of responsible employee. A recipient that employs 15 
or 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 15 or 
more persons shall adopt grievance procedures that incorporate 
appropriate due process for the prompt and equitable resolution of 
complaints alleging any action prohibited by this part.



Sec.  142.8  Notice.

    (a) A recipient shall take appropriate initial and continuing steps 
to notify participants, beneficiaries, applicants, and employees, 
including those with impaired vision or hearing, and unions or 
professional organizations holding collective bargaining or professional 
agreements with the recipient that it does not discriminate on the basis 
of handicap in violation of section 504 of the Act or 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.  
142.7(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 but are not 
limited to the posting of notices, publication in newspapers and 
magazines, placement of notices in recipients' publications, 
distribution of memoranda or other written communications; and with 
persons with impaired vision and hearing, through appropriate modes 
including braille, enlarged type, sign language, and telecommunication 
devices for the deaf.
    (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 the paragraph either by including appropriate inserts in existing 
materials and publications or by revising and reprinting the materials 
and publications.

[[Page 674]]



Sec.  142.9  Administrative requirements for small recipients.

    The Secretary may require any recipient with fewer than fifteen 
employees, or any class of such recipients, to comply with Sec.  142.7, 
in whole or in part, when the Secretary finds a violation of this part 
or finds that such compliance will not significantly impair the ability 
of the recipient or class of recipients to provide benefits or services.



Sec.  142.10  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.  142.11  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 receiving Federal financial assistance.
    (2) 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 limit, segregate, or classify applicants or employees in any way 
that adversely affects their opportunities or status because of 
handicap.
    (3) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination prohibited by this subpart. 
This includes 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 part apply to:
    (1) Recruitment, advertising, and the processing of applications for 
employment;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right to return from layoff, and 
rehiring;
    (3) Rates of pay or any other form of compensation and changes in 
compensation;
    (4) Job assignments, job classification, 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 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.



Sec.  142.12  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 the 
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 of equipment or devices,

[[Page 675]]

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 with respect to 
number and type of facilities, and size of budget;
    (2) Job restructuring, part-time or modified work schedules, 
acquisition and or modification of equipment of devices such as 
telecommunication devices for the deaf, the provision of readers or 
interpreters and other similar actions including the use of braille, 
enlarged type, and sign language, when appropriate.
    (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.



Sec.  142.13  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 
Secretary to be available.
    (b) A recipient shall select and administer tests concerning 
employment to ensure that when administered to any applicant or employee 
who has a handicap that impairs sensory, manual, speaking, or other 
skills, the test results accurately reflect the applicant's or 
employee's job skills, aptitude, or whatever factor the test purports to 
measure, rather then reflecting the applicant's impaired sensory, 
manual, speaking, or other skills (except where those skills are the 
factors that the test purports to measure).



Sec.  142.14  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.  142.6(a), when a 
recipient is taking voluntary action to overcome the effect of 
conditions that resulted in limited participation in its federally 
assisted program or activity pursuant to Sec.  142.6(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 is 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 requirement 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

[[Page 676]]

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 
accommodation;
    (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.



                         Subpart C_Accessibility



Sec.  142.15  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 
the part applies.



Sec.  142.16  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 and usable by handicapped 
persons. This paragraph does not require a recipient to make each of its 
existing facilities or every part of an existing facility accessible to 
and usable by handicapped persons.
    (b) Methods. A recipient may comply with the requirement of 
paragraph (a) of this section through such means as the addition of 
equipment (e.g., telecommunication device for the deaf) 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 requirement of Sec.  142.18, or any 
other method that results in making its program or activity accessible 
to 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 handicapped persons in the most integrated setting appropriate.
    (c) Time period. A recipient shall comply with the requirement of 
paragraph (a) of this section within 60 days of the effective date of 
this part except that where structural changes in facilities are 
necessary, such changes shall be made within three years of the 
effective date of this part, but in any event as expeditiously as 
possible.
    (d) 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 handicapped persons or 
organizations representing 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 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 steps 
that will be taken during each year of the transition period;
    (4) Indicate the person responsible for implementation of the plan; 
and
    (5) A list of all handicapped persons and organizations consulted in 
the plan formulation process.
    (e) Notice. The recipient shall adopt and implement procedures to 
ensure that interested persons, including persons with impaired vision 
or hearing,

[[Page 677]]

can obtain information as to the existence and location of services, 
activities, and facilities that are accessible to and usable by 
handicapped persons.

[45 FR 69438, Oct. 21, 1980, as amended at 68 FR 51359, Aug. 26, 2003]



Sec.  142.17  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, constructed, and operated in a manner so that the facility or 
part of the facility is accessible to and usable by persons with 
handicaps, 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 effects or could affect the usability of 
the facility or part of the facility shall, to the maximum extent 
feasible, be altered so that the altered portion of the facility is 
readily accessible to and usable by persons with handicaps.
    (c) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as 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.

[55 FR 52138, 52140, Dec. 19, 1990]



Sec. Sec.  142.18-142.40  [Reserved]



                    Subpart D_Postsecondary Education



Sec.  142.41  Application of this subpart.

    Subpart D applies to postsecondary education programs and 
activities, including postsecondary vocational education programs or 
activities, that receive Federal financial assistance from the 
Department of State, and to recipients that operate, or that receive or 
benefit from Federal financial assistance for the operation of, such 
programs or activities.



Sec.  142.42  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 of activity in question and (ii) alternate tests or criteria 
that have a less disproportionate, adverse effect are not shown by the 
Secretary to be available;
    (3) Shall assure itself that (i) admissions tests are selected and 
administered so as 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, 
speaking or other skills (except where

[[Page 678]]

those skills are the factors that the test purports to measure); (ii) 
admissions tests that are designed for persons with impaired sensory, 
manual, speaking or other 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, 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.  142.6(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.  142.6(b), the recipient may invite applicants for admissions 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 (c)(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.  142.43  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 
programs or activities in the most integrated setting appropriate.



Sec.  142.44  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 discrimination, on the basis of handicap, 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

[[Page 679]]

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 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, speaking or other skills as will best ensure that the results of 
the evaluation represent the student's achievement in the course, rather 
than reflecting the student's impaired sensory, manual, speaking or 
other 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 because of the absence of 
educational auxiliary aids for students with impaired sensory, manual, 
speaking or other skills.
    (2) Auxiliary aids may include taped texts, interpreters, 
telecommunication devices for the deaf 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 
attendants, individually prescribed devices, readers for personal use or 
study, or other devices or services of a personal nature.



Sec.  142.45  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 of this part, such housing shall be available in sufficient 
quantity and variety so that the scope of handicapped students' choice 
of living accommodation 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.  142.46  Financial and employment assistance to students.

    (a) Provisions of financial assistance. (1) In providing financial 
assistance of 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 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 assists any agency, organization, or person in providing employment 
opportunities to any of its students shall assure itself that such 
employment opportunities, as a whole, are 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.

[[Page 680]]



Sec.  142.47  Non-academic services.

    (a) Physical education and athletics. (1) In providing physical 
education courses, 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 separate 
or differentiation is consistent with the requirements of Sec.  
142.43(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 factural 
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.



Sec. Sec.  142.48-142.60  [Reserved]



          Subpart E_Health, Welfare, Social, and Other Services



Sec.  142.61  Application of this subpart.

    Subpart E applies to health, welfare, social and other programs or 
activities that receive Federal financial assistance and to recipients 
that operate, or that receive or benefit from Federal financial 
assistance for the operation of such programs or activities.



Sec.  142.62  Health, welfare, social, and other services.

    (a) General. In providing health, welfare, social and other 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 are not equal to those offered nonhandicapped 
persons;
    (3) Provide a qualified handicapped person with benefits or services 
that are not as effective (as defined in Sec.  142.4(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 to 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 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 15 or more persons shall provide appropriate auxiliary aids 
to persons with impaired sensory, manual, speaking or other skills 
(where necessary) to afford such persons an equal opportunity to benefit 
from the service in question.

[[Page 681]]

    (2) The Secretary may require recipients with fewer than 15 
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.
    (e) 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.  142.63  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.



                          Subpart F_Procedures



Sec.  142.70  Procedures.

    The procedural provisions applicable to title VI of the Civil Rights 
Act of 1964 apply to this part. These procedures are found in 22 CFR 
subchapter O, part 141.





Sec. Appendix A to Part 142--Federal Financial Assistance to Which This 
                              Part Applies

    Types of Federal Financial Assistance Administered by the Department 
of State Subject to Handicap Discrimination Regulations.
    1. Resettlement of Refugees in the United States Under the Migration 
and Refugee Assistance Act of 1962, as amended (22 U.S.C. 2601 et seq. 
(1976)).
    2. Non-reimbursable assignment of Foreign Service officers to State 
or local governments, public schools, community colleges, and other 
public or private nonprofit organizations designated by the Secretary of 
State (section 576 of the Foreign Service Act of 1946, as amended; 22 
U.S.C. 966 (1976)).
    3. Diplomat-in-Residence Program of the Foreign Service Institute 
under Title VII of the Foreign Service Act of 1946, as amended (22 
U.S.C. 1041, et seq. (1976)).

[45 FR 69438, Oct. 21, 1980, as amended at 68 FR 51359, Aug. 26, 2003]



PART 143_NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS 
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                            Subpart A_General

Sec.
143.1 What is the purpose of age discrimination regulations?
143.2 To what programs or activities do these regulations apply?
143.3 Definitions.

         Subpart B_Standards for Determining Age Discrimination

143.11 Standards.

                  Subpart C_Duties of Agency Recipients

143.21 General responsibilities.
143.22 Notice to subrecipients.
143.23 Self-evaluation.
143.24 Information requirements.

    Subpart D_Investigation, Conciliation, and Enforcement Procedures

143.31 Compliance reviews.
143.32 Complaints.
143.33 Mediation.
143.34 Investigation.
143.35 Prohibition against intimidation or retaliation.
143.36 Compliance procedure.
143.37 Hearings, decisions, post-termination proceedings.
143.38 Remedial action by recipient.
143.39 Alternate funds disbursal procedure.

Appendix A to Part 143--List of Affected Federal Financial Assistance
Appendix B to Part 143--List of Affected Federal Financial Assistance
Appendix C to Part 143--List of Affected Programs

    Authority: Age Discrimination Act of 1975, as amended, (42 U.S.C. 
6101 et seq.); 22 U.S.C. 2658; 45 CFR part 90.

    Source: 45 FR 31713, May 14, 1980, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 143 appear at 68 FR 
51360, Aug. 26, 2003.



                            Subpart A_General



Sec.  143.1  What is the purpose of the age discrimination regulations?

    The purpose of these regulations is to set out the policies and 
procedures for the three foreign affairs agencies (State, USICA and AID) 
under the Age

[[Page 682]]

Discrimination Act of 1975 and the government-wide age discrimination 
regulations at 45 CFR part 90 (published at 44 FR 33768, June 12, 1979). 
The Act and the government-wide regulations prohibit discrimination on 
the basis of age in programs or activities in the United States 
receiving federal financial assistance. The Act and the government-wide 
regulations permit federally assisted programs and activities, and 
recipients of federal funds, to continue to use age distinctions and 
factors other than age which meet the requirements of the Act and the 
government-wide regulations.



Sec.  143.2  To what programs or activities do these regulations apply?

    These regulations apply to each foreign affairs agency recipient and 
to each program or activity in the United States operated by the 
recipient which receives or benefits from federal financial assistance 
provided by any of these agencies.



Sec.  143.3  Definitions.

    (a) The following terms used in this part are defined in the 
government-wide regulations (45 CFR 90.4, 44 FR 33768):

    Act
    Action
    Age
    Age distinction
    Age-related term
    Federal financial assistance
    Recipient (including subrecipients)
    United States

    (b) As used in this part:
    (1) Agency means the Department of State, the U.S. International 
Communication Agency, and the Agency for International Development.
    (2) Program or activity means all of the operations of any entity 
described in paragraphs (b)(2)(i) and (iv) of this section, any part of 
which is extended Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity which is established by two or more of the 
entities described in paragraph (b)(2)(i), (ii), or (iii) of this 
section.
    (3) Secretary means the Secretary of State, the Director of the U.S. 
International Communication Agency, and the Administrator of the Agency 
for International Development, or the designee of such officer.
    (4) Subrecipient means any of the entities in the definition of 
``recipient'' to which a recipient extends or passes on Federal 
financial assistance. A subrecipient is generally regarded as a 
recipient of Federal financial assistance and has all the duties of a 
recipient in these regulations.

[45 FR 31713, May 14, 1980, as amended at 68 FR 51360, Aug. 26, 2003]



         Subpart B_Standards for Determining Age Discrimination



Sec.  143.11  Standards.

    The standards each agency uses to determine whether an age 
distinction or age-related term is prohibited are set out in part 90 
(primarily subpart B) of 45 CFR.

[[Page 683]]



                  Subpart C_Duties of Agency Recipients



Sec.  143.21  General responsibilities.

    Each agency recipient has primary responsibility to ensure that its 
programs and activities are in compliance with the Act, the government-
wide regulations, and these regulations.



Sec.  143.22  Notice to subrecipients.

    Where a recipient passes on Federal financial assistance from an 
agency to subrecipients, the recipient shall provide the subrecipients 
written notice to their obligations under these regulations.



Sec.  143.23  Self-evaluation.

    (a) Each recipient employing the equivalent of 15 or more full-time 
employees shall complete a one-time written self-evaluation of its 
compliance under the Act within 18 months of the effective date of these 
regulations.
    (b) In its self-evaluation each recipient shall identify each age 
distinction it uses and justify each age distinction it imposes on the 
program or activity receiving Federal financial assistance from an 
agency.
    (c) Each recipient shall take corrective action whenever a self-
evaluation indicates a violation of these regulations.
    (d) Each recipient shall make the self-evaluation available on 
request to the agency and to the public for a period of three years 
following its completion.



Sec.  143.24  Information requirements.

    Each recipient shall:
    (a) Make available upon request to the agency information necessary 
to determine whether the recipient is complying with the regulations.
    (b) Permit reasonable access by the agency to the books, records, 
accounts, and other recipient facilities and sources of information to 
the extent necessary to determine whether a recipient is in compliance 
with these regulations.



    Subpart D_Investigation, Conciliation, and Enforcement Procedures



Sec.  143.31  Compliance reviews.

    (a) The agency may conduct compliance reviews and pre-award reviews 
of recipients that will permit it to investigate and correct violations 
of these regulations. The agency may conduct these reviews even in the 
absence of a complaint against a recipient. The review may be as 
comprehensive as necessary to determine whether a violation of these 
regulations has occurred.
    (b) If a compliance review or pre-award review indicates a violation 
of this part, the agency will attempt to achieve voluntary compliance 
with the Act. If voluntary compliance cannot be achieved, the agency 
will arrange for enforcement as described in Sec.  143.36.



Sec.  143.32  Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with an agency, alleging discrimination 
prohibited by these regulations based on an action occurring on or after 
July 1, 1979. A complainant shall file a complaint within 180 days from 
the date the complainant first had knowledge of the alleged act of 
discrimination. However, for good cause shown, the agency may extend 
this time limit.
    (b) The agency will attempt to facilitate the filing of complaints 
wherever possible, including taking the following measures:
    (1) Accepting as a sufficient complaint, any written statement which 
identifies the parties involved, describes generally the action or 
practice complained of, and is signed by the complainant.
    (2) Freely permitting a complainant to add information to the 
complaint to meet the requirements of a sufficient complaint.
    (3) Widely disseminating information regarding the obligations of 
recipients under the Act and these regulations.
    (4) Notifying the complainant and the recipient of their rights 
under the complaint procedure, including the right to have a 
representative at all stages of the complaint process.

[[Page 684]]

    (5) Notifying the complainant and the recipient (or their 
representatives) of their right to contact the agency for information 
and assistance regarding the complaint resolution process.
    (c) The agency will return to the complainant any complaint outside 
the jurisdiction of these regulations and will state the reason(s) why 
it is outside the jurisdiction of these regulations.



Sec.  143.33  Mediation.

    (a) Referral of complaints for mediation. The agency will refer to 
the Federal Mediation and Conciliation Service all complaints that:
    (1) Fall within the jurisdiction of these regulations; and
    (2) Contain all information necessary for further processing.
    (b) Both the complainant and the recipient shall participate in the 
mediation process to the extent necessary to reach an agreement or make 
an informed judgment that an agreement is not possible. There must be at 
least one meeting with the mediator, before the agency will accept a 
judgment that an agreement is not possible. However, the recipient and 
the complainant need not meet with the mediator at the same time.
    (c) If the complainant and the recipient reach an agreement, the 
mediator shall prepare a written statement of the agreement and have the 
complainant and recipient sign it. The mediator shall send a copy of the 
agreement to the agency. The agency shall take no further action on the 
complaint unless the complainant or the recipient fails to comply with 
the agreement.
    (d) The mediator shall protect the confidentiality of all 
information obtained in the course of the mediation process. No mediator 
shall testify in any adjudicative proceeding, produce any document, or 
otherwise disclose any information obtained in the course of the 
mediation process without prior approval of the head of the mediation 
agency.
    (e) The agency will use the mediation process for a maximum of 60 
days after receiving a complaint. Mediation ends if:
    (1) Sixty days elapse from the time the agency receives the 
complaint; or
    (2) Prior to the end of that 60-day period, an agreement is reached; 
or
    (3) Prior to the end of that 60-day period, the mediator determines 
that an agreement cannot be reached.
    (f) The mediator shall return unresolved complaints to the agency.



Sec.  143.34  Investigation.

    (a) Informal investigation. (1) The agency will investigate 
complaints that are unresolved after mediation or are reopened because 
of a violation of a mediation agreement.
    (2) As part of the initial investigation, the agency will use 
informal fact finding methods, including joint or separate discussions 
with the complainant and recipient to establish the facts, and, if 
possible, settle the complaint on terms that are mutually agreeable. The 
agency may seek the assistance of any involved State program agency.
    (3) The agency will put any agreement in writing and have it signed 
by the parties and an authorized official of the agency.
    (4) The settlement shall not affect the operation of any other 
enforcement efforts of the agency, including compliance reviews and 
other individual complaints which may involve the recipient.
    (5) The settlement is not a finding of discrimination against a 
recipient.
    (b) Formal investigation. If the agency cannot resolve the complaint 
through informal investigation, it will begin to develop formal findings 
through further investigation of the complaint. If the investigation 
indicates a violation of these regulations, the agency will attempt to 
obtain voluntary compliance. If the agency cannot obtain voluntary 
compliance, it will begin enforcement as described in Sec.  143.36.



Sec.  143.35  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who:
    (a) Attempts to assert a right protected by these regulations; or
    (b) Cooperates in any mediation, investigation, hearing, or other 
part of the agency's investigation, conciliation, and enforcement 
process.

[[Page 685]]



Sec.  143.36  Compliance procedure.

    (a) An agency may enforce the Act and these regulations through:
    (1) Termination of a recipient's Federal financial assistance from 
the agency under the program or activity involved where the recipient 
has violated the Act and these regulations. The determination of the 
recipient's violation may be made only after a recipient has had an 
opportunity for a hearing on the record before an administrative law 
judge. Therefore, cases which are settled in mediation or prior to a 
hearing, will not involve termination of a recipient's Federal financial 
assistance from the agency.
    (2) Any other means authorized by law including but not limited to:
    (i) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligations by the Act and these 
regulations.
    (ii) Use of any requirement of or referral to any Federal, state, or 
local government agency which will have the effect of correcting a 
violation of the Act or these regulations.
    (b) The agency will limit any termination under Sec.  143.36(a)(1) 
to the particular recipient and particular program or activity the 
agency finds in violation of these regulations. The agency will not base 
any part of a termination on a finding with respect to any program or 
activity of the recipient which does not receive Federal financial 
assistance from the agency.
    (c) The agency will take no action under paragraph (a) of this 
section until:
    (1) The agency head has advised the recipient of its failure to 
comply with these regulations and has determined that voluntary 
compliance cannot be obtained.
    (2) Thirty days have lapsed after the agency head has sent a written 
report of the circumstances and grounds of the action to the committees 
of the Congress having legislative jurisdiction over the Federal program 
or activity involved. The agency head shall file a report whenever any 
action is taken under paragraph (a) of this section.
    (d) The agency head also may defer granting new Federal financial 
assistance from the agency to a recipient when a hearing under Sec.  
143.36(a)(1) is initiated.
    (1) New Federal financial assistance from the agency includes all 
assistance for which the agency requires an application or approval, 
including renewal or continuation of existing activities, or 
authorization of the new activities, during the deferral period. New 
Federal financial assistance from the agency does not include increases 
in funding as a result of changed computation of formula awards or 
assistance approved prior to the beginning of a hearing under Sec.  
143.36(a)(1).
    (2) The agency will not begin a deferral until the recipient has 
received a notice of opportunity for a hearing under Sec.  143.36(a)(1). 
The agency will not continue a deferral for more than 60 days unless a 
hearing has begun within that time or the time for beginning the hearing 
has been extended by mutual consent of the recipient and the agency 
head. The agency will not continue a deferral for more than 30 days 
after the close of a hearing unless the hearing results in a finding 
against the recipient.



Sec.  143.37  Hearings, decisions, post-termination proceedings.

    Certain procedural provisions applicable to Title VI of the Civil 
Rights Act of 1964 apply to enforcement of this part. They are 22 CFR 
141.8 through 141.10.



Sec.  143.38  Remedial action by recipient.

    Where the agency head finds a recipient has discriminated on the 
basis of age, the recipient shall take any remedial action that the 
agency head may require to overcome the effects of the discrimination. 
If another recipient exercises control over the recipient that has 
discriminated, the agency head may require both recipients to take 
remedial action.



Sec.  143.39  Alternate funds disbursal procedure.

    (a) When an agency withholds funds from a recipient under these 
regulations, the agency head may disburse the withheld funds directly to 
an alternate recipient, any public or non-profit private organization or 
agency, or

[[Page 686]]

State or political subdivision of the State.
    (b) The agency head will require any alternate recipient to 
demonstrate:
    (1) The ability to comply with these regulations; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the program or activity.





    Sec. Appendix A to Part 143--List of Affected Federal Financial 
                               Assistance

Types of Federal Financial Assistance Administered by the Department of 
             State Subject to Age Discrimination Regulations

    Resettlement of Refugees in the United States Under the Migration 
and Refugee Assistant Act of 1962, as amended (22 U.S.C. 2601 et seq.).
    Diplomat in Residence Program of the Foreign Service Institute Under 
Title VII of the Foreign Service Act of 1946, as amended (22 U.S.C. 1041 
et seq.).
    Assignments under section 576 of the Foreign Service Act of 1946, as 
amended (22 U.S.C. 966)



    Sec. Appendix B to Part 143--List of Affected Federal Financial 
                               Assistance

Types of Federal Financial Assistance Administered by the United States 
    International Communication Agency Subject to Age Discrimination 
                               Regulations

    Educational and Cultural Exchanges under the Mutual Educational and 
Cultural Exchange Act of 1961, as amended (22 U.S.C. 1431-1479).



         Sec. Appendix C to Part 143--List of Affected Programs

Types of Federal Financial Assistance Administered by AID Subject to Age 
                       Discrimination Regulations

    1. Grants to research and educational institutions in the United 
States to strengthen their capacity to develop and carry out programs 
concerned with the economic and social development of developing 
countries (Section 122(d), Foreign Assistance Act of 1961, as amended, 
22 U.S.C. 2151(d)).
    2. Grants to land grant and other qualified agricultural 
universities and colleges in the United States to develop their 
capabilities to assist developing countries in agricultural teaching, 
research and extension services (Section 297, Foreign Assistance Act of 
1961, as amended, 22 U.S.C. 2220(b)).
    3. Grants to private and voluntary agencies, non-profit 
organizations, educational institutions, and other qualified 
organizations for programs in the United States to promote the economic 
and social development of developing countries (Sections 103-106, 
Foreign Assistance Act of 1961, as amended, 22 U.S.C. 2151a-2151d).



PART 144_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP 
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE UNITED STATES DEPARTMENT OF STATE--
Table of Contents



Sec.
144.101 Purpose.
144.102 Application.
144.103 Definitions.
144.104-144.109 [Reserved]
144.110 Self-evaluation.
144.111 Notice.
144.112-144.129 [Reserved]
144.130 General prohibitions against discrimination.
144.131-144.139 [Reserved]
144.140 Employment.
144.141-144.148 [Reserved]
144.149 Program accessibility: Discrimination prohibited.
144.150 Program accessibility: Existing facilities.
144.151 Program accessibility: New construction and alterations.
144.152-144.159 [Reserved]
144.160 Communications.
144.161-144.169 [Reserved]
144.170 Compliance procedures.
144.171-144.999 [Reserved]

    Authority: 29 U.S.C. 794.

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



Sec.  144.101  Purpose.

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



Sec.  144.102  Application.

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

[[Page 687]]



Sec.  144.103  Definitions.

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

[[Page 688]]

regulation, or agency policy to receive education services from the 
agency.
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can acheive the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature;
    (3) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec.  144.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. Sec.  144.104-144.109  [Reserved]



Sec.  144.110  Self-evaluation.

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



Sec.  144.111  Notice.

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



Sec. Sec.  144.112-144.129  [Reserved]



Sec.  144.130  General prohibitions against discrimination.

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

[[Page 689]]

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



Sec. Sec.  144.131-144.139  [Reserved]



Sec.  144.140  Employment.

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



Sec. Sec.  144.141-144.148  [Reserved]



Sec.  144.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec.  144.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec.  144.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and

[[Page 690]]

usable by handicapped persons. This paragraph does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec.  144.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by handicapped persons. The agency is not 
required to make structural changes in existing facilities where other 
methods are effective in achieving compliance with this section. The 
agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
handicapped persons in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec.  144.150(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to handicapped 
persons. In cases where a physical alteration to an historic property is 
not required because of Sec.  144.150(a)(2) or (a)(3), alternative 
methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide handicapped persons into or through 
portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by October 21, 1986, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by August 22, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by February 23, 1987, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan

[[Page 691]]

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



Sec.  144.151  Program accessibility: New construction and alterations.

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



Sec. Sec.  144.152-144.159  [Reserved]



Sec.  144.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf person (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and adminstrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec.  144.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, handicapped persons receive the benefits and services 
of the program or activity.



Sec. Sec.  144.161-144.169  [Reserved]



Sec.  144.170  Compliance procedures.

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

[[Page 692]]

    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Deputy Assistant Secretary for Equal Employment Opportunity 
and Civil Rights shall be responsible for coordinating implementation of 
this section. Complaints may be sent to Deputy Assistant Secretary for 
Equal Employment Opportunity and Civil Rights, Department of State, 2201 
C Street, NW., Room 3214, Washington, DC 20520.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec.  144.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

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



Sec. Sec.  144.171-144.999  [Reserved]



PART 146_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS 
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                         Subpart A_Introduction

Sec.
146.100 Purpose and effective date.
146.105 Definitions.
146.110 Remedial and affirmative action and self-evaluation.
146.115 Assurance required.
146.120 Transfers of property.
146.125 Effect of other requirements.
146.130 Effect of employment opportunities.
146.135 Designation of responsible employee and adoption of grievance 
          procedures.
146.140 Dissemination of policy.

                           Subpart B_Coverage

146.200 Application
146.205 Educational institutions and other entities controlled by 
          religious organizations.
146.210 Military and merchant marine educational institutions.
146.215 Membership practices of certain organizations.
146.220 Admissions.
146.225 Educational institutions eligible to submit transition plans.

[[Page 693]]

146.230 Transition plans.
146.235 Statutory amendments.

     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

146.300 Admission.
146.305 Preference in admission.
146.310 Recruitment.

 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

146.400 Education programs or activities.
146.405 Housing.
146.410 Comparable facilities.
146.415 Access to course offerings.
146.420 Access to schools operated by LEAs.
146.425 Counseling and use of appraisal and counseling materials.
146.430 Financial assistance.
146.435 Employment assistance to students.
146.440 Health and insurance benefits and services.
146.445 Marital or parental status.
146.450 Athletics.
146.455 Textbooks and curricular material.

Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

146.500 Employment.
146.505 Employment criteria.
146.510 Recruitment.
146.515 Compensation.
146.520 Job classification and structure.
146.525 Fringe benefits.
146.530 Marital or parental status.
146.535 Effect of state or local law or other requirements.
146.540 Advertising.
146.545 Pre-employment inquiries.
146.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

146.600 Notice of covered programs.
146.605 Enforcement procedures.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 65 FR 52865, 52878, unless otherwise noted.



                         Subpart A_Introduction



Sec.  146.100  Purpose and effective date.

    The purpose of these Title IX regulations is to effectuate Title IX 
of the Education Amendments of 1972, as amended (except sections 904 and 
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 
1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these Title 
IX regulations shall be September 29, 2000.



Sec.  146.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate, transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means Deputy Assistant Secretary for the 
Office of Equal Employment Opportunity and Civil Rights'.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a

[[Page 694]]

building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a technical field, whether or not the 
school or institution offers certificates, diplomas, or degrees and 
whether or not it offers full-time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at Sec. Sec.  
146.100 through 146.605.

[[Page 695]]

    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that 
admits students of both sexes without discrimination.

[65 FR 52865, 52878, Aug. 30, 2000]



Sec.  146.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as 
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of September 29, 2000:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.



Sec.  146.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies must ensure that applications for Federal financial 
assistance or awards of Federal financial assistance contain, be 
accompanied by, or be covered by a specifically identified assurance 
from the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which these Title IX regulations apply 
will be operated in compliance with these Title IX regulations. An 
assurance of compliance with these Title IX regulations shall not be 
satisfactory to the designated agency official if the applicant or 
recipient to whom such assurance applies fails to commit itself to take 
whatever remedial action is necessary in accordance with Sec.  
146.110(a) to eliminate existing discrimination on the basis of sex or 
to eliminate the effects of past discrimination whether occurring prior 
to or subsequent to the submission to the designated agency official of 
such assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.

[[Page 696]]

    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec.  146.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Sec. Sec.  146.205 through 146.235(a).



Sec.  146.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on the basis of sex, in any 
education program or activity operated by a recipient and that receives 
Federal financial assistance.



Sec.  146.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.



Sec.  146.135  Designation of responsible employee and adoption 
of grievance procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carry out its responsibilities under these Title IX regulations, 
including any investigation of any complaint communicated to such 
recipient alleging its noncompliance with these Title IX regulations or 
alleging any actions that would be prohibited by these Title IX 
regulations. The recipient shall notify all its students and employees 
of the name, office address, and telephone number of the employee or 
employees appointed pursuant to this paragraph.

[[Page 697]]

    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by these Title IX regulations.



Sec.  146.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Sec. Sec.  146.300 through 146.310 do not apply to the recipient, 
and that inquiries concerning the application of Title IX and these 
Title IX regulations to such recipient may be referred to the employee 
designated pursuant to Sec.  146.135, or to the designated agency 
official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of September 29, 2000 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and shall 
require such representatives to adhere to such policy.



                           Subpart B_Coverage



Sec.  146.200  Application.

    Except as provided in Sec. Sec.  146.205 through 146.235(a), these 
Title IX regulations apply to every recipient and to each education 
program or activity operated by such recipient that receives Federal 
financial assistance.



Sec.  146.205  Educational institutions and other entities controlled by 
religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application of 
these Title IX regulations would not be consistent with the religious 
tenets of such organization.
    (b) Exemption claims. An educational institution or other entity 
that wishes to claim the exemption set forth in paragraph (a) of this 
section shall do so by submitting in writing to the designated agency 
official a statement by

[[Page 698]]

the highest-ranking official of the institution, identifying the 
provisions of these Title IX regulations that conflict with a specific 
tenet of the religious organization.



Sec.  146.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.



Sec.  146.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the 
membership of which has been traditionally limited to members of one sex 
and principally to persons of less than nineteen years of age.



Sec.  146.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Sec. Sec.  146.225 and 146.230, and Sec. Sec.  146.300 through 
146.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Sec. Sec.  146.300 through .310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec.  146.300 
through 146.310 apply to each recipient. A recipient to which Sec. Sec.  
146.300 through 146.310 apply shall not discriminate on the basis of sex 
in admission or recruitment in violation of Sec. Sec.  146.300 through 
146.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec.  146.300 through 146.310 apply only to institutions of 
vocational education, professional education, graduate higher education, 
and public institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Sec. Sec.  146.300 through 146.310 do not apply to any public 
institution of undergraduate higher education that traditionally and 
continually from its establishment has had a policy of admitting 
students of only one sex.



Sec.  146.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec.  146.300 through 146.310 apply that:
    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex in 
admission or recruitment in violation of Sec. Sec.  146.300 through 
146.310.



Sec.  146.230  Transition plans.

    (a) Submission of plans. An institution to which Sec.  146.225 
applies and that is composed of more than one administratively separate 
unit may submit either a single transition plan applicable to all such 
units, or a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:

[[Page 699]]

    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and the 
name, address, and telephone number of the person to whom questions 
concerning the plan may be addressed. The person who submits the plan 
shall be the chief administrator or president of the institution, or 
another individual legally authorized to bind the institution to all 
actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec.  146.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec.  146.300 through 
146.310 unless such treatment is necessitated by an obstacle identified 
in paragraph (b)(3) of this section and a schedule for eliminating that 
obstacle has been provided as required by paragraph (b)(4) of this 
section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec.  146.225 applies shall include in its transition plan, and 
shall implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs that emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



Sec.  146.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided to students of the 
other sex;
    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local

[[Page 700]]

government entity) to which the assistance is extended, in the case of 
assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.



     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited



Sec.  146.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be subjected to discrimination in admission, by any 
recipient to which Sec. Sec.  146.300 through Sec. Sec.  146.310 apply, 
except as provided in Sec. Sec.  146.225 and Sec. Sec.  146.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Sec. Sec.  146.300 through 146.310 
apply shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests

[[Page 701]]

or criteria that do not have such a disproportionately adverse effect 
are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Sec. Sec.  146.300 through 146.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec.  146.235(d), shall treat disabilities related to 
pregnancy, childbirth, termination of pregnancy, or recovery therefrom 
in the same manner and under the same policies as any other temporary 
disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by these Title IX 
regulations.



Sec.  146.305  Preference in admission.

    A recipient to which Sec. Sec.  146.300 through 146.310 apply shall 
not give preference to applicants for admission, on the basis of 
attendance at any educational institution or other school or entity that 
admits as students only or predominantly members of one sex, if the 
giving of such preference has the effect of discriminating on the basis 
of sex in violation of Sec. Sec.  146.300 through 146.310.



Sec.  146.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.  
146.300 through 146.310 apply shall not discriminate on the basis of sex 
in the recruitment and admission of students. A recipient may be 
required to undertake additional recruitment efforts for one sex as 
remedial action pursuant to Sec.  146.110(a), and may choose to 
undertake such efforts as affirmative action pursuant to Sec.  
146.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec.  146.300 through 146.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that admit 
as students only or predominantly members of one sex, if such actions 
have the effect of discriminating on the basis of sex in violation of 
Sec. Sec.  146.300 through 146.310.



 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec.  146.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that receives Federal financial assistance. Sections 
146.400 through 146.455 do not apply to actions of a recipient in 
connection with admission of its students to an education program or 
activity of a recipient to which Sec. Sec.  146.300 through 146.310 do 
not apply, or an entity, not a recipient, to which Sec. Sec.  146.300 
through 146.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec.  146.400 
through 146.455, in providing any aid, benefit, or service to a student, 
a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;

[[Page 702]]

    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation 
in educational consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec.  146.405  Housing.

    (a) Generally. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing, except as 
provided in this section (including housing provided only to married 
students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.
    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such housing 
as is provided to students of one sex, when compared to that provided to 
students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization, or person that provides all or part of such housing to 
students of only one sex.

[[Page 703]]



Sec.  146.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.



Sec.  146.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music, and adult education 
courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than one 
year from September 29, 2000. With respect to physical education classes 
and activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from September 29, 2000.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.
    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.



Sec.  146.420  Access to schools operated by LEAs.

    A recipient that is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such recipient, 
unless such recipient otherwise makes available to such person, pursuant 
to the same policies and criteria of admission, courses, services, and 
facilities comparable to each course, service, and facility offered in 
or through such schools.



Sec.  146.425  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that uses 
testing or other materials for appraising or counseling students shall 
not use different materials for students on the basis of their sex or 
use materials that permit or require different treatment of students on 
such basis unless such different materials cover the same occupations 
and interest areas and the use of such different materials is shown to 
be essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis of sex. Where the use of a counseling test or other 
instrument results in a substantially disproportionate number of members 
of one sex in any particular course of study or classification, the 
recipient shall take such action as is necessary to assure itself that 
such disproportion is not the result of discrimination in the instrument 
or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one

[[Page 704]]

sex, the recipient shall take such action as is necessary to assure 
itself that such disproportion is not the result of discrimination on 
the basis of sex in counseling or appraisal materials or by counselors.



Sec.  146.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec.  146.450.



Sec.  146.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates Sec. Sec.  
146.500 through 146.550.



Sec.  146.440  Health and insurance benefits and services.

    Subject to Sec.  146.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, or 
provide such benefit, service, policy, or plan in a manner that would 
violate Sec. Sec.  146.500 through 146.550 if it were provided to 
employees of the recipient. This section shall not prohibit a recipient 
from providing any benefit or service that may be used by a different 
proportion of students of one sex than of

[[Page 705]]

the other, including family planning services. However, any recipient 
that provides full coverage health service shall provide gynecological 
care.



Sec.  146.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec.  146.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy and recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability with respect to any medical or hospital benefit, 
service, plan, or policy that such recipient administers, operates, 
offers, or participates in with respect to students admitted to the 
recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification for a leave of absence for as long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status that she held when the leave began.



Sec.  146.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;

[[Page 706]]

    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
September 29, 2000. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
secondary or postsecondary school level shall comply fully with this 
section as expeditiously as possible but in no event later than three 
years from September 29, 2000.



Sec.  146.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.



Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited



Sec.  146.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.
    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Sec. Sec.  146.500 
through 146.550, including relationships with employment and referral 
agencies, with labor unions, and with organizations providing or 
administering fringe benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Sec. Sec.  146.500 through 
146.550 apply to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;

[[Page 707]]

    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec.  146.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec.  146.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have so discriminated in the past, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Sec. Sec.  146.500 through 146.550.



Sec.  146.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working conditions.



Sec.  146.520  Job classification and structure.

    A recipient shall not:
    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements that classify persons on the basis of 
sex, unless sex is a bona fide occupational qualification for the 
positions in question as set forth in Sec.  146.550.



Sec.  146.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service of 
employment not subject to the provision of Sec.  146.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.

[[Page 708]]



Sec.  146.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec.  146235(d), 
a recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy, recovery therefrom, and any temporary 
disability resulting therefrom as any other temporary disability for all 
job-related purposes, including commencement, duration, and extensions 
of leave, payment of disability income, accrual of seniority and any 
other benefit or service, and reinstatement, and under any fringe 
benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec.  146.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec.  146.500 through 146.550 is not obviated or alleviated by the 
existence of any State or local law or other requirement that imposes 
prohibitions or limits upon employment of members of one sex that are 
not imposed upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation, service, or 
benefit to members of the other sex.



Sec.  146.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.



Sec.  146.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is made equally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by these Title IX 
regulations.



Sec.  146.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec.  
146.500 through 146.550 provided it is shown that sex is a bona fide 
occupational qualification for that action, such that consideration of 
sex with regard to such action is essential to successful operation of 
the employment function concerned. A recipient shall not take action 
pursuant to this section that is based upon alleged comparative 
employment characteristics or stereotyped characterizations of one or 
the other sex, or upon preference based on sex of the recipient, 
employees, students, or other persons, but nothing contained in this 
section shall prevent a recipient from considering an employee's sex in 
relation

[[Page 709]]

to employment in a locker room or toilet facility used only by members 
of one sex.



                          Subpart F_Procedures



Sec.  146.600  Notice of covered programs.

    Within 60 days of September 29, 2000, each Federal agency that 
awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX regulations. 
Each such Federal agency shall periodically republish the notice of 
covered programs to reflect changes in covered programs. Copies of this 
notice also shall be made available upon request to the Federal agency's 
office that enforces Title IX.



Sec.  146.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 22 CFR part 141.

[65 FR 52879, Aug. 30, 2000]



PART 147_INFORMATION AND COMMUNICATION TECHNOLOGY--Table of Contents



                      Subpart A_General Provisions

Sec.
147.1 Purpose.
147.2 Application.
147.3 Definitions.
147.4 Notice.
147.5 Discrimination prohibited.
147.6 Information and communication technology requirements.

                     Subpart B_Complaint Procedures

147.7 Filing a Section 508 complaint.
147.8 Final agency action.

    Authority: 22 U.S.C. 2651a; 29 U.S.C. 794, 794d; 36 CFR part 1194.

    Source: 81 FR 32646, May 24, 2016, unless otherwise noted.



                      Subpart A_General Provisions

    Editorial Note: Nomenclature changes to subpart A appear at 84 FR 
37577, Aug. 1, 2019.



Sec.  147.1  Purpose.

    The purpose of this part is to implement section 508 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 794d), which requires 
that when Federal departments and agencies develop, procure, maintain, 
or use information and communication technology, they shall ensure that 
the information and communication technology is accessible to 
individuals with disabilities who are Federal employees, applicants for 
employment, or members of the public.



Sec.  147.2  Application.

    This part applies to all development, procurement, maintenance, and 
use of information and communication technology (ICT), as defined in 
E103.4 of appendix A to 36 CFR part 1194.

[81 FR 32646, May 24, 2016, as amended at 84 FR 37577, Aug. 1, 2019]



Sec.  147.3  Definitions.

    The Department of State adopts the definitions in E103.4 of appendix 
A to 36 CFR part 1194. In addition, as used in this part:
    Department means the United States Department of State and any of 
its passport agencies or other facilities.
    Secretary means the Secretary of State or his or her designee.
    Section 508 means section 508 of the Rehabilitation Act of 1973, as 
amended, codified at 29 U.S.C. 794d.

[81 FR 32646, May 24, 2016, as amended at 84 FR 37577, Aug. 1, 2019]



Sec.  147.4  Notice.

    (a) The Secretary shall ensure that employees, applicants for 
employment, and the members of the public are provided with adequate 
notice of the requirements of Section 508, the Revised 508 Standards (36 
CFR 1194.1 and appendices A, C and D to 36 CFR part 1194), and this 
part, as they relate to the programs or activities conducted by the 
Department.
    (b) The Secretary shall ensure that the home page of the 
Department's public-facing Web site provides Department policy regarding 
accessibility of CIT in accordance with Section 508 and 36 CFR part 
1194.1, as well as an email

[[Page 710]]

address for the public to ask questions or express concerns.

[81 FR 32646, May 24, 2016, as amended at 84 FR 37577, Aug. 1, 2019]



Sec.  147.5  Discrimination prohibited.

    The Department must comply with Revised 508 Standards when it 
develops, procures, maintains, or uses CIT. The Department must ensure 
that individuals with disabilities who are Federal employees or members 
of the public have access to and use of information and data that is 
comparable to that provided to Federal employees or members of the 
public without disabilities, unless providing comparable access would 
impose an undue burden on the Department.

[81 FR 32646, May 24, 2016, as amended at 84 FR 37577, Aug. 1, 2019]



Sec.  147.6  Information and communication technology requirements.

    (a) Development, procurement, maintenance, or use of CIT. When 
developing, procuring, maintaining, or using ICT, the Department shall 
ensure, unless an undue burden would be imposed on the Department, that 
the CIT allows, regardless of the type of medium of the technology, 
that--
    (1) Individuals with disabilities who are Department employees have 
access to and use of information and data that is comparable to the 
access to and use of the information and data by Department employees 
who are not individuals with disabilities; and
    (2) Individuals with disabilities who are members of the public 
seeking information or services from the Department have access to and 
use of information and data that is comparable to the access to and use 
of the information and data by such members of the public who are not 
individuals with disabilities.
    (b) In meeting its obligations under paragraph (a) of this section, 
the Department shall comply with the Revised 508 Standards (36 CFR 
1194.1 and appendices A, C and D to 36 CFR part 1194).
    (c) Alternative means of access when undue burden is imposed. When 
development, procurement, maintenance, or use of ICT that meets the 
standards as provided in 36 CFR part 1194.1 would impose an undue 
burden, the Department shall provide individuals with disabilities 
covered by this section with the relevant information and data by an 
alternative means of access that allows the individual to use the 
information and data.
    (d) Procedures for determining undue burden. The Department 
procedures for finding that full compliance with 36 CFR part 1194.1 
would impose an undue burden can be found at: http://www.state.gov/m/
irm/impact/126338.htm.

[81 FR 32646, May 24, 2016, as amended at 84 FR 37577, Aug. 1, 2019]



                     Subpart B_Complaint Procedures



Sec.  147.7  Filing a Section 508 complaint.

    (a) An individual with a disability who alleges that Department's 
ICT does not allow him or her to have access to and use of information 
and data that is comparable to access and use by individuals without 
disabilities, or that the alternative means of access provided by the 
Department does not allow the individual to use the information and 
data, may file a complaint with the Department's Office of Civil Rights 
(S/OCR).
    (b) Employees, applicants for employment, or members of the general 
public are encouraged to contact personnel in the Department office that 
uses or maintains a system that is believed not to be compliant with 
Section 508 or 36 CFR part 1194.1 to attempt to have their issues 
addressed. Nothing in this complaint process is intended to prevent 
Department personnel from addressing any alleged compliance issues when 
made aware of such requests directly or indirectly.
    (c) A Section 508 complaint must be filed not later than 180 
calendar days after the complainant knew, or should have known, of the 
alleged discrimination, unless the time for filing is extended by the 
Department. A Section 508 complaint must be submitted in writing by fax, 
email, mail, or hand delivery to the S/OCR office, using the Form DS-
4282, Discrimination Complaint Form, which can be downloaded at: https:/
/eforms.state.gov/Forms/ds4282.PDF.

[[Page 711]]

    (d) Once a Section 508 complaint has been received, S/OCR will 
conduct an investigation into the allegation(s) and render a decision as 
to whether a Section 508 violation has occurred. Within 180 days of the 
receipt of a complete complaint under this part, the Secretary shall 
notify the complainant of the results of the investigation in a letter 
containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    Upon request of the complainant, the decision will be provided in an 
alternate format, such as an electronic format, braille, or large print.
    (e) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the Department of the notice required by Sec.  147.7(d). The Department 
may extend this time for good cause.
    (f) Timely appeals shall be accepted and processed by the 
Department.
    (g) The Secretary shall notify the complainant of the results of the 
appeal within 60 days of the receipt of the appeal. If the Secretary 
determines that additional information is needed from the complainant, 
the Secretary shall have 60 days from the date of receipt of the 
additional information to make his or her determination on the appeal.
    (h) Individuals who submit a complaint must keep S/OCR updated at 
all times with current contact information, to include address, phone 
number, and working email address. If the Department needs additional 
information and is unable, after reasonable attempts for 30 days, to 
contact a complainant using his or her contact information, it may 
consider the complaint abandoned, and may close the complaint without 
action. A complainant may re-submit a complaint that was closed due to 
the inability of the Department to contact the complainant.
    (i) A Department employee who receives a Section 508 complaint or a 
communication that raises an issue that might reasonably be considered a 
Section 508 complaint, should forward such communication to S/OCR.

[81 FR 32646, May 24, 2016, as amended at 82 FR 34853, July 27, 2017; 84 
FR 37578, Aug. 1, 2019]



Sec.  147.8  Final agency action.

    Either a decision by the Secretary on the merits of a complaint, or 
no notification in writing from the Secretary within 180 days of filing 
the complaint, will a constitute a final agency action and exhaustion of 
the complainant's administrative remedies for purposes of 5 U.S.C. 701, 
et seq.



Sec.  147.9  Intimidation and retaliation prohibited.

    No person may discharge, intimidate, retaliate, threaten, coerce or 
otherwise discriminate against any person because such person has filed 
a complaint, furnished information, assisted or participated in any 
manner in an investigation, review, hearing or any other activity 
related to the administration of, or exercise of authority under, or 
privilege secured by Section 508 and the regulations in this part.

[84 FR 37578, Aug. 1, 2019]

[[Page 712]]



            SUBCHAPTER P_DIPLOMATIC PRIVILEGES AND IMMUNITIES





PART 151_COMPULSORY LIABILITY INSURANCE FOR DIPLOMATIC MISSIONS AND PERSONNEL--
Table of Contents



Sec.
151.1 Purpose.
151.2 Definitions.
151.3 Types of insurance coverage required.
151.4 Minimum limits for motor vehicle insurance.
151.6 Authorized insurer.
151.7 Policy terms consistent with the Act.
151.8 Evidence of insurance for motor vehicles.
151.9 Evidence of insurance required for diplomatic license plates and 
          waiver of fees.
151.10 Minimum limits of insurance for aircraft and/or vessels.
151.11 Notification of ownership, maintenance, or use of vessel and/or 
          aircraft; evidence of insurance.

    Authority: Sec. 6, Diplomatic Relations Act (Pub. L. 95-393; 22 
U.S.C. 254e) as amended (Pub. L. 98-164, sec. 602; 22 U.S.C. 254e).

    Source: 44 FR 29451, May 21, 1979, unless otherwise noted.



Sec.  151.1  Purpose.

    This part establishes regulations required under section 6 of the 
Diplomatic Relations Act (Pub. L. 95-393; 22 U.S.C. 254e). These 
regulations require all missions, members of missions and their 
families, and those officials of the United Nations who are entitled to 
diplomatic immunity to have and maintain liability insurance against the 
risks of bodily injury, including death, and property damage, including 
loss of use, arising from the ownership, maintenance, or use in the 
United States of any motor vehicle, vessel, or aircraft.



Sec.  151.2  Definitions.

    (a) Act means the Diplomatic Relations Act, Pub. L. 95-393 (22 
U.S.C. 254a et seq., 28 U.S.C. 1364).
    (b) Persons subject to the Act, as defined in section 2 of the Act, 
means: (1) The head of a mission and members of the diplomatic staff, 
administrative and technical staff, and service staff of a mission, as 
such terms are defined in Article 1 of the Vienna Convention on 
Diplomatic Relations of April 18, 1961 (TIAS 7502, 23 U.S.T. 3227); (2) 
members of the family of a member of the diplomatic staff of a mission 
who form part of his or her household if they are not nationals of the 
United States, and members of the family of a member of the 
administrative and technical staff of a mission who form part of his or 
her household if they are not nationals or permanent residents of the 
United States; and (3) senior officials of the United Nations as defined 
in paragraph (d) of this section.
    (c) Missions, as defined in section 2 of the Act, means missions 
within the meaning of the Vienna Convention on Diplomatic Relations and 
any missions representing foreign governments, individually or 
collectively, which are extended the same privileges and immunities, 
pursuant to law, as are enjoyed by missions under the Vienna Convention.
    (d) Senior United Nations official means a United Nations official 
entitled to diplomatic immunity as provided in section 19 of the 
Convention on Privileges and Immunities of the United Nations of 
February 13, 1946 (21 UST 1418; 1 UNTS 16).
    (e) Insurance means insurance as required by the Act and these 
regulations.



Sec.  151.3  Types of insurance coverage required.

    (a) Every person subject to the Act and every mission shall have and 
maintain with respect to any motor vehicle, vessel or aircraft owned by, 
leased to, or furnished for the regular use of every such person or 
mission liability insurance in accordance with the form, terms, and 
conditions provided for in these regulations.
    (b) The insurance shall provide coverage against the following risks 
to third parties arising from the ownership, maintenance, or use in the 
United States of any motor vehicle, vessel, or aircraft:
    (1) Bodily injury, including death;
    (2) Property damage, including loss of use; and
    (3) Any additional coverage required to be included in liability 
insurance policies by the jurisdiction where the motor vehicle, vessel 
or aircraft is

[[Page 713]]

principally garaged, berthed, or kept, such as uninsured motorist 
coverage or first party no-fault coverage.



Sec.  151.4  Minimum limits for motor vehicle insurance.

    The insurance shall provide not less than $100,000 per person and 
$300,000 per incident for bodily injury liability and $100,000 per 
incident for property damage or $300,000 combined single limit for all 
bodily injury liability and property damage liability arising from a 
single incident, except where the Director of the Office of Foreign 
Missions grants a special exception.

[54 FR 24555, June 8, 1989]



Sec.  151.6  Authorized insurer.

    The insurance must be issued by an insurer licensed or otherwise 
authorized by applicable law to do business in the jurisdiction where 
the motor vehicle, vessel or aircraft is principally garaged, berthed or 
kept.



Sec.  151.7  Policy terms consistent with the Act.

    (a) The insurance shall be construed in conformity with the Act. In 
particular, no effect shall be given to any policy terms which are 
inconsistent or in conflict with those provisions of the Act stating 
that any suit against the insurer under the policy shall not be subject 
to any of the following defenses:
    (1) That the insured is immune from suit;
    (2) That the insured is an indispensable party; or
    (3) In the absence of fraud or collusion, that the insured has 
violated a term of the contract, unless the contract was canceled before 
the claim arose.
    (b) Notwithstanding the provisions of paragraph (a) of this section, 
the insured is expected to respond to reasonable requests from the 
insurer for cooperation.



Sec.  151.8  Evidence of insurance for motor vehicles.

    (a) Every mission must periodically, and otherwise upon official 
request, furnish evidence satisfactory to the Department of State that 
the required insurance is in effect for the mission, its members and 
their families. Every senior United Nations official must also 
periodically furnish evidence satisfactory to the Department of State 
that the required insurance is in effect.
    (b) The Department of State will accept as satisfactory evidence 
that the required insurance is in effect:
    (1) A written statement of self-certification signed by the Chief of 
Mission, indicating that the mission, its members and their families 
have and will maintain insurance throughout the period of registration 
of all vehicles owned or leased or otherwise regularly used, and showing 
the name of the insurance company or companies and identifying each 
policy by number and name of insured; and
    (2) A written statement of self-certification signed by each senior 
United Nations official, indicating that he or she has and will maintain 
insurance throughout the period of registration on all motor vehicles 
owned or leased or otherwise regularly used, and showing the name of the 
insurance company or companies and identifying each by number and name 
of insured.
    (c) A certification under paragraph (b) of this section by a Chief 
of a Mission to the United Nations or by a senior United Nations 
official shall be delivered to the Counselor for host country affairs of 
the United States Mission to the United Nations. All other 
certifications shall be delivered to the Chief of Protocol, Department 
of State.



Sec.  151.9  Evidence of insurance required for diplomatic license plates 
and waiver of fees.

    The Department of State will not endorse on behalf of any person 
subject to the Act or any mission any application for diplomatic motor 
vehicle license plates or any application for waiver of motor vehicle 
registration fees without prior receipt of satisfactory evidence from 
the Chief of Mission or other duly authorized official that the required 
insurance is in effect.



Sec.  151.10  Minimum limits of insurance for aircraft and/or vessels.

    Insurance in respect of vessels and/or aircraft shall provide limits 
of liability

[[Page 714]]

adequate in light of reasonably foreseeable risks from the ownership, 
maintenance, or other regular use of vessels and/or aircraft.



Sec.  151.11  Notification of ownership, maintenance or use of vessel 
and/or aircraft; evidence of insurance.

    (a) Each person subject to the Act and each mission must notify the 
Department of State in writing of the ownership, maintenance or other 
regular use of a vessel or aircraft in the United States by such mission 
or person.
    (b) Notices under paragraph (a) of this section shall identify the 
vessel and/or aircraft with specificity, including model and 
manufacturer's name, and serial and registration numbers. Each 
notification shall be accompanied by a copy of the insurance policy or 
policies issued in respect of the vessel and/or aircraft. Such policy or 
policies need not be issued by the insurer providing liability insurance 
for motor vehicles.
    (c) With regard to senior United Nations officials, missions to the 
United Nations and members of such missions as have diplomatic status 
and their families, notices and evidence of insurance under this section 
shall be delivered to the counselor for Host Country Affairs of the 
United States Mission to the United Nations. All other notices under 
this section shall be delivered to the Chief of Protocol, Department of 
State.

[[Page 715]]



                  SUBCHAPTER Q_ENVIRONMENTAL PROTECTION





PART 161_REGULATIONS FOR IMPLEMENTATION OF THE NATIONAL 
ENVIRONMENTAL POLICY ACT (NEPA)--Table of Contents



                            Subpart A_General

Sec.
161.1 Purpose and scope.
161.2 Policy.
161.3 Applicability.
161.4 Definitions.

             Subpart B_NEPA and Departmental Decisionmaking

161.5 Major decision points and timing.
161.6 Responsibilities of departmental officials.
161.7 Categories of actions.

                Subpart C_Environmental Review Procedures

161.8 General description of the Department's NEPA process.
161.9 Specific steps in the Department's NEPA process.

          Subpart D_Coordination of Other Requirements of NEPA

161.10 [Reserved]
161.11 Environmental review and consultation requirements.
161.12 Environmental effects abroad of major departmental actions.

    Authority: National Environmental Policy Act (NEPA), as amended, 42 
U.S.C. 4321 et seq.; E.O. 11514, 34 FR 4247, as amended by E.O. 11991, 
42 FR 26927; 22 U.S.C. 2658, as amended.

    Authority: 22 U.S.C. 2651a and 2656; 42 U.S.C. 4321 et seq.; E.O. 
11514, 34 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as amended by E.O. 
11991, 42 FR 26927, 3 CFR, 1977 Comp., p. 123; E.O. 13867, 84 FR 15491.

    Source: 45 FR 59554, Sept. 10, 1980, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 161 appear at 85 FR 
32296, July 13, 2020.



                            Subpart A_General



Sec.  161.1  Purpose and scope.

    These Departmental regulations are designed to supplement the CEQ 
Regulations and provide for the implementation of those provisions 
identified in Sec.  1507.3(b) of the CEQ Regulations. The CEQ 
Regulations are incorporated herein by reference. The Department's 
regulations seek to assure that environmental considerations and values 
are incorporated into the Department's decisionmaking process and assign 
responsibility within the Department for assessing the significant 
environmental effects in the United States of the Department's actions.



Sec.  161.2  Policy.

    It is the policy of the Department of State to use all practicable 
means, consistent with the Department's statutory authority, available 
resources and national policy, to:
    (a) Protect and enhance the quality of the environment;
    (b) Ensure that environmental amenities and values are appropriately 
considered in Departmental actions;
    (c) Integrate planning and environmental review procedures with the 
Department's decisionmaking process;
    (d) Invite and facilitate, when appropriate, Federal, State and 
local governmental authorities and public involvement in decisions which 
affect the quality of the environment; and
    (e) Recognize the worldwide and long-range character of 
environmental concerns and, when consistent with the foreign policy of 
the United States, lend appropriate support to initiatives, resolutions, 
and programs designed to maximize international cooperation in 
anticipating and preventing a decline in the quality of the world 
environment.



Sec.  161.3  Applicability.

    The provisions of these regulations apply to decisions on all 
Departmental actions which may affect the quality of the environment 
within the United States. The Department is establishing separate 
environmental review procedures under Executive Order 12114 (January 4, 
1979) for actions having potential effects on the environment of global 
commons or areas outside the jurisdiction of any nation, or on the 
environment of foreign nations.

[[Page 716]]



Sec.  161.4  Definitions.

    Definitions for many terms used in these regulations may be found in 
section 1508 of the CEQ Regulations. In addition, for the purpose of 
these regulations, the term:
    (a) Responsible action officer means the Department officer 
principally responsible for the preparation of action memoranda and 
other documents relating to a given Departmental action to which by 
these regulations apply. Ordinarily, the responsible action officer will 
be the country or office director whose office has action responsibility 
for a given action.
    (b) CEQ Regulations means the regulations implementing the 
procedural provisions of the National Environmental Policy Act, issued 
by the Council on Environmental Quality on November 29, 1978 (43 FR 
55978-56007), and codified at 40 CFR parts 1500-1508.
    (c) United States means the States, the Commonwealth of Puerto Rico, 
the Commonwealth of the Northern Marianas, the Trust Territory of the 
Pacific Islands, American Samoa, the U.S. Virgin Islands, Guam and the 
other territories and possessions of the United States, including the 
territorial seas thereof. For the purpose of these regulations, actions 
having significant environmental effects on the resources of the U.S. 
continental shelf or resources of the U.S. Fishery Conservation Zone 
subject to the jurisdiction of the United States shall be considered to 
be actions having significant environmental effects in the United 
States.
    (d) Environmental document means an environmental assessment, an 
environmental impact statement, a Finding of No Significant Impact or a 
Notice of Intent prepared under these regulations.



             Subpart B_NEPA and Departmental Decisionmaking



Sec.  161.5  Major decision points and timing.

    (a) The responsible action officer shall ensure compliance with 
these regulations at the earliest practicable stage of Departmental 
study, consideration or planning of a proposed major Federal action 
which could significantly affect the quality of the human environment. 
To accomplish this the responsible action officer must ensure that data 
developed during the review process is collected, analyzed and made 
available for consideration early in planning and decisionmaking when it 
will be most valuable in formulating, reviewing and deciding upon 
proposals for Departmental action.
    (b) Environmental analysis and review of a proposed Departmental 
action shall be conducted as early as practicable so as to be timely, 
yet late enough to be relevant to the decisionmaking.
    (c) Environmental documents should, whenever possible, accompany the 
principal action memorandum relating to a proposed action. An 
environmental document required in conjunction with conclusion of an 
international agreement shall, where possible, be prepared and 
circulated for review and comment before final negotiations begin. The 
completed environmental document should thus ordinarily accompany the 
principal action memorandum or request for authority to negotiate an 
agreement under the Department's Circular 175 regulation (11 FAM 720).
    (d) To the maximum extent possible an environmental document should 
be prepared before the establishment of a final United States position 
on a proposal. In such cases the document should indicate the 
alternatives under consideration without specifying a Departmental 
preference. If the content and dimensions of a proposed action will not 
be clear until after the conclusion of an international negotiation or 
if a decision to proceed on an action involving another nation or 
international organization is required on short notice and before the 
environmental document can be prepared, the environmental document 
should be prepared as soon as possible after the conclusion of an agreed 
text of a treaty or agreement on the proposed action. If the Senate's 
advice and consent to a treaty with potential significant environmental 
effects in the United States will be sought, the final environmental 
impact statement should accompany other decision documentation for 
ratification. Legislative environmental impact statements on proposed 
treaties

[[Page 717]]

or legislation shall conform to the requirements of Sec.  1506.8 of the 
CEQ Regulations and must be prepared in time for Congressional hearings 
and deliberations.
    (e) Because actions having effects on the United States may to 
varying degrees be initiated, influenced and conducted by other 
countries, it is recognized that the preparation of environmental 
documents for such actions must be adjusted to meet a variety of 
circumstances. Bearing in mind the degree to which other countries 
possess information on and the ability to affect the decision under 
consideration, responsible action officers shall seek at all times to 
prepare environmental analysis documents as early as feasible in the 
decisionmaking process.



Sec.  161.6  Responsibilities of departmental officials.

    (a) General. As a general rule, responsibility for preparing 
environmental analysis documents will follow the Department's standard 
organizational practices; in this way environmental considerations and 
awareness of environmental responsibilities will be integrated most 
readily and effectively into the usual decisionmaking processes.
    (1) Departmental bureaus. Each bureau within the Department shall be 
responsible for:
    (i) Implementing these regulations and incorporating them into its 
normal decisionmaking processes;
    (ii) Identifying actions it intends to initiate which may affect 
significantly the environment of the United States and employing the 
environmental evaluation procedures outlined in these regulations to 
ensure that necessary actions are taken to meet the requirements of 
applicable laws and regulations;
    (iii) Coordinating environmental assessment-related activities for 
which it is responsible with the Office of Environmental Quality and 
Transboundary Issues in the Bureau of Oceans and International 
Environmental and Scientific Affairs and supporting and assisting the 
Office of Environmental Quality and Transboundary Issues in implementing 
these regulations as required; and
    (iv) Providing the personnel required to implement these 
regulations, informing the Office of Environmental Quality and 
Transboundary Issues and the Office of the Legal Adviser whenever it is 
anticipated that environmental documents will be prepared under these 
regulations, and consulting the Office of Environmental Quality and 
Transboundary Issues and the Office of the Legal Adviser as necessary 
for guidance and assistance in the preparation of such documents.
    (2) Bureau of Oceans and International Environmental and Scientific 
Affairs. Through its Office of Environmental Quality and Transboundary 
Issues the Bureau shall have the primary responsibility for ensuring the 
Department's compliance with environmental policies, regulations and 
procedures. It shall provide policy and professional direction and 
guidance within the Department for implementing these regulations. It 
shall also assist other bureaus in obtaining appropriate scientific 
advice and budgetary resources to implement the regulations. The Office 
of Environmental Quality and Transboundary Issues will act as the focal 
point for implementation, working closely with the Departmental bureaus 
and the Office of the Legal Adviser. The Bureau and other involved 
bureaus will work closely with the Assistant Secretary for Legislative 
Affairs in the preparation of environmental documents relating to 
legislation. In carrying out its responsibilities the Bureau shall:
    (i) Coordinate the formulation, development and revision of 
Departmental policies and positions on matters pertaining to 
environmental evaluation and review;
    (ii) Develop and ensure the implementation of Departmentwide 
standards, procedures and working relationships for environmental review 
and compliance with applicable environmental laws and regulations;
    (iii) Develop, as an integral part of the Department's basic 
decision processes, procedures to ensure that environmental factors are 
properly considered in all relevant proposals and decisions;

[[Page 718]]

    (iv) Monitor these processes to ensure that Departmental procedures 
are achieving their purposes;
    (v) Advise, assist and inform Departmental bureaus of the technical 
and management aspects of environmental analysis, and of the relevant 
expertise available in and outside the Department;
    (vi) Establish and maintain working relationships with the Council 
on Environmental Quality, Environmental Protection Agency, and other 
federal, State and local governmental agencies concerned with 
environmental matters;
    (vii) Represent the Department in working with other government 
agencies and organizations to formulate, revise and achieve uniform 
understanding and application of government-wide policies relating to 
the environment;
    (viii) Consolidate and transmit to the appropriate parties 
Departmental comments on environmental impact statements and other 
environmental reports prepared by other agencies; and
    (ix) Acquire information for and prepare other Departmental reports 
on environmental assessment matters.
    (3) Office of the Legal Adviser. The Office of the Legal Adviser is 
the principal Departmental authority on the legal aspects of 
environmental matters and the implementation of these regulations and 
shall advise and assist Departmental Bureaus in these matters.
    (4) Bureau Environmental Coordinators. Each Departmental bureau and 
major office shall designate an officer to act as coordinator, adviser 
and principal point of contact for environmental matters within the 
bureau. The bureau coordinator will advise and assist the bureau in 
implementing these regulations and serve as a member of the Departmental 
Committee of Environmental Coordinators.
    (5) Departmental Committee of Environmental Coordinators. A 
Departmental Committee of Environmental Coordinators shall be 
established to assist in coordinating Departmental implementation of 
these regulations; in providing advice on major issues, policies and 
procedures relating to the Department's implementation of environmental 
analysis requirements; and in ensuring general conformity of 
Departmental implementation practices. The Committee's responsibility 
will be to exchange information on the implementation of these 
regulations, assist bureaus in early identification of Departmental 
actions which should be analyzed for environmental effects and help to 
coordinate and provide the appropriate analysis. The Committee will be 
chaired by the Office of Environmental Quality and Transboundary Issues 
and will be comprised of bureau and office coordinators designated by 
the respective bureaus and offices.
    (6) Outside contractors. Qualified outside contractors may be 
employed to assist Departmental officers in preparing environmental 
documents as required under these regulations.

[45 FR 59554, Sept. 10, 1980, as amended at 85 FR 32296, May 29, 2020]



Sec.  161.7  Categories of actions.

    Departmental officers shall review each major Departmental action 
having a potentially significant effect on the quality of the 
environment in the United States. The need to prepare formal 
environmental documents will depend on the scope of the action and the 
context and intensity of any environmental effects expected if the 
action is implemented. Departmental actions can generally be grouped 
into three categories, as follows:
    (a) Actions normally requiring environmental impact statements. Any 
Departmental action deemed to have a ``significant effect upon the 
quality of the human environment'' of the United States requires the 
preparation of an environmental impact statement. The criteria to be 
used in determining significance are set forth in Sec.  1508.27 of the 
CEQ Regulations. The Department has reviewed representative actions and 
has found no common pattern which would enable it to specify actions 
normally requiring environmental impact statements. If developments 
later enable such designations to be made the Department will publish a 
description of proposed actions for such designation in the Federal 
Register.
    (b) Actions categorically excluded from the requirement to prepare 
environmental impact statements. Categorical exclusion, as defined in 
Sec.  1508.4 of the CEQ Regulations, provides for exclusion

[[Page 719]]

from environmental review of specified actions which have as a class 
been found to have no significant impact on the quality of the human 
environment. Neither an environmental assessment nor an environmental 
impact statement is ordinarily required for such actions. Departmental 
actions categorically excluded from the requirements of these 
regulations include the following:
    (1) Routine conduct of Departmental and overseas political and 
economic functions, including reporting on political and economic 
developments, trends and activities, communicating to host governments 
United States Government views, maintaining contact with foreign 
officials and individuals, and facilitating trade opportunities abroad 
and U.S. business expansion in foreign markets;
    (2) Provision of consular services--visas, passports and 
citizenship, and special consular services, such as issuing or reviewing 
passports and visas, taking legal depositions, notarizing absentee 
ballots and other documents and delivering retirement checks, social 
security payments and veterans benefits;
    (3) Conduct of routine administrative functions, such as budget and 
finance, personnel and general services. This includes routine 
administrative procurements (e.g., general supplies, negotiating leases 
for office space or staff housing, ordering supplies and arranging for 
customs clearances); financial transactions, including salaries, 
expenses and grants; routine management, formulation and allocation of 
the Department's budget at all levels (this does not exempt the 
preparation of environmental documents for proposals included in the 
Department's budget when required); and personnel actions (e.g., 
promotions, hirings, and counseling American and host country employees 
who work for the Department of State);
    (4) Preparing for and participating in conferences, workshops or 
meetings for information exchange, data collection or research or study 
activities; and
    (5) Document and information exchanges.

Even though an action may be categorically excluded from the need for an 
environmental impact statement, if information developed during the 
planning for the actions indicates the possibility that the particular 
action in question may nonetheless cause significant environmental 
effects, an environmental assessment shall be prepared to evaluate those 
effects. Based upon the assessment, a determination will be made whether 
to prepare an environmental impact statement. The Department may 
designate additional actions for categorical exclusion by publishing a 
listing of actions proposed for such designation in the Federal 
Register.
    (c) Actions normally requiring environmental assessments. An 
environmental assessment shall provide the basis of the determination 
whether an environmental impact statement is required. A Departmental 
action shall require the preparation of an environmental assessment if 
the action is not one known normally to require an environmental impact 
statement and is not categorically excluded. Departmental actions 
normally included in this category are actions for which the Department 
has lead-agency responsibility and which may significantly affect the 
human environment of the United States, such as those actions involving:
    (1) [Reserved]
    (2) Wetlands, floodplains, endangered species and national 
historical, archeological and recreational sites (see also specific 
requirements for environmental review and consultation in Sec.  161.11 
of these regulations); and
    (3) Ocean dumping, control of toxic substances, disposal and storage 
of wastes and radioactive substances.
    (d) Emergencies and other exceptional circumstances. Not every 
Departmental activity will be considered a major Federal action for the 
purposes of these regulations. Several limited classes of action which 
might ordinarily be subject to these regulations will not be considered 
major Federal actions requiring the preparation of an environmental 
impact statement. Among them are the following:
    (1) Actions taken in emergency circumstances and disaster and 
emergency relief activities as defined in Sec.  1506.11 of the CEQ 
Regulations (in

[[Page 720]]

such circumstances the responsible action officer should consult with 
the Office of Environmental Quality and Transboundary Issues which shall 
consult with the Council on Environmental Quality about appropriate 
alternative arrangements);
    (2) Mandatory actions required under any treaty or international 
agreement to which the United States Government is a party, or required 
by the decisions of international organizations or authorities in which 
the United States is a member or participant except when the United 
States has substantial discretion over implementation of such 
requirements;
    (3) Payment of contributions, either assessed or voluntary, to any 
international organization of which the United States is a member 
pursuant to the obligation of a treaty or other international agreement 
or which is not for the purpose of carrying out a specifically 
identifiable action which would affect the environment; and
    (4) Support for or acquiescence in (by affirmative vote or agreement 
to consensus) an activity or expenditure of funds by an international 
organization where the United States has no unilateral right to control 
such expenditures.

[45 FR 59554, Sept. 10, 1980, as amended at 85 FR 32296, May 29, 2020]



                Subpart C_Environmental Review Procedures



Sec.  161.8  General description of the Department's NEPA process.

    In reviewing proposed actions for potential environmental effects in 
the United States responsible action officers will follow the procedural 
steps set forth below. These steps are developed in conjunction with the 
procedural steps required by the CEQ Regulations which are referenced in 
the following sections.
    (a) Preliminary environmental evaluations. Early in the process of 
considering any possible action the responsible action officer shall 
review the action to determine if it may cause potential significant 
environmental effects on the environment of the United States. A 
proposed action shall be reviewed initially to determine into which of 
the following three basic categories of action it falls:
    (1) Actions normally requiring environmental impact statements;
    (2) Actions categorically excluded from environmental impact 
statements; or
    (3) Actions normally requiring environmental assessments. If the 
responsible action officer concludes that the proposed action is a major 
action potentially having significant effects in the United States he 
should, in cooperation with other appropriate Departmental officials, 
carry out the steps described in these regulations. If during his review 
of the location of potential environmental effects or following 
preparation of an environmental assessment it is determined that the 
action could affect the environment of the global commons or a foreign 
nation the officer is responsible for ensuring compliance with the 
Department's procedures for implementing Executive Order No. 12114 on 
Environmental Effects Abroad of Major Federal Actions (Foreign Affairs 
Manual, Volume 2).
    (b) Environmental Assessment. An environmental assessment is a 
concise document which analyzes potential environmental effects to 
determine if an environmental impact statement is required (CEQ 
Regulations Sec. Sec.  1501.3 and 1508.9). If the action does not fall 
into either the category of those actions normally requiring an 
environmental impact statement or that of actions categorically excluded 
from the requirement to prepare an environmental impact statement, then 
the responsible action officer, in cooperation with other Departmental 
officials, shall prepare an environmental assessment to determine 
whether it is necessary to prepare an environmental impact statement or 
a ``Finding of no significant impact''. If the action normally requires 
an environmental impact statement, there is ordinarily no need for the 
preparation of an environmental assessment and the environmental impact 
statement process should be initiated without preparing such an 
assessment. If the action is categorically excluded, no further 
environmental review is needed. If an environmental assessment is 
prepared it

[[Page 721]]

may also be used to evaluate whether the proposed action may have 
effects outside the United States.
    (c) Finding of no significant impact. If the environmental 
assessment indicates that the environmental effects of the action in the 
United States are not significant, then the responsible action officer 
shall make a ``Finding of no significant impact'', thereby concluding 
the NEPA review process (CEQ Regulations Sec. Sec.  1501.4 and 1508.13).
    (d) Environmental impact statement. If the environmental assessment 
demonstrates that the environmental effects of the action with the 
United States may be ``significant'' (see Sec.  1508.27 of the CEQ 
Regulations) the Department is required to prepare an environmental 
impact statement (EIS) in accordance with these regulations (see also 
CEQ Regulations Sec.  1501.8, part 1502 and Sec. Sec.  1506.2 through 
1506.7). In preparing the environmental impact statement the following 
steps will be carried out:
    (1) Notice of intent to prepare an EIS. If an impact statement is 
required, the Department will publish in the Federal Register a ``Notice 
of intent'' to prepare such a statement (CEQ Regulations Sec. Sec.  
1501.7 and 1508.22).
    (2) Scoping procedures. The Department will then hold a scoping 
meeting with interested agencies and individuals to determine the proper 
content (``scope'') of the statement (CEQ Regulations Sec. Sec.  1501.7 
and 1508.25).
    (3) Draft environmental impact statement (DEIS). The Department will 
then prepare a draft EIS (DEIS) which will be filed with the 
Environmental Protection Agency and circulated to agencies and the 
public for comment for at least 45 days, except where the CEQ 
Regulations and these regulations permit the time period to be shortened 
(CEQ Regulations Sec.  1501.8, part 1502, Sec. Sec.  1506.2 through 
1506.7, 1506.10(d) and 1506.11; 161.7(d), 161.9(n)(2)).
    (4) Final environmental impact statement (FEIS). In light of the 
comments and following any revision in the draft EIS, the Department 
will file with the Environmental Protection Agency and circulate to 
agencies and the public a final EIS at least 30 days before making a 
final decision on the action, except where the CEQ Regulations and these 
regulations permit the time period to be shortened (CEQ Regulations 
Sec. Sec.  1506.9, 1506.10(d), 1506.11; 161.7(d), 161.9(n)(2)).
    (5) Record of decision. After making a decision on the action, the 
Department will make available a formal ``Record of decision'' (CEQ 
Regulations Sec.  1505.2).



Sec.  161.9  Specific steps in the Department's NEPA process.

    (a) Decision whether to prepare an EIS. In deciding whether to 
prepare an environmental impact statement, the responsible action 
officer shall make an initial review in the early planning stages of a 
proposed action to identify and evaluate potential environmental effects 
of the actions and all reasonable measures which may be taken to 
mitigate adverse impacts. This review must be conducted in conjunction 
with all requests under the Department's Circular 175 procedure (11 FAM 
720), with all actions involving the obligation of funds within the 
Department's annual or supplemental budget submissions to the Office of 
Management and Budget, and with other actions when a potentially 
significant environmental impact may result. The responsible action 
officer shall ensure that the principal action memoranda prepared for 
such actions properly reflect the environmental review in all cases. No 
written statement is required in the case of actions which do not raise 
the question of environmental impacts. The environmental evaluation 
document prepared shall be considered along with political, economic and 
other decisionmaking factors relating to the proposed action.
    (1) Review of the categories of actions. During the initial 
environmental review of the proposed action, the responsible action 
officer should classify the proposed Departmental action as one either 
normally requiring an environmental impact statement, normally not 
requiring such a statement, or normally requiring an environmental 
assessment. (See Sec.  1504.1 of the CEQ Regulations and Sec.  161.7 of 
these regulations.)
    (i) Actions normally requiring environmental statements. 
Environmental assessments are not required for actions which it is 
already known will require

[[Page 722]]

the preparation of environmental impact statements. For each major 
Departmental action which, in the view of the responsible action officer 
meets the criteria of this section, he shall, in cooperation with 
theOffice of Environmental Quality and Transboundary Issues, initiate 
steps to prepare an environmental impact statement. This will be 
accomplished by preparing a ``Notice of intent'' to prepare an EIS (see 
Sec.  1508.22 of the CEQ Regulations). The Office of Environmental 
Quality and Transboundary Issues shall arrange for publication of the 
notice in the Federal Register (see Sec.  1507.3(e) of the CEQ 
Regulations). The responsible action officer shall then apply the 
procedures set forth in Sec.  161.8 of these regulations to determine 
the scope of the proposed EIS, and proceed to prepare and release the 
environmental impact statement in accordance with CEQ and Departmental 
regulations. If, however, the responsible action officer believes that 
the proposed action, though included within or closely similar to one 
which normally requires the preparation of an EIS, will itself have no 
significant impact, he should conduct an environmental assessment in 
accordance with the CEQ Regulations (Sec.  1508.9). If the assessment 
demonstrates that there will be no significant impact, he should prepare 
a ``Finding of no significant impact'' and provide for public review a 
notice of this finding in accordance with Sec. Sec.  1501.4(e) and 
1506.6 of the CEQ Regulations.
    (ii) Actions categorically excluded. Separate detailed documentation 
is not normally required for actions which are categorically excluded 
and which are therefore exempt from the requirement of preparations of 
an environmental assessment or environmental impact statement. However, 
the responsible action officer shall note in the action memorandum 
concerning the action that the proposed action has been reviewed under 
the Department's environmental procedures and determined to be 
categorically excluded. The Office of Environmental Quality and 
Transboundary Issues shall periodically review actions in the classes 
categorically excluded under these regulations to determine if the 
original decision to categorically exclude the class remains valid. If 
such a review determines that a proposed action may have a significant 
impact on the human environment the necessary revision in the 
categorical exclusion shall be made and an environmental assessment 
shall be prepared to determine the need for the preparation of an 
environmental impact statement.
    (iii) Actions normally requiring environmental assessments. For each 
action meeting the criteria of this section the responsible action 
officer shall prepare an environmental assessment (see Sec. Sec.  1501.3 
and 1508.9 of the CEQ Regulations) and, on the basis of that assessment, 
determine if an EIS is required. If the determination is that no 
environmental impact statement is required, the responsible action 
officer shall, in coordination with the Office of Environmental Quality 
and Transboundary Issues, prepare a ``Finding of no significant impact'' 
(see Sec. Sec.  1501.4 and 1508.13 of the CEQ Regulations). The 
``Finding of no significant impact'' shall be made available to the 
public through direct distribution and publication in the Federal 
Register. If the determination is that an environmental impact statement 
is required, the official shall proceed with the ``Notice of intent'' to 
prepare an EIS and the subsequent steps in the preparation and release 
of an EIS in accordance with the CEQ Regulations (Sec. Sec.  1501.7, 
1507.3 and 1508.22) and these regulations.
    (2) Preparation of environmental assessments. Environmental 
assessments, as defined in the CEQ Regulations (Sec.  1508.9), should be 
prepared as directed in Sec.  1501.3 of the CEQ Regulations. The 
environmental assessment shall be used to determine whether to prepare 
an environmental impact statement or a ``Finding of no significant 
impact''. The assessment shall include a brief discussion of the need 
for the proposed action, of alternatives and of environmental impacts 
and a listing of agencies and persons consulted in preparing the 
assessment.
    (3) Notice of intent to prepare an EIS. As soon as practicable after 
deciding to prepare an environmental impact statement and before 
initiating the scoping process (see Sec.  161.9(b) of these

[[Page 723]]

regulations) the Department or another lead agency, if one is designated 
in accordance with Sec.  1501.5 of the CEQ Regulations, shall publish in 
the Federal Register a ``Notice of intent'' to prepare an EIS in 
accordance with Sec. Sec.  1501.7 and 1508.22 of the CEQ Regulations. 
The Office of Environmental Quality and Transboundary Issues shall 
arrange for publishing the notice.
    (b) Scoping. The Department shall conduct an early and open meeting 
with interested agencies and the public for determining the scope of 
issues to be addressed in a given environmental impact statement and for 
identifying the significant issues related to a proposed action. The 
elements of the scoping process are defined in Sec.  1501.7 of the CEQ 
Regulations and must include consideration of the range of actions, 
alternatives, and impacts discussed in Sec.  1508.25 of the CEQ 
Regulations.
    (c) Cooperation with other agencies. Departmental officials are 
encouraged to cooperate with other agencies and the public throughout 
the conduct of the Department's NEPA process. The Office of 
Environmental Quality and Transboundary Issues shall ensure also that 
the Department reviews the draft and final impact statements submitted 
for review by other agencies (Sec.  1502.19 of the CEQ Regulations). 
Where appropriate and to eliminate duplication it shall arrange to 
prepare environmental assessments and impact statements jointly with 
other Federal or State agencies. Where possible it will arrange for the 
department to ``adopt'' statements prepared by other agencies (Sec.  
1506.3 of the CEQ Regulations). It shall arrange lead and cooperating 
agency responsibilities for preparing environmental documents (see 
Sec. Sec.  1501.5 and 1501.6 of CEQ Regulations).
    (d) Preparation of draft environmental impact statement. The 
responsible action officer shall be responsible for the preparation of 
the draft environmental impact statement in the manner described in 
Sec.  1501.8, part 1502, and Sec. Sec.  1506.2 through 1506.7 of the CEQ 
Regulations. Preliminary copies of the draft environmental impact 
statement and attachments shall be submitted to the Office of 
Environmental Quality and Transboundary Issues before any formal review 
is conducted outside the Department. This submission shall be 
accompanied by a list of Federal, State, and local officials (Part 1503 
of the CEQ Regulations) and a list of other interested parties (Sec.  
1506.6 of the CEQ Regulations) whose comments shall be sought. The 
Office of Environmental Quality and Transboundary Issues shall review 
the draft and obtain additional comments from other appropriate 
Departmental bureaus and offices.
    (e) Review of and comment on draft EIS. For external review, the 
Office of Environmental Quality and Transboundary Issues shall transmit 
five copies of the revised draft statement to the Environmental 
Protection Agency (EPA) Office of Federal Activities. EPA will publish a 
notice of the statement's availability the following week in the Federal 
Register. Upon transmission of the draft statement to EPA, the Office of 
Environmental Quality and Transboundary Issues shall also seek the views 
of appropriate agencies and individuals in accordance with Part 1503 and 
Sec. Sec.  1506.6 and 1506.9 of the CEQ Regulations. It shall specify 
that replies are required at a stated date not earlier than 45 days from 
the date of NEPA publication of the draft statement availability. Any 
views submitted during the comment period shall be provided to the 
responsible action officer in the Department for consideration in 
preparing the final statement. To the fullest extent possible, 
requirements for review and consultation with other agencies on 
environmental matters established by statutes other than NEPA, such as 
the review and consultation requirements of the Endangered Species Act 
of 1973, as amended, should be met before or through this review process 
(see Sec.  161.11 of these regulations). In addition, the draft EIS 
shall list all environmentally-related federal permits, licenses or 
other approvals required to implement the proposal as specified in Sec.  
1502.25(b) of the CEQ Regulations.
    (f) Public involvement. (1) Departmental officials will make 
diligent efforts to involve the public in implementing these regulations 
as provided in Sec. Sec.  1501.4(e), 1503.1(a)(e) and 1506.6 of the CEQ 
Regulations.

[[Page 724]]

    (2) Interested persons can obtain information on the Department's 
environmental impact statements and other aspects of the Department's 
NEPA process by contacting the Director, Office of Environmental Quality 
and Transboundary Issues , Room 7820, Department of State, Washington, 
DC 20520 (tel. 202/632-9266). Information pertaining to the NEPA process 
may be sent to the above address. Federal Register notices concerning 
the Department's environmental documents shall specify where such 
information relevant to the documents in question may be obtained.
    (3) The responsible action officer shall identify those persons, 
community organizations, environmental interest groups, international 
organizations or other bodies which may have an interest in or be 
affected by the proposed Departmental action and who should therefore be 
involved in the NEPA process. With the assistance of the Office of 
Environmental Quality and Transboundary Issues, the responsible action 
shall transmit a list of such persons, groups and organizations to the 
Office of Environmental Quality and Transboundary Issues at the same 
time he submits:
    (i) A recommendation regarding a ``Finding of no significant 
impact'';
    (ii) A ``Notice of intent to prepare an EIS'';
    (iii) A recommendation on possible public hearings (see Sec.  
1506.6(c) of CEQ Regulations);
    (iv) A draft EIS, or
    (v) A final EIS.
    (4) The responsible action officer shall consult with the Office of 
Environmental Quality and Transboundary Issues and make recommendations 
regarding the need for public hearings. The Office of Environmental 
Quality and Transboundary Issues shall, as necessary, review such 
recommendations with the Office of the Legal Adviser.
    (g) Preparation of final environmental impact statement. (1) After 
conclusion of the review process with other Federal, State and local 
agencies and the public, the responsible action officer shall consider 
suggestions received and revise the draft environmental impact statement 
as appropriate in accordance with part 1502 and Sec.  1501.8 and 
Sec. Sec.  1506.2 through 1506.7 of the CEQ Regulations.
    (2) Five copies of the preliminary final environmental impact 
statement, with attached copies of the comments received and suggested 
responses, shall be provided to the Office of Environmental Quality and 
Transboundary Issues. The Office of Environmental Quality and 
Transboundary Issues will, as appropriate, obtain additional comments 
from any other appropriate Departmental bureau or offices and notify the 
responsible action officer of any further changes required and the 
number of final statements to be transmitted. The Office of 
Environmental Quality and Transboundary Issues shall submit five copies 
of the final statement to the Environmental Protection Agency's Office 
of Environmental Review. Copies shall also be sent to all parties who 
commented and to other interested parties in accordance with Sec.  
1506.9 of the CEQ Regulations.
    (3) Each draft and final statement, the supporting documentation, 
and the ``Record of decision'' (see Sec.  161.9(h) of these regulations) 
shall be available for public review and copying at the Office of 
Environmental Quality and Transboundary Issues (OES/ENH), Room 7820, 
Department of State, Washington, DC 20520 (tel. 202/632-9267).
    (h) Record of the decision. At the time of the decision on the 
proposed action, the responsible Departmental official shall consult 
with the Office of Environmental Quality and Transboundary Issues and 
prepare a concise ``Record of decision'' (see Sec.  1505.2 of the CEQ 
Regulations).
    (i) Timing of EIS preparation and action decision. Preparation of an 
environmental impact statement shall be initiated as soon as the 
responsible action officer, in consultation with the Office of 
Environmental Quality and Transboundary Issues and the Office of the 
Legal Adviser, has determined that the statement shall be prepared. 
Except where permitted by the CEQ Regulations (Sec. Sec.  1506.10(d), 
1506.11) and these regulations (Sec. Sec.  161.7(d), 161.9(n)(2)), no 
decision on the proposed action shall be made by the Department until 
the later of the following dates:

[[Page 725]]

    (1) Ninety (90) days after publication by EPA of a notice of 
availability of a Departmental draft EIS.
    (2) Thirty (30) days after publication by EPA of a notice of 
availability of a departmental final EIS.
    (j) Implementing and monitoring the decision. Section 1505.3 of the 
CEQ Regulations establishes the procedures to be followed by the 
Department in monitoring to assure that any mitigation measures or other 
commitments associated with the decision and its implementation are 
carried out. The Office of Environmental Quality and Transboundary 
Issues will maintain general oversight and cooperate with bureau 
officers in such monitoring.
    (k) Supplemental environmental impact statements. Departmental 
officials shall supplement a draft EIS whenever an alternative which is 
substantially different from those discussed in the draft is under 
consideration or when the draft is otherwise out of date. A final EIS 
shall be supplemented when a substantial change is made in the proposed 
action or when significant new information on the environmental impacts 
comes to light. A supplemental EIS should be prepared, circulated and 
approved in accordance with the provisions of Sec.  1502.9 of the CEQ 
Regulations. No supplemental EIS need be prepared when the final 
decision on the action in question has already been made. If there are 
reasons not to prepare a supplemental EIS when one ordinarily would be 
called for, the responsible action officer should consult with the 
Office of Environmental Quality and Transboundary Issues , which shall 
consult with the Council on Environmental Quality on the matter.
    (l) Programmatic and generic environmental impact statements. (1) 
Before preparing an environmental document under these regulations the 
responsible action officer should determine if there exists a generic or 
programmatic environmental document analyzing actions, effects or issues 
similar to those involved in the proposed action. A generic 
environmental document reviews the environmental effects that are 
generic or common to a class of Departmental actions which may not be 
specific to any single country or area. Where such a document is 
prepared it could be applied to a number of similar specific country 
applications. If a generic document exists and if it deals with relevant 
similarities in the action, such as common timing, environmental 
impacts, alternatives, methods of implementation or subject matter it 
will not be necessary to prepare further environmental documentation.
    (2) A programmatic environmental document shall focus its analysis 
on the environmental aspects of an entire program rather than on the 
specific elements of the program. If a programmatic environmental 
document has already been prepared the responsible action officer should 
determine whether it adequately deals with the environmental effects of 
the particular action under review. If the programmatic document 
adequately reviews the environmental impacts of the action under 
consideration, then additional environmental documentation is not 
required under these regulations. In preparing environmental documents 
on specific actions, Departmental officers shall consider the 
advisability of modifying or expanding the documents so they may serve 
as generic or programmatic documents for a broader range of actions.
    (m) Amendments. Amendments to these regulations may be made by the 
Assistant Secretary for Oceans and International Environmental and 
Scientific Affairs in consultation with other Departmental bureaus and 
the Office of the Legal Adviser. Such amendments will be published in 
the Federal Register after consultation with the Council on 
Environmental Quality, in accordance with Sec.  1507.3 of the CEQ 
Regulations, and public review and comment.
    (n) Modifications. The Department's procedures for preparing 
environmental documents may be modified to accommodate the following 
circumstances:
    (1) Classified material. Most Departmental environmental documents 
will not normally contain classified or administratively controlled 
material (see Sec.  1507.3(c) of the CEQ Regulations); in some cases, 
however, an environmental document must include such material to 
evaluate adequately environmental

[[Page 726]]

effects. In such cases Departmental environmental documents, or portions 
thereof, may be classified. Such material should, if possible, be 
confined to a classified annex of the environmental document. Approval 
for classification must be granted with the concurrence of the Assistant 
Secretary for Oceans and International Environmental and Scientific 
Affairs and the Office of the Legal Adviser, and the assistant secretary 
of the bureau with the action responsibility for the proposed action. In 
these cases, Departmental environmental documents or portions thereof 
may be classified in accordance with the criteria set forth in Executive 
Order 12065, dated December 1, 1978. Handling and disclosure of 
classified or administratively controlled material shall be governed by 
22 CFR part 9. The portions of an environmental document which are not 
classified or administratively controlled will be made available to 
persons outside the Department, as provided in 22 CFR part 9. 
Classification does not preclude the obligation to ensure that 
environmental documents are reviewed by competent scientific and 
technical experts. Appropriate arrangements will be made through the 
Office of Environmental Quality and Transboundary Issues or Federal 
agency review of classified or administratively controlled environmental 
documents.
    (2) Time periods for environmental review. When necessary to comply 
with other specific statutory requirements or for compelling reasons of 
national policy the Department may, by agreement with the Environmental 
Protection Agency, modify time periods specified by the CEQ Regulations 
for preparing environmental documents in accordance with Sec.  1506.10 
of the CEQ Regulations. See also provisions for emergency circumstances 
contained in Sec.  1506.11 of the CEQ Regulations and Sec.  161.7(d) of 
these regulations.



          Subpart D_Coordination of Other Requirements of NEPA



Sec.  161.10  [Reserved]



Sec.  161.11  Environmental review and consultation requirements.

    In addition to the environmental review requirements of NEPA the 
Department has other statutory environmental review and consultation 
requirements. Departmental officials, in cooperation with the Office of 
Environmental Quality and Transboundary Issues and the Office of the 
Legal Adviser shall, to the maximum extent possible, conduct 
environmental review and consultation for these additional requirements 
concurrently with and integrated with preparation of assessments, and 
environmental impact statements. The principal additional requirements 
affecting the Department of State's actions are outlined below.
    (a) Section 7 of the Endangered Species Act, as amended, 16 U.S.C. 
1531 et seq., requires identification of and consultation on aspects of 
any Departmental action that may have effects in the United States on 
listed species or their habitat. As appropriate, written request for 
consultation, along with the draft environmental document, shall be 
conveyed by the Office of Environmental Quality and Transboundary Issues 
to the Regional Director of the U.S. Fish and Wildlife Service or the 
National Marine Fisheries Service, as appropriate, for the Region in the 
United States where the action will be carried out.
    (b) Section 106 of the National Historic Preservation Act of 1966, 
as amended, 16 U.S.C. 470(f), requires identification of National 
Register properties, eligible properties, or properties in the United 
States which may be eligible for the National Register within the area 
of the potential impact of a proposed Departmental action. Evaluation of 
the impact of the action on such properties shall be discussed in draft 
environmental impact statements and transmitted to the Advisory Council 
on Historic Preservation for comments.
    (c) Executive Order 11988 (Floodplains Management) and Executive 
Order

[[Page 727]]

11990 (Wetlands), requires identification of actions which will occur in 
or affect a floodplain or wetland (e.g., in areas along the boundary 
with Canada or Mexico). A comparative evaluation of such actions shall 
be discussed in draft environmental impact statements and transmitted to 
the U.S. Water Resources Council for comments.
    (d) Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq.
    (e) Section 309 of the Clean Air Act of 1955, as amended, 42 U.S.C. 
7609.
    (f) Clean Water Act of 1977, 33 U.S.C. 1251 et seq.
    (g) Coastal Zone Management Act of 1972, as amended, 16 U.S.C. 1451 
et seq.
    (h) Marine Protection, Research and Sanctuaries Act of 1972, as 
amended, 16 U.S.C. 1401 et seq.
    (i) Deepwater Port Act of 1974, as amended, 33 U.S.C. 1501 et seq.
    (j) Marine Mammal Protection Act of 1972, 16 U.S.C. 1361 et seq.



Sec.  161.12  Environmental effects abroad of major departmental actions.

    Departmental officials shall analyze actions under their cognizance 
with due regard for the environmental effects in the global commons and 
areas outside the jurisdiction of any nation and in foreign 
jurisdictions. Such analysis shall be prepared in accordance with 
separate Departmental procedures (Foreign Affairs Manual, Volume 2), 
dated September 4, 1979 for implementing Executive Order 12114, 
``Environmental Effects Abroad of Major Federal Actions'' (44 FR 1957), 
dated January 4, 1979.

[[Page 728]]



                   SUBCHAPTER R_ACCESS TO INFORMATION





PART 171_PUBLIC ACCESS TO INFORMATION--Table of Contents



                 Subpart A_General Policy and Procedures

Sec.
171.1 General provisions.
171.2 Types of records maintained.
171.3 Records available on the Department's Web site.
171.4 Requests for information--types and how made.
171.5 Archival records.

             Subpart B_Freedom of Information Act Provisions

171.10 Purpose and scope.
171.11 Processing requests.
171.12 Business information.
171.13 Appeal of denial of request for records.
171.14 Fees to be charged.
171.15 Miscellaneous fee provisions.
171.16 Waiver or reduction of fees.
171.17 Resolving disputes.
171.18 Preservation of records.

                    Subpart C_Privacy Act Provisions

171.20 Purpose and scope.
171.21 Definitions.
171.22 Request for access to records.
171.23 Request to amend or correct records.
171.24 Request for an accounting of record disclosures.
171.25 Appeals from denials of PA amendment requests.
171.26 Exemptions.

    Subpart D_Process To Request Public Financial Disclosure Reports

171.30 Purpose and scope.
171.31 Requests.

    Authority: 22 U.S.C. 2651a; 5 U.S.C. 552, 552a; E.O. 12600 (52 FR 
23781); Pub. L. 95-521, 92 Stat. 1824 (codified as amended at 5 U.S.C. 
app. 101-505); 5 CFR part 2634.

    Source: 81 FR 19865, Apr. 6, 2016, unless otherwise noted.



                 Subpart A_General Policy and Procedures



Sec.  171.1  General provisions.

    (a) This subpart contains the rules that the Department of State and 
the Foreign Service Grievance Board (FSGB), an independent body, follow 
in processing requests for records under the Freedom of Information Act 
(FOIA), 5 U.S.C. 552, as amended, and the Privacy Act of 1974 (PA), 5 
U.S.C. 552a, as amended. Records of the Department shall be made 
available to the public upon request made in compliance with the access 
procedures established in this part, except for any records exempt by 
law from disclosure. Regulations at 22 CFR 172.1 through 172.9 govern, 
inter alia, the service of subpoenas, court orders, and other demands or 
requests for official Department information or action, as well as the 
Department's response to demands or requests for official Department 
information or action in connection with legal proceedings in the United 
States to which the Department is not a party.
    (b) Definitions. (1) For purposes of subparts A, B, and D of this 
part, record means information regardless of its physical form or 
characteristics--including information created, stored, and retrievable 
by electronic means--that is created or obtained by the Department and 
under the control of the Department at the time of the request, 
including information maintained for the Department by an entity under 
Government contract for records management purposes. It does not include 
records that are not already in existence and that would have to be 
created specifically to respond to a request. Information available in 
electronic form shall be searched and compiled in response to a request 
unless such search and compilation would significantly interfere with 
the operation of the Department's automated information systems.
    (2) For purposes of subparts A, B, C, and D of this part, Department 
means the United States Department of State, including its field offices 
and Foreign Service posts abroad.



Sec.  171.2  Types of records maintained.

    Most of the records maintained by the Department pertain to the 
formulation and execution of U.S. foreign policy. The Department also 
maintains

[[Page 729]]

certain records that pertain to individuals, such as applications for 
U.S. passports, applications for visas to enter the United States, 
records on consular assistance given abroad by U.S. Foreign Service 
posts to U.S citizens and legal permanent residents, and records on 
Department employees. Further information on the types of records 
maintained by the Department may be obtained by reviewing the 
Department's records disposition schedules, which are available on the 
Department's Web site at www.foia.state.gov.



Sec.  171.3  Records available on the Department's Web site.

    Information that is required to be published in the Federal Register 
under 5 U.S.C. 552(a)(1) is regularly updated by the Department and 
found on its public Web site: www.state.gov. Records that are required 
by the FOIA to be made available for public inspection and copying under 
5 U.S.C. 552(a)(2) also are available on the Department's public Web 
site. Included on the Department's FOIA home page, www.foia.state.gov, 
are links to other sites where Department information may be available, 
links to the Department's PA systems of records, and the Department's 
records disposition schedules. Also available on the FOIA Web site are 
certain records released by the Department pursuant to requests under 
the FOIA and compilations of records reviewed and released in certain 
special projects. In addition, see 22 CFR part 173 regarding materials 
disseminated abroad by the Department.



Sec.  171.4  Requests for information--types and how made.

    (a) Requests for records made in accordance with subparts A, B, and 
C of this part must be made in writing and may be made by mail addressed 
to the Office of Information Programs and Services (IPS), U.S. 
Department of State, State Annex 2 (SA-2), 515 22nd Street, NW., 
Washington, DC 20522-8100, or by fax to (202) 261-8579, or through the 
Department's FOIA Web site (www.foia.state.gov). PA requests may be made 
by mail or fax only. IPS does not accept requests submitted by email.
    (1) Requests for passport records that are covered under PA System 
of Records Notice 26, including passport records issued from 1925 to 
present, should be mailed to U.S. Department of State, Law Enforcement 
Liaison Division, CA/PPT/S/L/LE, 44132 Mercure Cir, P.O. Box 1227, 
Sterling, VA 20166. Further guidance on obtaining passport records is 
available on the Department's Web site: travel.state.gov/content/
passports/english/passports/services/obtain-copies-of-passport-
records.html.
    (2) Requests for records of the Office of Inspector General (OIG) 
may be submitted to U.S. Department of State, Office of Inspector 
General, Office of General Counsel, Washington, DC 20520-0308, ATTN: 
FOIA officer. In addition, FOIA requests seeking OIG records may be 
submitted via email to [email protected], which is preferred. PA 
requests are accepted by mail only. Guidance is available on the OIG's 
Web site: oig.state.gov/foia/index.htm.
    (3) All other requests for other Department records must be 
submitted to the Office of Information Programs and Services by one of 
the means noted above. The Office of Information Programs and Services, 
the Law Enforcement Liaison Division of the Office of Passport Services, 
and the OIG are the only Department components authorized to accept FOIA 
requests submitted to the Department.
    (4) Providing the specific citation to the statute under which a 
requester is requesting information will facilitate the processing of 
the request by the Department. The Department automatically processes 
requests for information maintained in a PA system of records under both 
the FOIA and the PA to provide the requester with the greatest degree of 
access to the requester. Such information may be withheld only if it is 
exempt from access under both laws; if the information is exempt under 
only one of the laws, it must be released.
    (b) Although no particular format is required, a request must 
reasonably describe the Department records that are sought. To the 
extent that requests are specific and include all pertinent details 
about the requested information, it will be easier for the Department to

[[Page 730]]

locate responsive records. For FOIA requests, such details include the 
subject, timeframe, names of any individuals involved, a contract number 
(if applicable), and reasons why the requester believes the Department 
may have records on the subject of the request.
    (c) While every effort is made to guarantee the greatest possible 
access to all requesters regardless of the statute(s) under which the 
information is requested, the following guidance is provided for the 
benefit of requesters:
    (1) The Freedom of Information Act applies to requests for records 
concerning the general activities of government and of the Department in 
particular (see subpart B of this part).
    (2) The Privacy Act applies to requests from U.S. citizens or legal 
permanent resident aliens for records that pertain to them that are 
maintained by the Department in a system of records retrievable by the 
individual's name or personal identifier (see subpart C of this part).
    (d) As a general matter, information access requests are processed 
in the order in which they are received. However, if the request is 
specific and the search can be narrowed, it may be processed more 
quickly. Additionally, FOIA requests granted expedited processing will 
be placed in the expedited processing queue (see Sec.  171.11(f) for 
more information). Multi-tracking of FOIA requests is also used to 
manage requests (see Sec.  171.11(h)).



Sec.  171.5  Archival records.

    The Department ordinarily transfers records designated as 
historically significant to the National Archives when they are 25 years 
old. Accordingly, requests for some Department records 25 years old or 
older should be submitted to the National Archives by mail addressed to 
Special Access and FOIA Staff (NWCTF), 8601 Adelphi Road, Room 5500, 
College Park, MD 20740; by fax to (301) 837-1864; or by email to 
[email protected]. The Department's Web site, 
www.foia.state.gov, has additional information regarding archival 
records.



             Subpart B_Freedom of Information Act Provisions



Sec.  171.10  Purpose and scope.

    This subpart contains the rules that the Department follows under 
the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended. The 
rules should be read together with the FOIA, which provides additional 
information about access to records and contains the specific exemptions 
that are applicable to withholding information, the Uniform Freedom of 
Information Fee Schedule and Guidelines published by the Office of 
Management and Budget (OMB Guidelines), and information located at 
www.foia.state.gov. The Department processes records maintained in a 
Privacy Act (PA) system of records that are determined to be exempt from 
disclosure under the PA under the FOIA as well. As a result, requests 
that seek such records are also subject to this subpart.



Sec.  171.11  Processing requests.

    (a) In general. (1) Subject to paragraph (a)(2) of this section, the 
Director of the Office of Information Programs and Services (IPS) is 
responsible for initial action on all FOIA requests for Department 
records with two exceptions: Requests submitted directly to the Office 
of Inspector General (OIG), which receives and processes requests for 
OIG records; and the Office of Passport Services in the Bureau of 
Consular Affairs (PPT), which receives and processes requests for 
passport records (see Sec.  171.4(a)). Once received by IPS, all 
requests for records coming under the jurisdiction of the following 
bureaus or offices are processed by those bureaus, although IPS may 
provide review and coordination support to these bureaus/offices in some 
situations: the Bureau of Consular Affairs' Office of Visa Services, 
Office of Passport Services (except for information identified in Sec.  
171.4(a)), and Office of Overseas Citizens Services; the Bureau of 
Diplomatic Security; the Bureau of Human Resources; the Office of 
Medical Services; and the Foreign Service Grievance Board (FSGB). 
Additionally, the FSGB, as an independent body,

[[Page 731]]

processes all FOIA requests seeking access to its records and responds 
directly to requesters.
    (2) The Division Chief, Requester Liaison Division, in the Office of 
Information Programs and Services, shall issue all initial decisions on 
whether a request is valid or perfected, and whether to grant or deny 
requests for a fee waiver or for expedited processing.
    Definitions. The following definitions apply for purposes of this 
section:
    (1) Control means the Department's legal authority over a record, 
taking into account the ability of the Department to use and dispose of 
the record, the intent of the record's creator to retain or relinquish 
control over the record, the extent to which Department personnel have 
read or relied upon the record, and the degree to which the record has 
been integrated into the Department's record-keeping systems or files.
    (2) Urgently needed information. The information has a particular 
value that will be lost if not disseminated quickly. Ordinarily this 
means a breaking news story of general public interest. Information of 
historical interest only or information sought for litigation or 
commercial activities would not generally qualify, nor would a news 
media publication or broadcast deadline unrelated to the breaking nature 
of the story.
    (3) Actual or alleged Federal government activity. The information 
concerns actual or alleged actions taken or contemplated by the 
government of the United States, or by one of its components or 
agencies, including the Congress.
    (4) Unusual circumstances means:
    (i) The need to search for and collect the requested records from 
Foreign Service posts or Department offices other than IPS;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of distinct records; or
    (iii) The need to consult with another agency or other agencies that 
has/have a substantial interest in the records, or among two or more 
Department components that have a substantial subject-matter interest 
therein. In the majority of requests received by the Department unusual 
circumstances exist due to the need to search in multiple bureaus/
offices/posts located around the globe.
    (c) Form of request and response. A requester may ask for any 
information he or she believes the Department has in its possession or 
control. The requester must describe the records sought in sufficient 
detail to enable Department personnel to locate them with a reasonable 
amount of effort. The more specific the information the requester 
furnishes, the more likely that Department personnel will be able to 
locate responsive records if they exist. Any records provided in 
response to a request shall be provided in the form or format requested 
if the records are readily reproducible in that form or format.
    (d) Agreement to pay fees. By making a FOIA request, the requester 
shall be considered to have agreed to pay all applicable fees up to $25, 
unless a fee waiver is granted. IPS will confirm this agreement in an 
acknowledgement letter. When making a request, the requester may specify 
a willingness to pay a greater or lesser amount. If the Department 
determines that costs and fees will exceed the amount agreed to by the 
requester, the Department shall inform the requester of estimated fees 
and process up to the amount of the original agreement, unless a new 
agreement is made.
    (e) Receipt of request. The Department is in receipt of a request 
when it reaches IPS, OIG, or PPT, depending on which office is the 
intended recipient. At that time, the Department shall send an 
acknowledgement letter to the requester that identifies the date of 
receipt of the request in the proper component (IPS, OIG, or PPT), and 
the case tracking number. The Department (IPS, OIG, or PPT) has 20 
working days in which to determine whether to comply with a perfected 
request. Regardless of which of the three offices authorized to receive 
FOIA requests receives the request (whether IPS, OIG, or PPT), the 
Department shall have no more than 10 working days to direct a request 
to the appropriate office (whether IPS, OIG, or PPT), at which time the 
20-day limit

[[Page 732]]

for responding to the request will commence. The 20-day period shall not 
be tolled by the Department except:
    (1) The Department may make one request to the requester for 
clarifying information and toll the 20-day period while waiting for the 
requester's response; or
    (2) If necessary to clarify with the requester issues regarding 
fees. In either case, the Department's receipt of the information from 
the requester ends the tolling period.
    (f) Expedited processing. Requests shall receive expedited 
processing when a requester demonstrates that a ``compelling need'' for 
the information exists. A ``compelling need'' is deemed to exist where 
the requester can demonstrate one of the following:
    (1) Failure to obtain requested information on an expedited basis 
could reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual.
    (2) The information is urgently needed by an individual primarily 
engaged in disseminating information in order to inform the public 
concerning actual or alleged Federal government activity. Requesters 
must demonstrate that their primary activity involves publishing or 
otherwise disseminating information to the public in general, not just 
to a particular segment or group.
    (3) Failure to release the information would impair substantial due 
process rights or harm substantial humanitarian interests.
    (4) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. The request for 
expedited processing shall set forth with specificity the facts on which 
the request is based. A notice of the determination whether to grant 
expedited processing shall be provided to the requester within 10 
calendar days of the date of the receipt of the request in the 
appropriate office (whether IPS, OIG, or PPT). A denial of a request for 
expedited processing may be appealed to the Director of IPS within 30 
calendar days of the date of the Department's letter denying the 
request. A decision in writing on the appeal will be issued within 10 
calendar days of the receipt of the appeal. See Sec.  171.4 for contact 
information.
    (g) Time limits. The statutory time limit for responding to a FOIA 
request or to an appeal from a denial of a FOIA request is 20 working 
days. Whenever the statutory time limit for processing a request cannot 
be met because of ``unusual circumstances'' as defined in the FOIA, and 
the Department extends the time limit on that basis, the Department 
shall, before expiration of the 20-day period to respond, notify the 
requester in writing of the unusual circumstances involved and of the 
date by which processing of the request can be expected to be completed. 
See Sec.  171.11(b)(4). Where the extension exceeds 10 working days, the 
Department shall, as described by the FOIA, provide the requester with 
an opportunity to modify the request or arrange an alternative time 
period for processing. The Department shall make available its 
designated FOIA contact and its FOIA Public Liaison for this purpose.
    (h) Multi-track processing. The Department uses three processing 
tracks by distinguishing between simple and more complex requests based 
on the amount of work and/or time needed to process the request. The 
Department also uses a processing track for requests in which the 
Department has granted expedited processing. The Department may provide 
requesters in a slower track an opportunity to limit the scope of their 
request in order to qualify for faster processing.
    (i) Tracking requests. Requesters may contact IPS using the 
individualized tracking number provided to the requester in the 
acknowledgment letter, and the Department will provide, at a minimum, 
information indicating the date on which the agency received the request 
and an estimated date for completion.
    (j) Cut-off date. In determining which records are responsive to a 
request, the Department ordinarily will include only records in its 
possession as of the date of initiation of the search for responsive 
records, unless the requester has specified an earlier cut-off date.
    (k) Electronic records. Information maintained in electronic form 
shall be searched and compiled in response to a request unless such 
search and compilation would significantly interfere

[[Page 733]]

with the operation of the Department's automated information systems.
    (l) Segregation of records. The Department will release any 
reasonably segregable portion of a record after redaction of the exempt 
portions. The amount of information redacted and the exemption under 
which the redaction is made shall be indicated on the released portion 
of the record unless including that indication would harm an interest 
protected by the exemption. If technically feasible, the amount of 
information redacted and the exemption under which the redaction is made 
shall be indicated at the place in the record where the redaction was 
made.
    (m) Referrals and consultations. (1) If the Department determines 
that records retrieved as responsive to the request were created by 
another agency, it ordinarily will refer the records to the originating 
agency for direct response to the requester. If the Department 
determines that Department records retrieved as responsive to the 
request are of interest to another agency or Federal government office, 
it may consult with the other agency or office before responding to the 
request.
    (2) Whenever the Department refers any part of the responsibility 
for responding to a request to another agency, it shall document the 
referral, maintain a copy of the record that it refers, and notify the 
requester of the referral.
    (3) Agreements regarding consultations and referrals. The Department 
may make agreements with other agencies to eliminate the need for 
consultations or referrals for particular types of records.
    (4) The Department will make efforts to handle referrals and 
consultations according to the date that the referring agency initially 
received the FOIA request.
    (5) The standard referral procedure is not appropriate where 
disclosure of the identity of the agency to which the referral would be 
made could harm an interest protected by an applicable exemption, such 
as the exemptions that protect personal privacy or national security 
interests. In such instances, the Department will coordinate with the 
originating agency to seek its views on the disclosability of the 
record(s).
    (n) Requests for information about individuals to be processed under 
the FOIA--(1) First-party requests. A first-party request is one that 
seeks access to information pertaining to the person making the request.
    (2) Verification of personal identity. To protect the personal 
information found in its files, the Department recommends that first-
party requesters provide the following information so that the 
Department can ensure that records are disclosed only to the proper 
persons: the requester's full name, current address, citizenship or 
legal permanent resident alien status, and date and place of birth 
(city, state, and country). A first-party request should be signed, and 
the requester's signature should be either notarized or made under 
penalty of perjury pursuant to 28 U.S.C. 1746 as a substitute for 
notarization.
    (3) Third-party requests. A third-party request is one that seeks 
access to information pertaining to a third party (i.e., an individual 
other than the person submitting the request). A third-party requester 
who is the legal representative of another person covered under the PA, 
and submits all requirements under subpart C of this part, will be 
treated as a first-party requester.
    (i) A third-party requester may receive greater access to requested 
information by submitting information about the subject of the request 
that is set forth in paragraph (n)(1) of this section, and providing 
proof that that third party is deceased or the third party's 
authorization to the Department to release information about him- or 
herself to the requester. The third-party authorization: should take one 
of the following forms:
    (ii) A signed and notarized authorization by the third party; or
    (iii) A declaration by the third party made in compliance with the 
requirements set forth in 28 U.S.C. 1746 authorizing disclosure 
pertaining to the third party to the requester. The third-party 
authorization or declaration should be dated within six months of the 
date of the request. In addition, the Department's Certification of 
Identity

[[Page 734]]

form, DS-4240, can be used to provide authorization from a third party.
    (iv) Please note that if a requester is seeking information about a 
third party and the information is located in a PA system of records, 
the requester should review subpart C of this part. By providing 
verification of identity and authorization under that subpart, the third 
party is treated as a first party for processing purposes. Without 
providing the required information listed in that subpart, the request 
will still be processed under the FOIA procedures in subpart B of this 
part.
    (4) Requests for visa information. According to the Immigration and 
Nationality Act, 222(f) (8 U.S.C. 1202(f)), the records of the 
Department of State and of diplomatic and consular offices of the United 
States pertaining to the issuance or refusal of visas or permits to 
enter the United States shall be considered confidential and shall be 
used only for the formulation, amendment, administration, or enforcement 
of the immigration, nationality, and other laws of the United States. 
Other information found in the visa file, such as information submitted 
as part of the application and information not falling within section 
222(f) or another FOIA exemption may be provided. In order to provide 
more information to requesters seeking visa records, the following 
information should be provided with the FOIA request for both the 
petitioner and the beneficiary: full name, as well as any aliases used; 
current address; date and place of birth (including city, state, and 
country); the type of visa (immigrant or non-immigrant); the country and 
Foreign Service post where the visa application was made; when the visa 
application was made; and whether the visa application was granted or 
denied; and if denied, on what grounds. Providing additional information 
regarding the records sought will assist the Department in properly 
identifying the responsive records and in processing the request. In 
order to gain maximum access to any visa records that exist, attorneys 
or other legal representatives requesting visa information on behalf of 
a represented individual should submit a statement signed by both the 
petitioner and the beneficiary authorizing release of the requested visa 
information to the representative. Alternatively, the Department's form, 
DS-4240, may be used to certify the identity of the requester and to 
provide authorization from the petitioner and the beneficiary to release 
the requested information to the legal representative. Forms created by 
other Federal agencies will not be accepted.
    (5) Requests for passport records. All passport records requests 
must meet the requirements found in Sec.  171.22(d). If the PA 
requirements are not met, the requests will be processed under this 
subpart and access may be limited.



Sec.  171.12  Business information.

    (a) Definitions. The following definitions apply for purposes of 
this section:
    (1) Business information means commercial or financial or 
proprietary intellectual information obtained by the Department from a 
submitter that may be exempt from disclosure as privileged or 
confidential under Exemption 4 of the FOIA.
    (2) Submitter means any person or entity from which the Department 
obtains business information, directly or indirectly. The term includes 
corporations, partnerships, and sole proprietorships; state, local, and 
tribal governments; foreign governments, NGOs and educational 
institutions.
    (b) Designation of business information. A submitter of information 
must use good-faith efforts to designate, by appropriate markings, 
either at the time of submission or at a reasonable time thereafter, any 
portions of its submission that it considers exempt from disclosure 
under FOIA Exemption 4. These designations will expire ten years after 
the date of the submission unless the submitter requests, and provides 
justification for, a longer designation period.
    (c) Notice to submitters. The Department shall provide a submitter 
with prompt written notice of a FOIA request that seeks its business 
information, or of an administrative appeal of a denial of such a 
request, whenever required under paragraph (d) of this section, except 
as provided in paragraph (e) of this section, in order to give the 
submitter an opportunity to object to disclosure of any specified 
portion of

[[Page 735]]

that information under paragraph (f) of this section. The notice shall 
either describe the information requested or include copies of the 
requested records or record portions containing the business 
information.
    (d) When notice is required. Notice shall be given to a submitter 
whenever:
    (1) The information has been designated in good faith by the 
submitter as information considered exempt from disclosure under 
Exemption 4; or
    (2) The Department has reason to believe that the information may be 
exempt from disclosure under Exemption 4, but has not yet determined 
whether the information is protected from disclosure under that 
exemption or any other applicable exemption.
    (e) When notice is not required. The notice requirements of 
paragraphs (c) and (d) of this section shall not apply if:
    (1) The Department determines that the information is exempt from 
disclosure;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other than 
the FOIA) or by a regulation issued in accordance with the requirements 
of Executive Order 12600; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous, except that, in such a case, 
the Department shall, within a reasonable time prior to a specified 
disclosure date, give the submitter written notice of any final decision 
to disclose the information.
    (f) Opportunity to object to disclosure. The Department will allow a 
submitter a reasonable time to respond to the notice described in 
paragraph (c) of this section and will specify that time period in the 
notice. If a submitter has any objections to disclosure, it should 
provide the component a detailed written statement that specifies all 
grounds for withholding the particular information under any exemption 
of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, 
the submitter must explain why the information constitutes a trade 
secret or commercial or financial information that is privileged or 
confidential. In the event that a submitter fails to respond to the 
notice within the time specified in it, the submitter will be considered 
to have no objection to disclosure of the information. Information 
provided by a submitter under this paragraph may itself be subject to 
disclosure under the FOIA.
    (g) Notice of intent to disclose. The Department shall consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose business information. Whenever the 
Department decides to disclose business information over the objection 
of a submitter, it shall give the submitter written notice, which shall 
include:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Notice of lawsuit. Whenever a requester files a lawsuit seeking 
to compel the disclosure of business information, the Department shall 
promptly notify the submitter.
    (i) Notice to requester. Whenever the Department provides a 
submitter with notice and an opportunity to object to disclosure under 
paragraph (f) of this section, the Department shall also notify the 
requester. Whenever the Department notifies a submitter of its intent to 
disclose requested business information under paragraph (g) of this 
section, the Department shall also notify the requester. Whenever a 
submitter files a lawsuit seeking to prevent the disclosure of business 
information, the Department shall notify the requester.



Sec.  171.13  Appeal of denial of request for records.

    (a) Any denial, in whole or in part, of a request for Department 
records under the FOIA may be administratively appealed to the Appeals 
Review Panel of the Department. This appeal right includes the right to 
appeal the determination that no records responsive to the request exist 
in Department files. Appeals must be postmarked within 60

[[Page 736]]

calendar days of the date of the Department's denial letter and sent to: 
Appeals Officer, Appeals Review Panel, Office of Information Programs 
and Services, at the address set forth in Sec.  171.4, or faxed to (202) 
261-8571. The time limit for a response to an appeal is 20 working days, 
which may be extended in unusual circumstances, as defined in Sec.  
171.11(b). The time limit begins to run on the day the appeal is 
received by IPS. Appeals from denials of requests for expedited 
processing and for a fee reduction or waiver must be postmarked within 
30 calendar days of the date of the Department's denial letter. See 
Sec. Sec.  171.11(f)(4) (expedited processing appeals) and 171.16(e) 
(fee reduction/waiver appeals) of this subpart. See also Sec.  171.4 for 
address information.
    (b) Requesters may decide to litigate a request that is in the 
appeal stage. Once a summons and complaint is received by the Department 
in connection with a particular request, the Department will 
administratively close any open appeal regarding such request.
    (c) Requesters should submit an administrative appeal, to IPS at the 
above address, of any denial, in whole or in part, of a request for 
access to FSGB records under the FOIA. IPS will assign a tracking number 
to the appeal and forward it to the FSGB, which is an independent body, 
for adjudication.
    (d) Decisions on appeals. A decision on an appeal must be made in 
writing. A decision that upholds the Department's determination will 
contain a statement that identifies the reasons for the affirmance, 
including any FOIA and Privacy Act exemptions applied. The decision will 
provide the requester with notification of the statutory right to file a 
lawsuit and will inform the requester of the mediation services offered 
by the Office of Government Information Services of the National 
Archives and Records Administration (OGIS) as a non-exclusive 
alternative to litigation. If the Department's decision is remanded or 
modified on appeal, the requester will be notified of that determination 
in writing. The Department will thereafter further process the request 
in accordance with that appeal determination and respond directly to the 
requester. When the Department of State engages in the mediation 
services offered by OGIS, it will work in good faith as a partner to the 
mediation process in an attempt to resolve the dispute. The Department 
reserves its right to decide on a case-by-case basis whether to enter 
into formal mediation offered by OGIS.



Sec.  171.14  Fees to be charged.

    (a) In general. The Department shall charge fees that recoup the 
full allowable direct costs it incurs in processing a FOIA request in 
accordance with the provisions of this part and with the OMB Guidelines. 
It shall use the most efficient and least costly methods to comply with 
requests for records made under the FOIA. The Department will not charge 
fees to any requester, including commercial use requesters, if the cost 
of collecting a fee would be equal to or greater than $25.00. The 
Department shall attempt to notify the requester if fees are estimated 
to exceed $25.00. Such notification shall include a breakdown of the 
fees for search, review, or duplication, unless the requester has 
expressed a willingness to pay fees as high as those anticipated.
    (b) Definitions. The following definitions apply for purposes of 
this section:
    (1) Direct costs are those costs the Department incurs in searching 
for, duplicating, and, in the case of commercial use requests, reviewing 
records in response to a FOIA request. The term does not include 
overhead expenses.
    (2) Search costs are those costs the Department incurs in looking 
for, identifying, and retrieving material, in paper or electronic form, 
that is potentially responsive to a request. The Department shall 
attempt to ensure that searching for material is done in the most 
efficient and least expensive manner so as to minimize costs for both 
the Department and the requester. The Department may charge for time 
spent searching even if it does not locate any responsive record, or if 
it withholds the record(s) located as entirely exempt from disclosure. 
Further information on current search fees is available by visiting the 
FOIA home page at www.foia.state.gov and reviewing the Information 
Access Guide.

[[Page 737]]

    (3) Duplication costs are those costs the Department incurs in 
reproducing a requested record in a form appropriate for release in 
response to a FOIA request.
    (4) Review costs are those costs the Department incurs in examining 
a record to determine whether and to what extent the record is 
responsive to a FOIA request and the extent to which it may be disclosed 
to the requester, including the page-by-page or line-by-line review of 
material within records. It does not include the costs of resolving 
general legal or policy issues that may be raised by a request.
    (5) Categories of requesters. ''Requester fee category'' means one 
of the categories in which a requester will be placed for the purpose of 
determining whether the requester will be charged fees for search, 
review, and duplication. ``Fee waiver'' (see Sec.  171.16) means the 
waiver or reduction of processing fees that may be granted if the 
requester can demonstrate that certain statutory standards are 
satisfied. There are three categories of requesters: commercial use 
requesters, distinct subcategories of non-commercial requesters 
(educational and non-commercial scientific institutions, representatives 
of the news media), and all other requesters.
    (i) A commercial use requester is a person or entity who seeks 
information for a use or purpose that furthers the commercial, trade, or 
profit interest of the requester or the person on whose behalf the 
request is made. In determining whether a requester belongs within this 
category, the Department will look at the way in which the requester 
intends to use the information requested. Commercial use requesters will 
be charged for search time, review time, and duplication in connection 
with processing their requests.
    (ii) Distinct subcategories of non-commercial requesters. (A) An 
educational institution requester is a person or entity who submits a 
request under the authority of a school that operates a program of 
scholarly research. A requester in this category must show that the 
records are not sought for a commercial use and are not intended to 
promote any particular product or industry, but rather are sought to 
further scholarly research of the institution. A signed letter from the 
chairperson on an institution's letterhead is presumed to be from an 
educational institution. A student seeking inclusion in this subcategory 
who makes a request in furtherance of the completion of a course of 
instruction is carrying out an individual research goal and does not 
qualify as an educational institution requester. See a summary of the 
OMB Fee Guidelines at: https://www.justice.gov/oip/foia-guide-2004-
edition-fees-and-fee-waivers. Educational institution requesters will 
not be charged for search and review time, and the first 100 pages of 
duplication will be provided free of charge.
    (1) Example 1. A request from a professor of geology at a university 
for records relating to soil erosion, written on letterhead of the 
Department of Geology, would be presumed to be from an educational 
institution.
    (2) Example 2. A request from the same professor of geology seeking 
drug information from the Food and Drug Administration in furtherance of 
a murder mystery he is writing would not be presumed to be an 
institutional request, regardless of whether it was written on 
institutional stationery.
    (B) A non-commercial scientific institution requester is a person or 
entity that submits a request on behalf of an institution that is not 
operated on a ``commercial'' basis and that is operated solely for the 
purpose of conducting scientific research, the results of which are not 
intended to promote any particular product or industry. Non-commercial 
scientific institution requesters will not be charged for search and 
review time, and the first 100 pages of duplication will be provided 
free of charge.
    (C) A representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. The term news means 
information that is about current events or that would be of current 
interest to the public. News media include television or radio stations 
broadcasting to the public at large and publishers of periodicals (but 
only in those instances when they can

[[Page 738]]

qualify as disseminators of ``news'') who make their products available 
to the general public. ``Freelance'' journalists shall be regarded as 
working for a news media entity if they can demonstrate a solid basis 
for expecting publication through that entity, such as by a contract or 
past publication record. These examples are not all-inclusive. A 
representative of the news media will not be charged for search and 
review time, and the first 100 pages of duplication will be provided 
free of charge.
    (iii) All other requesters are persons or entities that do not fall 
into the requester categories defined above. All other requesters will 
be provided the first two hours of search time and the first 100 pages 
of duplication free of charge, and will not be charged for review time.
    (c) Searches for responsive records. The Department charges the 
estimated direct cost of each search based on the average current salary 
rates of the categories of personnel doing the searches. Updated search 
and review fees are available at www.foia.state.gov
    (d) Manual (paper) and computer searches. For both manual and 
computer searches, the Department shall charge the estimated direct cost 
of each search based on the average current salary rates of the 
categories of personnel doing the searches.
    (e) Review of records. Only requesters who are seeking records for 
commercial use may be charged for time spent reviewing records to 
determine whether they are responsive, and if so, releasable. Charges 
may be assessed for the initial review only, i.e., the review undertaken 
the first time the Department analyzes the applicability of a specific 
exemption to a particular record or portion of a record
    (f) Duplication of records. Paper copies of records shall be 
duplicated at a rate of $0.15 per page. Other charges may apply 
depending on the type of production required. Where paper documents must 
be scanned in order to comply with a requester's preference to receive 
the records in an electronic format, the requester shall pay the direct 
costs associated with scanning those materials. For other forms of 
duplication, the Department shall charge the direct costs.
    (g) Other charges. The Department shall recover the full costs of 
providing services such as those below:
    (1) Sending records by special methods such as express mail, 
overnight courier, etc.
    (2) Providing records to a requester in a special format.
    (3) Providing duplicate copies of records already produced to the 
same requester in response to the same request.
    (h) Payment. Fees shall be paid by either personal check or bank 
draft drawn on a bank in the United States, or a postal money order. 
Remittances shall be made payable to the order of the Treasury of the 
United States and mailed to the Office of Information Programs and 
Services, U.S. Department of State, State Annex 2 (SA-2), 515 22nd 
Street NW., Washington, DC, 20522-8100. A receipt for fees paid will be 
given upon request.
    (i) When certain fees are not charged. The Department shall not 
charge search fees (or in the case of educational and non-commercial 
scientific institutions or representatives of the news media, 
duplication fees) when the Department fails to comply with any time 
limit under 5 U.S.C. 552(a)(6), unless unusual circumstances (see Sec.  
171.11(b)) or exceptional circumstances exist. Exceptional circumstances 
cannot include a delay that results from a predictable agency workload 
of requests unless the agency demonstrates reasonable progress in 
reducing its backlog of pending requests. See 5 U.S.C. 552(a)(6)(C). 
Apart from the stated provisions regarding waiver or reduction of fees, 
see Sec.  171.16, the Department retains the administrative discretion 
to not assess fees if it is in the best interests of the government to 
do so.



Sec.  171.15  Miscellaneous fee provisions.

    (a) Charging interest. The Department shall begin assessing interest 
charges on an unpaid bill starting on the 31st day following the day on 
which the bill was sent. The fact that a fee has been received by the 
Department within the thirty-day grace period, even if not

[[Page 739]]

processed, shall stay the accrual of interest. Interest will be at the 
rate prescribed in 31 U.S.C. 3717 and shall accrue from the date of the 
billing.
    (b) Charges for unsuccessful search or if records are withheld. The 
Department may assess charges for time spent searching, even if it fails 
to locate the records or if the records located are determined to be 
exempt from disclosure.
    (c) Advance payment. The Department may not require a requester to 
make an advance payment, i.e., payment before work is commenced or 
continued on a request, unless:
    (1) It estimates or determines that allowable charges that a 
requester may be required to pay are likely to exceed $250. In such a 
case, the Department shall notify the requester of the likely cost and 
obtain satisfactory assurance of full payment where the requester has a 
history of prompt payment of FOIA fees, or shall, in its discretion, 
require an advance payment of an amount up to the full estimated charges 
in the case of requesters with no history of payment; or
    (2) A requester has previously failed to pay an assessed fee within 
30 days of the date of its billing. In such a case, the Department shall 
require the requester to pay the full amount previously owed plus any 
applicable interest and to make an advance payment of the full amount of 
the estimated fee before the Department begins to process a new or 
pending request from that requester.
    (3) If a requester has failed to pay a fee properly charged by 
another U.S. government agency in a FOIA case, the Department may 
require proof that such fee has been paid before processing a new or 
pending request from that requester.
    (4) When the Department acts under paragraph (c)(1) or (2) of this 
section, the administrative time limits prescribed in the FOIA, 5 U.S.C. 
552(a)(6) (i.e., 20 working days from receipt of initial requests and 20 
working days from receipt of appeals, plus permissible extensions of 
these time limits), will begin only after the Department has received 
fee payments described in paragraphs (c)(1) and (2) of this section.
    (d) Aggregating requests. When the Department reasonably believes 
that a requester, or a group of requesters acting in concert, has 
submitted multiple requests involving related matters solely to avoid 
payment of fees, the Department may aggregate those requests for 
purposes of assessing processing fees.
    (e) Effect of the Debt Collection Act of 1982, as amended. The 
Department shall comply with provisions of the Debt Collection Act, 
including disclosure to consumer reporting agencies and use of 
collection agencies, where appropriate, to effect repayment.
    (f) Itemization of charges. The Department shall, where possible, 
provide the requester with a breakdown of fees charged indicating how 
much of the total charge is for search, review, and/or duplication for 
each specific request.



Sec.  171.16  Waiver or reduction of fees.

    (a) Fees otherwise chargeable in connection with a request for 
disclosure of a record shall be waived or reduced where the requester 
seeks a waiver or reduction of fees and the Department determines, in 
its discretion, 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.
    (1) In deciding whether disclosure of the requested information is 
in the public interest because it is likely to contribute significantly 
to public understanding of operations or activities of the government, 
the Department shall consider all four of the following factors:
    (i) The subject of the request must concern identifiable operations 
or activities of the Federal Government, with a connection that is 
direct and clear, not remote or attenuated.
    (ii) Disclosure of the requested records must be meaningfully 
informative about government operations or activities in order to be 
``likely to contribute'' to an increased public understanding of those 
operations or activities. The disclosure of information that already is 
in the public domain, in either the same or a substantially identical 
form, would not contribute to such understanding where nothing new would 
be added to the public's understanding.

[[Page 740]]

    (iii) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public shall be 
considered. It shall be presumed that a representative of the news media 
will satisfy this consideration.
    (iv) The public's understanding of the subject in question must be 
enhanced by the disclosure to a significant extent.
    (2) In order to determine whether disclosure of the information is 
not primarily in the commercial interest of the requester, the 
Department will consider the following factors:
    (i) The existence and magnitude of a commercial interest, i.e., 
whether the requester has a commercial interest that would be furthered 
by the requested disclosure; and, if so,
    (ii) The primary interest in disclosure, i.e., whether disclosure is 
primarily in the commercial interest of the requester.
    (iii) Requests for purposes of writing a book, an article, or other 
publication will not be considered a commercial purpose.
    (b) The Department may refuse to consider waiver or reduction of 
fees for requesters from whom unpaid fees remain owed to the Department 
for another FOIA request.
    (c) Where only some of the records to be released satisfy the 
requirements for a waiver or reduction of fees, a waiver or reduction 
shall be granted for only those records.
    (d) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the Department and should address the 
criteria referenced above. A requester may submit a fee waiver request 
at a later time so long as the underlying record request is pending or 
on administrative appeal. When a requester who has committed to pay fees 
subsequently asks for a waiver of those fees and that waiver is denied, 
the requester shall be required to pay any costs incurred up to the date 
the fee waiver request was received.
    (e) The Division Chief of the Requester Liaison Division in IPS will 
issue all initial decisions on whether to grant or deny requests for a 
fee waiver. A decision to refuse to waive or reduce fees may be appealed 
to the Director of IPS within 30 calendar days of the date of the 
Department's refusal letter. See Sec.  171.4 for address information. A 
decision in writing on the appeal shall be issued within 20 working days 
of the receipt of the appeal.



Sec.  171.17  Resolving disputes.

    The Office of Government Information Services (OGIS) in the National 
Archives and Records Administration is charged with offering mediation 
services to resolve disputes between persons making FOIA requests and 
Federal agencies as a non-exclusive alternative to litigation. 
Additionally, the FOIA directs the Department's FOIA Public Liaison to 
assist in the resolution of disputes. The Department will inform 
requesters in its agency appeal response letter of services offered by 
OGIS and the FOIA Public Liaison. Requesters may reach the Department's 
FOIA Public Liaison at Office of Information Programs and Services, A/
GIS/IPS/PP/LA, U.S. Department of State, Washington, DC 20522-8100, or 
at (202) 261-8484. Requesters may contact OGIS at Office of Government 
Information Services (OGIS), National Archives and Records 
Administration, 8601 Adelphi Road, College Park, MD 20740-6001; at 
[email protected]; and at (202) 741-5770, or toll-free at (877) 684-6448.



Sec.  171.18  Preservation of records

    The Department shall preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized 
pursuant to title 44 of the United States Code or the General Records 
Schedule 14 of the National Archives and Records Administration. Records 
shall not be disposed of or destroyed while they are the subject of a 
pending request, appeal, or lawsuit under the FOIA.

[[Page 741]]



                    Subpart C_Privacy Act Provisions



Sec.  171.20  Purpose and scope.

    This subpart contains the rules that the Department follows under 
the Privacy Act of 1974 (PA), 5 U.S.C. 552a, as amended. These rules 
should be read together with the text of the statute, which provides 
additional information about records maintained on individuals. The 
rules in this subpart apply to all records in systems of records 
maintained by the Department that are retrieved by an individual's name 
or personal identifier. They describe the procedures by which 
individuals may request access to records about themselves, request 
amendment or correction of those records, and request an accounting of 
disclosures of those records by the Department. If any records retrieved 
pursuant to an access request under the PA are found to be exempt from 
access under that Act, they will be processed for possible disclosure 
under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended. 
No fees shall be charged for access to or amendment of PA records.



Sec.  171.21  Definitions.

    As used in this subpart, the following definitions shall apply:
    (a) Individual means a citizen or a legal permanent resident alien 
(LPR) of the United States.
    (b) Maintain includes maintain, collect, use, or disseminate.
    (c) Record means any item, collection, or grouping of information 
about an individual that is maintained by the Department and that 
contains the individual's name or the identifying number, symbol, or 
other identifying particular assigned to the individual, such as a 
finger or voice print or photograph.
    (d) System of records means a group of any records under the control 
of the Department from which information is retrieved by the name of an 
individual or by some identifying number, symbol, or other identifying 
particular assigned to an individual.



Sec.  171.22  Request for access to records.

    (a) In general. Requests for access to records under the PA must be 
made in writing and mailed to the Office of Information Programs and 
Service, the Office of Passport Services, or the Office of Inspector 
General at the addresses given in Sec.  171.4. The Director of the 
Office of Information Programs and Services (IPS) is responsible for 
acting on all PA requests for Department records except for requests 
received directly by the Office of Inspector General, which processes 
its own requests for information, and the Office of Passport Services 
within the Bureau of Consular Affairs which receives directly and 
processes its own PA requests for information as described in PA System 
of Record Notice 26. Once received by IPS, all processing of PA requests 
coming under the jurisdiction of the Bureau of Consular Affairs/Visa 
Services Office and Overseas Citizens Services, the Bureau of Diplomatic 
Security, the Bureau of Human Resources, the Office of Medical Services, 
and the Foreign Service Grievance Board (FSGB) are handled by those 
bureaus or offices instead of IPS.
    (b) Description of records sought. Requests for access should 
describe the requested record(s) in sufficient detail to permit 
identification of the record(s). At a minimum, requests should include 
the individual's full name (including maiden name, if appropriate) and 
any other names used, current complete mailing address, and date and 
place of birth (city, state and country). Helpful data includes the 
approximate time period of the record and the circumstances that give 
the individual reason to believe that the Department maintains a record 
under the individual's name or personal identifier, and, if known, the 
system of records in which the record is maintained. In certain 
instances, it may be necessary for the Department to request additional 
information from the requester, either to ensure a full search, or to 
ensure that a record retrieved does in fact pertain to the individual.
    (c) Verification of personal identity. The Department will require 
reasonable identification of individuals requesting records about 
themselves under the PA's access provisions to ensure that records are 
only accessed by the proper persons. Requesters must state their full 
name, current address,

[[Page 742]]

citizenship or legal permanent resident alien status, and date and place 
of birth (city, state, and country). The request must be signed, and the 
requester's signature must be either notarized or made under penalty of 
perjury pursuant to 28 U.S.C. 1746. If the requester seeks records under 
another name the requester has used, a statement, under penalty of 
perjury, that the requester has also used the other name must be 
included. Requesters seeking access to copies of the Passport Office's 
passport records must meet the requirements in paragraph (d) of this 
section.
    (d) Special requirements for passport records. Given the sensitive 
nature of passport records and their use, requesters seeking access to 
copies of the Passport Office's passport records under the PA must 
submit a letter that is either notarized or made under penalty of 
perjury pursuant to 28 U.S.C. 1746, which includes the full name at 
birth and any subsequent name changes of the individual whose records 
are being requested (if submitting the request on behalf of a minor, 
provide the representative's full name as well); the date and place of 
birth of the individual whose records are being requested; the 
requester's current mailing address; and, if available, daytime 
telephone number and email address; the date or estimated date the 
passport(s) was issued; the passport number of the person whose records 
are being sought, if known; and any other information that will help to 
locate the records. The requester must also include a clear copy of both 
sides of the requester's valid Government-issued photo identification, 
e.g., a driver's license.
    (e) Authorized third party access. The Department shall process all 
properly authorized third party requests, as described in this section, 
under the PA. In the absence of proper authorization from the individual 
to whom the records pertain, the Department will process third party 
requests under the FOIA. The Department's form, DS-4240, may be used to 
certify identity and provide third party authorization.
    (1) Parents and guardians of minor children. Upon presentation of 
acceptable documentation of the parental or guardian relationship, a 
parent or guardian of a U.S. citizen or LPR minor (an unmarried person 
under the age of 18) may, on behalf of the minor, request records under 
the PA pertaining to the minor. In any case, U.S. citizen or LPR minors 
may request such records on their own behalf.
    (2) Guardians. A guardian of an individual who has been declared by 
a court to be incompetent may act for and on behalf of the incompetent 
individual upon presentation of appropriate documentation of the 
guardian relationship.
    (3) Authorized representatives or designees. When an individual 
wishes to authorize another person or persons access to his or her 
records, the individual may submit, in addition to the identity 
verification information described in paragraph (c) or paragraph (d) of 
this section if the request is for passport records, a signed statement 
from the individual to whom the records pertain, either notarized or 
made under penalty of perjury pursuant to 28 U.S.C. 1746, giving the 
Department authorization to release records about the individual to the 
third party. The designated third party must submit identity 
verification information described in paragraph c. Third party 
requesters seeking access to copies of the Passport Office's records 
must submit a clear copy of both sides of a valid Government-issued 
photo identification (e.g., a driver's license) in addition to the other 
information described above.
    (f) Referrals and consultations. If the Department determines that 
records retrieved as responsive to the request were created by another 
agency, it ordinarily will refer the records to the originating agency 
for direct response to the requester. If the Department determines that 
Department records retrieved as responsive to the request are of 
interest to another agency, it may consult with the other agency before 
responding to the request. The Department may make agreements with other 
agencies to eliminate the need for consultations or referrals for 
particular types of records.
    (g) Records relating to civil actions. Nothing in this subpart 
entitles an individual to access to any information

[[Page 743]]

compiled in reasonable anticipation of a civil action or proceeding.
    (h) Time limits. The Department will acknowledge the request 
promptly and furnish the requested information as soon as possible 
thereafter.



Sec.  171.23  Request to amend or correct records.

    (a) An individual has the right to request that the Department amend 
a record pertaining to the individual that the individual believes is 
not accurate, relevant, timely, or complete.
    (b) Requests to amend records must be in writing and mailed or 
delivered to the Office of Information Programs and Services at the 
address given in Sec.  171.4, with ATTENTION: PRIVACY ACT AMENDMENT 
REQUEST written on the envelope. IPS will coordinate the review of the 
request with the appropriate offices of the Department. The Department 
will require verification of personal identity as provided in section 
171.22(c) before it will initiate action to amend a record. Amendment 
requests should contain, at a minimum, identifying information needed to 
locate the record in question, a description of the specific correction 
requested, and an explanation of why the existing record is not 
accurate, relevant, timely, or complete. The request must be signed, and 
the requester's signature must be either notarized or made under penalty 
of perjury pursuant to 28 U.S.C. 1746. The requester should submit as 
much pertinent documentation, other information, and explanation as 
possible to support the request for amendment.
    (c) All requests for amendments to records shall be acknowledged 
within 10 working days.
    (d) In reviewing a record in response to a request to amend, the 
Department shall review the record to determine if it is accurate, 
relevant, timely, and complete.
    (e) If the Department agrees with an individual's request to amend a 
record, it shall:
    (1) Advise the individual in writing of its decision;
    (2) Amend the record accordingly; and
    (3) If an accounting of disclosure has been made, advise all 
previous recipients of the record of the amendment and its substance.
    (f) If the Department denies an individual's request to amend a 
record, it shall advise the individual in writing of its decision and 
the reason for the refusal, and the procedures for the individual to 
request further review. See Sec.  171.25.



Sec.  171.24  Request for an accounting of record disclosures.

    (a) How made. Except where accountings of disclosures are not 
required to be kept, as set forth in paragraph (b) of this section, or 
where accountings of disclosures do not need to be provided to a 
requesting individual pursuant to 5 U.S.C. 552a(c)(3), an individual has 
a right to request an accounting of any disclosure that the Department 
has made to another person, organization, or agency of any record about 
an individual. This accounting shall contain the date, nature, and 
purpose of each disclosure as well as the name and address of the 
recipient of the disclosure. Any request for accounting should identify 
each particular record in question and may be made by writing directly 
to the Office of Information Programs and Services at the address given 
in Sec.  171.4.
    (b) Where accountings not required. The Department is not required 
to keep an accounting of disclosures in the case of:
    (1) Disclosures made to employees within the Department who have a 
need for the record in the performance of their duties; and
    (2) Disclosures required under the FOIA.



Sec.  171.25  Appeals from denials of PA amendment requests.

    (a) If the Department denies a request for amendment of such 
records, the requester shall be informed of the reason for the denial 
and of the right to appeal the denial to the Appeals Review Panel. Any 
such appeal must be postmarked within 60 working days of the date of the 
Department's denial letter and sent to: Appeals Officer, Appeals Review 
Panel, Office of Information Programs and Services, at the address set 
forth in Sec.  171.4.

[[Page 744]]

    (b) Appellants should submit an administrative appeal of any denial, 
in whole or in part, of a request for access to FSGB records under the 
PA to IPS at the above address. IPS will assign a tracking number to the 
appeal and forward it to the FSGB, which is an independent body, for 
adjudication.
    (c) The Appeals Review Panel will decide appeals from denials of PA 
amendment requests within 30 business days, unless the Panel extends 
that period for good cause shown, from the date when it is received by 
the Panel.
    (d) Appeals Review Panel Decisions will be made in writing, and 
appellants will receive notification of the decision. A reversal will 
result in reprocessing of the request in accordance with that decision. 
An affirmance will include a brief statement of the reason for the 
affirmance and will inform the appellant that the decision of the Panel 
represents the final decision of the Department and of the right to seek 
judicial review of the Panel's decision, when applicable.
    (e) If the Panel's decision is that a record shall be amended in 
accordance with the appellant's request, the Chairman shall direct the 
office responsible for the record to amend the record, advise all 
previous recipients of the record of the amendment and its substance (if 
an accounting of previous disclosures has been made), and so advise the 
individual in writing.
    (f) If the Panel's decision is that the amendment request is denied, 
in addition to the notification required by paragraph (d) of this 
section, the Chairman shall advise the appellant:
    (1) Of the right to file a concise Statement of Disagreement stating 
the reasons for disagreement with the decision of the Department;
    (2) Of the procedures for filing the Statement of Disagreement;
    (3) That any Statement of Disagreement that is filed will be made 
available to anyone to whom the record is subsequently disclosed, 
together with, at the discretion of the Department, a brief statement by 
the Department summarizing its reasons for refusing to amend the record;
    (4) That prior recipients of the disputed record will be provided a 
copy of any statement of disagreement, to the extent that an accounting 
of disclosures was maintained.
    (g) If the appellant files a Statement of Disagreement under 
paragraph (f) of this section, the Department will clearly annotate the 
record so that the fact that the record is disputed is apparent to 
anyone who may subsequently access the record. When the disputed record 
is subsequently disclosed, the Department will note the dispute and 
provide a copy of the Statement of Disagreement. The Department may also 
include a brief summary of the reasons for not amending the record. 
Copies of the Department's statement shall be treated as part of the 
individual's record for granting access; however, it will not be subject 
to amendment by an individual under this part.



Sec.  171.26  Exemptions.

    Systems of records maintained by the Department are authorized to be 
exempt from certain provisions of the PA under both general and specific 
exemptions set forth in the Act. In utilizing these exemptions, the 
Department is exempting only those portions of systems that are 
necessary for the proper functioning of the Department and that are 
consistent with the PA. Where compliance would not interfere with or 
adversely affect the law enforcement process, and/or where it may be 
appropriate to permit individuals to contest the accuracy of the 
information collected, the applicable exemption may be waived, either 
partially or totally, by the Department or the OIG, in the sole 
discretion of the Department or the OIG, as appropriate. Records exempt 
under 5 U.S.C. 552a(j) or (k) by the originator of the record remain 
exempt if subsequently incorporated into any Department system of 
records, provided the reason for the exemption remains valid and 
necessary.
    (a) General exemptions. If exempt records are the subject of an 
access request, the Department will advise the requester of their 
existence and of the name and address of the source agency, unless that 
information is itself exempt from disclosure.
    (1) Individuals may not have access to records maintained by the 
Department that are maintained or originated

[[Page 745]]

by the Central Intelligence Agency under 5 U.S.C. 552a(j)(1).
    (2) In accordance with 5 U.S.C. 552a(j)(2), individuals may not have 
access to records maintained or originated by an agency or component 
thereof that performs as its principal function any activity pertaining 
to the enforcement of criminal laws, including police efforts to 
prevent, control, or reduce crime or to apprehend criminals, and the 
activities of prosecutors, courts, correctional, probation, pardon, or 
parole authorities, and which consists of:
    (i) Information compiled for the purpose of identifying individual 
criminal offenders and alleged offenders and consisting only of 
identifying data and notations of arrests, the nature and disposition of 
criminal charges, sentencing, confinement, release, and parole and 
probation status;
    (ii) Information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or
    (iii) Reports identifiable to an individual compiled at any stage of 
the process of enforcement of the criminal laws from arrest or 
indictment through release from supervision. The reason for invoking 
these exemptions is to ensure effective criminal law enforcement 
processes. Records maintained by the Department in the following systems 
of records are exempt from all of the provisions of the PA except 
paragraphs (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (e)(7), 
(e)(9), (e)(10), and (e)(11), and (i), to the extent to which they meet 
the criteria of section (j)(2) of 5 U.S.C. 552a. The names of the 
systems correspond to those published in the Federal Register by the 
Department.
    Email Archive Management Records, STATE-01.
    Office of Inspector General Investigation Management System. STATE-
53.
    Information Access Program Records. STATE-35.
    Risk Analysis and Management. STATE-78.
    Security Records. STATE-36.
    (b) Specific exemptions. Portions of the following systems of 
records are exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1), and (4), (G), 
(H), and (I), and (f). The names of the systems correspond to those 
published in the Federal Register by the Department.
    (1) Exempt under 5 U.S.C. 552a(k)(1). Records contained within the 
following systems of records are exempt under this section to the extent 
that they are subject to the provisions of 5 U.S.C. 552(b)(1).
    Board of Appellate Review Records. STATE-02.
    Congressional Correspondence. STATE-43.
    Congressional Travel Records. STATE-44.
    Coordinator for the Combating of Terrorism Records. STATE-06.
    Email Archive Management Records. STATE-01.
    External Research Records. STATE-10.
    Extradition Records. STATE-11.
    Family Advocacy Case Records. STATE-75.
    Foreign Assistance Inspection Records. STATE-48.
    Human Resources Records. STATE-31.
    Information Access Programs Records. STATE-35.
    Intelligence and Research Records. STATE-15.
    International Organizations Records. STATE-17.
    Law of the Sea Records. STATE-19.
    Legal Case Management Records. STATE-21.
    Munitions Control Records. STATE-42.
    Overseas Citizens Services Records. STATE-05.
    Passport Records. STATE-26.
    Personality Cross Reference Index to the Secretariat Automated Data 
Index. STATE-28.
    Personality Index to the Central Foreign Policy Records. STATE-29.
    Personnel Payroll Records. STATE-30.
    Office of Inspector General Investigation Management System. STATE-
53.
    Records of the Office of the Assistant Legal Adviser for 
International Claims and Investment Disputes. STATE-54.
    Risk Analysis and Management Records. STATE-78.
    Rover Records. STATE-41.

[[Page 746]]

    Records of Domestic Accounts Receivable. STATE-23.
    Records of the Office of White House Liaison. STATE-34.
    Refugee Records. STATE-59.
    Security Records. STATE-36.
    Visa Records. STATE-39.
    (2) Exempt under 5 U.S.C. 552a(k)(2). Records contained within the 
following systems of records are exempt under this section to the extent 
that they consist of investigatory material compiled for law enforcement 
purposes, subject to the limitations set forth in 5 U.S.C. 552a(k)(2).
    Board of Appellate Review Records. STATE-02.
    Coordinator for the Combating of Terrorism Records. STATE-06.
    Email Archive Management Records. STATE-01.
    Extradition Records. STATE-11.
    Family Advocacy Case Records. STATE-75
    Foreign Assistance Inspection Records. STATE-48.
    Garnishment of Wages Records. STATE-61.
    Information Access Program Records. STATE-35.
    Intelligence and Research Records. STATE-15.
    Munitions Control Records. STATE-42.
    Overseas Citizens Services Records. STATE-05.
    Passport Records. STATE-26.
    Personality Cross Reference Index to the Secretariat Automated Data 
Index. STATE-28.
    Personality Index to the Central Foreign Policy Records. STATE-29.
    Office of Foreign Missions Records, STATE-81.
    Office of Inspector General Investigation Management System. STATE-
53.
    Risk Analysis and Management Records. STATE-78.
    Security Records. STATE-36.
    Visa Records. STATE-39.
    (3) Exempt under 5 U.S.C. 552a(k)(3). Records contained within the 
following systems of records are exempt under this section to the extent 
that they are maintained in connection with providing protective 
services pursuant to 18 U.S.C. 3056.
    Email Archive Management Records. STATE-01.
    Extradition Records. STATE-11.
    Information Access Programs Records. STATE-35.
    Intelligence and Research Records. STATE-15.
    Overseas Citizens Services Records. STATE-05.
    Passport Records. STATE-26.
    Personality Cross-Reference Index to the Secretariat Automated Data 
Index. STATE-28.
    Personality Index to the Central Foreign Policy Records. STATE-29.
    Security Records. STATE-36.
    Visa Records. STATE-39.
    (4) Exempt under 5 U.S.C. 552a(k)(4). Records contained within the 
following systems of records are exempt under this section to the extent 
that they are required by statute to be maintained and are used solely 
as statistical records.
    Email Archive Management Records. STATE-01.
    Foreign Service Institute Records. STATE-14.
    Human Resources Records. STATE-31.
    Information Access Programs Records. STATE-35.
    Overseas Citizens Services Records, STATE-05
    Personnel Payroll Records. STATE-30.
    Security Records. STATE-36.
    (5) Exempt under 5 U.S.C. 552a(k)(5). Records contained within the 
following systems of records are exempt under this section to the extent 
that they consist of investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, military service, Federal contracts, or 
access to classified information, but only to the extent that disclosure 
of such material would reveal the identity of a confidential informant.
    Email Archive Management Records. STATE-01.
    Records Maintained by the Office of Civil Rights. STATE-09.
    Foreign Assistance Inspection Records. STATE-48.
    Foreign Service Grievance Board Records. STATE-13.
    Human Resources Records. STATE-31.

[[Page 747]]

    Information Access Programs Records. STATE-35.
    Legal Adviser Attorney Employment Application Records. STATE-20.
    Overseas Citizens Services Records. STATE-25.
    Personality Cross-Reference Index to the Secretariat Automated Data 
Index. STATE-28.
    Office of Inspector General Investigation Management System. STATE-
53.
    Records of the Office of White House Liaison. STATE-34.
    Risk Analysis and Management Records. STATE-78.
    Rover Records. STATE-41.
    Security Records. STATE-36.
    Senior Personnel Appointments Records. STATE-47.
    (6) Exempt under 5 U.S.C. 552a(k)(6). Records contained within the 
following systems of records are exempt under this section to the extent 
that they consist of testing or examination material used solely to 
determine individual qualifications for appointment or promotion in the 
Federal service the disclosure of which would compromise the objectivity 
or fairness of the testing or examination process.
    Email Archive Management Records. STATE-01.
    Foreign Service Institute Records. STATE-14.
    Human Resources Records. STATE-31.
    Information Access Programs Records. STATE-35.
    Records Maintained by the Office of Civil Rights. STATE-09
    Security Records. STATE-36.
    (7) Exempt under 5 U.S.C. 552a(k)(7). Records contained within the 
following systems of records are exempt under this section to the extent 
that they consist of evaluation material used to determine potential for 
promotion in the armed services, but only to the extent that such 
disclosure would reveal the identity of a confidential informant.
    Email Archive Management Records. STATE-01.
    Overseas Citizens Services Records. STATE-25.
    Human Resources Records. STATE-31.
    Information Access Programs Records. STATE-35.
    Personality Cross-Reference Index to the Secretariat Automated Data 
Index. STATE-28.
    Personality Index to the Central Foreign Policy Records. STATE-29.

[81 FR 19865, Apr. 6, 2016, as amended at 81 FR 33590, May 27, 2016; 85 
FR 13483, Mar. 9, 2020]



    Subpart D_Process To Request Public Financial Disclosure Reports



Sec.  171.30  Purpose and scope.

    This subpart sets forth the process by which persons may request 
access to public financial disclosure reports filed with the Department 
in accordance with sections 101 and 103(l) of the Ethics in Government 
Act of 1978, 5 U.S.C. app. 101 and 103(l), as amended. The retention, 
public availability, and improper use of these reports are governed by 5 
U.S.C. app. 105 and 5 CFR 2634.603.



Sec.  171.31  Requests.

    Requests for access to public financial disclosure reports filed 
with the Department should be made by submitting a completed Office of 
Government Ethics request form, OGE Form 201, to [email protected] 
or the Office of the Assistant Legal Adviser for Ethics and Financial 
Disclosure, U.S. Department of State, 2201 C Street NW., Washington, DC 
20520. The OGE Form 201 may be obtained by visiting http://www.oge.gov 
or writing to the address above.



   PART 172_SERVICE OF PROCESS; PRODUCTION OR DISCLOSURE OF OFFICIAL 
   INFORMATION IN RESPONSE TO COURT ORDERS, SUBPOENAS, NOTICES OF DEPOSITIONS, 
   REQUESTS FOR ADMISSIONS, INTERROGATORIES, OR SIMILAR REQUESTS OR DEMANDS 
   IN CONNECTION WITH FEDERAL OR STATE LITIGATION; EXPERT TESTIMONY--
   Table of Contents



Sec.
172.1 Purpose and scope; definitions.
172.2 Service of summonses and complaints.
172.3 Service of subpoenas, court orders, and other demands or requests 
          for official information or action.

[[Page 748]]

172.4 Testimony and production of documents prohibited unless approved 
          by appropriate Department officials.
172.5 Procedure when testimony or production of documents is sought; 
          general.
172.6 Procedure when response to demand is required prior to receiving 
          instructions.
172.7 Procedure in the event of an adverse ruling.
172.8 Considerations in determining whether the Department will comply 
          with a demand or request.
172.9 Prohibition on providing expert or opinion testimony.

    Authority: 5 U.S.C. 301; 8 U.S.C. 1202(f); 22 U.S.C. 2651a, 2664, 
3926.

    Source: 57 FR 32896, July 24, 1992, unless otherwise noted.



Sec.  172.1  Purpose and scope; definitions.

    (a) This part sets forth the procedures to be followed with respect 
to:
    (1) Service of summonses and complaints or other requests or demands 
directed to the Department of State (Department) or to any Department 
employee or former employee in connection with federal or state 
litigation arising out of or involving the performance of official 
activities of the Department; and
    (2) The oral or written disclosure, in response to subpoenas, 
orders, or other requests or demands of federal or state judicial or 
quasi-judicial authority (collectively, ``demands''), whether civil or 
criminal in nature, or in response to requests for depositions, 
affidavits, admissions, responses to interrogatories, document 
production, or other litigation-related matters, pursuant to the Federal 
Rules of Civil Procedure, the Federal Rules of Criminal Procedure, or 
applicable state rules (collectively, ``requests''), of any material 
contained in the files of the Department, any information relating to 
material contained in the files of the Department, or any information 
acquired while the subject of the demand or request is or was an 
employee of the Department as part of the performance of that person's 
duties or by virtue of that person's official status.
    (b) For purposes of this part, and except as the Department may 
otherwise determine in a particular case, the term employee includes the 
Secretary and former Secretaries of State, and all employees and former 
employees of the Department of State or other federal agencies who are 
or were appointed by, or subject to the supervision, jurisdiction, or 
control of the Secretary of State or his Chiefs of Mission, whether 
residing or working in the United States or abroad, including United 
States nationals, foreign nationals, and contractors.
    (c) For purposes of this part, the term litigation encompasses all 
pre-trial, trial, and post-trial stages of all judicial or 
administrative actions, hearings, investigations, or similar proceedings 
before courts, commissions, boards (including the Board of Appellate 
Review), or other judicial or quasi-judicial bodies or tribunals, 
whether criminal, civil, or administrative in nature. This part governs, 
inter alia, responses to discovery requests, depositions, and other pre-
trial, trial, or post-trial proceedings, as well as responses to 
informal requests by attorneys or others in situations involving 
litigation. However, this part shall not apply to any claims by 
Department of State employees (present or former), or applicants for 
Department employment, for which jurisdiction resides with the U.S. 
Equal Employment Opportunity Commission; the U.S. Merit Systems 
Protection Board; the Office of Special Counsel; the Federal Labor 
Relations Authority; the Foreign Service Labor Relations Board; the 
Foreign Service Grievance Board; or a labor arbitrator operating under a 
collective bargaining agreement between the Department and a labor 
organization representing Department employees; or their successor 
agencies or entities.
    (d) For purposes of this part, official information means all 
information of any kind, however stored, that is in the custody and 
control of the Department, relates to information in the custody and 
control of the Department, or was acquired by Department employees as 
part of their official duties or because of their official status within 
the Department while such individuals were employed by or served on 
behalf of the Department.
    (e) Nothing in this part affects disclosure of information under the 
Freedom of Information Act (FOIA), 5 U.S.C. 552, the Privacy Act, 5 
U.S.C. 552a, Executive Order 13526 (3 CFR, 2009 Comp., p.

[[Page 749]]

298), the Government in the Sunshine Act, 5 U.S.C. 552b, the 
Department's implementing regulations in 22 CFR part 171 or pursuant to 
congressional subpoena. Nothing in this part otherwise permits 
disclosure of information by the Department or its employees except as 
provided by statute or other applicable law.
    (f) This part is intended only to inform the public about Department 
procedures concerning the service of process and responses to demands or 
requests and is not intended to and does not create, and may not be 
relied upon to create any right or benefit, substantive or procedural, 
enforceable at law by a party against the Department or the United 
States.
    (g) Nothing in this part affects:
    (1) The disclosure of information during the course of legal 
proceedings in non-United States courts, commissions, boards, or other 
judicial or quasi-judicial bodies or tribunals; or
    (2) The rules and procedures, under applicable U.S. law and 
international conventions, governing diplomatic and consular immunity.
    (h) Nothing in this part affects the disclosure of official 
information to other federal agencies or Department of Justice attorneys 
in connection with litigation conducted on behalf or in defense of the 
United States, its agencies, officers, and employees, or to federal, 
state, local, or foreign prosecuting and law enforcement authorities in 
conjunction with criminal law enforcement investigations, prosecutions, 
or other proceedings, e.g., extradition, deportation.

[57 FR 32896, July 24, 1992, as amended at 83 FR 17489, Apr. 20, 2018]



Sec.  172.2  Service of summonses and complaints.

    (a) Only the Executive Office of the Office of the Legal Adviser (L/
H-EX) is authorized to receive and accept summonses or complaints sought 
to be served upon the Department or Department employees. All such 
documents should be delivered or addressed to: The Executive Office, 
Office of the Legal Adviser, Suite 5.600, 600 19th Street NW., 
Washington DC 20522. (Note that the suite number is 5.600.)
    (b) In the event any summons or complaint described in Sec.  
172.1(a) is delivered to an employee of the Department other than in the 
manner specified in this part, such attempted service shall be 
ineffective, and the recipient thereof shall either decline to accept 
the proffered service or return such document under cover of a written 
communication which directs the person attempting to make service to the 
procedures set forth herein.
    (c) Except as otherwise provided Sec. Sec.  172.2(d) and 172.3(c), 
the Department is not an authorized agent for service of process with 
respect to civil litigation against Department employees purely in their 
personal, non-official capacity. Copies of summonses or complaints 
directed to Department employees in connection with legal proceedings 
arising out of the performance of official duties may, however, be 
served upon L/H-EX.
    (d) Although the Department is not an agent for the service of 
process upon its employees with respect to purely personal, non-official 
litigation, the Department recognizes that its employees stationed 
overseas should not use their official positions to evade their personal 
obligations and will, therefore, counsel and encourage Department 
employees to accept service of process in appropriate cases, and will 
waive applicable diplomatic or consular privileges and immunities when 
the Department determines that it is in the interest of the United 
States to do so.
    (e) Documents for which L/H-EX accepts service in official capacity 
only shall be stamped ``Service Accepted in Official Capacity Only''. 
Acceptance of service shall not constitute an admission or waiver with 
respect to jurisdiction, propriety of service, improper venue, or any 
other defense in law or equity available under the laws of rules 
applicable for the service of process.

[57 FR 32896, July 24, 1992, as amended at 80 FR 12082, Mar. 6, 2015; 80 
FR 30155, May 27, 2015; 83 FR 17489, Apr. 20, 2018]

[[Page 750]]



Sec.  172.3  Service of subpoenas, court orders, and other demands 
or requests for official information or action.

    (a) Except in cases in which the Department is represented by legal 
counsel who have entered an appearance or otherwise given notice of 
their representation, only L/EX is authorized to receive and accept 
subpoenas, or other demands or requests directed to the Department, or 
any component thereof, or its employees, or former employees, whether 
civil or criminal nature, for:
    (1) Material, including documents, contained in the files of the 
Department;
    (2) Information, including testimony, affidavits, declarations, 
admissions, responses to interrogatories, or informal statements, 
relating to material contained in the files of the Department or which 
any Department employee acquired in the course and scope of the 
performance of his official duties;
    (3) Garnishment or attachment of compensation of current or former 
employees; or
    (4) The performance or non-performance of any official Department 
duty.
    (b) In the event that any subpoena, demand, or request is sought to 
be delivered to a Department employee (including former employees) other 
than in the manner prescribed in paragraph (a) of this section, such 
attempted service shall be ineffective. Such employee shall, after 
consultation with the Office of the Legal Adviser, decline to accept the 
subpoena, demand or request or shall return them to the server under 
cover of a written communication referring to the procedures prescribed 
in this part.
    (c) Except as otherwise provided in this part, the Department is not 
an agent for service, or otherwise authorized to accept on behalf of its 
employees any subpoenas, show-cause orders, or similar compulsory 
process of federal or state courts, or requests from private individuals 
or attorneys, which are not related to the employees' official duties 
except upon the express, written authorization of the individual 
Department employee to whom such demand or request is directed.
    (d) Acceptance of such documents by L/EX does not constitute a 
waiver of any defenses that might otherwise exist with respect to 
service under the Federal Rules of Civil or Criminal Procedure or other 
applicable rules.



Sec.  172.4  Testimony and production of documents prohibited 
unless approved by appropriate Department officials.

    (a) No employee of the Department shall, in response to a demand or 
request in connection with any litigation, whether criminal or civil, 
provide oral or written testimony by deposition, declaration, affidavit, 
or otherwise concerning any information acquired while such person is or 
was an employee of the Department as part of the performance of that 
person's official duties or by virtue of that persons's official status, 
unless authorized to do so by the Director General of the Foreign 
Service and Director of Personnel (M/DGP) or the Legal Adviser (L), or 
delegates of either, following consultation between the two bureaus, or 
as authorized in Sec.  172.4(b).
    (b) With respect to the official functions of the Passport Office, 
the Visa Office, and the Office of Citizens Services, the Assistant 
Secretary of State for Consular Affairs or delegate thereof may, subject 
to concurrence by the Office of the Legal Adviser, authorize employees 
to provide oral or written testimony.
    (c) No employee shall, in response to a demand or request in 
connection with any litigation, produce for use at such proceedings any 
document or any material acquired as part of the performance of that 
employee's duties or by virtue of that employee's official status, 
unless authorized to do so by the Director General of the Foreign 
Service and Director of Personnel, the Legal Adviser, or the Assistant 
Secretary of State for Consular Affairs, or the delegates thereof, as 
appropriate, following consultations between the concerned bureaus.



Sec.  172.5  Procedure when testimony or production of documents is sought; 
general.

    (a) If official Department information is sought, through testimony 
or otherwise, by a request or demand, the

[[Page 751]]

party seeking such release or testimony must (except as otherwise 
required by federal law or authorized by the Office of the Legal 
Adviser) set forth in writing, and with as much specificity as possible, 
the nature and relevance of the official information sought. Subject to 
Sec.  172.7, Department employees may only produce, disclose, release, 
comment upon, or testify concerning those matters which were specified 
in writing and properly approved by the appropriate Department official 
designated in Sec.  172.4. See United States ex rel. Touhy v. Ragen, 340 
U.S. 462 (1951). The Office of the Legal Adviser may waive this 
requirement in appropriate circumstances.
    (b) To the extent it deems necessary or appropriate, the Department 
may also require from the party seeking such testimony or documents a 
plan of all reasonably foreseeable demands, including but not limited to 
the names of all employees and former employees from whom discovery will 
be sought, areas of inquiry, expected duration of proceedings requiring 
oral testimony, and identification of potentially relevant documents.
    (c) The appropriate Department official designated in Sec.  172.4 
will notify the Department employee and such other persons as 
circumstances may warrant of its decision regarding compliance with the 
request or demand.
    (d) The Office of the Legal Adviser will consult with the Department 
of Justice regarding legal representation for Department employees in 
appropriate cases.

[57 FR 32896, July 24, 1992, as amended at 83 FR 17489, Apr. 20, 2018]



Sec.  172.6  Procedure when response to demand is required 
prior to receiving instructions.

    (a) If a response to a demand is required before the appropriate 
Department official designated in Sec.  172.4 renders a decision, the 
Department will request that either a Department of Justice attorney or 
a Department attorney designated for the purpose:
    (1) Appear with the employee upon whom the demand has been made;
    (2) Furnish the court or other authority with a copy of the 
regulations contained in this part;
    (3) Inform the court or other authority that the demand has been, or 
is being, as the case may be, referred for the prompt consideration of 
the appropriate Department official; and
    (4) Respectfully request the court or authority to stay the demand 
pending receipt of the requested instructions.
    (b) In the event that an immediate demand for production or 
disclosure is made in circumstances which would preclude the proper 
designation or appearance of a Department of Justice or Department 
attorney on the employee's behalf, the employee shall respectfully 
request the demanding court or authority for a reasonable stay of 
proceedings for the purpose of obtaining instructions from the 
Department.

[57 FR 32896, July 24, 1992, as amended at 83 FR 17489, Apr. 20, 2018]



Sec.  172.7  Procedure in the event of an adverse ruling.

    If the court or other judicial or quasi-judicial authority declines 
to stay the effect of the demand in response to a request made pursuant 
to Sec.  172.6, or if the court or other authority rules that the demand 
must be complied with irrespective of the Department's instructions not 
to produce the material or disclose the information sought, the employee 
upon whom the demand has been made shall respectfully decline to comply 
with the demand, citing this part and United States ex rel. Touhy v. 
Ragen, 340 U.S. 462 (1951).



Sec.  172.8  Considerations in determining whether the Department 
will comply with a demand or request.

    (a) In deciding whether to comply with a demand or request, 
Department officials and attorneys shall consider, among others:
    (1) Whether such compliance would be unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rules of 
procedure governing the case or matter in which the demand arose;
    (2) Whether compliance is appropriate under the relevant substantive 
law concerning privilege or disclosure of information;
    (3) The public interest;

[[Page 752]]

    (4) The need to conserve the time of Department employees for the 
conduct of official business;
    (5) The need to avoid spending the time and money of the United 
States for private purposes;
    (6) The need to maintain impartiality between private litigants in 
cases where a substantial government interest is not implicated;
    (7) Whether compliance would have an adverse effect on performance 
by the Department of its mission and duties; and
    (8) The need to avoid involving the Department in controversial 
issues not related to its mission.
    (b) Among those demands and requests in response to which compliance 
will not ordinarily be authorized are those with respect to which, inter 
alia, any of the following factors exist:
    (1) Compliance would violate a statute or a rule of procedure;
    (2) Compliance would violate a specific regulation or executive 
order;
    (3) Compliance would reveal information properly classified in the 
interest of national security;
    (4) Compliance would reveal confidential commercial or financial 
information or trade secrets without the owner's consent;
    (5) Compliance would reveal the internal deliberative processes of 
the Executive Branch; or
    (6) Compliance would potentially impede or prejudice an on-going law 
enforcement investigation.



Sec.  172.9  Prohibition on providing expert or opinion testimony.

    (a) Except as provided in this section, and subject to 5 CFR 
2635.805, Department employees shall not provide opinion or expert 
testimony based upon information which they acquired in the scope and 
performance of their official Department duties, except on behalf of the 
United States or a party represented by the Department of Justice.
    (b) Upon a showing by the requestor of exceptional need or unique 
circumstances and that the anticipated testimony will not be adverse to 
the interests of the United States, the appropriate Department official 
designated in Sec.  172.4 may, consistent with 5 CFR 2635.805, in their 
discretion and with the concurrence of the Office of the Legal Adviser, 
grant special, written authorization for Department employees to appear 
and testify as expert witnesses at no expense to the United States.
    (c) If, despite the final determination of the appropriate 
Department official designated in Sec.  172.4, a court of competent 
jurisdiction or other appropriate authority orders the appearance and 
expert or opinion testimony of a Department employee, such employee 
shall immediately inform the Office of the Legal Adviser of such order. 
If the Office of the Legal Adviser determines that no further legal 
review of or challenge to the court's order will be made, the Department 
employee shall comply with the order. If so directed by the Office of 
the Legal Adviser, however, the employee shall respectfully decline to 
testify. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).



PART 173_AVAILABILITY OF PUBLIC DIPLOMACY PROGRAM MATERIAL 
IN THE UNITED STATES--Table of Contents



Sec.
173.1 Purpose and scope.
173.2 Definitions.
173.3 Availability of program material.
173.4 Terms of use and other compliance.
173.5 Fees.

    Authority: The United States Information and Educational Exchange 
Act of 1948, as amended (22 U.S.C. 1461, et seq.); Section 1078 of the 
National Defense Authorization Act for Fiscal Year 2013, Pub. L. 112-
239.

    Source: 79 FR 22017, Apr. 21, 2014, unless otherwise noted.



Sec.  173.1  Purpose and scope.

    This part contains the rules that the Department follows for 
responding to requests for the release within the United States of 
public diplomacy program material generated pursuant to the U.S. 
Information and Educational Exchange Act of 1948, as amended (22 U.S.C. 
1431, et seq.; ``the Smith-Mundt Act''). It is the Department's policy 
to make its program material available on its public Web site or via 
third-party platforms whenever doing so is consistent with the 
Department's mission and all statutory authorities, prohibitions, 
contractual obligations,

[[Page 753]]

principles, and standards. Requests for program material that is not 
available on the Department's public Web site or via third-party 
platforms must be submitted under the Freedom of Information Act (the 
``FOIA'') pursuant to the FOIA provisions of 22 CFR part 171, subpart B.



Sec.  173.2  Definitions.

    For the purposes of this part,
    (a) Program material shall mean information about the United States, 
its people and policies, intended for foreign audiences abroad, that the 
Department prepares or assists in preparing using public diplomacy funds 
and disseminates to foreign audiences outside of the United States 
pursuant to the Smith-Mundt Act and Section 208 of the Foreign Relations 
Authorization Act, Fiscal Years 1986 and 1987 (22 U.S.C. 1461-1a), as 
amended. Program Material includes, but is not limited to, electronic 
journals, pamphlets, books, maps, posters, videos, presentations, 
photos, games, curricula and other teaching materials, and certain 
social media and web-based interactive technology content produced in 
Washington, DC, as well as such materials and content produced at U.S. 
embassies abroad.
    (b) Request shall mean any attempt to access the Department's 
Program Material, including through the Department's public Web sites 
and third-party platforms, or through a direct inquiry to a Department 
official in connection with a speech or other engagement.
    (c) Requester shall mean any private person or entity that requests 
that the Department make Program Material available within the United 
States.



Sec.  173.3  Availability of program material.

    (a) The Department makes Program Material available to Requesters 
electronically through Department Web sites and/or various third-party 
platforms, where such material has been disseminated to audiences 
abroad. Once Program Material is published, it remains available in 
digital format until removed or archived by the Department at its 
discretion (see paragraph (c) of this section). For access to such 
Program Material, Requesters may visit www.state.gov/r.
    (b) As a general matter, Program Material published both 
electronically and in hard copy will be made available electronically 
through Department Web sites and/or various third-party platforms, 
although the Department reserves the right to make Program Material 
available in hard copy at its sole discretion. To the extent a Requester 
seeks Program Material that is not made available online through 
Department Web sites or third-party platforms, such material must be 
requested under the FOIA pursuant to the procedures outlined at 22 CFR 
part 171, subpart B.
    (c) The Department will remove Program Material from Department and 
third-party Web sites when it deems such material no longer relevant to 
the Department's public diplomacy mission. The Department will also 
remove Program Material when required by licensing agreements with 
third-party copyright holders. To the extent a Requester seeks Program 
Material that has been removed for whatever reason, such material must 
be requested under the FOIA pursuant to the procedures outlined at 22 
CFR part 171, Subpart B.
    (d) Once Program Material has been removed from the Department's Web 
site or third-party platforms, a determination will be made as to 
whether it is a permanent Department record under the Department's 
applicable Records Disposition Schedule (``RDS''). Permanent records 
will be transferred in their entirety to the National Archives and 
Records Administration (``NARA'') according to the RDS; see 36 CFR 
1256.98 for information about how to request Department Program Material 
that has been transferred to NARA. Material designated as ``temporary'' 
under the applicable RDS will be destroyed once it has been removed from 
the Department or third-party sites.



Sec.  173.4  Terms of use and other compliance.

    Requesters and users of Department Web sites, or third-party Web 
sites containing Program Material, are responsible for complying with 
the Terms of

[[Page 754]]

Use applicable to any such site. Requesters are also solely responsible 
for complying with any applicable statutes governing the use of such 
material and securing appropriate licenses for use of such material, if 
required.



Sec.  173.5  Fees.

    (a) The Department will make Program Material available online 
(i.e., in digital format) at no cost.
    (b) The Department may collect a fee for reimbursement of the 
reasonable costs incurred to fulfill requests for Program Material not 
available online. Such requests, including fees applicable thereto, 
shall be governed by part 171, subpart B of this subchapter.

[[Page 755]]



                  SUBCHAPTER S_INTERNATIONAL AGREEMENTS





PART 181_COORDINATION, REPORTING AND PUBLICATION 
OF INTERNATIONAL AGREEMENTS--Table of Contents



Sec.
181.1 Purpose and application.
181.2 Criteria.
181.3 Determinations.
181.4 Consultations with the Secretary of State.
181.5 Twenty-day rule for concluded agreements.
181.6 Documentation and certification.
181.7 Transmittal to the Congress.
181.8 Publication.
181.9 Internet Web site publication.

    Authority: 1 U.S.C. 112a, 112b; and 22 U.S.C. 2651a.

    Source: 46 FR 35918, July 13, 1981, unless otherwise noted.



Sec.  181.1  Purpose and application.

    (a) The purpose of this part is to implement the provisions of 1 
U.S.C. 112a and 112b, popularly known as the Case-Zablocki Act 
(hereinafter ``the Act''), on the reporting to Congress, coordination 
with the Secretary of State and publication of international agreements. 
This part applies to all agencies of the U.S. Government whose 
responsibilities include the negotiation and conclusion of international 
agreements. This part does not, however, constitute a delegation by the 
Secretary of State of the authority to engage in such activites. 
Further, it does not affect any additional requirements of law governing 
the relationship between particular agencies and the Secretary of State 
in connection with international negotiations and agreements, or any 
other requirements of law concerning the relationship between particular 
agencies and the Congress. The term agency as used in this part means 
each authority of the United States Government, whether or not it is 
within or subject to review by another agency.
    (b) Pursuant to the key legal requirements of the Act--full and 
timely disclosure to the Congress of all concluded agreements and 
consultation by agencies with the Secretary of State with respect to 
proposed agreements--every agency of the Government is required to 
comply with each of the provisions set out in this part in 
implementation of the Act. Nevertheless, this part is intended as a 
framework of measures and procedures which, it is recognized, cannot 
anticipate all circumstances or situations that may arise. Deviation or 
derogation from the provisions of this part will not affect the legal 
validity, under United States law or under international law, of 
agreements concluded, will not give rise to a cause of action, and will 
not affect any public or private rights established by such agreements.

[46 FR 35918, July 13, 1981, as amended at 61 FR 7071, Feb. 26, 1996]



Sec.  181.2  Criteria.

    (a) General. The following criteria are to be applied in deciding 
whether any undertaking, oral agreement, document, or set of documents, 
including an exchange of notes or of correspondence, constitutes an 
international agreement within the meaning of the Act, as well as within 
the meaning of 1 U.S.C. 112a, requiring the publication of international 
agreements. Each of the criteria except those in paragraph (a)(5) of 
this section must be met in order for any given undertaking of the 
United States to constitute an international agreement.
    (1) Identity and intention of the parties. A party to an 
international agreement must be a state, a state agency, or an 
intergovernmental organization. The parties must intend their 
undertaking to be legally binding, and not merely of political or 
personal effect. Documents intended to have political or moral weight, 
but not intended to be legally binding, are not international 
agreements. An example of the latter is the Final Act of the Helsinki 
Conference on Cooperation and Security in Europe. In addition, the 
parties must intend their undertaking to be governed by international 
law, although this intent need not be manifested by a third-party 
dispute settlement mechanism or any express reference to international 
law. In the absence of any provision in

[[Page 756]]

the arrangement with respect to governing law, it will be presumed to be 
governed by international law. This presumption may be overcome by clear 
evidence, in the negotiating history of the agreement or otherwise, that 
the parties intended the arrangement to be governed by another legal 
system. Arrangements governed solely by the law of the United States, or 
one of the states or jurisdictions thereof, or by the law of any foreign 
state, are not international agreements for these purposes. For example, 
a foreign military sales loan agreement governed in its entirety by U.S. 
law is not an international agreement.
    (2) Significance of the arrangement. Minor or trivial undertakings, 
even if couched in legal language and form, are not considered 
international agreements within the meaning of the Act or of 1 U.S.C. 
112a. In deciding what level of significance must be reached before a 
particular arrangement becomes an international agreement, the entire 
context of the transaction and the expectations and intent of the 
parties must be taken into account. The duration of the activities 
pursuant to the undertaking or the duration of the undertaking itself 
shall not be a factor in determining whether it constitutes an 
international agreement. It remains a matter of judgment based on all of 
the circumstances of the transaction. Determinations are made pursuant 
to Sec.  181.3. Examples of arrangements that may constitute 
international agreements are agreements that: (i) Are of political 
significance; (ii) involve substantial grants of funds or loans by the 
United States or credits payable to the United States; (iii) constitute 
a substantial commitment of funds that extends beyond a fiscal year or 
would be a basis for requesting new appropriations; (iv) involve 
continuing and/or substantial cooperation in the conduct of a particular 
program or activity, such as scientific, technical, or other 
cooperation, including the exchange or receipt of information and its 
treatment, or the pooling of data. However, individual research grants 
and contracts do not ordinarily constitute international agreements.
    (3) Specificity, including objective criteria for determining 
enforceability. International agreements require precision and 
specificity in the language setting forth the undertakings of the 
parties. Undertakings couched in vague or very general terms containing 
no objective criteria for determining enforceability or performance are 
not normally international agreements. Most frequently such terms 
reflect an intent not to be bound. For example, a promise to ``help 
develop a more viable world economic system'' lacks the specificity 
essential to constitute a legally binding international agreement. 
However, the intent of the parties is the key factor. Undertakings as 
general as those of, for example, Articles 55 and 56 of the United 
Nations Charter have been held to create internationally binding 
obligations intended as such by the parties.
    (4) Necessity for two or more parties. While unilateral commitments 
on occasion may be legally binding, they do not constitute international 
agreements. For example, a statement by the President promising to send 
money to Country Y to assist earthquake victims would not be an 
international agreement. It might be an important undertaking, but not 
all undertakings in international relations are in the form of 
international agreements. Care should be taken to examine whether a 
particular undertaking is truly unilateral in nature, or is part of a 
larger bilateral or multilateral set of undertakings. Moreover, 
``consideration,'' as that term is used in domestic contract law, is not 
required for international agreements.
    (5) Form. Form as such is not normally an important factor, but it 
does deserve consideration. Documents which do not follow the customary 
form for international agreements, as to matters such as style, final 
clauses, signatures, or entry into force dates, may or may not be 
international agreements. Failure to use the customary form may 
constitute evidence of a lack of intent to be legally bound by the 
arrangement. If, however, the general content and context reveal an 
intention to enter into a legally binding relationship, a departure from 
customary form will not preclude the arrangement from being an 
international agreement. Moreover, the title of the agreement

[[Page 757]]

will not be determinative. Decisions will be made on the basis of the 
substance of the arrangement, rather than on its denomination as an 
international agreement, a memorandum of understanding, exchange of 
notes, exchange of letters, technical arrangement, protocol, note 
verbale, aide-memoire, agreed minute, or any other name.
    (b) Agency-level agreements. Agency-level agreements are 
international agreements within the meaning of the Act and of 1 U.S.C. 
112a if they satisfy the criteria discussed in paragraph (a) of this 
section. The fact that an agreement is concluded by and on behalf of a 
particular agency of the United States Government, rather than the 
United States Government, does not mean that the agreement is not an 
international agreement. Determinations are made on the basis of the 
substance of the agency-level agreement in question.
    (c) Implementing agreements. An implementing agreement, if it 
satisfies the criteria discussed in paragraph (a) of this section, may 
be an international agreement, depending upon how precisely it is 
anticipated and identified in the underlying agreement it is designed to 
implement. If the terms of the implementing agreement are closely 
anticipated and identified in the underlying agreement, only the 
underlying agreement is considered and international agreement. For 
example, the underlying agreement might call for the sale by the United 
States of 1000 tractors, and a subsequent implementing agreement might 
require a first installment on this obligation by the sale of 100 
tractors of the brand X variety. In that case, the implementing 
agreement is sufficiently identified in the underlying agreement, and 
would not itself be considered an international agreement within the 
meaning of the Act or of 1 U.S.C. 112a. Project annexes and other 
documents which provide technical content for an umbrella agreement are 
not normally treated as international agreements. However, if the 
underlying agreement is general in nature, and the implementing 
agreement meets the specified criteria of paragraph (a) of this section, 
the implementing agreement might well be an international agreement. For 
example, if the underlying agreement calls for the conclusion of 
``agreements for agricultural assistance,'' but without further 
specificity, then a particular agricultural assistance agreement 
subsequently concluded in ``implementation'' of that obligation, 
provided it meets the criteria discussed in paragraph (a) of this 
section, would constitute an international agreement independent of the 
underlying agreement.
    (d) Extensions and modifications of agreements. If an undertaking 
constitutes an international agreement within the meaning of the Act and 
of 1 U.S.C. 112a, then a subsequent extension or modification of such an 
agreement would itself constitute an international agreement within the 
meaning of the Act and of 1 U.S.C. 112a.
    (e) Oral agreements. Any oral arrangement that meets the criteria 
discussed in paragraphs (a)(1)-(4) of this section is an international 
agreement and, pursuant to section (a) of the Act, must be reduced to 
writing by the agency that concluded the oral arrangement. In such 
written form, the arrangement is subject to all the requirements of the 
Act and of this part. Whenever a question arises whether an oral 
arrangement constitutes an international agreement, the arrangement 
shall be reduced to writing and the decision made in accordance with 
Sec.  181.3.
    (f) Notwithstanding the other provisions of this section, 
arrangements that constitute international agreements within the meaning 
of this section include
    (1) Bilateral or multilateral counterterrorism agreements and
    (2) Bilateral agreements with a country that is subject to a 
determination under section 6(j)(1)(A) of the Export Administration Act 
of 1979 (50 U.S.C. App. 2405(j)(1)(A)), section 620A(a) of the Foreign 
Assistance Act of 1961 (22 U.S.C. 2371(a)), or section 40(d) of the Arms 
Export Control Act (22 U.S.C. 2780(d)).

[46 FR 35918, July 13, 1981, as amended at 71 FR 53008, Sept. 8, 2006]



Sec.  181.3  Determinations.

    (a) Whether any undertaking, document, or set of documents 
constitutes

[[Page 758]]

or would constitute an international agreement within the meaning of the 
Act or of 1 U.S.C. 112a shall be determined by the Legal Adviser of the 
Department of State, a Deputy Legal Adviser, or in most cases the 
Assistant Legal Adviser for Treaty Affairs. Such determinations shall be 
made either on a case-by-case basis, or on periodic consultation, as 
appropriate.
    (b) Agencies whose responsibilities include the negotiation and 
conclusion of international agreements are responsible for transmitting 
to the Assistant Legal Adviser for Treaty Affairs, for decision pursuant 
to paragraph (a) of this section, the texts of any document or set of 
documents that might constitute an international agreement. The 
transmittal shall be made prior to or simultaneously with the request 
for consultations with the Secretary of State required by subsection (c) 
of the Act and Sec.  181.4 of this part.
    (c) Agencies whose responsibilities include the negotiation and 
conclusion of large numbers of agency-level and implementing 
arrangements at overseas posts, only a small number of which might 
constitute international agreements within the meaning of the Act and of 
1 U.S.C. 112a, are required to transmit prior to their entry into force 
only the texts of the more important of such arrangements for decision 
pursuant to paragraph (a) of this section. The texts of all arrangements 
that might constitute international agreements shall, however, be 
transmitted to the Office of the Assistant Legal Adviser for Treaty 
Affairs as soon as possible, and in no event to arrive at that office 
later than 20 days after their signing, for decision pursuant to 
paragraph (a) of this section.
    (d) Agencies to which paragraphs (b) and (c) of this section apply 
shall consult periodically with the Assistant Legal Adviser for Treaty 
Affairs in order to determine which categories of arrangements for which 
they are responsible are likely to be international agreements within 
the meaning of the Act and of 1 U.S.C. 112a.



Sec.  181.4  Consultations with the Secretary of State.

    (a) The Secretary of State is responsible, on behalf of the 
President, for ensuring that all proposed international agreements of 
the United States are fully consistent with United States foreign policy 
objectives. Except as provided in Sec.  181.3(c) of this part, no agency 
of the U.S. Government may conclude an international agreement, whether 
entered into in the name of the U.S. Government or in the name of the 
agency, without prior consultation with the Secretary of State or his 
designee.
    (b) The Secretary of State (or his designee) gives his approval for 
any proposed agreement negotiated pursuant to his authorization, and his 
opinion on any proposed agreement negotiated by an agency which has 
separate authority to negotiate such agreement. The approval or opinion 
of the Secretary of State or his designee with respect to any proposed 
international agreement will be given pursuant to Department of State 
procedures set out in Volume 11, Foreign Affairs Manual, Chapter 700 
(Circular 175 procedure). Officers of the Department of State shall be 
responsible for the preparation of all documents required by the 
Circular 175 procedure.
    (c) Pursuant to the Circular 175 procedure, the approval of, or an 
opinion on a proposed international agreement to be concluded in the 
name of the U.S. Government will be given either by the Secretary of 
State or his designee. The approval of, or opinion on a proposed 
international agreement to be concluded in the name of a particular 
agency of the U.S. Government will be given by the interested assistant 
secretary or secretaries of State, or their designees, unless such 
official(s) judge that consultation with the Secretary, Deputy 
Secretary, or an Under Secretary is necessary. The approval of, or 
opinion on a proposed international agreement will normally be given 
within 20 days of receipt of the request for consultation and of the 
information as required by Sec.  181.4(d)-(g).
    (d) Any agency wishing to conclude an international agreement shall 
transmit to the interested bureau or office in the Department of State, 
or to

[[Page 759]]

the Office of the Legal Adviser, for consultation pursuant to this 
section, a draft text or summary of the proposed agreement, a precise 
citation of the Constitutional, statutory, or treaty authority for such 
agreement, and other background information as requested by the 
Department of State. The transmittal of the draft text or summary and 
citation of legal authority shall be made before negotiations are 
undertaken, or if that is not feasible, as early as possible in the 
negotiating process. In any event such transmittals must be made no 
later than 50 days prior to the anticipated date for concluding the 
proposed agreement. If unusual circumstances prevent this 50-day 
requirement from being met, the concerned agency shall use its best 
efforts to effect such transmittal as early as possible prior to the 
anticipated date for concluding the proposed agreement.
    (e)(1) If a proposed agreement embodies a commitment to furnish 
funds, goods, or services that are beyond or in addition to those 
authorized in an approved budget, the agency proposing the agreement 
shall state what arrangements have been planned or carried out 
concerning consultation with the Office of Management and Budget for 
such commitment. The Department of State should receive confirmation 
that the relevant budget approved by the President provides or requests 
funds adequate to fulfill the proposed commitment, or that the President 
has made a determination to seek the required funds.
    (2) If a proposed agreement embodies a commitment that could 
reasonably be expected to require (for its implementation) the issuance 
of a significant regulatory action (as defined in section 3 of Executive 
Order 12866), the agency proposing the arrangement shall state what 
arrangements have been planned or carried out concerning timely 
consultation with the Office of Management and Budget (OMB) for such 
commitment. The Department of State should receive confirmation that OMB 
has been consulted in a timely manner concerning the proposed 
commitment.
    (f) Consultation may encompass a specific class of agreements rather 
than a particular agreement where a series of agreements of the same 
general type is contemplated; that is, where a number of agreements are 
to be negotiated according to a more or less standard formula, such as, 
for example, Pub. L. 480 Agricultural Commodities Agreements. Any agency 
wishing to conclude a particular agreement within a specific class of 
agreements about which consultations have previously been held pursuant 
to this section shall transmit a draft text of the proposed agreement to 
the Office of the Legal Adviser as early as possible but in no event 
later than 20 days prior to the anticipated date for concluding the 
agreement.
    (g) The consultation requirement shall be deemed to be satisfied 
with respect to proposed international agreements of the United States 
about which the Secretary of State (or his designee) has been consulted 
in his capacity as a member of an interagency committee or council 
established for the purpose of approving such proposed agreements. 
Designees of the Secretary of State serving on any such interagency 
committee or council are to provide as soon as possible to the 
interested offices or bureaus of the Department of State and to the 
Office of the Legal Adviser copies of draft texts or summaries of such 
proposed agreements and other background information as requested.
    (h) Before an agreement containing a foreign language text may be 
signed or otherwise concluded, a signed memorandum must be obtained from 
a responsible language officer of the Department of State or of the U.S. 
Government agency concerned certifying that the foreign language text 
and the English language test are in conformity with each other and that 
both texts have the same meaning in all substantive respects. The signed 
memorandum is to be made available to the Department of State upon 
request.

[46 FR 35918, July 13, 1981, as amended at 71 FR 53008, Sept. 8, 2006]

[[Page 760]]



Sec.  181.5  Twenty-day rule for concluded agreements.

    (a) Any agency, including the Department of State, that concludes an 
international agreement within the meaning of the Act and of 1 U.S.C. 
112a, whether entered into in the name of the U.S. Government or in the 
name of the agency, must transmit the text of the concluded agreement to 
the Office of the Assistant Legal Adviser for Treaty Affairs as soon as 
possible and in no event to arrive at that office later than 20 days 
after the agreement has been signed. The 20-day limit, which is required 
by the Act, is essential for purposes of permitting the Department of 
State to meet its obligation under the Act to transmit concluded 
agreements to the Congress no later than 60 days after their entry into 
force.
    (b) In any case of transmittal after the 20-day limit, the agency or 
Department of State office concerned may be asked to provide to the 
Assistant Legal Adviser for Treaty Affairs a statement describing the 
reasons for the late transmittal. Any such statements will be used, as 
necessary, in the preparation of the annual report on late transmittals, 
to be signed by the President and transmitted to the Congress, as 
required by subsection (b) of the Act.



Sec.  181.6  Documentation and certification.

    (a) Transmittals of concluded agreements to the Assistant Legal 
Adviser for Treaty Affairs pursuant to Sec.  181.5 must include the 
signed or initialed original texts, together with all accompanying 
papers, such as agreed minutes, exchanges of notes, or side letters. The 
texts transmitted must be accurate, legible, and complete, and must 
include the texts of all languages in which the agreement was signed or 
initiated. Names and identities of the individuals signing or initialing 
the agreements, for the foreign government as well as for the United 
States, must, unless clearly evident in the texts transmitted, be 
separately provided.
    (b) Agreements from overseas posts should be transmitted to the 
Department of State by priority airgram, marked for the attention of the 
Assistant Legal Adviser for Treaty Affairs, with the following notation 
below the enclosure line: FAIM: Please send attached original agreement 
to L/T on arrival.
    (c) Where the original texts of concluded agreements are not 
available, certified copies must be transmitted in the same manner as 
original texts. A certified copy must be an exact copy of the signed 
original.
    (d) When an exchange of diplomatic notes between the United States 
and a foreign government constitutes an agreement or has the effect of 
extending, modifying, or terminating an agreement to which the United 
States is a party, a properly certified copy of the note from the United 
States to the foreign government, and the signed original of the note 
from the foreign government, must be transmitted. If, in conjunction 
with the agreement signed, other notes related thereto are exchanged 
(either at the same time, beforehand, or subsequently), properly 
certified copies of the notes from the United States to the foreign 
government must be transmitted with the signed originals of the notes 
from the foreign government.
    (e) Copies may be certified either by a certification on the 
document itself, or by a separate certification attached to the 
document. A certification on the document itself is placed at the end of 
the document. It indicates, either typed or stamped, that the document 
is a true copy of the original signed or initialed by (insert full name 
of signing officer), and it is signed by the certifying officer. If a 
certification is typed on a separate sheet of paper, it briefly 
describes the document certified and states that it is a true copy of 
the original signed by (full name) and it is signed by the certifying 
officer.



Sec.  181.7  Transmittal to the Congress.

    (a) International agreements other than treaties shall be 
transmitted by the Assistant Legal Adviser for Treaty Affairs to the 
President of the Senate and the Speaker of the House of Representatives 
as soon as practicable after the entry into force of such agreements, 
but in no event later than 60 days thereafter.

[[Page 761]]

    (b) Classified agreements shall be transmitted by the Assistant 
Legal Adviser for Treaty Affairs to the Senate Committee on Foreign 
Relations and to the House Committee on International Relations.
    (c) The Assistant Legal Adviser for Treaty Affairs shall also 
transmit to the President of the Senate and to the Speaker of the House 
of Representatives background information to accompany each agreement 
reported under the Act. Background statements, while not expressly 
required by the act, have been requested by the Congress and have become 
an integral part of the reporting requirement. Each background statement 
shall include information explaining the agreement and a precise 
citation of legal authority. At the request of the Assistant Legal 
Adviser for Treaty Affairs, each background statement is to be prepared 
in time for transmittal with the agreement it accompanies by the office 
most closely concerned with the agreement. Background statements for 
classified agreements are to be transmitted by the Assistant Legal 
Adviser for Treaty Affairs to the Senate Committee on Foreign Relations 
and to the House Committee on International Relations.
    (d) Pursuant to section 12 of the Taiwan Relations Act (22 U.S.C. 
3311), any agreement entered into between the American Institute in 
Taiwan and the governing authorities on Taiwan, or any agreement entered 
into between the Institute and an agency of the United States 
Government, shall be transmitted by the Assistant Legal Adviser for 
Treaty Affairs to the President of the Senate and to the Speaker of the 
House of Representatives as soon as practicable after the entry into 
force of such agreements, but in no event later than 60 days thereafter. 
Classified agreements entered into by the Institute shall be transmitted 
by the Assistant Legal Adviser for Treaty Affairs to the Senate 
Committee on Foreign Affairs.

[46 FR 35918, July 13, 1981, as amended at 71 FR 53009, Sept. 8, 2006]



Sec.  181.8  Publication.

    (a) The following categories of international agreements will not be 
published in United States Treaties and Other International Agreements:
    (1) Bilateral agreements for the rescheduling of intergovernmental 
debt payments;
    (2) Bilateral textile agreements concerning the importation of 
products containing specified textile fibers done under the Agricultural 
Act of 1956, as amended;
    (3) Bilateral agreements between postal administrations governing 
technical arrangements;
    (4) Bilateral agreements that apply to specified military exercises;
    (5) Bilateral military personnel exchange agreements;
    (6) Bilateral judicial assistance agreements that apply only to 
specified civil or criminal investigations or prosecutions;
    (7) Bilateral mapping agreements;
    (8) Tariff and other schedules under the General Agreement on 
Tariffs and Trade and under the Agreement of the World Trade 
Organization;
    (9) Agreements that have been given a national security 
classification pursuant to Executive Order No. 13526, its predecessors, 
or its successors;
    (10) Bilateral agreements with other governments that apply to 
specific activities and programs financed with foreign assistance funds 
administered by the United States Agency for International Development 
pursuant to the Foreign Assistance Act, as amended, and the Agricultural 
Trade Development and Assistance Act of 1954, as amended;
    (11) Letters of agreements and memoranda of understanding with other 
governments that apply to bilateral assistance for counter-narcotics and 
other anti-crime purposes furnished pursuant to the Foreign Assistance 
Act, as amended;
    (12) Bilateral agreements that apply to specified education and 
leadership development programs designed to acquaint U.S. and foreign 
armed forces, law enforcement, homeland security, or related personnel 
with limited, specialized aspects of each other's practices or 
operations;
    (13) Bilateral agreements between aviation agencies governing 
specified aviation technical assistance projects

[[Page 762]]

for the provision of managerial, operational, and technical assistance 
in developing and modernizing the civil aviation infrastructure;
    (14) Bilateral acquisition and cross servicing agreements and 
logistics support agreements;
    (15) Bilateral agreements relating to the provision of health care 
to military personnel on a reciprocal basis; and
    (16) Bilateral agreements for the reduction of intergovernmental 
debts.
    (b) In addition to those listed in paragraph (a) of this section, 
the following categories of agreements will not be published in United 
States Treaties and Other International Agreements:
    (1) Agreements on the subjects listed in paragraphs (a)(1) through 
(9) of this section that had not been published as of February 26, 1996;
    (2) Agreements on the subjects listed in paragraphs (a)(10) through 
(13) of this section that had not been published as of September 8, 
2006; and
    (3) Agreements on the subjects listed in paragraphs (a)(14) through 
(16) of this section that had not been published as of November 14, 
2014.
    (c) Any international agreements in the possession of the Department 
of State, other than those in paragraph (a)(9) of this section, but not 
published will be made available upon request by the Department of 
State.
    (d) The Assistant Legal Adviser for Treaty Affairs shall annually 
submit to Congress a report that contains an index of all international 
agreements, listed by country, date, title, and summary of each such 
agreement (including a description of the duration of activities under 
the agreement and the agreement itself), that the United States:
    (1) Has signed, proclaimed, or with reference to which any other 
final formality has been executed, or that has been extended or 
otherwise modified, during the preceding calendar year; and
    (2) Has not been published, or is not proposed to be published, in 
the compilation entitled ``United States Treaties and Other 
International Agreements.''

[61 FR 7071, Feb. 26, 1996, as amended at 71 FR 53009, Sept. 8, 2006; 79 
FR 68116, Nov. 14, 2014]



Sec.  181.9  Internet Web site publication.

    The Office of the Assistant Legal Adviser for Treaty Affairs, with 
the cooperation of other bureaus in the Department, shall be responsible 
for making publicly available on the Internet Web site of the Department 
of State each treaty or international agreement proposed to be published 
in the compilation entitled ``United States Treaties and Other 
International Agreements'' not later than 180 days after the date on 
which the treaty or agreement enters into force.

[71 FR 53009, Sept. 8, 2006]

[[Page 763]]



                       SUBCHAPTER T_HOSTAGE RELIEF





PART 191_HOSTAGE RELIEF ASSISTANCE--Table of Contents



                            Subpart A_General

Sec.
191.1 Declaration of hostile action.
191.2 Application for determination of eligibility.
191.3 Definitions.
191.4 Notification of eligible persons.
191.5 Relationships among agencies.
191.6 Effective date.

    Subpart B_Application of Soldiers' and Sailors' Civil Relief Act

191.10 Eligibility for benefits.
191.11 Applicable benefits.
191.12 Description of benefits.
191.13 Administration of benefits.

                       Subpart C_Medical Benefits

191.20 Eligibility for benefits.
191.21 Applicable benefits.
191.22 Administration of benefits.
191.23 Disputes.

                     Subpart D_Educational Benefits

191.30 Eligibility for benefits.
191.31 Applicable family benefits.
191.32 Applicable benefits for hostages.
191.33 Administration of benefits.
191.34 Maximum limitation on benefits.

    Authority: Hostage Relief Act of 1980 (Pub. L. 96-449 and sec. 4 of 
Act of 1949 (22 U.S.C. 2658)).

    Source: 46 FR 17543, Mar. 19, 1981, unless otherwise noted.



                            Subpart A_General



Sec.  191.1  Declaration of hostile action.

    (a) The Secretary of State from time to time shall declare when and 
where individuals in the civil or uniformed services of the United 
States, or a citizen or resident alien of the United States rendering 
personal services to the United States abroad similar to the service of 
a civil officer or employee of the United States, have been placed in 
captive status because of hostile action abroad directed against the 
United States and occurring or continuing between November 4, 1979, and 
such date as may be declared by the President under section 101(2)(A) of 
the Hostage Relief Act of 1980 (Pub. L. 96-449, hereafter ``the Act'') 
or January 1, 1983, whichever is later. Each such declaration shall be 
published in the Federal Register.
    (b) The Secretary of State upon his or her own initiative, or upon 
application under Sec.  191.2 shall determine which individuals in 
captive status as so declared shall be considered hostages eligible for 
benefits under the Act. The Secretary shall also determine who is 
eligible under the Act for benefits as a member of a family or household 
of a hostage. The determination of the Secretary shall be final, but any 
interested person may request reconsideration on the basis of 
information not considered at the time of original determination. The 
criteria for determination are set forth in sections 101 and 205 of the 
Act, and in these regulations.



Sec.  191.2  Application for determination of eligibility.

    (a) Any person who believes that they or other persons known to them 
are either hostages as defined in the Act, or members of the family or 
household of hostages as defined in Sec.  191.3(a)(1), or a child 
eligible for benefits under subpart D, may apply for benefits under this 
subchapter for themselves, or on behalf of others entitled thereto.
    (b) The application shall be in writing, should contain all 
identifying and other pertinent data available to the person applying 
about the person or persons claimed to be eligible, and should be 
addressed to the Assistant Secretary of State for Administration, 
Department of State, Washington, DC 20520. Applications may be filed at 
any time after publication of a declaration under Sec.  191.1(a) in the 
Federal Register, and during the period of its validity, or within 60 
days after release from captivity. Later filing may be considered when 
in the opinion of the Secretary of State there is good cause for the 
late filing.

[[Page 764]]



Sec.  191.3  Definitions.

    When used in this subchapter, unless otherwise specified, the 
terms--
    (a) Family member means (1) a spouse, (2) an unmarried dependent 
child including a step-child or adopted child, (3) a person designated 
in official records or determined by the agency head or designee thereof 
to be a dependent, or (4) other persons such as parents, parents-in-law, 
persons who stand in the place of a spouse or parents, or other members 
of a household when fully justified by the circumstances of the hostage 
situation, as determined by the Secretary of State.
    (b) Agency head means the head of an agency as defined in the Act 
(or successor agency) employing an individual determined to be an 
American hostage. The Secretary of State is the agency head with respect 
to any hostage not employed by an agency.
    (c) Principal means the hostage whose captivity forms the basis for 
benefits under this subchapter for a family member.



Sec.  191.4  Notification of eligible persons.

    The Assistant Secretary of State for Administration shall be 
responsible for notifying each individual determined to be eligible for 
benefits under the Act or, if that person is not available, a 
representative or Family Member of the hostage.



Sec.  191.5  Relationships among agencies.

    (a) The Assistant Secretary of State for Administration shall 
promptly inform the head of any agency whenever an employee (including a 
member of the Armed Forces) in that agency, or Family Member of such 
employee, is determined to be eligible for benefits under this 
subchapter.
    (b) In accordance with inter-agency agreements between the 
Department of State and relevant agencies--
    (1) The Veterans Administration will periodically bill the 
Department of State for expenses it pays for each eligible person under 
subpart D of this subchapter plus the administrative costs of carrying 
out its responsibilities under this part.
    (2) The Department of State will, on a periodic basis, determine the 
cost for services and benefits it provides to all eligible persons under 
this subchapter and bill each agency for the costs attributable to 
Principals (and Family Members) in or acting on behalf of the agency 
plus a proportionate share of related administrative expenses.



Sec.  191.6  Effective date.

    This regulation is effective as of November 4, 1979. Reimbursement 
may be made for expenses approved under this subchapter for services 
rendered on or after such date.



    Subpart B_Application of Soldiers' and Sailors' Civil Relief Act



Sec.  191.10  Eligibility for benefits.

    A person designated as a hostage under subpart A of this subchapter, 
other than a member of the Armed Forces covered by the provisions of the 
Soldiers' and Sailors' Civil Relief Act of 1940, shall be eligible for 
benefits under this part.



Sec.  191.11  Applicable benefits.

    (a) Eligible persons are entitled to the benefits provided by the 
Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C. App. 501, et 
seq.), including the benefits provided by section 701 (50 U.S.C. App. 
591) notwithstanding paragraph (c) thereof, but excluding the benefits 
provided by sections 104, 105, 106, 400 through 408, 501 through 512, 
and 514 (50 U.S.C. App. 514, 515, 516, 540 through 548, 561 through 572, 
and 574).
    (b) In applying such Act for purposes of this section--
    (1) The term ``person in the military service'' is deemed to include 
any such American hostage;
    (2) The term ``period of military service'' is deemed to include the 
period during which such American hostage is in a captive status;
    (3) References therein to the Secretary of the Army, the Secretary 
of the Navy, the Adjutant General of the Army, the Chief of Naval 
Personnel, and the Commandant, United States Marine Corps, or other 
officials of government are deemed to be references to the Secretary of 
State; and

[[Page 765]]

    (4) The term ``dependents'' shall, to the extent permissible by law, 
be construed to include ``Family Members'' as defined in section 101 of 
the Hostage Relief Act.



Sec.  191.12  Description of benefits.

    The following material is included to assist persons affected, by 
providing a brief description of some of the provisions of the Civil 
Relief Act. Note that not all of the sections applicable to hostages 
have been included here. References to sections herein are references to 
the Civil Relief Act of 1940, as amended, followed by references in 
parentheses to the same section in the United States Code.
    (a) Guarantors, endorsers. Section 103 (50 U.S.C. App. 513) provides 
that whenever a hostage is granted relief from the enforcement of an 
obligation, a court, in its discretion, may grant the same relief to 
guarantors and endorsers of the obligation. Amendments extend relief to 
accommodation makers and others primarily or secondarily liable on an 
obligation, and to sureties on a criminal bail bond. They provide, on 
certain conditions, that the benefits of the section with reference to 
persons primarily or secondarily liable on an obligation may be waived 
in writing.
    (b) Written agreements. Section 107 (50 U.S.C. App. 517) provides 
that nothing contained in the Act shall prevent hostages from making 
certain arrangements with respect to their contracts and obligations, 
but requires that such arrangements be in writing.
    (c) Protection in court. Section 200 (50 U.S.C. App. 520) provides 
that if a hostage is made defendant in a court action and is unable to 
appear in court, the court shall appoint an attorney to represent the 
hostage and protect the hostage's interests. Further, if a judgment is 
rendered against the hostage, an opportunity to reopen the case and 
present a defense, if meritorious, may be permitted within 90 days after 
release.
    (d) Court postponement. Section 201 (50 U.S.C. App. 521) authorizes 
a court to postpone any court proceedings if a hostage is a party 
thereto and is unable to participate by reason of being a captive.
    (e) Relief against penalties. Section 202 (50 U.S.C. App. 522) 
provides for relief against fines or penalties when a court proceeding 
involving a hostage is postponed, or when the fine or penalties are 
incurred for failure to perform any obligation. In the latter case, 
relief depends upon whether the hostage's ability to pay or perform is 
materially affected by being held captive.
    (f) Postponement of action. Section 203 (50 U.S.C. App. 523) 
authorizes a court to postpone or vacate the execution of any judgment, 
attachment or garnishment.
    (g) Period of postponement. Section 204 (50 U.S.C. App. 524) 
authorizes a court to postpone proceedings for the period of captivity, 
and for 3 months thereafter, or any part thereof.
    (h) Extended time limits. Section 205 (50 U.S.C. App. 525) excludes 
the period of captivity from computing time under existing or future 
statutes of limitation. Amendments extend relief to include actions 
before administrative agencies, and provide that the period of captivity 
shall not be included in the period for redemption of real property sold 
to enforce any obligation, tax, or assessment. Section 207 excludes 
application of section 205 to any period of limitation prescribed by or 
under the internal revenue laws of the United States.
    (i) Interest rates. Section 206 (50 U.S.C. App. 526) provides that 
interest on the obligations of hostages shall not exceed a specified per 
centum per annum, unless the court determines that ability to pay 
greater interest is not affected by being held captive.
    (j) Misuse of benefits. Section 600 (50 U.S.C. App. 580) provides 
against transfers made with intent to delay the just enforcement of a 
civil right by taking advantage of the Act.
    (k) Further relief. Section 700 (50 U.S.C. App. 590) provides that a 
person, during a period of captivity or 6 months thereafter, may apply 
to a court for relief with respect to obligations incurred prior to 
captivity, or any tax or assessment whether falling due prior to or 
during the period of captivity. The court may, on certain conditions, 
stay the enforcement of such obligations.

[[Page 766]]

    (l) Stay of eviction. Section 300 (50 U.S.C. App. 530) provides that 
a hostage's dependents shall not be evicted from their dwelling if the 
rental is $150 or less per month, except upon leave of a court. If it is 
proved that inability to pay rent is a result of being in captivity, the 
court is authorized to stay eviction proceedings for not longer than 3 
months. An amendment extends relief to owners of the premises with 
respect to payments on mortgage and taxes.
    (m) Contract and mortgage obligations. As provided by sections 301 
and 302 of the Act (50 U.S.C. App. 531 and 532), as amended, contracts 
for the purchase of real and personal property, which originated prior 
to the period of captivity, may not be rescinded, terminated, or 
foreclosed, or the property repossessed, except as provided in section 
107 (50 U.S.C. App. 517), unless by an order of a court. The mentioned 
sections give the court wide discretionary powers to make such 
disposition of the particular case as may be equitable in order to 
conserve the interests of both the hostage and the creditor. The cited 
sections further provide that the court may stay the proceedings for the 
period of captivity and 3 months thereafter, if in its opinion the 
ability of the hostage to perform the obligation is materially affected 
by reason of captivity. Section 303 (50 U.S.C. App. 533) provides that 
the court may appoint appraisers and, based upon their report, order 
such sum as may be just, if any, paid to hostages or their dependents, 
as a condition to foreclosing a mortgage, resuming possession of 
property, and rescinding or terminating a contract.
    (n) Termination of a lease. Section 304 (50 U.S.C. App. 534) 
provides, in general, that a lease covering premises occupied for 
dwelling, business, or agricultural purpose, executed by persons who 
subsequently become hostages, may be terminated by a notice in writing 
given to the lessor, subject to such action as may be taken by a court 
on application of the lessor. Termination of a lease providing for 
monthly payment of rent shall not be effective until 30 days after the 
first date on which the next rental payment is due, and, in the case of 
other leases, on the last day of the month following the month when the 
notice is served.
    (o) Assignment of life insurance policy. Section 305 (50 U.S.C. App. 
535) provides that the assignee of a life insurance policy assigned as 
security, other than the insurer in connection with a policy loan, 
except upon certain conditions, shall not exercise any right with 
respect to the assignment during the period of captivity of the insured 
and one year thereafter, unless upon order of a court.
    (p) Storage lien. Section 305 (50 U.S.C. App. 535) provides that a 
lien for storage of personal property may not be foreclosed except upon 
court order. The court may stay proceedings or make other just 
disposition.
    (q) Extension of benefits to dependents. Section 306 (50 U.S.C. App. 
536) extends the benefits to section 300 through 305 to dependents of a 
hostage.
    (r) Real and personal property taxes. Section 500 (50 U.S.C. App. 
560) forbids sale of property, except upon court leave, to enforce 
collection of taxes or assessments (other than taxes on income) on 
personal property or real property owned and occupied by the hostage or 
dependents thereof at the commencement of captivity and still occupied 
by the hostage's dependents or employees. The court may stay proceedings 
for a period not more than 6 months after termination of captivity. When 
by law such property may be sold to enforce collection, the hostage will 
have the right to redeem it within 6 months after termination of 
captivity. Unpaid taxes or assessments bear interest at 6 percent.
    (s) Income taxes. Section 513 provides for deferment of payment of 
income taxes. However, section 204 of the Hostage Relief Act of 1980 
provides for deferment and certain other relief, and should be referred 
to in order to determine statutory tax benefits in addition to those in 
section 513 of the Civil Relief Act.
    (t) Certification of hostage. Section 601 provides that a 
certificate signed by the agency head shall be prima facie evidence that 
the person named has been a hostage during the period specified in the 
certification.
    (u) Interlocutory orders. Section 602 (50 U.S.C. App. 582) provides 
that a court

[[Page 767]]

may revoke an interlocutory order it has issued pursuant to any 
provision of the Soldiers' and Sailors' Civil Relief Act of 1940.
    (v) Power of attorney. Section 701 (50 U.S.C. App. 591) provides 
that certain powers of attorney executed by a hostage which expire by 
their terms after the person was captured shall be automatically 
extended for the period of captivity. Exceptions are made with respect 
to powers of attorney which by their terms clearly indicate they are to 
expire on the date specified irrespective of hostage status. (Section 
701 applies to American hostages notwithstanding paragraph (c) thereof 
which states that it applies only to powers of attorney issued during 
the ``Vietnam era''.)



Sec.  191.13  Administration of benefits.

    (a) The Assistant Secretary of State for Administration will issue 
certifications or other documents when required for purposes of the 
Civil Relief Act.
    (b) The Assistant Secretary of State shall whenever possible 
promptly inform the chief legal officer of each State in which hostages 
maintain residence of all persons determined to be hostages eligible for 
assistance under this subpart.



                       Subpart C_Medical Benefits



Sec.  191.20  Eligibility for benefits.

    A person designated as a hostage or Family Member of a hostage under 
subpart A of this subchapter shall be eligible for benefits under this 
subpart.



Sec.  191.21  Applicable benefits.

    A person eligible for benefits under this part shall be eligible for 
authorized medical and health care at U.S. Government expense, and for 
payment of other authorized expenses related to such care or for 
obtaining such care for any illness or injury which is determined by the 
Secretary of State to be caused or materially aggravated by the hostage 
situation, to the extent that such care may not--
    (a) Be provided or paid for under any other Government health or 
medical program, including, but not limited to, the programs 
administered by the Secretary of Defense, the Secretary of Labor and the 
Administrator of Veterans Affairs; or
    (b) Be entitled to reimbursement by any private or Government health 
insurance or comparable plan.



Sec.  191.22  Administration of benefits.

    (a) An eligible person, who desires medical or health care under 
this subpart or any person acting on behalf thereof, shall submit an 
application to the Office of Medical Services, Department of State, 
Washington, DC 20520 (hereafter referred to as the ``Office''). The 
applicant shall supply all relevant information, including insurance 
information, requested by the Director of the Office. An eligible person 
may also submit claims to the Office for payment for emergency care when 
there is not time to obtain prior authorization as prescribed by this 
paragraph, and for payment for care received prior to or ongoing on the 
effective date of these regulations.
    (b) The Office shall evaluate all requests for care and claims for 
reimbursement and determine, on behalf of the Secretary of State, 
whether the care in question is authorized under Sec.  191.21 of this 
subpart. The Office will authorize care, or payment for care when it 
determines the criteria of such section are met. Authorization shall 
include a determination as to the necessity and reasonableness of 
medical or health care.
    (c) The Office will refer applicants eligible for benefits under 
other Government health programs to the Government agency administering 
those programs. Any portion of authorized care not provided or paid for 
under another Government program will be reimbursed under this subpart.
    (d) Eligible persons may obtain authorized care from any licensed 
facility or health care provider of their choice approved by the Office. 
To the extent possible, the Office will attempt to arrange for 
authorized care to be provided in a Government facility at no cost to 
the patient.
    (e) Authorized care provided by a private facility or health care 
provider will be paid or reimbursed under this subpart to the extent 
that the Office determines that costs do not exceed

[[Page 768]]

reasonable and customary charges for similar care in the locality.
    (f) All bills for authorized medical or health care covered by 
insurance shall be submitted to the patient's insurance carrier for 
payment prior to submission to the Office for payment of the balance 
authorized by this part. The Office will request the health care 
providers to bill the insurance carrier and the Department of State for 
authorized care, rather than the patient.
    (g) Eligible persons will be reimbursed by the Office for authorized 
travel to obtain an evaluation of their claim under paragraph (b) of 
this section and for other authorized travel to obtain medical or health 
care authorized by this subpart.



Sec.  191.23  Disputes.

    Any dispute between the Office and eligible persons concerning (a) 
whether medical or health care is required in a given case, (b) whether 
required care is incident to the hostage taking, or (c) whether the cost 
for any authorized care is reasonable and customary, shall be referred 
to the Medical Director, Department of State and the Foreign Service for 
a determination. If the person bringing the claim is not satisfied with 
the decision of the Medical Director, the dispute shall be referred to a 
medical board composed of three physicians, one appointed by the Medical 
Director, one by the eligible person and the third by the first two 
members. A majority decision by the board shall be binding on all 
parties.



                     Subpart D_Educational Benefits



Sec.  191.30  Eligibility for benefits.

    (a) A spouse or unmarried dependent child aged 18 or above of a 
hostage as determined under subpart A of this subchapter shall be 
eligible for benefits under Sec.  191.31 of this subpart. (Certain 
limitations apply, however, to persons eligible for direct assistance 
through other programs of the Veterans Administration under chapter 35 
of title 38, United States Code).
    (b) A Principal (see definition in Sec.  191.3) designated as a 
hostage under Subpart A of this subchapter, who intends to change jobs 
or careers because of the hostage experience and who desires additional 
training for this purpose, shall be eligible for benefits under Sec.  
191.32 of this part unless such person is eligible for comparable 
benefits under title 38 of the United States Code as determined by the 
Administrator of the Veterans Administration.



Sec.  191.31  Applicable family benefits.

    (a) An eligible spouse or child shall be paid (by advancement or 
reimbursement) for expenses incurred for subsistence, tuition, fees, 
supplies, books, and equipment, and other educational expenses, while 
attending an educational or training institution approved in accordance 
with procedures established by the Veterans Administration, which shall 
be comparable to procedures established pursuant to chapters 35 and 36 
of title 38 U.S.C.
    (b) Except as provide in paragraph (c) or (d) of this section), 
payments shall be available under this subsection for an eligible spouse 
or child for education or training which occurs--
    (1) 90 days after the Principal is placed in a captive status, and
    (i) Through the end of any semester or quarter which begins before 
the date on which the Principal ceases to be in a captive status, or
    (ii) If the educational or training institution is not operated on a 
semester or quarter system, the earlier of the end of any course which 
began before such date or the end of the twelve-week period following 
that date.
    (c) In special circumstances and within the limitation of Sec.  
191.34, the Secretary of State may, under the criteria and procedures 
set forth in Sec.  191.33, approve payments for education or training 
under this subsection which occurs after the date determined under 
paragraph (b) of this section.
    (d) In the event a Principal dies and the death is determined by the 
Secretary of State to be incident to that individual being a hostage, 
payments shall be available under this subsection for education or 
training of a spouse or child of the Principal which occurs after the 
date of death, up to the maximum that may be authorized under Sec.  
191.34.

[[Page 769]]



Sec.  191.32  Applicable benefits for hostages.

    (a) When authorized by the Secretary of State a Principal, following 
released from captivity, shall be paid (by advancement or reimbursement) 
for expenses incurred for subsistence, tuition, fees, supplies, books 
and equipment, and other educational expenses, while attending an 
educational or training institution approved in accordance with 
procedures established by the Veterans Administration comparable to 
procedures established pursuant to chapters 35 and 36 of title 38 U.S.C. 
Payments shall be available under this subsection for education or 
training which occurs on or before--
    (1) The end of any semester or quarter (as appropriate) which begins 
before the date which is 10 years after the day on which the Principal 
ceases to be in a captive status, or
    (2) If the educational or training institution is not operated on a 
semester or quarter system, the earlier of the end of any course which 
began before such date or the end of the twelve-week period following 
that date.
    (b) A person eligible for benefits under this subsection shall not 
be required to separate from Government service in order to undertake 
the training or education, but while in Government service, may only 
receive such training or education during off-duty hours or during 
periods of approved leave.



Sec.  191.33  Administration of benefits.

    (a) Any person desiring benefits under this part shall apply in 
writing to the Assistant Secretary of State for Administration, 
Department of State, Washington, DC 20520. The application shall specify 
the benefits desired and the basis of eligibility for those benefits. 
The Secretary of State shall make determinations of eligibility for 
benefits under this part, and shall forward approved applications to the 
Veterans Administration and advise the applicant of the name and address 
of the office in the Veterans Administration that will counsel the 
eligible persons on how to obtain the benefits that have been approved. 
Persons whose applications are disapproved shall be advised of the 
reasons for the disapproval.
    (b) The Veterans Administration shall provide the same level and 
kind of assistance, including payments (by advancement or reimbursement) 
for authorized expenses up to the same maximum amounts, to spouses and 
children of hostages, and to Principals following their release from 
captivity as it does to eligible spouses and children of veterans and to 
eligible veterans, respectively, under chapters 35 and 36 of title 38, 
United States Code. The Veterans Administration shall, following 
consultation with the Secretary of State and under procedures it has 
established to administer section 1724 of title 38, United States Code, 
discontinue assistance for any individual whose conduct or progress is 
unsatisfactory under standards consistent with those established 
pursuant to such section 1724.
    (c) An Advisory Board shall be established to advise on eligibility 
for benefits under paragraphs (c) and (d) of Sec. Sec.  191.31 and 
191.32. The Board shall be composed of the Assistant Secretary of State 
for Administration as Chairperson, the Director of the Office of Medical 
Services of the Department of State, the Executive Director of the 
regional bureau of the Department of State in whose region the relevant 
hostile action occurred, the Director of Personnel or other designee of 
the applicable employing agency, and a representative of the Veterans 
Administration designated by the Administrator.
    (d) If an application is received from a spouse or child for 
extended training under Sec.  191.31(c), the Secretary of Administration 
shall determine with the advice of the Advisory Board whether the 
Principal, following release from captivity, is incapacitated by the 
hostage experience to the extent that (1) he or she has not returned to 
full-time active duty and is unlikely to be able to resume the normal 
duties of his or her position or career, or (2) in the event of a 
separation from Government service, a comparable position or career, for 
at least six months from the date the Principal is released from 
captivity. If the Secretary makes such a determination, he or she may 
approve, within the limits of Sec.  191.34, an application under Sec.  
191.31(c) for up to one year

[[Page 770]]

of education or training. If the Principal remains incapacitated, the 
Secretary may approve additional training or education up to the maximum 
authorized under Sec.  191.34.



Sec.  191.34  Maximum limitation on benefits.

    (a) In no event may assistance be provided under this subpart for 
any individual for a period in excess of 45 months, or the equivalent 
thereof in part-time education or training.
    (b) The eligibility of a spouse for benefits under paragraph (c) or 
(d) of Sec.  191.31 shall expire on a date which is 10 years after the 
date of the release of the hostage, or the death of the hostage, 
respectively. The eligibility of a dependent child for benefits under 
such paragraphs (c) and (d) shall expire on the 26th birthday of such 
child or on such later date as determined by the Administrator of the 
Veterans Administration, as would be applicable if section 1712 of title 
38, United States Code, were applicable.



PART 192_VICTIMS OF TERRORISM COMPENSATION--Table of Contents



                            Subpart A_General

Sec.
192.1 Declarations of hostile action.
192.2 Application for determination of eligibility.
192.3 Definitions.
192.4 Notification of eligible persons.
192.5 Relationships among agencies.

  Subpart B_Payment of Salary and Other Benefits for Captive Situations

192.10 Eligibility for benefits.
192.11 Applicable benefits.
192.12 Administration of benefits.

  Subpart C_Application of Soldiers' and Sailors' Civil Relief Act to 
                           Captive Situations

192.20 Eligibility for benefits.
192.21 Applicable benefits.
192.22 Description of benefits.
192.23 Administration of benefits.

            Subpart D_Medical Benefits for Captive Situations

192.30 Eligibility for benefits.
192.31 Applicable benefits.
192.32 Administration of benefits.
192.33 Dispute.

          Subpart E_Educational Benefits for Captive Situations

192.40 Eligibility for benefits.
192.41 Applicable family benefits.
192.42 Applicable benefits for captives.
192.43 Administration of benefits.
192.44 Maximum limitation on benefits.

             Subpart F_Compensation for Disability or Death

192.50 Eligibility for benefits.
192.51 Death benefit.
192.52 Disability benefits.

    Authority: 5 U.S.C. 5569 and 5570 and E.O. 12598 (52 FR 23421).

    Source: 54 FR 12597, Mar. 28, 1989, unless otherwise noted.



                            Subpart A_General



Sec.  192.1  Declarations of hostile action.

    (a)(1) The Secretary of State shall declare when and where 
individuals in the Civil Service of the United States, including members 
of the Foreign Service and foreign service nationals, or a citizen, 
national or resident alien of the United States rendering personal 
services to the United States similar to the service of an individual in 
the Civil Service, have been placed in captive status commencing on or 
after November 4, 1979, for purposes of Sec.  192.11(b) or January 21, 
1981, for all other purposes under this part, which arises because of 
hostile action abroad and is a result of the individual's relationship 
with the U.S. Government as provided in the Victims of Terrorism 
Compensation Act, codified in 5 U.S.C. 5569 and 5570 and Executive Order 
12598.
    (2) The Secretary of State, in consultation with the Secretary of 
Labor, shall also declare when and where individuals in the Civil 
Service of the United States including members of the Foreign Service 
and foreign service nationals, including individuals rendering personal 
services to the United States similar to the service of an individual in 
the Civil Service, and family members of these individuals are eligible 
to receive compensation for disability or death occurring after January 
21, 1981. Such determination shall be based on the decision by the 
Secretary of State that the disability or death was caused by hostile 
action

[[Page 771]]

abroad and was a result of the individual's relationship with the 
Government.
    (3) Declarations of hostile action in domestic situations shall be 
made by the Secretary of State in consultation with the Attorney General 
of the United States and the head of the employing agency or agencies.
    (b) The Secretary of State for actions abroad, or Agency Head for 
domestic actions, upon his or her own initiative, or upon application 
under Sec.  192.2 shall determine which individuals in captive or 
missing status as so declared shall be considered captives eligible for 
benefits under the Act. The Secretary or Agency Head shall also 
determine who is eligible under the Act for benefits as a member of a 
family or household of a captive. The determination of the Secretary or 
Agency Head shall be final for purposes of determining captive status 
and cash payments, and not subject to judicial review, but any 
interested person may request reconsideration on the basis of 
information not considered at the time of original determination. The 
criteria for determination are set forth in sections 5569 and 5570 of 
title 5 of U.S.C., and in these regulations.



Sec.  192.2  Application for determination of eligibility.

    (a) Any person who believes that that person or other persons known 
to that person are either captives as defined in 5 U.S.C. 5569(a)(1), 
individuals who have suffered disability or death caused by hostile 
action which was a result of the individual's relationship with the U.S. 
Government, members of the family or household of such individuals as 
defined in Sec.  192.3(a)(1), or a child eligible for benefits under 
subchapter D, may apply for benefits under this subchapter for that 
person, or on behalf of others entitled thereto.
    (b) The application in connection with hostile action abroad shall 
be in writing, shall contain all identifying and other pertinent data 
available to the person applying about the person or persons claimed to 
be eligible, and shall be addressed to the Director General of the 
Foreign Service, Department of State, Washington, DC 20520. Applications 
may be filed within 60 days after the latest of: a declaration under 
Sec.  192.1(a), the hostile action, or release from captivity. Later 
filing may be considered when in the opinion of the Secretary of State 
there is good cause for the late filing. Applications in connection with 
hostile action in domestic situations shall conform to these same 
requirements and be filed with the Agency Head.



Sec.  192.3  Definitions.

    When used in this subchapter, unless otherwise specified, the 
terms--
    (a) Secretary of State includes any person to whom the Secretary of 
State has delegated the responsibilities of carrying out this subpart.
    (b) Family member means a dependent of a captive and any individual 
other than a dependent who is a member of such person's family or 
household and shall include the following: (1) A spouse, (2) an 
unmarried dependent child including a step-child or adopted child under 
21 years of age, (3) a person designated in official records or 
determined by the agency head or designee thereof to be dependent, and 
(4) other persons such as parents, non-dependent children, parents-in-
law, persons who stand in the place of a spouse or parents, or other 
members of the family or household of a captive or employee, as 
determined by the Agency head concerned.
    (c) Agency head means the head of an Executive Agency of the U.S. 
Federal Government employing an individual affected by hostile action as 
covered by these regulations. The Secretary of State is the agency head 
for actions abroad with respect to any such individual not employed by 
an agency.
    (d) Captive means any individual in a captive status commencing 
while such individual is in the Civil Service or a citizen, national or 
resident alien of the United States rendering personal service to the 
United States similar to the service of an individual in the Civil 
Service (other than as a member of the uniformed services).
    (e) Captive status means a missing status which, as determined under 
Sec.  192.1, arises because of a hostile action and is a result of the 
individual's relationship with the Government.

[[Page 772]]

    (f) Principal means the person whose captivity, death or disability 
forms the basis for benefits for that individual or for a family member 
under this subchapter.
    (g) Individual rendering personal services to the United States 
similar to the service of an individual in the Civil Service includes 
contract employees and other individuals fitting that description.
    (h) Pay and allowances has the meaning set forth in 5 U.S.C. 
5561(6):
    (1) Basic pay;
    (2) Special pay;
    (3) Incentive pay;
    (4) Basic allowances for quarters;
    (5) Basic allowance for subsistence; and
    (6) Station per diem allowances for not more than 90 days.
    (i) Child means a dependent as defined in paragraph (b)(2) of this 
section.



Sec.  192.4  Notification of eligible persons.

    The Director General of the Foreign Service for the Department of 
State, or other Agency Head in domestic situations, shall be responsible 
for notifying each individual determined to be eligible for benefits 
under the Act, or if that person is not available, a representative or 
family member of the eligible individual.



Sec.  192.5  Relationships among agencies.

    (a) To assist in ensuring that eligible persons receive 
compensation, each Agency Head shall notify the Director General of the 
Foreign Service of the Department of State of any incident which he or 
she believes may be appropriately declared a hostile action under Sec.  
192.1.
    (b) The Director General of the Foreign Service for the Department 
of State shall promptly inform the head of any agency whenever an 
employee of that agency, or Family Member of such employee, is 
determined to be eligible for benefits under this subchapter in 
connection with hostile action.
    (c) In accordance with inter-agency agreements between the 
Department of State and relevant agencies--
    (1) The Department of Veterans Affairs will periodically bill the 
Department of State for expenses it pays for each eligible person under 
subpart E of this subchapter plus the administrative costs of carrying 
out its responsibilities under this part.
    (2) The Department of State will, on a periodic basis, determine the 
cost for services and benefits it provides to all eligible persons under 
this subchapter, and bill each agency for the medical service costs (in 
connection with hostile action abroad) and educational benefits 
attributable to Principals and Family Members, plus a proportionate 
share of related administrative expenses.



  Subpart B_Payment of Salary and Other Benefits for Captive Situations



Sec.  192.10  Eligibility for benefits.

    A person designated as a captive under subpart A of this subchapter 
shall be eligible for benefits under this subpart.



Sec.  192.11  Applicable benefits.

    (a) Captives are entitled to receive or have credited to their 
account, for the period in captive status, the same pay and allowances 
to which they were entitled at the beginning of that period or to which 
they may have become entitled thereafter.
    (b) A person designated as a captive (or a family member of a 
principal) under subpart A of this subchapter whose captivity commenced 
on or after November 4, 1979, is also entitled to receive a cash payment 
from the captive's employing agency, for each day held captive, in an 
amount equal to but not less than one-half of the amount of the world-
wide average per diem rate established under 5 U.S.C. 5702.



Sec.  192.12  Administration of benefits.

    (a) The amount deducted from the pay and allowances of captives must 
be recorded in the individual accounts of the agency concerned. A 
Treasury designated account, set up on the books of the agency 
concerned, may be utilized by the head of an agency to report the net 
amount of pay, allowances and interest credited to captives pursuant to 
5 U.S.C. 5569(b). Interest payments under this section shall be paid out 
of

[[Page 773]]

funds available for salaries and expenses of the agency. Interest shall 
be computed at a rate for any calendar quarter equal to the average rate 
paid on United States Treasury bills with 3-month maturities issued 
during the preceding calendar quarter, with quarterly compounding.
    (b) Cash payments to captives for each day of captivity shall be 
made by the head of an agency before the end of the one-year period 
beginning on the date on which the captive status terminates. In the 
event the captive dies in captivity or prior to payment of these 
benefits, payment shall be made to the eligible survivors under Sec.  
192.51(c) or the estate. A payment under this subchapter may be deferred 
or denied by the head of an agency pending determination of an offense 
committed by the captive under the provisions of 5 U.S.C. 8312.



  Subpart C_Application of Soldiers' and Sailors' Civil Relief Act to 
                           Captive Situations



Sec.  192.20  Eligibility for benefits.

    A person designated as a captive under subpart A of this subchapter, 
shall be eligible for benefits under this part.



Sec.  192.21  Applicable benefits.

    (a) Eligible persons are entitled to the benefits provided by the 
Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C. App. 501, et 
seq.), including the benefits provided by section 701 (50 U.S.C. App 
591) notwithstanding paragraph (c) thereof, but excluding the benefits 
provided by sections 104, 105, 106, 400 through 408, 501 through 512, 
and 514 (50 U.S.C. App. 514, 515, 516, 540 through 548, 561 through 572, 
and 574).
    (b) In applying such Act for purposes of this section--
    (1) The term person in the military service is deemed to include any 
such captive;
    (2) The term period of military service is deemed to include the 
period during which such captive is in a captive status;
    (3) References therein to the Secretary of the Army, the Secretary 
of the Navy, the Adjutant General of the Army, the Chief of Naval 
Personnel, and the Commandant, United States Marine Corps, or other 
officials of government are deemed, in the case of any captive, to be 
references to the Secretary of State; and
    (4) The term dependents shall, to the extent permissible by law, be 
construed to include ``Family Members'' as defined in Sec.  192.3 of 
these regulations.



Sec.  192.22  Description of benefits.

    The following material is included to assist persons affected, by 
providing a brief description of some of the provisions of the Civil 
Relief Act. Note that not all of the sections applicable to captives 
have been included here. References to sections herein are references to 
the Civil Relief Act of 1940, as amended, followed by references in 
parentheses to the same section in the United States Code.
    (a) Guarantors, endorsers. Section 103 (50 U.S.C. App 513) provides 
that whenever a captive is granted relief from the enforcement of an 
obligation, a court, in its discretion, may grant the same relief to 
guarantors and endorsers of the obligation. Amendments extend relief to 
accommodation makers and others primarily or secondarily liable on an 
obligation, and to sureties on a criminal bail bond. They provide, on 
certain conditions, that the benefits of the section with reference to 
persons primarily or secondarily liable on an obligation may be waived 
in writing.
    (b) Written agreements. Section 107 (50 U.S.C. App. 517) provides 
that nothing contained in the Act shall prevent captives from making 
certain arrangements with respect to their contracts and obligations, 
but requires that such arrangements be in writing.
    (c) Protection in court. Section 200 (50 U.S.C. App. 517) provides 
that if a captive is made a defendant in a court action and is unable to 
appear in court, the court shall appoint an attorney to represent the 
captive and protect the captive's interests. Further, if a judgment is 
rendered against the captive, an opportunity to reopen the case and 
present a defense, if meritorious, may be permitted within 90-days after 
release.
    (d) Court postponement. Section 201 (50 U.S.C. App. 521) authorizes 
a court to postpone any court proceedings if a

[[Page 774]]

captive is a party thereto and is unable to participate by reason of 
being a captive.
    (e) Relief against penalties. Section 202 (50 U.S.C. App. 522) 
provides for relief against fines or penalties when a court proceeding 
involving a captive is postponed, or when the fine or penalties are 
incurred for failure to perform any obligation. In the latter case, 
relief depends upon whether the captive's ability to pay or perform is 
materially affected by being held captive.
    (f) Postponement of action. Section 203 (50 U.S.C. App. 523) 
authorizes a court to postpone or vacate the execution of any judgment, 
attachment or garnishment.
    (g) Period of postponement. Section 204 (50 U.S.C. App. 524) 
authorizes a court to postpone proceedings for the period of captivity 
and for 3 months thereafter, or any part thereof.
    (h) Extended time limits. Section 205 (50 U.S.C. App. 525) excludes 
the period of captivity from computing time under existing or future 
statutes of limitation. Amendments extend relief to include actions 
before administrative agencies, and provide that the period of captivity 
shall not be included in the period for redemption of real property sold 
to enforce any obligation, tax, or assessment. Section 207 excludes 
application of section 205 to any period of limitation prescribed by or 
under the internal revenue laws of the United States.
    (i) Interest rates. Section 206 (50 U.S.C. App. 526) provides that 
interest on the obligations of captives shall not exceed a specified per 
centum per annum, unless the court determines that ability to pay 
greater interest is not affected by being held captive.
    (j) Misuse of benefits. Section 600 (50 U.S.C. App. 580) provides 
against transfers made with intent to delay the just enforcement of a 
civil right by taking advantage of the Act.
    (k) Further relief. Section 700 (50 U.S.C. App. 590) provides that a 
person, during a period of captivity or 6 months thereafter, may apply 
to a court for relief with respect to obligations incurred prior to 
captivity, or any tax or assessment whether falling due prior to or 
during the period of captivity. The court may, on certain conditions, 
stay the enforcement of such obligations.
    (l) Stay of eviction. Section 300 (50 U.S.C. App. 530) provides that 
a captive's dependents shall not be evicted from their dwelling if the 
rental is minimal, except upon leave of a court. If it is proved that 
inability to pay rent is a result of being in captivity, the court is 
authorized to stay eviction proceedings for not longer than 3 months. An 
amendment extends relief to owners of the premises with respect to 
payment on mortgage and taxes.
    (m) Contract and mortgage obligations. As provided by sections 301 
and 302 of the Act (50 U.S.C. App. 531 and 532), as amended, contracts 
for the purchase of real and personal property, which originated prior 
to the period of captivity, may not be rescinded, terminated, or 
foreclosed, or the property repossessed, except as provided in section 
107 (50 U.S.C. App. 517), unless by an order of a court. The mentioned 
sections give the court wide discretionary powers to make such 
disposition of the particular case as may be equitable in order to 
conserve the interests of both the captive and the creditor. The cited 
sections further provide that the court may stay the proceedings for the 
period of captivity and 3 months thereafter, if in its opinion the 
ability of the captive to perform the obligation is materially affected 
by reason of captivity. Section 303 (50 U.S.C. App. 533) provides that 
the court may appoint appraisers and, based upon their report, order 
such sum as may be just, if any, paid to captives or their dependents, 
as a condition to foreclosing a mortgage, resuming possession of 
property, and rescinding or terminating a contract.
    (n) Termination of a lease. Section 304 (50 U.S.C. App. 534) 
provides, in general, that a lease covering premises occupied for 
dwelling, business, or agricultural purpose, executed by persons who 
subsequently become captives, may be terminated by a notice in writing 
given to the lessor, subject to such action as may be taken by a court 
on application of the lessor. Termination of a lease providing for 
monthly payment of rent shall not be effective until 30 days after the 
first date on which the next rental payment is due, and, in

[[Page 775]]

the case of other leases, on the last day of the month following the 
month when the notice is served.
    (o) Assignment of life insurance policy. Section 305 (50 U.S.C. App. 
535) provides that the assignee of a life insurance policy assigned as 
security, other that the insurer in connection with a policy loan, 
except upon certain conditions, shall not exercise any right with 
respect to the assignment during period of captivity of the insured and 
one year thereafter, unless upon order of a court.
    (p) Storage lien. Section 305 (50 U.S.C. App. 535) provides that a 
lien for storage of personal property may not be foreclosed except upon 
court order. The court may stay proceedings or make other just 
disposition.
    (q) Extension of benefits to dependents. Section 306 (50 U.S.C. App. 
536) extends the benefits to section 300 through 305 to dependents of a 
captive.
    (r) Real and personal property taxes. Section 500 (50 U.S.C. App. 
560) forbids sale of property, except upon court leave, to enforce 
collection of taxes or assessments (other than taxes on income) on 
personal property or real property owned and occupied by the captive or 
dependents thereof at the commencement of captivity and still occupied 
by the captive's dependents or employees. The court may stay proceedings 
for a period not more than 6 months after termination of captivity. When 
by law such property may be sold to enforce collection, the captive will 
have the right to redeem it within 6 months after termination of 
captivity. Unpaid taxes or assessments bear interest at 6 percent.
    (s) Income taxes. Section 513 provides for deferment of payment of 
income taxes.
    (t) Certification of captive. Section 601 provides that a 
certificate signed by the agency head shall be prima facie evidence that 
the person named has been a captive during the period specified in the 
certification.
    (u) Interlocutory orders. Section 602 (50 U.S.C. App. 582) provides 
that a court may revoke an interlocutory order it has issued pursuant to 
any provision of the Soldiers' and Sailors' Civil Relief Act of 1940.
    (v) Power of attorney. Section 701 (50 U.S.C. App. 591) provides 
that certain powers of attorney executed by a captive which expire by 
their terms after the person was captured shall be automatically 
extended for the period of captivity. Exceptions are made with respect 
to powers of attorney which by their terms clearly indicate they are to 
expire on the date specified irrespective of captive status. (Section 
701 applies to American captives notwithstanding paragraph (c) thereof 
which states that it applies only to powers of attorney issued during 
the ``Vietnam era'').



Sec.  192.23  Administration of benefits.

    (a) The Director General of the Department of State or Agency Head 
will issue certifications or other documents when required for purposes 
of the Civil Relief Act.
    (b) The Director General of the Department of State or Agency Head 
shall whenever possible promptly inform the chief legal officer of each 
U.S. State in which captives maintain residence of all persons 
determined to be captives eligible for assistance under this subpart.



            Subpart D_Medical Benefits for Captive Situations



Sec.  192.30  Eligibility for benefits.

    A person designated as a captive or family member of a captive under 
subpart A of this subchapter, shall be eligible for benefits under this 
subpart.



Sec.  192.31  Applicable benefits.

    A person eligible for benefits under this part shall be eligible for 
authorized physical and mental health care at U.S. Government expense 
(through either or advancement or reimbursement), and for payment of 
other authorized expenses related to such care or for obtaining such 
care for any illness or injury, to the extent, as determined by the 
Secretary of State or Agency Head, that such care is incident to an 
individual being held captive and is not covered by--
    (a) Any other Government health or medical program, including, but 
not limited to, the programs administered

[[Page 776]]

by the Secretary of Defense, the Secretary of Labor and the Secretary of 
Veteran Affairs; or
    (b) Reimbursement by any private or Government health insurance or 
comparable plan. In the case of coverage by a private or Government 
health insurance plan, that carrier will be designated as the primary 
carrier, and benefits under this subpart will serve only to supplement 
expenses not paid by the primary carrier.



Sec.  192.32  Administration of benefits.

    (a)(1) A person eligible due to hostile action abroad, who desires 
medical or health care under this subpart or any person acting on behalf 
thereof, shall submit an application to the Office of Medical Services, 
Department of State, Washington, DC 20520 (hereafter referred to as the 
``Office''). That office will handle and process medical applications 
and claims using the criteria in this subpart. Persons eligible in 
connection with domestic situations shall make application with the 
Agency Head, and the Agency Head shall apply the following procedures in 
a similar manner in administering medical benefits in domestic 
situations involving the respective agency.
    (2) The applicant shall supply all relevant information, including 
insurance information, requested by the Director of the Office. An 
eligible person may also submit claims to the Office for payment for 
emergency care when there is not time to obtain prior authorization as 
prescribed by this paragraph.
    (b) The Office shall evaluate all requests for care and claims for 
reimbursement and determine, on behalf of the Secretary of State, 
whether the care in question is authorized under Sec.  192.31 of this 
subpart. The Office will authorize care or payment of care, when it 
determines the criteria of Sec.  192.31 are met. Authorization shall 
include a determination as to the necessity and reasonableness of 
medical or health care.
    (c) The Office will refer applicants eligible for benefits under 
other Government health programs to the Government agency administering 
those programs. Any portion of authorized care not provided or paid for 
under another Government program or private insurance will be reimbursed 
under this subpart, subject to a determination of the reasonableness of 
charges. Such determination shall be made by applying the fee schedule 
established by the Office of Workers' Compensation Programs (OWCP), 
Department of Labor, which is used in paying medical benefits for work-
related injuries to employees who are fully covered by OWCP.
    (d) Eligible persons may obtain authorized care from any licensed 
facility or health care provider of their choice approved by the Office. 
To the extent possible, the Office will attempt to arrange for 
authorized care to be provided in a Government facility at no cost to 
the patient.
    (e) Authorized care provided by a private facility or health care 
provider will be paid or reimbursed under this subpart to the extent 
that the Office determines that costs do not exceed reasonable and 
customary charges for similar care in the locality.
    (f) All bills for authorized medical or health care covered by 
insurance shall be submitted to the patient's insurance carrier for 
payment prior to submission to the Office for payment of the balance 
authorized by this part. The Office will request the health care 
providers to bill the insurance carrier and the Department of State for 
authorized care, rather than the patient.
    (g) Eligible persons will be reimbursed by the Office for authorized 
travel to obtain an evaluation of their claim under paragraph (b) of 
this section and for other authorized travel to obtain medical or health 
care authorized by this subpart.



Sec.  192.33  Dispute.

    Any dispute between the Office and eligible persons concerning 
whether medical or health care is required in a given case, whether 
required care is incident to the captivity, or whether the cost for any 
authorized care is reasonable and customary, shall be referred to the 
Medical Director, Department of State, for a determination. If the 
person bringing the claim is not satisfied with the decision of the 
Medical Director, the dispute shall be referred to a

[[Page 777]]

medical board composed of three physicians, one appointed by the Medical 
Director, one by the eligible person and the third by the first two 
members. A majority decision by the board shall be binding on all 
parties.



          Subpart E_Educational Benefits for Captive Situations



Sec.  192.40  Eligibility for benefits.

    (a) A spouse or unmarried dependent child (including an unmarried 
dependent stepchild or adopted child) under 21 years of age of a captive 
as determined under subpart A of the subchapter shall be eligible for 
benefits under 192.41 of this subpart. (Certain limitations apply, 
however, to persons eligible for direct assistance through other 
programs of the Department of Veterans' Affairs under chapter 35 of 
title 38, United States Code).
    (b) A Principal designated as a captive under subpart A of this 
subchapter, who intends to change jobs or careers because of the captive 
experience and who desires additional training for this purpose, shall 
be eligible for benefits under Sec.  192.42 of this part, unless the 
Secretary of the Department of Veterans' Affairs determines that such 
person is eligible to receive educational assistance for the additional 
training under either chapters 30, 32, 34, or 35, title 38 U.S.C.



Sec.  192.41  Applicable family benefits.

    (a) An eligible spouse or child shall be paid (by advancement or 
reimbursement) for expenses incurred for subsistence, tuition, fees, 
supplies, books and equipment, and other educational expenses while 
attending an educational or training institution approved in accordance 
with procedures established by the Department of Veterans' Affairs, 
which shall be comparable to procedures established pursuant to chapters 
35 and 36 of title 38 U.S.C.
    (b) Except as provided in paragraph (c) or (d) of this section, 
payments shall be available under this subsection for an eligible spouse 
or child for educational training which occurs--
    (1) 90 days after the Principal is placed in a captive status, and
    (i) Through the end of any semester or quarter which begins before 
the date on which the Principal ceases to be in a captive status, or
    (ii) If the educational or training institution is not operated on a 
semester or quarter system, the earlier of the end of any course which 
began before such date or the end of the sixteen-week period following 
that date.
    (c) In special circumstances and within the limitation of Sec.  
192.44, the Secretary of State, under the criteria and procedures set 
forth in Sec.  192.43, may approve payments for education or training 
under this subsection which occurs after the date determined under 
paragraph (b) of this section.
    (d) In the event a Principal dies and the death is determined by the 
Agency Head to be incident to that individual being a captive, payments 
shall be available under this subsection for education or training of a 
spouse or child of the Principal which occurs after the date of death, 
up to the maximum that may be authorized under Sec.  192.44.
    (e) Family benefits under this subsection shall not be available for 
any spouse or child who is eligible for assistance under chapter 35 of 
title 38 U.S.C., or similar assistance under any other law.



Sec.  192.42  Applicable benefits for captives.

    (a) When authorized by the Agency Head, a Principal, following 
release from captivity, may be paid (by advancement or reimbursement) 
for expenses incurred for subsistence, tuition, fees, supplies, books 
and equipment, and other educational expenses while attending an 
educational or training institution approved in accordance with 
procedures established pursuant to chapter 35 and 36 of title 38 U.S.C. 
Payments shall be available under this subsection for education or 
training which occurs on or before--
    (1) The end of any semester or quarter (as appropriate) which begins 
before the date which is 10 years after the day on which the Principal 
ceases to be in a captive status, or
    (2) If the educational or training institution is not operated on a 
semester or quarter system, the earlier of the end of any course which 
began before such date or the end of the sixteen-week period following 
that date.

[[Page 778]]

    (b) A person eligible for benefits under this subsection shall not 
be required to separate from Government service in order to undertake 
the training or education. However, no educational assistance allowance 
shall be paid to any eligible person who is attending a course of 
education or training paid for under the Government Employees' Training 
Act and whose full salary is being paid to such person while so 
training.



Sec.  192.43  Administration of benefits.

    (a) Any person desiring benefits under this part, shall apply in 
writing to the Director General of the Foreign Service, Department of 
State, Washington, DC 20502. The application shall specify the benefits 
desired and the basis of eligibility for those benefits. The Director 
General of the Foreign Service, on behalf of the Secretary of State, 
shall make determinations of eligibility for benefits under this part, 
and shall forward certified applications to the Department of Veterans' 
Affairs and advise the applicant of the name and address of the office 
in the Department of Veterans' Affairs that will counsel the eligible 
persons on how to obtain the benefits that have been approved. Persons 
whose applications are disapproved shall be advised in writing of the 
reason for the disapproval. Applications for foreign service nationals 
and their dependents shall be made with the Office of Foreign Service 
National Personnel, Department of State. That office will handle the 
administrative details and benefits using the criteria specified in this 
subchapter.
    (b) The Department of Veterans' Affairs shall provide the same level 
and kind of assistance, including payments (by advancement or 
reimbursement) for authorized expenses up to the same maximum amounts, 
to spouses and children of captives, and to Principals following their 
release from captivity as it does to eligible spouses and children of 
veterans and to eligible veterans, respectively, under chapters 35 and 
36 of title 38 U.S.C. The Department of Veterans' Affairs shall, under 
procedures it has established to administer section 1724 of title 38, 
U.S.C., discontinue assistance for any individual whose conduct or 
progress is unsatisfactory under standards consistent with those 
established pursuant to such section 1724.
    (c) An Advisory Board shall be established to advise on eligibility 
for benefits under paragraphs (c) and (d) of Sec.  192.41. The Board 
shall be composed of the Under Secretary of State for Management as 
Chair, the Director of the Office of Medical Services of the Department 
of State, the Executive Director of the regional bureau of the 
Department of State in whose region the relevant hostile action 
occurred, the Director of Personnel or other designee of the applicable 
employing agency, and a representative of the Department of Veterans' 
Affairs designated by the Secretary.
    (d) If an application is received from a spouse or child for 
extended training under Sec.  192.41(c), the Director General of the 
Foreign Service of the Department of State shall determine with the 
advice of the Advisory Board whether the Principal, following release 
from captivity, is incapacitated by the captive experience--
    (1) To the extent that he or she has not returned to full-time 
active duty and is unlikely to be able to resume the normal duties of 
his or her position or career, or
    (2) In the event of a separation from Government service, that the 
Principal is unable to assume a comparable position or career, for at 
least six months from the date of release from captivity. If the 
Secretary makes such a determination, he or she may approve, within the 
limits of Sec.  192.44, an application under Sec.  192.41(c) for up to 
one year of education or training. If the Principal remains 
incapacitated, the Secretary may approve additional training or 
education up to the maximum authorized under 192.44.



Sec.  192.44  Maximum limitation on benefits.

    (a) In no event may assistance be provided under this subpart for 
any individual for a period in excess of 45 months, or the equivalent 
thereof in part-time education or training.
    (b) The eligibility of a spouse for benefits under paragraph (c) or 
(d) of Sec.  192.41 shall expire on a date which is 10 years after the 
date of the release of

[[Page 779]]

the captive or the death of the captive while in captivity, 
respectively. The eligibility of a dependent child for benefits under 
Sec.  192.41 (c) and (d) shall expire on the 21st birthday of such 
child.



             Subpart F_Compensation for Disability or Death



Sec.  192.50  Eligibility for benefits.

    (a)(1) The Federal Employees' Compensation Act (5 U.S.C. 8101 et 
seq.) provides for medical coverage and the payment of compensation for 
wage loss and for permanent impairment of specified members and 
functions of the body incurred by employees as a result of an injury 
sustained while in the performance of their duties to the United States. 
The Office of Workers' Compensation Programs (OWCP), Department of 
Labor, administers the program. All individuals employed by the U.S. 
Government as defined by 5 U.S.C. 8101(1) are eligible to apply for 
wage-loss and medical benefits under the FECA. Family members of such 
employees may apply for death benefits. An application must be made with 
OWCP by such individual or on behalf of such individuals, prior to the 
determination of eligibility or payment of any benefits under this 
subpart.
    (2) In the case of foreign service national employees covered for 
work related injury or death under the local compensation plan 
established pursuant to 22 U.S.C. 3968, such applications should be 
filed with the organizational authority in the country of employment 
which provides such coverage. Benefit levels payable to foreign service 
national employees under this subpart shall be no less than comparable 
benefits payable to U.S. citizen employees under FECA. Eligibility 
determination and payment of supplemental benefits, if any, is the 
responsibility of the Director General of the Foreign Service for the 
State Department.
    (b) Any death or disability benefit payment made under this section 
shall be reduced by the amount of any other death or disability benefits 
funded in whole or in part by the United States, except that the amount 
shall not be reduced below zero. The cash payment under Sec.  192.11(b) 
of subpart B is excluded from the offset requirement.
    (c) Compensation under this section may include payment (whether 
advancement or reimbursement) for any medical or health expenses 
relating to the death or disability involved to the extent that such 
expenses are not covered under subpart D of these regulations. 
Procedures of subpart D of these regulations shall apply in making such 
determinations.



Sec.  192.51  Death benefit.

    (a) The Secretary of State or Agency Head may provide for payment, 
by the employing agency, of a death benefit to the surviving dependents 
of any eligible individual under Sec.  192.1(a) who dies as a result of 
injuries caused by hostile action whose death was the result of the 
individual's relationship with the Government.
    (b) The death benefit payment for an employee shall be equal to one 
year's salary at the time of death. Such death benefit is subject to the 
offset provisions under Sec.  192.50(b) including the Federal Employees' 
Compensation Act. The death benefit for an employee's spouse and other 
eligible individuals under Sec.  192.1(b) of subpart A shall be equal to 
one year's salary of the principal at the time of death.
    (c) A death benefit payment for an adult under this section shall be 
made as follows:
    (1) First, to the widow or widower.
    (2) Second, to the dependent child, or children in equal shares, if 
there is no widow or widower.
    (3) Third, to the dependent parent, or dependent parents in equal 
shares, if there is no widow, widower, or dependent child.
    (4) Fourth, to adult, non-dependent children in equal shares.


If there is no survivor entitled to payment under this paragraph (c), no 
payment shall be made.
    (d) A death benefit payment for a child under this section shall be 
made as follows: To the surviving parents or legal guardian. If there 
are no surviving parents or legal guardian, no payment shall be made.
    (e) As used in this section--each of the terms ``widow'', 
``widower'', and ``parent'' shall have the same meaning given such term 
by section 8101 of title

[[Page 780]]

5, U.S.C.; ``child'' has the meaning given in Sec.  192.3(b)(2).



Sec.  192.52  Disability benefits.

    (a) Principals who qualify for benefits under Sec.  192.1 and are 
employees of the U.S. Government are considered for disability payments 
under programs administered by the Office of Workers' Compensation 
Programs (OWCP), Department of Labor, or in the case of foreign service 
national employees, the programs may be administered by either OWCP or 
the organizational authority in the country of employment which provides 
similar coverage under the local compensation plan established pursuant 
to 22 U.S.C. 3968. Normal filing procedures as specified by either OWCP 
or the local organizational authority which provides such coverage 
should be followed in determining eligibility. Duplicate benefits may 
not be received from both OWCP and the local organizational authority 
for the same claim. Additional benefits to persons qualifying for full 
FECA or similar benefits would not normally be payable under this 
subpart, except to foreign service national employees whose benefit 
levels are below comparable benefits payable to U.S. citizen employees 
under FECA. Foreign service national employees whose benefit levels are 
below comparable benefits payable to U.S. citizens under FECA may 
receive benefits under this subpart so that total benefits received are 
comparable to the benefits payable to U.S. citizen employees under FECA.
    (b) Family members who do not qualify for either OWCP benefits or 
benefits from the organizational authority in the country of employment 
which provides similar coverage, and anyone eligible under Sec.  
192.1(a) who does not qualify for full benefits from OWCP, must file an 
application for disability benefits with the Office of Medical Services, 
Department of State, for a determination of eligibility under this 
subpart, if connected with hostile action abroad. Applications made in 
connection with hostile action in domestic situations will be directed 
to the Agency Head. Such applications for disability payments will be 
considered using the same criteria for determination as established by 
OWCP.
    (c) Family members who are determined to be disabled by the Office 
of Medical Services, or Agency Head using the OWCP criteria, are 
eligible to receive a lump-sum payment based on the following 
guidelines:
    (1) Permanent total disability rate. A lump-sum payment equal to two 
year's salary of the Principal at the time of the qualifying incident.
    (2) Temporary total disability rate. A lump-sum payment computed at 
66\2/3\ percent of the monthly pay rate of the Principal for each month 
of temporary total disability, not to exceed one year's salary of the 
Principal.
    (3) Partial disability rate. A lump-sum payment authorized in 
accordance with 5 U.S.C. 8106, equal to 66\2/3\ percent of the 
difference between the monthly pay at the time of the qualifying 
incident and the monthly wage-earning capacity of the family member 
after the beginning of the partial disability, not to exceed one year's 
salary of the Principal. For family members with no wage-earning 
history, a lump-sum payment equal to 66\2/3\ percent of the difference 
between the estimated monthly wage-earning capacity of the family member 
at the time of the qualifying incident and the monthly wage-earning 
capacity after the beginning of the partial disability, not to exceed 
one year's salary of the Principal may be authorized, using the criteria 
established by OWCP for such determination.
    (4) Special loss schedule. In addition to the temporary disability 
benefits payable in accordance with this subsection, if there is 
permanent disability involving the loss, or loss of use, of a member or 
function of the body or involving disfigurement, a lump-sum payment may 
be authorized at the rate of 25 percent of the payment authorized in 
accordance with the schedule and procedures in 5 U.S.C. 8107 and 20 CFR 
10.304. The Director General of the Foreign Service of State or the 
Agency Head, may at their discretion, authorize payments under this 
subpart in addition to payments for those organs and members of the body 
specified in 5 U.S.C. 8107 and in 20 CFR 10.304. The provisions of 20 
CFR part 10, subpart D, which prevent the payment

[[Page 781]]

of disability compensation and scheduled compensation simultaneously, 
shall not apply to these regulations.

Cash payments under this subpart are the responsibility of the employing 
agency.

[54 FR 12597, Mar. 28, 1989; 54 FR 16195, Apr. 21, 1989]

[[Page 782]]



            SUBCHAPTER U_INTERNATIONAL COMMERCIAL ARBITRATION





PART 194_INTER-AMERICAN COMMERCIAL ARBITRATION COMMISSION 
RULES OF PROCEDURE--Table of Contents



Sec.
194.1 Authority and scope of application.

Appendix A to Part 194--Inter-American Commercial Arbitration Commission 
          Rules of Procedure (As Amended April 1, 2002)

    Authority: 9 U.S.C. 306.

    Source: 67 FR 8862, Feb. 27, 2002, unless otherwise noted.



Sec.  194.1  Authority and scope of application.

    In accordance with the authority in chapter III of the Federal 
Arbitration Act (9 U.S.C. 306), the Department of State has determined 
that the amended Rules of Procedures of the Inter-American Commercial 
Arbitration Commission (IACAC) should become effective in the United 
States and will come into force on April 1, 2002, at the same time as 
for all states party to the Inter-American Convention on International 
Commercial Arbitration. The IACAC's amended Rules of Procedure set forth 
the procedures for the initiation and conduct of arbitration of certain 
international commercial disputes to which the Inter-American Convention 
on International Commercial Arbitration applies. The amended Rules of 
Procedure are set out in full in appendix A to this part.



   Sec. Appendix A to Part 194--Inter-American Commercial Arbitration 
        Commission Rules of Procedure (As Amended April 1, 2002)

                            Table of Contents

Art. 1 Scope of Application
Art. 2 Notice, Calculation of Periods of Time
Art. 3 Notice of Arbitration
Art. 4 Representation and Assistance
Art. 5 Appointment of Arbitrators
Art. 6 Challenge of Arbitrators
Art. 7 Challenge of Arbitrators
Art. 8 Challenge of Arbitrators
Art. 9 Challenge of Arbitrators
Art. 10 Replacement of an Arbitrator
Art. 11 Repetition of Hearings in the Event of the Replacement of an 
          Arbitrator
Art. 12 General Provisions
Art. 13 Place of Arbitration
Art. 14 Language
Art. 15 Statement of Claim
Art. 16 Statement of Defense
Art. 17 Amendments to the Claim or Defense
Art. 18 Plea as to the Jurisdiction of the Arbitral Tribunal
Art. 19 Further Written Statements
Art. 20 Periods of Time
Art. 21 Evidence and Hearings
Art. 22 Evidence and Hearings
Art. 23 Interim Measures of Protection
Art. 24 Experts
Art. 25 Default
Art. 26 Closure of Hearings
Art. 27 Waiver of Rules
Art. 28 Decisions
Art. 29 Form and Effect of the Award
Art. 30 Applicable law, Amiable Compositeur
Art. 31 Settlement or Other Grounds for Termination
Art. 32 Interpretation of the Award
Art. 33 Correction of the Award
Art. 34 Additional Award
Art. 35 Costs
Art. 36 Costs
Art. 37 Costs
Art. 38 Costs: Deposit of Costs
Art. 39 Transitory Article

              Rules of Procedure (As Amended April 1, 2002)

                      Section I. Introductory Rules

                          Scope of Application

                                Article 1

    1. Where the parties to a contract have agreed in writing that 
disputes in relation to that contract shall be referred to arbitration 
under the IACAC Rules of Procedure, then such disputes shall be settled 
in accordance with these Rules subject to such modification as the 
parties may agree in writing and the IACAC may approve.
    2. These Rules shall govern the arbitration, except that where any 
such rule is in conflict with any provision of the law applicable to the 
arbitration from which the parties cannot derogate, that provision shall 
prevail.

[[Page 783]]

                 Notice, Calculation of Periods of Time

                                Article 2

    1. For the purposes of these rules, any notice, including a 
notification, communication or proposal, is deemed to have been received 
if it is physically delivered to the addressee in person or via fax, 
telex or any other means agreed to by the parties, or if it is delivered 
at his habitual residence, place of business or mailing address, or, if 
none of these can be found after making reasonable inquiry, then at the 
addressee's last known habitual residence or at his last known place of 
business. Notice shall be deemed to have been received on the day it is 
so delivered by any of the means stated in these rules.
    2. For the purposes of calculating a period of time under these 
rules, such period shall begin to run on the day following the day when 
a notice, notification, communication or proposal is received. If the 
last day of such period is an official holiday or a non-business day at 
the residence or place of business of the addressee, the period is 
extended until the first business day which follows. Official holidays 
or non-business days occurring during the running of the period of time 
are included in calculating the period.

                          Notice of Arbitration

                                Article 3

    1. The party initiating recourse to arbitration (hereinafter 
referred to as the ``claimant'') shall give to the other party 
(hereinafter referred to as the ``respondent'') a notice requesting 
arbitration and shall provide a copy to the Director General of the 
IACAC, either directly or through the IACAC National Section if one 
exists in his country of domicile.
    2. Arbitral proceedings shall be deemed to commence on the date on 
which the notice of arbitration is received by the respondent.
    3. The request for arbitration shall at least include the following:
    (a) A request that the dispute be submitted to arbitration;
    (b) The names and addresses of the parties;
    (c) A copy of the arbitration clause or the separate arbitration 
agreement;
    (d) A reference to the contract out of which, or in relation to 
which, the dispute has arisen, and a copy thereof if the claimant deems 
it necessary;
    (e) The general nature of the claim and an indication of the amount 
involved, if any;
    (f) The relief or remedy sought;
    (g) If three arbitrators are to be appointed, designation of one 
arbitrator, as referred to in Article 5, paragraph 3.
    4. The request for arbitration may also include the statement of 
claim referred to in Article 15.
    5. Upon receipt of the notice of arbitration, the Director General 
of the IACAC or the IACAC National Section shall communicate with all 
parties with respect to the arbitration and shall acknowledge the 
commencement of the arbitration.

                      Representation and Assistance

                                Article 4

    The parties may be represented or assisted by persons of their 
choice. The names and addresses of such persons must be communicated in 
writing to the other party; such communication must specify whether the 
appointment is being made for purposes of representation or assistance.

            Section II. Composition of the Arbitral Tribunal

                       Appointment of Arbitrators

                                Article 5

    1. If the parties have not otherwise agreed, three arbitrators shall 
be appointed.
    2. When the parties have agreed that the dispute will be resolved by 
a single arbitrator, he may be appointed by the mutual agreement of the 
parties. If the parties have not done so within thirty (30) days from 
the date on which the notice of arbitration is received by the 
respondent, the arbitrator will be designated by the IACAC.
    3. If three arbitrators are to be appointed, each party shall 
appoint one arbitrator. The two arbitrators thus appointed shall choose 
the third arbitrator, who will act as the presiding arbitrator of the 
tribunal.
    4. If within thirty (30) days after receipt of the claimant's 
notification of the appointment of an arbitrator, the other party has 
not notified the first party with a copy to the Director General of the 
IACAC either directly or through the IACAC National Section if one 
exists in his country of domicile, of the arbitrator he has appointed, 
the arbitrator will be designated by the IACAC.
    5. If within thirty (30) days after the appointment of the second 
arbitrator, the two arbitrators have not agreed on the choice of the 
presiding arbitrator, the presiding arbitrator will be appointed by the 
IACAC.
    6. In making appointments, the IACAC shall have regard to such 
considerations as are likely to secure the appointment of independent 
and impartial arbitrators, and shall also take into account the 
advisability of appointing an arbitrator of a nationality other than the 
nationalities of the parties.
    7. The IACAC may request from either party any information it deems 
necessary in order to discharge its functions.

                        Challenge of Arbitrators

                                Article 6

    A prospective arbitrator shall disclose to those who approach him in 
connection with his possible appointment any circumstances

[[Page 784]]

likely to give rise to justifiable doubts as to his impartiality or 
independence. An arbitrator, once appointed or chosen, shall disclose 
such circumstances to the parties and to the IACAC, if appointed by the 
IACAC, unless they have already been informed by him of these 
circumstances.

                                Article 7

    1. Any arbitrator may be challenged if circumstances exist that give 
rise to justifiable doubts as to the arbitrator's impartiality or 
independence.
    2. A party may challenge the arbitrator appointed by him only for 
reasons of which he becomes aware after the appointment has been made.

                                Article 8

    1. A party who intends to challenge an arbitrator shall send notice 
of his challenge within fifteen days after the appointment of the 
challenged arbitrator has been notified to the challenging party or 
within fifteen days after the circumstances mentioned in Articles 6 and 
7 became known to that party.
    2. The challenge shall be notified to the other party, to the 
arbitrator who is challenged and to the other members of the arbitral 
tribunal and to the Director General of the IACAC. The notification 
shall be in writing and shall state the reasons for the challenge.
    3. When an arbitrator has been challenged by one party, the other 
party may agree to the challenge. The arbitrator may also, after the 
challenge, withdraw from his office. In neither case does this imply 
acceptance of the validity of the grounds for the challenge. In both 
cases the procedure provided in article 5 shall be used in full for the 
appointment of the substitute arbitrator, even if during the process of 
appointing the challenged arbitrator a party had failed to exercise his 
right to appoint or to participate in the appointment.

                                Article 9

    1. If the other party does not agree to the challenge and the 
challenged arbitrator does not withdraw, the decision on the challenge 
will be made by the IACAC.
    2. If the IACAC sustains the challenge, a substitute arbitrator 
shall be appointed or chosen pursuant to the procedure applicable to the 
appointment or choice of an arbitrator as provided in these rules.

                      Replacement of an Arbitrator

                               Article 10

    1. In the event of the death or resignation of an arbitrator during 
the course of the arbitral proceedings, a substitute arbitrator shall be 
appointed or chosen pursuant to the procedure applicable to the 
appointment or choice of the arbitrator being replaced.
    2. In the event that an arbitrator fails to fulfill his functions or 
in the event of the de jure or de facto impossibility of performing his 
function, or if the IACAC determines that there are sufficient reasons 
to accept the resignation of an arbitrator, the procedure in respect of 
the challenge and replacement of an arbitrator as provided in the 
preceding articles shall apply.
    3. If an arbitrator on a three-person tribunal does not participate 
in the arbitration, the two other arbitrators shall have the power in 
their sole discretion to continue the arbitration and make any decision, 
ruling or award, notwithstanding the refusal of the third arbitrator to 
participate. In deciding whether to continue the arbitration or to 
render any decision, ruling or award, the two other arbitrators shall 
take into account the stage of the arbitration proceedings, the reasons, 
if any, stated by the third arbitrator for not participating, as well as 
such other matters they consider appropriate in the circumstances of the 
case. If the two arbitrators decide not to continue the arbitration 
without the participation of the third arbitrator, the IACAC on proof 
satisfactory to it shall declare the office vacant, and the party that 
initially appointed him shall proceed to appoint a substitute arbitrator 
within thirty (30) days following the vacancy declaration. If the 
designation is not made within the stated term, then the substitute 
arbitrator will be appointed by the IACAC.

 Repetition of Hearings in the Event of the Replacement of an Arbitrator

                               Article 11

    If under Articles 8 to 10 the sole or presiding arbitrator is 
replaced, any hearings held previously shall be repeated; if any other 
arbitrator is replaced, such prior hearings may be repeated at the 
discretion of the arbitral tribunal.

                    Section III. Arbitral Proceedings

                           General Provisions

                               Article 12

    1. Subject to these rules, the arbitral tribunal may conduct the 
arbitration in such manner as it considers appropriate, provided that 
the parties are treated with equality and that at any stage of the 
proceedings each party is given a full opportunity of presenting his 
case.
    2. If either party so requests at any stage of the proceedings, the 
arbitral tribunal shall hold hearings for the presentation of evidence 
by witnesses, including expert witnesses, or for oral argument. In the 
absence of such a request, the arbitral tribunal shall decide whether to 
hold such hearings or

[[Page 785]]

whether the proceedings shall be conducted on the basis of documents and 
other evidence.
    3. All documents or information supplied to the arbitral tribunal by 
one party shall at the same time be communicated by that party to the 
other party.

                          Place of Arbitration

                               Article 13

    1. If the parties have not reached an agreement regarding the place 
of arbitration, the place of arbitration may initially be determined by 
the IACAC, subject to the power of the tribunal to determine finally the 
place of arbitration within sixty (60) days following the appointment of 
the last arbitrator. All such determinations shall be made having regard 
for the contentions of the parties and the circumstances of the case.
    2. Notwithstanding the foregoing, the tribunal may meet in any place 
it may deem appropriate to hold hearings, hold meetings for 
consultation, hear witnesses, or inspect property or documents. The 
parties shall be given sufficient written notice to enable them to be 
present at any such proceeding.

                                Language

                               Article 14

    1. Subject to an agreement by the parties, the arbitral tribunal 
shall, promptly after its appointment, determine the language or 
languages to be used in the proceedings. This determination shall apply 
to the statement of claim, the statement of defense, and any further 
written statements and, if oral hearings take place, to the language or 
languages to be used in such hearings.
    2. The arbitral tribunal may order that any documents annexed to the 
statement of claim or statement of defense, and any supplementary 
documents or exhibits submitted in the course of the proceedings, 
delivered in their original language, shall be accompanied by a 
translation into the language or languages agreed upon by the parties or 
determined by the arbitral tribunal.

                           Statement of Claim

                               Article 15

    1. Unless the statement of claim was contained in the request for 
arbitration, within a period of time to be determined by the arbitral 
tribunal, the claimant shall communicate his statement of claim in 
writing to the respondent and to each of the arbitrators, with a copy to 
the IACAC. A copy of the contract, and of the arbitration agreement if 
not contained in the contract, shall be annexed thereto.
    2. The statement of claim shall include the following particulars:
    (a) The names and addresses of the parties;
    (b) A statement of the facts supporting the claim;
    (c) The points at issue;
    (d) The relief or remedy sought.
    The claimant may annex to his statement of claim all documents he 
deems relevant or may add a reference to the documents or other evidence 
he will submit.

                          Statement of Defense

                               Article 16

    1. Within a period of time to be determined by the arbitral 
tribunal, the respondent shall communicate his statement of defense in 
writing to the claimant and to each of the arbitrators, with a copy to 
the IACAC.
    2. The statement of defense shall reply to the particulars (b), (c) 
and (d) of the statement of claim (Article 15, paragraph 2). The 
respondent may annex to his statement the documents on which he relies 
for his defense or may add a reference to the documents or other 
evidence he will submit.
    3. In his statement of defense, or at a later stage in the arbitral 
proceedings if the arbitral tribunal decides that the delay was 
justified under the circumstances, the respondent may make a 
counterclaim arising out of the same contract, or rely on a claim 
arising out of the same contract for the purpose of a set-off.
    4. The requirements provided in Article 15, paragraph 2, of these 
Rules shall apply to both any counterclaim or to any claim presented for 
the purposes of a set-off.

                   Amendments to the Claim or Defense

                               Article 17

    During the course of arbitral proceedings either party may amend or 
supplement his claim or defense unless the arbitral tribunal considers 
it inappropriate to allow such amendment, having regard to the delay in 
making it or prejudice to the other party or any other circumstances. 
However, a claim may not be amended in such a manner that the amended 
claim falls outside the scope of the arbitration clause or separate 
arbitration agreement.

          Plea as to the Jurisdiction of the Arbitral Tribunal

                               Article 18

    1. The arbitral tribunal shall have the power to rule on objections 
that it has no jurisdiction, including any objection with respect to the 
existence or validity of the arbitration clause or of the separate 
arbitration agreement.
    2. The arbitral tribunal shall have the power to determine the 
existence or the validity of the contract of which an arbitration clause 
or an arbitration agreement forms a part.

[[Page 786]]

    For the purposes of this Article, an arbitration clause that forms 
part of a contract and that provides for arbitration under these rules 
shall be treated as an agreement independent of the other terms of the 
contract. A decision by the arbitral tribunal that the contract is null 
and void shall not entail ipso jure the invalidity of the arbitration 
clause or the arbitration agreement.
    3. A plea that the arbitral tribunal does not have jurisdiction 
shall be raised not later than in the statement of defense or, with 
respect to a counterclaim, in the reply to the counterclaim.
    4. In general, the arbitral tribunal should rule on a plea 
concerning its jurisdiction as a preliminary question. However, the 
arbitral tribunal may proceed with the arbitration and rule on such a 
plea in its final award.

                       Further Written Statements

                               Article 19

    The arbitral tribunal shall decide which further written statements, 
in addition to the statement of claim and the statement of defense, 
shall be required from the parties or may be presented by them and shall 
fix the periods of time for communicating such statements.

                             Periods of Time

                               Article 20

    The periods of time fixed by the arbitral tribunal for the 
communication of written statements (including the statement of claim 
and statement of defense) should not exceed forty-five days. However, 
the arbitral tribunal may extend the time limits if it concludes that an 
extension is justified.

                Evidence and Hearings (Articles 21 & 22)

                               Article 21

    1. Each party shall have the burden of proving the facts relied on 
to support his claim or defense.
    2. The arbitral tribunal may, if it considers it appropriate, 
require a party to deliver to the tribunal and to the other party, 
within such a period of time as the arbitral tribunal shall decide, a 
summary of the documents and other evidence that that party intends to 
present in support of the facts in issue set out in his statement of 
claim or statement of defense.
    3. At any time during the arbitral proceedings the arbitral tribunal 
may require the parties to produce documents, exhibits or other evidence 
within such a period of time as the tribunal shall determine.

                               Article 22

    1. In the event of an oral hearing, the arbitral tribunal shall give 
the parties adequate advance notice of the date, time and place thereof.
    2. If witnesses are to be heard, at least fifteen days before the 
hearing each party shall communicate to the arbitral tribunal and to the 
other party the names and addresses of the witnesses he intends to 
present, and the subject upon and the languages in which such witnesses 
will give their testimony.
    3. The arbitral tribunal shall make arrangements for the translation 
of oral statements made at a hearing and for a record of the hearing if 
either is deemed necessary by the tribunal under the circumstances of 
the case, or if the parties have agreed thereto and have communicated 
such agreement to the tribunal at least fifteen days before the hearing.
    4. Hearings shall be held in camera unless the parties agree 
otherwise. The arbitral tribunal may require the retirement of any 
witness or witnesses during the testimony of other witnesses. The 
arbitral tribunal is free to determine the manner in which witnesses are 
examined.
    5. Evidence of witnesses may also be presented in the form of 
written statements signed by them.
    6. The arbitral tribunal shall determine the admissibility, 
relevance, materiality and weight of the evidence offered.

                     Interim Measures of Protection

                               Article 23

    1. At the request of either party, the arbitral tribunal may take 
any interim measures it deems necessary in respect of the subject matter 
of the dispute, including measures for the conservation of the goods 
forming the subject matter in dispute, such as ordering their deposit 
with a third person or the sale of perishable goods.
    2. Such interim measures may be established in the form of an 
interim award. The arbitral tribunal shall be entitled to require 
security for the costs of such measures.
    3. A request for interim measures addressed by any party to a 
judicial authority shall not be deemed incompatible with the agreement 
to arbitrate, or as a waiver of that agreement.

                                 Experts

                               Article 24

    1. The arbitral tribunal may appoint one or more experts to report 
to it, in writing, on specific issues to be determined by the tribunal. 
A copy of the expert's terms of reference, established by the arbitral 
tribunal, shall be communicated to the parties.
    2. The parties shall give the expert any relevant information or 
produce for his inspection any relevant document or goods that he may 
require of them. Any dispute between a party and such expert as to the 
relevance of

[[Page 787]]

the required information or production shall be referred to the arbitral 
tribunal for decision.
    3. Upon receipt of the expert's report, the arbitral tribunal shall 
communicate a copy of the report to the parties, who shall be given the 
opportunity to express, in writing, their opinion on the report. A party 
shall be entitled to examine any document on which the expert has relied 
in his report.
    4. At the request of either party the expert, after delivery of the 
report, may be heard at a hearing where the parties shall have the 
opportunity to be present and to interrogate the expert. At this hearing 
either party may present expert witnesses in order to testify on the 
points at issue. The provisions of Article 22 shall be applicable to 
such proceedings.

                                 Default

                               Article 25

    1. If, within the period of time fixed by the arbitral tribunal, the 
claimant has failed to communicate his claim without showing sufficient 
cause for such failure, the arbitral tribunal shall issue an order for 
the termination of the arbitral proceedings.
    2. If one of the parties, duly notified under these rules, fails to 
appear at a hearing without showing sufficient cause for such failure, 
the arbitral tribunal may proceed with the arbitration.
    3. If one of the parties, duly invited to produce documentary 
evidence, fails to do so within the established period of time, without 
showing sufficient cause for such failure, the arbitral tribunal may 
make the award on the evidence before it.

                           Closure of Hearings

                               Article 26

    1. The arbitral tribunal may inquire of the parties if they have any 
further proofs to offer or witnesses to be heard or submissions to make 
and, if there are none, it may declare the hearings closed.
    2. The arbitral tribunal may, if it considers it necessary owing to 
exceptional circumstances, decide, on its own motion or upon application 
of a party, to reopen the hearings at any time before the award is made.

                             Waiver of Rules

                               Article 27

    A party who knows that any provision of, or requirement under, these 
rules has not been complied with and yet proceeds with the arbitration 
without promptly stating his objection to such non-compliance shall be 
deemed to have waived his right to object.

                          Section IV. The Award

                                Decisions

                               Article 28

    The arbitral tribunal shall adopt its decisions by a majority vote. 
When there is no majority, the decision shall be made by the president 
of the tribunal.

                      Form and Effect of the Award

                               Article 29

    1. In addition to making a final award, the arbitral tribunal shall 
be entitled to make interim, interlocutory, or partial awards.
    2. The award shall be made in writing and shall be final and binding 
on the parties and subject to no appeal. The parties undertake to carry 
out the award without delay.
    3. The arbitral tribunal shall state the reasons upon which the 
award is based, unless the parties have agreed that no reasons are to be 
given.
    4. An award shall be signed by the arbitrators and it shall contain 
the date on which and the place where the award was made, which shall be 
the place designated in Article 13. Where there are three arbitrators 
and one of them fails to sign, the award shall state the reasons for the 
absence of the signature.
    5. The award may be made public only with the consent of both 
parties.
    6. Copies of the award signed by the arbitrators shall be 
communicated to the parties by the arbitral tribunal.
    7. If the arbitration law of the country where the award is made 
requires that the award be filed or registered by the arbitral tribunal, 
the tribunal shall comply with this requirement within the period of 
time required by law.

                   Applicable law, Amiable Compositeur

                               Article 30

    1. The arbitral tribunal shall apply the law designated by the 
parties as applicable to the substance of the dispute. Failing such 
designation by the parties, the arbitral tribunal shall apply the law 
determined by the conflict of laws rules that it considers applicable.
    2. The arbitral tribunal shall decide as amiable compositeur or ex 
aequo et bono only if the parties have expressly authorized the arbitral 
tribunal to do so and if the law applicable to the arbitral procedure 
permits such arbitration.
    3. In all cases, the arbitral tribunal shall decide in accordance 
with the terms of the contract and shall take into account the usages of 
the trade applicable to the transaction.

[[Page 788]]

               Settlement or Other Grounds for Termination

                               Article 31

    1. If, before the award is made, the parties agree on a settlement 
of the dispute, the arbitral tribunal shall either issue an order for 
the termination of the arbitral proceedings or, if requested by both 
parties and accepted by the tribunal, record the settlement in the form 
of an arbitral award on agreed terms. The arbitral tribunal is not 
obliged to give reasons for such an award.
    2. If, before the award is made, the continuation of the arbitral 
proceedings becomes unnecessary or impossible for any reason not 
mentioned in paragraph 1, the arbitral tribunal shall inform the parties 
of its intention to issue an order for the termination of the 
proceedings. The arbitral tribunal shall have the power to issue such an 
order unless a party raises justifiable grounds for objection.
    3. Copies of the order for termination of the arbitral proceedings 
or of the arbitral award on agreed terms, signed by the arbitrators, 
shall be communicated by the arbitral tribunal to the parties. Where an 
arbitral award on agreed terms is made, the provisions of Article 29, 
paragraphs 2 and 4, shall apply.

                       Interpretation of the Award

                               Article 32

    1. Within thirty days after the receipt of the award, either party 
may request that the arbitral tribunal give an interpretation of the 
award. The tribunal shall notify the other party or parties to the 
proceedings of such request.
    2. The interpretation shall be given in writing within forty-five 
days after the receipt of the request. The interpretation shall form 
part of the award and the provisions of Article 29, paragraphs 2 to 7, 
shall apply.

                         Correction of the Award

                               Article 33

    1. Within thirty days after the receipt of the award, either party 
may request the arbitral tribunal, which shall notify the other party, 
to correct in the award any errors in computation, any clerical or 
typographical errors, or any errors of similar nature. The arbitral 
tribunal may within thirty days after the communication of the award 
make such corrections on its own initiative.
    2. Such corrections shall be in writing, and the provisions of 
Article 29, paragraphs 2 to 7, shall apply.

                            Additional Award

                               Article 34

    1. Within thirty days after the receipt of the award, either party 
may request the arbitral tribunal, which shall notify the other party, 
to make an additional award as to claims presented in the arbitral 
proceedings but omitted from the award.
    2. If the arbitral tribunal considers the request for an additional 
award to be justified and considers that the omission can be rectified 
without any further hearings or evidence, it shall complete its award 
within sixty days after the receipt of the request.
    3. When an additional award is made, the provisions of Article 29, 
paragraphs 2 to 7, shall apply.

                        Costs (Articles 35 to 38)

                               Article 35

    The arbitral tribunal shall fix the costs of arbitration in its 
award. The term ``costs'' includes only:
    (a) The fees of the arbitral tribunal, to be stated separately as to 
each arbitrator and to be fixed by the tribunal itself in accordance 
with Article 36;
    (b) The travel and other expenses incurred by the arbitrators;
    (c) The costs of expert advice and of other assistance required by 
the arbitral tribunal;
    (d) The travel and other expenses of witnesses to the extent such 
expenses are approved by the arbitral tribunal;
    (e) The costs for legal representation and assistance of the 
successful party if such costs were claimed during the arbitral 
proceedings, and only to the extent that the arbitral tribunal 
determines that the amount of such costs is reasonable;
    (f) The administrative fee and other service charges of the IACAC; 
which shall be set by the Arbitrator Nominating Committee of the IACAC 
in accordance with the schedule in effect at the time of the 
commencement of the arbitration. The committee may set a provisional fee 
when the proceedings are instituted and the final amount before the 
award is rendered, so that such amount may be taken into account by the 
tribunal when rendering its award.

                               Article 36

    1. The fees of the arbitral tribunal and the administrative fees for 
the IACAC shall be set in accordance with the schedule in effect at the 
time of commencement of the arbitration. The fees shall be calculated on 
the basis of the amount involved in the arbitration; if that amount 
cannot be determined, the fees shall be set discretionally.
    2. The amount between the maximum and minimum range in the schedule 
shall be set in accordance with the nature of the dispute,

[[Page 789]]

the complexity of the subject matter and any other relevant 
circumstances of the case.

                               Article 37

    1. The costs of arbitration shall be borne by the unsuccessful 
party. However, the arbitral tribunal may apportion each of such costs 
between the parties if it determines that apportionment is reasonable, 
taking into account the circumstances of the case.
    2. When the arbitral tribunal issues an order for the termination of 
the arbitral proceedings or makes an award on agreed terms, it shall fix 
the costs of arbitration referred to in Article 35 in the text of that 
order or award.
    3. No additional fees may be charged by an arbitral tribunal for 
interpretation or correction or completion of its award under Articles 
32 to 34.

                               Article 38

                            Deposit of Costs

    1. The arbitral tribunal, on its establishment, or the Arbitrator 
Nominating Committee of the IACAC within its purview, may request each 
party to deposit an equal amount as an advance for the costs referred to 
in Article 35, paragraphs (a), (b), (c) and (f).
    2. During the course of the arbitral proceedings the arbitral 
tribunal may request supplementary deposits from the parties.
    3. When a party so requests, the arbitral tribunal shall fix the 
amounts of any deposits or supplementary deposits only after 
consultation with the IACAC, which may make any comments to the arbitral 
tribunal which it deems appropriate concerning the amounts of such 
deposits and supplementary deposits.
    4. If the required deposits are not paid in full within thirty days 
after the receipt of the request, the arbitral tribunal shall so inform 
the parties in order that one or another of them may make the required 
payment. Should one of the parties fail to pay its deposits in full, the 
other party may do so in its stead. If payment in full is not made, the 
arbitral tribunal may order the suspension or termination of the 
arbitral proceedings.
    5. After the award has been made, the arbitral tribunal shall render 
an accounting to the parties of the deposits received and return any 
unexpended balance to the parties.

                           Transitory Article

                               Article 39

    Any disputes arising under contracts that stipulate resolution of 
such disputes pursuant to the IACAC Rules of Procedure and that have not 
been submitted to an arbitral tribunal as of the date on which these 
rules enter into effect shall be subject to these rules in their 
entirety.



PART 196_THOMAS R. PICKERING FOREIGN AFFAIRS/GRADUATE FOREIGN AFFAIRS 
FELLOWSHIP PROGRAM--Table of Contents



Sec.
196.1 What is the Fellowship Program?
196.2 How is the Fellowship Program administered?
196.3 Grants to post-secondary education institutions.
196.4 Administering office.

    Authority: 22 U.S.C. 2719.

    Source: 67 FR 50803, Aug. 6, 2002, unless otherwise noted.



Sec.  196.1  What is the Fellowship Program?

    The Thomas R. Pickering Foreign Affairs/Graduate Foreign Affairs 
Fellowship Program is designed to attract outstanding men and women at 
the undergraduate and graduate educational levels for the purpose of 
increasing the level of knowledge and awareness of and employment with 
the Foreign Service, consistent with 22 U.S.C. 3905. The Program 
develops a source of trained men and women, from academic disciplines 
representing the skill needs of the Department, who are dedicated to 
representing the United States' interests abroad.



Sec.  196.2  How is the Fellowship Program administered?

    (a) Eligibility. Eligibility will be determined annually by the 
Department of State and publicized nationwide. Fellows must be United 
States citizens.
    (b) Provisions. The grant awarded to each individual student shall 
not exceed $250,000 for the total amount of time the student is in the 
program. Fellows are prohibited from receiving grants from one or more 
Federal programs, which in the aggregate would exceed the cost of his or 
her educational expenses. Continued eligibility for participation is 
contingent upon the Fellow's ability to meet the educational 
requirements set forth in paragraph (c) of this section.
    (c) Program requirements. Eligibility for participation in the 
program is conditional upon successful completion of

[[Page 790]]

pre-employment processing specified by the Department of State, 
including background investigation, medical examination, and drug 
testing. As a condition of eligibility for continued receipt of grant 
funds, fellows are required to complete prescribed coursework and 
maintain a satisfactory grade point average as determined by the 
Department of State. Fellows are also required to accept employment with 
the Department of State's Foreign Service upon successful completion of 
the program, and Foreign Service entry requirements. Fellows must 
continue employment for a period of one and one-half years for each year 
of education funded by the Department of State.



Sec.  196.3  Grants to post-secondary education institutions.

    The Department of State may make a grant to a post-secondary 
education institution for the purpose of increasing the level of 
knowledge and awareness of and interest in employment with the Foreign 
Service, consistent with 22 U.S.C. 3905, not to exceed $1,000,000, 
unless otherwise authorized by law.



Sec.  196.4  Administering office.

    The Department of State's Bureau of Human Resources, Office of 
Recruitment is responsible for administering the Thomas R. Pickering 
Foreign Affairs/Graduate Foreign Affairs Fellowship Program and grants 
to post-secondary institutions and may be contacted for more detailed 
information.

                        PARTS 197	199 [RESERVED]

[[Page 791]]



            CHAPTER II--AGENCY FOR INTERNATIONAL DEVELOPMENT




  --------------------------------------------------------------------
Part                                                                Page
200             Employee responsibilities and conduct.......         795
201             Rules and procedures applicable to commodity 
                    transactions financed by USAID..........         795
202             Overseas shipments of supplies by voluntary 
                    nonprofit relief agencies...............         832
204             Housing guaranty standard terms and 
                    conditions..............................         836
205             Participation by religious organizations in 
                    USAID programs..........................         840
206             Testimony by employees and the production of 
                    documents in proceedings where A.I.D. is 
                    not a party.............................         842
207             Indemnification of employees................         844
209             Non-discrimination in federally-assisted 
                    programs of the Agency for International 
                    Development--effectuation of Title VI of 
                    the Civil Rights Act of 1964............         845
211             Transfer of food commodities for food use in 
                    disaster relief, economic development 
                    and other assistance....................         854
212             Public information..........................         880
213             Claims collection...........................         906
214             Advisory committee management...............         923
215             Regulations for implementation of Privacy 
                    Act of 1974.............................         930
216             Environmental procedures....................         939
217             Nondiscrimination on the basis of handicap 
                    in programs or activities receiving 
                    Federal financial assistance............         952
218             Nondiscrimination on the basis of age in 
                    programs or activities receiving Federal 
                    financial assistance....................         964
219             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by International 
                    Development Cooperation Agency, Agency 
                    for International Development...........         970

[[Page 792]]

221             Israel loan guarantee standard terms and 
                    conditions..............................         975
223             Administrative enforcement procedures of 
                    post-employment restrictions............         979
224             Implementation of the program fraud civil 
                    remedies act............................         980
225             Protection of human subjects................         996
227             New restrictions on lobbying................        1014
228             Rules for procurement of commodities and 
                    services financed by USAID..............        1025
229             Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..        1030
230             Israel loan guarantees issued under the 
                    Emergency Wartime Supplemental 
                    Appropriations Act of 2003, Pub. L. 108-
                    11--Standard terms and conditions.......        1046
231             Arab Republic of Egypt loan guarantees 
                    issued under the Emergency Wartime 
                    Supplemental Appropriations Act of 2003, 
                    Public Law 108-11--standard terms and 
                    conditions..............................        1051
232             Republic of Tunisia loan guarantees issued 
                    under the Department of State, Foreign 
                    Operations, and Related Programs 
                    Appropriations Act, 2012, Div. I, Pub. 
                    L. 112-74--Standard terms and conditions        1055
233             Hashemite Kingdom of Jordan loan guarantees 
                    issued under the Further Continuing 
                    Appropriations Act, 2013, Div. F, Pub. 
                    L. 113-6--standard terms and conditions.        1059
234             Ukraine loan guarantees issued under the 
                    Support for the Sovereignty, Integrity, 
                    Democracy, and Economic Stability of 
                    Ukraine Act of 2014, Pub. L. 113-95--
                    Standard terms and conditions...........        1063
235             Hashemite Kingdom of Jordan loan guarantees 
                    issued under the Further Continuing 
                    Appropriations Act, 2014, Div. F, Pub. 
                    L. 113-6--standard terms and conditions.        1067
236             Republic of Tunisia loan guarantees issued 
                    under the Further Continuing 
                    Appropriations Act, 2014, Div. F, Public 
                    Law 113-6--standard terms and conditions        1071

[[Page 793]]

237             Ukraine loan guarantees issued under the 
                    Department of State, Foreign Operations, 
                    and Related Programs Appropriations Act 
                    of 2015, and the Support for the 
                    Sovereignty, Integrity, Democracy, and 
                    Economic Stability of Ukraine Act of 
                    2014--standard terms and conditions.....        1076
238             Hashemite Kingdom of Jordan loan guarantees 
                    issued under the Department of State, 
                    Foreign Operations, and Related Programs 
                    Appropriations Act, 2015--Standard terms 
                    and conditions..........................        1080
239             Republic of Tunisia loan guarantees issued 
                    under Section 7034(o) of the Department 
                    of State, Foreign Operations, and 
                    Related Programs Appropriations Act of 
                    2016....................................        1084
240             Sovereign loan guarantee--standard terms and 
                    conditions..............................        1088
241             Republic of Iraq loan guarantees issued 
                    under the Further Continuing and 
                    Security Assistance Appropriations Act 
                    of 2017.................................        1092
242-299

[Reserved]

[[Page 795]]



PART 200_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents



    Cross References: The regulations governing the responsibilities and 
conduct of employees of the Agency for International Development are 
codified as part 2635 of title 5, prescribed by the Office of Government 
Ethics.



PART 201_RULES AND PROCEDURES APPLICABLE TO COMMODITY TRANSACTIONS 
FINANCED BY USAID--Table of Contents



              Subpart A_Definitions and Scope of This Part

Sec.
201.01 Definitions.
201.02 Scope and application.
201.03 OMB approval under the Paperwork Reduction Act.

     Subpart B_Conditions Governing the Eligibility of Procurement 
                    Transactions for USAID Financing

201.10 Purpose.
201.11 Eligibility of commodities.
201.12 Eligibility of incidental services.
201.13 Eligibility of delivery services.
201.14 Eligibility of bid and performance bonds and guaranties.
201.15 U.S. flag vessel shipping requirement.

     Subpart C_Procurement Procedures; Responsibilities of Importers

201.20 Purpose.
201.21 Notice to supplier.
201.22 Procurement under public sector procedures.
201.23 Procurement under private sector procedures.
201.24 Progress and advance payments.
201.25 Bid and performance bonds and guaranties.
201.26 Expenditure of marine insurance loss payments.

                 Subpart D_Responsibilities of Suppliers

201.30 Purpose.
201.31 Suppliers of commodities.
201.32 Suppliers of delivery services.

Subpart E_General Provisions Relating to USAID Financing of Commodities 
                     and Commodity-Related Services

201.40 Purpose.
201.41 Audit and inspection.
201.42 Reexport of USAID-financed commodities.
201.43 Diversion clause.
201.44 Vesting in USAID of title to commodities.
201.45 Termination or modification of a loan, grant or implementing 
          document.
201.46 Compensation to supplier if shipment is prohibited.
201.47 Use of marine insurance loss proceeds.

                   Subpart F_Payment and Reimbursement

201.50 Purpose.
201.51 Methods of financing.
201.52 Required documents.
201.53 Final date for presentation of documents.

                       Subpart G_Price Provisions

201.60 Purpose and applicability of this subpart.
201.61 Meaning of terms in this subpart.
201.62 Responsibilities of borrower/grantee and of supplier.
201.63 Maximum prices for commodities.
201.64 Application of the price rules to commodities.
201.65 Commissions, discounts and other payments, credits, benefits and 
          allowances.
201.66 Side payments.
201.67 Maximum freight charges.
201.68 Maximum prices for commodity-related services.
201.69 Cooperating country taxes and fees.

             Subpart H_Rights and Responsibilities of Banks

201.70 Purpose.
201.71 Terms of letters of credit.
201.72 Making payments.
201.73 Limitations on the responsibilities of banks.
201.74 Additional documents for USAID.
201.75 Termination or modification.

      Subpart I_Rights and Remedies of USAID, and Waiver Authority

201.80 Purpose.
201.81 Rights of USAID against borrower/grantees.
201.82 Rights of USAID against suppliers.
201.83 No waiver of alternative rights or remedies by USAID.
201.84 Limitation on period for making refund requests.
201.85 Legal effect of USAID approvals and decisions.
201.86 Waiver and amendment authority.

Appendix A to Part 201--Supplier's Certificate and Agreement With the 
          Agency for International Development (AID 282)

[[Page 796]]

Appendix B to Part 201--Application for Approval of Commodity 
          Eligibility (AID 11)

    Authority: 22 U.S.C. 2381.

    Source: 55 FR 34232, Aug. 22, 1990, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 201 appear at 62 FR 
38027, July 16, 1997.



              Subpart A_Definitions and Scope of This Part



Sec.  201.01  Definitions.

    As used in this part, the following terms shall have the meanings 
indicated below:
    (a) The Act means the Foreign Assistance Act of 1961, as amended 
from time to time.
    (b) USAID means the U.S. Agency for International Development or any 
successor agency, including when applicable, each USAID Mission abroad.
    (c) USAID Geographic Code means a code in the USAID Geographic Code 
Book which designates a country, a group of countries, or an otherwise 
defined area. Principal USAID geographic codes are described in Sec.  
201.11(b)(4) of this part.
    (d) USAID/W means the USAID in Washington, DC 20523, including any 
office thereof.
    (e) Approved applicant means the individual or organization 
designated by the borrower/grantee to establish credits with banks in 
favor of suppliers or to instruct banks to make payments to suppliers, 
and includes any agent acting on behalf of such approved applicant.
    (f) Bank means a banking institution organized under the laws of the 
United States, or any State, commonwealth, territory, or possession 
thereof, or the District of Columbia.
    (g) Borrower/grantee means the government of any cooperating 
country, or any agency, instrumentality or political subdivision 
thereof, or any private entity, to which USAID directly makes funds 
available by loan or grant.
    (h) Commission means any payment or allowance made or agreed to be 
made by a supplier to any person for the contribution which that person 
has made to securing the sale for the supplier or which the person makes 
to securing similar sales on a continuing basis for the supplier.
    (i) Commodity means any material, article, supply, goods, or 
equipment.
    (j) Commodity Approval Application means the Application for 
Approval of Commodity Eligibility (Form AID 11) which appears as 
appendix B to this part 201.
    (k) Commodity-related services means delivery services and/or 
incidental services.
    (l) Cooperating country means the country receiving the USAID 
assistance subject to provisions of this part 201.
    (m) Delivery means the transfer to, or for the account of, an 
importer of the right to possession of a commodity, or, with respect to 
a commodity-related service, the rendering to, or for the account of, an 
importer of any such service.
    (n) Delivery service means any service customarily performed in a 
commercial export transaction which is necessary to effect a physical 
transfer of commodities to the cooperating country. Examples of such 
services are the following: export packing, local drayage in the source 
country (including waiting time at the dock), ocean and other freight, 
loading, heavy lift, wharfage, tollage, switching, dumping and trimming, 
lighterage, insurance, commodity inspection services, and services of a 
freight forwarder. Delivery services may also include work and materials 
necessary to meet USAID marking requirements.
    (o) Implementing document means any document, including a letter of 
commitment, issued by USAID which authorizes the use of USAID funds for 
the procurement of commodities and/or commodity related services and 
which specifies conditions which will apply to such procurement.
    (p) Importer means any person or organization, governmental or 
otherwise, in the cooperating country who is authorized by the borrower/
grantee to use USAID funds under this Regulation for the procurement of 
commodities, and includes any borrower/grantee who undertakes such 
procurement.
    (q) Incidental services means the installation or erection of USAID-
financed equipment, or the training of

[[Page 797]]

personnel in the maintenance, operation and use of such equipment.
    (r) Mission means the USAID Mission or representative in a 
cooperating country.
    (s) Non-vessel-operating common carrier (NVOCC) under Section 3(17) 
of the Shipping Act of 1984 means a common carrier pursuant to Section 
3(6) of such Act that does not operate any of the vessels by which the 
ocean transportation is provided, and is a shipper in its relationship 
with an ocean carrier.
    (t) Purchase contract means any contract or similar arrangement 
under which a supplier furnishes commodities and/or commodity-related 
services financed under this part.
    (u) Responsible bidder is one who has the technical expertise, 
management capability, workload capacity, and financial resources to 
perform the work successfully.
    (v) Responsive bid is a bid that complies with all the terms and 
conditions of the invitation for bids without material modification. A 
material modification is a modification which affects the price, 
quantity, quality, delivery or installation date of the commodity or 
which limits in any way responsibilities, duties, or liabilities of the 
bidder or any rights of the importer or USAID as any of the foregoing 
have been specified or defined in the invitation for bids.
    (w) Schedule B means the ``Schedule B, Statistical Classification of 
Domestic and Foreign Commodities Exported from the United States'' 
issued and amended from time to time by the U.S. Bureau of the Census, 
Department of Commerce and available as stated in 15 CFR 30.92.
    (x) Source means the country from which a commodity is shipped to 
the cooperating country, or the cooperating country if the commodity is 
located therein at the time of the purchase. Where, however, a commodity 
is shipped from a free port or bonded warehouse in the form in which 
received therein, source means the country from which the commodity was 
shipped to the free port or bonded warehouse.
    (y) State means the District of Columbia or any State, commonwealth, 
territory or possession of the United States.
    (z) Supplier means any person or organization, governmental or 
otherwise, who furnishes commodities and/or commodity-related services 
financed under this part 201.
    (aa) Supplier's Certificate means Form AID 282 ``Supplier's 
Certificate and Agreement with the Agency for International 
Development,'' including the ``Invoice and Contract Abstract'' on the 
reverse of such form (which appears as appendix A to this part 201), or 
any substitute form which may be prescribed in the letter of commitment 
or other pertinent implementing document.
    (bb) United States means the United States of America, any State(s) 
of the United States, the District of Columbia, and areas of U.S. 
associated sovereignty, including commonwealths, territories and 
possessions.
    (cc) Vessel operating common carrier (VOCC) means an ocean common 
carrier pursuant to section 3(18) of the Shipping Act of 1984 which 
operates the vessel by which ocean transportation is provided.



Sec.  201.02  Scope and application.

    (a) The appropriate implementing documents will indicate whether and 
the extent to which this part 201 shall apply to the procurement of 
commodities or commodity-related services or both. Whenever this part 
201 is applicable, those terms and conditions of this part will govern 
which are in effect on the date of issuance of the direct letter of 
commitment to the supplier; if a bank letter of commitment is 
applicable, the terms and conditions govern which are in effect on the 
date of issuance of an irrevocable letter of credit under which payment 
is made or is to be made from funds made available under the Act, or, if 
no such letter of credit has been issued, on the date payment 
instructions for payment from funds made available under the Act are 
received by the paying bank.
    (b) The borrower/grantee is responsible for compliance with the 
applicable provisions of this part by importers and suppliers and for 
assuring that importers and suppliers are informed of the extent to 
which this part applies.

[[Page 798]]

    (c) Unless otherwise indicated, references in this part 201 to 
subparts or to sections relate to subparts or sections of this part 201.



Sec.  201.03  OMB approval under the Paperwork Reduction Act.

    (a) OMB has approved the following information collection and 
recordkeeping requirements established by this part 201 (OMB Control No. 
0412-0514, expiring July 31, 2000):

Sec.

201.13(b)(1)
201.13(b)(2)
201.15(c)
201.31(f)
201.31(g)
201.32(b)
201.32(c)
201.51(c)
201.52(a)
201.74

    (b) USAID will use the information requested in these sections to 
verify compliance with statutory and regulatory requirements and to 
assist in the administration of USAID-financed commodity programs. The 
information is required from suppliers in order to receive payment for 
commodities or commodity-related services. The public reporting burden 
for this collection of information is estimated to average a half hour 
per response, including the time required for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. Send 
comments regarding this burden estimate or any other aspect of this 
collection of information, including suggestions for reducing this 
burden, to the Office of Procurement, Policy Division (M/OP/P), U.S. 
Agency for International Development, 1300 Pennsylvania Avenue, 
Washington, DC 20523-7801, and the Office of Management and Budget, 
Paperwork Reduction Project (0412-0514), Washington, DC 20503.

[64 FR 17535, Apr. 12, 1999]



     Subpart B_Conditions Governing the Eligibility of Procurement 
                    Transactions for USAID Financing



Sec.  201.10  Purpose.

    This subpart sets forth requirements for USAID financing applicable 
to transactions for the procurement of commodities and/or commodity-
related services.



Sec.  201.11  Eligibility of commodities.

    To qualify for USAID financing, a commodity procurement transaction 
shall satisfy the following requirements:
    (a) Description and condition of the commodity. The commodity shall 
conform to the description in the implementing document. Unless 
otherwise authorized by USAID/W in writing, the commodity shall be 
unused, and may not have been disposed of as surplus by any governmental 
agency.
    (b) Source. The authorized source for procurement shall be a country 
or countries authorized in the implementing document by name or by 
reference to a USAID geographic code. The source and origin of a 
commodity must be an authorized source country. The applicable rules on 
source, origin and nationality for commodities and commodity-related 
services are in subparts (B), (C), and (F) of part 228 of this chapter.
    (c) Date of shipping documents. The documents required as evidence 
of shipment under Sec.  201.52(a)(4) shall show that the date of 
shipment was within the shipping period, if any, specified in the 
implementing document.
    (d) Medium of transportation. Shipment shall not be effected:
    (1) By a transportation medium owned, operated or under the control 
of any country not included within USAID Geographic Code 935; or
    (2) Under any ocean or air charter which has not received prior 
approval by USAID/W, Office of Procurement (Transportation Division).
    (e) Marine insurance. In accordance with the provisions of Sec.  
228.23 of this chapter, USAID may require that any USAID-financed 
commodity shipped to

[[Page 799]]

the cooperating country shall be insured against marine risks and that 
such insurance shall be placed in the United States with a company or 
companies authorized to do marine insurance business in a State of the 
United States.
    (f) Timely submission of documents. All documents required under 
Sec.  201.52 to be submitted by a supplier in order to receive payment 
or reimbursement shall be submitted to USAID under direct letters of 
commitment or to a designated bank under bank letters of credit on or 
before the terminal date specified in the letter of commitment or letter 
of credit, respectively.
    (g) U.S. Treasury Department regulations. Procurement transactions 
shall comply with the requirements of the U.S. Treasury Department 
Foreign Assets, Sanctions, Transactions and Funds Control Regulations 
published in 31 CFR parts 500 through 599, as from time to time amended.
    (h) Commodities shipped out of a free port or bonded warehouse. No 
commodity shipped out of a free port or bonded warehouse is eligible for 
USAID financing if it was shipped to the free port or bonded warehouse 
without compliance with the requirements set forth in paragraph (d)(1) 
of this section, or if it was shipped from the free port or bonded 
warehouse without compliance with the requirements set forth in 
paragraphs (d) (1) and (2) of this section.
    (i) Purchase price. The purchase price for the commodity shall 
satisfy the requirements of subpart G.
    (j) Purchases from eligible suppliers. Commodities procured with 
funds made available under this part 201 shall be purchased from 
eligible suppliers. The rules on the nationality of suppliers of 
commodities are in section 228.14 of this chapter.
    (k) Determination of commodity eligibility. The commodity shall be 
approved in writing by USAID for each purchase transaction as eligible 
for USAID financing. Such approval shall be indicated on the Application 
for Approval of Commodity Eligibility (Form AID 11) submitted to USAID 
by the supplier.

[55 FR 34232, Aug. 22, 1990, as amended at 58 FR 48797, Sept. 20, 1993; 
62 FR 38027, July 16, 1997]



Sec.  201.12  Eligibility of incidental services.

    Incidental services may be financed under the same implementing 
document which makes funds available for the procurement of equipment 
only if:
    (a) Such services are specified in the purchase contract relating to 
the equipment;
    (b) The price satisfies the requirements of Sec.  201.68;
    (c) The portion of the total purchase contract price attributable to 
such services does not exceed 25 percent; and
    (d) The supplier of such services, prior to approval of the USAID 
Commodity Approval Application, has neither been suspended or debarred 
by USAID under part 208 of this chapter, nor has been placed on the 
``Lists of Parties Excluded from Federal Procurement or Nonprocurement 
Programs,'' published by the U.S. General Services Administration.
    (e) The supplier of such services meets the requirements of Sec.  
228.25 of this chapter.

[55 FR 34232, Aug. 22, 1990, as amended at 62 FR 38027, July 16, 1997]



Sec.  201.13  Eligibility of delivery services.

    (a) General. Delivery of USAID-financed commodities may be financed 
under the implementing document provided the delivery services meet the 
requirements of this section and the applicable provisions in part 228, 
subpart C of this chapter.
    (b) Transportation costs. USAID will not finance transportation 
costs:
    (1) For shipment beyond the point of entry in the cooperating 
country except when intermodal transportation service covering the 
carriage of cargo from point of origin to destination is used, and the 
point of destination, as stated in the carrier's through bill of lading, 
is established in the carrier's tariff; or
    (2) On a transportation medium owned, operated or under the control 
of any country not included in Geographic Code 935; or

[[Page 800]]

    (3) Under any ocean or air charter covering full or part cargo 
(whether for a single voyage, consecutive voyages, or a time period) 
which has not received prior approval by USAID/W, Office of Procurement, 
Transportation Division); or
    (4) Which are attributable to brokerage commissions which exceed the 
limitations specified in Sec.  201.65(h) or to address commissions, dead 
freight, demurrage or detention.
    (c) Inspection services. USAID will finance inspection of USAID-
financed commodities when inspection is required by USAID, or in those 
cases where inspection is required by the importer and such inspection 
is specified in the purchase contract, performed by independent 
inspectors and is either customary in export transactions for the 
commodity involved or is necessary to determine conformity of the 
commodities to the contract. Section 228.24 of this chapter covers the 
nationality requirements for suppliers of inspection services.
    (d) Marine insurance. (1) Unless otherwise authorized, USAID will 
finance premiums for marine insurance including war risk on USAID-
financed commodities only if:
    (i) The insurance is placed in a country included in the authorized 
Geographic Code: Provided, that if the authorized Geographic Code is any 
other than USAID Geographic Code 000, the cooperating country itself 
shall be recognized as an eligible source; and
    (ii) Such insurance is placed either in accordance with the terms of 
the commodity purchase contract or on the written instructions of the 
importer; and
    (iii) Insurance coverage relates only to the period during which the 
commodities are in transit to the cooperating country, except that it 
may include coverage under a warehouse-to-warehouse clause; and
    (iv) The premiums do not exceed the limitations contained in Sec.  
201.68; and
    (v) The insurance provides that loss payment proceeds shall be paid 
in U.S. dollars or other freely convertible currency.
    (2) Within the meaning of Sec.  201.11(e), as well as this 
paragraph, insurance is placed in a country only if payment of the 
insurance premium is made to, and the insurance policy is issued by, an 
insurance company office located in that country.
    (e) Suspension and debarment. In order to be eligible for USAID 
financing, the costs of any delivery services must be paid to carriers, 
insurers, or suppliers of inspection services who, prior to approval of 
the USAID Commodity Approval Application, have neither been suspended 
nor debarred under USAID Regulation 8, 22 CFR part 208, nor included on 
the ``Lists of Parties Excluded from Federal Procurement or 
Nonprocurement Programs'' published by the U.S. General Services 
Administration.

[55 FR 34232, Aug. 22, 1990, as amended at 62 FR 38027, July 16, 1997]



Sec.  201.14  Eligibility of bid and performance bonds and guaranties.

    The cost of any bid bond or guaranty posted by a successful bidder 
or of any performance bond or guaranty posted by a supplier is eligible 
for financing under the implementing document, provided that the bond or 
guaranty conforms to the requirements of the invitation for bids or the 
contract, as applicable, and to the extent that the principal amount of 
the bond or guaranty does not exceed the amount customary in 
international trade for the type of transaction and commodity involved. 
Bonds or guaranties may be payable in U.S. dollars, or a freely 
convertible currency or local currency, and shall be posted in favor of 
the purchaser. Nationality requirements for sureties, insurance 
companies or banks who issue bonds or guaranties under USAID-financed 
transactions are set forth in Sec.  228.38(b) of this chapter.

[55 FR 34232, Aug. 22, 1990, as amended at 62 FR 38027, July 16, 1997]



Sec.  201.15  U.S. flag vessel shipping requirements.

    (a) General requirements. Unless USAID determines that privately 
owned U.S. flag commercial ocean vessels are not available at fair and 
reasonable rates for such vessels:
    (1) At least fifty percent (50%) of the gross tonnage (computed 
separately for dry bulk carriers, dry cargo liners, and tankers from 
each of two geographic

[[Page 801]]

areas--the U.S. and all other countries) of all goods financed by USAID 
which are transported on ocean vessels shall be transported on privately 
owned U.S. flag commercial vessels; and
    (2) At least fifty percent (50%) of the gross freight revenue 
generated by all shipments of USAID-financed commodities which are 
transported to the territory of the borrower/grantee on dry cargo liners 
shall be paid to or for the benefit of privately owned U.S. flag 
commercial vessels.
    (b) Methods of compliance. (1) Compliance with these requirements 
with respect to dry cargo liner vessels shall be achieved for the total 
of liner shipments made during the term of the loan or grant agreement. 
If USAID determines at any time during the term of the agreement that 
compliance may not be achieved, USAID may require that all subsequent 
shipments be made on U.S. flag liners until compliance is assured.
    (2) Compliance with these requirements with respect to dry bulk 
carriers and tankers shall be achieved for each quantitative unit of 
cargo. A quantitative unit of cargo is the total tonnage of a commodity 
or commodities included in one invitation for bids or other solicitation 
of offers from ocean carriers for the transportation of cargo which may 
move in full shipload lots. USAID shall approve a charter or other 
contract of affreightment for a non-U.S. flag vessel only if USAID has 
determined that at least 50% of the quantitative unit will move on U.S. 
flag vessels, to the extent that such vessels are available at fair and 
reasonable rates for such vessels. U.S. flag dry cargo liners whose 
offers are responsive to the terms of the invitation for bids or other 
solicitation of vessels may be used for achieving compliance for the 
quantitative unit.
    (c) Nonavailability of U.S. flag vessels. Upon application of the 
borrower/grantee or the supplier, USAID/W, Office of Procurement, 
Transportation Division, shall determine and advise the applicant 
whether or not privately owned U.S. flag vessels are available for any 
specific shipment of commodities at fair and reasonable rates. A 
determination that U.S. flag vessels are not available does not carry 
with it the authorization for USAID to finance freight on a vessel not 
otherwise authorized; this requires a separate waiver approval in 
accordance with Sec.  201.13(b)(1)(ii).
    (d) Responsibility. The borrower/grantee is responsible for 
compliance with the requirements of this section and for imposing upon 
subborrowers, contractors and importers such requirements regarding 
shipping arrangements with suppliers as will assure discharge of this 
responsibility.
    (e) Privately owned U.S. flag commercial vessels. For purposes of 
this section the term ``privately owned U.S. flag commercial vessels'' 
shall not include any vessel which, subsequent to September 21, 1961, 
shall have been either built outside the U.S., rebuilt outside the U.S. 
or documented under any foreign registry until such vessel shall have 
been documented under the laws of the U.S. for a period of 3 years.



     Subpart C_Procurement Procedures; Responsibilities of Importers



Sec.  201.20  Purpose.

    This subpart prescribes procurement procedures which shall apply to 
an importer whenever a commodity procurement is to be financed by USAID 
subject to this part 201.



Sec.  201.21  Notice to supplier.

    The importer is responsible for providing the supplier with the 
following information (either through the invitation for bids, the 
request for quotations or otherwise):
    (a) Notice that the transaction is to be financed by USAID under 
this part 201;
    (b) The identification number of the implementing document;
    (c) All additional information prerequisite to USAID financing and 
contained in the instructions from the borrower/grantee to the importer 
(for example, eligible source of commodity, periods during which 
deliveries must be made, shipping provisions, and documentation 
requirements); and, where appropriate,
    (d) Notice of the marking requirements in Sec.  201.31(d), when the 
importer is the government of the cooperating

[[Page 802]]

country or any if its subdivisions or instrumentalities.



Sec.  201.22  Procurement under public sector procedures.

    (a) General requirements. When the importer is the government of the 
cooperating country or any of its subdivisions, agencies or 
instrumentalities, all purchase contracts for commodities shall be 
awarded under public sector procedures in this section unless otherwise 
authorized by USAID. Such contracts shall be awarded on a competitive 
basis unless otherwise authorized by USAID under paragraph (g) of this 
section.
    (b) Formal competitive bidding. Formal competitive bidding 
procedures shall be used for all procurements estimated to exceed 
$100,000 or the equivalent, exclusive of ocean or air transportation 
costs, except when other procedures are authorized in accordance with 
this section. Formal competitive bidding procedures may also be used for 
procurements under $100,000 at the option of the importer. Formal 
competitive bidding procedures include advertising the availability of 
an invitation for bids in accordance with paragraph (h) of this section, 
issuance of the invitation for bids, public opening of sealed bids, 
evaluation of bids, and award of the contract, except as provided in 
Sec.  201.22(b)(3), to the lowest responsive bid by a responsible 
bidder.
    (1) Contents of the invitation for bids. The invitation for bids and 
every attachment and amendment thereto shall be in the English language 
and shall be available to prospective suppliers free of charge unless 
otherwise authorized by USAID. The following minimum requirements are 
applicable:
    (i) Statement of requirements. The invitation for bids shall state 
specifically that the formal competitive bidding procedures set forth in 
this Sec.  201.22 apply. The terms and conditions of the procurement 
shall be clearly indicated, including any factors other than price to be 
used in the evaluation. Commodity specifications shall be stated in a 
non-restrictive manner and in sufficient detail to permit maximum 
response from prospective suppliers. The metric system of measurements 
shall be used for specifications unless USAID determines in writing that 
such use is impractical or is likely to cause significant inefficiencies 
or the loss of markets to U.S. firms.
    (ii) Statement regarding submission of bids. The invitation for bids 
shall be appropriately numbered and state the complete physical address, 
as well as any post office box number, to which bids or offers are to be 
sent, the closing hour and date for submission and the date, hour and 
place of the public opening of the bids. If additional drawings, 
details, regulations or forms are necessary for submitting a bid, the 
invitation shall state where such material may be obtained.
    (iii) Statement regarding this part 201. The invitation for bids 
shall expressly indicate the extent to which any resulting contract is 
subject to the requirements of this part 201.
    (iv) Statement regarding late bids. The invitation for bids shall 
state that no bid received at the address designated in the invitation 
after the closing hour and date for submission will be considered for 
award unless its late arrival at that address is attributable solely to 
mishandling of the bid documents by the importer or any of its agents 
directly associated with receiving or processing the bids. In no case 
will the importer consider a bid which was not received at the place of 
public opening before the award was made.
    (2) Handling bids. Bids received shall be held intact and sealed and 
shall be safeguarded against disclosure of contents prior to bid 
opening. The bids shall be opened publicly as specified in the bid 
invitation, and all properly submitted bids shall be considered. Direct 
submission of a bid by a prospective supplier, rather than through an 
agent or other representative of the supplier in the cooperating 
country, shall not be cause for rejection.
    (3) Awards. Every award shall be made to that responsible bidder 
whose responsive bid is lowest in price. If any factor other than price 
is used in evaluating bids, each such factor shall be computed in 
accordance with the formula in the invitation for bids.
    (c) Two-stage formal competitive bidding. Subject to the approval of 
USAID, two-stage formal competitive bidding

[[Page 803]]

may be used in the procurement of specialized equipment, where 
requirements are stated in performance-type specifications. Two-stage 
bidding involves a request for technical proposals for the equipment 
being purchased, submission of proposals without price information, 
discussions with the offerors as necessary to clarify proposals, 
followed by a request for priced bids for those proposals found to be 
fully acceptable following discussions between the offerors and the 
purchaser. The priced bids shall be publicly opened. Handling and award 
of the bids shall comply with paragraphs (b) (2) and (3) of this 
section.
    (d) Competitive negotiation procedures. (1) If approved by USAID 
based on a written record of the reasons therefor, a competitive 
negotiation procedure may be used. Competitive negotiation procedures 
include advertising the availability of a request for quotations in 
accordance with paragraph (h) of this section, issuance of the request 
for quotations, receipt and evaluation of offers, negotiation (when 
appropriate), and award of the contract to the offeror submitting the 
most advantageous offer, price and other factors considered. Competitive 
negotiation procedures may be approved in the following circumstances:
    (i) When it is impossible to develop adequate commodity 
specifications for use in an invitation for bids;
    (ii) When price alone would not be an effective means of determining 
an award (i.e., when criteria, such as time of delivery or service 
capability need to be evaluated);
    (iii) When emergency procurement is justified by a demonstration 
that the time required for formal competitive bid procedures would 
result in an unacceptable delay in delivering the commodities;
    (iv) When proprietary procurement is justified; or
    (v) When adherence to formal competitive procedures would impair 
program objectives.
    (2) When formal competitive bidding procedures have failed, all bids 
have been rejected, and further use of such procedures would clearly not 
be productive, the Mission Director may authorize the use of competitive 
negotiation procedures. Further advertising is not required. The request 
for quotations may be prepared as a new document or may incorporate 
appropriate provisions of the invitation for bids. It shall be submitted 
to those potential suppliers who originally submitted bids in response 
to the invitation for bids.
    (e) Small value procurement. When the estimated value of the 
contract does not exceed $100,000 or equivalent (exclusive of ocean and 
air transportation costs), the purchaser may award a contract by 
advertising the procurement in accordance with paragraph (h) of this 
section and soliciting quotations from a reasonable number of sources, 
including, where feasible, producers of the commodity, taking into 
consideration:
    (1) The nature of the commodities to be purchased;
    (2) The number of sources which can supply the commodities;
    (3) The value of the procurement; and
    (4) The administrative cost of procuring the commodities.

The contract shall be awarded to the offeror with the most advantageous 
offer, price and other factors considered.
    (f) Proprietary procurement. Purchasing by brand or trade name or by 
a restrictive specification (proprietary procurement) may be justified 
for reasons such as:
    (1) Substantial benefits, such as economies in maintenance of spare 
parts inventories, stronger local dealer organization, better repair 
facilities, or greater familiarity by operating personnel, can be 
achieved through standardizing on a particular brand;
    (2) Compatibility with equipment on hand is required; or
    (3) Special design or operational characteristics are required.

The need for proprietary procurement may serve as the basis for 
approving the use of competitive negotiation procedures in accordance 
with paragraph (d) of this section or a waiver for negotiation with a 
single source in accordance with paragraph (g) of this section.
    (g) Negotiation with a single source--(1) Circumstances. Competition 
may be waived and negotiation with a single

[[Page 804]]

source authorized by USAID under one of the following circumstances:
    (i) the purchaser can demonstrate the existence of an emergency 
situation in which the requirement for competition would result in an 
unacceptable delay in the procurement of the commodities;
    (ii) proprietary procurement is justified and the necessary 
commodities or spare parts are available from only one source, taking 
into account any special requirements such as the need for in-country 
service capability; or
    (iii) adherence to competitive procedures would result in the 
impairment of the objectives of the United States foreign assistance 
program or would not be in the best interest of the United States.
    (2) Amendments. Negotiation with a single source to amend an 
existing contract outside the scope of the contract must be justified 
under one or more of the criteria in paragraph (g)(1) of this section 
and formally approved by USAID.
    (h) Advertising--(1) Requirements. (i) For each procurement 
estimated to exceed $25,000, or equivalent (exclusive of ocean and air 
transportation costs), notice of the availability of the invitation for 
bids, request for quotations or specific information about procurements 
under $100,000 shall be published by the USAID Office of Small and 
Disadvantaged Business Utilization/Minority Resource Center in the 
appropriate USAID Bulletin. The purchaser shall submit three copies of 
each invitation for bids or request for quotations (if any) to the USAID 
Mission with its request for advertising. The Mission will forward the 
request for advertising and the procurement documents to USAID/W. The 
request for advertising should arrive in the Office of Small and 
Disadvantaged Business Utilization/Minority Resource Center at least 45 
days prior to the final date for receiving bids or quotations. The 
purchaser may, in addition, advertise in appropriate local, regional, 
and international journals, newspapers, etc., and otherwise, in 
accordance with local practice.
    (ii) Additionally, if the estimated value of the contract is more 
than $100,000, or equivalent (exclusive of ocean and air transportation 
costs), the notice of availability of the invitation for bids or request 
for quotations shall be published in the ``Commerce Business Daily'' of 
the U.S. Department of Commerce.
    (2) Exceptions. (i) When negotiation with a single source has been 
authorized, advertising is not required.
    (ii) When formal competitive bid procedures have failed to result in 
an award pursuant to paragraph (d)(2) of this section and a 
determination is made to follow competitive negotiation procedures, no 
further advertising is required.
    (iii) The requirements for advertising as set forth above may be 
waived by USAID to avoid serious procurement delays in certain 
circumstances, provided, however, that efforts shall be made to secure 
bids or offers from a reasonable number of potential suppliers.
    (i) USAID approvals. (1) Each invitation for bids or request for 
quotations for an USAID-financed procurement which is estimated to 
exceed $100,000, or equivalent (exclusive of ocean and air 
transportation costs), must be approved by USAID prior to issuance.
    (2) Each contract in excess of $100,000, or equivalent (exclusive of 
ocean and air transportation costs), must be formally approved by USAID 
prior to finalization with the supplier.
    (3) USAID may require that contracts under $100,000 be formally 
approved prior to finalization with the supplier.



Sec.  201.23  Procurement under private sector procedures.

    (a) General requirements. Procurements under private sector 
procedures will normally be carried out by importers using negotiated 
procurement procedures, unless the importer chooses to follow the 
procedures in Sec.  201.22. Procurement on a negotiated basis shall be 
in accordance with good commercial practice. Solicitations by the 
importer for quotations or offers shall be made uniformly to a 
reasonable number of prospective suppliers, including, where feasible, 
producers of a commodity, and all quotations or offers received, whether 
or not specifically solicited, shall be given consideration before 
making an award.

[[Page 805]]

    (b) Publicizing. To provide suppliers in the United States with an 
opportunity to participate in furnishing commodities which may be 
purchased on a negotiated basis under USAID financing, USAID will 
periodically publish for each cooperating country a list of commodities 
which may be expected to be imported and the names and contact 
information for the importers which have traditionally purchased those 
commodities. Interested suppliers may then make offers or furnish 
quotations on the products they desire to sell directly to the importers 
of those products. USAID will not publicize specific proposed purchases 
which are to be undertaken by private sector importers on a negotiated 
basis unless specifically requested to do so by the importer in 
accordance with the provisions of paragraph (c) of this section.
    (c) Notification. If the importer elects to solicit quotations and 
offers for specific proposed purchases through publication by USAID, 
USAID will notify prospective suppliers of the export opportunity 
through the appropriate USAID bulletin. Requests for such notification 
shall be submitted to the Office of Small and Disadvantaged Business 
Utilization/Minority Resource Center, USAID, Washington, DC 20523-7700, 
and shall contain the name and contact information for the importer, a 
full description of the commodities and any commodity related services 
required, applicable price and delivery terms and other relevant 
procurement data, in the English language. The metric system of 
measurements shall be used for specifications unless USAID determines in 
writing that such use is impractical or is likely to cause significant 
inefficiencies or the loss of markets to U.S. firms.
    (d) Notice of quotations and offers received. USAID may require that 
the importer furnish an abstract in the English language and identify 
thereon all offers or quotations received, the offer accepted or order 
placed, the price, the quantity, the name and address of all persons 
submitting offers or quotations and of their principals, if any 
(including manufacturers or processors of the commodity).
    (e) Procurement under special supplier-importer relationships--(1) 
Solicitation of offers from more than one supplier is not required if:
    (i) The importer is purchasing for resale or processing, as the 
supplier's regularly authorized distributor or dealer, a commodity 
which, under the terms of the distributorship or dealer agreement, the 
importer is precluded from buying from another supplier; or
    (ii) The importer is purchasing for resale a registered brand-name 
commodity from a supplier who is the exclusive distributor of that 
commodity to the area of the importer.
    (2) USAID may require the importer to furnish, or cause to be 
furnished, to USAID documentary evidence of the existence of the 
relationships described in paragraph (e)(1) of this section.

[55 FR 34232, Aug. 22, 1990, as amended at 64 FR 17535, Apr. 12, 1999]



Sec.  201.24  Progress and advance payments.

    (a) Definitions--(1) Progress payments. Progress payments are 
payments made prior to shipment under a fixed price procurement 
contract, which are based on actual costs incurred or on an actual stage 
or percentage of completion accomplished.
    (2) Advance payments. Advance payments are payments to a supplier 
prior to, and in anticipation of, performance under a procurement 
contract. They are not based on actual performance or actual costs 
incurred.
    (b) Progress payments--(1) Conditions for eligibility. USAID will 
approve progress payments only if:
    (i) The period between the commencement of work and the first 
required delivery will exceed four months;
    (ii) There will be substantial predelivery costs that may have a 
material impact on a suppliers's working capital;
    (iii) The total FAS purchase price will exceed $200,000;
    (iv) The supplier must establish a performance bond or guaranty in 
favor of the borrower/grantee providing adequate security for the amount 
of the progress payments; and

[[Page 806]]

    (v) The amount of the progress payments does not exceed 95 percent 
of the total FAS purchase price.
    (2) Notice. In order for progress payments to be eligible under a 
competitive procurement, the solicitation document must state that such 
payments will be allowed and that a request for progress payments will 
not be considered an adverse factor in the award of the contract.
    (3) Approval. All progress payments must be approved in writing by 
USAID.
    (c) Advance payments--(1) Conditions for eligibility. Advance 
payments may be authorized only if USAID has made a positive 
determination in writing that:
    (i) USAID will benefit therefrom, in terms of increased competition 
and/or lower prices, prior to the issuance of the solicitation or prior 
to award of a noncompetitive contract; and
    (ii) The supplier has a financial management system which is 
adequate for controlling and accounting for U.S. government funds.
    (2) Amount. The amount of the advance is based on an analysis of the 
working capital required under the procurement contract, taking into 
consideration the availability of the supplier's own working capital and 
shall be limited to the minimum amount needed for immediate disbursing 
needs.
    (3) Security. The supplier must establish an advance payment bond or 
guaranty in favor of the borrower/grantee providing adequate security 
for the amount of the advance payment.
    (4) Notice. In order for advance payments to be eligible under a 
competitive procurement, the solicitation document must state that such 
payments will be allowed and that a request for advance payments will 
not be considered an adverse factor in the award of the contract.
    (5) Approvals. All advance payments must be approved by USAID in 
writing.



Sec.  201.25  Bid and performance bonds and guaranties.

    Whenever the importer requires the posting of a bid bond or guaranty 
or performance bond or guaranty, the type of bond or guaranty (certified 
check, irrevocable letter of credit, bank bond, bank guaranty, or surety 
bond) shall be at the option of the bidder or supplier. Posted bid bonds 
or guaranties shall be returned to unsuccessful bidders promptly after 
an award is made. Unless converted to a required performance bond or 
guaranty, any bid bond or guaranty posted by the successful bidder shall 
also be returned promptly. Performance bonds or guaranties (as 
distinguished from commodity warranties of quality or performance) shall 
be canceled no later than 30 days after completion of the contract 
performance guarantied.



Sec.  201.26  Expenditure of marine insurance loss payments.

    Unless otherwise authorized by USAID, any marine insurance loss 
payment under a marine insurance policy financed pursuant to this part 
201 received by the importer, either directly or indirectly, shall be 
used by the importer as follows:
    (a) To procure from a source specified in the implementing document 
which originally provided the USAID funds, commodities which have been 
designated by USAID to the borrower/grantee as eligible for USAID 
financing; or
    (b) To cover the cost of repairs to commodities damaged during 
shipment.



                 Subpart D_Responsibilities of Suppliers



Sec.  201.30  Purpose.

    This subpart establishes the responsibilities of suppliers who 
furnish commodities and/or commodity-related services.



Sec.  201.31  Suppliers of commodities.

    (a) Performance of the sales contract. The supplier of commodities 
shall comply with the terms and conditions of its contract with the 
importer and any letter of credit or direct letter of commitment under 
which it secures payment.
    (b) Responsibilities relating to eligibility of commodities. The 
supplier shall fulfill its responsibilities under Sec.  201.11 by 
assuring that:
    (1) The commodity conforms to the description contained in its 
contract and letter of credit or direct letter of

[[Page 807]]

commitment and, unless otherwise authorized by USAID in writing, the 
commodity is unused and has not been disposed of as surplus by any 
governmental agency;
    (2) The source of the commodity complies with the provisions of 
Sec.  201.11(b) relating to source as required by its contract, letter 
of credit or direct letter of commitment;
    (3) The provisions of Sec.  201.11(d) relating to the medium of 
transportation are complied with to the extent that the supplier 
arranges such transportation;
    (4) All documents required by Sec.  201.52 to be submitted by the 
supplier to receive payment are submitted by it on or before the 
terminal date specified in the letter of credit, direct letter of 
commitment, or, if payment is to be made at sight, the purchase 
contract;
    (5) The provisions of the U.S. Treasury Department Foreign Assets, 
Sanctions, Transactions and Funds Control Regulations published in 31 
CFR parts 500 through 599, as from time to time amended, are complied 
with; and
    (6) The purchase price of the commodity meets the requirements of 
subpart G of this part applicable to the supplier.
    (c) Responsibilities relating to eligibility of delivery services. 
The supplier of commodities shall be responsible for assuring that any 
delivery services obtained by it for its own or for the importer's 
account comply with the requirements of Sec.  201.13 and, if required by 
USAID, for assuring that any shipping documents obtained by it contain 
an appropriate diversion clause pursuant to Sec.  201.43. The supplier 
shall deliver to USAID any shipping documents available to it whenever 
such delivery is requested by USAID.
    (d) Marking of shipping containers and commodities--(1) Affixing 
emblems and identification numbers. The supplier of commodities shall be 
responsible for assuring that all export packaging, whether shipped from 
the United States or from any other source country, carries the official 
USAID (clasped hands) emblem. Additionally, except as USAID may 
otherwise prescribe, when the supplier is given notice by the importer 
that the importer is the government of the cooperating country or any of 
its subdivisions or instrumentalities, the supplier shall also be 
responsible for assuring that, in addition to the shipping cartons or 
other export packaging, all commodities carry the USAID emblem. The 
USAID financing document number shall be marked on each export shipping 
carton and box in characters at least equal in height to the shipper's 
marks. When commodities are shipped as containerized freight in a 
reusable shipping container, the container is not considered export 
packaging within the meaning of this paragraph and the outside of the 
container need not be marked; however, the cartons, boxes, etc., inside 
the container must be marked.
    (i) Durability of emblems. Emblems shall be affixed by metal plate, 
decalcomania, stencil, label, tag or other means, depending upon the 
type of commodity or export packaging and the nature of the surface to 
be marked. The emblem placed on commodities shall be as durable as the 
trademark, commodity or brand name affixed by the producer; the emblem 
on each export packaging unit shall be affixed in a manner which assures 
that the emblem will remain legible until the unit reach the consignee.
    (ii) Size of emblems. The size of an emblem may vary depending upon 
the size of the commodity and the size of the export packaging. The 
emblem shall in every case be large enough to be clearly visible at a 
reasonable distance.
    (iii) Design and color of emblems. Emblems shall conform in design 
and color to samples available from the Office of Procurement, Commodity 
Support Division, USAID, Washington, DC 20523-1415, and from the 
Mission.
    (2) Exception to requirement for affixing emblems. To the extent 
compliance is impracticable, emblems shall not be required for:
    (i) Raw materials shipped in bulk (including grain, coal, petroleum, 
oil, and lubricants);
    (ii) Vegetable fibers packaged in bales; and
    (iii) Semifinished products which are not packaged in any way.
    (3) Waiver. If compliance with the marking requirement is found to 
be impracticable with respect to other commodities not excepted by 
paragraph

[[Page 808]]

(d)(2) of this section, the supplier (or, when appropriate, the 
borrower/grantee) may request a waiver from USAID (Regional Assistant 
Administrator or his/her designee).
    (e) Export licenses and approvals. The supplier shall be solely 
responsible for assuring that all necessary export licenses and 
approvals are obtained.
    (f) Distribution of shipping documents. The supplier shall make the 
customary commercial document distribution, as well as any special 
distribution (e.g., to the USAID Mission in the importing country) which 
may be specified in the letter of credit, direct letter of commitment or 
other payment instruction covering the transaction. Prior to presenting 
the documents specified in Sec.  201.52 for payment, the supplier shall 
mail not later than 30 days from the date of shipment a legible copy of 
all rated ocean bill(s) of lading described in Sec.  201.52(a)(4)(i) to: 
Maritime Administration, Division of National Cargo, 400 Seventh Street 
SW., Washington, DC 20590-0001; and Transportation Division, Office of 
Procurement, USAID, Washington, DC 20523-7900.
    (g) Adjustment refunds, credits, and allowances. All adjustments in 
the purchase price in an USAID-financed transaction in favor of the 
importer arising out of the terms of the contract or the customs of the 
trade shall be made by the supplier in the form of a dollar payment to 
USAID. Any such payment shall be transmitted to the Office of Financial 
Management, USAID, Washington, DC 20523-7702, and shall be accompanied 
by a statement explaining the adjustment and shall specify the name and 
address of the importer, the date and amount of the original invoice, 
and the identification number of the implementing document, if known, 
under which the original transaction was financed. USAID will advise the 
borrower/grantee of such adjustment refunds received. Despatch earned by 
the supplier, other than despatch earned at the port of loading on 
c.i.f. and c. & f. shipments, shall be refunded to USAID in accordance 
with Sec.  201.67(a)(5).
    (h) Vesting in USAID of title to commodities. The supplier shall be 
responsible for compliance with the provisions of Sec.  201.44 
applicable to it.
    (i) Termination or modification of USAID-financing. The supplier 
shall be responsible for compliance with the provisions of Sec.  201.45 
applicable to it.

[55 FR 34232, Aug. 22, 1990, as amended at 64 FR 17535, Apr. 12, 1999]



Sec.  201.32  Suppliers of delivery services.

    (a) Performance of the service contract. The supplier of delivery 
services financed by USAID shall comply with the terms and conditions of 
its contract to supply delivery services.
    (b) Adjustment in the price of delivery services. The supplier of 
delivery services shall pay to the Office of Financial Management, 
USAID, Washington, DC 20523-7792, all adjustments in the purchase price 
in favor of the importer (or person purchasing the ocean transportation 
services) arising out of the terms of the contract or the customs of the 
trade. Any such payment shall be accompanied by a statement explaining 
the adjustment and shall specify the name and address of the importer or 
other person for whom the adjustment is made, the date and amount of the 
original invoice, and the identification number of the implementing 
document, if known, under which the original transaction was financed.
    (c) Marine insurance reporting requirement. With respect to any loss 
payment exceeding $10,000 in value which a supplier of marine insurance 
makes under a marine insurance policy financed pursuant to this part, 
the supplier of marine insurance shall, within 15 days of making such 
payment, report to the Commodity Support Division, Office of 
Procurement, USAID, Washington, DC 20523-7900, the amount and date of 
the payment, a description of the commodity, the USAID identification 
number, name of the carrier, vessel, and voyage number (alternatively, 
flight or inland carrier run number), date of the bill(s) of lading, the 
identity and address of the assured, and the identity and address of the 
assignee of the assured to whom payment has actually been made.

[55 FR 34232, Aug. 22, 1990, as amended at 64 FR 17535, Apr. 12, 1999]

[[Page 809]]



Subpart E_General Provisions Relating to USAID Financing of Commodities 
                     and Commodity-Related Services



Sec.  201.40  Purpose.

    This subpart sets forth certain provisions of general application to 
transactions subject to this part.



Sec.  201.41  Audit and inspection.

    The borrower/grantee shall maintain records adequate to document the 
arrival and disposition in the cooperating country of all commodities 
financed by USAID, and to identify the importer (or the first purchaser 
or transferee if the commodity is imported by the borrower/grantee) for 
a period of 3 years following the date of payment or reimbursement by 
USAID or for such other period as USAID and the borrower/grantee agree. 
In addition, the borrower/grantee or the importer shall, to the extent 
either exercises control or custody over the commodities, permit USAID 
or any of its authorized representatives at all reasonable times during 
the 3-year or other agreed period to inspect the commodities at any 
point, including the point of use, and to inspect all records and 
documents pertaining to such commodities.



Sec.  201.42  Reexport of USAID-financed commodities.

    Unless specifically authorized by USAID, commodities imported into a 
cooperating country under USAID-financing may not be exported in the 
same or substantially in the same form from the cooperating country. In 
the event of any unauthorized reexport, the borrower/grantee shall pay 
promptly to USAID, upon demand, the entire amount reimbursed or such 
lesser or greater amount as USAID may deem appropriate under the 
circumstances of the particular transaction. Such an amount shall in no 
event, however, exceed the greater of either the amount reimbursed or 
the amount realized from the reexport.



Sec.  201.43  Diversion clause.

    USAID may require that charter parties, bills of lading, or other 
ocean shipping documents covering USAID-financed commodities contain a 
clause substantially as follows:

    USAID may at any time prior to unloading prescribe a different port 
of discharge from among the ports covered by the applicable tariff. 
Diversion charges shall apply in accordance with the tariff or contract 
of affreightment. Deviation insurance and extra handling costs actually 
incurred shall be reimbursed.



Sec.  201.44  Vesting in USAID of title to commodities.

    (a) Vesting upon order of USAID USAID may direct that title to 
USAID-financed commodities in transit to a cooperating country shall be 
vested in USAID if, in the opinion of USAID, such action is necessary to 
assure compliance with the provisions or purposes of any act of 
Congress.
    (1) Rights of USAID upon vesting of title. In accordance with 
instructions by USAID, the borrower/grantee, supplier, and bank shall 
transfer such negotiable bills of lading, suppliers' invoices, packing 
lists, inspection certificates or other designated documents relating to 
the commodities as are in, or may come into, their possession.
    (2) Diversion of commodities. USAID may direct the master or 
operator of a vessel or an inland carrier carrying the commodities to 
divert them away from the port or other destination specified in the 
shipping documents and to deliver them at such other destination as 
USAID may designate.
    (b) Financial responsibility of USAID under vesting order. (1) USAID 
will reimburse a supplier who has not already received payment under the 
purchase contract for all commodities with respect to which USAID has 
taken title under a vesting order.
    (2) USAID will assume the responsibility for any extra costs 
(including the costs of marine insurance and handling) which are 
incurred as a result of a diversion. Such costs shall not exceed 
diversion charges as per tariff (liner shipments) or contract of 
affreightment (charters), and shall include only those deviation 
insurance and extra handling costs which are actually incurred.
    (3) USAID shall incur no liability to the borrower/grantee, the 
importer, or to the approved applicant by reason of any order which 
vests in USAID title

[[Page 810]]

to commodities, or by reason of any request for the diversion of 
commodities.



Sec.  201.45  Termination or modification of a loan, grant 
or implementing document.

    (a) Effect of termination or modification. (1) Except as provided in 
paragraph (a)(2) of this section, the availability of USAID funds to 
finance the procurement of commodities and commodity-related services 
shall terminate or shall be modified, whenever and to the same extent 
that the implementing document which relates to such delivery is 
terminated or modified by operation of provisions contained in the 
document, or by the exercise of rights otherwise reserved to USAID.
    (2) Unless the supplier and USAID agree otherwise, to the extent 
that the supplier has received an irrevocable letter of credit from a 
bank under an USAID letter of commitment, the purchase contract shall be 
affected only to the extent necessary to comply with any vesting order 
issued by USAID in accordance with Sec.  201.44.
    (b) Responsibilities of parties after termination or modification of 
USAID-financing. Upon termination or modification of USAID-financing of 
commodities or commodity-related services, the supplier, importer and 
approved applicant shall make such arrangements as are necessary to 
obtain the cancellation or modification of any letter of credit in favor 
of the supplier.



Sec.  201.46  Compensation to supplier if shipment is prohibited.

    (a) Payment to supplier. USAID shall make appropriate payment to a 
supplier for the value of USAID-financed commodities available for 
immediate shipment from the United States if all the following 
conditions are satisfied:
    (1) Shipment is prohibited by order of the U.S. Government and such 
order has general application to all shipments to the cooperating 
country.
    (2) Payment may not be made by the bank under the terms of the 
letter of credit or payment instructions.
    (3) The supplier is unable to dispose of the commodities without 
loss.
    (4) The supplier tenders to USAID a negotiable warehouse receipt 
covering the commodities in question and presents to USAID such other 
documentation required by Sec.  201.52 as may be appropriate under the 
circumstances.
    (b) Other settlement. In lieu of accepting title to the commodities, 
USAID may negotiate with the supplier such other settlement as may be 
fair and equitable under the circumstances.



Sec.  201.47  Use of marine insurance loss proceeds.

    The borrower/grantee shall pay promptly to USAID a sum equal to the 
proceeds received by an importer or its assignee in settlement of a 
marine insurance claim under a marine insurance policy financed pursuant 
to this part 201, if such proceeds are not expended in the manner 
provided by Sec.  201.26 within a reasonable period after receipt by the 
importer.



                   Subpart F_Payment and Reimbursement



Sec.  201.50  Purpose.

    This subpart describes:
    (a) The methods by which USAID will make payment or reimbursement 
for commodities and commodity related services which have been 
furnished;
    (b) The documentation required to be submitted to USAID for the 
purpose of obtaining such payment or reimbursement; and
    (c) The terminal date for presentation of documents which USAID 
requires as a condition for payment or reimbursement.



Sec.  201.51  Methods of financing.

    Under procurements subject to this part 201, the following methods 
of financing may be employed by USAID In each case, the method of 
financing shall be consistent with provisions in the pertinent 
implementing documents.
    (a) Direct reimbursement. Upon presentation to USAID of the 
documents specified in Sec.  201.52, a borrower/grantee will be 
reimbursed for the cost of commodities and commodity-related services 
procured by the borrower/grantee directly or procured by other importers 
with the authorization of the borrower/

[[Page 811]]

grantee, if such commodities or services are eligible under the 
implementing document and under this part 201 for USAID-financing.
    (b) Letter of commitment to a bank. At the request of the borrower/
grantee, USAID will issue a letter of commitment to a bank for a 
specified amount in dollars. Reimbursement to a bank will be in 
accordance with the terms of such letter of commitment for sight 
payments made for the account of an approved applicant. Any such payment 
by a bank made in anticipation of a letter of commitment and falling 
within the scope of payments authorized by such letter of commitment 
when issued, will be deemed to be a payment to be reimbursed by USAID 
thereunder.
    (1) Requests for bank letters of commitment. All requests for bank 
letters of commitment shall be in the English language and shall be 
submitted to USAID by the borrower/grantee in duplicate. They shall 
contain the following:
    (i) Identification of the loan or grant agreement;
    (ii) The dollar amount of the letter of commitment;
    (iii) The name and address of the bank to which the letter of 
commitment is to be issued;
    (iv) The name and address of the approved applicant;
    (v) The expiration date to be stated in the letter of commitment, 
which shall be not later than the final date specified in the 
implementing document for submission of documentation to the bank as a 
basis for disbursement against the letter of commitment, except that, if 
a terminal shipping date is provided in the implementing document, the 
expiration date shall be the last day of the month following the month 
in which the terminal shipping date occurs.
    (vi) Identification of the items to be financed under the letter of 
commitment (including the Schedule B identification).
    (2) Approved applicant's request to bank--(i) Form and effect of 
request. An approved applicant may apply to the bank holding a letter of 
commitment for the issuance, confirmation, or advice of a commercial 
letter of credit for the benefit of a supplier, or may instruct the bank 
to make payments at sight to such supplier, or may instruct the bank to 
make payments at sight to or for the account of the borrower/grantee.
    (ii) Borrower/grantee assignment under a letter of commitment. The 
borrower/grantee's request to USAID for a letter of commitment shall be 
deemed notification to USAID of assignment of any rights to receive 
reimbursement for the specified funds under the related implementing 
document. USAID, by issuance of the letter of commitment, shall be 
deemed to have consented to such assignment. Any such assignment or 
consent shall inure to the benefit of the bank's legal successors and 
assignees.
    (iii) Requirements imposed by bank. The borrower/grantee and the 
approved applicant shall be deemed to have consented to imposition by 
the bank upon the beneficiary of any letter of credit or payment 
instruction of such requirements as the bank deems necessary in order to 
comply with its applicable obligations to USAID. Such consent shall be 
deemed an express condition incorporated in any request of the approved 
applicant under paragraph (b)(2)(i) of this section.
    (3) Reimbursement of bank. Upon presentation to USAID of the 
documents described in Sec.  201.52, USAID will reimburse the bank for 
any amounts paid by it in dollars to or on behalf of the approved 
applicant pursuant to a letter of commitment, subject, however, to 
compliance by the bank with the requirements of subpart H. Such 
documents in the normal course should be presented to USAID promptly. 
Bank charges will be eligible for reimbursement if authorized in the 
letter of commitment. Reimbursement normally will be made within 7 days 
by an electronic funds transfer.
    (c) Bank charges under letters of commitment. (1) To claim 
reimbursement for commissions, transfers or other charges, not including 
interest on advances, the bank shall submit the Voucher SF 1034 and 
shall attach thereto a copy of the payment advice which identifies the 
costs being billed.
    (2) To claim reimbursement for interest on advances, the bank shall 
claim

[[Page 812]]

reimbursement on the Voucher SF 1034, attaching thereto:
    (i) The monthly statement of advance account established under the 
letter of commitment, in duplicate, showing:
    (A) The opening balance;
    (B) The date and amount of each type of charge attributable to the 
letter of commitment, indicating the number of the letter of commitment, 
subsidiary letter of credit, or payment instruction or request under 
which the charge was made;
    (C) The date and amount of each USAID reimbursement to the bank, 
indicating either the USAID bureau voucher number or the number of the 
letter of commitment, subsidiary letter of credit, or payment 
instruction or request under which the payment was made; and
    (D) The closing balance;
    (ii) The bank's monthly advice of charge, in duplicate, showing:
    (A) The outstanding balance in the advance account on each day of 
the period covered; and
    (B) The amount of interest charged during the period.
    (3) Certification. Each claim for reimbursement shall have endorsed 
thereon or attached thereto a certification by an authorized 
representative of the bank that the charges for which payment is being 
claimed are in accordance with the schedule of charges agreed on between 
the bank and the approved applicant or beneficiary.
    (4) Report. The bank shall submit a report showing the financial 
status of each letter of commitment issued to it by USAID. The content, 
format and frequency of the report shall be prescribed in the letter of 
commitment. The report shall be prepared in an original and two copies, 
and distributed as follows: USAID/W (original), approved applicant 
(copy) and cognizant Mission (copy). The report to USAID/W should be 
sent to the Office of Financial Management, Cash Management and Payment 
Division (M/FM/CMP), USAID, Washington, DC 20523-7702. The report shall 
be certified by an authorized signatory of the bank.
    (d) Direct letter of commitment to a supplier. (1) At the request of 
a borrower/grantee, USAID may issue a direct letter of commitment to a 
supplier assuring payment by USAID of specified amounts to cover the 
cost of commodities and commodity-related services. The letter of 
commitment to a supplier will identify the purchase contract to which it 
relates and the implementing document under which it is issued.
    (2) Assignment may be permitted as provided for in the direct letter 
of commitment.

[55 FR 34232, Aug. 22, 1990, as amended at 64 FR 17535, Apr. 12, 1999]



Sec.  201.52  Required documents.

    (a) Commodities and commodity-related services. Claims for 
reimbursement or payment with respect to commodities and commodity-
related services shall be supported by the documents listed in 
paragraphs (a)(1) through (8) of this section or by such other documents 
as may be required in the letter of commitment or other applicable 
implementing document. Each document shall indicate the identification 
number of the letter of commitment or other applicable implementing 
document.
    (1) Voucher. Voucher SF 1034 with three copies, to be prepared by 
the borrower/grantee, by the approved applicant, by the bank as assignee 
or agent for the approved applicant, or, in the case of a direct letter 
of commitment, by the supplier.
    (2) Supplier's invoice. (i) One copy of the supplier's detailed 
invoice showing the following:
    (A) The name and address of the importer;
    (B) The quantity and the description of each item shipped, in 
sufficient detail, including the U.S. Department of Commerce Schedule B 
number, for ready identification;
    (C) The total gross sales price;
    (D) The total net sales price (determined by deducting from the 
total gross sales price the amounts required to be deducted under Sec.  
201.65(d));
    (E) The sales price for each item net of all trade discounts under 
Sec.  201.65(d);
    (F) The delivery terms (e.g., f.o.b., f.a.s., c.i.f. or c. & f.);
    (G) The type and dollar amount of each incidental service which is 
not included in the price of the commodity

[[Page 813]]

and for which reimbursement is claimed;
    (H) The type and dollar amount of each delivery service obtained by 
the supplier of the commodity for the importer's account which is not 
included in the price of the commodity and for which reimbursement is 
claimed;
    (I) To the extent that the commodity price includes commodity-
related services, a list of each such service and the dollar amounts 
attributable to each such service; and
    (J) Unless a Supplier's certificate covering marine insurance is 
submitted, the name and address of the supplier of such insurance and 
the dollar cost thereof.
    (ii) Each invoice submitted under a bank letter of commitment shall 
be marked PAID by the supplier, or alternatively, the bank may certify 
by an endorsement on or attachment to the invoice that payment has been 
made in the amount shown on the invoice.
    (iii) Each invoice must contain certifications from the supplier to 
the effect that:
    (A) The USAID marking requirements set forth in Sec.  201.31(d) have 
been met;
    (B) Unless otherwise specified by USAID, the supplier has airmailed 
to the USAID Mission in the capital city of the cooperating country one 
copy each of the invoice, packing list and bill(s) of lading;
    (C) If shipment is effected by ocean vessel, one copy of all bill(s) 
of lading described in Sec.  201.52(a)(4) has been maiIed to: Maritime 
Administration, Division of National Cargo, 400 Seventh Street SW., 
Washington, DC 20590-0001; and Transportation Division, Office of 
Procurement, USAID, Washington, DC 20523-7900.
    (3) Charter party. A copy (or photostat) of any approved charter 
party under which shipment is made, submitted:
    (i) By the commodity supplier whenever USAID-finances any portion of 
the dollar price of a commodity sale under c.&f. or c.i.f. delivery 
terms, or
    (ii) By the supplier of ocean transportation whenever USAID-finances 
the freight under any freight reimbursement arrangement.

If shipment is made under a consecutive voyage or time charter and the 
person or organization seeking reimbursement or payment has previously 
submitted to USAID a copy (or photostat) of said charter party in 
support of a prior claim for reimbursement or payment, such person or 
organization may, in lieu of further submission of the charter party, 
certify to the fact of prior submission.
    (4) Evidence of shipment. (i) A copy (or photostat) of the bill(s) 
of lading (ocean, charter party, air, rail, barge, or truck) or parcel 
post receipt evidencing shipment from the point of export in the source 
country or free port or bonded warehouse. The bill(s) of lading shall 
indicate the carrier's complete statement of charges, including all 
relevant weights, cubic measurements, rates and additional charges, 
whether or not freight is financed by USAID If an NVOCC is used, rated 
copies of both the NVOCC's through bill of lading and the bill(s) of 
lading of all VOCCs must be included.
    (ii) When the commodity is transported to the cooperating country 
under its own power (e.g., a fishing vessel), USAID will require a 
certificate signed by the importer or its authorized agent, certifying 
that the commodity has been received by the importer, to be submitted 
instead of a bill of lading.
    (iii) When the supplier is not responsible under the terms of its 
agreement with the importer for assuring that the commodities are loaded 
on board the vessel, such as when delivery terms are f.a.s. port of 
shipment, the importer may request and the Commodity Support Division, 
Office of Procurement, USAID, Washington, DC 20523-7900 may authorize 
the following documents, instead of a bill of lading, to be submitted 
with a claim for reimbursement or payment for the commodities:
    (A) A dock or warehouse receipt containing the commodity 
description, weight and cubic measurement, port of loading, and, if 
available, name and flag of vessel; the receipt must show consignment of 
the commodities to a person or organization designated by the importer; 
and

[[Page 814]]

    (B) A letter from the consignee addressed to USAID undertaking to 
arrange for shipment of the goods to the cooperating country and to 
deliver to: FM/CMPD, Office of Financial Management, USAID, Washington, 
DC 20523-7702, within 15 days from the date of shipment, a copy of the 
bill of lading evidencing shipment to the cooperating country. The bill 
of lading shall indicate the carrier's complete statement of charges, as 
in paragraph (a)(4)(i) of this section.
    (5) Documentation on shipments to a free port or bonded warehouse. 
When a commodity is shipped out of a free port or bonded warehouse, the 
supplier shall:
    (i) Provide as an attachment to a copy of the invoice, a copy of the 
bill of lading (bearing a notation of the freight cost) covering the 
shipment of the commodity into the free port or bonded warehouse, or
    (ii) If such a bill of lading is not available to the supplier, 
provide the following information and certify to the accuracy of the 
information: the country or area from which the commodities were shipped 
to such free port or bonded warehouse; the name and flag of the vessel 
which transported the commodities from the source country to the free 
port or bonded warehouse; the cost of the freight for such shipment; and 
the free port or bonded warehouse to which shipment was made from the 
source country, or
    (iii) If commodities have been commingled in the warehouse in such a 
way that shipments out of the warehouse cannot be related to particular 
shipments into the warehouse, the supplier shall certify to the best of 
its knowledge and belief that a portion of the commodities was 
transported to the free port or bonded warehouse as required by Sec.  
201.13(b)(1)(i)(D), and the quantity for which USAID-financing is sought 
does not exceed that amount.
    (6) Supplier's Certificate (form AID 282). An original and one copy 
of the Supplier's Certificate executed, without modification, by:
    (i) The supplier of the commodity for the cost of the commodity and 
any commodity-related services furnished by the commodity supplier;
    (ii) The carrier for the cost of ocean or air transportation 
financed by USAID;
    (iii) The insurer for the cost of marine insurance financed by USAID 
if such cost exceeds $50.
    (7) Freight forwarder's invoice. One copy of the freight forwarder's 
invoice, if any, marked PAID and containing a complete, individually 
priced itemization of all charges and fees billed by or through the 
forwarder.
    (8) Commodity approval application (form AID 11). One signed 
original of the Commodity Approval Application executed by the commodity 
supplier and countersigned by USAID. In the case of a claim for 
reimbursement or payment for partial shipment presented subsequent to 
submission of the original Commodity Approval Application, one 
reproduced copy of the original countersigned Commodity Approval 
Application, appropriately certified as such by the supplier.
    (b) Execution of Certificates. (1) The original of each Supplier's 
Certificate and Commodity Approval Application shall be signed by hand 
and shall bind the person or organization in whose behalf the execution 
is made.
    (2) The Supplier's Certificate covering the cost of marine insurance 
may be executed on behalf of the marine insurer by an insurance broker 
or by a commodity supplier if the commodity supplier is the assured 
under an open cargo insurance policy issued by the marine insurer and is 
authorized under such policy to bind the marine insurer by issuing 
insurance certificates or policies in favor of importers. In each such 
case, the insurance broker or commodity supplier shall indicate on the 
Supplier's Certificate the name and address of the insurance company 
which is acting as the supplier of marine insurance and shall describe 
itself below its signature as a commodity supplier issuing a certificate 
under an open cargo insurance policy or as an insurance broker.

[55 FR 34232, Aug. 22, 1990, as amended at 64 FR 17535, Apr. 12, 1999]



Sec.  201.53  Final date for presentation of documents.

    (a) Direct reimbursement. Prescribed documents shall be presented to 
USAID

[[Page 815]]

by the borrower/grantee no later than the terminal date specified in the 
implementing document.
    (b) Letter of commitment to a bank. Prescribed documents shall be 
presented by the bank to USAID and shall cover:
    (1) Payments or negotiations made under letters of credit expiring 
no later than the expiration date stated in the letter of commitment, or
    (2) Payments to a supplier, the approved applicant, or, at the 
request of an approved applicant, to a person other than the supplier, 
made no later than such expiration date.
    (c) Direct letter of commitment to supplier. Documents prescribed 
for payment under a direct letter of commitment to a supplier shall be 
presented by the supplier to USAID no later than the expiration date 
stated therein. Such documents must evidence shipment no later than the 
terminal shipment date provided in the direct letter of commitment.



                       Subpart G_Price Provisions



Sec.  201.60  Purpose and applicability of this subpart.

    This subpart prescribes rules relating to prices, discounts, 
commissions, credits, allowances, and other payments. These rules shall 
be observed in the procurement of commodities and commodity-related 
services financed under this part. The rules implement and supplement 
the requirements of the Act relating to prices in such procurement. The 
general purpose of these rules is to assure the prudent use of USAID 
funds.
    (a) Statutory price limitations. (1) Section 604(a) of the Act 
provides inter alia that funds made available under this Act may be used 
for procurement outside the United States only if the price of any 
commodity procured in bulk is lower than the market price prevailing in 
the United States at the time of procurement adjusted for differences in 
the cost of transportation to destination, quality, and terms of 
payment.
    (2) Section 604(b) of the Act provides that no funds made available 
under this Act shall be used for the purchase in bulk of any commodities 
at prices higher than the market price prevailing in the United States 
at the time of purchase, adjusted for differences in the cost of 
transportation to destination, quality, and terms of payment.
    (b) Transactions covered. The rules and conditions prescribed by 
this subpart apply to all USAID-financed transactions subject to this 
regulation, whether or not the commodities are purchased in bulk.
    (c) Compliance. Compliance with this subpart G and with any 
additional price requirement contained in the implementing document 
shall be a condition to the financing by USAID of procurement 
transactions under this part. Post-audit of transactions will be made by 
USAID to determine whether there has been such compliance.



Sec.  201.61  Meaning of terms in this subpart.

    (a) Class of purchaser means any group of purchasers which is 
separately identifiable and which is distinguishable from other 
purchasers on the basis of quantity purchased, distribution function or 
established trade practice.
    (b) Commission. See Sec.  201.01(h).
    (c) Comparable domestic sale means any comparable sale not in export 
transactions.
    (d) Comparable export sale means any comparable sale in export 
transactions.
    (e) Comparable sale means any sale of or bona fide offer to sell the 
same commodity, or (in the absence of such a sale or offer to sell) any 
sale of or offer to sell a similar commodity which, with respect to the 
quantity, quality, grade, period of delivery, supply area, terms of 
sale, or class of purchaser, either:
    (1) Is not sufficiently different from the sale being tested to 
result customarily in a price different from the price in the sale being 
tested; or
    (2) Can be related to the sale being tested through application of a 
customary price differential. A sale which is otherwise comparable to 
another sale is not rendered noncomparable by virtue of its being made 
out of a free port or bonded warehouse. The fact that a sale is made out 
of a free port or bonded warehouse shall not cause that

[[Page 816]]

sale to differ from otherwise comparable sales with respect to terms of 
sale, supply area, or period of delivery.
    (f) The date the purchase price is fixed means the date on which the 
parties agree on the price. If, however, the parties establish the price 
as of any other date which is subsequent to the date of such agreement 
and not later than the date of delivery, the term means such other date 
regardless of whether it precedes, coincides with or follows the legally 
effective date of the purchase contract.
    (g) Export differential means the customary difference in price, if 
any, between domestic sales and otherwise comparable export sales.
    (h) Period of delivery means the length of time between the date the 
purchase price is fixed or the date of the purchase contract, whichever 
is later, and the date by which delivery is to be completed.
    (i) Producer means any person who grows, mines, manufactures, 
processes, or assembles a commodity in the form in which it is exported.
    (j) Purchase price means the total amount which the purchaser agrees 
to pay or make available to or for the benefit of the supplier 
(including any person or organization designated by the supplier to 
receive such payment) for any commodity or commodity-related service 
which is wholly or partly financed by USAID.
    (k) Representative of the importer means any entity affiliated with 
the importer by ownership or management ties, and any office or employee 
of such entity.
    (l) Similar commodity means a commodity which is functionally 
interchangeable with the commodity in the sale being tested, and affords 
the purchaser substantially equivalent serviceability.
    (m) Supply area means the source country, or if the commodity is 
customarily sold at different prices (exclusive of transportation costs) 
from different geographic areas within a source country, the specific 
geographic area within the source country from which the commodity is 
shipped to the cooperating country.
    (n) Time of purchase means that period encompassing the date the 
purchase price is fixed during which prices in comparable sales remain 
substantially constant.
    (o) Transportation cost means the cost of all transportation by 
land, sea, or air from the port of export to the destination in the 
cooperating country, plus the cost of marine insurance, if any, covering 
such transaction. Such costs are financed by USAID only to the extent 
provided in Sec.  201.13.



Sec.  201.62  Responsibilities of borrower/grantee and of supplier.

    (a) Responsibilities of borrower/grantee. The borrower/grantee 
shall:
    (1) When required by USAID, develop and periodically update, or 
cooperate with USAID in the development and updating of, lists of 
importers who have traditionally imported the commodities which may be 
purchased under the loan or grant. Such listings shall be by commodity 
groupings selected by USAID, cover all commodities eligible for 
financing, and, to the extent such information is available, show the 
names and addresses of all importers, regardless of the source from 
which their imports originated.
    (2) Insure that the importer
    (i) Procures in accordance with the conditions set forth in subpart 
C as applicable, and
    (ii) Except as provided otherwise in Sec.  201.22, pays no more than 
the lowest available competitive price, including transportation cost, 
for the commodity.
    (b) Responsibility of supplier. In accordance with the provisions 
contained in the Supplier's Certificate, which the supplier must execute 
in order to receive payment, the supplier is responsible for compliance 
with the provisions of this subpart G, other than paragraph (a) of this 
section.



Sec.  201.63  Maximum prices for commodities.

    (a) U.S. prevailing market price--U.S. source. The purchase price 
for a commodity, the source of which is the United States, shall not 
exceed the market price prevailing in comparable export sales in the 
United States at the time of purchase, adjusted for differences in the 
transportation cost: Provided, however, That if there are no

[[Page 817]]

such comparable export sales, then the purchase price, excluding 
transportation cost, may not exceed the market price prevailing in 
comparable domestic sales in the United States at the time of purchase, 
adjusted upward or downward by the appropriate export differential.
    (b) U.S. prevailing market price--non-U.S. source. The purchase 
price, including transportation cost, for a commodity the source of 
which is not the United States shall be lower than the market price 
prevailing in comparable export sales in the United States at the time 
of purchase including transportation cost: Provided, however, That if 
there are no such comparable export sales in the United States, then the 
purchase price from the source outside the United States, including 
transportation cost, must be lower than the market price prevailing in 
comparable domestic sales in the United States at the time of purchase, 
adjusted upward or downward by the appropriate export differential and 
transportation cost.
    (c) Supplier's comparable export price--U.S. and non-U.S. sources. 
(1) The purchase price excluding transportation cost, shall not exceed 
prices generally charged by the supplier in comparable export sales from 
the source country at the time of purchase.
    (2) The requirement in paragraph (c)(1) of this section shall not 
apply to the purchase price:
    (i) In any sale under formal competitive bid procedures; or
    (ii) In any sale of a commodity generally traded on an organized 
commodity exchange.
    (3) Comparable export sales for the purpose of paragraph (c) of this 
section shall not include sales:
    (i) Under formal competitive bid procedures; or
    (ii) Of a commodity by a supplier to affiliates if the supplier 
demonstrates an established practice of selling the commodity to 
affiliates at prices lower than the prices it charges to nonaffiliates.
    (d) Source country prevailing market price--non-U.S. source. The 
purchase price, excluding transportation cost, shall not exceed the 
market price prevailing in the source country in comparable export sales 
at the time of purchase: Provided, however, That, if there are no such 
comparable export sales, then the purchase price, excluding 
transportation cost, shall not exceed the market price prevailing in 
comparable domestic sales in the source country at the time of purchase, 
adjusted upward or downward by the appropriate export differential.
    (e) Price test in the absence of comparable sales at time of 
purchase--(1) Sale by supplier who is not the producer. The purchase 
price shall not exceed the sum of:
    (i) The lower of the following: The price paid by the supplier for 
the commodity or the price charged by the producer in the original sale 
of that specific commodity; and
    (ii) A markup over the amount allowed in paragraph (e)(1)(i) of this 
section which may not exceed the lower of the following: The markup over 
direct cost that is usual and customary in sales by the supplier of the 
same commodity, if any, or the most similar commodity, or, the markup 
over direct cost that is usual and customary in such sales by the 
competitors of the supplier; and
    (iii) To the extent not included in paragraph (e)(1)(i) of this 
section an amount not to exceed the cost at prevailing rates of those 
expenses recognized in Sec.  201.64(a) and actually incurred in moving 
the commodities supplied from the point of purchase to a position 
alongside or on board the vessel or other export conveyance at point of 
export.
    (2) Sale by a supplier who is the producer. The purchase price shall 
not exceed a price established in accordance with the customary pricing 
practices of the supplier for other products of the same general class 
as the commodity sold.
    (f) Additional rules for sales through or out of a free port or 
bonded warehouse. (1) The purchase price, including transportation costs 
to a cooperating country, of a commodity which has passed through a free 
port or bonded warehouse shall not exceed:
    (i) The maximum price f.o.b. or f.a.s. source country eligible for 
USAID-financing under the foregoing provisions of this Sec.  201.63: 
plus

[[Page 818]]

    (ii) Transportation cost calculated on the basis of the prevailing 
ocean freight rate for shipments using the most direct route from the 
source country to the cooperating country on the type and flag of vessel 
on which the commodity actually moved from the free port or bonded 
warehouse to the cooperating country.
    (2) The purchase price of a commodity f.o.b. or f.a.s. a free port 
or bonded warehouse shall not exceed the maximum price established in 
paragraph (f)(1) of this section, minus transportation costs from the 
free port or bonded warehouse to the cooperating country, calculated on 
the basis of the prevailing ocean freight rate from the free port or 
bonded warehouse to the cooperating country for the type and flag of 
vessel on which the commodity actually moved between those points.
    (g) Commodity price subject to escalation. If a purchase contract 
contains a price escalation clause, USAID will finance:
    (1) The purchase price of the commodity before the operation of the 
escalation clause to the extent that it does not exceed the applicable 
price limitations contained in this subpart; and
    (2) That portion of the commodity price attributable to the 
operation of the price escalation clause if such clause:
    (i) Uses a formula based on variations in a cost factor which is 
reasonably related to the price of the commodity subject to escalation 
and is readily determinable;
    (ii) Provides for downward as well as upward adjustment of the 
price; and
    (iii) Accords with recognized trade practices.



Sec.  201.64  Application of the price rules to commodities.

    (a) Calculation of commodity prices on a common basis. In testing 
whether the purchase price of a commodity exceeds the price in 
comparable export sales or in comparable domestic sales, as applicable 
under Sec.  201.63 (a), (c), (d) and (e), it is necessary to insure that 
the price being tested as well as the prices being used as a test or 
measurement are calculated on the basis of delivery alongside or on 
board the vessel or other export conveyance. Such prices will include, 
therefore, in addition to the price of the commodity at an internal 
point in the source country, transportation from that point to the port 
of export in the source country, and to the extent not already included 
in the price at the internal point, inspection, export packing, 
forwarder's fees at customary rates, the cost of placing the commodities 
on board the vessel or export conveyance (unless this cost is covered in 
the export freight), and other necessary costs customary in the trade.
    (b) Calculation of commodity prices which involve transportation 
costs. (1) In testing the purchase price which includes transportation 
cost (customarily known as a c. & f. or c.i.f. price) for compliance 
with the requirements of Sec.  201.63 (a), (c), (d) and (e), USAID will 
subtract transportation cost as calculated by reference to the freight 
rate, for the type and flag of vessel on which the commodity was 
shipped, prevailing on the date the purchase price is fixed. In the 
absence of evidence to the contrary, the actual transportation cost paid 
by the supplier shall be presumed to be the transportation cost 
calculated in accordance with the formula contained in the foregoing 
sentence.
    (2) In testing a purchase price involving transportation cost for 
compliance with Sec.  201.62 and Sec.  201.63(b), the test or 
measurement prices shall be:
    (i) Prices based upon transportation by a U.S.-flag vessel if the 
price tested involves transportation by such vessel; or
    (ii) Prices based upon transportation by either a U.S.-flag or a 
foreign-flag vessel, whichever is lower, if the price tested involves 
transportation by a foreign-flag vessel.
    (c) Calculation of amount eligible for financing when shipment is 
through or out of a free port or bonded warehouse. (1) When a shipment 
to a cooperating country has passed through a free port or bonded 
warehouse, USAID will finance no more than the lower of the following:
    (i) The maximum price described in Sec.  201.63(f)(1), or

[[Page 819]]

    (ii) The maximum price described in Sec.  201.63(f)(1)(i), plus any 
transportation costs into the free port or bonded warehouse which meet 
the requirements of Sec.  201.13(b)(1)(i)(D), and any transportation 
costs out of the free port or bonded warehouse on a vessel flying the 
flag of a country included in the authorized geographic code.
    (2) When a shipment is f.o.b. or f.a.s. a free port or bonded 
warehouse, USAID will finance no more than the lower of the following:
    (i) The maximum price described in Sec.  201.63(f)(2), or
    (ii) The maximum price described in Sec.  201.63(f)(1)(i), plus any 
transportation costs into the free port or bonded warehouse which meet 
the requirements of Sec.  201.13(b)(1)(i)(D).
    (d) Determination of prevailing prices. In the determination of any 
prevailing market price of any commodity or any prevailing price or 
maximum eligible freight rate for a commodity related service, relevant 
published and unpublished price information will be considered.



Sec.  201.65  Commissions, discounts and other payments, credits, 
benefits and allowances.

    (a) General. This section sets forth the rules which govern the 
eligibility of commissions, discounts and certain other payments, 
credits, benefits and allowances for USAID-financing.
    (b) Commissions to sales agents. Unless otherwise provided in the 
implementing document, a commission paid, or to be paid, to a bona fide 
agent of the supplier is eligible for financing under this part, if such 
agent either has made a direct and substantial contribution toward 
securing the purchase contract for the supplier or is engaged on a 
continuing basis in securing similar contracts for the supplier. Such 
commissions are eligible to the extent they comply with Sec.  201.65(f).
    (c) Commissions and other payments, credits, benefits or allowances 
to importers, purchasing agents and others. Unless otherwise authorized 
by USAID, no commission or other payment, credit, benefit or allowance 
of any kind shall be paid, made, or given, or agreed to be paid, made or 
given, in connection with any sale subject to this part by the supplier 
or its agent:
    (1) To or for the benefit of the importer;
    (2) To or for the benefit of a purchasing agent or other agent or 
representative of an importer, even though such agent or representative 
may also have an agreement with a supplier to represent the supplier; or
    (3) To any third party in connection with a sale by the supplier to 
its dealer, distributor, or established agent in the cooperating 
country.
    (d) Trade discounts. To arrive at the net amount eligible for USAID-
financing, all trade discounts, whether in the form of payments, 
credits, or allowances, to which the importer is entitled shall be 
deducted from the gross amount of the supplier's invoice submitted under 
Sec.  201.52(a)(2)(i)(D).
    (e) Commissions and other payments or benefits attributable to 
USAID-financing. Every commission or other payment, credit, benefit, or 
allowance of any kind paid, made or given, or agreed to be paid, made or 
given, in connection with the sale of commodities financed under this 
part to any person described in Sec.  201.65(c) (1), (2) or (3) shall be 
presumed conclusively to have been paid from USAID funds and shall 
thereby be subject to the requirements of this part 201.
    (f) Maximum commission. A commission shall not exceed the lesser of 
the amount which the supplier customarily pays in connection with 
similar transactions or the amount which is customary in the trade.
    (g) Reporting. All commissions and other payments, credits, benefits 
or allowances of any kind paid, made or given, or agreed to be paid, 
made or given, by the supplier in connection with USAID-financed sales 
of commodities and commodity-related services shall be fully reported on 
the Invoice-and-Contract Abstract of the Supplier's Certificate required 
under Sec.  201.52(a)(6). Any such amounts not reported shall be 
ineligible for USAID-financing.
    (h) Brokerage commission. In connection with ocean freight services, 
USAID will finance a brokerage commission only if:
    (1) Such commission does not exceed 2\1/2\ percent of the ocean 
freight charge

[[Page 820]]

(exclusive of deadfreight, demurrage and detention);
    (2) Such commission is payable to an individual resident in a 
country included in the authorized source code; a non-resident citizen 
of a country included in the authorized source code; or a corporation or 
partnership organized under the laws of a country included in the 
authorized source code; and
    (3) The names of all persons receiving such commissions appear on 
the face of the charter party.
    (i) Address commissions. An address commission to or for the benefit 
of a charterer shall be deemed a discount on the stated freight rate or 
freight charge which the supplier of transportation services shall 
deduct from the cost of transportation financed by USAID. If the 
supplier of the commodity is the charterer, it shall refund to USAID any 
address commission received by it. If the supplier of the commodity is 
not the charterer, the borrower/grantee shall be responsible for making 
a refund to USAID of any such commissions received by the charterer.



Sec.  201.66  Side payments.

    Any payment which an importer makes to a supplier, whether or not 
indicated on the supplier's invoice and whether or not financed by 
USAID, in connection with an USAID-financed transaction, shall be 
disclosed by the supplier on the Supplier's Certificate and shall be 
considered as part of the actual purchase price in applying the rules of 
this subpart G.



Sec.  201.67  Maximum freight charges.

    (a) Ocean freight rates--(1) Similar shipments. Similar shipments 
means shipments which are similar with respect to type of commodity, 
commodity rate classification, quantity, vessel flag category (U.S.-or 
foreign-flag), choice of ports, and other pertinent factors. In 
determining whether shipments are similar, no effect shall be given to 
the identity of the shipper or the circumstance that the shipment is or 
is not financed by the Government of the United States.
    (2) Maximum charter rates. (i) USAID will not finance ocean freight 
under any charter which has not been submitted to and received prior 
approval by USAID/W. USAID will not approve a charter if the freight 
rate exceeds:
    (A) The rate prevailing for similar shipments; or
    (B) The lowest rate charged by the vessel for similar shipments on 
the same voyage.
    (ii) In determining the rate prevailing for similar shipments, 
recognized sources of charter market rate information will be consulted 
and, if necessary, will be supplemented by other information which 
contributes to a realistic determination of the prevailing charter rate.
    (3) Effect of USAID approval of a charter. USAID prior approval of a 
charter shall be confirmed by USAID in writing and shall then be final 
except in cases where the freight rate exceeds the lowest rate charged 
by the vessel for similar shipments on the same voyage or where USAID's 
prior approval is based on false or misleading representations made to 
USAID by the charterer or vessel owner(s).
    (4) Maximum liner rates. USAID will not finance ocean freight for a 
cargo liner shipment at a rate which exceeds the lowest of the 
following:
    (i) The conference contract rate or the conference noncontract rate, 
whichever is lower;
    (ii) The rate named in any tariff or other rate listing for the same 
destination and commodities on file at the Federal Maritime Commission; 
or
    (iii) The lowest rate charged by the VOCC for similar shipments on 
the same voyage.
    (5) Despatch. (i) The borrower/grantee, or the supplier with respect 
to despatch earned by the supplier, shall be responsible for refunding 
to USAID all despatch earned:
    (A) At the port of unloading on c.i.f. or c. & f. shipments, or
    (B) At the port of loading or unloading on f.o.b. or f.a.s. 
shipments, to the extent that despatch exceeds demurrage incurred on the 
same voyage.
    (ii) Refunds of despatch, supported by the vessel's signed laytime 
statement(s), must be transmitted to the Office of Financial Management, 
USAID, Washington, DC 20523-7702, within 90 days after date of discharge 
of cargo on which the despatch was earned.

[[Page 821]]

    (b) Airfreight rates. USAID will not finance airfreight which 
exceeds the following:
    (1) The rate under any air charter approved by USAID covering the 
transaction;
    (2) The lowest rate charged by the carrier for similar shipments on 
the same flight; or
    (3) The rate prevailing in the industry for similar shipments. A 
similar shipment is one which is similar with respect to type of 
commodity, commodity rate classification, quantity, flag category, 
choice of airport, and other pertinent factors.

[55 FR 34232, Aug. 22, 1990, as amended at 64 FR 17535, Apr. 12, 1999]



Sec.  201.68  Maximum prices for commodity-related services.

    (a) The price for an USAID-financed commodity-related service, other 
than ocean or air transportation, shall not exceed the lower of:
    (1) The prevailing price, if any, for the same or similar services; 
or
    (2) The price paid to the supplier under similar circumstances by 
other customers.
    (b) The eligible price of services covered by an NVOCC bill of 
lading is limited to the sum of the costs of individual delivery 
services eligible under Sec.  201.13 of this part, and only to the 
extent that the cost of each such service is eligible for USAID-
financing under Sec.  201.67 or Sec.  201.68(a) of this part.



Sec.  201.69  Cooperating country taxes and fees.

    USAID will not finance any taxes or fees imposed under the laws in 
effect in the cooperating country, including customs duties, consular 
and legalization fees, and other levies.



             Subpart H_Rights and Responsibilities of Banks



Sec.  201.70  Purpose.

    This subpart sets forth the rights and responsibilities of banks 
with regard to reimbursement under a letter of commitment opened 
pursuant to an USAID request. Banks will not be held responsible for the 
requirements of subparts B, C, D, E (excluding Sec.  201.44(a)(1)), and 
subpart G except insofar as provisions of these subparts are included in 
this subpart H or in a letter of commitment issued by USAID to a bank.



Sec.  201.71  Terms of letters of credit.

    Any letter of credit issued, confirmed or advised under an USAID 
letter of commitment and any agreement relating to such letter of credit 
or to instructions for payment issued by an approved applicant shall not 
be inconsistent with or contrary to the terms of the letter of 
commitment. Any such letter of credit or agreement may be modified or 
extended at any time in such a manner and to such extent as is 
acceptable to the approved applicant and the bank: Provided, That such 
modification or extension may not be inconsistent with or contrary to 
the terms of the letter of commitment. In the case of any inconsistency 
or conflict between the terms and conditions of the letter of commitment 
and the instructions of the approved applicant, the terms and conditions 
of the letter of commitment shall control.



Sec.  201.72  Making payments.

    (a) Collection of documents. The bank shall be responsible for 
obtaining the documents specified in subpart F and in the letter of 
commitment when making payment under a letter of credit pursuant to 
instructions of an approved applicant.
    (b) Examination of documents other than Supplier's Certificate. The 
bank shall examine the documents (other than the Supplier's Certificate 
and the Commodity Approval Application) to be submitted to USAID in 
accordance with good commercial practice to determine whether such 
documents comply with the requirements of paragraphs (b) (1) through (7) 
of this section in the following particulars, and no other.
    (1) Shipment. The documents submitted as evidence of the shipment of 
commodities under Sec.  201.52(a)(4) shall be dated within the shipping 
period, if any, specified in the letter of commitment. The bill of 
lading shall contain the carrier's statement of charges whether or not 
freight is financed by USAID.

[[Page 822]]

    (2) Source of commodities. The documents submitted in connection 
with the claim for reimbursement on commodities may not indicate that 
the source of the commodities is inconsistent with the USAID geographic 
code designation contained in the letter of commitment.
    (3) Destination. The documents submitted shall indicate that the 
destination of the commodities, by shipment, transshipment, or 
reshipment, is the cooperating country named in the letter of 
commitment.
    (4) Description. The documents shall describe and identify the 
commodities or services in a manner which, according to good commercial 
practice, is not inconsistent with the description contained in the 
letter of credit or payment instructions issued under a letter of 
commitment. The bank shall not be required to determine whether the 
supplier's invoice meets the detailed requirements of Sec.  
201.52(a)(2)(i).
    (5) Discounts and purchasing agents' commissions. If the documents 
disclose that the invoice price includes either discounts or commissions 
payable to purchasing agents, the bank shall not make payment of such 
discounts and commissions. In the absence of such information, however, 
the bank shall not be required to make independent inquiry as to whether 
the invoice price includes such items.
    (6) Certifications. Each supplier's invoice presented for payment 
shall contain such other certifications as may be required in the letter 
of commitment. The bank shall accept only certifications which, to the 
best of its knowledge and belief, have been signed by hand.
    (7) Other requirements. The documents submitted shall contain such 
other information as required by the letter of commitment, except that 
the bank shall have responsibility in this regard only to the extent 
specifically indicated in the letter of commitment.
    (c) Acceptance of certificates. A bank shall not accept for 
submission to USAID the original of the Supplier's Certificate, or the 
Commodity Approval Application, unless, to the best knowledge and belief 
of the bank, each such original has been signed by hand by the supplier 
and the Commodity Approval Application has been countersigned by USAID.



Sec.  201.73  Limitations on the responsibilities of banks.

    The following general limitations on the responsibilities of banks 
issuing, advising, or confirming letters of credit and making payments 
under letters of credit or otherwise shall apply.
    (a) Sufficiency and completeness of documents. Any document, 
including the Supplier's Certificate and the Commodity Approval 
Application, submitted by a bank to USAID in support of a claim for 
reimbursement, shall be sufficient if it purports to be the sort 
required to be delivered and if it has been accepted by the bank in the 
ordinary course of business in good faith. Except as may be required in 
the discharge of its responsibilities under Sec.  201.72 (b) and (c), 
the bank's right of reimbursement shall not be affected by the fact that 
any document required to be submitted by it is incomplete or may 
indicate noncompliance with any provision of this part.
    (b) Reimbursement right notwithstanding certain deficiencies. A 
bank's right to reimbursement from USAID for payments which the bank has 
made will not be affected by the fact that the Commodity Approval 
Application or the Invoice-and-Contract Abstract on the reverse of the 
Supplier's Certificate may be incomplete, or may indicate noncompliance 
with any provision of this part 201, the letter of commitment, or any 
other implementing document, or may be inconsistent with other documents 
required for reimbursement.
    (c) Nonresponsibility of bank for truth or accuracy of statements or 
certifications. The bank shall not be responsible for the truth or 
accuracy of any information or statement contained in any Supplier's 
Certificate or any other document certification to be submitted by it to 
USAID, notwithstanding any knowledge or information in the actual or 
constructive possession of the bank to the contrary. The bank shall not 
be obligated to look beyond the documents, including any certifications 
endorsed thereon, to be submitted by it or to make any independent 
investigation as to the truth or accuracy of any

[[Page 823]]

information or statement contained therein.
    (d) Protection of bank making payment. Acceptance by the bank of any 
document in the ordinary course of business in good faith as being a 
genuine and valid document and sufficient in the premises, and the 
delivery thereof to USAID, shall constitute full compliance by the bank 
with any provision of this part, the letter of commitment requiring 
delivery of a document of the sort that the document actually so 
delivered purports to be. The bank shall be entitled to receive and 
retain reimbursement of the amount of all payments made by it against 
documents so accepted, notwithstanding that such payments may be made in 
connection with a purchase in excess of the price calculated in 
accordance with the applicable provisions of subpart G.
    (e) Payment to third persons. The bank's right of reimbursement 
shall not be affected by the fact that payment is made to the approved 
applicant or at the request of the approved applicant or such 
beneficiary to a person other than the supplier under the contract to 
which such payment relates, if the bank has complied with all other 
requirements of the letter of commitment and has satisfied itself in 
good faith that the person to whom it makes payment has, in turn, made 
payment to the supplier.
    (f) Bank procedures with regard to certain suppliers. In the event a 
bank receives written advice from USAID concerning special conditions 
which are applicable to transactions of particular suppliers, such bank 
will use reasonable care to maintain procedures designed to ensure that 
accommodations thereafter furnished by it with respect to such suppliers 
by means of the issuance, confirmation, advising or transfer of letters 
of credit, or the making of payments not under letters of credit shall 
reflect such special conditions. While banks are expected to comply with 
the foregoing obligation, a bank which has used reasonable care to 
establish and maintain such procedures will not be responsible for any 
inadvertent furnishing of any such accommodation not containing 
applicable special conditions or the making of payment thereunder. For 
the purpose of ascertaining whether the supplier is a person or 
organization subject to an USAID advice concerning special conditions 
applicable to its transactions under this paragraph, a bank, in making 
payment under a letter of credit or otherwise, may consider as supplier 
the person or organization issuing the invoice.
    (g) Provision of implementing documents. A bank shall not be 
responsible for compliance with any provision of an implementing 
document other than a letter of commitment.



Sec.  201.74  Additional documents for USAID.

    In addition to the documents required for reimbursement, a bank 
shall retain in its files for a period of at least 3 years and shall 
make available to USAID promptly upon request a copy of any of the 
following documents which may pertain to an USAID-financed transaction:
    (a) Each letter of credit issued, confirmed, or advised by it, 
together with any extension or modification thereof;
    (b) Payment instructions received from the approved applicant;
    (c) Each application and agreement relating to such letter of credit 
or instructions for payment, together with any extension or modification 
thereof;
    (d) A detailed advice of the interest, commissions, expenses, or 
other items charged by it in connection with each such letter of credit 
or payment instructions.



Sec.  201.75  Termination or modification.

    If USAID directs that the delivery of commodities be terminated, 
orders that title to commodities be vested in it, or modifies any 
implementing document concerning the disposition of documents, USAID 
shall give written notice thereof to the banks holding applicable 
letters of commitment and shall instruct each bank with regard to the 
disposition of documents. Each such bank shall be relieved of any 
liability whatsoever to the approved applicant for anything done or 
omitted to be done under instruction of USAID. Notwithstanding the 
foregoing, a bank shall comply with the instructions of USAID only to 
the extent that it may do so without impairing or affecting

[[Page 824]]

any irrevocable obligation to any person or organization except an 
approved applicant, and in the event the bank shall incur any costs, 
expenses, or liabilities, including any liability to the approved 
applicant, it shall be repaid and reimbursed by USAID in respect 
thereof.



      Subpart I_Rights and Remedies of USAID, and Waiver Authority



Sec.  201.80  Purpose.

    This subpart sets forth certain USAID rights and remedies against 
borrower/grantees and suppliers, and prescribes certain general 
provisions relating to the waiver by USAID of this part.



Sec.  201.81  Rights of USAID against borrower/grantees.

    If any transaction financed hereunder violates the requirements of 
this part or any U.S. statute or any rule or regulation of USAID 
promulgated under any such statute, USAID may require the borrower/
grantee to refund the amounts USAID determines are attributable to such 
violation and may exercise any right of acceleration or termination 
contained in the implementing document. The borrower/grantee shall be 
deemed to have agreed to make such refund or accelerated payment 
promptly upon request by USAID and shall be deemed to have consented to 
any modification of the implementing document determined by USAID to be 
necessary to reflect any such refund or acceleration.



Sec.  201.82  Rights of USAID against suppliers.

    Without limiting the responsibility of the borrower/grantee or other 
parties, USAID may require an appropriate refund to it by a supplier 
under any transaction which violates the requirements of this part, 
whenever in USAID's opinion the failure of the supplier to comply with 
the rules and other requirements of this part has contributed to such 
violation. Any refund requested will include interest from the time of 
payment to the supplier. Interest will be charged at the rate 
established by the Secretary ofthe Treasury in accordance with the 
Internal Revenue Code, 26 U.S.C. 6621(b).



Sec.  201.83  No waiver of alternative rights or remedies by USAID.

    No right reserved to USAID in this subpart to seek a refund from a 
borrower/grantee, and no exercise of such right, whether or not 
successful, shall in any way limit or affect, under the doctrine of the 
election of remedies or otherwise, USAID's rights against a supplier 
under this subpart I or under the laws of the United States, or of any 
other country or political subdivision thereof, nor shall any right or 
remedy herein reserved to USAID against a supplier in any way derogate 
from or otherwise limit any other rights or remedies which may accrue to 
USAID under such laws.



Sec.  201.84  Limitation on period for making refund requests.

    USAID will endeavor, but shall not be bound, to make any requests 
for refunds from a borrower/grantee within three years from the date of 
the last disbursement of USAID funds for the transaction to which such 
request relates.



Sec.  201.85  Legal effect of USAID approvals and decisions.

    In any transaction subject to this part 201, USAID may reserve 
certain rights to approve the transaction for USAID-financing. USAID, in 
reserving any approval rights, acts solely as a financing entity to 
assure the proper use of United States Government funds. Any decision by 
USAID to exercise or refrain from exercising these approval rights shall 
be made as a financier and shall not be construed as making USAID a 
party to the contract or incurring any liability to the parties jointly 
or to any of them.



Sec.  201.86  Waiver and amendment authority.

    USAID may waive, withdraw, or amend at any time any or all of the 
provisions of this part.

[[Page 825]]



 Sec. Appendix A to Part 201--Supplier's Certificate and Agreement With 
           the Agency for International Development (AID 282)
[GRAPHIC] [TIFF OMITTED] TC06OC91.003


[[Page 826]]


[GRAPHIC] [TIFF OMITTED] TC06OC91.004


[[Page 827]]


[GRAPHIC] [TIFF OMITTED] TC06OC91.005


[[Page 828]]


[GRAPHIC] [TIFF OMITTED] TC06OC91.006


[[Page 829]]





   Sec. Appendix B to Part 201--Application for Approval of Commodity 
                          Eligibility (AID 11)
[GRAPHIC] [TIFF OMITTED] TC06OC91.007


[[Page 830]]


[GRAPHIC] [TIFF OMITTED] TC06OC91.008


[[Page 831]]


[GRAPHIC] [TIFF OMITTED] TC06OC91.009


[[Page 832]]


[GRAPHIC] [TIFF OMITTED] TC06OC91.010



PART 202_OVERSEAS SHIPMENTS OF SUPPLIES BY VOLUNTARY 
NON-PROFIT RELIEF AGENCIES--Table of Contents



Sec.
202.1 Definition of terms.
202.2 Shipments eligible for reimbursement of freight charges.
202.3 Freight reimbursement limitations.
202.4 Certificates.
202.5 Approval of programs, projects and services.

[[Page 833]]

202.6 Applications for reimbursement of freight charges.
202.7 Documentation required for reimbursement.
202.8 Refund by suppliers and/or agencies.
202.9 Waiver authority.
202.10 Participation by faith-based organizations.

    Authority: 22 U.S.C. 2381(a).

    Source: 44 FR 41425, July 17, 1979, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 202 appear at 62 FR 
38027, July 16, 1997.



Sec.  202.1  Definition of terms.

    (a) The Administrator means the Administrator of the Agency for 
International Development.
    (b) The Committee means the Advisory Committee on Voluntary Foreign 
Aid of the Agency for International Development.
    (c) Supplies means development, relief and rehabilitation supplies 
shipped in support of programs approved by AID as well as administrative 
supplies and equipment shipped in support of such programs. In no case 
shall such supplies include items for the personal use of 
representatives of the registered agency.
    (d) Agency or agencies means the American Red Cross and any United 
States voluntary non-profit relief agency registered with and approved 
by the Committee.
    (e) Duty free means exempt from all customs duties, and other 
duties, tolls, and taxes of any kind.
    (f) Recipient country means any country or area in which voluntary 
non-profit relief agencies registered with and approved by the Advisory 
Committee on Voluntary Foreign Aid have programs approved by AID.
    (g) Reimbursement means (1) payment directly to an agency by AID, or 
(2) payment to an agency by a banking institution in the United States 
acting under letter of commitment issued by AID guaranteeing subsequent 
reimbursement to the banking institution of such payment.
    (h) Port of entry means an ocean port in the recipient country.
    (i) Point of entry means the first customs point, or any otherwise 
designated point in a recipient country which receives imported 
commodities via an ocean port not located in the recipient country.



Sec.  202.2  Shipments eligible for reimbursement of freight charges.

    (a) In order to further the efficient use of United States voluntary 
contributions for development, relief, and rehabilitation in nations or 
areas designated by the Administrator of AID from time to time, agencies 
may be reimbursed by AID within specified limitations for freight 
charges incurred and paid in transporting supplies donated to or 
purchased by such agencies from United States ports or, in the case of 
excess or surplus property supplied by the United States, from foreign 
ports to ports of entry in the recipient country or to points of entry 
in the recipient country in cases (1) of landlocked countries, (2) where 
ports cannot be used effectively because of natural or other 
disturbances, (3) where carriers to a specified country are unavailable, 
or (4) where a substantial savings in costs or time can be effected by 
the utilization of points of entry other than ports.
    (b) Shipments shall be eligible for reimbursement of freight charges 
only as authorized by the issuance by AID of a Procurement Authorization 
(Form AID 1160-4).
    (c) The Office of Commodity Management, Bureau for Program and 
Management Services, AID, shall be responsible for determining when 
carriers are ``unavailable.''



Sec.  202.3  Freight reimbursement limitations.

    Economic utilization of AID funds available for reimbursement to 
agencies for freight charges incurred and paid by such agencies for the 
shipment of donated or purchased supplies to a recipient country 
requires the following limitations on amounts reimbursable:
    (a) Ocean freight. The amount of ocean freight charges reimbursable 
to an agency is limited to the actual cost of transportation of the 
supplies as assessed by the delivering carrier either in accordance with 
its applicable tariff for delivery to the discharge port or in 
accordance with the applicable charter

[[Page 834]]

or booking contract at a rate not exceeding the prevailing rate, if any, 
for similar freight services, or the rate paid to the supplier of ocean 
transportation for similar services by other customers similarly 
situated, as attested to by the supplier in Block 13 of Form AID 1550-1, 
entitled ``Voluntary Agency and Carrier Certificate.'' (See Sec.  
202.4(a).)
    (b) Inland freight. The amount of inland freight charges 
reimbursable to an agency is limited to the actual cost of 
transportation of supplies from pickup point in initial port of 
discharge to designated point of entry in the recipient country at a 
rate negotiated by the agency representative as attested to by such 
agency representative in Block 14 of Form AID 1550-1, entitled 
``Voluntary Agency and Carrier Certificate.'' (See Sec.  202.4(b).)
    (c) Related shipping costs. Where inland freight charges are 
reimbursed, expenses incurred in transferring supplies from ocean 
carrier to inland carrier may be reimbursed to the agency when such 
expenses are not for account of the ship nor included in the inland 
transportation charges.



Sec.  202.4  Certificates.

    Certificates will be required as follows:
    (a) Ocean transportation. The supplier of ocean transportation will 
execute Form AID 1550-1, entitled ``Voluntary Agency and Carrier 
Certificate,'' in an original and two copies.
    (b) Inland transportation and related shipping costs. Where inland 
transportation, including related shipping costs, is reimbursable under 
provisions of Sec.  202.3, the representative of the agency will execute 
Form AID 1550-1, entitled ``Voluntary Agency and Carrier Certificate,'' 
in an original and two copies when, in the absence of published tariffs 
or a prevailing rate, it is necessary to negotiate for the shipment of 
the supplies.



Sec.  202.5  Approval of programs, projects and services.

    (a) Prior to applying for reimbursement for freight charges, an 
agency must obtain AID's written approval of its programs by submitting 
the following information to the Chief, Public Liaison Division, Office 
of Private and Voluntary Cooperation, Bureau for Private and Development 
Cooperation, Agency for International Development, Department of State, 
Washington, DC 20523.
    (1) A narrative description detailing the agency's specific country 
programs, objectives, projects, or services of relief, rehabilitation, 
disaster assistance, development assistance and welfare;
    (2) Except as provided for in paragraph (b) of this section, 
evidence that written assurances have been obtained from the government 
of the recipient country that:
    (i) Appropriate facilities are or will be afforded for the necessary 
and economical operations of the program, project, or service;
    (ii) The specific program, project, or service has been accepted;
    (iii) The supplies provided in support of the program, project or 
service will be free of customs duties, other duties, tolls and taxes;
    (iv) The supplies will be treated as a supplementary resource;
    (v) The supplies will be identified, to the extent practicable, as 
being of United States origin; and
    (vi) Insofar as practicable, the supplies will be received, 
unloaded, warehoused, and transported cost-free to points of 
distribution;
    (3) Evidence that:
    (i) Shipments will be made only to consignees reported to AID, and 
full responsibility is assumed by the agency for the noncommercial 
distribution of the supplies free of cost to the persons ultimately 
receiving them, or in special cases and following notice to AID, for the 
sale to recipients at nominal cost or as payment for work performed to 
promote projects of self-help and economic development, but in no case 
shall supplies be withheld from needy persons because of their inability 
to pay or work; and
    (ii) Distribution is made solely on the basis of need without regard 
to race, color, religion, sex or national origin;
    (iii) That paragraphs (a)(3) (i) and (ii) of this section are 
conducted under the supervision of the agency's representative 
specifically charged with responsibility for the program or project.

[[Page 835]]

    (b) Compliance with paragraph (a)(2) of this section is not required 
when the specific program, project, or service is within the scope of 
any agreement that has been concluded between the U.S. Government and 
the Government of the recipient country which furthers the operations of 
an agency acceptable to the recipient country.
    (c) On approval of the agency's programs written notice thereof will 
be issued by AID to the agency.



Sec.  202.6  Application for reimbursement of freight charges.

    (a) Any agency may make application for reimbursement of freight 
charges incurred and paid on shipments eligible under Sec.  202.2 
provided:
    (1) The agency has received AID's written approval of the programs, 
projects, and services in accordance with Sec.  202.5.
    (2) The application for reimbursement of freight charges together 
with documentation required under Sec.  202.7 is submitted to the Agency 
for International Development, Attention: Banking and Finance Division, 
Office of Financial Management, Washington, DC 20523, or to a U.S. bank 
holding an AID letter of commitment.
    (b) In the case of ocean transportation, the application must be 
submitted within 60 days of the date of the related ocean bill of 
lading. In the case of inland transportation the application must be 
submitted within 180 days of the date of the related ocean bill of 
lading.



Sec.  202.7  Documentation required for reimbursement.

    Claims for reimbursement of freight charges must be supported by the 
following documents:
    (a) Voucher SF 1034. ``Public Voucher for Purchases and Services 
Other than Personal''--Voucher SF 1034 in original and three copies to 
be prepared by the agency requesting reimbursement of freight charges.
    (b) Bills of lading--(1) To ports of entry. Where the shipment is 
made to a port of entry, ocean or charter party bill of lading (or 
photostat) evidencing shipment from an eligible port of export as 
prescribed in Sec.  202.2(a) to the port of entry. The bill of lading 
shall indicate the carrier's complete statement of charges including all 
relevant weights, cubic measurements, rates, and any applicable tariff 
surcharges.
    (2) To points of entry. (i) Where the shipment is made to a point of 
entry and through bills of lading to designated point of entry are not 
issued, an ocean or charter party bill of lading (or photostat) 
evidencing shipment from an eligible port of export as precribed in 
Sec.  202.2(a) to the port of discharge, and a receipted copy of the 
rail, truck, or barge bills of lading (or other acceptable commercial 
document) covering the transportation of the supplies from the ocean 
carrier's point of delivery at port of discharge to point of entry in 
recipient country, correctly assessed at time of loading by the land 
carrier for freight on a weight, measurement, or unit basis to point of 
entry in recipient country and from point of entry to point of delivery 
in the recipient country. The bill of lading shall indicate the 
carrier's complete statement of charges including all relevant weights, 
cubic measurements, rates and any applicable tariff surcharges.
    (ii) Where shipment is made to point of entry and through bills of 
lading are issued, a receipted copy of the through bill of lading 
evidencing shipment from an eligible port of export as prescribed in 
Sec.  202.2(a) to point of entry in the recipient country. The bill of 
lading shall include the carrier's complete statement of charges 
including all relevant weights, cubic measurements, rates, and any 
applicable tariff surcharges.
    (c) Receipted invoices. One copy (or photostat) of the detailed 
invoice of the supplier of the transportation evidencing payment by the 
agency to the carrier. If the bills of lading required by paragraph (b) 
of this section meet the requirements of this subparagraph, no invoice 
is required.
    (d) Voluntary Agency and Carrier Certificate, Form AID 1550-1. (i) 
As provided in Sec.  202.4(a), the original and two copies of the 
Voluntary Agency and Carrier Certificate executed by the supplier of 
ocean transportation, and
    (ii) As provided in Sec.  202.4(b), the original and two copies of 
the Voluntary Agency and Carrier Certificate executed by the Agency.

[[Page 836]]



Sec.  202.8  Refund by suppliers and/or agencies.

    (a) By suppliers. Any supplier of freight to whom freight charges 
have been financed by AID will promptly refund to AID upon demand the 
entire amount, or any lesser amount specified, of such freight charges 
determined by AID to be in excess of the prevailing rate at time of 
shipment, if any, or the rate paid the supplier for similar services by 
other customers similarly situated.
    (b) By agencies. Any agency to which freight charges have been paid 
or reimbursed under this Regulation will promptly refund to AID upon 
demand the entire amount, or any lesser amount specified, of inland 
transportation and/or related shipping costs, (1) whenever AID 
determines that the reimbursements were improper as being in violation 
of the provisions of the Foreign Assistance Act of 1961, and relevant 
appropriation acts, or any rules, regulations, or procedures of AID 
promulgated under any of these acts, or (2) whenever it is determined by 
the agency or AID that any of the supplies for which reimbursement was 
made have not been accorded duty-free status by the recipient country.



Sec.  202.9  Waiver authority.

    The Administrator may waive, withdraw, or amend from time to time 
any or all of the provisions of this part.



Sec.  202.10  Participation by faith-based organizations.

    The procedures established under this part shall be administered in 
compliance with the standards set forth in part 205, Participation by 
Religious Organizations in USAID Programs, of this chapter.

[69 FR 61723, Oct. 20, 2004]



PART 204_HOUSING GUARANTY STANDARD TERMS AND CONDITIONS--Table of Contents



                          Subpart A_Definitions

Sec.
204.1 Definitions.

                         Subpart B_The Guaranty

204.11 The Guaranty.
204.12 Guaranty eligibility.
204.13 Non-impairment of the guaranty.
204.14 Transferability of guaranty; Note Register.
204.15 Paying agent obligation.

             Subpart C_Procedure for Obtaining Compensation

204.21 Event of default; Application for compensation; Payment.
204.22 Right of A.I.D. to cure default.
204.23 Payment to A.I.D. of excess amounts received by the lender of any 
          assignee.

                           Subpart D_Covenants

204.31 Prosecution of claims.
204.32 Change in agreements.
204.33 A.I.D. approval of acceleration of notes.

                        Subpart E_Administration

204.41 Arbitration.
204.42 Notice.
204.43 Governing law.

Exhibit A to Part 204--Application for Compensation
Exhibit B to Part 204--Assignment

    Authority: 22 U.S.C. 2381.

    Source: 53 FR 33805, Sept. 1, 1988, unless otherwise noted.



                          Subpart A_Definitions



Sec.  204.1  Definitions.

    Wherever used in these standard terms and conditions:
    (a) A.I.D. means the United States Agency for International 
Development or its successor with respect to the housing guaranty 
authorities contained in title III, chapter 2 of part I of the Foreign 
Assistance Act of 1961, as amended (the ``Act'').
    (b) Eligible Note(s) means (a) Note(s) meeting the eligiblity 
criteria set out in Sec.  204.12 hereof.
    (c) Eligible Investor means an ``eligible investor'' as defined in 
section 238(c) of the Act.
    (d) Lender means an Eligible Investor who initially provides loan 
funds to the Borrower in exchange for Eligible Note(s).
    (e) Investment respecting any Eligible Note means the principal 
amount of such Eligible Note.

[[Page 837]]

    (f) Assignee means the owner of an Eligible Note who is registered 
as an Assignee on the Note Register of Eligible Notes required to be 
maintained by the Paying Agent and who is an ``Eligible Investor.''
    (g) Outstanding Investment respecting any Eligible Note means the 
Investment less the net amount of any repayments of principal of the 
Investment made by or on behalf of the Borrower or A.I.D.
    (h) Further Guaranteed Payments means the amount of any loss 
suffered by the Lender or by any Assignee by reason of the Borrower's 
failure to comply on a timely basis with any obligation it may have 
under an Eligible Note to indemnify and hold harmless the Lender and 
Assignee from taxes or governmental charges or any expense arising out 
of taxes or any other governmental charges relating to the Note in the 
country of the Borrower.
    (i) Loss of Investment respecting any Eligible Note means an amount 
in Dollars equal to the total of the (1) Outstanding Investment 
determined as of the Date of Application, (2) Further Guaranteed 
Payments unpaid as of the Date of Application, and (3) interest accrued 
at the rate(s) specified in the Note(s) and unpaid on the Outstanding 
Investment and Further Guaranteed Payments to and including the date on 
which full payment thereof is made to the Lender or any Assignee.
    (j) Application for Compensation means an executed application in 
the form of Exhibit A hereto which the Lender or any Assignee files with 
A.I.D. pursuant to Sec.  204.21 of this part.
    (k) Applicant means a Lender or Assignee who files an Application 
for Compensation with A.I.D.
    (l) Date of Application means the effective date of an Application 
for Compensation filed with A.I.D. pursuant to Sec.  204.21 of this 
part.
    (m) Business Day means a date on which banks of the District of 
Columbia of the United States of America are open for business.
    (n) Guaranty Payment Date means a Business Day not more than sixty 
(60) calendar days after the related Date of Application; provided that 
(1) compensation to the party filing the related Application for 
Compensation is due and payable on such date, in accordance with the 
terms of this Guaranty and (2) tender of assignment referred to in 
subsection 204.21(f) is made as therein provided.

[53 FR 33805, Sept. 1, 1988; 53 FR 39015, Oct. 4, 1988]



                         Subpart B_The Guaranty



Sec.  204.11  The Guaranty.

    Subject to these standard terms and conditions, the United States of 
America, acting through A.I.D., agrees to pay to any Lender or Assignee 
who has been determined to be an Eligible Investor compensation in 
Dollars equal to its Loss of Investment under the Eligible Note; 
provided, however, that no such payment shall be made for any such loss 
arising out of fraud or misrepresentation for which such Lender or 
Assignee is responsible or of which it had knowledge at the time it 
became such Lender or Assignee.

This Guaranty shall apply to each Eligible Note registered on the Note 
Register required to be maintained by the Paying Agent.



Sec.  204.12  Guaranty eligibility.

    (a) Eligible Notes only may be guarantied hereunder, and Eligible 
Investors only are entitled to the benefits of this Guaranty. Notes in 
order to achieve Eligible Note status must be signed on behalf of the 
Borrower, manually or in facsimile, by a duly authorized representative 
of the Borrower; and they must contain a guaranty legend incorporating 
these standard terms and conditions signed on behalf of A.I.D. by either 
a manual signature or a facsimile signature or an authorized 
representative of A.I.D. together with a certificate of authentication 
manually executed by a Paying Agent whose appointment by the Borrower is 
consented to by A.I.D. in a Paying and Transfer Agency Agreement.
    (b) A.I.D. shall designate in a certificate delivered to the Lender 
and to the Paying Agent, the person(s) whose signature shall be binding 
on A.I.D. The certificate of authentication of the Paying Agent issued 
pursuant to the

[[Page 838]]

Paying and Transfer Agency Agreement shall, when manually executed by 
the Paying Agent, be conclusive evidence binding on A.I.D. that the Note 
has been duly executed on behalf of the Borrower and delivered.



Sec.  204.13  Non-impairment of the guaranty.

    The full faith and credit of the United States of America is pledged 
to the performance of this Guaranty. The Guaranty shall not be affected 
or impaired by any defect in the authorization, execution, delivery or 
enforceability of any agreement or other document executed by the 
Lender, A.I.D., the Paying Agent or the Borrower in connection with the 
transactions contemplated by this Guaranty. This non-impairment of the 
guaranty provision shall not, however, be operative with respect to any 
amount arising out of fraud or misrepresentation for which the Lender or 
Assignee is responsible or of which it had knowledge prior to the time 
it became such Lender or Assignee.



Sec.  204.14  Transferability of guaranty; Note Register.

    The Lender of any Assignee may assign, transfer or pledge the 
Eligible Notes to any Eligible Investor. Any such assignment, transfer 
or pledge shall be effective on the date that the name of the new 
Assignee is entered on the Note Register required to be maintained by 
the Paying Agent pursuant to the Paying and Transfer Agency Agreement. 
A.I.D. shall be entitled to treat the persons in whose names the 
Eligible Notes are registered as the owners thereof for all purposes of 
this Guaranty and A.I.D. shall not be affected by notice to the 
contrary.



Sec.  204.15  Paying agent obligations.

    Failure of the Paying Agent to perform any of its obligations 
pursuant to the Paying and Transfer Agency Agreement shall not impair 
the Investor's or any Assignee's rights under this Contract of Guaranty, 
but may be the subject of action for damages against the Paying Agent by 
A.I.D. as a result of such failure or neglect; provided, however, that 
the Paying Agent is not authorized to issue and authenticate and have 
Notes outstanding at any time in excess of the principal amount of the 
Loan.



             Subpart C_Procedure for Obtaining Compensation



Sec.  204.21  Event of default; Application for compensation; Payment.

    (a) Within one year after an Event of Default, as this term is 
defined in an Eligible Note, the Lender or Assignee may file with A.I.D. 
an Application for Compensation in form as provided in Exhibit A. A.I.D. 
shall make the required payment not later than sixty (60) days after the 
Date of Application unless A.I.D. has cured the default under Sec.  
204.22.
    (b) Guaranty Payment. On or before the Guaranty Payment Date, the 
Applicant shall tender assignment of all Applicant's right, title and 
interest as of the Date of Application in and to all sums for which 
Application has been made. A.I.D. shall accept the assignment and pay or 
cause to be paid to Applicant and compensation due to the Applicant 
pursuant to the Guaranty.



Sec.  204.22  Right of A.I.D. to cure default.

    Within sixty (60) days after the Date of Application for 
Compensation, A.I.D. may at any time make payments to the Lender or any 
Assignee equal to all installments of principal due and unpaid under any 
Note (other than installments whose maturity has been accelerated), 
together with interest on the unpaid principal amount of the Note to the 
date of such payment by A.I.D., and any Further Guaranteed payments due 
and unpaid, and thereby prevent or cure any default under the Note. Upon 
such a payment by A.I.D., if the Lender or Assignee shall have 
accelerated such Note, such acceleration shall be immediately rescinded 
or, if such Note shall not have been accelerated, such Note shall not 
thereafter be accelerated as a result of such Event of Default.



Sec.  204.23  Payment to A.I.D. of excess amounts received by the lender 
of any assignee.

    If the Lender or Assignee shall, as a result of A.I.D. paying 
compensation under this Guaranty, receive an excess

[[Page 839]]

payment, it shall refund the excess to A.I.D.



                           Subpart D_Covenants



Sec.  204.31  Prosecution of claims.

    After an assignment to A.I.D. by the Lender or any Assignee pursuant 
to Sec.  204.21(b), A.I.D. shall have exclusive power to prosecute all 
claims related to the outstanding Eligible Notes so assigned. If the 
Lender or such Assignee continues to have an interest in the outstanding 
Eligible Notes, the Lender or such Assignee and A.I.D. shall consult 
with each other with respect to their respective interests in such 
Eligible Notes and the manner of and responsibility for prosecuting 
claims.



Sec.  204.32  Change in agreements.

    Neither the Lender nor any Assignee will consent to any change or 
waiver of any provision of any document contemplated by this Guaranty 
without the prior written consent of A.I.D.



Sec.  204.33  A.I.D. approval of acceleration of notes.

    Without the prior approval of A.I.D., the Lender or any Assignee 
shall not accelerate any Eligible Notes held by it on account of the 
happening of an Event of Default other than failure to make a payment 
when due on the note.



                        Subpart E_Administration



Sec.  204.41  Arbitration.

    Any controversy or claim between A.I.D. and the Lender or any 
Assignee arising out of this Guaranty shall be settled by arbitration to 
be held in Washington, DC in accordance with the then prevailing rules 
of the American Arbitration Association, and judgment on the award 
rendered by the arbitrators may be entered in any court of competent 
jurisdiction.



Sec.  204.42  Notice.

    Any communication to A.I.D. pursuant to this Guaranty shall be in 
writing in the English language, shall refer to the A.I.D. Housing 
Guaranty Project Number inscribed on the Eligible Note and shall be 
complete on the day it shall be actually received by A.I.D. at the 
address specified below:

Mail Address:
 Office of Housing and Urban Programs, Agency for International 
Development, Washington, DC 20523.

 Re: A.I.D. Housing Guaranty Project __-HG-__ \1\
---------------------------------------------------------------------------

    \1\ Enter title and numerical designation of the relevant A.I.D. 
Housing Guaranty Project as inscribed on each Note guaranty legend.
---------------------------------------------------------------------------

Telex Nos.: ITT 440001 (Answer back is AIDWNDC) RCA 248379 (Answer back 
is 248379 AID UR) WU 892703 (Answer back is AID WSH) WU 64154 (Answer 
back is AID 64154)
Fax No.: 202/647-4958
Cable Address: AID WASH DC

Other addresses may be substituted for the above upon the giving of 
notice of such substitution to each Lender or Assignee by first class 
mail at the addresses set forth in the Note Register.



Sec.  204.43  Governing law.

    This Guaranty shall be governed by and construed in accordance with 
the laws of the United States of America governing contracts and 
commercial transactions of the United States Government.



        Sec. Exhibit A to Part 204--Application for Compensation

Office of Housing and Urban Programs, Agency for International 
          Development, International Development Cooperation Agency, 
          Washington, DC 20523
    Ref: Guaranty dated as of _________, 19__: A.I.D. Housing Project 
HG-____
Gentlemen:
    You are hereby advised that payment of $_____ (consisting of $_____ 
of principal, $_____ of interest and $_____ in Further Guaranteed 
Payments as defined in Section 204.01(i) of the Standard Terms and 
Conditions of the above-mentioned Guaranty \1\) was due on ____, 19__, 
on $____ principal amount of Notes held by the undersigned of the ______ 
(the ``Borrower''), issued pursuant to the Loan Agreement, dated as of 
___, ___, between the Borrower and ______. Of such amount $_____ was not 
received on such date and has not been received by the undersigned at 
the date hereof. In accordance with

[[Page 840]]

the terms and provisions of the above-mentioned Guaranty, the 
undersigned hereby applies, under Section 204.21 of said Guaranty, for 
payment of a total of $______, representing $______, the outstanding 
principal amount of the presently outstanding Notes of the Borrower held 
by the undersigned issued pursuant to said Loan Agreement, and $______ 
in Further Guaranteed Payments, \2\ plus accrued and unpaid interest 
thereon to and including the date payment in full is made by you 
pursuant to said Guaranty. Such payment is to be made at your office in 
Washington, DC.
---------------------------------------------------------------------------

    \1\ Strike inapplicable portion.
    \2\ In the event the Application for Compensation relates to Further 
Guaranteed Payments, such Application must also contain a statement of 
the nature and circumstances of the related loss.
---------------------------------------------------------------------------

[Name of Applicant]

By______________________________________________________________________

Name____________________________________________________________________

Title___________________________________________________________________

Dated___________________________________________________________________



                 Sec. Exhibit B to Part 204--Assignment

    The undersigned, being the registered owner of a Note in the 
principal amount of $______ issued by the ______ (the ``Borrower''), 
pursuant ______, and guaranty, dated as of ___, ___ the ``Guaranty''), 
between the Lender and the United States of America, acting through the 
Agency for International Development (``A.I.D.''), hereby assigns to 
A.I.D., without recourse (i) its entire right, title and interest in and 
to the Note of the Borrower referred to above (which Note is attached 
hereto), including its rights to unpaid interest on such Note, and (ii) 
its entire outstanding right, title and interest arising out of said 
Loan Agreement with respect to such Note, except the undersigned's right 
to receive payments under the Loan Agreement in respect of which A.I.D. 
has made no payment to the undersigned as of the date hereof.

[Name of Applicant]

By______________________________________________________________________

Name____________________________________________________________________

Title___________________________________________________________________

Dated___________________________________________________________________

Accepted:

UNITED STATES OF AMERICA
By______________________________________________________________________

Name____________________________________________________________________

Title___________________________________________________________________

Dated___________________________________________________________________



PART 205_PARTICIPATION BY RELIGIOUS ORGANIZATIONS IN USAID PROGRAMS--
Table of Contents



    Authority: 22 U.S.C. 2381(a).



Sec.  205.1  Grants and cooperative agreements.

    (a) Faith-based organizations are eligible, on the same basis as any 
other organization and considering any reasonable accommodation, as is 
consistent with Federal law, the Attorney General's Memorandum of 
October 6, 2018 (Federal Law Protections for Religious Liberty), and the 
Religion Clauses of the First Amendment to the U.S. Constitution, to 
participate in any USAID program for which they are otherwise eligible. 
In the selection of service-providers, neither USAID nor entities that 
make and administer sub-awards of USAID funds shall discriminate for, or 
against, an organization on the basis of the organization's religious 
character, affiliation, or exercise. For purposes of this part, to 
discriminate against an organization on the basis of the organization's 
religious exercise means to disfavor an organization, including by 
failing to select an organization, disqualifying an organization, or 
imposing any condition or selection criterion that otherwise disfavors 
or penalizes an organization in the selection process or has such an 
effect:
    (1) Because of conduct that would not be considered grounds to 
disfavor a secular organization;
    (2) Because of conduct that must or could be granted an appropriate 
accommodation in a manner consistent with RFRA (42 U.S.C. 2000bb through 
2000bb-4) or the Religion Clauses of the First Amendment to the 
Constitution; or
    (3) Because of the actual or suspected religious motivation of the 
organization's religious exercise.
    (4) Notices or announcements of award opportunities shall include 
language to indicate that faith-based organizations are eligible on the 
same basis as any other organization and subject to the protections and 
requirements of Federal law. As used in this section, the term 
``program'' refers to

[[Page 841]]

federally funded USAID grants and cooperative agreements, including 
subgrants and sub-agreements. The term also includes grants awarded 
under contracts. As used in this section, the term ``grantee'' includes 
a recipient of a grant or a signatory to a cooperative agreement, as 
well as sub-recipients of USAID assistance under grants, cooperative 
agreements, and contracts.
    (b) Organizations that receive direct financial assistance from 
USAID under any USAID program (including through a prime award or sub-
award) may not engage in explicitly religious activities (including 
activities that involve overt religious content such as worship, 
religious instruction, or proselytization), as part of the programs or 
services directly funded with direct financial assistance from USAID. If 
an organization conducts such activities, the activities must be offered 
separately, in time or location, from the programs or services funded 
with direct financial assistance from USAID, and participation must be 
voluntary for beneficiaries of the programs or services funded with such 
assistance. Nothing in this part restricts USAID's authority under 
applicable federal law to fund activities, such as the provision of 
chaplaincy services, that can be directly funded by the Government 
consistent with the Establishment Clause.
    (c) A faith-based organization that applies for, or participates in, 
USAID-funded programs or services (including through a prime award or 
sub-award) will retain its autonomy, religious character, and 
independence, and may continue to carry out its mission consistent with 
religious freedom protections in Federal law, including the definition, 
development, practice, and expression of its religious beliefs, provided 
that it does not use direct financial assistance from USAID (including 
through a prime award or sub-award) to support or engage in any 
explicitly religious activities (including activities that involve overt 
religious content such as worship, religious instruction, or 
proselytization), or in any other manner prohibited by law. Among other 
things, a faith-based organization that receives financial assistance 
from USAID may use space in its facilities, without concealing, 
altering, or removing religious art, icons, scriptures, or other 
religious symbols. In addition, a faith-based organization that receives 
financial assistance from USAID retains its authority over its internal 
governance, and it may retain religious terms in its organization's 
name, select its board members on a religious basis, and include 
religious references in its organization's mission statements and other 
governing documents.
    (d) USAID must implement its programs in accordance with the 
Establishment Clause. Nothing in this part shall be construed as 
authorizing the use of USAID funds for activities that are not permitted 
by Establishment Clause jurisprudence or otherwise by law. USAID will 
consult with the U.S. Department of Justice if, in implementing a 
specific program involving overseas acquisition, rehabilitation, or 
construction of structures used for explicitly religious activities, 
there is any question about whether such funding is consistent with the 
Establishment Clause. USAID will describe any program implemented after 
such consultation on its Web site.
    (e) An organization that participates in programs funded by 
financial assistance from USAID (including through a prime award or sub-
award) shall not, in providing services, discriminate against a program 
beneficiary or potential program beneficiary on the basis of religion or 
religious belief, refusal to hold a religious belief, or a refusal to 
attend or participate in a religious practice.
    (f) No grant document, contract, agreement, covenant, memorandum of 
understanding, policy, or regulation used by USAID shall require faith-
based organizations to provide assurances or notices where the Agency 
does not require them of non-faith-based organizations. Any restrictions 
on the use of grant funds shall apply equally to faith-based and non-
faith-based organizations. All organizations that participate in USAID's 
programs (including through a prime award or sub-award), including 
faith-based ones, must carry out eligible activities in accordance with 
all program requirements and other applicable requirements that govern 
the conduct of

[[Page 842]]

USAID-funded activities, including those that prohibit the use of direct 
financial assistance from USAID to engage in explicitly religious 
activities. No grant document, contract, agreement, covenant, memorandum 
of understanding, policy, or regulation used by USAID shall disqualify 
faith-based organizations from participating in USAID's programs because 
such organizations are motivated or influenced by religious faith to 
provide social services or other assistance, or because of their 
religious character or affiliation, or on grounds that discriminate 
against organizations on the basis of the organizations' religious 
exercise, as defined in this part.
    (g) A religious organization does not forfeit its exemption from the 
Federal prohibition on employment discrimination on the basis of 
religion, set forth in section 702(a) of the Civil Rights Act of 1964, 
42 U.S.C. 2000e-1, when the organization receives financial assistance 
from USAID. An organization that qualifies for such exemption may select 
its employees on the basis of their acceptance of, and/or adherence to, 
the religious tenets of the organization.
    (h) Many USAID grant programs require an organization to be a 
``nonprofit organization'' in order to be eligible for funding. 
Individual solicitations that require organizations to have nonprofit 
status will specifically so indicate in the eligibility section of a 
solicitation. Grantees should consult with the appropriate USAID program 
office to determine the scope of any applicable requirements. In USAID 
programs in which an applicant must show that it is a nonprofit 
organization, other than programs which are limited to registered 
Private and Voluntary Organizations, the applicant may do so by any of 
the following means:
    (1) Proof that the Internal Revenue Service currently recognizes the 
applicant as an organization to which contributions are tax deductible 
under section 501(c)(3) of the Internal Revenue Code;
    (2) A statement from a state taxing body or the state secretary of 
state certifying that:
    (i) The organization is a nonprofit organization operating within 
the State; and
    (ii) No part of its net earnings may lawfully benefit any private 
shareholder or individual;
    (3) A certified copy of the applicant's certificate of incorporation 
or similar document that clearly establishes the nonprofit status of the 
applicant; or
    (4) Any item described in paragraphs (b)(1) through (3) of this 
section if that item applies to a state or national parent organization, 
together with a statement by the State or parent organization that the 
applicant is a local nonprofit affiliate.
    (i) Decisions about awards of USAID financial assistance must be 
free from political interference or even the appearance of such 
interference and must be made on the basis of merit, not on the basis of 
the religious affiliation of a recipient organization, or lack thereof.
    (j) Nothing in this part shall be construed as authorizing the use 
of USAID funds for the acquisition, construction, or rehabilitation of 
religious structures inside the United States.
    (k) The Secretary of State may waive the requirements of this 
section in whole or in part, on a case-by-case basis, where the 
Secretary determines that such waiver is necessary to further the 
national security or foreign policy interests of the United States.
    (l) Nothing in this section shall be construed in such a way as to 
advantage, or disadvantage, faith-based organizations affiliated with 
historic or well-established religions or sects in comparison with other 
religions or sects.

[69 FR 61723, Oct. 20, 2004, as amended at 81 FR 19415, Apr. 4, 2016; 81 
FR 42248, June 29, 2016; 85 FR 82134, Dec. 17, 2020]



PART 206_TESTIMONY BY EMPLOYEES AND THE PRODUCTION OF DOCUMENTS 
IN PROCEEDINGS WHERE A.I.D. IS NOT A PARTY--Table of Contents



Sec.
206.1 Purpose and scope.
206.2 Production or disclosure prohibited unless approved by the General 
          Counsel.
206.3 Procedure in the event of a demand for production or disclosure.
206.4 Procedure where a decision concerning a demand is not made prior 
          to the time a response to the demand is required.

[[Page 843]]

206.5 Procedure in the event of an adverse ruling.
206.6 Considerations in determining whether production or disclosure 
          should be made pursuant to a demand.

    Authority: Sec. 621, Foreign Assistance Act of 1961, as amended, 75 
Stat. 424 (22 U.S.C. 2381).

    Source: 53 FR 24260, June 28, 1988, unless otherwise noted.



Sec.  206.1  Purpose and scope.

    (a) This part sets forth the procedures to be followed in 
proceedings in which the U.S. Agency for International Development (the 
``Agency'') is not a party, whenever a subpoena, order or other demand 
(collectively referred to as a ``demand'') of a court or other authority 
set forth in Sec.  206.1(d) of this part is issued for the production or 
disclosure of (1) any material contained in the files of the Agency, (2) 
any information relating to material contained in the files of the 
Agency, or (3) any information or material acquired by any person while 
such person was an employee of the Agency as a part of the performance 
of his official duties or because of his official status.
    (b) For purposes of this part, the term ``employee of the Agency'' 
includes all officers and employees of the Agency appointed by, or 
subject to the supervision, jurisdiction or control of, the 
Administrator of the Agency, including personal services contractors.
    (c) This part is intended to provide instructions regarding the 
internal operations of the Agency, and is not intended, and does not and 
may not be relied upon, to create any right or benefit, substantive or 
procedural, enforceable at law by a party against the Agency.
    (d) This part applies to:
    (1) State and local court, administrative and legislative 
proceedings.
    (2) Federal court and administrative proceedings.
    (e) This part does not apply to:
    (1) Congressional requests or subpoenas for testimony or documents.
    (2) Employees or former employees making appearances solely in their 
private capacity in legal or administrative proceedings that do not 
relate to the Agency (such as cases arising out of traffic accidents, 
domestic relations, etc.). Any question whether the appearance relates 
solely to the employee's or former employee's private capacity should be 
referred to the General Counsel or his designee.
    (f) Nothing in this part affects disclosure of information under the 
Freedom of Information Act, 5 U.S.C. 552, the Privacy Act, 5 U.S.C. 
552a. the Sunshine Act, 5 U.S.C. 552b, or the Agency's implementing 
regulations. Nothing in this part otherwise permits disclosure of 
information by the Agency except as is provided by statute or other 
applicable law.



Sec.  206.2  Production or disclosure prohibited unless approved 
by the General Counsel.

    No employee or former employee of the Agency shall, in response to a 
demand of a court or other authority set forth in Sec.  206.1(d), 
produce any material or disclose any information described in Sec.  
206.1(a) without the approval of the General Counsel or his designee.



Sec.  206.3  Procedure in the event of a demand for production or disclosure.

    (a) Whenever an employee or former employee of the Agency receives a 
demand for the production of material or the disclosure of information 
described in Sec.  206.1(a), he shall immediately notify and provide a 
copy of the demand to the General Counsel or his designee. The General 
Counsel, or his designee, shall be furnished by the party causing the 
demand to be issued or served a written summary of the information 
sought, its relevance to the proceeding in connection with which it was 
served and why the information sought is unavailable by any other means 
or from any other sources.
    (b) The General Counsel, or his designee, in consultation with 
appripriate Agency officials, and in light of the considerations listed 
in Sec.  206.6, will determine whether the person on whom the demand was 
served should respond to the demand.
    (c) To the extent he deems it necessary or appropriate, the General 
Counsel, or his designee, may also require from the party causing such 
demand to be issued or served a plan of all reasonably foreseeable 
demands, including but not limited to names of all

[[Page 844]]

employees and former employees from whom discovery will be sought, areas 
of inquiry, length of time of proceedings requiring oral testimony and 
identification of documents to be used or whose production is sought.



Sec.  206.4  Procedure where a decision concerning a demand is not made 
prior to the time a response to the demand is required.

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



Sec.  206.5  Procedure in the event of an adverse ruling.

    If the court or other authority declines to stay the effect of the 
demand in response to a request made in accordance with Sec.  206.4 
pending receipt of instructions, or if the court or other authority 
rules that the demand must be complied with irrespective of instructions 
not to produce the material or disclose the information sought, the 
employuee or former employee upon whom the demand has been made shall 
respectfully decline to comply with the demand, citing this part and 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).



Sec.  206.6  Considerations in determining whether production or disclosure 
should be made pursuant to a demand.

    (a) In deciding whether to make disclosures pursuant to a demand, 
the General Counsel, or his designee, may consider, among things:
    (1) Whether such disclosure is appropriate under the rules of 
procedure governing the case or matter in which the demand arose, and
    (2) Whether disclosure is appropriate under the relevant substantive 
law concerning privilege.
    (b) Among the demands in response to which disclosure will not be 
made are those demands with respect to which any of the following 
factors exist:
    (1) Disclosure would violate a statute or a rule of procedure,
    (2) Disclosure would violate a specific regulation,
    (3) Disclosure would reveal classified information, unless 
appropriately declassified by the originating agency,
    (4) Disclosure would reveal trade secrets or proprietary information 
without the owner's consent,
    (5) Disclosure would otherwise adversely affect the foreign policy 
interets of the United States or impair the foreign assistance program 
of the United States, or
    (6) Disclosure would impair an ongoing Inspector General or 
Department of Justice investigation.



PART 207_INDEMNIFICATION OF EMPLOYEES--Table of Contents





Sec.  207.01  Policy.

    (a) A.I.D. may indemnify, in whole or in part, its employees (which 
for the purpose of this regulation includes former employees) for any 
verdict, judgment or other monetary award which is rendered against any 
such employee, provided that the conduct giving rise to the verdict, 
judgment or award was taken within the scope of his or her employment 
with the Agency and that such indemnification is in the interest of the 
United States, as determined by the Administrator, or his or her 
designee, in his or her discretion.
    (b) A.I.D. may settle or compromise a personal damage claim against 
its employee by the payment of available funds, at any time, provided 
the alleged conduct giving rise to the personal damage claim was taken 
within the scope of employment and that such settlement or compromise is 
in the interest of the United States, as determined by the 
Administrator, or his or her designee, in his or her discretion.

[[Page 845]]

    (c) Absent exceptional circumstances, as determined by the 
Administrator or his or her designee, A.I.D. will not entertain a 
request either to agree to indemnify or to settle a personal damage 
claim before entry of an adverse verdict, judgment or monetary award.
    (d) When an employee becomes aware that an action has been filed 
against the employee in his or her individual capacity as a result of 
conduct taken within the scope of his or her employment, the employee 
should immediately notify A.I.D. that such an action is pending.
    (e) The employee may, thereafter, request either: (1) 
Indemnification to satisfy a verdict, judgment or award entered against 
the employee or (2) payment to satisfy the requirements of a settlement 
proposal. The employee shall submit a written request, with 
documentation including copies of the verdict, judgment, award or 
settlement proposal, as appropriate, to the General Counsel. The General 
Counsel may also seek the views of the Department of Justice. The 
General Counsel shall forward the request and the General Counsel's 
recommendation to the Administrator for decision.
    (f) Any payment under this part either to indemnify an employee or 
to settle a personal damage claim shall be contingent upon the 
availability of appropriated funds.

(5 U.S.C. 301; 22 U.S.C. 2381(a))

[53 FR 29658, Aug. 8, 1988]



PART 209_NON-DISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE AGENCY 
FOR INTERNATIONAL DEVELOPMENT_EFFECTUATION OF TITLE VI 
OF THE CIVIL RIGHTS ACT OF 1964--Table of Contents



Sec.
209.1 Purpose.
209.2 Application of this part.
209.3 Definitions.
209.4 Discrimination prohibited.
209.5 Assurance required.
209.6 Compliance information.
209.7 Conduct of investigations.
209.8 Procedure for effecting compliance.
209.9 Hearings.
209.10 Decisions and notices.
209.11 Judicial review.
209.12 Effect on other regulations; supervision and coordination.
209.13 Delegation of authority.

Appendix A to Part 209--Federal Financial Assistance to Which This 
          Regulation Applies

    Authority: Sec. 602, 78 Stat. 252, and sec. 621, Foreign Assistance 
Act of 1961, 75 Stat. 445; 22 U.S.C. 2402.

    Source: 30 FR 317, Jan. 9, 1965, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 209 appear at 68 FR 
51361, Aug. 26, 2003.



Sec.  209.1  Purpose.

    The purpose of this part is to effectuate the provisions of title VI 
of the Civil Rights Act of 1964 to the end that no person in the United 
States shall, on the ground of race, color, or national origin, be 
excluded from participation in, be denied the benefits of, or be 
otherwise subjected to discrimination under any program or activity 
receiving Federal financial assistance pursuant to any authority held or 
delegated by the Administrator of the Agency for International 
Development.



Sec.  209.2  Application of this part.

    This part applies to all programs carried on within the United 
States by recipients of Federal financial assistance pursuant to any 
authority held or delegated by the Administrator of the Agency for 
International Development, including the types of Federal financial 
assistance listed in appendix A of this part. (appendix A may be revised 
from time to time by notice in the Federal Register.) It applies to 
money paid, property transferred, or other Federal financial assistance 
extended after the effective date of this regulation, even if the 
application for such assistance is approved prior to such effective 
date. This part does not apply to (a) any Federal financial assistance 
by way of insurance or guaranty contracts, (b) money paid, property 
transferred or other assistance extended before the effective date of 
this part, (c) any assistance to any individual who is the ultimate 
beneficiary, (d) any employment practice under any such program of any 
employer, employment agency, or labor organization, or (e) any 
procurement of goods or services, including the procurement of training. 
This part

[[Page 846]]

does not bar selection and treatment reasonably related to the foreign 
assistance objective or such other authorized purpose as the Federal 
assistance may have. It does not bar selections which are limited to 
particular groups where the purpose of the Federal financial assistance 
calls for such a limitation nor does not bar special treatment including 
special courses of training, orientation or counseling consistent with 
such purpose.



Sec.  209.3  Definitions.

    For purposes of this part--
    (a) The term Act means the Civil Rights Act of 1964 (78 Stat. 241).
    (b) The term Administrator means the Administrator of the Agency for 
International Development or any person specifically designated by him 
to perform any function provided for under this part.
    (c) The term applicant means one who submits an application, request 
or plan required to be approved by the Administrator, or by a primary 
recipient as a condition to eligibility for Federal financial 
assistance, and the term ``application'' means such application, 
request, or plan.
    (d) The term facility includes all or any portion of structures, 
equipment, or other real or personal property or interests therein, and 
the provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration or acquisition of facilities.
    (e) The term Federal financial assistance includes (1) grants and 
loans of Federal funds, (2) the grant or donation of Federal property 
and interests in property, (3) the detail of Federal personnel, (4) the 
sale and lease of, and the permission to use (on other than a casual or 
transient basis) Federal property or any interest in such property 
without consideration, or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient, and (5) any Federal agreement, 
arrangement, or other contract which has as one of its purposes the 
provision of assistance.
    (f) The term primary recipient means any recipient which is 
authorized or required to extend Federal financial assistance to another 
recipient.
    (g) The terms program or activity and program mean all of the 
operations of any entity described in paragraphs (g)(1) through (4) of 
this section, any part of which is extended Federal financial 
assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (g)(1), (2), or (3) of this section.
    (h) The term recipient means any State, political subdivision of any 
State, or instrumentality of any State or political subdivision, any 
public or private agency, institution, or organization, or any other 
entity, or any individual in any State, to whom Federal financial 
assistance is extended, directly or through another recipient, including 
any successor, assign, or transferee thereof, but such term does not

[[Page 847]]

include any ultimate beneficiary or a sovereign foreign government.
    (i) The term United States means the States of the United States, 
the District of Columbia, Puerto Rico, the Virgin Islands, American 
Samoa, Guam, Wake Island, the Canal Zone, and the territories and 
possessions of the United States, and the term ``State'' means any one 
of the foregoing.

[30 FR 317, Jan. 9, 1965, as amended at 68 FR 51361, Aug. 26, 2003]



Sec.  209.4  Discrimination prohibited.

    (a) General. No person in the United States shall, on the grounds of 
race, color or national origin, be excluded from participation in, be 
denied the benefits of, or be subjected to discrimination under, any 
program or activity receiving Federal financial assistance from the 
Agency for International Development.
    (b) Specific discriminatory actions prohibited. (1) A recipient to 
which this regulation applies may not, directly or through contractual 
or other arrangements, on the ground of race, color, or national origin:
    (i) Deny an individual any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit under the program;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit under the program;
    (v) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership or other requirement or condition which individuals must meet 
in order to be provided any service, financial aid, or other benefit 
provided under the program;
    (vi) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program; or
    (vii) Deny an individual an opportunity to participate in a program 
as an employee where a primary objective of the Federal financial 
assistance is to provide employment.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of individuals to whom, or the situations in 
which, such services, financial aid, other benefits or facilities will 
be provided under any such program or the class of individuals to be 
afforded an opportunity to participate in any such program, may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting 
individuals to discrimination because of race, color, or national 
origin, or have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program as respects individuals 
of a particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding individuals from, denying them the benefits of, or subjecting 
them to discrimination under any program to which this regulation 
applies, on the grounds of race, color or national origin; or with the 
purpose or effect of defeating or substantially impairing the 
accomplishment of the objectives of the Act or this regulation.
    (4) As used in this section the services, financial aid, or other 
benefit provided under a program receiving Federal financial assistance 
shall be deemed to include any service, financial aid, or other benefit 
provided in or through a facility provided with the aid of Federal 
financial assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph does not limit the generality of the prohibition in 
paragraph (a) of this section.
    (6) This regulation does not prohibit the consideration of race, 
color, or national origin if the purpose and effect

[[Page 848]]

are to remove or overcome the consequences of practices or impediments 
which have restricted the availability, or participation in, the program 
or activity receiving Federal financial assistance, on the grounds of 
race, color or national origin. Where previous discriminatory practice 
or usage tends, on the grounds of race, color, or national origin, to 
exclude individuals from participation in, to deny them the benefits of, 
or to subject them to discrimination under any program or activity to 
which this Regulation applies, the applicant or recipient has an 
obligation to take reasonable action to remove or overcome the 
consequences of the prior discriminatory practice or usage, and to 
accomplish the purposes of the Act.

[30 FR 317, Jan. 9, 1965, as amended at 38 FR 17948, July 5, 1973]



Sec.  209.5  Assurance required.

    (a) General. (1) Every application for Federal financial assistance 
to which this part applies, except an application to which paragraph (b) 
of this section applies, and every application for Federal financial 
assistance to provide a facility shall, as a condition to its approval 
and the extension of any Federal financial assistance pursuant to the 
application, contain or be accompanied by an assurance that the program 
will be conducted or the facility operated in compliance with all 
requirements imposed by or pursuant to this part. In the case of an 
application for Federal financial assistance to provide real property or 
structures thereon, the assurance shall obligate the recipient, or, in 
the case of a subsequent transfer, the transferee, for the period during 
which the real property or structures are used for a purpose for which 
the Federal financial assistance is extended or for another purpose 
involving the provision of similar services or benefits. In the case of 
personal property the assurance shall obligate the recipient for the 
period during which he retains ownership or possession of the property. 
In all other cases the assurance shall obligate the recipient for the 
period during which Federal financial assistance is extended pursuant to 
the application. The head of the bureau or office administering the 
Federal financial assistance shall specify the form of the foregoing 
assurances and the extent to which like assurances will be required of 
subgrantees, contractors and subcontractors, transferees, successors in 
interest, and other participants. Any such assurance shall include 
provisions which give the United States a right to seek its judicial 
enforcement.
    (2) In the case of real property, structures or improvements 
thereon, or interests therein, which was acquired withFederal financial 
assistance, or in the case where Federal financial assistance is 
provided in the form of a transfer of real property or interest therein 
from the Federal Government, the instrument effecting or recording the 
transfer shall contain a covenant running with the land assuring 
nondiscrimination for the period during which the real property is used 
for a purpose for which the Federal financial assistance is extended or 
for another purpose involving the provision of similar services or 
benefits. Where no transfer of property is involved, but property is 
improved withFederal financial assistance, the recipient shall agree to 
include such a covenant in any subsequent transfer of such property. 
Where the property is obtained from the Federal Government, such 
covenant may also include a condition coupled with a right to be 
reserved by the Agency to revert title to the property in the event of a 
breach of the covenant where, in the discretion of the responsible 
Agency official, such a condition and right of reverter is appropriate 
to the statute under which the real property is obtained and to the 
nature of the grant and the grantee. In such event if a transferee of 
real property proposed to mortgage or otherwise encumber the real 
property as security for financing construction of new or improvement of 
existing facilities on such property for the purposes for which the 
property was transferred, the Administrator may agree, upon request of 
the transferee and if necessary to accomplish such financing, and upon 
such conditions as he deems appropriate, to forbear the exercise of such 
right to revert title for so long as the lien of such mortgage or other 
encumbrance remains effective.

[[Page 849]]

    (3) Transfers of surplus property are subject to regulations issued 
by the Administrator of General Services (41 CFR 101-6.2).
    (b) Assurances from institutions. (1) In the case of any application 
for Federal financial assistance to an institution of higher education 
(including assistance for construction, for research, for a special 
training project, for student assistance, or for any other purpose), the 
assurance required by this section shall extend to admission practices 
and to all other practices relating to the treatment of students.
    (2) The assurance required with respect to an institution of higher 
education or any other institution, insofar as the assurance relates to 
the institution's practices with respect to admission or other treatment 
of individuals as students or clients of the institution or to the 
opportunity to participate in the provision of services or other 
benefits to such individuals, shall be applicable to the entire 
institution.

[30 FR 317, Jan. 9, 1965, as amended at 38 FR 17948, July 5, 1973; 68 FR 
51361, Aug. 26, 2003]



Sec.  209.6  Compliance information.

    (a) Cooperation and assistance. The Administrator shall to the 
fullest extent practicable seek the cooperation of recipients in 
obtaining compliance with this part and shall provide assistance and 
guidance to recipients to help them comply voluntarily with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the Administrator timely, complete and accurate compliance 
reports at such times, and in such form and containing such information, 
as the Administrator may determine to be necessary to enable him to 
ascertain whether the recipient has complied or is complying with this 
part. In the case in which a primary recipient extends Federal financial 
assistance to any other recipient, such other recipient shall also 
submit such compliance reports to the primary recipient as may be 
necessary to enable the primary recipient to carry out its obligations 
under this part.
    (c) Access to sources of information. Each recipient shall permit 
access by the Administrator during normal business hours to such of its 
books, records, accounts, and other sources of information, and its 
facilities as may be pertinent to ascertain compliance with this part. 
Where any information required of a recipient is in the exclusive 
possession of any other agency, institution or person and this agency, 
institution or person shall fail or refuse to furnish this information, 
the recipient shall so certify in its report and shall set forth what 
efforts it has made to obtain the information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
part and its applicability to the program for which the recipient 
receives Federal financial assistance, and make such information 
available to them in such manner, as the Administrator finds necessary 
to apprise such persons of the protections against discrimination 
assured them by the Act and this part.



Sec.  209.7  Conduct of investigations.

    (a) Periodic compliance reviews. The Administrator shall from time 
to time review the practices of recipients to determine whether they are 
complying with this part.
    (b) Complaints. Any person who believes himself or any specific 
class of individuals to be subjected to discrimination prohibited by 
this part may by himself or by a representative file with the 
Administrator a written complaint. A complaint must be filed not later 
than 90 days from the date of the alleged discrimination, unless the 
time for filing is extended by the Administrator.
    (c) Investigations. The Administrator will make a prompt 
investigation whenever a compliance review, report, complaint, or any 
other information indicates a possible failure to comply with this part. 
The investigation should include, where appropriate, a review of the 
pertinent practices and policies of the recipient, the circumstances 
under which the possible noncompliance with this part occurred, and 
other factors relevant to a determination as to whether the recipient 
has failed to comply with this part.

[[Page 850]]

    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
part, the Administrator will so inform the recipient and the matter will 
be resolved by informal means whenever possible. If it has been 
determined that the matter cannot be resolved by informal means, action 
will be taken as provided for in Sec.  209.8.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section the Administrator will so inform the 
recipient and the complainant, if any, in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this part, or because he 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this part. The 
identity of complainant shall be kept confidential except to the extent 
necessary to carry out the purposes of this part, including the conduct 
of any investigation, hearing, or judicial proceeding arising 
thereunder.



Sec.  209.8  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance, or by any other 
means authorized by law. Such other means may include, but are not 
limited to, (1) a reference to the Department of Justice with a 
recommendation that appropriate proceedings be brought to enforce any 
rights of the United States under any law of the United States 
(including other titles of the Act), or any assurance or other 
contractual undertaking, and (2) any applicable proceeding under State 
or local law.
    (b) Noncompliance with Sec.  209.4. If an applicant fails or refuses 
to furnish an assurance required under Sec.  209.4 or otherwise fails or 
refuses to comply with a requirement imposed by or pursuant to that 
section, Federal financial assistance may be refused in accordance with 
the procedures of paragraph (c) of this section. The Agency for 
International Development shall not be required to provide assistance in 
such a case during the pendency of the administrative proceedings under 
such paragraph, except that the Agency shall continue assistance during 
the pendency of such proceedings where such assistance is due and 
payable pursuant to an application therefor approved prior to the 
effective date of this part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating, or refusing to 
grant or to continue Federal financial assistance shall become effective 
until (1) the head of the bureau or office administering the Federal 
financial assistance has advised the applicant or recipient of his 
failure to comply and has determined that compliance cannot be secured 
by voluntary means, (2) there has been an express finding on the record, 
after opportunity for hearing, of a failure by the applicant or 
recipient to comply with a requirement imposed by or pursuant to this 
part, (3) the action has been approved by the Administrator pursuant to 
paragraph (e) of Sec.  209.10 and (4) the expiration of 30 days after 
the Administrator has filed with the committee of the House and the 
committee of the Senate having legislative jurisdiction over the program 
involved, a full written report of the circumstances and the grounds for 
such action. Any action to suspend or terminate or to refuse to grant or 
to continue Federal financial assistance shall be limited to the 
particular political entity, or part thereof, or other applicant or 
recipient as to whom such finding has been made and shall be limited in 
its effect to the particular program, or part thereof, in which such 
noncompliance has been so found.
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until (1) the 
responsible Agency official has determined that compliance cannot be 
secured by voluntary means, (2) the recipient or other person

[[Page 851]]

has been notified of its failure to comply and of the action to be taken 
to effect compliance, and (3) the expiration of at least 10 days from 
the mailing of such notice to the recipient or other person. During this 
period of at least 10 days additional efforts shall be made to persuade 
the recipient or other person to comply with this part and to take such 
corrective action as may be approprie.

[38 FR 17494, July 5, 1973]



Sec.  209.9  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec.  209.8(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and either 
(1) fix a date not less than 20 days after the date of such notice 
within which the applicant or recipient may request of the Administrator 
that the matter be scheduled for hearing, or (2) advise the applicant or 
recipient that the matter in question has been set down for hearing at a 
stated place and time. The time and place so fixed shall be reasonable 
and shall be subject to change for cause. The complainant, if any, shall 
be advised of the time and place of the hearing. An applicant or 
recipient may waive a hearing and submit written information and 
argument for the record. The failure of an applicant or recipient to 
request a hearing under this section or to appear at a hearing for which 
a date has been set shall be deemed to be a waiver of the right to a 
hearing under section 602 of the Act and Sec.  209.8(c) of this part and 
consent to the making of a decision on the basis of such information as 
is available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the Agency for International Development in Washington, DC, at a time 
fixed by the Administrator unless he determines that the convenience of 
the applicant or recipient or of the Agency requires that another place 
be selected. Hearings shall be held before the Administrator or before a 
hearing examiner designated in accordance with 5 U.S.C. 3105 and 3344 
(section 11 of the Administrative Procedure Act).
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient, and the Agency for International Development 
shall have the right to be represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
5 U.S.C. 554-557 (sections 5-8 of the Administrative Procedure Act), and 
in accordance with such rules of procedure as are proper (and not 
inconsistent with this section) relating to the conduct of the hearing, 
giving of notices subsequent to those provided for in paragraph (a) of 
this section, taking of testimony, exhibits, arguments and briefs, 
requests for findings, and other related matters. Both the Agency for 
International Development and the applicant or recipient shall be 
entitled to introduce all relevant evidence on the issues as stated in 
the notice for hearing or as determined by the officer conducting the 
hearing at the outset of or during the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent the 
substance thereof is stipulated for the record. All decisions shall be 
based upon the hearing record and written findings shall be made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect

[[Page 852]]

to two or more Federal statutes, authorities, or other means by which 
Federal financial assistance is extended and to which this part applies 
or noncompliance with this part and the regulations of one or more other 
Federal departments or agencies issued under title VI of the Act, the 
Administrator may, by agreements with such other department or agencies, 
where applicable, provide for the conduct of consolidated or joint 
hearings, and for the application to such hearings of rules of procedure 
not inconsistent with this part. Final decisions in such cases, insofar 
as this part is concerned, shall be made in accordance with Sec.  
209.10.

[30 FR 317, Jan. 9, 1965, as amended at 38 FR 17949, July 5, 1973]



Sec.  209.10  Decisions and notices.

    (a) Decision by a hearing examiner. If the hearing is held by a 
hearing examiner such hearing examiner shall either make an initial 
decision, if so authorized, or certify the entire record including his 
recommended findings and proposed decision to the Administrator for a 
final decision, and a copy of such initial decision or certification 
shall be mailed to the applicant or recipient and the complainant. Where 
the initial decision is made by the hearing examiner the applicant or 
recipient may within 30 days of the mailing of such notice of initial 
decision file with the Administrator his exceptions to the initial 
decision, with his reasons therefor. In the absence of exceptions, the 
Administrator may on his own motion within 45 days after the initial 
decision serve on the applicant or recipient a notice that he will 
review the decision. Upon the filing of such exceptions or of such 
notice of review the Administrator shall review the initial decision and 
issue his own decision thereon including the reasons therefor. The 
decision of the Administrator shall be mailed promptly to the applicant 
or recipient and the complainant, if any. In the absence of either 
exceptions or a notice of review the initial decision shall constitute 
the final decision of the Administrator.
    (b) Decisions on record or review by the Administrator. Wherever a 
record is certified to the Administrator for decision or he reviews the 
decision of a hearing examiner pursuant to paragraph (a) of this 
section, or whenever the Administrator conducts the hearing, the 
applicant or recipient shall be given reasonable opportunity to file 
with him briefs or other written statements of its contentions, and a 
copy of the final decision of the Administrator shall be given in 
writing to the applicant or recipient and the complainant, if any.
    (c) Decisions on record where a hearing is waived. Wherever a 
hearing is waived pursuant to Sec.  209.9(a) a decision shall be made by 
the Administrator on the record and a copy of such decision shall be 
given in writing to the applicant or recipient, and to the complainant, 
if any.
    (d) Rulings required. Each decision of a hearing officer or the 
Administrator shall set forth his ruling on each finding, conclusion, or 
exception presented, and shall identify the requirement or requirements 
imposed by or pursuant to this part with which it is found that the 
applicant or recipient has failed to comply.
    (e) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in whole or in part, to which this regulation applies and 
may contain such terms, conditions, and other provisions as are 
consistent with and will effectuate the purposes of the Act and this 
part, including provisions designed to assure that no Federal financial 
assistance to which this regulation applies will thereafter be extended 
to the applicant or recipient determined by such decision to be in 
default in its performance of an assurance given by it pursuant to this 
part, or to have otherwise failed to comply with this part, unless and 
until it corrects its noncompliance and satisfies the Administrator that 
it will fully comply with this part.
    (f) Post termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (e) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this regulation and provides reasonable assurance that

[[Page 853]]

it will fully comply with this regulation.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (e) of this section may at any time 
request the responsible Agency official to restore fully its eligibility 
to receive Federal financial assistance. Any such request shall be 
supported by information showing that the applicant or recipient has met 
the requirements of paragraph (f)(1) of this section. If the responsible 
Agency official determines that those requirements have been satisfied, 
he shall restore such eligibility.
    (3) If the responsible Agency official denies any such request, the 
applicant or recipient may submit a request for a hearing in writing, 
specifying why it believes such official to have been in error. It shall 
thereupon be given an expeditious hearing, with a decision on the 
record, in accordance with rules of procedure issued by the responsible 
Agency official. The applicant or recipient will be restored to such 
eligibility if it proves at such a hearing that it satisfied the 
requirements of paragraph (f)(1) of this section. While proceedings 
under this paragraph are pending, the sanctions imposed by the order 
issued under paragraph (e) of this section shall remain in effect.

[30 FR 317, Jan. 9, 1965, as amended at 38 FR 17949, July 5, 1973]



Sec.  209.11  Judicial review.

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



Sec.  209.12  Effect on other regulations; supervision and coordination.

    (a) All regulations, orders or like directions heretofore issued by 
any officer of the Agency for International Development which impose 
requirements designed to prohibit any discrimination against individuals 
on the ground of race, color, or national origin under any program to 
which this part applies, and which authorize the suspension or 
termination of or refusal to grant or to continue Federal financial 
assistance to any applicant for or recipient of such assistance for 
failure to comply with such requirements, are hereby superseded to the 
extent that such discrimination is prohibited by this part, except that 
nothing in this part shall be deemed to relieve any person of any 
obligation assumed or imposed under any such superseded regulation, 
order, instruction, or like direction prior to the effective date of 
this part. Nothing in this part, however, shall be deemed to supersede 
any of the following (including future amendment thereof): (1) Executive 
Order 11246, and regulations issued thereunder, or (2) any other 
regulation or instruction insofar as it prohibits discrimination on the 
grounds of race, color, or national origin in any program or situation 
to which this part is inapplicable, or prohibits discrimination on any 
other ground.
    (b) Supervision and coordination. The Administrator may from time to 
time assign to officials of other departments or agencies of the 
government (with the consent of such department or agency) 
responsibilities in connection with the effectuation of the purposes of 
title VI of the Act and this part (other than responsibility for final 
decision as provided in Sec.  209.10), including the achievement of 
effective coordination and maximum uniformity within the Agency for 
International Development and within the Executive branch of the 
Government in the application of title VI and this part to similar 
programs and in similar situations. Any action taken, determination 
made, or requirement imposed by an official of another Department or 
Agency acting pursuant to an assignment of responsibility under this 
subsection shall have the same effect as though such action had been 
taken by the responsible official of this Agency.

[30 FR 317, Jan. 9, 1965, as amended at 38 FR 17949, July 5, 1973]



Sec.  209.13  Delegation of authority.

    Responsibility for administration and enforcement of this part, with 
respect to Federal financial assistance administered by another Federal 
department or agency pursuant to delegation, transfer interagency 
service agreement, or other arrangement is vested in the head of such 
department or agency, or his delegate, and subject to such delegations 
or redelegations as he may make or authorize.

[[Page 854]]



Sec. Appendix A to Part 209--Federal Financial Assistance to Which This 
                           Regulation Applies

    1. Grants to organizations and institutions to carry on programs of 
technical cooperation and development in the United States to promote 
the economic development of less developed friendly countries. (Section 
211, Foreign Assistance Act, 22 U.S.C. 2171.)
    2. Grants to organizations and institutions to carry on programs of 
technical cooperation and development in the United States to promote 
the economic development of the less developed friendly countries of 
Latin America. (Section 251, Foreign Assistance Act, 22 U.S.C. 2211.)
    3. Grants to organizations and institutions to carry out programs in 
the United States of research into, and evaluation of, economic 
development in less developed foreign countries. (Section 241, Foreign 
Assistance Act, 22 U.S.C. 2193.)

[30 FR 317, Jan. 9, 1965, as amended at 38 FR 17949, July 5, 1973]



PART 211_TRANSFER OF FOOD COMMODITIES FOR FOOD USE IN DISASTER RELIEF, 
ECONOMIC DEVELOPMENT AND OTHER ASSISTANCE--Table of Contents



Sec.
211.1 General purpose and scope; legislation.
211.2 Definitions.
211.3 Cooperating sponsor agreements; program procedure.
211.4 Availability and shipment of commodities.
211.5 Obligations of cooperating sponsor.
211.6 Processing, repackaging, and labeling commodities.
211.7 Arrangements for entry and handling in foreign country.
211.8 Disposition of commodities unfit for authorized use.
211.9 Liability for loss, damage or improper distribution of 
          commodities.
211.10 Records and reporting requirements.
211.11 Suspension, termination, and expiration of program.
211.12 Waiver and amendment authority.
211.13 Participation by religious organizations.

Appendix I to Part 211--Operational Plan

    Authority: 7 U.S.C. 1726a(c).

    Source: 57 FR 19766, May 7, 1992, unless otherwise noted.



Sec.  211.1  General purpose and scope; legislation.

    (a) Legislation. The Agricultural Trade Development and Assistance 
Act of 1954, as amended (Pub. L. 480), was further revised by the 
Agricultural Development and Trade Act of 1990, Public Law 101-624, 104 
Stat. 3632-65 (1990). The legislation implemented by the regulation in 
this part (as of the date of issuance of this part) includes sections of 
Public Law 480, as follows: Sections 1, 2, 3, 201, 202, 203, 207, 401, 
402, 403, 404, 406, 407, 408, 409, 413 and 414. Pursuant to title II of 
Public Law 480, A.I.D. may transfer agricultural commodities to address 
famine or other urgent or extraordinary relief requirements; combat 
malnutrition, especially in children and mothers; carry out activities 
that attempt to alleviate the causes of hunger, mortality and morbidity; 
promote economic and community development; promote sound environmental 
practices; and carry out feeding programs. Agricultural commodities may 
be provided to meet emergency food needs through foreign governments and 
private or public organizations, including intergovernmental 
organizations. Section 202(a) of Public Law 480 authorizes A.I.D., 
notwithstanding any other provision of law, to provide agricultural 
commodities for emergency food needs in such manner and on such terms 
and conditions as A.I.D. determines appropriate to respond to the 
emergency. Agricultural commodities also may be provided for non-
emergency assistance through private voluntary organizations or 
cooperatives which are, to the extent practicable, registered with 
A.I.D., and through intergovernmental organizations.
    (b) Terms and conditions. This part 211, also known as A.I.D. 
Regulation 11, provides the standard terms and conditions applicable to 
title II programs, except those conducted by agencies of the United 
Nations and the World Food Program. The Operational Plan submitted by a 
cooperating sponsor may propose, and justify, the waiver of any section 
of this Regulation that is not required by statute. If A.I.D. approves a 
waiver, the specific section or subsection waived will be identified in 
the Transfer Authorization signed by the cooperating sponsor and A.I.D. 
or in an attachment, prepared by A.I.D., that is appended to the 
Operational Plan.

[[Page 855]]



Sec.  211.2  Definitions.

    (a) A.I.D. means the Agency for International Development or any 
successor agency, including, when applicable, each USAID. USAID means an 
office of A.I.D. located in a foreign country. AID/W means the office of 
A.I.D. located in Washington, DC.
    (b) Annual Estimate of Requirements or AER (Form A.I.D. 1550-3, 
Exhibit E, A.I.D. Handbook 9) is a statistical update of the Operational 
Plan which is signed by the cooperating sponsor requesting commodities 
under title II estimating the quantities required. When signed by AID/W, 
the AER together with the Food for Peace Program Agreement between 
A.I.D. and the cooperating sponsor, the approved Operational Plan, and 
this Regulation 11 form a donation agreement between A.I.D. and the 
cooperating sponsor with respect to the commodities included in the AER.
    (c) CCC means the Commodity Credit Corporation, a corporate agency 
and instrumentality of the United States within the U.S. Department of 
Agriculture.
    (d)(1) Cooperating sponsor means an entity, within or without the 
United States, governmental or not, such as the foreign government, the 
American Red Cross, the intergovernmental organization, or the private 
voluntary organization or cooperative, which enters into an agreement 
with the U.S. Government for the use of agricultural commodities or 
funds.
    (2) Governmental cooperating sponsor means a foreign government 
which has signed a Transfer Authorization under which agricultural 
commodities are donated for emergency purposes only. Governmental 
cooperating sponsors are treated here as a group separate from other 
cooperating sponsors since they are eligible only for emergency programs 
and their circumstances are different in such matters as rules governing 
shipping and in certain other aspects of agreements.
    (3) Nongovernmental cooperating sponsor means a cooperating sponsor 
which is a private voluntary organization, a cooperative, the American 
Red Cross, or other private or public agency. An intergovernmental 
organization also is treated as a nongovernmental cooperating sponsor in 
this Regulation 11 unless the text or context indicates otherwise.
    (e) Cooperative means a private sector organization whose members 
own and control the organization and share in its services and its 
profits and that provides business services and outreach in cooperative 
development for its membership.
    (f) Diplomatic Posts means the offices of the Department of State 
located in foreign countries and may include Embassies, Legations, and 
Consular offices. Since A.I.D. is responsible for title II programs, 
references in this Regulation to Diplomatic Posts apply only with 
respect to those countries where there is no USAID.
    (g) Disaster relief organizations means organizations which are 
authorized by AID/W, USAID or a Diplomatic Post to assist disaster 
victims.
    (h) Disaster victims means persons who, because of flood, drought, 
fire, earthquake, other natural or man-made disasters, or extraordinary 
relief requirements, are in need of food, feed, or other assistance.
    (i) Duty free means exempt from all customs duties, toll charges, 
taxes or governmental impositions levied on the act of importation.
    (j)(1) Food for Peace Program Agreement establishes a 
nongovernmental organization as a cooperating sponsor for which A.I.D. 
agrees to authorize future transfers of commodities in accordance with 
title II of Public Law 480 and Regulation 11 and the cooperating sponsor 
agrees to accept transfer of commodities in accordance with approved 
programs under title II and A.I.D. Regulation 11 and related procedures.
    (2) Host Country Food for Peace Program Agreement means an agreement 
between the cooperating sponsor and the foreign government of each 
cooperating country which authorizes the cooperating sponsor to conduct 
activities there in a manner consistent with the terms and conditions 
set forth within this Regulation 11.
    (3) Recipient Agency Agreement means a written agreement between the 
cooperating sponsor and a recipient agency prior to the transfer to the 
recipient

[[Page 856]]

agency of commodities, monetized proceeds, or other program income for 
distribution or implementation of an approved program.
    (k) Free alongside ship (f.a.s.) includes all costs of 
transportation and delivery of the goods to the dock. ``Free on board'' 
(f.o.b.) includes costs for delivering the goods and loading them aboard 
the carrier at a specific location.
    (l) Institutions means nonpenal, public or nonprofit private 
establishments that operate for charitable or welfare purposes where 
needy persons reside and receive meals including, but not limited to, 
homes for the aged, mentally and physically handicapped, refugee camps, 
and leprosy asylums.
    (m) Intergovernmental organizations means agencies sponsored and 
supported by two or more nations, one of which is the United States.
    (n) Marine salvage means the compensation made to those by whose 
assistance a vessel or its cargo has been saved from impending peril or 
recovered from actual loss.
    (o) Monetized proceeds means funds generated from the sale of title 
II commodities in approved monetization programs. Monetized proceeds 
should be deposited in a special interest-bearing account for control 
and monitoring.
    (p) Nonprofit means that the residue of income over operating 
expenses accruing in any activity, project, or program is used solely 
for the operation of such activity, project, or program.
    (q) Operational Plan is a plan submitted by the cooperating sponsor 
or potential cooperating sponsor describing the proposed use of 
commodity and/or monetized proceeds and/or program income. All 
references in this Regulation to the Operational Plan shall include the 
AER that relates to such Operational Plan.
    (r) Private voluntary organization means a not-for-profit, 
nongovernmental organization (in the case of a United States 
organization, an organization that is exempt from Federal Income Taxes 
under section 501(c)(3) of the Internal Revenue Code of 1986) that 
receives funds from private sources, voluntary contributions of money, 
staff time, or in-kind support from the public, and that is engaged or 
is planning to engage in voluntary, charitable or development assistance 
activities (other than religious activities).
    (s) Program income means gross income earned by the cooperating 
sponsor or recipient agencies from activities supported under the 
approved program during the program period, including, but not limited 
to, interest earned on deposits of monetized proceeds, revenue from 
income generating activities, funds accruing from the sale of containers 
and nominal voluntary contributions by recipients made on the basis of 
ability to pay.
    (t) Recipient agencies means schools, institutions, welfare 
agencies, disaster relief organizations, and public or private agencies 
whose food distribution functions or project activities are sponsored by 
the cooperating sponsor and which receive for distribution to eligible 
recipients commodities or monetized proceeds or program income for 
approved project activities. A cooperating sponsor may be a recipient 
agency.
    (u) Recipients means persons who receive food assistance or the 
benefit of monetized proceeds or program income because of their 
economic or nutritional condition or who are otherwise eligible to 
receive commodities for their own use or other assistance in accordance 
with the terms and conditions of the approved Operational Plan or 
Transfer Authorization.
    (v) Registered private voluntary organization or cooperative means a 
nonprofit private voluntary organization or cooperative registered with, 
and approved by, A.I.D. The term includes foreign as well as U.S. 
registered nonprofit voluntary organizations and cooperatives. For 
discussion of registration, see 22 CFR part 203, A.I.D. Regulation 3, 
Registration of Agencies for Voluntary Foreign Aid. In reviewing and 
approving proposals, A.I.D., at its discretion, may give preference to 
registered private voluntary organizations and cooperatives over those 
that are not and to U.S. private voluntary organizations and 
cooperatives over those that are foreign.
    (w) Transfer Authorization or TA means the document signed by the 
cooperating sponsor and A.I.D. which describes commodities and the 
program

[[Page 857]]

in which they will be used. The TA incorporates A.I.D. Regulation 11 and 
authorizes CCC to ship the commodities.
    (x) USDA means the U.S. Department of Agriculture.
    (y) Welfare agencies means public or private voluntary organizations 
that provide care, including food assistance, to needy persons who are 
not residents of institutions.



Sec.  211.3  Cooperating sponsor agreements; program procedure.

    (a) Food for Peace Program Agreement. A nongovernmental organization 
is eligible to be a cooperating sponsor for regular programs under 
paragraph (d)(2)(i) of this section only after it has entered into a 
Food For Peace Program Agreement with A.I.D. that incorporates the terms 
and conditions set forth in Regulation 11.
    (b) Host Country Food for Peace Program Agreement. Nongovernmental 
and intergovernmental cooperating sponsors shall, in addition to the 
Food for Peace Program Agreement, enter into a separate written Host 
Country Food for Peace Agreement with the foreign government of each 
country for which title II commodities are transferred to the 
cooperating sponsor. This agreement shall establish the terms and 
conditions needed by a nongovernmental cooperating sponsor to conduct a 
title II program in the country in accordance with the applicable 
requirements of this part. The cooperating sponsor shall provide USAID 
or the Diplomatic Post a copy of each executed Host Country Food for 
Peace Agreement.
    Where such written agreement is not appropriate or feasible, USAID 
or the Diplomatic Post shall assure AID/W, in writing, that the program 
can be effectively implemented in compliance with this Regulation 
without such an agreement.
    (c) Recipient Agency Agreement. Prior to the transfer of 
commodities, monetized proceeds, or program income to a recipient agency 
for distribution or implementation of an approved program, the 
cooperating sponsor shall execute with such agency a written agreement 
which shall:
    (1) Describe the approved uses of commodities, monetized proceeds 
and program income in a manner consistent with the approved Operational 
Plan or TA;
    (2) Require the recipient agency to pay the cooperating sponsor the 
value of any commodities, monetized proceeds or program income that are 
used for purposes not permitted under the Recipient Agency Agreement or 
that are lost, damaged or misused as a result of the recipient agency's 
failure to exercise reasonable care with respect to such commodities, 
monetized proceeds or program income; and
    (3) Incorporate by reference or otherwise the terms and conditions 
set forth in this Regulation 11.

The Operational Plan may indicate those transfers of commodities, 
monetized proceeds or program income for which the cooperating sponsor 
and A.I.D. agree that a Recipient Agency Agreement would not be 
appropriate or feasible. In any case, the cooperating sponsor shall 
remain responsible for such commodities, monetized proceeds and program 
income in accordance with the terms of this Regulation 11 and the 
Operational Plan or TA. The cooperating sponsor shall provide USAID or 
the Diplomatic Post a copy of each executed Recipient Agency Agreement.
    (d) Program procedure--(1) Requests for programs. A program may be 
requested by any cooperating sponsor, including private voluntary 
organizations, cooperatives, foreign governments (for emergencies only), 
and international organizations.
    (2) Approval of programs. There are two basic patterns of decision 
typically employed in approving a request for title II assistance:
    (i) Regular programs. The cooperating sponsor submits to A.I.D. an 
Operational Plan or multi-year Operational Plan (see appendix I), 
describing the program proposed. Also, an AER will be submitted to 
A.I.D. along with the Operational Plan, estimating the quantities of 
commodities required for each program proposed. AID/W's approval of and 
signature on the AER completes this decision process.
    (ii) Individual programs. The other basic pattern of decision making 
results in a Transfer Authorization. The TA is used for all emergency 
government-to-government programs, and for

[[Page 858]]

nongovernmental cooperating sponsor programs which do not fit within the 
Program Agreement/AER framework. The TA will include by reference 
Regulation 11.
    (3) Subject to availability. A.I.D.'s agreement to transfer 
commodities is subject to the availability of appropriations and 
agricultural commodities during each United States Government fiscal 
year to which it applies.
    (4) Timing of decision. Under Public Law 480, section 207(a), within 
45 days of its submission to AID/W, a decision must be made on a 
proposal submitted by a private voluntary organization or cooperative, 
concurred in by USAID or the Diplomatic Post. The decision shall detail 
the reasons for approval or denial, and if denied, conditions to be met 
for approval. In addition, a USAID or Diplomatic Post must decide 
whether or not to concur in the proposal within 45 days of receiving it 
or provide a written explanation to the private voluntary organization 
or cooperative and AID/W of the reasons USAID or the Diplomatic Post 
needs more time to consider the proposal.



Sec.  211.4  Availability and shipment of commodities.

    (a) Shipment, distribution and use of commodities. Commodities shall 
be available for shipment, distribution and use in accordance with the 
provisions of the approved Operational Plan and AER, or TA and this 
Regulation 11.
    (b) Transfer of title and delivery. (1) Unless the approved 
Operational Plan or TA provides otherwise, title to the commodity shall 
pass--
    (i) For nongovernmental cooperating sponsors, at the point in the 
United States at which the ocean carrier or its agents take possession 
of the cargo (generally f.a.s. or f.o.b. vessel U.S. port); or
    (ii) For governmental cooperating sponsors, at the destination port 
of entry, upon completion of discharge by the ocean carrier (non-
landlocked countries), or at the destination point of entry, upon 
completion of delivery by the inland carrier (landlocked countries).

Except as A.I.D. may otherwise agree in writing, the cooperating sponsor 
shall retain title to commodities, monetized proceeds, and program 
income transferred to a recipient agency for distribution or use in 
accordance with the Operational Plan or TA.
    (2) Nongovernmental cooperating sponsors shall make the necessary 
arrangements to accept commodities at the points of availability 
designated by CCC.
    (c) Processing, handling, transportation and other costs. (1) Except 
as othervise provided in the Operational Plan or TA, the United States 
will pay in accordance with this paragraph (c) processing, handling, 
transportation, and other incidental costs incurred in making 
commodities available to cooperating sponsors at U.S. ports or U.S. 
inland destinations, up to the point at which the ocean carrier takes 
possession of the cargo.
    (2) The United States will finance the transfer of commodities at 
the lowest combination inland and ocean transportation costs as 
determined by the United States and in sizes and types of packages 
announced as applicable. If a nongovernmental cooperating sponsor 
requests changes to these standards which are made by the United States 
as an accommodation to the cooperating sponsor and these changes result 
in costs over those the United States otherwise would have incurred, the 
cooperating sponsor shall reimburse the United States for these 
increased costs promptly upon request.
    (3) All costs and expenses incurred subsequent to the transfer of 
title to cooperating sponsors shall be borne by them except as otherwise 
provided herein. Upon the determination that it is in the interests of 
the program to do so, the United States may pay or reimburse the 
following additional costs:
    (i) Ocean transportation costs from U.S. ports to the designated 
ports of entry abroad; or
    (ii) Ocean transportation costs from U.S. ports to designated points 
of entry abroad in the case--
    (A) Of landlocked countries,
    (B) Where ports cannot be used effectively because of natural or 
other disturbances,
    (C) Where carriers to a specific country are unavailable, or

[[Page 859]]

    (D) Where a substantial savings in cost or time can be effected by 
the utilization of points of entry other than ports; or
    (iii) In the case of commodities for urgent and extraordinary relief 
requirements, including prepositioned commodities, transportation costs 
from designated points of entry or ports of entry abroad to storage and 
distribution centers and associated storage and distribution costs.
    (d) Payment or reimbursement of ocean freight costs. When A.I.D. 
contracts for ocean carriage, carriers shall be paid by A.I.D., as 
provided in their contracts of affreightment, upon presentation of 
Standard Form 1034 and three copies of 1034A (Public Voucher for 
purchases and services other than personal), together with three copies 
of the related on-board ocean bill of lading, one copy of which must 
contain the following certification signed by an authorized 
representative of the steamship company:

    I certify that this document is a true and correct copy of the 
original on-board ocean bill of lading under which the goods herein 
described were located on the above-named vessel and that the original 
and all other copies thereof have been clearly marked as not to be 
certified for billing.

________________________________________________________________________
(Name of steamship co.)

 By

(Authorized representative)


Such documents shall be submitted to: Transportation Division, Office of 
Procurement, (FA/OP/TRANS), Agency for International Development, 
Washington, DC 20523. Except for duty, taxes and other costs excluded by 
Sec.  211.7 (a) and (b) of this Regulation 11, nongovernmental 
cooperating sponsors booking their own vessels will be reimbursed as 
provided in A.I.D. Regulation 2 (part 202 of this chapter) for ocean 
freight authorized by the United States upon presentation to AID/W of 
proof of payment to the ocean carrier. However, freight prepaid bills of 
lading which indicate firm incurrence of freight costs will be accepted 
by A.I.D. as evidence of payment to the ocean carrier provided that the 
nongovernmental cooperating sponsor agrees to ensure that such carrier 
is actually paid no later than 7 calendar days following receipt of U.S. 
Government funds by the sponsor or its agent. A.I.D. will reimburse 
nongovernmental cooperating sponsors only up to a maximum of 2\1/2\ 
percent commission paid to their freight forwarders as a result of 
booking Public Law 480, title II cargo. Similarly, when A.I.D. books 
cargo, a maximum of 2\1/2\ percent commission may be paid by the 
contracted carrier. Proof of payment of commissions must be submitted 
with requests for reimbursement.
    (e) Shipping instructions--(1) Shipments booked by A.I.D. Requests 
for shipment of commodities shall originate with the cooperating sponsor 
and shall be submitted to USAID or the Diplomatic Post for clearance and 
transmittal to AID/W. AID/W shall, through cables or letters to USAID or 
the Diplomatic Post, provide cooperating sponsors (and, where 
applicable, private voluntary organization or cooperative headquarters) 
with names of vessels, expected times of arrival (ETAs), and other 
pertinent information on shipments booked by A.I.D. As soon as possible 
but not later than 7 days from the time of exportation of commodities, 
A.I.D.'s freight forwarding contractor shall send applicable ocean bills 
of lading by airmail, or by the fastest means available, to USDA (Chief, 
Processed Commodities Division, Kansas City ASCS Commodity Office 
(KCCO), P.O. Box 419205, Kansas City, Missouri 64141-6205), to USAID or 
the Diplomatic Post (and where applicable to the USAID Controller and 
nongovernmental cooperating sponsor headquarters and field 
representative), to AID/W, FA/OP/TRANS (see Sec.  211.4(d)), and to the 
consignee in sufficient time to advise of the arrival of the shipment.
    (2) Shipments booked by nongovernmental cooperating sponsor. 
Requests for shipment of commodities shall originate with the 
cooperating sponsor and shall be cleared by USAID or the Diplomatic Post 
before transmittal to the cooperating sponsor's headquarters for 
concurrence and issuance. USAID or the Diplomatic Post shall promptly 
clear such requests for shipment of commodities or, if there is reason 
for delay or disapproval, advise the cooperating sponsor and AID/W 
within seven (7) days of receipt of requests for shipment. After the 
cooperating sponsor

[[Page 860]]

headquarters concurs in the request and issues the order, the original 
will be sent promptly to AID/W which will forward it to CCC for 
procurement action with a copy to USAID or the Diplomatic Post. 
Headquarters of cooperating sponsors which book their own shipments 
shall provide their representatives and USAID or the Diplomatic Post 
with the names of vessels, ETAs and other pertinent information on 
shipments booked. At the time of exportation of commodities, the booking 
agent representing the cooperating sponsor shall send applicable ocean 
bills of lading by airmail or by the fastest means available to USDA 
(Chief, Processed Commodities Division, Kansas City ASCS Commodity 
Office (KCCO), P.O. Box 419205, Kansas City, Missouri 64141-6205), to 
USAID or the Diplomatic Post (and where applicable to the USAID 
Controller and the nongovernmental cooperating sponsor representative), 
to AID/W, FA/OP/TRANS (see Sec.  211.4(d)), and to the consignee in the 
country of destination in sufficient time to advise of the arrival of 
the shipment. Nongovernmental cooperating sponsors also will forward 
cable advice of actual exportation to their program directors in 
countries within the Caribbean area in view of the short transit time 
from U.S. port to destination.
    (3) Cooperating sponsors awarding USAID-financed ocean 
transportation bookings of food aid under the Public Law 480, title II 
program shall follow consistent, transparent, fair and effective 
procedures. In order to promote these objectives, USAID may formulate, 
and from time-to-time amend, uniform standard booking guidelines 
relating to such bookings. Guidelines will be finalized only after 
consultation with affected cooperating sponsors, freight forwarders and 
carriers as required by the Agricultural Development and Trade Act of 
1990 or other applicable legislation. Copies of the guidelines and any 
proposed amendments may be obtained from the Transportation Division, 
Office of Procurement, Agency for International Development, Washington, 
DC 20523.
    (f) Tolerances. Delivery by the United States to the cooperating 
sponsor at point of transfer of title within a tolerance of 5 percent (2 
percent in the case of quantities over 10,000 metric tons) plus or 
minus, of the quantity ordered for shipment shall be regarded as 
completion of delivery. There shall be no tolerance with respect to the 
ocean carrier's responsibility to deliver the entire cargo shipped and 
the United States assumes no obligation for failure by an ocean carrier 
to complete delivery to port of discharge.
    (g) Conflict of interest. (1) Pursuant to section 407(c)(4) of 
Public Law 480, a person may not be an agent, broker, consultant, or 
other representative of the U.S. Government, an importer, or an 
importing country in connection with agricultural commodities provided 
under Public Law 480 during a fiscal year in which such person acts as 
an agent, broker, consultant or other representative of a person engaged 
in providing ocean transportation or ocean transportation-related 
services for such commodities.
    (i) For purposes of section 407(c)(4), the term ``transportation-
related services'' means lightening, stevedoring, bagging or inland 
transportation to the destination point.
    (ii) The prohibition does not preclude payment by ocean carriers of 
compensation or brokerage fees on a shipment-by-shipment basis as 
provided in governing tariffs or charter parties to persons performing 
freight forwarding or charter broking services under contract to the 
U.S. Government.
    (2) Pursuant to section 407(d)(3) of Public Law 480, freight agents 
employed by A.I.D. under title I, II or III of Public Law 480 shall not 
represent any other foreign government during the period of their 
contract with the United States Government. This restriction applies 
both to charter brokers and freight forwarders whether they are prime 
contractors or subcontractors of A.I.D.
    (3) This paragraph (g) does not apply to shipments booked by 
nongovernmental cooperating sponsors or their agents.

[57 FR 19766, May 7, 1992, as amended at 60 FR 36991, July 19, 1995]

[[Page 861]]



Sec.  211.5  Obligations of cooperating sponsor.

    (a) Operational Plans. Each cooperating sponsor shall submit a 
description of the programs it is sponsoring or proposes to sponsor to 
USAID or the Diplomatic Post for its approval. AID/W will prescribe the 
format and timing for submittals and provide final approval of the 
Operational Plan. This Operational Plan will include program purposes 
and goals; criteria for measuring program effectiveness; a description 
of the activities for which commodities, monetized proceeds, or program 
income will be provided or used; and other specific provisions in 
addition to those set forth in this Regulation. Further, this 
description will include information from which it may be determined 
that the distribution of commodities in the recipient country will not 
result in a substantial disincentive to domestic production and that 
adequate storage facilities will be available in the recipient country 
at the time of arrival of the commodity to prevent spoilage or waste of 
the commodity. For preparation of the Operational Plan, see appendix I 
to this regulation. If a cooperating sponsor submits a multi-year 
Operational Plan that is approved by A.I.D., the Operational Plan 
provided with an AER each subsequent year should cover only those 
components or features which require updating or the cooperating sponsor 
proposes to change. A.I.D. will issue guidance each year regarding 
Operational Plans that must be submitted by cooperating sponsors. Within 
the limits of the total amount of commodities, monetized proceeds and 
program income approved by A.I.D. in the Operational Plan, the 
cooperating sponsor may increase or decrease by not to exceed 10 percent 
the amount of commodities, monetized proceeds or program income 
allocated to approved program categories or components of the 
Operational Plan. Such adjustments must be identified specifically in 
the annual report submitted by a cooperating sponsor under Sec.  
211.10(b) of the Regulation. A cooperating sponsor may not otherwise 
deviate from the Operational Plan without the prior written approval of 
A.I.D.
    (b) Program supervision. Cooperating sponsors shall provide adequate 
supervisory personnel for the efficient operation of the program, 
including personnel to:
    (1) Plan, organize, implement, control, and evaluate programs 
involving distribution of commodities or use of monetized proceeds and 
program income,
    (2) Make warehouse inspections, physical inventories, and end-use 
checks of food or funds, and
    (3) Review of books and records maintained by recipient agencies 
that receive monetized proceeds and/or program income.

Cooperating sponsors shall be represented by a person resident in the 
country of distribution or other nearby country approved by AID/W, who 
is appointed by and responsible to the cooperating sponsor for 
distribution of commodities or use of monetized proceeds or program 
income in accordance with the provisions of this regulation.
    (c) Audits--(1) By nongovernmental cooperating sponsors. A 
nongovernmental cooperating sponsor shall arrange for periodic audits to 
be conducted in accordance with OMB Circular A-133, including the OMB 
Compliance Supplement and the Statement of Position Regarding Circular 
A-133 developed by the American Institute of Certified Public 
Accountants. Nongovernmental recipient agencies shall be treated as 
subrecipients under OMB Circular A-133, and governmental recipient 
agencies shall furnish the cooperating sponsor audits in accordance with 
the standard in paragraph (c)(2) of this section. The cooperating 
sponsor may satisfy these audit responsibilities with respect to 
recipient agencies by relying on independent audits performed of 
recipient agencies or on appropriate procedures performed by the 
cooperating sponsor's internal audit or program staff, by expanding the 
scope of the independent financial and compliance audit of the 
cooperating sponsor to encompass testing of recipient agency charges, or 
by a combination of these procedures. The Generally Accepted Commodity 
Accounting Principles issued by Food Aid Management, an association of 
cooperating sponsors, may be used for commodity accounting.

[[Page 862]]

    (2) By governmental cooperating sponsors. A governmental cooperating 
sponsor shall ensure that an audit satisfactory to A.I.D. is conducted 
annually with respect to donated commodities and monetized proceeds, if 
commodity sales are authorized under the agreement with A.I.D., 
including commodities and monetized proceeds transferred to or used by 
recipient agencies. The audit shall be a financial audit performed by 
the country's principal government audit agency or another audit agency 
or firm acceptable to A.I.D. This audit should be conducted in 
accordance with generally accepted government auditing standards issued 
by the United States General Accounting Office, or auditing standards 
that have been prescribed by the laws of the country or adopted by 
public accountants or an association of public accountants in the 
country, or Auditing Standards promulgated by the International 
Organization of Supreme Audit Institutions or International Auditing 
Practices Committee of the International Federation of Accountants. Both 
the auditor and the auditing standards to be used by the cooperating 
sponsor must be acceptable to A.I.D. The cooperating sponsor may satisfy 
its audit responsibility with respect to recipient agencies by relying 
on independent audits of the recipient agency or on appropriate 
procedures performed by internal audit or program staff of the 
cooperating sponsor, by expanding the scope of the independent financial 
audit of the cooperating sponsor to encompass testing of recipient 
agency charges or actions, or by a combination of these procedures. 
Recipient agencies that receive less than $25,000 of donated commodities 
and/or monetized proceeds are excluded from the cooperating sponsor's 
audit responsibility.
    (d) Commodity requirements; AER. Each cooperating sponsor shall 
submit to USAID or the Diplomatic Post, within such times and on the AER 
form prescribed by AID/W, estimates of requirements showing the 
quantities of commodities required for each program proposed.
    (e) No military distribution. Except as A.I.D. may otherwise agree 
in writing, agricultural commodities donated by A.I.D. shall not be 
distributed, handled or allocated by any military forces.
    (f) Determination of eligibility of recipients. Cooperating sponsors 
shall be responsible for determining that the recipients and recipient 
agencies to whom they distribute commodities are eligible in accordance 
with the Operational Plan or TA and this Regulation. Cooperating 
sponsors shall impose upon recipient agencies responsibility for 
determining that the recipients to whom they distribute commodities or 
provide assistance with monetized proceeds or program income are 
eligible. Commodities shall be distributed free of charge except as 
provided in paragraphs (j) and (k) of this section or as otherwise 
authorized by AID/W, but in no case will recipients be excluded from 
receiving commodities because of inability to make a contribution to the 
cooperating sponsor for any purpose.
    (g) No discrimination. Cooperating sponsors shall distribute 
commodities to and conduct operations (with food, monetized proceeds, or 
program income) only with eligible recipient agencies and eligible 
recipients without regard to political affiliation, geographic location, 
ethnic, tribal or religious identity or other factors extraneous to need 
and the eligibility criteria set forth in the approved Operational Plan 
or TA, and shall impose similar conditions upon recipient agencies.
    (h) Public recognition. To the maximum extent practicable, and with 
the cooperation of the host government, adequate public recognition 
shall be given in the press, by radio, and other media that the 
commodities or assistance financed by monetized proceeds or program 
income have been provided through the friendship of the American people 
as food for peace. At distribution and feeding centers or other project 
sites the cooperating sponsor shall, to the extent feasible, display 
banners, posters, or similar media which shall contain information 
similar to that prescribed for containers in paragraph (i) of this 
section. Recipients' individual identification cards shall, insofar as 
practicable, be imprinted to contain such information.

[[Page 863]]

    (i) Containers--(1) Markings. Unless otherwise specified in the 
Operational Plan or TA, when commodities are packaged for shipment from 
the United States, bags and other containers shall be marked with the 
CCC contract number or other identification, the A.I.D. emblem and the 
following information stated in English:
    (i) Name of commodity;
    (ii) Provided through the friendship of the American people as food 
for peace;
    (iii) Not to be sold or exchanged (where applicable).
    (2) Disposal of containers. Cooperating sponsors may dispose of 
containers, other than containers provided by carriers, in which 
commodities are received in countries having approved title II programs, 
by sale or exchange, or may distribute the containers free of charge to 
eligible food or fiber recipients for their personal use. If the 
containers are to be used commercially, the cooperating sponsor must 
arrange for the removal, obliteration, or cross out of the U.S. 
Government markings from the containers prior to such use.
    (j) Monetization programs. Provisions of this Regulation that 
prohibit or restrict the sale of commodities or require marking or 
labeling of containers do not apply to the extent the sale of 
commodities is approved by A.I.D. Cooperating sponsors are not required 
to monitor, manage, report on or account for the distribution or use of 
commodities after title to the commodities has passed to buyers or other 
third parties pursuant to a sale under a monetization program and all 
sales proceeds have been fully deposited in the special interest-bearing 
account established by the cooperating sponsor for monetized proceeds. 
However, the receipt and use of sales proceeds must be monitored, 
managed, reported and accounted for as provided in this Regulation, with 
special reference to paragraphs (k) and (l) of this section, and Sec.  
211.10. It is not mandatory that commodities approved for monetization 
be imported and sold free from all duties and taxes, but nongovernmental 
cooperating sponsors may negotiate agreements with the host government 
permitting the tax-free import and sale of such commodities. Even where 
the cooperating sponsor negotiates tax-exempt status, the prices at 
which the cooperating sponsor sells the commodities to the purchaser 
should reflect prices that would be obtained in a commercial 
transaction, i.e., the prices would include the cost of duties and 
taxes, except as A.I.D. may otherwise agree in writing. Thus, the 
amounts normally paid for duties and taxes would accrue for the benefit 
of the cooperating sponsor's approved program. Cooperating sponsors 
should refer to the ``Monetization Field Manual'' for more comprehensive 
guidance on setting the sales price. A copy of the Monetization Manual 
may be obtained from AID/W-FHA/PPE, Washington, DC 20523.
    (k) Use of funds. (1) Nongovernmental cooperating sponsors and 
recipient agencies may use monetized proceeds and program income to:
    (i) Transport, store, distribute and otherwise enhance the 
effectiveness of the use of donated commodities and products thereof, 
including construction or improvement of storage facilities or 
warehouses, handling, insect and rodent control, payment of personnel 
employed or used by the cooperating sponsor or recipient agencies in 
support of approved programs;
    (ii) Implement income generating, community development, health, 
nutrition, cooperative development, agricultural and other developmental 
activities agreed upon by A.I.D. and the cooperating sponsor;
    (iii) Make investments, with the approval of A.I.D., and any 
interest earned on such investments may be used for purposes described 
in paragraphs (k)(l) (i) and (ii) of this section;
    (iv) Improve their financial and other management systems; and
    (v) Pay indirect costs of the cooperating sponsor that are allocable 
to the monetization program at the indirect cost rate approved by A.I.D. 
for the cooperating sponsor, the direct and indirect costs of an office 
maintained by the cooperating sponsor in the country where the 
monetization program is conducted that are allocable to the title II 
program there, and the costs of a regional office maintained by a 
cooperating sponsor that are allocable to the cooperating sponsor's 
effort to enhance the effectiveness of the use of

[[Page 864]]

commodities provided by A.I.D. under title II.
    (2) Monetized proceeds and program income may be used by the 
cooperating sponsor and recipient agencies only for the purposes 
described in the Operational Plan or TA, or otherwise approved by 
A.I.D., in writing, and only for such costs as would be allowable under 
OMB Circular A-122, as amended, ``Cost Principles for Nonprofit 
Organizations''. A recipient agency may use not to exceed $500 per year 
of voluntary contributions for institutional, community or social 
development or other humanitarian purposes without regard to the 
Operational Plan or TA or OMB Circular A-122.
    (3) Governmental cooperating sponsors shall use monetized proceeds 
and program income only for emergency purposes as described in the TA 
with respect to such programs.
    (4) Monetized proceeds and program income may not be used to pay for 
the performance of abortions as a method of family planning or to 
motivate or coerce any person to practice abortions.
    (5) Except as A.I.D. may otherwise agree in writing, monetized 
proceeds may not be used to finance the production for export of 
agricultural commodities, or products thereof, that would compete in the 
world market with similar agricultural commodities, or products thereof, 
produced in the United States, if such competition would cause 
substantial injury to the United States producers, as determined by 
A.I.D.
    (6)(i) The cooperating sponsor shall use commercially reasonable 
practices in construction activities and in purchasing goods and 
services with monetized proceeds or program income; maintain a code of 
standards of conduct regarding conflicts of interest; carry out 
procurement transactions in a manner to provide open and free 
competition to the maximum extent practicable; and maintain and make 
available to A.I.D. in accordance with Sec.  211.10 records and 
documents regarding the procurement of goods and services with monetized 
proceeds and program income. Cooperating sponsors shall follow their own 
requirements relating to bid guarantees, performance bonds and payment 
bonds when program income or monetized proceeds are used to finance 
construction or the improvement of facilities, but shall consult with 
USAID or the Diplomatic Post regarding such requirements when the 
estimated cost of such construction or improvements exceeds $100,000. 
Title to real and personal property shall be vested in the cooperating 
sponsor, except as provided in the Operational Plan or TA or as A.I.D. 
may otherwise agree in writing, subject to the requirements of Sec.  
211.11 upon termination of the program.
    (ii) Monetized proceeds and program income may not be used to 
acquire, construct, alter or upgrade land, buildings or other real 
property improvements that are used in whole or in part for sectarian 
purposes or which are owned or managed by a church or other organization 
engaged exclusively in religious activity. Notwithstanding the preceding 
sentence, monetized proceeds or program income may be used to finance 
repair or rehabilitation of an existing structure owned or managed by a 
church or organization engaged exclusively in religious activity to the 
extent necessary to avoid spoilage or loss of donated commodities, 
provided that the structure is not used in whole or in part for any 
sectarian purpose while donated commodities are stored in it. The use of 
monetized proceeds or program income to finance construction of such a 
structure may be approved in the Operational Plan or TA or by USAID or 
the Diplomatic Post if the structure is needed and will be used for the 
storage of donated commodities for a sufficient period of time to 
warrant the expenditure of monetized proceeds or program income and the 
structure will not be used for any sectarian purpose during this period.
    (l) Report on funds. The cooperating sponsor (headquarters, if there 
is more than one office) shall annually provide AID/W a report on the 
receipt and disbursement of all monetized proceeds and program income by 
cooperating sponsors and recipient agencies. This report should include 
the source of the funds, by country, and how the funds were used. This 
annual report should be submitted to AID/W by December 31 of each 
calendar year for the fiscal

[[Page 865]]

year ending September 30 of that calendar year.
    (m) No displacement of sales. Except in the case of emergency or 
disaster situations, the donation of commodities furnished for these 
programs shall not result in increased availability for export by the 
recipient country of the same or like commodities and shall not 
interfere with or displace sales in the recipient country which might 
otherwise take place. A country may be exempt from this proviso if 
circumstances warrant. USAIDs should seek AID/W guidance on this matter.
    (n) Commodities borrowed or exchanged for programs. After the date 
of the program approval by AID/W, but before arrival at the distribution 
point of the commodities authorized, the cooperating sponsor may, with 
prior approval of USAID or the Diplomatic Post, borrow the same or 
similar commodities from available sources to meet program requirements 
provided that:
    (1) Borrowed commodities which are used in accordance with the terms 
of the Operational Plan or TA will be replaced with commodities 
transferred by A.I.D. The amount of commodities transferred to replace 
borrowed commodities shall be established by mutual agreement between 
the cooperating sponsor and USAID or the Diplomatic Post and will be 
determined on the basis of equivalent value at the time and place of 
transfer or on some other justifiable basis proposed by the cooperating 
sponsor and acceptable to USAID or the Diplomatic Post;
    (2) Packaged commodities which are borrowed shall be appropriately 
identified insofar as practicable in the language of the country of 
distribution as having been provided through the friendship of the 
American people as food for peace; and
    (3) Suitable publicity shall be given to the exchange of commodities 
as provided in paragraph (h) of this section and containers for borrowed 
commodities shall be marked to the extent practicable in accordance with 
Sec.  211.6(c).
    (o) Commodity transfer between programs. After the date of program 
approval by AID/W, but before distribution of the commodities, USAID or 
the Diplomatic Post (or the cooperating sponsor with prior approval of 
USAID or the Diplomatic Post) may transfer commodities between approved 
title II programs to meet emergency disaster requirements or to improve 
efficiency of operation, such as to meet temporary shortages due to 
delays in ocean transportation or provide for rapid distribution of 
stocks in danger of deterioration. Transfers also may be made to 
disaster organizations for use in meeting exceptional circumstances. 
Commodity transfers shall be made at no cost to the U.S. Government and 
with the concurrence of the cooperating sponsor and disaster relief 
organization concerned. A USAID or Diplomatic Post with funds available, 
however, may pay the costs of transfers to meet extraordinary relief 
requirements, and AID/W shall be advised promptly of the details of the 
transfer. Commodities transferred between programs shall not be replaced 
by the U.S. Government unless AID/W authorizes such replacement.
    (p) Disposal of excessive stock of commodities. If commodities are 
on hand which cannot be utilized in accordance with the approved 
Operational Plan or the TA, the cooperating sponsor shall promptly 
advise USAID or the Diplomatic Post of the quantities, location and 
condition of such commodities, and where possible, shall propose an 
alternate use of the excess stocks; USAID or the Diplomatic Post shall 
determine the most appropriate use of the excess stocks, and with prior 
AID/W concurrence, shall issue instructions for disposition. 
Transportation costs and other charges attributable to transferring 
commodities from one program to another within the country shall be the 
responsibility of the cooperating sponsor, except that in case of 
disaster or emergency, AID/W may authorize the use of disaster or 
emergency funds to pay for the costs of such transfers. (For discussion 
of unfit commodity disposal, see Sec.  211.8.)
    (q) Trilateral exchange programs. The restrictions in this 
Regulation regarding the distribution, use or labeling of commodities 
shall not apply to commodities furnished by CCC in exchange for other 
commodities obtained from third parties (``exchanged commodities'') to 
be distributed in a recipient

[[Page 866]]

country under a trilateral exchange program. Except as A.I.D. and the 
cooperating sponsor may otherwise agree in writing, title to the 
exchanged commodities will pass to the cooperating sponsor upon delivery 
to and acceptance by the cooperating sponsor at the point of delivery 
specified in the Operational Plan or TA. After title passes to the 
cooperating sponsor the exchanged commodities shall be deemed 
``commodities'' covered by this Regulation with respect to all post-
delivery obligations of the cooperating sponsor contained in this 
Regulation, including obligations regarding labeling to the extent 
practicable, distribution, monitoring, reporting, accounting and use of 
commodities or monetized proceeds resulting from their sale. In the 
event of difficulty in satisfying the labeling requirement, the 
cooperating sponsor will consult with USAID or the Diplomatic Post for 
guidance.
    (r) Landing. Governmental cooperating sponsors shall permit donated 
commodities to be discharged notwithstanding any dispute or question 
concerning quality, quantity, or other matters relating to the commodity 
itself. Any such dispute or question shall be resolved in accordance 
with procedures stated in this Regulation or in the relevant shipping or 
other contracts, as applicable.



Sec.  211.6  Processing, repackaging, and labeling commodities.

    (a) Commercial processing and repackaging. Cooperating sponsors or 
their designees may arrange for processing commodities into different 
end products and for packaging or repackaging commodities prior to 
distribution. Commodities may be bartered, or monetized proceeds or 
program income may be used, to offset such costs if provided for in the 
Operational Plan or TA or approved by USAID or the Diplomatic Post. When 
commercial facilities are used for processing, packaging or repackaging, 
cooperating sponsors or their designees shall enter into written 
agreements for such services and copies of the agreements must be 
provided to USAID or the Diplomatic Post. Except as AID/W otherwise 
agrees, the executed agreements shall provide as a minimum that the 
party providing such services shall:
    (1) Fully account to the cooperating sponsor for all commodities 
delivered to the processor's possession and shall maintain adequate 
records and submit periodic reports pertaining to the performance of the 
agreement;
    (2) Be liable for the value of all commodities not accounted for as 
provided in Sec.  211.9(e);
    (3) Return or dispose of the containers in which the commodity is 
received from the cooperating sponsor according to instructions from the 
cooperating sponsor; and
    (4) Plainly label carton, sacks, or other containers containing the 
end product in accordance with paragraph (c) of this section.
    (b) Use of cooperating sponsor facilities. When cooperating sponsors 
utilize their own facilities to process, package, or repackage 
commodities into different end products, and when such products are 
distributed for consumption off the premises of the cooperating sponsor, 
the cooperating sponsor shall plainly label the containers as provided 
in paragraph (c) of this section, and banners, posters, or similar media 
which shall contain information similar to that prescribed in paragraph 
(c) of this section, shall be displayed at the distribution center. 
Recipients' individual identification cards shall to the maximum extent 
practicable be imprinted to contain such information.
    (c) Labeling. If, prior to distribution, the cooperating sponsor 
arranges for packaging or repackaging donated commodities, the cartons, 
sacks, or other containers in which the commodities are packed shall be 
plainly labeled with the A.I.D. emblem, and insofar as practicable, with 
the following information in the language of the country in which the 
commodities are to be distributed:
    (1) Name of commodity;
    (2) Provided through the friendship of the American people as food 
for peace; and
    (3) Not to be sold or exchanged (where applicable).

Emblems or other identification of nongovernmental cooperating sponsors 
also may be added.

[[Page 867]]

    (d) Where commodity containers are not used. When the usual practice 
in a country is not to enclose the end product in a container, wrapper, 
sack, etc., the cooperating sponsor shall, to the extent practicable, 
display banners, posters, or other media, and imprint on individual 
recipient identification cards information similar to that prescribed in 
paragraph (c) of this section.



Sec.  211.7  Arrangements for entry and handling in foreign country.

    (a) Costs at discharge ports. Except as otherwise agreed upon by 
AID/W and provided in the applicable shipping contract or in paragraph 
(d) and (e) of this section, the cooperating sponsor shall be 
responsible for all costs, other than those assessed by the delivering 
carrier either in accordance with its applicable tariff for delivery to 
the discharge port or the applicable charter or booking contract. The 
cooperating sponsor shall be responsible for all costs related to
    (1) Distributing the commodity to end users, as provided in the 
approved Operational Plan or TA;
    (2) Demurrage, detention, and overtime;
    (3) Obtaining independent discharge survey reports as provided in 
Sec.  211.9 under which the cooperating sponsor will be reimbursed for 
the costs of obtaining independent survey reports as provided in Sec.  
211.9(c)(1)(iv); and
    (4) Wharfage, taxes, dues, and port charges assessed and collected 
by local authorities from the consignee, lighterage (when not a custom 
of the port), and lightening costs when assessed as a charge separate 
from the freight rate.
    (b) Duty, taxes, and consular invoices. Except for commodities which 
are to be monetized (sold) under an approved Operational Plan or TA, 
commodities shall be admitted duty free and exempt from all taxes. 
Consular or legalization invoices shall not be required unless specific 
provision is made in the Operational Plan or TA. If required, they shall 
be issued without cost to the cooperating sponsor or to the Government 
of the United States. The cooperating sponsor shall be responsible for 
ensuring prompt entry and transit in the foreign country(ies) and for 
obtaining all necessary import permits, licenses or other appropriate 
approvals for entry and transit, including phytosanitary, health and 
inspection certificates.
    (c) Storage facilities and transportation in foreign countries. The 
cooperating sponsors shall provide assurance to USAID or the Diplomatic 
Post that all necessary arrangements for receiving the commodities have 
been made, and shall assume full responsibility for storage and 
maintenance of the commodities from time of delivery at port of entry 
abroad or, when authorized, at other designated points of entry abroad 
agreed upon between the cooperating sponsor and A.I.D. Before 
recommending approval of a program to AID/W, USAID or the Diplomatic 
Post shall obtain, from the cooperating sponsor, assurance that 
provision has been made for internal transportation, and for storage and 
handling which are adequate by local commercial standards. The 
cooperating sponsor shall be responsible for the maintenance of the 
commodities in such manner as to assure distribution of the commodities 
in good condition to recipient agencies or eligible recipients.
    (d) Inland transportation in intermediate countries. In the case of 
landlocked countries, transportation in the intermediate country to a 
designated inland point of entry in the recipient country shall be 
arranged by the cooperating sponsor unless otherwise provided in the 
Operational Plan or TA. Nongovernmental cooperating sponsors shall 
handle claims arising from loss or damage in the intermediate country, 
in accordance with Sec.  211.9(e). Governmental cooperating sponsors 
shall assign any rights that they may have to any claims that arise in 
the intermediate country to USAID or the Diplomatic Post which shall 
pursue and retain the proceeds of such claims.
    (e) Authorization for reimbursement of costs. If, because of 
packaging damage, a cooperating sponsor determines that commodities must 
be repackaged to ensure that the commodities arrive at the distribution 
point in a wholesome condition, the cooperating sponsor may incur 
expenses for such repackaging up to $500 and such costs will be 
reimbursed by CCC. If costs will exceed $500, the authority to repackage 
and incur

[[Page 868]]

the costs must be approved by USAID or the Diplomatic Post in advance of 
repackaging unless such prior approval is specifically waived, in 
writing, by USAID or the Diplomatic Post. For losses in transit, the 
$500 limitation shall apply to all commodities which are shipped on the 
same voyage of the same vessel to the same port of destination, 
irrespective of the kinds of commodities shipped or the number of 
different bills of lading issued by the carrier. For other losses, the 
$500 limitation shall apply to each loss situation, e.g., if 700 bags 
are damaged in a warehouse due to an earthquake, the $500 limitation 
applies to the total cost of repackaging the 700 bags. Shipments may not 
be artificially divided in order to avoid the limitation of $500 or for 
obtaining prior approval to incur repackaging costs.
    (f) Method of reimbursement. (1) Costs of repackaging required 
because of damage occurring prior to or during discharge from the ocean 
carrier should be included, as a separate item, in claims filed against 
the ocean carrier. (See Sec.  211.9(c).) Full reimbursement of such 
costs up to $500 will be made by CCC upon receipt of invoices or other 
documents to support such costs. For amounts expended in excess of $500, 
reimbursement will be made upon receipt of supporting invoices or other 
documents establishing the costs of repackaging and showing the prior 
approval of USAID or the Diplomatic Post to incur the costs, unless 
approval is waived under Sec.  211.7(e).
    (2) Costs of repackaging required because of damage caused after 
discharge of the cargo from the ocean carrier will be reimbursed to the 
cooperating sponsor by CCC (USDA-ASCS Fiscal Division, 14th & 
Independence Avenue, Washington, DC 20250) upon receipt of supporting 
invoices or other documentation.



Sec.  211.8  Disposition of commodities unfit for authorized use.

    (a) Prior to delivery to cooperating sponsor at discharge port or 
point of entry. If the commodity is damaged prior to delivery to a 
governmental cooperating sponsor at discharge port or point of entry 
overseas, USAID or the Diplomatic Post shall immediately arrange for 
inspection by a public health official or other competent authority. A 
nongovernmental cooperating sponsor shall arrange for such an inspection 
under these circumstances. Commodity that is determined to be unfit for 
authorized use shall be disposed of in accordance with the priority set 
forth in paragraph (b). Expenses incidental to the handling and 
disposition of the damaged commodity shall be paid by USAID or the 
Diplomatic Post from the sales proceeds, from CCC Account No. 20FT401 or 
from the special title II, Public Law 480 Agricultural Commodity 
Account. The net proceeds of sales shall be deposited with the U.S. 
Disbursing Officer American Embassy, for the credit of CCC Account No. 
20FT401.
    (b) After delivery to cooperating sponsor. (1) If after arrival in a 
foreign country it appears that all or part of the commodities, may be 
unfit for the use authorized in the Operational Plan or TA, the 
cooperating sponsor shall immediately arrange for inspection of the 
commodity by a public health official or other competent authority 
approved by USAID or the Diplomatic Post. If no competent local 
authority is available, USAID or the Diplomatic Post may determine 
whether the commodities are unfit, and if so, may direct disposal in 
accordance with paragraphs (b) (1) through (4) of this section. The 
cooperating sponsor shall arrange for the recovery for authorized use of 
that part designated during the inspection as suitable for program use. 
If, after inspection, the commodity (or any part thereof) is determined 
to be unfit for authorized use the cooperating sponsor shall notify 
USAID or the Diplomatic Post of the circumstances pertaining to the loss 
or damage as prescribed in Sec.  211.9(f).
    (2) A cooperating sponsor shall dispose of commodities determined to 
be unfit for authorized use in the order of priority described in 
paragraphs (b)(2) (i) through (iv) of this section. The concurrence of 
USAID or the Diplomatic Post should be requested for disposition of 
commodities valued at $500 or more. If the USAID or Diplomatic Post does 
not respond to the cooperating sponsor's request for concurrence within 
15 days, the cooperating sponsor

[[Page 869]]

may dispose of the commodities in the manner described in its request 
and inform the USAID or Diplomatic Post of its action taken in 
accordance with this section.
    (i) Sale for the most appropriate use, i.e., animal feed, 
fertilizer, or industrial use, at the highest obtainable price. When the 
commodity is sold, all U.S. Government markings shall be obliterated, 
removed or crossed out.
    (ii) Transfer to an approved Food for Peace program for use as 
livestock feed. AID/W shall be advised promptly of any such transfer so 
that shipments from the United States to the livestock feeding program 
can be reduced by an equivalent amount.
    (iii) Donation to a governmental or charitable organization for use 
as animal feed or for other nonfood use.
    (iv) If the commodity is unfit for any use or if disposal in 
accordance with paragraphs (b)(2) (i), (ii) or (iii) of this section is 
not possible, the commodity shall be destroyed in such manner as to 
prevent its use for any purpose. Commodities valued at $500 or more 
shall be destroyed under the observation of a representative of the 
USAID or Diplomatic Post if practicable. When the cooperating sponsor 
informs the USAID or Diplomatic Post of its intention to destroy 
commodities, the cooperating sponsor shall indicate the kind and amount 
of commodities that will be destroyed, the manner of destruction, the 
representative(s) of local authorities who will witness the destruction, 
and the date when the commodities will be destroyed. The date shall be 
established on the basis of programmatic need, but an effort should be 
made to provide a reasonable opportunity for a representative of the 
USAID or Diplomatic Post to attend. The commodities may be destroyed on 
the date indicated even if there is no representative of the USAID or 
Diplomatic Post to observe this action.
    (3) Expenses incidental to the handling and disposition of the 
damaged commodity shall be paid by the cooperating sponsor unless it is 
determined by USAID or the Diplomatic Post that the damage could not 
have been prevented by the proper exercise of the cooperating sponsor's 
responsibility under the terms of the Operational Plan or TA. Actual 
expenses incurred, including third party costs, in selling the 
commodities may be deducted from the sales proceeds and, except for 
monetization programs, the net proceeds shall be deposited with the U.S. 
Disbursing Officer, American Embassy, with instructions to credit the 
deposit to CCC Account No. 20FT401. In monetization programs, net 
proceeds shall be deposited in the special account used for the approved 
program.
    (4) The cooperating sponsor shall furnish USAID or the Diplomatic 
Post a written report in accordance with Sec.  211.9(f), and the report 
shall enclose a certification by a public health official or other 
competent authority of
    (i) The exact quantity of the damaged commodity disposed of because 
it was determined to be unfit for any use and
    (ii) The manner in which the commodities were destroyed.



Sec.  211.9  Liability for loss damage or improper distribution of commodities.

    (Where the instructions in this Sec.  211.9 state that the 
cooperating sponsor should contact USDA or CCC, the contact office is: 
Kansas City ASCS Commodity Office (KCCO), P.O. Box 419205, Kansas City, 
Missouri 64141-6205. For Section 211.9 (a) and (b) contact: KCCO, Chief, 
Processed Commodities Division. For Sec.  211.9(c) contact: KCCO, Chief, 
Claims and Collections Division, Kansas City, Missouri 64141-6105.)
    (a) Fault of cooperating sponsor prior to loading on ocean vessel. A 
cooperating sponsor and A.I.D. shall agree on a schedule for shipping 
commodities. A nongovernmental cooperating sponsor that books cargo for 
ocean transportation must notify USDA immediately if the vessel does not 
arrive at the U.S. port of export in accordance with the agreed shipping 
schedule. USDA will determine whether the commodity shall be
    (1) Moved to another available outlet;
    (2) Stored at the port for delivery to the nongovernmental 
cooperating sponsor when a vessel is available for loading; or
    (3) Disposed of as USDA may deem proper.

[[Page 870]]


When CCC incurs additional expenses because the nongovernmental 
cooperating sponsor, or its agent, fails to meet the agreed shipping 
schedule or to make necessary arrangements to accept commodities at the 
points of delivery designated by CCC, and CCC determines that the 
expenses were incurred because of the fault or negligence of the 
nongovernmental cooperating sponsor, the cooperating sponsor shall 
reimburse CCC for such expenses or take such action as directed by CCC.
    (b) Fault of others prior to loading on ocean vessel. A 
nongovernmental cooperating sponsor shall immediately notify CCC if 
there is a loss of or damage to commodities, between the time title is 
transferred to the cooperating sponsor and the time the commodities are 
loaded on board the vessel, that is caused by the act or omission of a 
third party, such as a warehouseman or carrier, who is or may be legally 
liable for the loss or damage. The cooperating sponsor also shall 
promptly assign to CCC any claim it has against the third party and 
forward to CCC all documents relating to the loss or damage and the 
claim. CCC shall have the right to initiate, prosecute, and retain the 
proceeds all claims for such loss or damage.
    (c) Ocean carrier loss and damage--(1) Survey and outturn reports. 
(i) Nongovernmental cooperating sponsors shall arrange for an 
independent cargo surveyor to attend the discharge of the cargo and to 
count or weigh the cargo and examine its condition, unless USAID or the 
Diplomatic Post determines that such examination is not feasible, or if 
CCC has made other provision for such examinations and reports. The 
surveyor shall prepare a report of its findings showing the quantity and 
condition of the commodities discharged. The report also shall show the 
probable cause of any damage noted, and set forth the time and place 
when the examination was made. If practicable, the examination of the 
cargo shall be conducted jointly by the surveyor, the consignee, and the 
ocean carrier, and the survey report shall be signed by all parties. 
Customs receipts, port authority reports, shortlanding certificates, 
cargo boat notes, stevedore's tallies, etc., where applicable, shall be 
obtained and furnished with the report of the surveyor. Whenever a 
damaged commodity appears unfit for its intended use, the cooperating 
sponsor shall obtain
    (A) A certification by a public health official or similar competent 
authority regarding the condition of the commodity; and
    (B) A certificate of disposition if the commodity is determined to 
be unfit for its intended use. These certificates shall be obtained as 
soon as possible after discharge of the cargo. If the cooperating 
sponsor can provide a narrative chronology or other commentary to assist 
in the adjudication of ocean transportation claims, this information 
should be forwarded as follows: cooperating sponsors shall prepare such 
a statement in any case where the loss is estimated to be in excess of 
$5,000; all documentation shall be in English or supported by an English 
translation and shall be forwarded as set forth in paragraphs (c)(1) 
(iii) and (iv) of this section; and the cost of an English translation 
shall be incorporated into the survey fee. The cooperating sponsor may, 
at its option, also engage the independent surveyor to supervise 
clearance and delivery of the cargo from customs or port areas to the 
cooperating sponsor or its agent and to issue delivery survey reports 
thereon.
    (ii) In the event of cargo loss or damage, a nongovernmental 
cooperating sponsor shall provide the names and addresses of individuals 
who were present at the time of discharge and during survey and who can 
verify the quantity lost or damaged. In the case of bulk grain 
shipments, the cooperating sponsor shall obtain the services of an 
independent surveyor to:
    (A) Observe discharge of the cargo;
    (B) Report on discharging method (including whether a scale was 
used, its type and calibration and other factors affecting its accuracy, 
or an explanation of why a scale was not used and how weight was 
determined);
    (C) Furnish information as to whether cargo was discharged in 
accordance with port customs;
    (D) Provide actual or estimated (if scales not used) quantity of 
cargo lost

[[Page 871]]

during discharge and specify how such losses occurred;
    (E) Obtain copies of port and/or ship records including scale 
weights, where applicable, to show quantity discharged;
    (F) Verify that upon conclusion of discharge, cargo holds are empty;
    (G) Provide to USDA information as to quantity, type and cause of 
lost or damaged cargo;
    (H) Furnish daily tally totals and any other pertinent information 
about the bagging of the bulk cargo when cargo is bagged or stacked by 
vessel interests; and
    (I) Notify the cooperating sponsor immediately if additional 
services are necessary to protect cargo interests or if the surveyor has 
reason to believe that the correct quantity was not discharged.

The cooperating sponsor, in the case of damage to bulk grain shipments, 
shall obtain and provide the same documentation regarding quality of 
cargo as set forth in Sec.  211.8(a) and paragraph (c)(1)(i) of this 
section. In the case of shipments arriving in container vans, 
cooperating sponsors shall require the independent surveyor to list the 
container van numbers and seal numbers shown on the container vans, and 
indicate whether the seals were intact at the time the container vans 
were opened, and whether the container vans were in any way damaged. To 
the extent possible, the independent surveyor should observe discharge 
of container vans from the vessel to ascertain whether any damage to the 
container van occurred and arrange for surveying the contents of any 
damaged container vans as they are opened.
    (iii) Cooperating sponsors shall send to USDA copies of all reports 
and documents pertaining to the discharge of commodities. For those 
surveys arranged by CCC, the cooperating sponsors may obtain a copy of 
the report from the local USAID Food for Peace Officer.
    (iv) CCC will reimburse a nongovernmental cooperating sponsor for 
the costs incurred by it in obtaining the services of an independent 
surveyor to conduct examinations of the cargo and render the report set 
forth above. Reimbursement by CCC will be made upon receipt by CCC of 
the survey report and the surveyor's invoice or other documents that 
establish the survey cost. However, CCC will not reimburse a 
nongovernmental cooperating sponsor for the costs of only a delivery 
survey, in the absence of a discharge survey, or for any other survey 
not taken contemporaneously with the discharge of the vessel, unless 
such deviation from the documentation requirements of paragraph (c)(1) 
of this section is justified to the satisfaction of CCC.
    (v) CCC normally will contract for the survey of cargo on shipments 
furnished under Transfer Authorizations, including shipments for which 
A.I.D. contracts for the ocean transportation services. Survey contracts 
normally will be let on a competitive bid basis. However, if a USAID or 
Diplomatic Post desires that CCC limit its consideration to only certain 
selected surveyors, USAID or the Diplomatic Post shall furnish AID/W a 
list of eligible surveyors for forwarding to CCC. Surveyors may be 
omitted from the list, for instance, based on foreign relations 
considerations, conflicts of interest, and/or lack of demonstrated 
capability to carry out surveying responsibilities properly as set forth 
in the requirements of CCC. Upon receipt of written justification for 
removal of a particular survey firm, CCC will consider removal of such 
firm and advise the USAID via AID/W of the final determination. AID/W 
will furnish CCC's surveying requirements to a USAID or Diplomatic Post 
upon request. If CCC is unable to find a surveyor at a port to which a 
shipment has been consigned, CCC may request AID/W to contact USAID or 
the Diplomatic Post to arrange for a survey. The surveyor's bill for 
such services shall be submitted to USAID or the Diplomatic Post for 
review. After the billing has been approved, USAID or the Diplomatic 
Post either may pay the bill using funds in CCC account 20FT401, if 
available, or forward the bill to AID/W for transmittal to CCC for 
payment. If USAID or the Diplomatic Post pays the bill, AID/W shall be 
advised of the amount paid, and CCC will reimburse USAID or the 
Diplomatic Post.
    (2) Claims against ocean carriers. (i) Whether or not title to 
commodities

[[Page 872]]

has transferred from CCC to the cooperating sponsor, if A.I.D. 
contracted for the ocean transportation, CCC shall have the right to 
initiate, prosecute, and retain the proceeds of all claims against ocean 
carriers for cargo loss and/or damage arising out of shipments of 
commodities transferred or delivered by CCC hereunder.
    (ii)(A) Unless otherwise provided in the Operational Plan or TA, 
nongovernmental cooperating sponsors shall file notice of any cargo loss 
and/or damage with the ocean carrier immediately upon discovery of any 
such loss and/or damage, promptly initiate claims against the ocean 
carrier for cargo loss and/or damage, take all necessary action to 
obtain restitution for losses within any applicable periods of 
limitations, and transmit to CCC copies of all such claims. However, the 
nongovernmental cooperating sponsor need not file a claim when the cargo 
loss and/or damage is not in excess of $100, or in any case when the 
loss and/or damage is between $100 and $300 and it is determined by the 
nongovernmental cooperating sponsor that the cost of filing and 
collecting the claim will exceed the amount of the claim. The 
nongovernmental cooperating sponsor shall transmit to CCC copies of all 
claims filed with the ocean carriers for cargo loss and/or damage, as 
well as information and/or documentation on shipments when no claim is 
to be filed. When General Average has been declared, no action will be 
taken by the nongovernmental cooperating sponsor to file or collect 
claims for loss or damage to commodities. (See paragraph (c)(2)(iii) of 
this section.)
    (B) The value of commodities misused, lost or damaged shall be 
determined on the basis of the domestic market price at the time and 
place the misuse, loss or damage occurred, or, in case it is not 
feasible to obtain or determine such market price, the f.o.b. or f.a.s. 
commercial export price of the commodity at the time and place of 
export, plus ocean freight charges and other costs incurred by the U.S. 
Government in making delivery to the cooperating sponsor. When value is 
determined on a cost basis, nongovernmental cooperating sponsors may add 
to the value any provable costs they have incurred prior to delivery by 
the ocean carrier. In preparing the claim statement, these costs shall 
be clearly segregated from costs incurred by the U.S. Government. With 
respect to claims other than ocean carrier loss or damage claims, at the 
request of the cooperating sponsor or upon the recommendation of USAID 
or the Diplomatic Post, AID/W may determine that such value may be 
established on some other justifiable basis. When replacement is made, 
the value of commodities misused, lost or damaged shall be their value 
at the time and place the misuse, loss, or damage occurred and the value 
of the replacement commodities shall be their value at the time and 
place replacement is made.
    (C) Amounts collected by nongovernmental cooperating sponsors on 
claims against ocean carriers not in excess of $200 may be retained by 
the nongovernmental cooperating sponsor. On claims involving loss and/or 
damage having a value in excess of $200, nongovernmental cooperating 
sponsors may retain from collections received by them, the larger of:
    (1) The amount of $200 plus 10 percent of the difference between 
$200 and the total amount collected on the claim, up to a maximum of 
$500, or
    (2) Actual administrative expenses incurred in collection of the 
claim if approved by CCC.

Collection costs shall not be deemed to include attorneys fees, fees of 
collection agencies, and the like. In no event will collection costs in 
excess of the amount collected on the claim be paid by CCC. The 
nongovernmental cooperating sponsors may also retain from claim 
recoveries remaining after allowable deductions for administrative 
expenses of collection, the amount of any special charges, such as 
handling, packing, and insurance costs, which the nongovernmental 
cooperating sponsor has incurred on the lost and/or damaged commodity 
and which are included in the claims and paid by the liable party.
    (D) A nongovernmental cooperating sponsor may redetermine claims on 
the basis of additional documentation or information, not considered 
when the claims were originally filed when such documentation or 
information clearly

[[Page 873]]

changes the ocean carrier's liability. Approval of such changes by CCC 
is not required regardless of amount. However, copies of redetermined 
claims and supporting documentation or information shall be furnished to 
CCC.
    (E) A nongovernmental cooperating sponsor may negotiate compromise 
settlements of claims regardless of the amount thereof, except that 
proposed compromise settlements of claims having a value in excess of 
$5,000 shall not be accepted until such action has been approved in 
writing by CCC. When a claim is compromised, the nongovernmental 
cooperating sponsor may retain from the amount collected, the amounts 
authorized in paragraph (c)(2)(ii)(C) and in addition, an amount 
representing such percentage of the special charges described in 
paragraph (c)(2)(ii)(C) as the compromised amount is to the full amount 
of the claim. When a claim is not in excess of $600, the nongovernmental 
cooperating sponsor may terminate collection activity on the claim 
according to the standards set forth in the Federal Claims Collection 
Standards, 4 CFR 104.3. Approval of such termination by CCC is not 
required, but the nongovernmental cooperating sponsor shall notify CCC 
when collection activity on a claim is terminated.
    (F) All amounts collected in excess of the amounts authorized herein 
to be retained shall be remitted to CCC. For the purpose of determining 
the amount to be retained by the nongovernmental cooperating sponsor 
from the proceeds of claims filed against ocean carriers, the word 
``claim'' shall refer to the loss and/or damage to commodities which are 
shipped on the same voyage of the same vessel to the same port 
destination, irrespective of the kinds of commodities shipped or the 
number of different bills of lading issued by the carrier. If a 
nongovernmental cooperating sponsor is unable to collect a claim or 
negotiate an acceptable compromise settlement within the applicable 
period of limitation or any extension thereof granted in writing by the 
liable party or parties, the rights of the nongovernmental cooperating 
sponsor to the claim shall be assigned to CCC in sufficient time to 
permit the filing of legal action prior to the expiration of the period 
of limitation or any extension thereof. Nongovernmental cooperating 
sponsors shall promptly assign their claim rights to CCC upon request. 
In the event CCC collects or settles the claim after the rights of the 
nongovernmental cooperating sponsor to the claim have been assigned CCC, 
CCC shall, except as shown below, pay to the nongovernmental cooperating 
sponsor the amount the agency or organization would have been entitled 
to retain had they collected the same amount. However, the additional 10 
percent on amounts collected in excess of $200 will be payable only if 
CCC determines that reasonable efforts were made to collect the claim 
prior to the assignment, or if payment is deemed to be commensurate with 
the extra efforts exerted in further documenting claims. In addition, if 
CCC determines that the documentation requirements of paragraph (c)(1) 
have not been fulfilled and the lack of such documentation has not been 
justified to the satisfaction of CCC, CCC reserves the right to deny 
payment of all allowances to the nongovernmental cooperating sponsor.
    (G) When nongovernmental cooperating sponsors fail to file claims, 
or permit claims to become time-barred, or fail to provide for the right 
of CCC to assert such claims, as provided in this Sec.  211.9, and it is 
determined by CCC that such failure was due to the fault or negligence 
of the nongovernmental cooperating sponsor, the agency or organization 
shall be liable to the United States for the cost and freight (C&F) 
value of the commodities lost to the program.
    (iii) If a cargo loss has been incurred on a nongovernmental 
cooperating sponsor shipment, and general average has been declared, the 
nongovernmental cooperating sponsor shall furnish to CCC with a 
duplicate copy to AID/W--
    (A) Copies of booking confirmations and the applicable on-board 
bill(s) of lading,
    (B) The related outturn or survey report(s),
    (C) Evidence showing the amount of ocean transportation charges paid 
to the carrier(s), and

[[Page 874]]

    (D) An assignment to CCC of the cooperating sponsor's right to the 
claim(s) for such loss.

CCC assumes responsibility for general average and marine salvage.
    (iv) A.I.D. will initiate and prosecute claims against ocean 
carriers and defend claims by such carriers, arising from or relating to 
affreightment contracts booked by A.I.D. where the claims involve 
entitlement to freight and related costs from the U.S. Government. 
Proceeds of such claims received by A.I.D. shall be returned to CCC 
pursuant to agreed procedures.
    (d) Fault of cooperating sponsor in country of distribution. If a 
commodity, monetized proceeds or program income is used for a purpose 
not permitted under the Operational Plan or TA or this Regulation, or if 
a cooperating sponsor causes loss or damage to a commodity, monetized 
proceeds or program income through any act or omission or failure to 
provide proper storage, care and handling, the cooperating sponsor shall 
pay to the United States the value of the commodities, monetized 
proceeds or program income, lost, damaged, or misused, unless A.I.D. 
determines that such improper distribution or use, or such loss or 
damage, could not have been prevented by proper exercise of the 
cooperating sponsor's responsibility under the Operational Plan or TA 
and this Regulation. In determining whether there was a proper exercise 
of the cooperating sponsor's responsibility, A.I.D. shall consider 
normal commercial practices in the country of distribution and the 
problems associated with carrying out programs in developing countries. 
Payment by the cooperating sponsor shall be made in accordance with 
paragraph (g) of this section, except that the USAID or Diplomatic Post 
may agree to permit a cooperating sponsor to replace commodities lost, 
damaged, or misused with similar commodities of equal value.
    (e) Fault of others in country of distribution and in intermediate 
country. (1) In addition to survey and/or outturn reports to determine 
ocean carrier loss and damage, the cooperating sponsor shall, in the 
case of landlocked countries, arrange for an independent survey at the 
point of entry into the recipient country and to make a report as set 
forth in paragraph (c)(1) of this section. CCC will reimburse the 
cooperating sponsor for the costs of a survey as set forth in paragraph 
(c)(1)(iv).
    (2) If a cooperating sponsor acquires any right against a person or 
governmental or nongovernmental organization based on an event for which 
the person or organization is responsible that resulted in the damage, 
loss or misuse of any commodity, monetized proceeds or program income, 
the cooperating sponsor shall file a claim against the liable party or 
parties for the value of the commodities, monetized proceeds or program 
income lost damaged or misused and shall make every reasonable effort to 
collect the claim. A copy of the claim and related documents shall be 
provided to USAID or the Diplomatic Post. Cooperating sponsors who fail 
to file or pursue such claims shall be liable to A.I.D. for the value of 
the commodities or monetized proceeds or program income lost, damaged, 
or misused: Provided, however, that the cooperating sponsor may elect 
not to file a claim if the loss is less than $500 and such action is not 
detrimental to the program. Cooperating sponsors may retain $150 of any 
amount collected on an individual claim. In addition, cooperating 
sponsors may, with the written approval of USAID or the Diplomatic Post, 
retain either special costs such as reasonable legal fees that they have 
incurred in the collection of a claim, or pay such legal fees with 
monetized proceeds or program income. Any proposed settlement for less 
than the full amount of the claim must be approved by USAID or the 
Diplomatic Post prior to acceptance. When the cooperating sponsor has 
exhausted all reasonable attempts to collect a claim, it shall request 
USAID or the Diplomatic Post to provide further instructions in 
accordance with paragraph (e)(4).
    (3) Calculation of the amount of a claim against others. A claim is 
the right a cooperating sponsor has against a third party as a result of 
an event for which the third party is responsible that caused the loss, 
damage or misuse of commodities, monetized proceeds or program income. 
The amount of the

[[Page 875]]

claim is based on the value of the commodities, monetized proceeds or 
program income lost, damaged or misused as a result of the event. An 
individual claim may not be broken down artificially to enlarge the 
amount the cooperating sponsor may retain as an administrative allowance 
on collection of the claim. For example, if a cooperating sponsor has a 
contract with a carrier to transport commodities, and losses occur 
during a single shipment of commodities from points A to B, the 
cooperating sponsor has one claim against the carrier, and the amount of 
the claim will be based on the total value of the commodities lost 
during the shipment from A to B even though some of the loss might have 
occurred on each of several trucks or by subcontractors used by the 
carrier to satisfy its contract responsibility to transport the 
commodities.
    (4) Reasonable attempts to collect the claim shall not be less than 
the follow-up of initial billings with three progressively stronger 
demands at not more than 30-day intervals. If these efforts fail to 
elicit a satisfactory response, legal action in the judicial system of 
the cooperating country should be pursued unless:
    (i) Liability of the third party is not provable,
    (ii) The cost of pursuing the claim would exceed the amount of the 
claim,
    (iii) The third party would not have enough assets to satisfy the 
claim after a judicial decision favorable to the cooperating sponsor,
    (iv) Maintaining legal action in the country's judicial system would 
seriously impair the cooperating sponsor's ability to conduct an 
effective program in the country, or
    (v) It is inappropriate for reasons relating to the judiciary or 
judicial system of the country.

A cooperating sponsor's decision not to take legal action, and reasons 
therefore, must be submitted in writing to USAID or the Diplomatic Post 
for review and approval, and USAID or the Diplomatic Post may require 
the cooperating sponsor to obtain and submit the opinion of competent 
legal counsel to support its decision. A cooperating sponsor also may 
request approval to terminate legal action after it has commenced if it 
is apparent that any of the exceptions described above becomes 
applicable or if it is otherwise appropriate to terminate legal action 
prior to judgment. In each instance, USAID or the Diplomatic Post must 
provide the cooperating sponsor a written explanation of its decision 
within 45 days from the date the request is received or inform the 
cooperating sponsor in writing regarding the reason(s) the USAID or 
Diplomatic Post needs more time to make a decision. If USAID or the 
Diplomatic Post approves a cooperating sponsor's decision not to take 
further action on the claim for reasons described in paragraphs 
(e)(4)(iv) or (v) of this section, the cooperating sponsor shall assign 
the claim to A.I.D. and shall provide to A.I.D. all documentation 
relating to the claim. When USAID or the Diplomatic Post takes an 
assignment of a claim or claims from a cooperating sponsor, the USAID or 
Diplomatic Post shall consult AID/W regarding the appropriate action to 
take on the assigned claim(s), unless standing guidance is in effect.
    (5) As an alternative to legal action in the judicial system of the 
country with regard to claims against a public entity of the government 
of the cooperating country, the cooperating sponsor and the cooperating 
country may agree to settle disputed claims by an appropriate 
administrative procedure and/or arbitration. This alternative may be 
established in the Host Country Food for Peace Program Agreement 
required under Sec.  211.3(b), or by a separate formal understanding, 
and must be submitted to USAID or the Diplomatic Post for review and 
approval. Resolution of disputed claims by any administrative procedure 
or arbitration agreed to by the cooperating sponsor and the cooperating 
country should be final and binding on the parties.
    (f) Reporting losses to USAID or the Diplomatic Post. (1) The 
cooperating sponsor shall provide the USAID or Diplomatic Post a 
quarterly report regarding any loss, damage or misuse of commodities, 
monetized proceeds or program income. The report must be provided within 
30 days after the close of the calendar quarter and shall contain the 
following information except

[[Page 876]]

for commodity losses less than $500: who had possession of the 
commodities, monetized proceeds or program income; who, if anyone, might 
be responsible for the loss, damage or misuse; the kind and quantity of 
commodities; the size and type of containers; the time and place of 
loss, damage or misuse; the current location of the commodities; the 
program number; CCC contract number, if known, and if not known, other 
identifying numbers printed on the commodity containers; the action 
taken by the cooperating sponsor with respect to recovery or disposal; 
and the estimated value of the loss, damage or misuse. If any of this 
information is not available, the cooperating sponsor shall explain why 
it is not. The report simply may identify separately commodity losses 
valued at less than $500 and indicate the estimated value of the 
commodities lost damaged or misused and the action taken by the 
cooperating sponsor with respect to recovery or disposal, except that 
the cooperating sponsor shall inform the USAID or Diplomatic Post if it 
has reason to believe there is a pattern or trend in the loss, damage or 
misuse of such commodities and provide the information described above 
for losses of $500 or more together with such other information 
available to it. USAID or the Diplomatic Post may require additional 
information about any commodities lost, damaged or misused. Information 
in the quarterly report may be provided in tabular form to the extent 
possible, and the report shall enclose a copy of any claim made by the 
cooperating sponsor during the reporting period.
    (2) If any commodity, monetized proceeds or program income is lost 
or misused under circumstances which give a cooperating sponsor reason 
to believe that the loss or misuse has occurred as a result of criminal 
activity, the cooperating sponsor shall promptly report these 
circumstances to the A.I.D. Inspector General through AID/W, USAID or 
the Diplomatic Post, and subsequently to the appropriate authorities of 
the cooperating country unless instructed not to do so by A.I.D. The 
cooperating sponsor also shall cooperate fully with any subsequent 
investigation by the Inspector General and/or authorities of the 
cooperating country.
    (g) Handling claims proceeds. Claims against ocean carriers shall be 
collected in U.S. dollars (or in the currency in which freight is paid, 
or a pro rata share of each) and shall be remitted (less amounts 
authorized to be retained) by nongovernmental cooperating sponsors to 
CCC. With respect to commodities, claims against nongovernmental 
cooperating sponsors shall be paid to CCC or AID/W in U.S. dollars; 
amounts paid by other cooperating sponsors and third parties in the 
country of distribution shall be deposited with the U.S. Disbursing 
Officer, American Embassy, preferably in U.S. dollars with instructions 
to credit the deposit to CCC Account No. 12X4336, or in local currency 
with instructions to credit the deposit to Treasury sales account 
20FT401. Any conversion required for these deposits shall be at the 
highest rate of exchange legally obtainable on the date of deposit 
unless A.I.D. agrees otherwise in writing. With respect to monetized 
proceeds and program income, amounts recovered should be deposited into 
the special interest-bearing account established for the monetized 
proceeds and may be used for purposes of the approved program.
    (h) General average. CCC shall--
    (1) Be responsible for settling general average and marine salvage 
claims;
    (2) Retain the authority to make or authorize any disposition of 
commodities which have not commenced ocean transit or of which the ocean 
transit is interrupted, and receive and retain any monetary proceeds 
resulting from such disposition;
    (3) In the event of a declaration of general average, initiate, 
prosecute, and retain all proceeds of cargo loss and damage claims 
against ocean carriers; and
    (4) Receive and retain any allowance in general average. CCC will 
pay any general average or marine salvage claims determined to be due.



Sec.  211.10  Records and reporting requirements.

    (a) Records. Cooperating sponsors and recipient agencies shall 
maintain records and documents in a manner

[[Page 877]]

which accurately reflects the operation of the program and all 
transactions pertaining to the receipt, storage, distribution, sale, 
inspection and use of commodities and to receipt and disbursement of any 
monetized proceeds and program income. Such records shall be retained 
for a period of 3 years from the close of the U.S. fiscal year to which 
they pertain, or longer, upon request by A.I.D. for cause, such as in 
the case of litigation of a claim or an audit concerning such records. 
The cooperating sponsor shall transfer to A.I.D. any records, or copies 
thereof, requested by A.I.D.
    (b) Reports. Cooperating sponsors shall submit two copies of audits 
performed in accordance to Sec.  211.5(c). In addition, cooperating 
sponsors shall submit to USAID or the Diplomatic Post, and to AID/W such 
reports as A.I.D. may reasonably request. The following is a list of the 
principal types of reports that are to be submitted at least annually:
    (1) Periodic summary reports showing receipt, distribution, and 
inventory of commodities and proposed schedules of shipments or calls 
forward.
    (2) Reports relating to the generation of monetized proceeds and 
program income and the use of such funds for purposes specified in the 
Operational Plan or TA. See Sec.  211.5(l).
    (3) Reports relating to progress and problems in the implementation 
of the program.
    (4) Reports shall be submitted in sufficient detail to enable USAID 
or the Diplomatic Post to assess and to make recommendations as to the 
ability of the cooperating sponsors to effectively plan, manage, control 
and evaluate the Food for Peace programs under their administration.
    (5) At the time that an emergency program under Public Law 480, 
title II is initiated, whether by a governmental or nongovernmental 
cooperating sponsor, USAID or the Diplomatic Post should
    (i) Make a determination regarding the ability of the cooperating 
sponsor to perform the record-keeping required by this Sec.  211.10, and
    (ii) In those instances in which those specific record-keeping 
requirements cannot be followed, due to emergency circumstances, specify 
exactly which essential information will be recorded in order to account 
fully for title II commodities and monetized proceeds.
    (c) Inspection and audit. Cooperating sponsors and recipient 
agencies shall cooperate with and assist U.S. Government representatives 
to enable them at any reasonable time to:
    (1) Examine activities and records of the cooperating sponsor, 
recipient agencies, processors, or others, pertaining to the receipt, 
storage, distribution, processing, repackaging, sale and use of 
commodities by recipients;
    (2) Inspect commodities in storage, or the facilities used in the 
handling or storage of commodities;
    (3) Examine and audit books and records, including financial books 
and records and reports pertaining to storage, transportation, 
processing, repackaging, distribution, sale and use of commodities and 
pertaining to the deposit and use of any monetized proceeds and program 
income;
    (4) Review the overall effectiveness of the program as it relates to 
the objectives set forth in the Operational Plan or TA; and
    (5) Examine or audit the procedure and methods used in carrying out 
the requirements of this Regulation.

Inspections and audits of title II emergency programs will take into 
account the circumstances under which such programs are carried out.



Sec.  211.11  Suspension, termination, and expiration of program.

    (a) Termination or suspension by A.I.D. All or any part of the 
assistance provided under the program, including commodities in transit, 
may be terminated or suspended by A.I.D. at its discretion if AID/W 
determines that a cooperating sponsor has failed to comply with the 
provisions of the approved Operational Plan or TA, or of this 
Regulation, or that the continuation of such assistance is no longer 
necessary or desirable. If AID/W believes that circumstances permit, 
AID/W will provide a nongovernmental cooperating sponsor written notice 
of A.I.D.'s intention to terminate or suspend the cooperating sponsor's 
program, together with an explanation of the reason(s) for A.I.D.'s 
action, at least 30 days prior to

[[Page 878]]

the date indicated in the notice that the program will be terminated or 
suspended. Comments provided by the nongovernmental cooperating sponsor 
prior to the effective date of the termination or suspension shall be 
considered by AID/W in determining whether to rescind the notice. When a 
program is terminated or suspended, title to commodities which have been 
transferred to the cooperating sponsor, or monetized proceeds, program 
income and real or personal property procured with monetized proceeds or 
program income shall, at the written request of USAID, the Diplomatic 
Post or AID/W, be transferred to the U.S. Government by the cooperating 
sponsor or shall otherwise be transferred by the cooperating sponsor as 
directed by A.I.D. Any then excess commodities on hand at the time the 
program is terminated shall be disposed of in accordance with Sec.  
211.5 (o) and (p) or as otherwise instructed by USAID or the Diplomatic 
Post. If it is determined that any commodity authorized to be supplied 
under the Operational Plan or TA is no longer available for Food for 
Peace programs, such authorization shall terminate with respect to any 
commodities which, as of the date of such determination have not been 
delivered f.o.b. or f.a.s. vessel, provided that every effort will be 
made to give adequate advance notice to protect cooperating sponsors 
against unnecessarily booking vessels.
    (b) Expiration of program. Upon expiration of the approved program 
under circumstances other than those described in paragraph (a), the 
cooperating sponsor shall deposit with the U.S. Disbursing Officer, 
American Embassy, with instructions to credit the deposit to CCC Account 
No. 20FT401, any remaining monetized proceeds or program income, or the 
cooperating sponsor shall obtain approval from AID/W for the use of such 
monetized proceeds or program income, or real or personal property 
procured with such proceeds or income, for purposes consistent with 
those authorized for support from A.I.D.



Sec.  211.12  Waiver and amendment authority.

    The Assistant Administrator for Food and Humanitarian Assistance, 
A.I.D., may waive, withdraw, or amend, at any time, any or all of the 
provisions of this Regulation 11 if such provision is not statutory and 
it is determined to be in the best interest of the U.S. Government to do 
so. Any cooperating sponsor which has failed to comply with the 
provisions of this Regulation or any instructions or procedures issued 
in connection herewith, or any agreements entered into pursuant hereto 
may at the discretion of A.I.D. be suspended or disqualified from 
further participation in any distribution program. Reinstatement may be 
made at the option of A.I.D. Disqualification shall not prevent A.I.D. 
from taking other action through other available means when considered 
necessary.



Sec.  211.13  Participation by religious organizations.

    The funds provided under this part shall be administered in 
compliance with the standards set forth in part 205, Participation by 
Religious Organizations in USAID Programs, of this chapter.

[69 FR 61724, Oct. 20, 2004]



              Sec. Appendix I to Part 211--Operational Plan

     A. General Outline of Operational Plans for Title II Activities

    In addition to any other requirement of law or regulation, the 
Operational Plan will include information outlined below to the extent 
it is applicable to the specific activity.
    1. Program Goals.
    Describe program goals and criteria for measuring progress toward 
reaching the goals. Each program should be designed to achieve 
measurable objectives within a specified period of time.
    2. Program Description.
    a. Describe the characteristics, extent and severity of problems 
that the program will address.
    b. Provide a clear concise statement of specific objectives for each 
program and of criteria for measuring progress towards reaching the 
objectives. If there are several objectives, indicate priorities.
    c. Describe the target population by program, including economic/
nutrition-related

[[Page 879]]

characteristics, sufficiently to permit a determination of recipient 
eligibility for title II commodities. Describe the educational and 
employment characteristics of the target group, if relevant to program 
objectives; the rationale for selection of the target group, the 
rationale for the selection of the geographical areas where programs 
will be carried out; the calculation of coverage and the percent of 
total target population reached.
    d. Describe the intervention including:
    (1) Ration composition. A description of rations, rationale for size 
and composition, assessment of effectiveness (dilution, sharing, 
acceptance).
    (2) Complementary program components and inputs. Identify existing 
or potential complementary program components, i.e., education, growth 
monitoring, training, etc., that are necessary to achieve program 
impact, including determination of financial costs and sources of 
funding.
    (3) Monetization. Describe to whom the commodities will be sold; the 
sales price (which shall not be less than the value of the food 
commodities f.a.s. or f.o.b.); arrangements for deposit of the 
monetization proceeds in a special (segregated), interest bearing 
account, pending use of the proceeds plus interest for the program; and 
the capability of the cooperating sponsor and recipient agencies to use 
and account for monetized proceeds properly as well as technical 
assistance the cooperating sponsor intends to obtain or provide if 
necessary in order to ensure that there are adequate financial and other 
management systems for the program proposed.
    (4) Intervention strategy. Describe how the commodities, 
monetization proceeds, program income and other program components will 
address the problems. Indicate the recipient agencies to which 
commodities, monetized proceeds or program income will be transferred, 
and identify those recipient agencies which will not be required to 
execute Recipient Agency Agreements, and provide a brief explanation of 
the reasons.
    (5) Linkages with other development activities, such as health or 
agricultural extension services. Describe specific areas of 
collaboration relative to program purposes.
    (6) Monitoring and evaluation. Include a description of the 
evaluation plan, including information to be collected for purposes of 
assessing program operations and impact. Describe the monitoring system 
for collection, analysis and utilization of information. Include a 
schedule for carrying out the evaluation as well as a plan for 
conducting audits (Regulation 11, section 211.5(c)).
    (7) Program period. The Operational Plan should cover enough time 
for a program to become fully operational and to permit evaluation of 
its effectiveness, including specific measurement of progress in 
achieving the stated program goals. Normally this will be a multi-year 
time frame, such as three to five years. Plans for and considerations 
involved in phasing-out U.S.G. support, and any phasing-over to non-
U.S.G. support, should be discussed.
    3. Program funding. Provide details of host government, cooperating 
sponsor and other non-USG support for the proposed program, with 
specific budgetary information on how these funds are to be used (e.g. 
complementary inputs, transport, administration). Where relevant, 
discussion of arrangements which will be made covering voluntary 
contributions.
    4. Publicity. Describe how the requirements for public recognition, 
container marking, and use of funds set forth in Regulation 11, 
Sec. Sec.  211.5i(h), (i) and (k) and in 211.6 (a) and (b), will be met.
    5. Logistics. Provide a logistics plan that demonstrates the 
adequacy and availability in recipient country of port facilities, 
transportation and storage facilities to handle the flow of commodities 
to recipients to prevent spoilage or waste. A further affirmation must 
be made at the time of exportation of the commodity from the United 
States.
    6. Disincentives. Furnish sufficient information concerning the plan 
of distribution and the target group of recipients so that a 
determination can be made as to whether the proposed food distribution 
would result in substantial disincentive to domestic food production. It 
is not necessary to provide a disincentive analysis if A.I.D. or USDA 
has completed such an analysis for another program that is relevant to 
the program proposed by the cooperating sponsor.
    7. Accountability. Describe the method to be used to supervise, 
monitor, and account for the distribution or sale of commodities and the 
use of monetized proceeds and program income.
    8. Import duty. Provide information to show approval of foreign 
government to import the donated commodities duty free.
    9. Voluntary agency regular programs. An Operational Plan is 
required for all regular, i.e., non-emergency, title II nongovernmental 
cooperating sponsor programs as part of their program submission, along 
with the Annual Estimate of Requirements (AER), to USAID or the 
Diplomatic Post and AID/W. When new multi-year Operational Plans are 
required, they should be prepared and submitted in advance of the year 
in which they are to begin, in order to permit adequate time for 
substantive review and approval. In any event, nongovernmental 
cooperating sponsor Operational Plans should be submitted to AID/W no 
later than the Mission Action Plan covering the following fiscal year's 
program. Once an Operational Plan has been approved, only an updating 
will be required on an annual basis, unless there has been a significant 
change from the approved

[[Page 880]]

plan's program directives, methodology, design or magnitudes. Updates 
should be submitted each year for review with the AERs.

               B. Operational Plans for Emergency Programs

    The response to emergency situations using title II resources does 
not usually permit the same degree of detail and certainty of analysis 
that is expected in planning title II non-emergency programs. However, 
Operational Plans are required for all nongovernmental cooperating 
sponsors' emergency programs, along with the AER. An Operational Plan 
for an emergency program must cover the same basic elements, set forth 
above, as for a nonemergency program. Thus, all of the above basic 
issues set forth in the Operational Plan format must be addressed when 
proposing title II emergency programs as well as regular nonemergency 
programs.

                C. USAID/Diplomatic Post Responsibilities

    A USAID or Diplomatic Post is expected to comment on the substance 
and adequacy of a nongovernmental cooperating sponsor's Operational Plan 
when submitted to AID/W along with a program request, and to address the 
plan's relationship to and consistency with the Mission's Country 
Development Strategy Statement.

                 D. Required Approval for Program Change

    Cooperating sponsors agree not to deviate from the program as 
described in the Operational Plan and other program documents approved 
by A.I.D., without the prior written approval of A.I.D.

                E. Emergency Assistance Program Requests

    Any cooperating sponsor (governmental or nongovernmental) may 
initiate an emergency assistance proposal under Public Law 480, title 
II. Requests are received by a USAID or Diplomatic Post and reviewed and 
approved before forwarding to AID/W with appropriate recommendations.
    a. Nongovernmental emergency program requests can be cabled by USAID 
or the Diplomatic Post for AID/W review based on information provided 
and using procedures established for regular programs as described in 
Regulation 11, Sec.  211.5(a): AER and Operational Plan.
    b. A foreign government or international organization (other than 
World Food Program) emergency request normally requires more Mission 
involvement in program design and management. However, as in the case of 
nongovernmental programs, the approval will be based on a cabled program 
summary based on the program plan outlined in (2) above. On approval, 
AID/W will prepare a Transfer Authorization (TA) to be signed by the 
recipient government specifying terms of the program and reporting 
requirements. Additional guidance in preparing government-to-government 
or international organizations emergency requests is in chapter 9 and 
Exhibit A of A.I.D. Handbook 9. The TA serves as (1) the Food for Peace 
Agreement between the U.S. Government and the cooperating sponsor, (2) 
the project authorization document, and (3) the authority for the CCC to 
ship commodities. (Under Pub. L. 480, section 207(a), not later than 15 
days after receipt of a call forward from a field mission for 
commodities, the order shall be transmitted to the CCC.)

    F. Local Currency Programs (Public Law 480, Title II Section 203)

    Detailed guidance for preparing, approving, implementing and 
administering these programs is provided in chapters 6, 7, and 11 of 
A.I.D. Handbook 9.

         G. Problems Conducting Programs In Developing Countries

    Describe the problems that can be anticipated in implementing the 
program in the recipient country as a result of its being a developing 
country.

                               H. Waivers

    A cooperating sponsor should provide a justification for the waiver 
of any specific section or sections of Regulation 11 that it believes 
necessary for the program.



PART 212_PUBLIC INFORMATION--Table of Contents



                      Subpart A_General Provisions

Sec.
212.1 Purpose and scope.
212.2 Policy.
212.3 Records available on the Agency's Web site.

            Subpart B_Proactive Disclosures of Agency Records

212.4 Materials available for public inspection and in electronic 
          format.

               Subpart C_Requirements for Making Requests

212.5 How to make a request for records.

           Subpart D_Responsibility for Responding to Requests

212.6 Designation of authorized officials.
212.7 Processing of request.

                Subpart E_Timing of Responses to Requests

212.8 Time limits.

[[Page 881]]

                     Subpart F_Responses to Requests

212.9 Responsibility for responding to requests.

              Subpart G_Confidential Commercial Information

212.10 Policy and procedure.

                    Subpart H_Administrative Appeals

212.11 Appeal procedures.
212.12 Mediation and dispute services.

                    Subpart I_Preservation of Records

212.13 Policy and procedures.

                             Subpart J_Fees

212.14 Fees to be charged--general.
212.15 Fees to be charged--requester categories.

                       Subpart K_FOIA Definitions

212.16 Glossary.

                   Subpart L_Other Rights and Services

212.17 Rights and services qualified by the FOIA statute.

                    Subpart M_Privacy Act Provisions

212.18 Purpose and scope.
212.19 Privacy definitions.
212.20 Request for access to records.
212.21 Request to amend or correct records.
212.22 Appeals from denials of PA amendment requests.
212.23 Request for accounting of record disclosures.
212.24 Specific exemptions.

                          Subpart N_Rulemaking

212.25 Responsibilities.

               Subpart O_Procedures for Guidance Documents

212.26 General.
212.27 Review and clearance by the Office of the Bureau for Management.
212.28 Requirements for clearance.
212.29 Public access to effective guidance documents.
212.30 Good-faith cost estimates.
212.31 Approved procedures for guidance documents identified as 
          ``significant'' or ``otherwise of importance to the Agency's 
          interests.''
212.32 Definitions of ``significant guidance document'' and guidance 
          documents that are ``otherwise of importance to the Agency's 
          interests.''
212.33 Designation procedures.
212.34 Notice-and-comment procedures.
212.35 Petitions for guidance.
212.36 Rescinded guidance.
212.37 Exigent circumstances.
212.38 Reports to Congress and the Government Accountability Office.
212.39 No judicial review or enforceable rights.
212.40 Use of guidance documents.

    Authority: Pub. L. 114-185, 130 Stat. 538.

    Source: 81 FR 93807, Dec. 22, 2016, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  212.1  Purpose and scope.

    This subpart contains the rules that the United States Agency of 
International Development (hereinafter ``USAID'' or ``the Agency'') 
follows in processing requests for records under the Freedom of 
Information Act (``FOIA''), 5 U.S.C. 552. The rules in this subpart 
should be read in conjunction with the text of the FOIA. Requests made 
by individuals for records about themselves under the Privacy Act of 
1974, are processed under Subpart O. Definitions of FOIA terms are 
referenced in Subpart L.



Sec.  212.2  Policy.

    (a) As a general policy, USAID follows a balanced approach in 
administering the FOIA. USAID recognizes the right of the public to 
access information in the possession of the Agency. USAID also 
recognizes the legitimate interests of organizations or persons who have 
submitted records to the Agency or who would otherwise be affected by 
release of records. USAID has no discretion to release certain records, 
such as trade secrets and confidential commercial information, 
prohibited from release by law. USAID's policy calls for the fullest 
responsible disclosure consistent with those requirements of 
administrative necessity and confidentiality which are recognized under 
the FOIA.
    (b) Definitions. For purposes of subparts A through K, M, and O of 
this part, record means information regardless of its physical form or 
characteristics including information created, stored, and retrievable 
by electronic means that is created or obtained by the Agency and under 
the control of

[[Page 882]]

the Agency at the time of the request, including information maintained 
for the Agency by an entity under Government contract for records 
management purposes. It does not include records that are not already in 
existence and that would have to be created specifically to respond to a 
request. Information available in electronic form shall be searched and 
compiled in response to a request unless such search and compilation 
would significantly interfere with the operation of the Agency's 
automated information systems.



Sec.  212.3  Records available on the Agency's Web site.

    Information that is required to be published in the Federal Register 
under 5 U.S.C. 552(a)(1) is regularly updated by the Agency and found on 
its public Web site: www.usaid.gov/foia-requests. Records that are 
required by the FOIA to be made available for public inspection in an 
electronic format under 5 U.S.C. 552(a)(2) also are available on the 
Agency's public Web site.



            Subpart B_Proactive Disclosures of Agency Records



Sec.  212.4  Materials available for public inspection 
and in electronic format.

    (a) In accordance with this subpart, the Agency shall make the 
following materials available for public inspection in an electronic 
format:
    (1) Operational policy in USAID's Automated Directives System (ADS) 
which have been adopted by the Agency and are not published in the 
Federal Register;
    (2) Administrative staff manuals and instructions to staff that 
affect any member of the public; and
    (3) Copies of all records, regardless of form or format, which have 
been released pursuant to a FOIA request, and which have been requested 
three (3) or more times, or because of the nature of their subject 
matter, have become or are likely to become the subject of subsequent 
requests for substantially the same records. The Agency shall decide on 
a case by case basis whether records fall into this category, based on 
the following factors:
    (i) Previous experience with similar records;
    (ii) The particular characteristics of the records involved, 
including their nature and the type of information contained in them; 
and
    (iii) The identity and number of requesters and whether there is 
widespread media, historical, academic, or commercial interest in the 
records.



               Subpart C_Requirements for Making Requests



Sec.  212.5  How to make a request for records.

    (a) General information. USAID has a centralized system for 
responding to FOIA requests. The Bureau for Management, Office of 
Management Services, Information and Records Division (M/MS/IRD) is the 
central processing point for requests for USAID records contained in 
Washington, DC and its overseas missions. All FOIA requests must be 
submitted to this office. To make a request for the Agency's records, a 
requester may send request via one of the following mediums:
    (1) By Email: [email protected]. Please include your mailing address, 
email address and phone number with your request. While our FOIA 
Specialists are happy to answer questions about the FOIA Program and/or 
help you formulate your request over the phone, please be advised that 
FOIA requests cannot accept by phone.
    (2) Online Portal: To submit your request online, please click the 
subsequent link: https://foiarequest.usaid.gov/index.aspx.
    (3) By U.S. Postal Mail: United States Agency of International 
Development Bureau for Management, Office of Management Services, 
Information and Records Division, 1300 Pennsylvania Avenue NW., 
Washington, DC 20523-2701, Room 2.7C RRB, (202) 712-0960.
    (4) By Fax: (202) 216-3070.
    (b) Third party requests. Where a request for records pertains to a 
third party, a requester may receive greater access by submitting either 
a notarized authorization signed by that individual or a declaration 
made in compliance with the requirements set forth in the FOIA by that 
individual authorizing disclosure of the records to the requester, or by 
submitting proof that the individual is deceased (e.g., a copy

[[Page 883]]

of a death certificate or an obituary). In addition, requesters may 
demonstrate an overriding public interest in disclosure of the 
information related to official misconduct by producing evidence that 
alleged Government impropriety occurred. As an exercise of 
administrative discretion, the agency can require a requester to supply 
additional information if necessary in order to verify that a particular 
individual has consented to disclosure.
    (c) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable the Agency's personnel to 
locate them with a reasonable amount of effort. To the extent possible, 
requesters should include specific information that may assist in 
identifying the requested records, such as the date, title or name, 
author, recipient, subject matter of the record, case number, file 
designation, or reference number. In general, requesters should include 
as much detail as possible about the specific records or the types of 
records that they are seeking. Before submitting their requests, 
requesters may contact the Agency's FOIA contact or FOIA Public Liaison 
to discuss the records they are seeking and to receive assistance in 
describing the records. If, after receiving a request and the Agency 
determines that it does not reasonably describe the records sought, the 
Agency shall inform the requester what additional information is needed 
or why the request is otherwise insufficient. Requesters who are 
attempting to reformulate or modify such a request may discuss their 
request with the Agency's designated FOIA Specialist or its FOIA Public 
Liaison, each of whom is available to assist the requester in reasonably 
describing the records sought. If a request does not reasonably describe 
the records sought, the Agency's response to the request may be delayed 
or denied.



           Subpart D_Responsibility for Responding to Requests



Sec.  212.6  Designation of authorized officials.

    (a) The Assistant Administrator for the Bureau for Management (M) 
serves as the USAID Chief FOIA Officer. The Chief FOIA Officer has 
overall responsibility for USAID compliance with the FOIA. The Chief 
FOIA Officer provides high level oversight and support to USAID's FOIA 
programs, and recommends adjustments to agency practices, personnel, and 
funding as may be necessary to improve FOIA administration, including 
through an annual Chief FOIA Officers Report submitted to the U.S. 
Department of Justice. The Chief FOIA Officer is responsible for 
offering training to agency staff regarding their FOIA responsibilities; 
serves as the primary liaison with the Office of Government Information 
Services and the Office of Information Policy; and reviews, not less 
frequently than annually, all aspects of the Agency's administration of 
the FOIA to ensure compliance with the FOIA's requirements.
    (b) The Bureau for Management, Office of Management Services, 
Information Records Division (M/MS/IRD) is the centralized FOIA office 
that receives, tracks, and processes all of USAID's FOIA requests to 
ensure transparency within the Agency.
    (c) The Director, Bureau for Management, Office of Management 
Services (M/MS/OD) serves as the USAID FOIA Appeals Officer. The FOIA 
Appeals Officer is responsible for receiving and acting upon appeals 
from requesters whose initial FOIA requests for USAID records have been 
denied, in whole or in part.
    (d) The Chief, Bureau for Management, Office of Management Services, 
Information and Records Division (M/MS/IRD) serves as USAID's FOIA 
Officer and FOIA Public Liaison. The FOIA Officer is responsible for 
program direction, original denials, and policy decisions required for 
effective implementation of USAID's FOIA program. The FOIA Public 
Liaison serves as a supervisory official to whom a FOIA requester can 
raise concerns about the services received, following an initial 
response from the FOIA staff. In addition, the FOIA Public Liaison 
assists, as appropriate, in reducing delays, increasing transparency and 
understanding of the status of requests, and resolving disputes.
    (e) The FOIA Team Leader is the Principal Operations Officer within

[[Page 884]]

USAID for the processing of FOIA requests and release determinations.
    (f) The FOIA Specialist also known as the Government Information 
Specialist (GIS) is responsible for processing requests and preparing 
records for release when such releases are authorized by the FOIA. They 
do not have the authority to make denials, including ``no records'' 
responses.
    (g) The General Counsel (GC), FOIA Backstop Attorney Advisor has 
responsibility for providing legal advice on all USAID matters regarding 
or resulting from the FOIA. Upon request, GC advises M/MS/IRD on release 
and denial decisions, and apprises the FOIA Office of all significant 
developments with respect to the FOIA.
    (h) Each Attorney Advisor designated to provide legal advice to 
USAID Bureaus/Independent Offices (B/IOs) is responsible for providing, 
at M/MS/IRD's request, legal advice on FOIA requests assigned to those 
B/IOs.
    (i) The designated FOIA Liaison Officer (FLO) in each USAID Bureau 
and Office is responsible for tasking and facilitating the collection of 
responsive records and monitoring the production of records to M/MS/IRD.



Sec.  212.7  Processing of request.

    (a) In general. In determining which records are responsive to a 
request, the Agency ordinarily will include only records in its 
possession as of the date that it begins its search. If any other date 
is used, the Agency shall inform the requester of that date.
    (b) Authority to grant or deny requests. The FOIA Officer is 
authorized to grant or to deny any requests for records that are 
maintained by the Agency.
    (c) Consultation, referral, and coordination. When reviewing records 
located by the Agency in response to a request, USAID shall determine 
whether another agency of the Federal Government is better able to 
determine whether the record is exempt from disclosure under the FOIA. 
All consultations and referrals received by the Agency will be handled 
according to the date that the first agency received the perfected FOIA 
request. As to any such record, USAID shall proceed in one of the 
following ways:
    (1) Consultation. When records originated with USAID, but contain 
within them information of substantial interest to another agency, or 
other Federal Government office, USAID should consult with that other 
agency prior to making a release determination.
    (2) Referral. (i) When USAID believes that a different agency, or 
other Federal Government office is best able to determine whether to 
disclose the record, USAID should refer the responsibility for 
responding to the request regarding that record, as long as the referral 
is to an agency that is subject to the FOIA. Ordinarily, the agency that 
originated the record will be presumed to be best able to make the 
disclosure determination. However, if USAID and the originating agency 
jointly agree that the former is in the best position to respond 
regarding the record, then the record may be handled as a consultation.
    (ii) Whenever USAID refers any part of the responsibility for 
responding to a request to another agency, it shall document the 
referral, maintain a copy of the record that it refers, and notify the 
requester of the referral and inform the requester of the name(s) of the 
agency to which the record was referred, including that agency's FOIA 
contact information.
    (3) Coordination. The standard referral procedure is not appropriate 
where disclosure of the identity of the agency to which the referral 
would be made could harm an interest protected by an applicable 
exemption, such as the exemptions that protect personal privacy or 
national security interests. In such instances, in order to avoid harm 
to an interest protected by an applicable exemption, USAID will 
coordinate with the originating agency to seek its views on the 
disclosability of the record. The release determination for the record 
that is the subject of the coordination will then be conveyed to the 
requester by USAID.
    (d) Classified information. On receipt of any request involving 
classified information, USAID must determine whether the information is 
currently and properly classified in accordance with applicable 
classification rules. Whenever a request involves a record containing 
information that has been

[[Page 885]]

classified or may be appropriate for classification by another agency 
under any applicable executive order concerning the classification of 
records, the USAID must refer the responsibility for responding to the 
request regarding that information to the agency that classified the 
information, or that should consider the information for classification. 
Whenever USAID's record contains information that has been derivatively 
classified (for example, when it contains information classified by 
another agency), USAID must refer the responsibility for responding to 
that portion of the request to the agency that classified the underlying 
information.
    (e) Furnishing records. USAID shall furnish copies only of records 
that the Agency has in its possession. The Agency is not compelled to 
create new records. The Agency is not required to perform research for a 
requester. The Agency is required to furnish only one copy of a record. 
If information exists in different forms, the Agency will provide the 
record in the form that best conserves government resources. Requests 
may specify the preferred form or format (including electronic formats) 
for the records sought by the requester. USAID will accommodate the form 
or format request if the record is readily reproducible in that form or 
format.
    (f) Archival records. The Agency ordinarily transfers records in 
accordance with its retirement authority, included in ADS 502, to the 
National Archives. These records become the physical and legal custody 
of the National Archives. Accordingly, requests for retired Agency 
records should be submitted to the National Archives by mail addressed 
to Special Access and FOIA Staff (NWCTF), 8601 Adelphi Road, Room 5500, 
College Park, MD 20740; by fax to (301) 837-1864; or by email to 
[email protected].
    (g) Poor copy. If USAID cannot make a legible copy of a record to be 
released, the Agency is not required to reconstruct it. Instead, the 
Agency will furnish the best copy possible and note its poor quality in 
the Agency's reply.



                Subpart E_Timing of Responses to Requests



Sec.  212.8  Time limits.

    (a) In general. The Agency ordinarily will respond to requests 
according to their order of receipt.
    (b) Multitrack processing. (1) USAID shall designate a specific 
track for requests that are granted expedited processing, in accordance 
with the standards set forth in paragraph (e) of this section. The 
Agency may designate additional processing tracks that distinguish 
between simple and more complex requests based on the estimated amount 
of work or time needed to process the request. Among the factors the 
Agency may consider are, the number of pages involved in processing the 
request and the need for consultations or referrals. The Agency shall 
advise requesters of the track into which their request falls and, when 
appropriate, shall offer the requesters an opportunity to narrow their 
request so that it can be placed in a different processing track.
    (2) The Agency shall generally process requests in each track on a 
``first-in, first-out'' basis.
    (c) Unusual circumstances. Whenever the statutory time limit for 
processing a request cannot be met because of ``unusual circumstances,'' 
as defined in the FOIA, and the Agency extends the time limit on that 
basis, the Agency shall, before expiration of the 20-day period to 
respond, notify the requester in writing of the unusual circumstances 
involved and of the date by which processing of the request can be 
expected to be completed. Where the extension exceeds 10 working days, 
the Agency shall, in the written notice, notify the requester of the 
right to contact the Agency's FOIA Public Liaison, or seek dispute 
resolution services from the Office of Government Information Services 
(OGIS). In addition, the Agency shall, as described by the FOIA, provide 
the requester with an opportunity to modify the request or arrange an 
alternative time period for processing.
    (d) Aggregating requests. For the purposes of satisfying unusual 
circumstances under the FOIA, the Agency may aggregate requests in cases

[[Page 886]]

where it reasonably appears that multiple requests, submitted either by 
a requester or by a group of requesters acting in concert, constitute a 
single request that would otherwise involve unusual circumstances. The 
Agency shall not aggregate multiple requests that involve unrelated 
matters.
    (e) Expedited processing. (1) Requests and appeals shall be 
processed on an expedited basis whenever it is determined that they 
involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person who is primarily 
engaged in disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the government's integrity that 
affect public confidence.
    (2) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (e)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that the requester is 
a person whose primary activity or occupation is information 
dissemination, though it need not be the requester's sole occupation. 
Such a requester also must establish a particular urgency to inform the 
public about the government activity involved in the request--one that 
extends beyond the public's right to know about government activity 
generally. The existence of numerous articles published on a given 
subject can be helpful in establishing the requirement that there be an 
``urgency to inform'' the public on the topic. As a matter of 
administrative discretion, the Agency may waive the formal certification 
requirement.
    (3) The Agency shall notify the requester within 10 calendar days of 
the receipt of a request for expedited processing of its decision 
whether to grant or deny expedited processing. If expedited processing 
is granted, the request shall be given priority, placed in the 
processing track for expedited requests, and shall be processed as soon 
as practicable. If a request for expedited processing is denied, any 
appeal of that decision shall be acted on expeditiously.



                     Subpart F_Responses to Requests



Sec.  212.9  Responsibility for responding to requests.

    (a) In general. USAID should, to the extent practicable, communicate 
with requesters having access to the Internet using electronic means, 
such as email or web portal.
    (b) Acknowledgments of requests. USAID shall acknowledge the request 
and assign it an individualized tracking number. The Agency shall 
include in the acknowledgment a brief description of the records sought 
to allow requesters to more easily keep track of their requests.
    (c) Grants of requests. Once the Agency makes a determination to 
grant a request in full or in part, it shall notify the requester in 
writing. The Agency also shall inform the requester of any fees charged 
and shall disclose the requested records to the requester promptly upon 
payment of any applicable fees.
    (d) Consultations and Referrals. Whenever USAID consults with 
another Federal Government office over the releasability of a record, 
the Agency shall notify the requester of the consultation and inform the 
requester of the name(s) of the agency or office with which the 
consultation is taking place. Whenever USAID refers any part of the 
responsibility for responding to a request to another Federal Government 
office, the Agency shall document the referral, maintain a copy of the 
record that it refers, notify the requester of the referral, and inform 
the requester of the name(s) of the agency to which the record was 
referred, including that agency's FOIA contact information.
    (e) Adverse determinations of requests. If the Agency has made an 
adverse determination denying a request in any

[[Page 887]]

respect, the Agency shall notify the requester of that determination in 
writing, and provide the contact information for the FOIA Public 
Liaison, as well as a description of the requester's right to seek 
mediation services from the Office of Government Information Services 
(OGIS). Adverse determinations, or denials of requests, include 
decisions that: The requested record is exempt, in whole or in part; the 
request does not reasonably describe the records sought; the information 
requested is not a record subject to the FOIA; the requested record does 
not exist, cannot be located, or has been destroyed; or the requested 
record is not readily reproducible in the form or format sought by the 
requester. A response will provide an estimate of the volume of any 
records or any information withheld. Adverse determinations also include 
denials involving fees or fee waiver matters or denials of requests for 
expedited processing.
    (f) Information furnished. All denials are in writing and describe 
in general terms the material withheld; state the reasons for the 
denial, including, as applicable, a reference to the specific exemption 
of the FOIA authorizing the withholding; explain your right to appeal 
the decision and identify the official to whom you should send the 
appeal; and are signed by the person who made the decision to deny all 
or part of the request. Records disclosed in part must be marked clearly 
to show the amount of information deleted and the exemption under which 
the deletion was made unless doing so would harm an interest protected 
by an applicable exemption. The location of the information deleted must 
also be indicated on the record, if technically feasible.
    (g) Conducting searches. USAID performs a diligent search for 
records to satisfy your request. Nevertheless, the Agency may not be 
able to find the records requested using the information provided, or 
the records may not exist.



              Subpart G_Confidential Commercial Information



Sec.  212.10  Policy and procedure.

    (a) Definitions. (1) Confidential commercial information means 
commercial or financial information obtained by the Agency from a 
submitter that may be protected from disclosure under Exemption 4 of the 
FOIA, 5 U.S.C. 552(b)(4).
    (2) Business submitter means any person or entity, including a 
corporation, State, or foreign government, but not including another 
Federal Government entity, that provides information, either directly or 
indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, either at the time of submission or 
within a reasonable time thereafter, any portion of its submission that 
it considers to be protected from disclosure under Exemption 4. These 
designations shall expire 10 years after the date of the submission 
unless the submitter requests and provides justification for a longer 
designation period.
    (c) When notice to business submitters is required. (1) The Agency 
shall promptly provide written notice to a business submitter of 
confidential commercial information whenever records containing such 
information are requested under the FOIA if, after reviewing the 
request, the responsive records, and any appeal by the requester, the 
Agency determines that it may be required to disclose the records, 
provided:
    (i) The requested information has been designated in good faith by 
the business submitter as information considered protected from 
disclosure under Exemption 4; or
    (ii) The Agency has a reason to believe that the requested 
information may be protected from disclosure under Exemption 4, but has 
not yet determined whether the information is protected from disclosure 
under that exemption or any other applicable exemption.
    (2) The notice shall either describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information. In cases involving a voluminous 
number of submitters, notice may be made by posting or publishing the 
notice in a place

[[Page 888]]

or manner reasonably likely to accomplish it.
    (d) Exceptions to business submitter notice requirements. The notice 
requirements of this section shall not apply if:
    (1) The Agency determines that the information is exempt under the 
FOIA;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the business submitter appears obviously 
frivolous, except that, in such a case, the Agency shall give the 
business submitter written notice of any final decision to disclose the 
information and must provide that notice within a reasonable number of 
days prior to a specified disclosure date.
    (e) Opportunity to object to disclosure. (1) The Agency shall 
specify a reasonable time period within which the business submitter 
must respond to the notice referenced above. If a business submitter has 
any objections to disclosure, the business submitter should:
    (i) Provide the Agency with a detailed written statement that 
specifies all grounds for withholding the particular information under 
any exemption of the FOIA. In order to rely on Exemption 4 as basis for 
nondisclosure, the business submitter must explain why the information 
constitutes a trade secret or commercial or financial information that 
is privileged or confidential.
    (ii) [Reserved]
    (2) A business submitter who fails to respond within the time period 
specified in the notice shall be considered to have no objection to 
disclosure of the information. Information received by the Agency after 
the date of any disclosure decision shall not be considered by the 
Agency. Any information provided by a business submitter under this 
subpart may itself be subject to disclosure under the FOIA.
    (f) Analysis of objections. The Agency shall consider a business 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose the requested information.
    (g) Notice of intent to disclose. Whenever the Agency decides to 
disclose information over the objection of a business submitter, the 
Agency shall provide the business submitter written notice, which shall 
include:
    (1) A statement of the reasons why each of the business submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial information, 
the Agency shall promptly notify the business submitter.
    (i) Requester notification. The Agency shall notify the requester 
whenever it provides the submitter with notice and an opportunity to 
object to disclosure; whenever it notifies the submitter of its intent 
to disclose the requested information; and whenever a submitter files a 
lawsuit to prevent the disclosure of the information.



                    Subpart H_Administrative Appeals



Sec.  212.11  Appeal procedures.

    USAID must inform the requester of the reasons for the denial and 
the requester's right to appeal the denial to the FOIA Appeals Officer 
whenever a FOIA request is denied.
    (a) What a requester can appeal. A requester may appeal the 
withholding of a document or denial of a fee waiver request. A requester 
may contest the type or amount of fees that were charged, or may appeal 
any other type of adverse determination under the FOIA. A requester may 
also appeal because USAID failed to conduct an adequate search for the 
documents requested. However, a requester may not file an administrative 
appeal for the lack of a timely response. A requester may 
administratively appeal any portion denied when their request is granted 
in part and denied in part.
    (b) Requirements for making an appeal. A requester may appeal any 
adverse determinations to USAID. The requester must make the appeal in 
writing. To be

[[Page 889]]

considered timely, the appeal must be postmarked, or in the case of 
electronic submissions, transmitted, within 90 calendar days after the 
date of the response. The appeal should clearly identify the Agency's 
determination that is being appealed and the assigned request number. To 
facilitate handling, the requester should mark both the appeal letter 
and envelope, or subject line of the electronic transmission, ``Freedom 
of Information Act Appeal.''
    (c) Adjudication of appeals. (1) The Director of the Bureau for 
Management Services or designee will conduct de novo review and make the 
final determination on the appeals.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (d) Decisions on appeals. A decision on an appeal must be made in 
writing. A decision that upholds the Agency's determination will contain 
a statement that identifies the reasons for the affirmance, including 
any FOIA exemptions applied. The decision will provide the requester 
with notification of the statutory right to file a lawsuit and will 
inform the requester of the mediation services offered by the Office of 
Government Information Services of the National Archives and Records 
Administration as a non-exclusive alternative to litigation. Mediation 
is a voluntary process. If USAID agrees to participate in the mediation 
services provided by OGIS, it will actively engage as a partner to the 
process in an attempt to resolve the dispute. If the Agency's decision 
is remanded or modified on appeal, the requester will be notified of 
that determination in writing. The Agency will thereafter further 
process the request in accordance with that appeal determination and 
respond directly to the requester.
    (e) When appeal is required. Before seeking review by a court of the 
Agency's adverse determination, a requester generally must first submit 
a timely administrative appeal.
    (f) Where to file an appeal. An appeal may be filed by sending a 
letter to: FOIA Appeals Officer, Bureau for Management Director, Office 
of Management Services, U.S. Agency for International Development Room 
2.12-010, RRB, Washington, DC 20523-4601. There is no charge for filing 
an administrative appeal.



Sec.  212.12  Mediation and dispute services.

    The Office of Government Information Services of the National 
Archives and Records Administration (OGIS) is a Freedom of Information 
Act (FOIA) resource for the public and the government. Congress has 
charged OGIS with reviewing FOIA policies, procedures and compliance of 
Federal agencies and to recommend changes to the FOIA. OGIS' mission 
also includes providing dispute resolution services between Federal 
agencies and requesters. OGIS works as a non-exclusive alternative to 
litigation.'' When USAID makes a determination on a request, the Agency 
shall offer the services of the FOIA Public Liaison, and will notify 
requesters of the mediation services provided by OGIS. Specifically, 
USAID will include in the Agency's notification to the requester;
    (a) The right of the requester to seek assistance from the FOIA 
Public Liaison of the Agency, and in the case of an adverse 
determination;
    (b) The right of the requester to seek dispute resolution services 
from the FOIA Public Liaison of the agency or the Office of Government 
Information Services.



                    Subpart I_Preservation of Records



Sec.  212.13  Policy and procedures.

    The Agency shall preserve all correspondence relating to the 
requests it receives under this subpart, and all records processed 
pursuant to such requests, until such time as the destruction of such 
correspondence and records is authorized pursuant to Title 44 of the 
United States Code, and appropriate records disposition authority 
granted by NARA. Under no circumstances shall records be sent to a 
Federal Records Center, transferred to the permanent custody of NARA, or 
destroyed while they are the subject of a pending request, appeal, or 
civil action under the FOIA.

[[Page 890]]



                             Subpart J_Fees



Sec.  212.14  Fees to be charged--general.

    (a) In general. USAID shall charge for processing requests under the 
FOIA in accordance with the provisions of this section and with the 
Office of Management and Budget (OMB) Guidelines. In order to resolve 
any fee issues that arise under this section, the Agency may contact a 
requester for additional information. The Agency shall ensure that 
search, review, and duplication are conducted in the most efficient and 
the least expensive manner. USAID ordinarily will collect all applicable 
fees before sending copies of records to a requester. Requesters must 
pay fees by check or money order made payable to the Treasury of the 
United States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request is a request that asks for information 
for a use or a purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation. The Agency's decision to place a requester in the commercial 
use category will be made on a case-by-case basis based on the 
requester's intended use of the information.
    (2) Direct costs are those expenses that the Agency incurs in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records in order to respond to a FOIA request. 
Direct costs do not include overhead expenses such as the costs of 
space, and of heating or lighting a facility.
    (3) Duplication is reproducing a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    (4) Educational institution is any school that operates a program of 
scholarly research. A requester in this fee category must show that the 
request is made in connection with his or her role at the educational 
institution. Agencies may seek verification from the requester that the 
request is in furtherance of scholarly research.
    (5) Fee waiver is a waiver or reduction of processing fees if a 
requester can demonstrate that certain statutory standards are 
satisfied, including that the information is in the public interest and 
is not requested for a commercial interest.
    (6) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (b)(1) 
of this section and that is operated solely for the purpose of 
conducting scientific research the results of which are not intended to 
promote any particular product or industry. A requester in this category 
must show that the request is authorized by and is made under the 
auspices of a qualifying institution and that the records are sought to 
further scientific research and are not for a commercial use.
    (7) Representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities include 
television or radio stations that broadcast ``news'' to the public at 
large and publishers of periodicals that disseminate ``news'' and make 
their products available through a variety of means to the general 
public, including news organizations that disseminate solely on the 
Internet. A request for records supporting the news-dissemination 
function of the requester shall not be considered to be for a commercial 
use. ``Freelance'' journalists who demonstrate a solid basis for 
expecting publication through a news media entity shall be considered as 
a representative of the news media. A publishing contract would provide 
the clearest evidence that publication is expected; however, components 
shall also consider a requester's past publication record in making this 
determination.
    (8) Requester category is one of the three categories that agencies 
place requesters in for the purpose of determining whether a requester 
will be charged fees for search, review, and duplication. The three 
categories are:

[[Page 891]]

Commercial requesters; non-commercial scientific or educational 
institutions or news media requesters; and all other requesters.
    (9) Review is the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time spent 
both obtaining and considering any formal objection to disclosure made 
by a confidential commercial information submitter, but it does not 
include time spent resolving general legal or policy issues regarding 
the application of exemptions.
    (10) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (c) Charging fees. In responding to FOIA requests, the Agency shall 
charge the following fees unless a waiver or reduction of fees has been 
granted under paragraph (k) of this section.
    (1) Search. Requests made by educational institutions, noncommercial 
scientific institutions, or representatives of the news media are not 
subject to search fees. Search fees shall be charged for all other 
requesters, subject to the restrictions of paragraph (d) of this 
section. The Agency may properly charge for time spent searching even if 
they do not locate any responsive records or if they determine that the 
records are entirely exempt from disclosure.
    (2) Duplication. Duplication fees shall be charged to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. The Agency shall honor a requester's preference for receiving a 
record in a particular form or format where it is readily reproducible 
by the agency in the form or format requested. Where photocopies are 
supplied, the Agency shall provide one copy per request at a cost of ten 
cents per page. For copies of records produced on tapes, disks, or other 
media, the direct costs of producing the copy, including operator time 
shall be charged. Where paper documents must be scanned in order to 
comply with a requester's preference to receive the records in an 
electronic format, the requester shall pay the direct costs associated 
with scanning those materials. For other forms of duplication, the 
Agency shall charge the direct costs.
    (3) Review. Review fees shall be charged to requesters who make 
commercial use requests. Review fees shall be assessed in connection 
with the initial review of the record, i.e., the review conducted by the 
agency to determine whether an exemption applies to a particular record 
or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if a particular exemption is deemed to no longer apply, 
any costs associated with the Agency re-review of the records in order 
to consider the use of other exemptions may be assessed as review fees.
    (d) Restrictions on charging fees. (1) No search fees will be 
charged for requests by educational institutions, noncommercial 
scientific institutions, or representatives of the news media, unless 
the records are sought for commercial use.
    (2) When the Agency determines that unusual circumstances apply to 
the processing of a request, and the Agency has provided timely written 
notice to the requester, the delay is excused for an additional 10 days. 
If the Agency fails to comply with the extended time limit, it may not 
charge search fees (or for requesters with preferred fee status, may not 
charge duplication fees) except as provided in paragraphs (d)(2)(i)-(ii) 
of this section.
    (i) Exception: If unusual circumstances apply and more than 5000 
pages are necessary to respond to the request, the Agency may charge 
search fees (or, for requesters in preferred fee status, may charge 
duplication fees) if timely written notice has been made to the 
requester and the Agency has discussed with the requester via written

[[Page 892]]

mail, electronic mail, or telephone (or made not less than 3 good-faith 
attempts to do so) how the requester could effectively limit the scope 
of the request.
    (ii) Court determination that exceptional circumstances exist: If a 
court determines that exceptional circumstances exist, the Agency's 
failure to comply with a time limit shall be excused for the length of 
time provided by the court order.
    (3) If the Agency fails to comply with the time limits in which to 
respond to a request, and if no unusual or exceptional circumstances, as 
those terms are defined by the FOIA, apply to the processing of the 
request, it may not charge search fees, or, in the instances of requests 
from requesters described in paragraph (d)(1) of this section, may not 
charge duplication fees.
    (4) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (5) Except for requesters seeking records for a commercial use, the 
Agency shall provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (6) When, after first deducting the 100 free pages (or its cost 
equivalent) and the first two hours of search, a total fee calculated 
under paragraph (c) of this section is $25.00 or less for any request, 
no fee will be charged.
    (e) Notice of anticipated fees in excess of $25.00. (1) When the 
Agency determines or estimates that the fees to be assessed in 
accordance with this section will exceed $25.00, the Agency shall notify 
the requester of the actual or estimated amount of the fees, including a 
breakdown of the fees for search, review or duplication, unless the 
requester has indicated a willingness to pay fees as high as those 
anticipated. If only a portion of the fee can be estimated readily, the 
agency shall advise the requester accordingly. If the requester is a 
noncommercial use requester, the notice shall specify that the requester 
is entitled to the statutory entitlements of 100 pages of duplication at 
no charge and, if the requester is charged search fees, two hours of 
search time at no charge, and shall advise the requester whether those 
entitlements have been provided.
    (2) In cases in which a requester has been notified that the actual 
or estimated fees are in excess of $25.00, the request shall not be 
considered received and further work will not be completed until the 
requester commits in writing to pay the actual or estimated total fee, 
or designates some amount of fees the requester is willing to pay, or in 
the case of a noncommercial use requester who has not yet been provided 
with the requester's statutory entitlements, designates that the 
requester seeks only that which can be provided by the statutory 
entitlements. The requester must provide the commitment or designation 
in writing, and must, when applicable, designate an exact dollar amount 
the requester is willing to pay. The Agency is not required to accept 
payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the Agency estimates that the total fee 
will exceed that amount, the Agency shall toll the processing of the 
request when it notifies the requester of the estimated fees in excess 
of the amount the requester has indicated a willingness to pay. The 
Agency shall inquire whether the requester wishes to revise the amount 
of fees the requester is willing to pay or modify the request. Once the 
requester responds, the time to respond will resume from where it was at 
the date of the notification.
    (4) The Agency shall make available their FOIA Public Liaison or 
other FOIA Specialists to assist any requester in reformulating a 
request to meet the requester's needs at a lower cost.
    (f) Charges for other services. Although not required to provide 
special services, if the Agency chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
shall be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same document, 
or sending records by means other than first class mail.

[[Page 893]]

    (g) Charging interest. The Agency may charge interest on any unpaid 
bill starting on the 31st day following the date of billing the 
requester. Interest charges shall be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the billing date until payment is 
received by the agency. The Agency shall follow the provisions of the 
Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, 
and its administrative procedures, including the use of consumer 
reporting agencies, collection agencies, and offset.
    (h) Aggregating requests. When the Agency reasonably believes that a 
requester or a group of requesters acting in concert is attempting to 
divide a single request into a series of requests for the purpose of 
avoiding fees, the Agency may aggregate those requests and charge 
accordingly. The Agency may presume that multiple requests of this type 
made within a 30-day period have been made in order to avoid fees. For 
requests separated by a longer period, the Agency will aggregate them 
only where there is a reasonable basis for determining that aggregation 
is warranted in view of all the circumstances involved. Multiple 
requests involving unrelated matters shall not be aggregated.
    (i) Advance payments. (1) For requests other than those described in 
paragraphs (i)(2) or (i)(3) of this section, the agency shall not 
require the requester to make an advance payment before work is 
commenced or continued on a request. Payment owed for work already 
completed (i.e., payment before copies are sent to a requester) is not 
an advance payment.
    (2) When the Agency determines or estimates that a total fee to be 
charged under this section will exceed $250.00, it may require that the 
requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. The Agency may 
elect to process the request prior to collecting fees when it receives a 
satisfactory assurance of full payment from a requester with a history 
of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to the agency within 30 calendar days of the billing 
date, the Agency may require that the requester pay the full amount due, 
plus any applicable interest on that prior request, and the Agency may 
require that the requester make an advance payment of the full amount of 
any anticipated fee before the Agency begins to process a new request or 
continues to process a pending request or any pending appeal. If the 
Agency has a reasonable basis to believe that a requester has 
misrepresented the requester's identity in order to avoid paying 
outstanding fees, it may require that the requester provide proof of 
identity.
    (4) In cases in which the Agency requires advance payment, the 
request shall not be considered received and further work will not be 
completed until the required payment is received. If the requester does 
not pay the advance payment within 30 calendar days after the date of 
the Agency's fee determination, the request will be closed.
    (j) Other statutes specifically providing for fees. The fee schedule 
of this section does not apply to fees charged under any statute that 
specifically requires an agency to set and collect fees for particular 
types of records. In instances where records responsive to a request are 
subject to a statutorily-based fee schedule program, the Agency shall 
inform the requester of the contact information for that program.
    (k) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request shall be furnished without charge or at a 
reduced rate below the rate established under paragraph (c) of this 
section, where the Agency determines, based on all available 
information, that the requester has demonstrated that:
    (i) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government, and
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) In deciding whether disclosure of the requested information is 
in the public interest because it is likely to contribute significantly 
to public understanding of operations or activities

[[Page 894]]

of the government, the Agency shall consider all four of the following 
factors:
    (i) The subject of the request must concern identifiable operations 
or activities of the Federal Government, with a connection that is 
direct and clear, not remote or attenuated.
    (ii) Disclosure of the requested records must be meaningfully 
informative about government operations or activities in order to be 
``likely to contribute'' to an increased public understanding of those 
operations or activities. The disclosure of information that already is 
in the public domain, in either the same or a substantially identical 
form, would not contribute to such understanding where nothing new would 
be added to the public's understanding.
    (iii) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public shall be 
considered. It shall be presumed that a representative of the news media 
will satisfy this consideration.
    (iv) The public's understanding of the subject in question must be 
enhanced by the disclosure to a significant extent. However, the Agency 
shall not make value judgments about whether the information at issue is 
``important'' enough to be made public.
    (3) To determine whether disclosure of the requested information is 
primarily in the commercial interest of the requester, the Agency shall 
consider the following factors:
    (i) The Agency shall identify any commercial interest of the 
requester, as defined in paragraph (b)(1) of this section, that would be 
furthered by the requested disclosure. Requesters shall be given an 
opportunity to provide explanatory information regarding this 
consideration.
    (ii) A waiver or reduction of fees is justified where the public 
interest is greater than any identified commercial interest in 
disclosure. The Agency ordinarily shall presume that where a news media 
requester has satisfied the public interest standard, the public 
interest will be the interest primarily served by disclosure to that 
requester. Disclosure to data brokers or others who merely compile and 
market government information for direct economic return shall not be 
presumed to primarily serve the public interest.
    (4) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (5) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the Agency and should address the 
criteria referenced above. A requester may submit a fee waiver request 
at a later time so long as the underlying record request is pending or 
on administrative appeal. When a requester who has committed to pay fees 
subsequently asks for a waiver of those fees and that waiver is denied, 
the requester shall be required to pay any costs incurred up to the date 
the fee waiver request was received. A requester may appeal the denial 
of a fee waiver.



Sec.  212.15  Fees to be charged--requester categories.

    (a) The following specific fees are charged for services rendered:
    (1) Commercial Use:
    Search: $40.00 per hour
    Search costs will be assessed even though no records may be found or 
even if, after review, there is no disclosure or records.
    Review: $55.00 per hour.
    Duplication: 10[cent] per page.
    (2) Educational & Non-Commercial Scientific Institutions.
    Search: No fee.
    Review: No fee.
    Duplication: 10[cent] per page after the first 100 pages.
    (3) Representatives of the News Media.
    Search: No fee.
    Review: No fee.
    Duplication: 10[cent] per page after the first 100 pages.
    (4) All Others.
    Search: Same as ``Commercial Users'' except the first two hours 
shall be furnished without charge.
    Review: No fee.

[[Page 895]]

    Duplication: 10[cent] per page after the first 100 pages.
    (b) If copies of records are provided in other than paper format 
(such as on microfiche, video tape, or as electronic data files), or 
other than first-class mail is requested or required, the requester is 
charged the actual cost of providing these additional services.



                       Subpart K_FOIA Definitions



Sec.  212.16  Glossary.

    As used in this part:
    Administrative FOIA Appeal is an independent review of the initial 
determination made in response to a FOIA request. Requesters who are 
dissatisfied with the response made on their initial request have a 
statutory right to appeal the initial determination made by the Agency.
    Agency is any executive agency, military agency, government 
corporation, government controlled corporation, or other establishment 
in the executive branch of the Federal Government, or any independent 
regulatory agency. Thus, USAID is an agency.
    Complex request is a request that typically seeks a high volume of 
material or requires additional steps to process such as the need to 
search for records in multiple locations.
    Consultation is when USAID locates a record that contains 
information of substantial interest to another agency, and USAID asks 
for the views of that other agency on the disclosablity of the records 
before any final determination is made.
    Discretionary disclosure is information that the Agency releases 
even though it could have been withheld under one of the FOIA's 
exemptions.
    Duplication is reproducing a copy of a record, or of the information 
contained in it, necessary to respond to a FOIA request. Copies can take 
the form of paper, audiovisual materials, or electronic records, among 
others.
    Electronic record is any information that is recorded in a form that 
only a computer can process and that satisfies the definition of a 
Federal record per the Federal Records Act. Federal electronic records 
are not necessarily kept in a ``recordkeeping system'' but may reside in 
a generic electronic information system or are produced by an 
application such as word processing or electronic mail.
    Exemptions are nine categories of information that are not required 
to be released in response to a FOIA request because release would be 
harmful to a government or private interest. These categories are called 
``exemptions'' from disclosures.
    Expedited processing is the FOIA response track granted in certain 
limited situations, specifically when a FOIA request is processed ahead 
of other pending requests.
    Freedom of Information Act or FOIA is a United States federal law 
that grants the public access to information possessed by government 
agencies. Upon written request, U.S. government agencies are required to 
release information unless it falls under one of nine exemptions listed 
in the Act.
    Frequently requested records are records that have been requested 
three (3) or more times from the Agency.
    Multi-track processing is a system that divides in-coming FOIA 
requests according to their complexity so that simple requests requiring 
relatively minimal review are placed in one processing track and more 
complex requests are placed in one or more other tracks. Requests 
granted expedited processing are placed in yet another track. Requests 
in each track are processed on a first in/first out basis.
    Office of Government Information Services (OGIS) offers mediation 
services to resolve disputes between FOIA requesters and agencies as an 
alternative to litigation. OGIS also reviews agency FOIA compliance, 
policies, and procedures and makes recommendations for improvement. The 
Office is a part of the National Archives and Records Administration, 
and was created by Congress as part of the OPEN Government Act of 2007, 
which amended the FOIA.
    Proactive disclosures are records made publicly available by 
agencies without waiting for a specific FOIA request. Agencies now post 
on their Web sites material concerning their functions and mission. The 
FOIA itself requires agencies to make available certain categories of 
information, including final opinions and orders, specific policy 
statements, certain administrative

[[Page 896]]

staff manuals and frequently requested records.
    Record means information regardless of its physical form or 
characteristics including information created, stored, and retrievable 
by electronic means that is created or obtained by the Agency and under 
the control of the Agency at the time of the request, including 
information maintained for the Agency by an entity under Government 
contract for records management purposes. It does not include records 
that are not already in existence and that would have to be created 
specifically to respond to a request. Information available in 
electronic form shall be searched and compiled in response to a request 
unless such search and compilation would significantly interfere with 
the operation of the Agency's automated information systems.
    Referral occurs when an agency locates a record that originated 
with, or is of otherwise primary interest to another agency. It will 
forward that record to the other agency to process the record and to 
provide the final determination directly to the requester.
    Simple request is a FOIA request that an agency anticipates will 
involve a small volume of material or which will be able to be processed 
relatively quickly.



                   Subpart L_Other Rights and Services



Sec.  212.17  Rights and services qualified by the FOIA statute.

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



                    Subpart M_Privacy Act Provisions



Sec.  212.18  Purpose and scope.

    This subpart contains the rules that the USAID follows under the 
Privacy Act of 1974 (PA), 5 U.S.C. 552a, as amended. These rules should 
be read together with the text of the statute, which provides additional 
information about records maintained on individuals. The rules in this 
subpart apply to all records in systems of records maintained by the 
agency that are retrieved by an individual's name or personal 
identifier. They describe the procedures by which individuals may 
request access to records about themselves, request amendment or 
correction of those records, and request an accounting of disclosures of 
those records by the agency. If any records retrieved pursuant to an 
access request under the PA are found to be exempt from access under 
that Act, they will be processed for possible disclosure under the FOIA, 
as amended. No fees shall be charged for access to or amendment of PA 
records.



Sec.  212.19  Privacy definitions.

    As used in this subpart, the following definitions shall apply:
    (a) Individual means a citizen or a legal permanent resident alien 
(LPR) of the United States.
    (b) Maintain includes maintain, collect, use, or disseminate.
    (c) Record means any item, collection, or grouping of information 
about an individual that is maintained by the agency and that contains 
the individual's name or the identifying number, symbol, or other 
identifying particular assigned to the individual, such as a finger or 
voice print or photograph.
    (d) System of records means a group of any records under the control 
of the agency from which information is retrieved by the name of an 
individual or by some identifying number, symbol, or other identifying 
particular assigned to an individual.



Sec.  212.20  Request for access to records.

    (a) In general. Requests for access to records under the PA must be 
made in writing and mailed to the Bureau for Management Services, 
Information and Records Division at the address given in Sec.  212.7.
    (b) Description of records sought. Requests for access should 
describe the requested record(s) in sufficient detail to permit 
identification of the record(s). At a minimum, requests should include 
the individual's full name (including maiden name, if appropriate) and 
any other names used, current complete mailing address, and date and 
place of birth (city, state and country). Helpful data includes the 
approximate time period of the record

[[Page 897]]

and the circumstances that give the individual reason to believe that 
the agency maintains a record under the individual's name or personal 
identifier, and, if known, the system of records in which the record is 
maintained. In certain instances, it may be necessary for the Agency to 
request additional information from the requester, either to ensure a 
full search, or to ensure that a record retrieved does in fact pertain 
to the individual.
    (c) Verification of personal identity. The Agency will require 
reasonable identification of individuals requesting records about 
themselves under the PA's access provisions to ensure that records are 
only accessed by the proper persons. Requesters must state their full 
name, current address, citizenship or legal permanent resident alien 
status, and date and place of birth (city, state, and country). The 
request must be signed, and the requester's signature must be either 
notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746. 
If the requester seeks records under another name the requester has 
used, a statement, under penalty of perjury, that the requester has also 
used the other name must be included.
    (d) Authorized third party access. The Agency shall process all 
properly authorized third party requests, as described in this section, 
under the PA. In the absence of proper authorization from the individual 
to whom the records pertain, the Agency will process third party 
requests under the FOIA. The Agency's form, AID 507-1, may be used to 
certify the identity and provide third party authorization.
    (1) Parents and guardians of minor children. Upon presentation of 
acceptable documentation of the parental or guardian relationship, a 
parent or guardian of a U.S. citizen or LPR minor (an unmarried person 
under the age of 18) may, on behalf of the minor, request records under 
the PA pertaining to the minor. In any case, U.S. citizen or LPR minors 
may request such records on their own behalf.
    (2) Guardians. A guardian of an individual who has been declared by 
a court to be incompetent may act for and on behalf of the incompetent 
individual upon presentation of appropriate documentation of the 
guardian relationship.
    (3) Authorized representatives or designees. When an individual 
wishes to authorize another person or persons access to his or her 
records, the individual may submit, in addition to the identity 
verification information described in paragraph (c) or paragraph (d) of 
this section. The designated third party must submit identity 
verification information described in paragraph (c).
    (e) Referrals and consultations. If the Agency determines that 
records retrieved as responsive to the request were created by another 
agency, it ordinarily will refer the records to the originating agency 
for direct response to the requester. If the agency determines that 
records retrieved as responsive to the request are of interest to 
another agency, it may consult with the other agency before responding 
to the request. The Agency may make agreements with other agencies to 
eliminate the need for consultations or referrals for particular types 
of records.
    (f) Records relating to civil actions. Nothing in this subpart 
entitles an individual to access to any information compiled in 
reasonable anticipation of a civil action or proceeding.
    (g) Time limits. The Agency will acknowledge the request promptly 
and furnish the requested information as soon as possible thereafter.



Sec.  212.21  Request to amend or correct records.

    (a) An individual has the right to request that the Agency amend a 
record pertaining to the individual that the individual believes is not 
accurate, relevant, timely, or complete.
    (b) Requests to amend records must be in writing and mailed or 
delivered to the Bureau for Management, Management Services, Information 
Records Division at the address given in Sec.  212.7, with ATTENTION: 
PRIVACY ACT AMENDMENT REQUEST written on the envelope. IRD will 
coordinate the review of the request with the appropriate offices of the 
Agency. The Agency will require verification of personal identity before 
it will initiate action to amend a record. Amendment requests

[[Page 898]]

should contain, at a minimum, identifying information needed to locate 
the record in question, a description of the specific correction 
requested, and an explanation of why the existing record is not 
accurate, relevant, timely, or complete. The request must be signed, and 
the requester's signature must be either notarized or made under penalty 
of perjury pursuant to 28 U.S.C. 1746. The requester should submit as 
much pertinent documentation, other information, and explanation as 
possible to support the request for amendment.
    (c) All requests for amendments to records shall be acknowledged 
within 10 working days.
    (d) In reviewing a record in response to a request to amend, the 
Agency shall review the record to determine if it is accurate, relevant, 
timely, and complete.
    (e) If the Agency agrees with an individual's request to amend a 
record, it shall:
    (1) Advise the individual in writing of its decision;
    (2) Amend the record accordingly; and
    (3) If an accounting of disclosure has been made, advise all 
previous recipients of the record of the amendment and its substance.
    (f) If the Agency denies an individual's request to amend a record, 
it shall advise the individual in writing of its decision and the reason 
for the refusal, and the procedures for the individual to request 
further review. See Sec.  171.25 of this chapter.



Sec.  212.22  Appeals from denials of PA amendment requests.

    (a) How made. Except where accountings of disclosures are not 
required to be kept, as set forth in paragraph (b) of this section, or 
where accountings of disclosures do not need to be provided to a 
requesting individual pursuant to 5 U.S.C. 552a(c)(3), an individual has 
a right to request an accounting of any disclosure that the Agency has 
made to another person, organization, or agency of any record about an 
individual. This accounting shall contain the date, nature, and purpose 
of each disclosure as well as the name and address of the recipient of 
the disclosure. Any request for accounting should identify each 
particular record in question and may be made by writing directly to the 
Appeals Officer, Bureau for Management, Office of Management Services at 
the address given in Sec.  212.19.
    (b) Where accountings not required. The Agency is not required to 
keep an accounting of disclosures in the case of:
    (1) Disclosures made to employees within the Agency who have a need 
for the record in the performance of their duties; and
    (2) Disclosures required under the FOIA.



Sec.  212.23  Request for accounting of record disclosures.

    (a) If the Agency denies a request for amendment of such records, 
the requester shall be informed of the reason for the denial and of the 
right to appeal the denial to the Appeals Review Panel. Any such appeal 
must be postmarked within 60 working days of the date of the Agency's 
denial letter and sent to: Appeals Officer, Bureau for Management, 
Office of Management Services at the address given in Sec.  212.19.
    (b) Appellants should submit an administrative appeal of any denial, 
in whole or in part, of a request for access to the PA at the above 
address. The Agency will assign a tracking number to the appeal.
    (c) The Appeals Review Panel will decide appeals from denials of PA 
amendment requests within 30 business days, unless the Panel extends 
that period for good cause shown, from the date when it is received by 
the Panel.
    (d) Appeals Review Panel decisions will be made in writing, and 
appellants will receive notification of the decision. A reversal will 
result in reprocessing of the request in accordance with that decision. 
An affirmance will include a brief statement of the reason for the 
affirmance and will inform the appellant that the decision of the Panel 
represents the final decision of the Department and of the right to seek 
judicial review of the Panel's decision, when applicable.
    (e) If the Panel's decision is that a record shall be amended in 
accordance with the appellant's request, the Chairman shall direct the 
office responsible

[[Page 899]]

for the record to amend the record, advise all previous recipients of 
the record of the amendment and its substance (if an accounting of 
previous disclosures has been made), and so advise the individual in 
writing.
    (f) If the Panel's decision is that the amendment request is denied, 
in addition to the notification required by paragraph (d) of this 
section, the Chairman shall advise the appellant:
    (1) Of the right to file a concise Statement of Disagreement stating 
the reasons for disagreement with the decision of the Department;
    (2) Of the procedures for filing the Statement of Disagreement;
    (3) That any Statement of Disagreement that is filed will be made 
available to anyone to whom the record is subsequently disclosed, 
together with, at the discretion of the Agency, a brief statement by the 
Agency summarizing its reasons for refusing to amend the record;
    (4) That prior recipients of the disputed record will be provided a 
copy of any statement of disagreement, to the extent that an accounting 
of disclosures was maintained.
    (g) If the appellant files a Statement of Disagreement under 
paragraph (f) of this section, the Agency will clearly annotate the 
record so that the fact that the record is disputed is apparent to 
anyone who may subsequently access the record. When the disputed record 
is subsequently disclosed, the Agency will note the dispute and provide 
a copy of the Statement of Disagreement. The Agency may also include a 
brief summary of the reasons for not amending the record. Copies of the 
Agency's statement shall be treated as part of the individual's record 
for granting access; however, it will not be subject to amendment by an 
individual under this part.



Sec.  212.24  Specific exemptions.

    (a) Pursuant to 5 U.S.C. 552a(k), the Director or the Administrator 
may, where there is a compelling reason to do so, exempt a system of 
records, from any of the provisions of subsections (c)(3); (d); (e)(1); 
(e)(4)(G), (H), and (I); and (f) of the Act if a system of records is:
    (1) Subject to the provisions of 5 U.S.C. 552(b)(1); (2) 
Investigatory material compiled for law enforcement purposes, other than 
material within the scope of subsection (j)(2) of the Act: Provided, 
however, That if any individual is denied any right, privilege, or 
benefit to which he or she would otherwise be eligible, as a result of 
the maintenance of such material, such material shall be provided to 
such individual, except to the extent that the disclosure of such 
material would reveal the identity of a source who furnished information 
to the Government under an express promise that the identity of the 
source would be held in confidence, or prior to the effective date of 
this section, under an implied promise that the identity of the source 
would be held in confidence;
    (2) Maintained in connection with providing protective services to 
the President of the United States or other individuals pursuant to 18 
U.S.C. 3056;
    (3) Required by statute to be maintained and used solely as 
statistical records;
    (4) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information, but only to the extent that the disclosure of 
such material would reveal the identity of a source who furnished 
information to the Government under an express promise that the identity 
of the source would be held in confidence, or, prior to the effective 
date of this section, under an implied promise that the identity of the 
source would be held in confidence;
    (5) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service, the disclosure of which would compromise the objectivity or 
fairness of the testing or examination process; or
    (6) Evaluation material used to determine potential for promotion in 
the armed services, but only to the extent that the disclosure of such 
material would reveal the identity of a source who furnished information 
to the Government under an express promise that the identity of the 
source would be

[[Page 900]]

held in confidence, or, prior to the effective date of this section, 
under an implied promise that the identity of the source would be held 
in confidence.
    (b) Each notice of a system of records that is the subject of an 
exemption under 5 U.S.C. 552a(k) will include a statement that the 
system has been exempted, the reasons therefore, and a reference to the 
Federal Register, volume and page, where the exemption rule can be 
found.
    (c) The systems of records to be exempted under section (k) of the 
Act, the provisions of the Act from which they are being exempted, and 
the justification for the exemptions, are set forth below:
    (1) Criminal Law Enforcement Records. If the 5 U.S.C. 552a(j)(2) 
exemption claimed under paragraph (c) of 22 CFR 215.13 and on the notice 
of systems of records to be published in the Federal Register on this 
same date is held to be invalid, then this system is determined to be 
exempt, under 5 U.S.C. 552(a)(k)(1) and (2) of the Act, from the 
provisions of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4); (G); (H); (I); 
and (f). The reasons for asserting the exemptions are to protect the 
materials required by executive order to be kept secret in the interest 
of the national defense or foreign policy, to prevent subjects of 
investigation from frustrating the investigatory process, to insure the 
proper functioning and integrity of law enforcement activities, to 
prevent disclosure of investigative techniques, to maintain the ability 
to obtain necessary information, to fulfill commitments made to sources 
to protect their identities and the confidentiality of information and 
to avoid endangering these sources and law enforcement personnel.
    (2) Personnel Security and Suitability Investigatory Records. This 
system is exempt under U.S.C. 552a(k)(1), (k)(2), and (k)(5) from the 
provisions of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4); (G); (H); (I); 
and (f). These exemptions are claimed to protect the materials required 
by executive order to be kept secret in the interest of national defense 
or foreign policy, to prevent subjects of investigation from frustrating 
the investigatory process, to insure the proper functioning and 
integrity of law enforcement activities, to prevent disclosure of 
investigative techniques, to maintain the ability to obtain candid and 
necessary information, to fulfill commitments made to sources to protect 
the confidentiality of information, to avoid endangering those sources 
and, ultimately, to facilitate proper selection or continuance of the 
best applicants or persons for a given position or contract. Special 
note is made of the limitation on the extent to which this exemption may 
be asserted.
    (3) Litigation Records. This system is exempt under 5 U.S.C. 
552(k)(1), (k)(2), and (k)(5) from the provisions of 5 U.S.C. 
552a(c)(3); (d); (e)(1); (e)(4) (G), (H), (I); and (f). These exemptions 
are claimed to protect the materials required by executive order to be 
kept secret in the interest of national defense or foreign policy, to 
prevent subjects of investigation from frustrating the investigatory 
process, to insure the proper functioning and integrity of law 
enforcement activities, to prevent disclosure of investigative 
techniques, to maintain the ability to obtain candid and necessary 
information, to fulfill commitments made to sources to protect the 
confidentiality of information.
    (4) Employee Equal Employment Opportunity Complaint Investigatory 
Records. This system is exempt under 5 U.S.C. 552a(k)(1) and (k)(2) from 
the provisions of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), (I); 
and (f). These exemptions are claimed to protect the materials required 
by executive order to be kept secret in the interest of national defense 
or foreign policy, to prevent subjects of investigation from frustrating 
the investigatory process, to insure the proper functioning and 
integrity of law enforcement activities, to prevent disclosure of 
investigative techniques, to maintain the ability to obtain candid and 
necessary information, to fulfill commitments made to sources to protect 
the confidentiality of information, to avoid endangering these sources.
    (5) The following systems of records are exempt under 5 U.S.C. 
552a(k)(5) from the provision of 5 U.S.C. 552a(c)(3); (d); (e)(1); 
(e)(4)(G), (H), (I); and (f):
    (i) Employee Conduct and Discipline Records.

[[Page 901]]

    (ii) Employee Relations Records.

    Note to paragraph (c)(5): This exemption is claimed for these 
systems of records to maintain the ability to obtain candid and 
necessary information, to fulfill commitments made to sources to protect 
the confidentiality of information, to avoid endangering these sources 
and, ultimately, to facilitate proper selection or continuance of the 
best applicants or persons for a given position or contract. Special 
note is made of the limitation on the extent to which this exemption may 
be asserted. The existence and general character of the information 
exempted will be made known to the individual to whom it pertains.

    (6) Partner Vetting System. This system is exempt under 5 U.S.C. 
552a(k)(1), (k)(2), and (k)(5) from the provision of 5 U.S.C. 
552a(c)(3); (d); (e)(1); (e)(4)(G), (H), (I); and (f). These exemptions 
are claimed to protect the materials required by executive order to be 
kept secret in the interest of national defense or foreign policy, to 
prevent subjects of investigation from frustrating the investigatory 
process, to insure the proper functioning and integrity of law 
enforcement activities, to prevent disclosure of investigative 
techniques, to maintain the ability to obtain candid and necessary 
information, to fulfill commitments made to sources to protect the 
confidentiality of information, to avoid endangering these sources, and 
to facilitate proper selection or continuance of the best applicants or 
persons for a given position or contract.



                          Subpart N_Rulemaking

    Source: 86 FR 251, Jan. 5, 2021, unless otherwise noted.



Sec.  212.25  Responsibilities.

    (a) The Deputy Administrator serves as USAID's Regulatory Reform 
Officer (RRO). The RRO oversees implementation of regulatory-reform 
initiatives and policies to ensure USAID effectively manages regulatory 
burdens, consistent with applicable law.
    (b) The Assistant Administrator for Management serves as USAID's 
Regulatory Policy Officer (RPO) and provides oversight for the Agency's 
internal rulemaking process. The RPO must be involved in each stage of 
the regulatory process to foster the development of effective, 
innovative, and least-burdensome regulations.
    (c) The Office of Management Policy, Budget, and Performance in the 
Bureau for Management (M) coordinates the rulemaking process and ensures 
the Agency's rulemaking activities comply with all statutory and 
regulatory requirements.
    (d) The Initiating Program Office (IPO) at USAID is the Bureau or 
Independent Office (B/IO) that provides subject-matter expertise on 
regulatory matters that affect the IPO's programs.
    (e) The Office of the General Counsel at USAID provides guidance on 
legal and procedural requirements during the Agency's rulemaking 
process.



                      Subpart O_Guidance Procedures

    Source: 86 FR 251, Jan. 5, 2021, unless otherwise noted.



Sec.  212.26  General.

    (a) This subpart governs all employees of the United States Agency 
for International Development (USAID) involved in any phase of issuing 
Agency guidance documents as defined by under E.O. 13891.
    (b) This subpart applies to all guidance documents issued by all 
components of the Agency after January 5, 2021.
    (c) For purposes of this subpart, the term ``guidance document'' 
includes any statement of Agency policy or interpretation that concerns 
a statute, regulation, or technical matter within the jurisdiction of 
the Agency that is intended to have general applicability and future 
effect, but is not intended to have the force or effect of law in its 
own right and is not otherwise required by statute to be implemented 
through the rulemaking procedures specified in 5 U.S.C. 553. The term is 
not confined to formal written documents; guidance may come in a variety 
of forms, including (but not limited to) letters, memoranda, circulars, 
bulletins, and advisories, and may include video, audio, and web-based 
formats. See OMB Bulletin 07-02, Agency Good Guidance Practices.

[[Page 902]]

    (d) This subpart does not apply to the following:
    (1) Rules exempt from rulemaking requirements under 5 U.S.C. 553(a);
    (2) Rules of Agency organization, procedure, or practice;
    (3) Decisions of Agency adjudications under 5 U.S.C. 554 or similar 
statutory provisions;
    (4) Internal executive management legal advice or legal advisory 
opinions addressed to executive officials;
    (5) Agency statements of specific applicability, including advisory 
or legal opinions directed to particular parties about circumstance-
specific questions (e.g.), case or investigatory letters responding to 
complaints, warning letters), notices regarding particular locations or 
facilities (e.g.), guidance that pertains to the use, operation, or 
control of a U.S. Government facility or property), and correspondence 
with individual persons or entities (e.g., Congressional 
correspondence), except documents ostensibly directed to a particular 
party but designed to guide the conduct of the broader regulated public;
    (6) Legal briefs, other court filings, or positions taken in 
litigation or enforcement actions;
    (7) Agency statements that do not set forth a policy on a statutory, 
regulatory, or technical issue or an interpretation of a statute or 
regulation, including speeches and individual presentations, editorials, 
media interviews, press materials, or Congressional testimony that do 
not set forth for the first time a new regulatory policy;
    (8) Guidance pertaining to military or foreign-affairs functions;
    (9) Grant solicitations and awards;
    (10) Contract solicitations and awards; or
    (11) Purely internal Agency guidance policies, such as Chapters of 
the ADS directed solely to USAID's employees, or to other Federal 
Departments and Agencies not intended to have substantial future effect 
on the behavior of regulated parties; USAID's Country/Regional 
Development Cooperation Strategies; the Agency's programmatic Policies 
and Strategies; Acquisition and Assistance Policy Directives (AAPDs); 
Application Guidelines; COVID-19 Guidance; Food for Peace Information 
Bulletins (FFPIBs); Guidance and Tools for Global Food-Security 
Programs; Procurement Executive Bulletins (PEBs); Standard Provisions 
for the Protecting Life in Global Health Assistance (PLGHA) Policy; and 
documents in the USAID Policy Registry.



Sec.  212.27  Review and clearance by the Office of Management Policy, 
Budget, and Performance in the Bureau for Management.

    All USAID guidance documents, as defined by E.O. 13891 and Sec.  
212.26, require review and clearance in accordance with this subpart. 
The Bureau for Management (M Bureau) must review and clear any guidance 
a Bureau or Independent Office within USAID proposes to issue.



Sec.  212.28  Requirements for clearance.

    USAID's review and clearance of guidance documents shall ensure that 
each one that a B/IO within the Agency proposes to issue satisfies the 
following requirements:
    (a) The guidance document complies with all relevant statutes and 
regulations (including any statutory deadlines for the Agency's action);
    (b) The guidance document identifies or includes the following:
    (1) The term ``guidance'' or its functional equivalent;
    (2) The issuing B/IO within the Agency;
    (3) A unique identifier, including, at a minimum, the date of 
issuance and title of the document and a Regulation Identifier Number 
(RIN), if applicable;
    (4) The activity or entities to which the guidance applies;
    (5) Citations to applicable statutes and regulations;
    (6) A statement that notes whether the guidance is intended to 
revise or replace any previously issued guidance and, if so, sufficient 
information to identify the previously issued guidance; and
    (7) A short summary at the top of the document of the subject matter 
covered in the guidance document.
    (c) The guidance document avoids using mandatory language, such as 
``shall,'' ``must,'' ``required,'' or ``requirement,'' unless the 
language is describing an established statutory or

[[Page 903]]

regulatory requirement, or is addressed to USAID's staff and will not 
foreclose the Agency's consideration of positions advanced by affected 
private parties; and
    (d) The guidance document is written in plain and understandable 
English. All guidance documents should include a clear and prominent 
statement to declare that the contents of the document do not have the 
force and effect of law and are not meant to bind the public in any way, 
and the document is intended only to provide clarity to the public 
regarding existing requirements under the law or USAID's policies.



Sec.  212.29  Public access to effective guidance documents.

    Each B/IO within USAID responsible for issuing guidance documents 
shall do the following:
    (a) Ensure all effective guidance documents, identified by a unique 
identifier that includes, at a minimum, the document's title and date of 
issuance or revision and its RIN, if applicable, are on USAID's guidance 
portal in a single, searchable, indexed database and are available to 
the public in accordance with 5 U.S.C. 552(a)(2);
    (b) Note on USAID's guidance portal that guidance documents lack the 
force and effect of law, except as authorized by law and are not meant 
to bind the public in anyway;
    (c) Maintain and advertise USAID's guidance portal as a means for 
the public to comment electronically on any guidance documents that are 
subject to the notice-and-comment procedures described in Sec.  212.34 
and to submit requests electronically for the issuance, reconsideration, 
modification, or rescission of guidance documents in accordance with 
Sec.  212.26; and
    (d) The Bureau for Management is the office designated to receive 
and address complaints from the public that USAID is not following the 
requirements of OMB's Good Guidance Bulletin, or is improperly treating 
a guidance document as a binding requirement.



Sec.  212.30  Good-faith cost estimates.

    Even though not legally binding, some Agency guidance could result 
in a substantial economic impact. For example, the issuance of Agency 
guidance could induce private parties to alter their conduct to conform 
to recommended standards or practices, such that they could incur costs 
beyond the costs of complying with existing statutes and regulations. 
While it might be difficult to predict with precision the economic 
impact of voluntary guidance, to the extent practicable the proposing B/
IO within USAID shall make a good-faith effort to estimate the likely 
economic cost impact of the guidance document to determine whether it 
might qualify as ``significant.'' When a B/IO is assessing or explaining 
whether it believes a guidance document is significant, it should, at a 
minimum, provide the same level of analysis that would be required for a 
determination under the Congressional Review Act (M-19-14), Guidance on 
Compliance with the Congressional Review Act, that the guidance document 
is major. When USAID determines that a guidance document will be 
``economically significant,'' the proposing B/IO should conduct and 
publish a regulatory-impact analysis of the sort that would accompany an 
economically significant rulemaking, to the extent reasonably possible 
(in conformance with E.O. 12866).



Sec.  212.31  Approval procedures for guidance documents identified as 
``significant'' or ``otherwise of importance to the Agency's interests.''

    (a) For guidance a USAID B/IO proposes to issue, if there is a 
reasonable possibility a guidance document could be as ``significant'' 
or ``otherwise of importance to the Agency's interests'' within the 
meaning of Sec.  212.31, or if the B/IO is uncertain whether the 
guidance could qualify as such, the B/IO should email a copy of the 
proposed guidance document (or a summary of it) to the M Bureau for 
review and further direction before issuance.
    (b) As with significant regulations, after appropriate internal 
consultation and review, the M Bureau will submit significant guidance 
documents that are otherwise of importance to the Agency's interests to 
the Office of Information and Regulatory Affairs (OIRA) within OMB for 
review and designation.

[[Page 904]]

    (c) If OMB/OIRA determines a guidance document from a USAID B/IO not 
to be either significant or otherwise of importance to the Agency's 
interests within the meaning of Sec.  212.31, the Bureau for Management 
may proceed with issuance. For each guidance document coordinated 
through the Office of the Administrator, the issuing B/IO should include 
a statement in the Action Memorandum to indicate that the OMB/OIRA has 
reviewed and cleared the guidance document in accordance with this 
process.



Sec.  212.32  Definitions of ``significant guidance document'' 
and guidance documents that are ``otherwise of importance 
to the Agency's interests.''

    (a) The term ``significant guidance document'' means a guidance 
document USAID will disseminate to regulated entities or the general 
public and that might reasonably be anticipated:
    (1) To lead to an annual effect on the U.S. economy of $100 million 
or more, or adversely affect in a material way the U.S. economy, a 
sector of the U.S. economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities;
    (2) To create serious inconsistency or otherwise interfere with an 
action taken or planned by another Federal Department or Agency;
    (3) To alter materially the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
    (4) To raise novel legal or policy issues that arise out of legal 
mandates, the President's priorities, or the principles set forth in 
E.O. 12866, as further amended.
    (b) The term ``significant guidance document'' does not include the 
categories of documents excluded by Sec.  212.26 or any other category 
of guidance documents exempted in writing by OMB/OIRA.
    (c) OMB/OIRA must review significant and economically significant 
guidance documents under E.O. 12866 before issuance, and they must 
demonstrate compliance with the applicable requirements for regulations 
or rules, including significant regulatory actions, set forth in E.O. 
12866, E.O. 13563, E.O. 13609, E.O. 13771, and E.O. 13777.
    (d) Even if not ``significant,'' USAID will consider a guidance 
document of regulatory impact as ``otherwise of importance to the 
Agency's interests'' within the meaning of this paragraph if it might 
reasonably be anticipated:
    (1) To relate to a major program, policy, or activity of the Agency 
or a high-profile issue that is pending for decision before the Agency;
    (2) To involve one of the Administrator's top policy priorities;
    (3) To garner significant press or Congressional attention; or
    (4) To raise significant questions or concerns from constituencies 
of importance to the Agency, such as Committees of Congress, States or 
Indian tribes, the White House or other Departments and Agencies of the 
Executive Branch, courts, consumer or public-interest groups, or leading 
representatives of industry.
    (e) As noted in paragraphs (a) through (d) of this section, 
``guidance documents'' for the purposes of this rule, including this 
subpart, do not include those documents identified in this subpart O.



Sec.  212.33  Designation procedures.

    (a) The Bureau for Management may request a B/IO within USAID to 
prepare a designation request for certain guidance documents. 
Designation requests must include the following information:
    (1) A summary of the guidance document; and
    (2) The B/IO's recommended designation of ``not significant,'' 
``significant,'' or ``economically significant,'' as well as a 
justification for that designation.
    (b) Except as otherwise provided in paragraph (c) of this section, 
the Agency will seek significance determinations from OMB/OIRA for 
certain guidance documents, as appropriate, in the same manner as for 
rulemakings. Prior to publishing these guidance documents, after 
internal consultation and review, the Bureau for Management shall submit 
the document to OMB/OIRA for review under the provisions in Section 6 of 
E.O. 12866 to determine

[[Page 905]]

if it meets the definition of ``significant'' or ``economically 
significant.''
    (c) All ``guidance documents'' as with rulemakings, receive a 
significance determination from OMB/OIRA, unless explicitly exempt from 
E.O. 12866. Note that the only documents that do not receive 
designations are those that fall outside the definition of ``guidance'' 
or within a group categorically considered nonsignificant as agreed upon 
by OMB/OIRA in Memorandum M-20-02).



Sec.  212.34  Notice-and-comment procedures.

    (a) Except as provided in paragraph (b) of this section, all 
proposed USAID guidance documents determined to be a ``significant 
guidance document'' within the meaning of Sec.  212.31 shall be subject 
to the following notice-and-comment procedures:
    (1) The issuing B/IO within USAID shall publish a notice in the 
Federal Register to announce that a draft of the proposed guidance 
document is publicly available; post the draft guidance document on the 
Agency's guidance portal; invite public comment on the draft document 
for a minimum of 30 days; and
    (2) Prepare and post a public response to major concerns raised in 
the comments, as appropriate, on USAID's guidance portal, when the 
Agency finalizes and issues the guidance document.
    (b) The requirements of paragraph (a) of this section will not apply 
to any significant guidance document or categories of significant 
guidance documents for which the Bureau for Management finds, in 
consultation with GC, the proposing B/IO, and USAID's RRO, good cause 
that notice and public procedure thereon are impracticable, unnecessary, 
or contrary to the public interest (and incorporates the finding of good 
cause and a brief statement of reasons therefore in the guidance 
issued).
    (c) Where appropriate, the Bureau for Management and the proposing 
B/IO may recommend to the RRO that a particular guidance document that 
is otherwise of importance to the Agency's interests shall also be 
subject to the notice-and-comment procedures described in paragraph (a) 
of this section.



Sec.  212.35  Petitions for guidance.

    Any person may petition the Agency to withdraw or modify a 
particular guidance document by using the procedures found in Sec.  
212.26(c). USAID should respond to all requests in a timely manner, but 
no later than 90 days after receipt of the request.



Sec.  212.36  Rescinded guidance.

    No B/IO within USAID may cite, use, or rely on guidance documents 
that are rescinded, except to establish historical facts.



Sec.  212.37  Exigent circumstances.

    In emergency situations, or when a statutory deadline or court order 
requires the issuing B/IO within USAID to act more quickly than normal 
review procedures allow, the issuing B/IO shall coordinate with the 
Bureau for Management to notify OMB/OIRA as soon as possible and, to the 
extent practicable, shall comply with the requirements of this subpart 
at the earliest opportunity. Wherever practicable, the issuing B/IO 
should schedule its proceedings to permit sufficient time to comply with 
the procedures set forth in this subpart.



Sec.  212.38  Reports to Congress and the Government Accountability Office.

    Unless otherwise determined in writing, it is the policy of USAID 
that upon issuing a guidance document determined to be ``significant'' 
within the meaning of Sec.  212.31 the issuing B/IO shall submit a 
report to Congress and the Government Accountability Office in 
accordance with the procedures described in 5 U.S.C. 801 (the 
Congressional Review Act [CRA]). Under the CRA, USAID must coordinate 
with OMB/OIRA regarding a major determination for all guidance 
documents, irrespective of whether the Agency otherwise would submit a 
rule for regulatory review (Memorandum-19-14).



Sec.  212.39  No judicial review or enforceable rights.

    This subpart is intended to improve the internal management of 
USAID. As such, it is for USAID personnel only and is not intended to, 
and does not, create any right or benefit, substantive or procedural, 
enforceable at law or in

[[Page 906]]

equity by any party against the United States, its Departments and 
Agencies or other entities, its officers or employees, or any other 
person.



Sec.  212.40  Use of guidance documents.

    Guidance documents cannot create binding requirements that do not 
already exist by statute or regulation. Accordingly, non-compliance with 
guidance documents cannot be used as a basis for proving violations of 
applicable law. Guidance documents can do no more, with respect to 
prohibition of conduct, than articulate USAID's understanding of how a 
statute or regulation applies to particular circumstances.



PART 213_CLAIMS COLLECTION--Table of Contents



                            Subpart A_General

Sec.
213.1 Purpose and scope.
213.2 Definitions.
213.3 Loans, guarantees, sovereign and interagency claims.
213.4 Other remedies.
213.5 Fraud claims.
213.6 Subdivision of claims not authorized.
213.7 Omission not a defense.

                          Subpart B_Collection

213.8 Collection--general.
213.9 Written notice.
213.10 Review requirements.
213.11 Aggressive collection actions; documentation.
213.12 Interest, penalty and administrative costs.
213.13 Interest and charges pending waiver or review.
213.14 Contracting for collection services.
213.15 Use of credit reporting bureaus.
213.16 Use and disclosure of mailing addresses.
213.17 Liquidation of collateral.
213.18 Suspension or revocation of eligibility for loans and loan 
          guarantees, licenses or privileges.
213.19 Installment payments.

                     Subpart C_Administrative Offset

213.20 Administrative offset of non-employee debts.
213.21 Employee salary offset--general.
213.22 Salary offset when USAID is the creditor agency.
213.23 Salary offset when USAID is not the creditor agency.

                      Subpart D_Compromise of Debts

213.24 General.
213.25 Standards for compromise.
213.26 Payment of compromised claims.
213.27 Joint and several liability.
213.28 Execution of releases.

        Subpart E_Suspension or Termination of Collection Action

213.29 Suspension--general.
213.30 Standards for suspension.
213.31 Termination--general.
213.32 Standards for termination.
213.33 Permitted actions after termination of collection activity.
213.34 Debts that have been discharged in bankruptcy.

     Subpart F_Discharge of Indebtedness and Reporting Requirements

213.35 Discharging indebtedness--general.
213.36 Reporting to IRS.

            Subpart G_Referrals to the Department of Justice

213.37 Referrals to the Department of Justice.

Subpart H_Mandatory Transfer of Delinquent Debt to Financial Management 
               Service (FMS) of the Department of Treasury

213.38 Mandatory transfer of debts to FMS--general.
213.39 Exceptions to mandatory transfer.

    Authority: Section 621(a) of the Foreign Assistance Act of 1961, as 
amended, 22 U.S.C. 2381(a).

    Source: 67 FR 47258, July 18, 2002, unless otherwise noted.



                            Subpart A_General



Sec.  213.1  Purpose and scope.

    This part prescribes standards and procedures for the United States 
Agency for International Development's (USAID) collection and disposal 
of claims. These standards and procedures are applicable to all claims 
and debts for which a statute, regulation or contract does not prescribe 
different standards or procedures. This part covers USAID's collection, 
compromise, suspension, termination, and referral of claims to the 
Department of Justice.

[[Page 907]]



Sec.  213.2  Definitions.

    (a) Administrative offset means the withholding of money payable by 
the United States to, or held by the United States for, a person to 
satisfy a debt the person owes the Government.
    (b) Administrative wage garnishment means the process by which 
federal agencies require a private sector employer to withhold up to 15% 
of an employee's disposable pay to satisfy a delinquent debt owed to the 
federal government. A court order is not required.
    (c) Agency means the United States Agency for International 
Development (USAID).
    (d) Claim means an amount of money, funds, or property that has been 
determined by an agency official to be due the United States from any 
person, organization, or entity, except another Federal agency. As used 
in this part, the terms debt and claim are synonymous.
    (e) CFO means the Chief Financial Officer of USAID or a USAID 
employee or official designated to act on the CFO's behalf.
    (f) Creditor agency means the Federal agency to which the debt is 
owed, including a debt collection center when acting on behalf of a 
creditor agency in matters pertaining to the collection of a debt.
    (g) Debtor means an individual, organization, association, 
corporation, or a State or local government indebted to the United 
States or a person or entity with legal responsibility for assuming the 
debtor's obligation.
    (h) Delinquent claim means any claim that has not been paid by the 
date specified in the agency's bill for collection or demand letter for 
payment or which has not been satisfied in accordance with a repayment 
agreement.
    (i) Disposable pay means that part of current basic pay, special 
pay, incentive pay, retired pay, retainer pay, or in the case of an 
employee not entitled to basic pay, other authorized pay remaining after 
the deduction of any amount required by law to be withheld (other than 
deductions to execute garnishment orders) in accordance with 5 CFR parts 
581 and 582. Among the legally required deductions that must be applied 
first to determine disposable pay are levies pursuant to the Internal 
Revenue Code (Title 26, United States Code) and deductions described in 
5 CFR 581.105 (b) through (f). These deductions include, but are not 
limited to: Social security withholdings; Federal, State and local tax 
withholdings; health insurance premiums; retirement contributions; and 
life insurance premiums.
    (j) Employee means a current employee of the Federal Government 
including a current member of the Armed Forces or a Reserve of the Armed 
Forces.
    (k) Employee salary offset means the administrative collection of a 
debt by deductions at one or more officially established pay intervals 
from the current pay account of an employee without the employee's 
consent.
    (l) Person means an individual, firm, partnership, corporation, 
association and, except for purposes of administrative offsets under 
subpart C and interest, penalty and administrative costs under subpart B 
of this part, includes State and local governments and Indian tribes and 
components of tribal governments.
    (m) Recoupment is a special method for adjusting debts arising under 
the same transaction or occurrence. For example, obligations arising 
under the same contract generally are subject to recoupment.
    (n) Waiver means the cancellation, remission, forgiveness or non-
recovery of a debt or debt-related charge as permitted or required by 
law.
    (o) Withholding order means any order for withholding or garnishment 
of pay issued by USAID or a judicial or administrative body. For the 
purposes of this part, wage garnishment order and garnishment order have 
the same meaning as withholding order.



Sec.  213.3  Loans, guarantees, sovereign and interagency claims.

    This part does not apply to:
    (a) Claims arising out of loans for which compromise and collection 
authority is conferred by section 635(g)(2) of the Foreign Assistance 
Act of 1961, as amended;

[[Page 908]]

    (b) Claims arising from investment guaranty operations for which 
settlement and arbitration authority is conferred by section 635(I) of 
the Foreign Assistance Act of 1961, as amended;
    (c) Claims against any foreign country or any political subdivision 
thereof, or any public international organization;
    (d) Claims where the CFO determines that the achievement of the 
purposes of the Foreign Assistance Act of 1961, as amended, or any other 
provision of law administered by USAID require a different course of 
action; and
    (e) Claims owed USAID by other Federal agencies. Such debts will be 
resolved by negotiation between the agencies.



Sec.  213.4  Other remedies.

    (a) This part does not supersede or require omission or duplication 
of administrative proceedings required by contract, statute, regulation 
or other Agency procedures, e.g., resolution of audit findings under 
grants or contracts, informal grant appeals, formal appeals, or review 
under a procurement contract.
    (b) The remedies and sanctions available to the Agency under this 
part for collecting debts are not intended to be exclusive. The Agency 
may impose, where authorized, other appropriate sanctions upon a debtor 
for inexcusable, prolonged or repeated failure to pay a debt. For 
example, the Agency may stop doing business with a grantee, contractor, 
borrower or lender; convert the method of payment under a grant or 
contract from an advance payment to a reimbursement method; or revoke a 
grantee's or contractor's letter-of-credit.



Sec.  213.5  Fraud claims.

    (a) The CFO will refer claims involving fraud, the presentation of a 
false claim, or misrepresentation on the part of the debtor or any party 
having an interest in the claim to the USAID Office of Inspector General 
(OIG). The OIG has the responsibility for investigating or referring the 
matter, where appropriate, to the Department of Justice (DOJ), and/or 
returning it to the CFO for further action.
    (b) The CFO will not administratively compromise, terminate, suspend 
or otherwise dispose of debts involving fraud, the presentation of a 
false claim or misrepresentation on the part of the debtor or any party 
having an interest in the claim without the approval of DOJ.



Sec.  213.6  Subdivision of claims not authorized.

    A claim will not be subdivided to avoid the $100,000 limit on the 
Agency's authority to compromise, suspend, or terminate a debt. A 
debtor's liability arising from a particular transaction or contract is 
a single claim.



Sec.  213.7  Omission not a defense.

    Failure by USAID to comply with any provision of this part is not 
available to a debtor as a defense against payment of a debt.



                          Subpart B_Collection



Sec.  213.8  Collection--general.

    (a) The CFO takes action to collect all debts owed the United States 
arising out of USAID activities and to reduce debt delinquencies. 
Collection actions may include sending written demands to the debtor's 
last known address. Written demand may be preceded by other appropriate 
action, including immediate referral to DOJ for litigation, when such 
action is necessary to protect the Government's interest. The CFO may 
contact the debtor by telephone, in person and/or in writing to demand 
prompt payment, to discuss the debtor's position regarding the 
existence, amount or repayment of the debt, to inform the debtor of its 
rights (e.g., to apply for waiver of the indebtedness or to have an 
administrative review) and of the basis for the debt and the 
consequences of nonpayment or delay in payment.
    (b) The CFO maintains an administrative file for each debt and/or 
debtor which documents the basis for the debt, all administrative 
collection actions regarding the debt (including communications to and 
from the debtor) and its final disposition. Information on an individual 
may be disclosed only for purposes that are consistent

[[Page 909]]

with this part, the Privacy Act of 1974 and other applicable law.



Sec.  213.9  Written notice.

    (a) When the billing official determines that a debt is owed USAID, 
he or she provides a written notice in the form of a Bill for Collection 
or demand letter to the debtor. Unless otherwise provided by agreement, 
contract or order, the written notice informs the debtor of:
    (1) The amount, nature and basis of the debt;
    (2) The right of the debtor to inspect and copy records related to 
the debt;
    (3) The right of the debtor to discuss and propose a repayment 
agreement;
    (4) Any rights available to the debtor to dispute the validity of 
the debt or to have recovery of the debt waived (citing the available 
review or waiver authority, the conditions for review or waiver, and the 
effects of the review or waiver request on the collection of the debt);
    (5) The date on which payment is due which will be not more than 30 
days from the date of the bill for collection or demand letter;
    (6) The instructions for making electronic payment;
    (7) The debt is considered delinquent if it is not paid on the due 
date;
    (8) The imposition of interest charges and, except for State and 
local governments and Indian tribes, penalty charges and administrative 
costs that may be assessed against a delinquent debt;
    (9) The intention of USAID to use non-centralized administrative 
offset to collect the debt if appropriate and, if not, the referral of 
the debt 90 days after the Bill for Collection or demand letter to the 
Financial Management Service in the Department of Treasury who will 
collect their administrative costs from the debtor in addition to the 
amount owed USAID and use all means available to the Federal Government 
for debt collection including administrative wage garnishment, use of 
collection agencies and reporting the indebtedness to a credit reporting 
bureau (see Sec.  213.14);
    (10) The address, telephone number, and name of the person available 
to discuss the debt;
    (11) The possibility of referral to the Department of Justice for 
litigation if the debt cannot be collected administratively.
    (b) USAID will respond promptly to communications from the debtor. 
Response generally will be within 30 days of receipt of communication 
from the debtor.



Sec.  213.10  Review requirements.

    (a) For purposes of this section, whenever USAID is required to 
afford a debtor a review within the agency, USAID shall provide the 
debtor with a reasonable opportunity for an oral hearing when the debtor 
requests reconsideration of the debt and the agency determines that the 
question of the indebtedness cannot be resolved by review of the 
documentary evidence, for example, when the validity of the debt turns 
on an issue of credibility or veracity.
    (b) Unless otherwise required by law, an oral hearing under this 
section is not required to be a formal evidentiary hearing, although 
USAID will carefully document all significant matters discussed at the 
hearing.
    (c) This section does not require an oral hearing with respect to 
debt collection systems in which a determination of indebtedness rarely 
involves issues of credibility or veracity and the agency has determined 
that review of the written record is ordinarily an adequate means to 
correct prior mistakes.
    (d) In those cases when an oral hearing is not required by this 
section, USAID shall accord the debtor a ``paper hearing,'' that is, a 
determination of the request for reconsideration based upon a review of 
the written record.



Sec.  213.11  Aggressive collection actions; documentation.

    (a) USAID takes actions and effective follow-up on a timely basis to 
collect all claims of the United States for money and property arising 
out of USAID's activities. USAID cooperates with other Federal agencies 
in their debt collection activities.
    (b) All administrative collection actions are documented in the 
claim file, and the basis for any compromise, termination or suspension 
of collection

[[Page 910]]

actions is set out in detail. This documentation, including the Claims 
Collection Litigation Report required in Sec.  213.34, is retained in 
the appropriate debt file.



Sec.  213.12  Interest, penalty and administrative costs.

    (a) Interest. USAID will assess interest on all delinquent debts 
unless prohibited by statute, regulation or contract.
    (1) Interest begins to accrue on all debts from the payment due date 
established in the initial notice to the debtor. USAID will assess an 
annual rate of interest that is equal to the rate of the current value 
of funds to the United States Treasury (i.e., the Treasury tax and loan 
account rate) unless a different rate is necessary to protect the 
interest of the Government. USAID will notify the debtor of the basis 
for its finding that a different rate is necessary to protect the 
interest of the Government.
    (2) The rate of interest, as initially assessed, remains fixed for 
the duration of the indebtedness. If a debtor defaults on a repayment 
agreement, interest may be set at the Treasury rate in effect on the 
date a new agreement is executed.
    (3) Interest will not be assessed on interest charges, 
administrative costs or late payment penalties. However, where a debtor 
defaults on a previous repayment agreement and interest, administrative 
costs and penalties charges have been waived under the defaulted 
agreement, these charges can be reinstated and added to the debt 
principal under any new agreement and interest charged on the entire 
amount of the debt.
    (b) Administrative costs of collecting overdue debts. The costs of 
the Agency's administrative handling of overdue debts including charges 
assessed by Treasury in cross-servicing USAID debts, based on either 
actual or average cost incurred, will be charged on all debts except 
those owed by State and local governments and Indian tribes. These costs 
include both direct and indirect costs.
    (c) Penalties. As provided by 31 U.S.C. 3717(e)(2), a penalty charge 
will be assessed on all debts, except those owned by State and local 
governments and Indian tribes, more than 90 days delinquent. The penalty 
charge will be at a rate not to exceed 6% per annum and will be assessed 
monthly.
    (d) Allocation of payments. A partial payment by a debtor will be 
applied first to outstanding administrative costs, second to penalty 
assessments, third to accrued interest and then to the outstanding debt 
principal.
    (e) Waivers. (1) USAID will waive the collection of interest and 
administrative charges on the portion of the debt that is paid within 30 
days after the date on which interest begins to accrue. The CFO may 
extend this 30-day period on a case-by-case basis where he determines 
that such action is in the best interest of the Government. A decision 
to extend or not to extend the payment period is final and is not 
subject to further review.
    (2) The CFO may (without regard to the amount of the debt) waive 
collection of all or part of accrued interest, penalty or administrative 
costs, where he determines that--
    (i) Waiver is justified under the criteria of Sec.  213.24;
    (ii) The debt or the charges resulted from the Agency's error, 
action or inaction, and without fault by the debtor; or
    (iii) Collection of these charges would be against equity and good 
conscience or not in the best interest of the United States.
    (3) A decision to waive interest, penalty charges or administrative 
costs may be made at any time.



Sec.  213.13  Interest and charges pending waiver or review.

    Interest, penalty charges and administrative costs will continue to 
accrue on a debt during administrative appeal, either formal or 
informal, and during waiver consideration by the Agency; except, that 
interest, penalty charges and administrative costs will not be assessed 
where a statute or a regulation specifically prohibits collection of the 
debt during the period of the administrative appeal or the Agency 
review.

[[Page 911]]



Sec.  213.14  Contracting for collection services.

    USAID has entered into a cross-servicing agreement with the 
Financial Management Service (FMS) of the Department of Treasury. FMS is 
authorized to take all appropriate action to enforce collection of 
accounts referred to FMS in accordance with applicable statutory and 
regulatory requirements. The FMS fee ranges from 3% to 18% of the funds 
collected and will be collected from the debtor along with the original 
amount of the indebtedness. After referral, FMS will be solely 
responsible for the maintenance of the delinquent debtor records in its 
possessions and for ensuring that accounts are updated as necessary. In 
the event that a referred debtor disputes the validity of the debt or 
any terms and conditions related to any debt not reduced to judgment, 
FMS may return the disputed debt to USAID for its determination of debt 
validity. FMS may take any of the following collection actions on 
USAID's behalf:
    (a) Send demand letters on U. S. Treasury letterhead and telephone 
debtors;
    (b) Refer accounts to credit bureaus;
    (c) Skiptracing;
    (d) Purchase credit reports to assist in the collection effort;
    (e) Refer accounts for offset, including tax refund, Federal 
employee salary, administrative wage garnishment, and general 
administrative offset under the Treasury Offset Program.
    (f) Refer accounts to private collection agencies;
    (g) Refer accounts to DOJ for litigation;
    (h) Report written off/discharged debts to IRS on the appropriate 
Form 1099;
    (i) Take any additional steps necessary to enforce recovery; and
    (j) Terminate collection action, as appropriate.



Sec.  213.15  Use of credit reporting bureaus.

    Delinquent debts owed to USAID are reported to appropriate credit 
reporting bureaus through the cross-servicing agreement with FMS.
    (a) The following information is provided to the credit reporting 
bureaus:
    (1) A statement that the claim is valid and is overdue;
    (2) The name, address, taxpayer identification number and any other 
information necessary to establish the identity of the debtor;
    (3) The amount, status and history of the debt; and
    (4) The program or pertinent activity under which the debt arose.
    (b) Before referring claims to FMS and disclosing debt information 
to credit reporting bureaus, USAID will have:
    (1) Taken reasonable action to locate the debtor if a current 
address is not available; and
    (2) If a current address is available, notified the debtor in 
writing that:
    (i) The designated USAID official has reviewed the claim and has 
determined that it is valid and overdue;
    (ii) That 90 days after the initial billing or demand letter if the 
debt is not paid, USAID intends to refer the debt to FMS and disclose to 
a credit reporting agency the information authorized for disclosure by 
this subpart; and
    (iii) The debtor can request a complete explanation of the claim, 
can dispute the information in USAID's records concerning the claim, and 
can file for an administrative review, waiver or reconsideration of the 
claim, where applicable.
    (c) Before information is submitted to a credit reporting bureau, 
USAID will provide a written statement to FMS that all required actions 
have been taken. Additionally, FMS will, thereafter, ensure that 
accounts are updated as necessary during the period that FMS holds the 
account information.
    (d) If a debtor disputes the validity of the debt, the credit 
reporting bureau will refer the matter to the appropriate USAID 
official. The credit reporting bureau will exclude the debt from its 
reports until USAID certifies in writing that the debt is valid.



Sec.  213.16  Use and disclosure of mailing addresses.

    (a) When attempting to locate a debtor in order to collect or 
compromise a debt, the CFO may obtain a debtor's current mailing address 
from the Internal Revenue Service.

[[Page 912]]

    (b) Addresses obtained from the Internal Revenue Service will be 
used by the Agency, its officers, employees, agents or contractors and 
other Federal agencies only to collect or dispose of debts, and may be 
disclosed to other agencies and to collection agencies only for 
collection purposes.



Sec.  213.17  Liquidation of collateral.

    Where the CFO holds a security instrument with a power of sale or 
has physical possession of collateral, he may liquidate the security or 
collateral and apply the proceeds to the overdue debt. USAID will 
exercise this right where the debtor fails to pay within a reasonable 
time after demand, unless the cost of disposing of the collateral is 
disproportionate to its value or special circumstances require judicial 
foreclosure. However, collection from other businesses, including 
liquidation of security or collateral, is not a prerequisite to 
requiring payment by a surety or insurance company unless expressly 
required by contract or statute. The CFO will give the debtor reasonable 
notice of the sale and an accounting of any surplus proceeds and will 
comply with any other requirements of law or contract.



Sec.  213.18  Suspension or revocation of eligibility for loans 
and loan guarantees, licenses or privileges.

    Unless waived by the CFO, USAID will not extend financial assistance 
in the form of a loan or loan guarantee to any person delinquent on a 
nontax debt owed to a Federal agency. USAID may also suspend or revoke 
licenses or other privileges for any inexcusable, prolonged or repeated 
failure of a debtor to pay a claim. Additionally, the CFO may suspend or 
disqualify any contractor, lender, broker, borrower, grantee or other 
debtor from doing business with USAID or engaging in programs USAID 
sponsors or funds if a debtor fails to pay its debts to the Government 
within a reasonable time. Debtors will be notified before such action is 
taken and applicable suspension or debarment procedures will be used. 
The CFO will report the failure of any surety to honor its obligations 
to the Treasury Department for action under 31 CFR 332.18.



Sec.  213.19  Installment payments.

    (a) Whenever feasible, and except as otherwise provided by law, 
debts owed to the United States, together with interest, penalty and 
administrative costs, as required by Sec.  213.11, will be collected in 
a single payment. However, where the CFO determines that a debtor is 
financially unable to pay the indebtedness in a single payment or that 
an alternative payment mechanism is in the best interest of the United 
States, the CFO may approve repayment of the debt in installments. The 
debtor has the burden of establishing that it is financially unable to 
pay the debt in a single payment or that an alternative payment 
mechanism is warranted. If the CFO agrees to accept payment by 
installments, the CFO may require a debtor to execute a written 
agreement which specifies all the terms of the repayment arrangement and 
which contains a provision accelerating the debt in the event of 
default. The size and frequency of installment payments will bear a 
reasonable relation to the size of the debt and the debtor's ability to 
pay. The installment payments will be sufficient in size and frequency 
to liquidate the debt in not more than 3 years, unless the CFO 
determines that a longer period is required. Installment payments of 
less than $50 per month generally will not be accepted, but may be 
accepted where the debtor's financial or other circumstances justify.
    (b) If a debtor owes more than one debt and designates how a 
voluntary installment payment is to be applied among the debts, that 
designation will be approved if the CFO determines that the designation 
is in the best interest of the United States. If the debtor does not 
designate how the payment is to be applied, the CFO will apply the 
payment to the various debts in accordance with the best interest of the 
United States, paying special attention to applicable statutes of 
limitations.



                     Subpart C_Administrative Offset



Sec.  213.20  Administrative offset of non-employee debts.

    This subpart provides for USAID's collection of debts by 
administrative

[[Page 913]]

offset under the Federal Claims Collection Standards, other statutory 
authorities and offsets or recoupments under common law. It does not 
apply to offsets against employee salaries covered by Sec. Sec.  213.21, 
213.22 and 213.23 of this subpart. USAID will collect debts by 
administrative offsets where it determines that such collections are 
feasible and are not otherwise prohibited by statute or contract. USAID 
will decide, on a case-by-case basis, whether collection by 
administrative offset is feasible and that its use furthers and protects 
the interest of the United States.
    (a) Standards. (1) The CFO collects debts by administrative offset 
only after the debtor has been sent written notice in the form of a Bill 
for Collection or demand letter outlining the type and amount of the 
debt, the intention of the agency to use administrative offset to 
collect the debt, and explaining the debtor's rights under 31 U.S.C. 
3716.
    (2) Offsets may be initiated only after the debtor has been given:
    (i) The opportunity to inspect and copy agency records related to 
the debt;
    (ii) The opportunity for a review within the agency of the 
determination of indebtedness;
    (iii) The opportunity to make a written agreement to repay the debt.
    (3) The provisions of paragraphs (a)(1) and (2) of this section may 
be omitted when:
    (i) The offset is in the nature of a recoupement;
    (ii) The debt arises under a contract as set forth in Cecile 
Industries, Inc. v. Cheney, 995 F.2d 1052 (Fed. Cir. 1993) (notice and 
other procedural protections set forth in 31 U.S.C. 3716(a) do not 
supplant or restrict established procedures for contractual offsets 
accommodated by the Contracts Disputes Act); or
    (iii) In the case of non-centralized administrative offsets 
conducted under paragraph (g) of this section, USAID first learns of the 
existence of the amount owed by the debtor when there is insufficient 
time before payment would be made to the debtor/payee to allow for prior 
notice and an opportunity for review. When prior notice and an 
opportunity for review are omitted, USAID shall give the debtor such 
notice and an opportunity for review as soon as practicable and shall 
promptly refund any money ultimately found not to have been owed to the 
USAID.
    (4) When USAID previously has given a debtor any of the required 
notice and review opportunities with respect to a particular debt, USAID 
need not duplicate such notice and review opportunities before 
administrative offset may be initiated.
    (b) Interagency offset. The CFO may offset a debt owed to another 
Federal agency from amounts due or payable by USAID to the debtor, or 
may request another Federal agency to offset a debt owed to USAID. The 
CFO through the FMS cross-servicing arrangement may request the Internal 
Revenue Service to offset an overdue debt from a Federal income tax 
refund due. The FMS may also garnishment the salary of a private sector 
employee where reasonable attempts to obtain payment have failed. 
Interagency offsets from employee's salaries will be made in accordance 
with the procedures contained in Sec. Sec.  213.22 and 213.23.
    (c) Statutory bar to offset. Administrative offset will not be made 
more than 10 years after the Government's right to collect the debt 
first accrued, unless facts material to the Government's right to 
collect the debt were not known and could not have been known through 
the exercise of reasonable care by the officer responsible for 
discovering or collecting the debt. For purposes of offset, the right to 
collect a debt accrues when the appropriate USAID official determines 
that a debt exists (e.g., contracting officer, grant award official, 
etc.), when it is affirmed by an administrative appeal or a court having 
jurisdiction, or when a debtor defaults on a payment agreement, 
whichever is latest. An offset occurs when money payable to the debtor 
is first withheld or when USAID requests offset from money held by 
another agency.
    (d) Alternative repayment. The CFO may, at the CFO's discretion, 
enter into a repayment agreement with the debtor in lieu of offset. In 
deciding whether to accept payment of the debt

[[Page 914]]

by an alternative repayment agreement, the CFO may consider such factors 
as the amount of the debt, the length of the proposed repayment period, 
past Agency dealings with the debtor, documentation submitted by the 
debtor indicating that an offset will cause undue financial hardship, 
and the debtor's financial ability to adhere to the terms of a repayment 
agreement. The CFO may require financial documentation from the debtor 
before considering the repayment arrangement.
    (e) Review of administrative determination of debt's validity. (1) A 
debt will not be offset while a debtor is seeking either formal or 
informal review of the validity of the debt under this section or under 
another statute, regulation or contract. However, interest, penalty and 
administrative costs will continue to accrue during this period, unless 
otherwise waived by the CFO. The CFO may initiate offset as soon as 
practical after completion of review or after a debtor waives the 
opportunity to request review.
    (2) The debtor must provide a written request for review of the 
decision to offset the debt no later than 15 days after the date of the 
notice of the offset unless a different time is specifically prescribed. 
The debtor's request must state the basis for the request for review.
    (3) The CFO may grant an extension of time for filing a request for 
review if the debtor shows good cause for the late filing. A debtor who 
fails timely to file or to request an extension waives the right to 
review.
    (4) The CFO will issue, no later than 60 days after the filing of 
the request, a written final decision based on the evidence, record and 
applicable law.
    (f) Multiple debts. Where moneys are available for offset against 
multiple debts of a debtor, it will be applied in accordance with the 
best interest of the Government as determined by the CFO on a case-by-
case basis.
    (g) Non-centralized administrative offset. (1) Generally, non-
centralized administrative offsets are ad hoc case-by-case offsets that 
creditor agencies conduct, at the agency's discretion, internally or in 
cooperation with the agency certifying or authorizing payments to the 
debtor. Unless otherwise prohibited by law, when centralized 
administrative offset is not available or appropriate, past due, legally 
enforceable nontax delinquent debts may be collected through non-
centralized administrative offset. In these cases, a creditor agency may 
make a request directly to a payment authorizing agency to offset a 
payment due a debtor to collect a delinquent debt.
    (2) Before requesting a payment authorizing agency to conduct a non-
centralized administrative offset, USAID's regulations provides that 
such offsets may occur only after:
    (i) The debtor has been provided due process as set forth in 
paragraph (a) of this section; and
    (ii) The payment authorizing agency has received written 
certification from the creditor agency that the debtor owes the past 
due, legally enforceable delinquent debt in the amount stated, and that 
the creditor agency has fully complied with its regulations concerning 
administrative offset.
    (3) USAID as a payment authorizing agency will comply with offset 
requests by creditor agencies to collect debts owed to the United 
States, unless the offset would not be in the best interests of the 
United States with respect to USAID's program, or would otherwise be 
contrary to law.
    (4) When collecting multiple debts by non-centralized administrative 
offset, USAID will apply the recovered amounts to those debts in 
accordance with the best interests of the United States, as determined 
by the facts and circumstances of the particular case, particularly the 
applicable statute of limitations.
    (h) Requests to OPM to offset a debtor's anticipated or future 
benefit payments under the Civil Service Retirement and Disability Fund. 
Upon providing OPM written certification that a debtor has been afforded 
the procedures provided in paragraph (a) of this section, USAID may 
request OPM to offset a debtor's anticipated or future benefit payments 
under the Civil Service Retirement and Disability Fund (Fund) in 
accordance with regulations codified at 5 CFR 831.1801 through 831.1808. 
Upon receipt of such a request, OPM will identify

[[Page 915]]

and ``flag'' a debtor's account in anticipation of the time when the 
debtor requests, or becomes eligible to receive, payments from the Fund. 
This will satisfy any requirement that offset be initiated prior to the 
expiration of the time limitations referenced in paragraph (a)(4) of 
this section.



Sec.  213.21  Employee salary offset--general.

    (a) Purpose. This section establishes USAID's policies and 
procedures for recovery of debts owed to the United States by 
installment collection from the current pay account of an employee.
    (b) Scope. The provisions of this section apply to collection by 
salary offset under 5 U.S.C. 5514 of debts owed USAID and debts owed to 
other Federal agencies by USAID employees. USAID will make every effort 
reasonably and lawfully possible to administratively collect amounts 
owed by employees prior to initiating collection by salary offset. An 
amount advanced to an employee for per diem or mileage allowances in 
accordance with 5 U.S.C. 5705, but not used for allowable travel 
expenses, is recoverable from the employee by salary offset without 
regard to the due process provisions in Sec.  213.22. This section does 
not apply to debts where collection by salary offset is explicitly 
provided for or prohibited by another statute.
    (c) References. The following statutes and regulations apply to 
USAID's recovery of debts due the United States by salary offset:
    (1) 5 U.S.C. 5514, as amended, governing the installment collection 
of debts;
    (2) 31 U.S.C. 3716, governing the liquidation of debts by 
administrative offset;
    (3) 5 CFR part 550, subpart K, setting forth the minimum 
requirements for executive agency regulations on salary offset; and
    (4) 31 CFR parts 900 through 904, the Federal Claims Collection 
Standards.



Sec.  213.22  Salary offset when USAID is the creditor agency.

    (a) Due process requirements--Entitlement to notice, hearing, 
written response and decision. (1) Prior to initiating collection action 
through salary offset, USAID will first provide the employee with the 
opportunity to pay in full the amount owed, unless such notification 
will compromise the Government's ultimate ability to collect the debt.
    (2) Except as provided in paragraph (b) of this section, each 
employee from whom the Agency proposes to collect a debt by salary 
offset under this section is entitled to receive a written notice as 
described in paragraph (c) of this section.
    (3) Each employee owing a debt to the United States that will be 
collected by salary offset is entitled to request a hearing on the debt. 
This request must be filed as prescribed in paragraph (d) of this 
section. The Agency will make appropriate hearing arrangements that are 
consistent with law and regulations. Where a hearing is held, the 
employee is entitled to a written decision on the following issues:
    (i) The determination of the Agency concerning the existence or 
amount of the debt; and
    (ii) The repayment schedule, if it was not established by written 
agreement between the employee and the Agency.
    (b) Exceptions to due process requirements--pay and allowances. The 
procedural requirements of paragraph (a) of this section are not 
applicable to overpayments of pay or allowances caused by the following:
    (1) Any adjustment of pay arising out of an employee's election of 
coverage or a change in coverage under a Federal benefits program (such 
as health insurance) requiring periodic deductions from pay, if the 
amount to be recovered was accumulated over four pay periods or less. 
However, if the amount to be recovered was accumulated over more than 
four pay periods the full procedures prescribed under paragraph (d) of 
this section will be extended to the employee;
    (2) Routine intra-agency adjustment in pay or allowances that is 
made to correct an overpayment of pay attributable to clerical or 
administrative errors or delays in processing pay documents, if the 
overpayment occurred with the 4 pay periods preceding the adjustment 
and, at the time of such adjustment, or as soon thereafter as practical, 
the employee is provided written

[[Page 916]]

notice of the nature and amount of the adjustment; or
    (3) Any adjustment to collect a debt amounting to $50 or less, if at 
the time of such adjustment, or as soon thereafter as practical, the 
employee is provided written notice of the nature and amount of the 
adjustment.
    (c) Notification before deductions begin. Except as provided in 
paragraph (b) of this section, deductions will not be made unless the 
employee is first provided with a minimum of 30 calendar days written 
notice. Notice will be sent by mail and must include the following:
    (1) The Agency's determination that a debt is owed, including the 
origin, nature, and amount of the debt;
    (2) The Agency's intention to collect the debt by means of 
deductions from the employee's current disposable pay account;
    (3) The amount, frequency, proposed beginning date and duration of 
the intended deductions. (The proposed beginning date for salary offset 
cannot be earlier than 30 days after the date of notice, unless this 
would compromise the Government's ultimate ability to resolve the debt);
    (4) An explanation of the requirements concerning interest, penalty 
and administrative costs;
    (5) The employee's right to inspect and copy all records relating to 
the debt or to request and receive a copy of such records;
    (6) If not previously provided, the employee's right to enter into a 
written agreement for a repayment schedule differing from that proposed 
by the Agency where the terms of the proposed repayment schedule are 
acceptable to the Agency. (Such an agreement must be in writing and 
signed by both the employee and the appropriate USAID official and will 
be included in the debt file);
    (7) The right to a hearing conducted by a hearing official not under 
the control of USAID, if a request is filed;
    (8) The method and time for requesting a hearing;
    (9) That the filing of a request for hearing within 15 days of 
receipt of the original notification will stay the assessment of 
interest, penalty and administrative costs and the commencement of 
collection proceedings;
    (10) That a final decision on the hearing (if requested) will be 
issued at the earliest practical date, but no later than 60 days after 
the filing of the request, unless the employee requests and the hearing 
official grants a delay in the proceedings;
    (11) That any knowingly false or frivolous statements, 
representations or evidence may subject the employee to--
    (i) Disciplinary procedures under 5 U.S.C. chapter 75 or any other 
applicable statutes or regulations;
    (ii) Criminal penalties under 18 U.S.C. 286, 287, 1001 and 1002 or 
other applicable statutory authority; or
    (iii) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or 
any other applicable statutory authority;
    (12) Any other rights and remedies available to the employee under 
statutes or regulations governing the program for which the collection 
is being made; and
    (13) Unless there are applicable contractual or statutory provisions 
to the contrary, amounts paid or deducted for the debt which are later 
waived or found not owed to the United States will be promptly refunded 
to the employee.
    (d) Request for hearing. An employee may request a hearing by filing 
a written, signed request directly with the Deputy Chief Financial 
Office, M/FM, United States Agency for International Development, Ronald 
Reagan Building, 1300 Pennsylvania Avenue NW., Washington, DC 20523-
4601. The request must state the basis upon which the employee disputes 
the proposed collection of the debt. The request must be signed by the 
employee and be received by USAID within 15 days of the employee's 
receipt of the notification of proposed deductions. The employee should 
submit in writing all facts, evidence and witnesses that support his/her 
position to the Deputy Chief Financial Officer within 15 days of the 
date of the request for a hearing. The Deputy Chief Financial Officer 
will arrange for the services of a hearing official not under the 
control of USAID and will provide the hearing official with all 
documents relating to the claim.

[[Page 917]]

    (e) Requests for hearing made after time expires. Late requests for 
a hearing may be accepted if the employee can show that the delay in 
filing the request for a hearing was due to circumstances beyond the 
employee's control.
    (f) Form of hearing, written response and final decision. (1) 
Normally, a hearing will consist of the hearing official making a 
decision based upon a review of the claims file and any materials 
submitted by the debtor. However, in instances where the hearing 
official determines that the validity of the debt turns on an issue of 
veracity or credibility which cannot be resolved through review of 
documentary evidence, the hearing official at his discretion may afford 
the debtor an opportunity for an oral hearing. Such oral hearings will 
consist of an informal conference before a hearing official in which the 
employee and the Agency will be given the opportunity to present 
evidence, witnesses and argument. If desired, the employee may be 
represented by an individual of his/her choice. The Agency shall 
maintain a summary record of oral hearings provided under the procedures 
in this section.
    (2) Written decisions provided after a request for hearing will, at 
a minimum, state the facts evidencing the nature and origin of the 
alleged debt; and the hearing official's analysis, findings and 
conclusions.
    (3) The decision of the hearing official is final and binding on the 
parties.
    (g) Request for waiver. In certain instances, an employee may have a 
statutory right to request a waiver of overpayment of pay or allowances, 
e.g., 5 U.S.C. 5584 or 5 U.S.C. 5724(i). When an employee requests 
waiver consideration under a right authorized by statute, further 
collection on the debt will be suspended until a final administrative 
decision is made on the waiver request. However, where it appears that 
the Government's ability to recover the debt may be adversely affected 
because of the employee's resignation, termination or other action, 
suspension of recovery is not required. During the period of the 
suspension, interest, penalty charges and administrative costs will not 
be assessed against the debt. The Agency will not duplicate, for 
purposes of salary offset, any of the procedures already provided the 
debtor under a request for waiver.
    (h) Method and source of collection. A debt will be collected in a 
lump sum or by installment deductions at established pay intervals from 
an employee's current pay account, unless the employee and the Agency 
agree to alternative arrangements for payment. The alternative payment 
schedule must be in writing, signed by both the employee and the CFO and 
will be documented in the Agency's files.
    (i) Limitation on amount of deduction. The size and frequency of 
installment deductions generally will bear a reasonable relation to the 
size of the debt and the employee's ability to pay. However, the amount 
deducted for any period may not exceed 15 percent of the disposable pay 
from which the deduction is made, unless the employee has agreed in 
writing to the deduction of a greater amount. If possible, the 
installment payments will be in amounts sufficient to liquidate the debt 
in three years or less. Installment payments of less than $50 normally 
will be accepted only in the most unusual circumstances.
    (j) Duration of deduction. If the employee is financially unable to 
pay a debt in a lump sum or the amount of the debt exceeds 15 percent of 
disposable pay, collection will be made in installments. Installment 
deductions will be made over the period of active duty or employment 
except as provided in paragraph (a)(1) of this section.
    (k) When deductions may begin. (1) Deductions to liquidate an 
employee's debt will begin on the date stated in the Agency's Bill for 
Collection or demand letter notice of intention to collect from the 
employee's current pay unless the debt has been repaid or the employee 
has filed a timely request for hearing on issues for which a hearing is 
appropriate.
    (2) If the employee has filed a timely request for hearing with the 
Agency, deductions will begin after the hearing official has provided 
the employee with a final written decision indicating the amount owed 
the Government. Following the decision by the hearing official, the 
employee will be given 30 days

[[Page 918]]

to repay the amount owed prior to collection through salary offset, 
unless otherwise provided by the hearing official.
    (l) Liquidation from final check. If the employee retires, resigns, 
or the period of employment ends before collection of the debt is 
completed, the remainder of the debt will be offset from subsequent 
payments of any nature due the employee (e.g., final salary payment, 
lump-sum leave, etc.).
    (m) Recovery from other payments due a separated employee. If the 
debt cannot be liquidated by offset from any final payment due the 
employee on the date of separation, USAID will liquidate the debt, where 
appropriate, by administrative offset from later payments of any kind 
due the former employee (e.g., retirement pay). Such administrative 
offset will be taken in accordance with the procedures set forth in 
Sec.  213.20.
    (n) Interest, penalty and administrative cost. USAID will assess 
interest, penalties and administrative costs on debts collected under 
the procedures in this section. Interest, penalty and administrative 
costs will continue to accrue during the period that the debtor is 
seeking either formal or informal review of the debt or requesting a 
waiver. The following guidelines apply to the assessment of these costs 
on debts collected by salary offset:
    (1) Interest will be assessed on all debts not collected by the 
payment due date specified in the bill for collection or demand letter. 
USAID will waive the collection of interest and administrative charges 
on the portion of the debt that is paid within 30 days after the date on 
which interest begins to accrue.
    (2) Administrative costs will be assessed if the debt is referred to 
Treasury for cross-servicing.
    (3) Deductions by administrative offset normally begin prior to the 
time for assessment of a penalty. Therefore, a penalty charge will not 
be assessed unless deductions occur more than 90 days from the due date 
in the bill for collection or demand letter.
    (o) Non-waiver of right by payment. An employee's payment under 
protest of all or any portion of a debt does not waive any rights that 
the employee may have under either the procedures in this section or any 
other provision of law.
    (p) Refunds. USAID will promptly refund to the employee amounts paid 
or deducted pursuant to this section, the recovery of which is 
subsequently waived or otherwise found not owing to the United States. 
Refunds do not bear interest unless specifically authorized by law.
    (q) Time limit for commencing recovery by salary setoff. USAID will 
not initiate salary offset to collect a debt more than 10 years after 
the Government's right to collect the debt first accrued, unless facts 
material to the right to collect the debt were not known and could not 
have been known through the exercise of reasonable care by the 
Government official responsible for discovering and collecting such 
debts.



Sec.  213.23  Salary offset when USAID is not the creditor agency.

    (a) USAID will use salary offset against one of its employees that 
is indebted to another agency if requested to do so by that agency. Such 
a request must be accompanied by a certification by the requesting 
agency that the person owes the debt (including the amount) and that the 
procedural requirements of 5 U.S.C. 5514 and 5 CFR part 550, subpart K, 
have been met. The creditor agency must also advise USAID of the number 
of installments to be collected, the amount of each installment, and the 
commencement date of the first installment, if a date other than the 
next established pay period.
    (b) Requests for salary offset must be sent to the Chief Financial 
Officer, Office of Financial Management (M/FM), United States Agency for 
International Development, Ronald Reagan Building , 1300 Pennsylvania 
Avenue NW., Washington, DC 20523-4601.
    (c) Processing of the claim by USAID--(1) Incomplete claims. If 
USAID receives an improperly completed request, the requesting 
(creditor) agency will be requested to supply the required information 
before any salary offset can be taken.
    (2) Complete claims. If the claim procedures in paragraph (a) of 
this section

[[Page 919]]

have been properly completed, deduction will begin on the next 
established pay period. USAID will not review the merits of the creditor 
agency's determinations with respect to the amount or validity of the 
debt as stated in the debt claim form. USAID will not assess a handling 
or any other related charge to cover the cost of its processing the 
claim.
    (d) Employees separating from USAID before a debt to another agency 
is collected--(1) Employees separating from Government service. If an 
employee begins separation action before USAID collects the total debt 
due the creditor agency, the following actions will be taken:
    (i) To the extent possible, the balance owed the creditor agency 
will be liquidated from subsequent payments of any nature due the 
employee from USAID in accordance with Sec.  213.22;
    (ii) If the total amount of the debt cannot be recovered, USAID will 
certify to the creditor agency and the employee the total amount of 
USAID's collection; and
    (iii) If USAID is aware that the employee is entitled to payments 
from the Civil Service Retirement and Disability Fund, the Foreign 
Service Retirement Fund, or other similar payments, it will provide such 
information to the creditor agency so that it can file a certified claim 
against the payments.
    (2) Employees who transfer to another Federal agency. If an USAID 
employee transfers to another Federal agency before USAID collects the 
total amount due the creditor agency, USAID will certify the total 
amount of the collection made on the debt. It is the responsibility of 
the creditor agency to ensure that the collection is resumed by the new 
employing agency.



                      Subpart D_Compromise of Debts



Sec.  213.24  General.

    USAID may compromise claims for money or property where the 
principal balance of a claim, exclusive of interest, penalty and 
administrative costs, does not exceed $100,000. Where the claim exceeds 
$100,000, the authority to accept the compromise rests solely with DOJ. 
The CFO may reject an offer of compromise in any amount. Where the claim 
exceeds $100,000 and USAID recommends acceptance of a compromise offer, 
it will refer the claim with its recommendation to DOJ for approval. The 
referral will be in the form of the Claims Collection Litigation Report 
(CCLR) and will outline the basis for USAID's recommendation. USAID 
refers compromise offers for claims in excess of $100,000 to the 
Commercial Litigation Branch, Civil Division, Department of Justice, 
Washington, DC 20530, unless otherwise provided by Department of Justice 
delegations or procedures



Sec.  213.25  Standards for compromise.

    (a) USAID may compromise a claim pursuant to this section if USAID 
cannot collect the full amount because the debtor does not have the 
financial ability to pay the full amount of the debt within a reasonable 
time, or the debtor refuses to pay the claim in full and the Government 
does not have the ability to enforce collection in full within a 
reasonable time by enforced collection proceedings. In evaluating the 
acceptability of the offer, the CFO may consider, among other factors, 
the following:
    (1) Age and health of the debtor;
    (2) Present and potential income;
    (3) Inheritance prospects;
    (4) The possibility that assets have been concealed or improperly 
transferred by the debtor;
    (5) The availability of assets or income which may be realized by 
enforced collection proceedings; or
    (6) The applicable exemptions available to the debtor under State 
and Federal law in determining the Government's ability to enforce 
collection.
    (b) USAID may compromise a claim, or recommend acceptance of a 
compromise to DOJ, where there is significant doubt concerning the 
Government's ability to prove its case in court for the full amount of 
the claim, either because of the legal issues involved or a bona fide 
dispute as to the facts. The amount accepted in compromise in such cases 
will fairly reflect the probability of prevailing on the legal issues 
involved, considering fully the availability of witnesses and other 
evidentiary data required to support

[[Page 920]]

the Government's claim. In determining the litigative risks involved, 
USAID will give proportionate weight to the likely amount of court costs 
and attorney fees the Government may incur if it is unsuccessful in 
litigation.
    (c) USAID may compromise a claim, or recommend acceptance of a 
compromise to DOJ, if the cost of collection does not justify the 
enforced collection of the full amount of the debt. The amount accepted 
in compromise in such cases may reflect an appropriate discount for the 
administrative and litigative costs of collection, taking into 
consideration the time it will take to effect collection. Costs of 
collection may be a substantial factor in the settlement of small 
claims, but normally will not carry great weight in the settlement of 
large claims. In determining whether the cost of collection justifies 
enforced collection of the full amount, USAID may consider the positive 
effect that enforced collection of the claim may have on the collection 
of other similar claims.
    (d) To assess the merits of a compromise offer, USAID may obtain a 
current financial statement from the debtor, executed under penalty of 
perjury, showing the debtor's assets, liabilities, income and expense.
    (e) Statutory penalties, forfeitures or debts established as an aid 
to enforcement and to compel compliance may be compromised where the CFO 
determines that the Agency's enforcement policy, in terms of deterrence 
and securing compliance (both present and future), will be adequately 
served by accepting the offer.



Sec.  213.26  Payment of compromised claims.

    The CFO normally will not approve a debtor's request to pay a 
compromised claim in installments. However, where the CFO determines 
that payment of a compromise by installments is necessary to effect 
collection, a debtor's request to pay in installments may be approved.



Sec.  213.27  Joint and several liability.

    When two or more debtors are jointly and severally liable, 
collection action will not be withheld against one debtor until the 
other or others pay their proportionate share. The amount of a 
compromise with one debtor is not precedent in determining compromises 
from other debtors who have been determined to be jointly and severally 
liable on the claim.



Sec.  213.28  Execution of releases.

    Upon receipt of full payment of a claim or the amount compromised, 
USAID will prepare and execute a release on behalf of the United States. 
In the event a mutual release is not executed when a debt is 
compromised, unless prohibited by law, the debtor is still deemed to 
have waived any and all claims and causes of action against USAID and 
its officials related to the transaction giving rise to the compromised 
debt.



        Subpart E_Suspension or Termination of Collection Action



Sec.  213.29  Suspension--general.

    The CFO may suspend or terminate the Agency's collection actions on 
a debt where the outstanding debt principal does not exceed $100,000. 
Unless otherwise provided by DOJ delegations or procedures, the CFO 
refers requests for suspension of debts exceeding $100,000 to the 
Commercial Litigation Branch, Civil Division, Department of Justice, for 
approval. If prior to referral to DOJ, USAID determines that a debt is 
plainly erroneous or clearly without legal merit, the agency may 
terminate collection activity regardless of the amount involved without 
obtaining DOJ concurrence. The CFO may waive the assessment of interest, 
penalty charges and administrative costs during the period of the 
suspension. Suspension will be for an established time period and 
generally will be reviewed at least every six months to ensure the 
continued propriety of the suspension.



Sec.  213.30  Standards for suspension.

    (a) The CFO may suspend collection action on a debt when:
    (1) The debtor cannot be located;
    (2) The debtor's financial condition is expected to improve; or
    (3) The debtor has requested a waiver or review of the debt.

[[Page 921]]

    (b) Based on the current financial condition of the debtor, the CFO 
may suspend collection activity on a debt when the debtor's future 
prospects justify retention of the claim for periodic review, and:
    (1) The applicable statute of limitations has not expired; or
    (2) Future collection can be effected by offset, notwithstanding the 
10-year statute of limitations for administrative offsets; or
    (3) The debtor agrees to pay interest on the debt and suspension is 
likely to enhance the debtor's ability to fully pay the principal amount 
of the debt with interest at a later date.
    (c) The CFO will suspend collection activity during the time 
required for waiver consideration or administrative review prior to 
agency collection of a debt if the statute under which the request is 
sought prohibits USAID from collecting the debt during that time. The 
CFO will ordinarily suspend collection action during the pendency of his 
consideration of a waiver request or administrative review where statute 
and regulation preclude refund of amounts collected by the Agency should 
the debtor prevail.
    (d) The CFO may suspend collection activities on debts of $100,000 
or less during the pendency of a permissive waiver or administrative 
review when there is no statutory requirement where he determines that:
    (1) There is a reasonable possibility that waiver will be granted 
and the debtor may be found not owing the debt (in whole or in part);
    (2) The Government's interest is protected, if suspension is 
granted, by the reasonable assurance that the debt can be recovered if 
the debtor does not prevail; or
    (3) Collection of the debt will cause undue hardship to the debtor.
    (e) The CFO will decline to suspend collection where he determines 
that the request for waiver or administrative review is frivolous or was 
made primarily to delay collection.



Sec.  213.31  Termination--general.

    The CFO may terminate collection actions including accrued interest, 
penalty and administrative costs, where the debt principal does not 
exceed $100,000. If the debt exceeds $100,000, USAID obtains the 
approval of DOJ in order to terminate further collection actions. Unless 
otherwise provided for by DOJ regulations or procedures, requests to 
terminate collection on debts in excess of $100,000 are referred to the 
Commercial Litigation Branch, Civil Division, Department of Justice, for 
approval.



Sec.  213.32  Standards for termination.

    A debt may be terminated where the CFO determines that:
    (a) The Government cannot collect or enforce collection of any 
significant sum from the debtor, having due regard for available 
judicial remedies, the debtor's ability to pay, and the exemptions 
available to the debtor under State and Federal law;
    (b) The debtor cannot be located, there is no security remaining to 
be liquidated, and the prospects of collecting by offset are too remote 
to justify retention of the claim;
    (c) The cost of further collection action is likely to exceed the 
amount recoverable;
    (d) The claim is determined to be legally without merit or 
enforcement of the debt is barred by any applicable statute of 
limitations;
    (e) The evidence necessary to prove the claim cannot be produced or 
the necessary witnesses are unavailable and efforts to induce voluntary 
payment have failed; or
    (f) The debt against the debtor has been discharged in bankruptcy.



Sec.  213.33  Permitted actions after termination of collection activity.

    Termination of collection activity ceases active collection of the 
debt. Termination does not preclude the agency from retaining a record 
of the account for purposes of:
    (a) Selling the debt if the CFO determines that such sale is in the 
best interests of USAID;
    (b) Pursuing collection at a subsequent date in the event there is a 
change in the debtor's status or a new collection tool becomes 
available;
    (c) Offsetting against future income or assets not available at the 
time of termination of collection activity; or

[[Page 922]]

    (d) Screening future applicants for prior indebtedness.



Sec.  213.34  Debts that have been discharged in bankruptcy.

    USAID generally terminates collection activity on a debt that has 
been discharged in bankruptcy regardless of the amount. USAID may 
continue collection activity, however, subject to the provisions of the 
Bankruptcy Code for any payments provided under a plan of 
reorganization. The CFO will seek legal advice by the General Counsel's 
office if he believes that any claims or offsets may have survived the 
discharge of a debtor.



     Subpart F_Discharge of Indebtedness and Reporting Requirements



Sec.  213.35  Discharging indebtedness--general.

    Before discharging a delinquent debt (also referred to as a close 
out of the debt), USAID will make a determination that collection action 
is no longer warranted and request that litigation counsel release any 
liens of record securing the debt. Discharge of indebtedness is distinct 
from termination or suspension of collection activity and is governed by 
the Internal Revenue Code. When collection action on a debt is suspended 
or terminated, the debt remains delinquent and further collection action 
may be pursued at a later date in accordance with the standards set 
forth in this part. When a debt is discharged in full or in part, 
further collection action is prohibited and USAID must terminate debt 
collection action.



Sec.  213.36  Reporting to IRS.

    Upon discharge of an indebtedness, USAID will report the discharge 
to the IRS in accordance with the requirements of 26 U.S.C. 6050P and 26 
CFR 1.6050P-1. USAID may request FMS to file such a discharge report to 
the IRS on the agency's behalf.



            Subpart G_Referrals to the Department of Justice



Sec.  213.37  Referrals to the Department of Justice.

    (a) The CFO, through the FMS cross-servicing agreement and by direct 
action, refers to DOJ for litigation all claims on which aggressive 
collection actions have been taken but which could not be collected, 
compromised, suspended or terminated. Referrals are made as early as 
possible, consistent with aggressive agency collection action, and 
within the period for bringing a timely suit against the debtor. Unless 
otherwise provided by DOJ regulations or procedures, USAID refers for 
litigation debts of more than $2,500 but less than $1,000,000 to the 
Department of Justice's Nationwide Central Intake Facility as required 
by the Claims Collection Litigation Report (CCLR) instructions. Debts of 
over $1,000,000 shall be referred to the Civil Division at the 
Department of Justice.
    (b) The CFO will clearly indicate on the CCLR the actions the DOJ 
should take on the referred claim.



Subpart H_Mandatory Transfer of Delinquent Debt to Financial Management 
               Service (FMS) of the Department of Treasury



Sec.  213.38  Mandatory transfer of debts to FMS--general.

    (a) USAID's procedures call for transfer of legally enforceable debt 
to FMS 90 days after the Bill for Collection or demand letter is issued. 
A debt is legally enforceable if there has been a final agency 
determination that the debt, in the amount stated, is due and there are 
no legal bars to collection action. A debt is not considered legally 
enforceable for purposes of mandatory transfer to FMS if a debt is the 
subject of a pending administrative review process required by statute 
or regulation and collection action during the review process is 
prohibited.
    (b) Except as set forth in paragraph (a) of this section, USAID will 
transfer any debt covered by this part that is more than 180 days 
delinquent to FMS for debt collection services. A debt is

[[Page 923]]

considered 180 days delinquent for purposes of this section if it is 180 
days past due and is legally enforceable.



Sec.  213.39  Exceptions to mandatory transfer.

    USAID is not required to transfer a debt to FMS pursuant to Sec.  
213.37(b) during such period of time that the debt:
    (a) Is in litigation or foreclosure;
    (b) Is scheduled for sale;
    (c) Is at a private collection contractor;
    (d) Is at a debt collection center if the debt has been referred to 
a Treasury-designated debt collection center;
    (e) Is being collected by internal offset; or
    (f) Is covered by an exemption granted by Treasury



PART 214_ADVISORY COMMITTEE MANAGEMENT--Table of Contents



                            Subpart A_General

Sec.
214.1 Purpose.
214.2 Definition of advisory committee.
214.3 A.I.D. Advisory Committee Management Officer.

             Subpart B_Establishment of Advisory Committees

214.11 Establishment and chartering requirements.
214.12 Considerations in membership selection.
214.13 Responsibilities within A.I.D.
214.14 Charter revision.
214.15 Changes in membership.

        Subpart C_Termination and Renewal of Advisory Committees

214.21 Termination and renewal provisions.
214.22 Responsibilities within A.I.D.

               Subpart D_Operation of Advisory Committees

214.31 A.I.D. Advisory Committee Representative.
214.32 Calling of advisory committee meetings.
214.33 Notice of meetings.
214.34 Public participation.
214.35 Minutes of meetings.
214.36 Records of advisory committees.
214.37 Public access to committee records.
214.38 Submission of reports to the Library of Congress.

             Subpart E_Administration of Advisory Committees

214.41 Support services.
214.42 Uniform pay guidelines.
214.43 Agency records.
214.44 Annual review and reports.

                    Subpart F_Administrative Remedies

214.51 Administrative review of denial for public access to records.
214.52 Administrative review of other alleged non-compliance.

    Authority: Section 621, Foreign Assistance Act of 1961, as amended 
(22 U.S.C. 2381); sec. 8(a), Federal Advisory Committee Act, Pub. L. 92-
463; and Executive Order 11769.

    Source: 40 FR 33205, Aug. 7, 1975, unless otherwise noted.



                            Subpart A_General



Sec.  214.1  Purpose.

    The regulations in this part prescribe administrative guidelines and 
management controls for A.I.D. advisory committees. Federal Advisory 
Committees are governed by the provisions of the Federal Advisory 
Committee Act, Pub. L. 92-463 (effective January 5, 1973, hereinafter 
referred to as the Act); Executive Order No. 11769 (February 21, 1974) 
entitled ``Committee Management;'' OMB Circular A-63 (March 27, 1974, as 
amended).



Sec.  214.2  Definition of advisory committee.

    (a) The term advisory committee is defined in section 3(2) of the 
Act.
    (b) In general, this definition includes any committee, board, 
commission, council, conference, panel, task force, or other similar 
group, or any subcommittee or sub-group thereof, which is formed or 
utilized by the Agency for obtaining advice or recommendations, and 
which is not composed wholly of full-time Federal employees.



Sec.  214.3  A.I.D. Advisory Committee Management Officer.

    The Advisory Committee Management Officer is responsible to the 
Administrator for the establishment of uniform administrative guidelines 
and management controls which must be

[[Page 924]]

consistent with directives of the Director of the OMB under sections 7 
and 10 of the Act.



             Subpart B_Establishment of Advisory Committees



Sec.  214.11  Establishment and chartering requirements.

    Provisions governing the establishment and chartering of Advisory 
Committees are contained in section 9 of the Act and paragraph 6 of OMB 
Circular A-63. In summary, these requirements include the following:
    (a) Where establishment of an Advisory Committee is not specifically 
authorized by statute or by the President, the need for a new A.I.D. 
advisory committee is determined by the A.I.D. Administrator, in 
accordance with the guidelines set forth in section 5(b) of the Act. The 
determination also includes a certification that creation of the 
Committee is in the public interest and a description of the nature and 
purpose of the Committee.
    (b) After written consultation to the OMB Secretariat and 
notification that the establishment of the Committee would be in accord 
with the Act, A.I.D. publishes the Administrator's Determination in the 
Federal Register at least fifteen (15) days prior to the filing of the 
Committee's Charter.
    (c) Each advisory committee established or used by A.I.D. is 
required to file a charter with the A.I.D. Administrator, the House 
International Relations Committee, and the Senate Foreign Relations 
Committee, before meeting or taking any action.
    (d) Advisory committee charters shall include the following 
information:
    (1) Committee's official title;
    (2) Committee's objectives and scope of activity;
    (3) Period of time necessary for the committee to carry out its 
purposes;
    (4) Agency official to whom the committee reports;
    (5) Agency responsible for providing necessary support for the 
committee;
    (6) Description of duties for which the committee is responsible, 
and, if such duties are not solely advisory, a specification of the 
authority for such functions;
    (7) Estimated annual operating costs in dollars and man-years for 
the committee;
    (8) Estimated number and frequency of committee meetings;
    (9) Committee's termination date; and
    (10) Date the charter is filed.
    (e) A copy of the charter is required to be sent to the Library of 
Congress, Exchange and Gift Division, Federal Advisory Committee Desk, 
Washington, DC 20540.

[40 FR 33205, Aug. 7, 1975, as amended at 40 FR 54777, Nov. 26, 1975]



Sec.  214.12  Considerations in membership selection.

    Membership is to be fairly balanced in terms of points of view 
represented and functions to be performed. Appropriate attention is also 
given to factors of sex, race, creed, national origin, and religion.



Sec.  214.13  Responsibilities within A.I.D.

    (a) The A.I.D. Office or Bureau seeking establishment of a new 
A.I.D. advisory committee:
    (1) Justifies the need for the advisory committee to the 
satisfaction of the A.I.D. Advisory Committee Management Officer, the 
A.I.D. Administrator, and the OMB Secretariat.
    (2) Prepares, clears with the Advisory Committee Management Officer 
and the General Counsel, and submits to the Administrator all 
documentation necessary to establish or use the advisory committee.
    (b) The Advisory Committee Management Officer with assistance as 
appropriate from the General Counsel and the Office of Legislative 
Affairs:
    (1) Appraises the need for the proposed advisory committee;
    (2) Assures that the requirements of the Act and OMB guidelines have 
been followed;
    (3) If satisfied with paragraphs (b) (1) and (2) of this section, 
clears the proposal for submission to the Administrator and obtains OMB 
concurrence in Agency actions to establish advisory committees;
    (4) Maintains the agency file of approved charters and formal 
determinations;

[[Page 925]]

    (5) Publishes approved charters in the Agency's internal directives 
system;
    (6) Reviews proposed committee membership for compliance with legal 
requirements, including conflict of interest;
    (7) Assures publication of the Administrator's formal determinations 
in the Federal Register; and
    (8) Transmits approved advisory committee charters to the House 
International Relations Committee, the Senate Foreign Relations 
Committee, and the Library of Congress.

[40 FR 33205, Aug. 7, 1975, as amended at 40 FR 54778, Nov. 26, 1975]



Sec.  214.14  Charter revision.

    (a) Sponsoring A.I.D. Bureaus and Offices initiate revisions to 
advisory committee charters, as necessary, to reflect current 
information regarding scope, duties, etc.
    (b) Charter revision requires clearances by the advisory committee, 
the A.I.D. Advisory Committee Management Officer and the General 
Counsel; consultation with OMB; approval by the A.I.D. Administrator, 
and notification of the change to the Federal Register, Congressional 
committees, and the Library of Congress.



Sec.  214.15  Changes in membership.

    Changes in membership of advisory committees are proposed by the 
Bureau of Office through which the committee reports, are cleared by the 
Advisory Committee Management Officer and the Office of the General 
Counsel, and are approved by the A.I.D. Administrator.



        Subpart C_Termination and Renewal of Advisory Committees



Sec.  214.21  Termination and renewal provisions.

    Provisions governing the termination and renewal of advisory 
committees are contained in section 14 of the Act and paragraph 7 of OMB 
Circular A-63, as amended. As related to A.I.D.-established non-
statutory committees, these provisions mean that:
    (a) Each such committee which was in existence on January 5, 1973, 
shall terminate by January 5, 1975, unless it is renewed by the A.I.D. 
Administrator prior to the latter date.
    (b) Each such committee established after January 5, 1973, shall 
terminate not later than two years after its establishment, unless it is 
renewed by the A.I.D. Administrator prior to its termination date.
    (c) Any committee which is renewed shall continue for not more than 
two years unless, prior to the expiration of that period, it is renewed.
    (d) Renewal requires advance approval of the Administrator in 
accordance with section 5(c) which requires application of the criteria 
set forth in section 5(b) of the Act; notification to the OMB 
Secretariat not more than sixty (60) days nor less than thirty (30) days 
before the expiration date, and concurrence by the Secretariat; 
publication of a notice of the renewal; and the filing of a new advisory 
committee charter with the appropriate House and Senate Committees and 
to the Library of Congress.
    (e) Notification to the OMB Secretariat shall include:
    (1) The A.I.D. Administrator's determination that renewal is 
necessary and is in the public interest;
    (2) The reasons for his determination;
    (3) The Agency's plan to attain or maintain balanced membership of 
the committee; and
    (4) An explanation of why the committee's functions cannot be 
performed by the Agency or by an existing advisory committee.



Sec.  214.22  Responsibilities within A.I.D.

    Responsibilities within A.I.D. for the renewal of advisory 
committees are as follows:
    (a) The Office or Bureau through which the advisory committee 
reports: prepares, clears with the Advisory Committee Management Officer 
and the General Counsel, and submits to the Administrator all 
documentation necessary for committee renewal sixty-five (65) days prior 
to the expiration date of the Committee.
    (b) The Office of General Counsel assists in the preparation of 
charters; reviews and clears the proposal for conformity with the Act 
and other requirements; and assures publication of

[[Page 926]]

the Administrator's determination of renewal in the Federal Register.
    (c) The Office of Legislative Affairs transmits approved advisory 
committee charters to the House and Senate Committees and to the Library 
of Congress.



               Subpart D_Operation of Advisory Committees



Sec.  214.31  A.I.D. Advisory Committee Representative.

    (a) For each advisory committee used by A.I.D., the Administrator 
designates an A.I.D., employee to serve as the A.I.D. Advisory Committee 
Representative.
    (b) The designated A.I.D. employee performs functions required by 
section 10 of the Act and assigned herein. Such functions include:
    (1) Calling, or giving advance approval to, advisory committee 
meetings;
    (2) Approving an agenda for each meeting;
    (3) Making recommendations on proposals to close meetings, or parts 
of meetings, to the public; and clearing such recommendation with the 
Advisory Committee Management Officer and the General Counsel for 
decisions by the Administrator;
    (4) Assuring that advance notices of each meeting (whether open or 
closed) are published in the Federal Register, provided through other 
means such as press releases and direct mail, and provided to the 
Advisory Committee Management Officer.
    (5) Assuring that open meetings are accessible to the public;
    (6) As specified by the Administrator, chairing or attending each 
meeting;
    (7) Determining the number of committee members necessary to be 
present at any meeting for the transaction of committee business;
    (8) Adjourning any meeting, whenever he determines adjournment to be 
in the public interest;
    (9) Assuring that minutes are kept of each advisory committee 
meeting and of the meetings of sub-committees and sub-groups, and that 
such minutes are certified for accuracy by the chairman or presiding 
officer of the committee; and
    (10) Assuring that, subject to section 552 of title 5 United States 
Code, the documents of the advisory committee are made available for 
public inspection and copying.
    (11) Maintaining a current list of members of the advisory 
committee, and furnishing membership information to the A.I.D. Advisory 
Committee Management Officer on request.



Sec.  214.32  Calling of advisory committee meetings.

    (a) No advisory committee is to hold any meetings except at the 
call, or with the advance approval, of the designated A.I.D. Advisory 
Committee Representative.
    (b) Each advisory committee meeting is conducted in accordance with 
an agenda approved by the designated A.I.D. Advisory Committee 
Representative.
    (1) The agenda lists the matters to be considered at the meeting and 
indicates whether any portion of the meeting is to be closed to the 
public in accordance with subsection (c) of section 552(b) of title 5, 
United States Code.
    (2) Copies of the agenda are distributed to members of the committee 
prior to the date of the meeting and are included in the official 
records of the Advisory Committee.

[40 FR 33205, Aug. 7, 1975, as amended at 42 FR 26975, May 26, 1977]



Sec.  214.33  Notice of meetings.

    (a) Notice of each advisory committee meeting (whether the meeting 
is open or closed) shall be published in the Federal Register at least 
fifteen (15) days before the date of the meeting, and should also be 
provided through other means such as newspaper advertisements, press 
releases, and direct mail.
    (1) Exceptions to the requirement for public notice are granted only 
for reasons of national security as determined by the Director, OMB and 
are requested and justified by the Administrator, A.I.D. at least thirty 
(30) days prior to the meeting.
    (2) Exceptions to the fifteen (15) day advance publication 
requirement are granted in emergency situations as determined by the 
Administrator, A.I.D. In such situations, the facts on which

[[Page 927]]

exception is based are to be included in the Notice of the meeting.
    (3) Requests for exceptions under paragraphs (a) (1) and (2) of this 
section are prepared by the Advisory Committee Representative and are 
cleared by the Advisory Committee Management Officer and the General 
Counsel prior to submission to the Administrator.
    (b) Notices include the name of the advisory committee; the time of 
the meeting; the purposes of the meeting; a statement regarding the 
extent to which the public will be permitted to attend and, if any 
portion is closed, why such closure or partial closure is necessary, 
including citation of the appropriate exemption permitted under 
subsection (c) of 5 U.S.C. 552b. Thus, A.I.D. Notices of Advisory 
Committee meetings normally state that the meeting is open to the public 
and include the place of the meeting; and instructions for gaining 
access to open meetings which are held in a ``secured'' building.
    (c) Both formal and informal notices are prepared by the A.I.D. 
Advisory Committee Representative; formal notices to be published in the 
Federal Register are cleared with the Advisory Committee Management 
Officer and are sent to the Office of the General Counsel at least 
thirty-two (32) days before the scheduled meeting date.
    (d) Copies of all public notices are provided to the Advisory 
Committee Management Officer.

[40 FR 33205, Aug. 7, 1975, as amended at 40 FR 54778, Nov. 26, 1975; 42 
FR 26975, May 26, 1977]



Sec.  214.34  Public participation.

    (a) Each advisory committee meeting is to be open to the public 
except where:
    (1) The Director, OMB, has determined that public notice of a 
meeting would be inconsistent with national security; or
    (2) The Administrator, AID, has formally determined that a meeting, 
or portion of a meeting may be closed to the public in accordance with 
subsection (c) of section 552b of title 5, United States Code.
    (b) Advisory committee requests to close all or part of a meeting or 
a series of meetings are to include the reasons for proposed closure, 
citing specific exceptions involved under subsection (c) of section 552b 
of Title 5, United States Code. Such requests are submitted by the AID 
Advisory Committee Representative, through the Advisory Committee 
Management Officer and the General Counsel to the Administrator at least 
forty (40) days before the scheduled date of the meeting.
    (c) The Administrator's determination is to be in writing and is to 
contain a brief statement of the reasons for closing the meeting (or 
portion thereof). The determination itself is to be made available to 
the public on request.
    (d) When all or part of an advisory committee meeting is closed and 
detailed minutes are not to be made available in their entirety to the 
public, the Committee shall prepare and make available to the public 
within thirty (30) days of the close of the meeting a summary of its 
activities and related matters which are informative to the public 
consistent with the policy of 5 U.S.C. 552(b). Notice of availability of 
such a summary shall be incorporated in the notice of the meeting 
published in the Federal Register.
    (e) To facilitate public participation in advisory committee 
meetings which are to be open or partially open to the public:
    (1) Meetings are to be held at a reasonable time and at a place that 
is accessible to members of the public.
    (2) The size of the meeting room is to be large enough to 
accommodate the Advisory Committee, its staff, and those members of the 
public who might be expected to attend.
    (3) Any member of the public is permitted to file a written 
statement with the committee, before or after the meeting.
    (4) Interested persons may be permitted to present oral statements 
at the meeting in accordance with procedures established by the 
committee, and to the extent time available for the meeting permits.
    (5) Other participation by members of the public is not permitted, 
except in

[[Page 928]]

accordance with procedures established by the committee.

[40 FR 33205, Aug. 7, 1975, as amended at 42 FR 26975, May 26, 1977]



Sec.  214.35  Minutes of meetings.

    (a) Minutes are to be kept of each meeting of each advisory 
committee and its formal and informal sub-groups.
    (b) The chairman or presiding officer designates a member or other 
person to keep the minutes.
    (c) The minutes are to include:
    (1) The time and place of the meeting;
    (2) A list of members, staff, and A.I.D. employees attending;
    (3) A complete summary of matters discussed and conclusions reached;
    (4) Copies of all reports received, issued, or approved;
    (5) The extent to which the meeting was open to the public; and
    (6) The extent of public participation, including a list of those 
who presented oral or written statements and an estimate of the number 
of those who attended the meeting.
    (d) The chairman or presiding officer of the advisory committee is 
to certify to the accuracy of the minutes. The certification is to 
indicate that ``the minutes are an accurate and complete summary of the 
matters discussed and conclusions reached at the meeting held on 
(date(s)).''



Sec.  214.36  Records of advisory committees.

    (a) The A.I.D. Advisory Committee Representative is to maintain the 
records of the advisory committee in a location known to the A.I.D. 
Advisory Committee Management Officer.
    (b) Such records are to include the reports, transcripts, minutes, 
appendices, working papers, drafts, studies, agenda, and other documents 
which were made available to, or prepared for or by, the advisory 
committee.
    (c) Advisory committee records are maintained and disposed of 
according to procedures prescribed in the Agency's Handbook 21--
Communications, Part III, Records Filing and Disposition Manual.



Sec.  214.37  Public access to committee records.

    Records maintained in accordance with Sec.  214.36 are subject to 
the Freedom of Information Act, 5 U.S.C. 552 et seq. and, thus, are 
available for public inspection and copying pursuant to A.I.D. 
Regulation 12--Public Information (22 CFR part 212), subject to the 
general oversight of the A.I.D. Advisory Committee Management Officer.

(Sec. 621, Foreign Assistance Act of 1961, as amended (22 U.S.C. 2381); 
sec. 8(a) Federal Advisory Committee Pub. L. 92-463; E.O. 11686)

[40 FR 54778, Nov. 26, 1975]



Sec.  214.38  Submission of reports to the Library of Congress.

    (a) Each advisory committee is to file with the Library of Congress 
eight copies of each of its reports, except where the report falls 
within an exemption listed in 5 U.S.C. 552(b) or relates to a meeting 
which was closed for reasons of national security.
    (b) The A.I.D. Advisory Committee Representative provides copies of 
committee reports to the Office of Legislative Affairs for transmittal 
to the Library of Congress; and sends a copy to the A.I.D. Advisory 
Committee Management Officer for inclusion in the Agency's central file 
on advisory committees.
    (c) As appropriate, the A.I.D. Advisory Committee Representative may 
also send copies of background papers and other advisory committee 
documents to Office of Legislative Affairs for transmittal to the 
Library of Congress.



             Subpart E_Administration of Advisory Committees



Sec.  214.41  Support services.

    (a) A.I.D. provides support services for advisory committees which 
are established by or report to the Agency, unless the establishing 
authority provides otherwise.
    (b) Within A.I.D., support services are provided by and charged to 
the allotment of the A.I.D. office or bureau through which the advisory 
committee reports, and are coordinated by the

[[Page 929]]

designated A.I.D. Advisory Committee Representative.
    (c) Support services include staff, quarters, supplies, and funds.



Sec.  214.42  Uniform pay guidelines.

    (a) A.I.D. follows OMB/CSC guidelines in section 11 of OMB Circular 
A-63 in establishing rates of pay for advisory committee members, 
staffs, and consultants.
    (b) In summary, A.I.D. policy regarding compensation for advisory 
committee members is as follows:
    (1) Advisory committee members who are not employed by the U.S. 
Government ordinarily serve without compensation. However, they may be 
reimbursed for travel and related expenses of invitational travel under 
the provisions of A.I.D. travel regulations.
    (2) If committee members are appointed as A.I.D. consultants or 
experts, their compensation shall be fixed in accordance with CSC 
guidelines and regulations, and the general agreement between CSC and 
A.I.D.
    (3) Expenses of committee members are charged to the allotments of 
the A.I.D. office or bureau through which the advisory committee 
reports.



Sec.  214.43  Agency records.

    (a) The A.I.D. Advisory Committee Management Office maintains the 
Agency's Official central files on the nature functions, and operations 
of each A.I.D. advisory committee. Central files contain the following 
information with respect to each A.I.D. advisory committee:
    (1) Original copy of Advisory Committee Charter filed with the 
Administrator;
    (2) Official records copy of formal determinations by the A.I.D. 
Administrator with respect to the establishment renewal, operation, and 
termination of the committee;
    (3) Annual reports of committee activity;
    (4) Designations of Advisory Committee Representatives;
    (5) Location of the official files of the Advisory Committee.
    (b) Each A.I.D. Advisory Committee Representative maintains 
individual advisory committee files at a location known to the A.I.D. 
Advisory Committee Management Officer. These files contain the following 
information:
    (1) Copies of documents establishing, renewing, and terminating the 
committee;
    (2) Copies of committee charters filed with the A.I.D. 
Administrator;
    (3) Fiscal records which fully disclose the disposition of any funds 
made available to the committee;
    (4) Advisory committee records described above in Sec.  214.36(b) 
(i.e., the reports, transcripts, minutes, appendices, and other 
documents which were made available to, or prepared for or by, the 
committee).
    (c) The A.I.D. Advisory Committee Management Officer, the A.I.D. 
Auditor General, the OMB Secretariat, and the Comptroller General shall 
have access to these records.
    (d) Personnel documentation required by CSC and Agency regulations 
shall be maintained in the official personnel records of the Office of 
Personnel and Manpower.



Sec.  214.44  Annual review and reports.

    (a) A.I.D. conducts an annual comprehensive review of advisory 
committees under instructions provided by OMB Circular A-63, section 10, 
as amended and submits required data to OMB on the prescribed format, by 
November 30 of each year.
    (b) A.I.D. reports monthly to OMB on committee terminations or other 
significant changes in continuing A.I.D. Advisory Committees.
    (c) A.I.D. also provides information to the General Services 
Administration (GSA) for an annual report to Congress. The Agency report 
is due on February 1 of each year; includes only those advisory 
committees established by or reporting to A.I.D.; and is submitted on a 
form prescribed by GSA.
    (d) Within A.I.D., the Advisory Committee Management Officer 
collects required information from the A.I.D. Advisory Committee 
Representatives; appraises advisory committee activities for the 
Administrator; and prepares the Agency's reports for the Administrator.

[[Page 930]]



                    Subpart F_Administrative Remedies



Sec.  214.51  Administrative review of denial for public access to records.

    Any person whose request for access to an advisory committee 
document is denied may seek administrative review in accordance with 
Sec.  212.36(c) of A.I.D. Regulation 12, 22 CFR 212.36(c).



Sec.  214.52  Administrative review of other alleged non-compliance.

    With regard to other alleged non-compliance with the Act, OMB 
Circular A-63, or this regulation, the following procedures are to be 
used:
    (a) Advisory committee members or other aggrieved individuals or 
organizations must file a written complaint which contains specific 
information regarding the alleged non-compliance.
    (b) The written complaint must be addressed to the Administrator or 
Deputy Administrator, Agency for International Development, 21st and 
Virginia Avenue, NW., Washington, DC 20523.
    (c) The complaint must be filed within thirty (30) days after the 
date of the alleged non-compliance.
    (d) The complaint will be considered by the Administrator or Deputy 
Administrator with the advice and assistance of the General Counsel and 
the A.I.D. Advisory Committee Management Office.
    (e) Written notice of the disposition of the complaint shall be 
provided to the complainant within thirty (30) days of the date the 
complaint was received by the Agency.



PART 215_REGULATIONS FOR IMPLEMENTATION OF PRIVACY ACT OF 1974--
Table of Contents



Sec.
215.1 Purpose and scope.
215.2 Definitions.
215.3 Procedures for requests pertaining to individual records in a 
          system of records.
215.4 Times, places, and requirements for indentification of individuals 
          making requests.
215.5 Access to requested information by individuals.
215.6 Special procedures: Medical records.
215.7 Request for correction or amendment of record.
215.8 Agency review of request for amendment of record.
215.9 Appeal of initial adverse agency determination.
215.10 Disclosure of record to person other than the individual to whom 
          it pertains.
215.11 Fees.
215.12 Penalties and remedies.
215.13 General exemptions.
215.14 Specific exemptions.

    Authority: Public Law 93-579, 88 Stat. 1896 (5 U.S.C. 553, (b), (c), 
and (e))

    Source: 57 FR 38277, Aug. 24, 1992, unless otherwise noted.



Sec.  215.1  Purpose and scope.

    (a) It is the purpose and objective of the International Development 
Cooperation Agency and the Agency for International Development to 
collect information, revise personal data collection forms or processes, 
and maintain Agency records in a manner that will prevent an unwarranted 
invasion of privacy of those individuals who are the subject of Agency 
records.
    (b) These regulations establish the procedures by which an 
individual may obtain notification of the existence of Agency records 
pertaining to that individual, gain access to those records, request an 
amendment or correction to the records, and appeal adverse decisions to 
requests for amendment or correction of Agency records.
    (c) The Agency separately states and publishes in the Federal 
Register a public notice of the existence and character of systems 
maintained by the Agency, pursuant to the provisions of sections (e)(4) 
and (e)(11) of the Privacy Act of 1974 (5 U.S.C. 552a; 88 Stat. 1896).



Sec.  215.2  Definitions.

    (a) Act means the Privacy Act of 1974 (5 U.S.C. 552a; 88 Stat. 
1896);
    (b) Agency means the International Development Cooperation Agency or 
the Agency for International Development, its offices, bureaus, 
divisions, and posts abroad;
    (c) Amend shall include the amendment of a record;
    (d) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence;
    (e) Maintain includes maintain, collect, use or disseminate;

[[Page 931]]

    (f) Record means any item, collection, or grouping of information 
about an individual that is maintained by an agency, including, but not 
limited to, his education, financial transactions, medical history, and 
criminal or employment history and that contains his name, or the 
identifying number, symbol, or other identifying particular assigned to 
the individual, such as a finger or voice print or a photograph;
    (g) Routine use means, with respect to the disclosure of a record, 
the use of such record for a purpose which is compatible with the 
purpose for which it was collected;
    (h) Statistical record means a record in a system of records 
maintained for statistical research or reporting purposes only and not 
used in whole or in part in making any determination about an 
identifiable individual, except as provided by section 8 of title 13;
    (i) 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.  215.3  Procedures for requests pertaining to individual records 
in a system of records.

    (a) Requests for notification of access to or amendment of Agency 
records contained in a system of records pertaining to an individual may 
be made in person or by mail as follows: For the International 
Development Cooperation Agency-Assistant Director for Administration, 
International Development Cooperation Agency, Room 4889 New State, 2201 
C Street, NW., Washington, DC 20523 Attention: Privacy Liaison Officer. 
For the Agency for International Development-Privacy Liaison Officer, 
Agency for International Development, Room 4889 New State, 2201 C 
Street, NW., Washington, DC 20523.
    (b) Such request should include information necessary to identify 
the record, e.g., the individual's full name, date of birth, place of 
birth, present mailing address, or system of record identification name 
and number, if known, and, to facilitate the retrieval of records 
contained in those systems of records which are retrieved by social 
security numbers, the social security number of the individual to whom 
the record pertains.
    (c) With respect to a system of records which may be maintained by 
the Agency in offices outside the United States, an individual may 
inquire whether he or she is the subject of an Agency record or may 
request access to or amendment of such records by appearing in person or 
by writing to the Privacy Liaison Officer, Agency for International 
Development, at the overseas missions.
    (d) The Assistant Director for Administration for requests to 
I.D.C.A. or the appropriate Privacy Liaison Officer for request to 
A.I.D., or their designees shall, within ten (10) working days of 
receipt of the request, furnish in writing to the requesting individual 
notice of the existence or nonexistence of any records described in the 
request.



Sec.  215.4  Times, places, and requirements for identification 
of individuals making requests.

    (a) Individuals making personal requests for notification, access or 
contest may do so at the place designated in paragraph (a) of Sec.  
215.3, which is open 9 a.m. to 5 p.m. daily, except Saturdays, Sundays, 
and legal public holidays.
    (b) Individuals making personal requests for notification, access or 
contest at offices outside the United States may do so at the overseas 
missions during the regular business hours of those offices.
    (c) An individual requesting such information in person shall 
provide such personal identification as is reasonable under the 
circumstances to verify the individual's identity; e.g. driver's 
license, employee identification card or medicare card. (The 
identification should contain a photograph of the individual.)
    (d) An individual requesting such information by mail shall include 
in his or her request a signed notarized statement to verify his or her 
identity and which stipulates that the individual understands that 
knowingly or willfully seeking or obtaining access to records about 
another individual under false pretenses is punishable by a fine

[[Page 932]]

up to $5,000, as provided in section (i)(3) of the Act.
    (e) Verification of identity as set forth in paragraphs (c) and (d) 
of this section shall not be required of individuals seeking access to 
records otherwise available to members of the public under the Freedom 
of Information Act (5 U.S.C. 552; 88 Stat. 1561).
    (f) An individual who wishes to be accompanied by another person 
when reviewing a record shall furnish the Agency with a written 
statement authorizing discussion of his or her record in the presence of 
the accompanying person. Such statement need not contain any reasons for 
the access or for the accompanying person's presence.



Sec.  215.5  Access to requested information by individuals.

    (a) Upon receipt of a request by an individual made in accordance 
with the provisions of Sec.  215.3, such individual shall be granted 
access to any record pertaining to him or her which is contained in a 
system of records maintained by the Agency subject to exemptions 
discussed in Sec. Sec.  215.13 and 215.14.
    (b) Notwithstanding the provisions of paragraph (a) of this section, 
access will not be allowed an individual to information or records 
compiled by the Agency in reasonable anticipation of a civil or criminal 
action or proceeding.
    (c) Whenever possible, access to requested records will be granted;
    (1) Where the request is presented in person and the record is 
readily available, promptly upon receipt of the request for access, 
determination that access to the record may be granted, verification of 
the identity of the individual seeking access, and, where applicable, 
receipt of consent to discuss the record with a person accompanying the 
individual;
    (2) Where the request is made by mail, the record will, whenever 
possible, be provided within ten (10) working days of receipt of the 
request.
    (d) Where access to a record cannot reasonably be granted as 
provided in paragraphs (c)(1) and (2) of this section, the Agency will 
acknowledge in writing receipt of the request for access and indicate a 
reasonable time within which access to the record can be granted.
    (e) Where no reasonable means exist for an individual to have access 
to his or her record in person, a copy of the record must be provided 
through the mail.



Sec.  215.6  Special procedures: Medical records.

    If the Assistant Director for Administration or the Privacy Liaison 
Officer, determines that the release directly to the individual of 
medical records maintained by the Agency could have an adverse effect 
upon such individual, the Director/Officer will attempt to arrange an 
alternative acceptable to both the individual and Agency (such as the 
release of said information to a doctor named by the individual) in 
granting access to such record.



Sec.  215.7  Request for correction or amendment of record.

    (a) An individual may request the Agency to correct or amend a 
record pertaining to him or her which the individual believes is not 
accurate, relevant, timely or complete.
    (b) Such request must be in writing and must be presented, in person 
or by mail to the addresses listed in Sec.  215.3(a).
    (c) Such requests must set forth the following information:
    (1) Identification of the system of records in which the particular 
record is maintained;
    (2) The portion(s) of the record to be amended or corrected;
    (3) The desired amendment or correction; and
    (4) The reasons for the amendment or correction.

The request must be accompanied by evidence, documentation, or other 
information in support of the request.
    (d) Assistance in preparing a request to amend a record may be 
obtained from the officials listed in Sec.  215.3(a).



Sec.  215.8  Agency review of request for amendment of record.

    (a) The Agency will examine the information requested to be amended 
to determine its accuracy, timeliness, completeness, and its relevancy 
and necessity to accomplish a purpose of the

[[Page 933]]

Agency required to be accomplished by statute or by executive order.
    (b) Within ten (10) working days after the receipt by the Assistant 
Director for Administration or the Privacy Liaison Officer, of a request 
made in accordance with this section, the Assistant Director for 
Administration or the Privacy Liaison Officer shall acknowledge in 
writing such receipt and shall, after examination in accordance with the 
provisions of paragraph (a) of this section, promptly either:
    (1) Make any amendment of any portion thereof which the individual 
believes is not accurate, relevant, timely or complete, and notify the 
individual of the amendment made; or
    (2) Inform the individual of the Agency's refusal to amend the 
record in accordance with the request, the reason(s) for the refusal, 
and the procedures established by the Agency for the individual to 
request a review of that refusal.
    (c) If the Agency agrees with the individual's request to amend a 
record, in addition to proceeding as set forth in paragraph (b)(1) of 
this section, it shall promptly advise all previous recipients of the 
record of the fact that the amendment was made and the substance of the 
amendment where an accounting of disclosures has been made.
    (d) If unusual circumstances prevent the completion of Agency action 
on the request to amend within 30 days after the receipt thereof by the 
Assistant Director for Administration or the Privacy Liaison Officer, 
the individual will be promptly advised of the delay, the reasons for 
the delay, and of the date by which the review is expected to be 
completed.
    (e) If the Agency, after its initial examination of the record and 
the request for Amendment, disagrees with all or any part of the 
individual's request to amend it shall:
    (1) To the extent the Agency agrees with any part of the 
individual's request to amend, proceed as described in paragraphs (b)(1) 
and (c) of this section;
    (2) Advise the individual of its refusal and the reason(s) therefor;
    (3) Inform the individual that he or she may request a further 
review by the Director or the Administrator, or their designees; and
    (4) Describe the procedures for requesting such review, including 
the name and address of the official to whom the request should be 
directed.
    (f) No part of these regulations shall be construed to permit:
    (1) The alteration of evidence presented in the course of judicial, 
quasi-judicial or quasi-legislative proceedings;
    (2) Collateral attack upon any matter which has been the subject of 
judicial or quasi-judicial action; or
    (3) An amendment or correction which would be in violation of an 
existing statute, executive order or regulation.



Sec.  215.9  Appeal of initial adverse agency determination.

    (a) An individual who disagrees with the denial or partial denial of 
his or her request to amend a record may file a request for review of 
such refusal within 60 days after the date of notification of the denial 
or partial denial.
    (b) The request for review must be in writing and may be presented 
in person or by mail to:

Director, International Development Cooperation Agency, 2201 C Street, 
NW., Washington, DC 20523. Attention: Privacy Review Request.
Director, Office of External Affairs, Agency for International 
Development, 2201 C Street, NW., Washington, DC 20523. Attention: 
Privacy Review Request.


Both the envelope and the letter should be clearly marked: Attention: 
Privacy Review Request. Such request should include any documentation, 
information or statements advanced for the amendment of the record, and 
a copy of the initial adverse determination.
    (c) Upon receipt of the request for review, the Director or the 
Assistant Administrator, or an officer of the Agency designated in 
writing by the Director or Administrator, shall undertake an independent 
review of the initial determination.
    (d) If someone other than the Director or the Assistant 
Administrator is designated to conduct the review, he or she shall be an 
officer who is organizationally independent of or senior to the officer 
or employee who made the initial determination.

[[Page 934]]

    (e) In conducting the review, the reviewing official, may at his or 
her option, request such additional information as is deemed necessary 
to establish that the record contains only that information which is 
accurate, timely, complete and necessary to assure fairness in any 
determination which may be made about the individual on the basis of the 
record.
    (f) Within 30 days after receipt of the request for review, the 
Director, the Assistant Administrator, or the official designated to 
conduct the review, shall advise the individual of the Agency's final 
decision. If unusual circumstances prevent the completion of the review 
within the 30-day period, the Agency shall, prior to the expiration of 
the 30-day period, advise the individual in writing of the circumstances 
preventing the completion of such review and inform him or her of the 
date by which the review is expected to be completed.
    (g) If the reviewing official determines that the record should be 
amended in accordance with the individual's request, the Agency shall:
    (1) Amend the record accordingly;
    (2) Advise the individual of the amendment; and
    (3) Where an accounting of disclosures has been made, advise all 
previous recipients of the fact that the amendment was made and the 
nature of the amendment.
    (h) If, after conducting the review, the reviewing official refuses 
to amend the record, in whole or in part, in accordance with the 
individual's request, Agency shall advise the individual:
    (1) Of its refusal and the reasons therefor;
    (2) Of the individual's right to file a concise statement of his or 
her reasons for disagreeing with the Agency's decision;
    (3) Of the procedures for filing a statement of disagreement;
    (4) That any such statement will be sent to anyone to whom the 
record is subsequently disclosed, together with a brief statement by the 
Agency summarizing its reasons for refusing to amend the record;
    (5) That to the extent an accounting of disclose was maintained, 
prior recipients of the disputed record will be provided a copy of any 
statement of disagreement and of the Agency's statement summarizing its 
reasons for refusing to amend the record; and
    (6) Of the individual's right to seek judicial review of the 
Agency's refusal to amend a record as provided for in section (g)(1)(a) 
of the Act.



Sec.  215.10  Disclosure of record to person other than the individual 
to whom it pertains.

    (a) Subject to the conditions of paragraphs (b) and (c) of this 
section, the Agency shall not disclose any record which is contained in 
a system of records by any means of communication to any person or other 
agency who is not the individual to whom the record pertains.
    (b) Upon written request or with prior written consent of the 
individual to whom the record pertains, the Agency may disclose any such 
record to a person or to another agency as requested or authorized.
    (c) Notwithstanding the absence of written consent from the 
individual to whom the record pertains, the Agency may disclose any such 
record provided such disclosure is:
    (1) To those officers and employees of the Agency who have a need 
for the record in the performance of their duties;
    (2) Required under the Freedom of Information Act (5 U.S.C. 552);
    (3) For a routine use as defined in Sec.  215.2;
    (4) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to the provisions of 
title 13 of the United States Code;
    (5) To a recipient who has provided the Agency with adequate advance 
written assurance that the record will be used solely as a statistical 
research or reporting record, and the record is to be transferred in a 
form that is not individually identifiable;
    (6) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the United States Government, or for evaluation by the 
Administrator of General Services or his or her designee,

[[Page 935]]

to determine whether the record has such value;
    (7) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity authorized by law: Provided, 
The head of the agency or instrumentality has made a prior written 
request to the Assistant Administrator of Administration or the Privacy 
Liaison Officer, specifying the particular record and the law 
enforcement activity for which it is sought;
    (8) To a responsible person pursuant to a showing of compelling 
circumstances affecting the health or safety of an individual if upon 
such disclosure notification will be transmitted to the last known 
address of such individual;
    (9) To either House of Congress, or, to the extent of a matter 
within its jurisdiction, any committee or subcommittee, or joint 
committee of Congress, or subcommittee of such joint committee;
    (10) To the Comptroller General, or any of his/her authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office;
    (11) Pursuant to an order of a court of competent jurisdiction or;
    (12) To a consumer reporting agency in accordance with section 
3711(f) of title 31.



Sec.  215.11  Fees.

    (a) The only fees to be charged to or collected from an individual 
under the provisions of this part are for copying records at the request 
of the individual.
    (b) No fees shall be charged or collected for the following: Search 
for and retrieval of the records; review of the records; copying at the 
initiative of the Agency without a request from the individual; the 
first 100 pages; and first-class postage. However if special handling or 
other than first-class mail is requested or required, the costs shall be 
added to the basic fee.
    (c) The copying fees prescribed in paragraph (a) of this section 
are:

    Ten (10) cents per page. Twenty (20) cents per page of computer 
printout.

    (d) Payment may be in the form of a check, bank draft on a bank in 
the United States, or postal money order payable to the Treasurer of the 
United States.
    (e) A receipt for fees paid will be given only upon request.
    (f) A copying fee totaling $15.00 or less shall be waived but the 
copying fees for contemporaneous requests by the same individual shall 
be aggregated to determine the total fee.
    (g) A fee may be reduced or waived by the Privacy Liaison Officer.



Sec.  215.12  Penalties and remedies.

    The provisions of the Act relating to penalties and remedies are 
summarized below:
    (a) An individual may bring a civil action against the Agency when 
the Agency:
    (1) Makes a determination not to amend a record in accordance with 
the individual's request;
    (2) Refuses to comply with an individual's request pursuant to 5 
U.S.C. 552a (d)(1);
    (3) Fails to maintain a record concerning an individual with such 
accuracy, relevance, timeliness and completeness as is necessary to 
assure fairness in any determination relating to the qualifications, 
character, rights, or opportunities of, or benefits to the individual 
that may be made on the basis of such record, and as a result thereof a 
determination is made which is adverse to the individual; or
    (4) Fails to comply with any other provision of section (d) of the 
Act in such a way as to have an adverse effect on an individual.
    (b) The court may order the correction or amendment of the records, 
may enjoin the Agency from withholding the records, may order the Agency 
to produce any records improperly withheld, and may assess attorney's 
fees and costs.
    (c) Where a court of competent jurisdiction makes a determination 
that the Agency action was willful or intentional with respect to 5 
U.S.C. 552a (g)(1) (c) or (d), the United States shall be liable for 
actual damages of no less than $1,000, the costs of the action, and 
attorneys' fees.

[[Page 936]]

    (d) Criminal penalties may be imposed against an officer or employee 
of the Agency who willfully discloses material which he or she knows is 
prohibited from disclosure, or who maintains a system of records without 
complying with the notice requirements.
    (e) Criminal penalties may be imposed against any person who 
knowingly and willfully requests or obtains any record concerning an 
individual from an agency under false pretenses. The offenses enumerated 
in paragraphs (d) and (e) of this section are misdemeanors, with fines 
not to exceed $5,000.



Sec.  215.13  General exemptions.

    (a) Pursuant to 5 U.S.C. 552a (j)(2), the Director or the 
Administrator may, where there is a compelling reason to do so, exempt a 
system of records within the Agency from any part of the Act, except 
subsections (b), (c) (1) and (2), (e)(4)(A) through (F), (e) (6), (7), 
(9), (10), and (11), and (i) thereof, if the system of records is 
maintained by the Agency or component thereof which performs as its 
principal function any activity pertaining to the enforcement of 
criminal laws, including police efforts to prevent, control, or reduce 
crime or to apprehend criminals, and the activities of prosecutors, 
courts, correctional, probation, pardon, or parole authorities, and 
which consists of:
    (1) Information compiled for the purpose of identifying individual 
criminal offenders and alleged offenders and consisting only of 
identifying data and notations of arrests, the nature and disposition of 
criminal charges, sentencing, confinement, release, and parole and 
probation status;
    (2) Information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or
    (3) Reports identifiable to an individual compiled at any stage of 
the process of enforcement of the criminal laws from arrest or 
indictment through release from supervision.
    (b) Each notice of a system of records that is the subject of an 
exemption under this section will include a statement that the system 
has been exempted, the reasons therefore, and a reference to the Federal 
Register, volume and page, where the exemption rule can be found.
    (c) The systems of records to be exempted under section (j)(2) of 
the Act, the provisions of the Act from which they are being exempted, 
and the justification for the exemptions, are set forth below:
    (1) Criminal Law Enforcement Records. This system of records is to 
be exempted from sections (c) (3) and (4); (d); (e) (1), (2), and (3); 
(e) (4) (G), (H), and (I); (e) (5) and (8); (f), (g) and (h) of the Act. 
These exemptions are necessary to insure the proper functioning of the 
law enforcement activity, to protect confidential sources of 
information, to fulfill promises of confidentiality, to maintain the 
integrity of the law enforcement procedures, to avoid premature 
disclosure of the knowledge of criminal activity and the evidentiary 
bases of possible enforcement actions, to prevent interference with law 
enforcement proceeding, to avoid the disclosure of investigative 
techniques, and to avoid the endangering the law enforcement personnel.
    (2) Partner Vetting System. This system is exempt from sections 
(c)(3) and (4); (d); (e)(1), (2), and (3); (e)(4)(G), (H), and (I); 
(e)(5) and (8); (f), (g), and (h) of 5 U.S.C. 552a. These exemptions are 
necessary to insure the proper functioning of the law enforcement 
activity, to protect confidential sources of information, to fulfill 
promises of confidentiality, to maintain the integrity of law 
enforcement procedures, to avoid premature disclosure of the knowledge 
of criminal activity and the evidentiary basis of possible enforcement 
actions, to prevent interference with law enforcement proceeding, to 
avoid the disclosure of investigative techniques, to avoid endangering 
law enforcement personnel, to maintain the ability to obtain candid and 
necessary information, to fulfill commitments made to sources to protect 
the confidentiality of information, to avoid endangering these sources, 
and to facilitate proper selection or continuance of the best applicants 
or persons for a given position or contract. Although the primary 
functions of USAID are not of a law enforcement nature, the mandate to 
ensure USAID

[[Page 937]]

funding is not purposefully or inadvertently used to provide support to 
entities or individuals deemed to be a risk to national security 
necessarily requires coordination with law enforcement and intelligence 
agencies as well as use of their information. Use of these agencies' 
information necessitates the conveyance of these other systems 
exemptions to protect the information as stated.

[57 FR 38277, Aug. 24, 1992, as amended at 74 FR 16, Jan. 2, 2009]



Sec.  215.14  Specific exemptions.

    (a) Pursuant to 5 U.S.C. 552a(k), the Director or the Administrator 
may, where there is a compelling reason to do so, exempt a system of 
records, from any of the provisions of subsections (c) (3); (d); (e)(1); 
(e)(4) (G), (H), and (I); and (f) of the Act if a system of records is:
    (1) Subject to the provisions of 5 U.S.C. 552(b)(1);
    (2) Investigatory material compiled for law enforcement purposes, 
other than material within the scope of subsection (j)(2) of the Act: 
Provided, however, That if any individual is denied any right, 
privilege, or benefit to which he or she would otherwise be eligible, as 
a result of the maintenance of such material, such material shall be 
provided to such individual, except to the extent that the disclosure of 
such material would reveal the identity of a source who furnished 
information to the Government under an express promise that the identity 
of the source would be held in confidence, or prior to the effective 
date of this section, under an implied promise that the identity of the 
source would be held in confidence;
    (3) Maintained in connection with providing protective services to 
the President of the United States or other individuals pursuant to 18 
U.S.C. 3056;
    (4) Required by statute to be maintained and used solely as 
statistical records;
    (5) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information, but only to the extent that the disclosure of 
such material would reveal the identity of a source who furnished 
information to the Government under an express promise that the identity 
of the source would be held in confidence, or, prior to the effective 
date of this section, under an implied promise that the identity of the 
source would be held in confidence;
    (6) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service, the disclosure of which would compromise the objectivity or 
fairness of the testing or examination process; or
    (7) Evaluation material used to determine potential for promotion in 
the armed services, but only to the extent that the disclosure of such 
material would reveal the identity of a source who furnished information 
to the Government under an express promise that the identity of the 
source would be held in confidence, or, prior to the effective date of 
this section, under an implied promise that the identity of the source 
would be held in confidence.
    (b) Each notice of a system of records that is the subject of an 
exemption under 5 U.S.C. 552a(k) will include a statement that the 
system has been exempted, the reasons therefore, and a reference to the 
Federal Register, volume and page, where the exemption rule can be 
found.
    (c) The systems of records to be exempted under section (k) of the 
Act, the provisions of the Act from which they are being exempted, and 
the justification for the exemptions, are set forth below:
    (1) Criminal Law Enforcement Records. If the 5 U.S.C. 552a(j)(2) 
exemption claimed under paragraph (c) of Sec.  215.13 and on the notice 
of systems of records to be published in the Federal Register on this 
same date is held to be invalid, then this system is determined to be 
exempt, under 5 U.S.C. 552(a)(k) (1) and (2) of the Act, from the 
provisions of 5 U.S.C. 552a (c)(3); (d); (e)(1); (e)(4); (G); (H); (I); 
and (f). The reasons for asserting the exemptions are to protect the 
materials required by executive order to be kept secret in the interest 
of the national defense or foreign policy, to prevent subjects of 
investigation from frustrating the investigatory process, to insure the 
proper

[[Page 938]]

functioning and integrity of law enforcement activities, to prevent 
disclosure of investigative techniques, to maintain the ability to 
obtain necessary information, to fulfill commitments made to sources to 
protect their identities and the confidentiality of information and to 
avoid endangering these sources and law enforcement personnel.
    (2) Personnel Security and Suitability Investigatory Records. This 
system is exempt under U.S.C. 552a (k)(1), (k)(2), and (k)(5) from the 
provisions of 5 U.S.C. 552a (c)(3); (d); (e)(1); (e)(4); (G); (H); (I); 
and (f). These exemptions are claimed to protect the materials required 
by executive order to be kept secret in the interest of national defense 
or foreign policy, to prevent subjects of investigation from frustrating 
the investigatory process, to insure the proper functioning and 
integrity of law enforcement activities, to prevent disclosure of 
investigative techniques, to maintain the ability to obtain candid and 
necessary information, to fulfill commitments made to sources to protect 
the confidentiality of information, to avoid endangering those sources 
and, ultimately, to facilitate proper selection or continuance of the 
best applicants or persons for a given position or contract. Special 
note is made of the limitation on the extent to which this exemption may 
be asserted.
    (3) Litigation Records. This system is exempt under 5 U.S.C. 
552(k)(1), (k)(2), and (k)(5) from the provisions of 5 U.S.C. 552a 
(c)(3); (d); (e)(1); (e)(4) (G), (H), (I); and (f). These exemptions are 
claimed to protect the materials required by executive order to be kept 
secret in the interest of national defense or foreign policy, to prevent 
subjects of investigation from frustrating the investigatory process, to 
insure the proper functioning and integrity of law enforcement 
activities, to prevent disclosure of investigative techniques, to 
maintain the ability to obtain candid and necessary information, to 
fulfill commitments made to sources to protect the confidentiality of 
information.
    (4) Employee Equal Employment Opportunity Complaint Investigatory 
Records. This system is exempt under 5 U.S.C. 552a (k)(1) and (k)(2) 
from the provisions of 5 U.S.C. 552a (c)(3); (d); (e)(1); (e)(4) (G), 
(H), (I); and (f). These exemptions are claimed to protect the materials 
required by executive order to be kept secret in the interest of 
national defense or foreign policy, to prevent subjects of investigation 
from frustrating the investigatory process, to insure the proper 
functioning and integrity of law enforcement activities, to prevent 
disclosure of investigative techniques, to maintain the ability to 
obtain candid and necessary information, to fulfill commitments made to 
sources to protect the confidentiality of information, to avoid 
endangering these sources.
    (5) The following systems of records are exempt under 5 U.S.C. 552a 
(k)(5) from the provision of 5 U.S.C. 552a (c)(3); (d); (e)(1); (e)(4) 
(G), (H), (I); and (f):
    (i) Employee Conduct and Discipline Records.
    (ii) Employee Relations Records.

    Note to paragraph (c)(5): This exemption is claimed for these 
systems of records to maintain the ability to obtain candid and 
necessary information, to fulfill commitments made to sources to protect 
the confidentiality of information, to avoid endangering these sources 
and, ultimately, to facilitate proper selection or continuance of the 
best applicants or persons for a given position or contract. Special 
note is made of the limitation on the extent to which this exemption may 
be asserted. The existence and general character of the information 
exempted will be made known to the individual to whom it pertains.

    (6) Partner Vetting System. This system is exempt under 5 U.S.C. 
552a (k)(1), (k)(2), and (k)(5) from the provision of 5 U.S.C. 552a 
(c)(3); (d); (e)(1); (e)(4)(G), (H), (I); and (f). These exemptions are 
claimed to protect the materials required by executive order to be kept 
secret in the interest of national defense or foreign policy, to prevent 
subjects of investigation from frustrating the investigatory process, to 
insure the proper functioning and integrity of law enforcement 
activities, to prevent disclosure of investigative techniques, to 
maintain the ability to obtain candid and necessary information, to 
fulfill commitments made to sources to protect the confidentiality of 
information, to avoid endangering these sources, and to facilitate 
proper

[[Page 939]]

selection or continuance of the best applicants or persons for a given 
position or contract.

[57 FR 38277, Aug. 24, 1992, as amended at 74 FR 17, Jan. 2, 2009]



PART 216_ENVIRONMENTAL PROCEDURES--Table of Contents



Sec.
216.1 Introduction.
216.2 Applicability of procedures.
216.3 Procedures.
216.4 Private applicants.
216.5 Endangered species.
216.6 Environmental assessments.
216.7 Environmental impact statements.
216.8 Public hearings.
216.9 Bilateral and multi-lateral studies and concise reviews of 
          environmental issues.
216.10 Records and reports.

    Authority: 42 U.S.C.4332; 22 U.S.C. 2381.

    Source: 41 FR 26913, June 30, 1976, unless otherwise noted.



Sec.  216.1  Introduction.

    (a) Purpose. In accordance with sections 118(b) and 621 of the 
Foreign Assistance Act of 1961, as amended, (the FAA) the following 
general procedures shall be used by A.I.D. to ensure that environmental 
factors and values are integrated into the A.I.D. decision making 
process. These procedures also assign responsibility within the Agency 
for assessing the environmental effects of A.I.D.'s actions. These 
procedures are consistent with Executive Order 12114, issued January 4, 
1979, entitled Environmental Effects Abroad of Major Federal Actions, 
and the purposes of the National Environmental Policy Act of 1970, as 
amended (42 U.S.C. 4371 et seq.) (NEPA). They are intended to implement 
the requirements of NEPA as they effect the A.I.D. program.
    (b) Environmental policy. In the conduct of its mandate to help 
upgrade the quality of life of the poor in developing countries, A.I.D. 
conducts a broad range of activities. These activities address such 
basic problems as hunger, malnutrition, overpopulation, disease, 
disaster, deterioration of the environment and the natural resource 
base, illiteracy as well as the lack of adequate housing and 
transportation. Pursuant to the FAA, A.I.D. provides development 
assistance in the form of technical advisory services, research, 
training, construction and commodity support. In addition, A.I.D. 
conducts programs under the Agricultural Trade Development and 
Assistance Act of 1954 (Pub. L. 480) that are designed to combat hunger, 
malnutrition and to facilitate economic development. Assistance programs 
are carried out under the foreign policy guidance of the Secretary of 
State and in cooperation with the governments of sovereign states. 
Within this framework, it is A.I.D. policy to:
    (1) Ensure that the environmental consequences of A.I.D.-financed 
activities are identified and considered by A.I.D. and the host country 
prior to a final decision to proceed and that appropriate environmental 
safeguards are adopted;
    (2) Assist developing countries to strengthen their capabilities to 
appreciate and effectively evaluate the potential environmental effects 
of proposed development strategies and projects, and to select, 
implement and manage effective environmental programs;
    (3) Identify impacts resulting from A.I.D.'s actions upon the 
environment, including those aspects of the biosphere which are the 
common and cultural heritage of all mankind; and
    (4) Define environmental limiting factors that constrain development 
and identify and carry out activities that assist in restoring the 
renewable resource base on which sustained development depends.
    (c) Definitions--(1) CEQ regulations. Regulations promulgated by the 
President's Council on Environmental Quality (CEQ) (Federal Register, 
Volume 43, Number 230, November 29, 1978) under the authority of NEPA 
and Executive Order 11514, entitled Protection and Enhancement of 
Environmental Quality (March 5, 1970) as amended by Executive Order 
11991 (May 24, 1977).
    (2) Initial Environmental Examination. An Initial Environmental 
Examination is the first review of the reasonably foreseeable effects of 
a proposed action on the environment. Its function is to provide a brief 
statement of the factual basis for a Threshold Decision as to whether an 
Environmental Assessment

[[Page 940]]

or an Environmental Impact Statement will be required.
    (3) Threshold Decision. A formal Agency decision which determines, 
based on an Initial Environmental Examination, whether a proposed Agency 
action is a major action significantly affecting the environment.
    (4) Environmental Assessment. A detailed study of the reasonably 
forseeable significant effects, both beneficial and adverse, of a 
proposed action on the environment of a foreign country or countries.
    (5) Environmental Impact Statement. A detailed study of the 
reasonably foreseeable environmental impacts, both positive and 
negative, of a proposed A.I.D. action and its reasonable alternatives on 
the United States, the global environment or areas outside the 
jurisdiction of any nation as described in Sec.  216.7 of these 
procedures. It is a specific document having a definite format and 
content, as provided in NEPA and the CEQ Regulations. The required form 
and content of an Environmental Impact Statement is further described in 
Sec.  216.7 infra.
    (6) Project Identification Document (PID). An internal A.I.D. 
document which initially identifies and describes a proposed project.
    (7) Program Assistance Initial Proposal (PAIP). An internal A.I.D. 
document used to initiate and identify proposed non-project assistance, 
including commodity import programs. It is analogous to the PID.
    (8) Project Paper (PP). An internal A.I.D. document which provides a 
definitive description and appraisal of the project and particularly the 
plan or implementation.
    (9) Program Assistance Approval Document (PAAD). An internal A.I.D. 
document approving non-project assistance. It is analogous to the PP.
    (10) Environment. The term environment, as used in these procedures 
with respect to effects occurring outside the United States, means the 
natural and physical environment. With respect to effects occurring 
within the United States see Sec.  216.7(b).
    (11) Significant effect. With respect to effects on the environment 
outside the United States, a proposed action has a significant effect on 
the environment if it does significant harm to the environment.
    (12) Minor donor. For purposes of these procedures, A.I.D. is a 
minor donor to a multidonor project when A.I.D. does not control the 
planning or design of the multidonor project and either (i) A.I.D.'s 
total contribution to the project is both less than $1,000,000 and less 
than 25 percent of the estimated project cost, or (ii) A.I.D.'s total 
contribution is more than $1,000,000 but less than 25 percent of the 
estimated project cost and the environmental procedures of the donor in 
control of the planning of design of the project are followed, but only 
if the A.I.D. Environmental Coordinator determines that such procedures 
are adequate.

[45 FR 70244, Oct. 23, 1980]



Sec.  216.2  Applicability of procedures.

    (a) Scope. Except as provided in Sec.  216.2(b), these procedures 
apply to all new projects, programs or activities authorized or approved 
by A.I.D. and to substantive amendments or extensions of ongoing 
projects, programs, or activities.
    (b) Exemptions. (1) Projects, programs or activities involving the 
following are exempt from these procedures:
    (i) International disaster assistance;
    (ii) Other emergency circumstances; and
    (iii) Circumstances involving exceptional foreign policy 
sensitivities.
    (2) A formal written determination, including a statement of the 
justification therefore, is required for each project, program or 
activity for which an exemption is made under paragraphs (b)(1) (ii) and 
(iii) of this section, but is not required for projects, programs or 
activities under paragraph (b)(1)(i) of this section. The determination 
shall be made either by the Assistant Administrator having 
responsibility for the program, project or activity, or by the 
Administrator, where authority to approve financing has been reserved by 
the Administrator. The determination shall be made after consultation 
with CEQ regarding the environmental consequences of the proposed 
program, project or activity.

[[Page 941]]

    (c) Categorical exclusions. (1) The following criteria have been 
applied in determining the classes of actions including in Sec.  
216.2(c)(2) for which an Initial Environmental Examination, 
Environmental Assessment and Environmental Impact Statement generally 
are not required;
    (i) The action does not have an effect on the natural or physicial 
environment;
    (ii) A.I.D. does not have knowledge of or control over, and the 
objective of A.I.D. in furnishing assistance does not require, either 
prior to approval of financing or prior to implementation of specific 
activities, knowledge of or control over, the details of the specific 
activities that have an effect on the physicial and natural environment 
for which financing is provided by A.I.D.;
    (iii) Research activities which may have an affect on the physicial 
and natural environment but will not have a significant effect as a 
result of limited scope, carefully controlled nature and effective 
monitoring.
    (2) The following classes of actions are not subject to the 
procedures set forth in Sec.  216.3, except to the extent provided 
herein;
    (i) Education, technical assistance, or training programs except to 
the extent such programs include activities directly affecting the 
environment (such as construction of facilities, etc.);
    (ii) Controlled experimentation exclusively for the purpose of 
research and field evaluation which are confined to small areas and 
carefully monitored;
    (iii) Analyses, studies, academic or research workshops and 
meetings;
    (iv) Projects in which A.I.D. is a minor donor to a multidonor 
project and there is no potential significant effects upon the 
environment of the United States, areas outside any nation's 
jurisdiction or endangered or threatened species or their critical 
habitat;
    (v) Document and information transfers;
    (vi) Contributions to international, regional or national 
organizations by the United States which are not for the purpose of 
carrying out a specifically identifiable project or projects;
    (vii) Institution building grants to research and educational 
institutions in the United States such as those provided for under 
section 122(d) and title XII of chapter 2 of part I of the FAA (22 USCA 
2151 p. (b) 2220a. (1979));
    (viii) Programs involving nutrition, health care or population and 
family planning services except to the extent designed to include 
activities directly affecting the environment (such as construction of 
facilities, water supply systems, waste water treatment, etc.)
    (ix) Assistance provided under a Commodity Import Program when, 
prior to approval, A.I.D. does not have knowledge of the specific 
commodities to be financed and when the objective in furnishing such 
assistance requires neither knowledge, at the time the assistance is 
authorized, nor control, during implementation, of the commodities or 
their use in the host country.
    (x) Support for intermediate credit institutions when the objective 
is to assist in the capitalization of the institution or part thereof 
and when such support does not involve reservation of the right to 
review and approve individual loans made by the institution;
    (xi) Programs of maternal or child feeding conducted under title II 
of Pub. L. 480;
    (xii) Food for development programs conducted by food recipient 
countries under title III of Pub. L. 480, when achieving A.I.D.'s 
objectives in such programs does not require knowledge of or control 
over the details of the specific activities conducted by the foreign 
country under such program;
    (xiii) Matching, general support and institutional support grants 
provided to private voluntary organizations (PVOs) to assist in 
financing programs where A.I.D.'s objective in providing such financing 
does not require knowledge of or control over the details of the 
specific activities conducted by the PVO;
    (xiv) Studies, projects or programs intended to develop the 
capability of recipient countries to engage in development planning, 
except to the extent designed to result in activities directly affecting 
the environment (such as construction of facilities, etc.); and

[[Page 942]]

    (xv) Activities which involve the application of design criteria or 
standards developed and approved by A.I.D.
    (3) The originator of a project, program or activity shall determine 
the extent to which it is within the classes of actions described in 
paragraph (c)(2) of this section. This determination shall be made in 
writing and be submitted with the PID, PAIP or comparable document. This 
determination, which must include a brief statement supporting 
application of the exclusion shall be reviewed by the Bureau 
Environmental Officer in the same manner as a Threshold Decision under 
Sec.  216.3(a)(2) of these procedures. Notwithstanding paragraph (c)(2) 
of this section, the procedures set forth in Sec.  216.3 shall apply to 
any project, program or activity included in the classes of actions 
listed in paragraph (c)(2) of this section, or any aspect or component 
thereof, if at any time in the design, review or approval of the 
activity it is determined that the project, program or activity, or 
aspect or component thereof, is subject to the control of A.I.D. and may 
have a significant effect on the environment.
    (d) Classes of actions normally having a significant effect on the 
environment. (1) The following classes of actions have been determined 
generally to have a significant effect on the environment and an 
Environmental Assessment or Environmental Impact Statement, as 
appropriate, will be required:
    (i) Programs of river basin development;
    (ii) Irrigation or water management projects, including dams and 
impoundments;
    (iii) Agricultural land leveling;
    (iv) Drainage projects;
    (v) Large scale agricultural mechanization;
    (vi) New lands development;
    (vii) Resettlement projects;
    (viii) Penetration road building or road improvement projects;
    (ix) Powerplants;
    (x) Industrial plants;
    (xi) Potable water and sewerage projects other than those that are 
small-scale.
    (2) An Initial Environmental Examination normally will not be 
necessary for activities within the classes described in Sec.  216.2(d), 
except when the originator of the project believes that the project will 
not have a significant effect on the environment. In such cases, the 
activity may be subjected to the procedures set forth in Sec.  216.3.
    (e) Pesticides. The exemptions of paragraph (b)(1) of this section 
and the categorical exclusions of paragraph (c)(2) of this section are 
not applicable to assistance for the procurement or use of pesticides.

[45 FR 70244, Oct. 23, 1980]



Sec.  216.3  Procedures.

    (a) General procedures--(1) Preparation of the Initial Environmental 
Examination. Except as otherwise provided, an Initial Environmental 
Examination is not required for activities identified in Sec.  
216.2(b)(1), (c) (2), and (d). For all other A.I.D. activities described 
in Sec.  216.2(a) an Initial Environmental Examination will be prepared 
by the originator of an action. Except as indicated in this section, it 
should be prepared with the PID or PAIP. For projects including the 
procurement or use of pesticides, the procedures set forth in paragraph 
(b) of this section will be followed, in addition to the procedures in 
this paragraph. Activities which cannot be identified in sufficient 
detail to permit the completion of an Initial Environmental Examination 
with the PID or PAIP, shall be described by including with the PID or 
PAIP: (i) An explanation indicating why the Initial Environmental 
Examination cannot be completed; (ii) an estimate of the amount of time 
required to complete the Initial Environmental Examination; and (iii) a 
recommendation that a Threshold Decision be deferred until the Initial 
Environmental Examination is completed. The responsible Assistant 
Administrator will act on the request for deferral concurrently with 
action on the PID or PAIP and will designate a time for completion of 
the Initial Environmental Examination. In all instances, except as 
provided in paragraph (a)(7) of this section, this completion date will 
be in sufficient time to allow for the completion of an Environmental 
Assessment or Environmental Impact Statement, if required, before a 
final decision is

[[Page 943]]

made to provide A.I.D. funding for the action.
    (2) Threshold decision. (i) The Initial Environmental Examination 
will include a Threshold Decision made by the officer in the originating 
office who signs the PID or PAIP. If the Initial Environmental 
Examination is completed prior to or at the same time as the PID or 
PAIP, the Threshold Decision will be reviewed by the Bureau 
Environmental Officer concurrently with approval of the PID or PAIP. The 
Bureau Environmental Officer will either concur in the Threshold 
Decision or request reconsideration by the officer who made the 
Threshold Decision, stating the reasons for the request. Differences of 
opinion between these officers shall be submitted for resolution to the 
Assistant Administrator at the same time that the PID is submitted for 
approval.
    (ii) An Initial Environmental Examination, completed subsequent to 
approval of the PID or PAIP, will be forwarded immediately together with 
the Threshold Determination to the Bureau Environmental Officer for 
action as described in this section.
    (iii) A Positive Threshold Decision shall result from a finding that 
the proposed action will have a significant effect on the environment. 
An Environmental Impact Statement shall be prepared if required pursuant 
to Sec.  216.7. If an impact statement is not required, an Environmental 
Assessment will be prepared in accordance with Sec.  216.6. The 
cognizant Bureau or Office will record a Negative Determination if the 
proposed action will not have a significant effect on the environment.
    (3) Negative Declaration. The Assistant Administrator, or the 
Administrator in actions for which the approval of the Administrator is 
required for the authorization of financing, may make a Negative 
Declaration, in writing, that the Agency will not develop an 
Environmental Assessment or an Environmental Impact Statement regarding 
an action found to have a significant effect on the environment when (i) 
a substantial number of Environmental Assessments or Environmental 
Impact Statements relating to similar activities have been prepared in 
the past, if relevant to the proposed action, (ii) the Agency has 
previously prepared a programmatic Statement or Assessment covering the 
activity in question which has been considered in the development of 
such activity, or (iii) the Agency has developed design criteria for 
such an action which, if applied in the design of the action, will avoid 
a significant effect on the environment.
    (4) Scope of Environmental Assessment or Impact Statement--(i) 
Procedure and Content. After a Positive Threshold Decision has been 
made, or a determination is made under the pesticide procedures set 
forth in paragraph (b) of this section that an Environmental Assessment 
or Environmental Impact Statement is required, the originator of the 
action shall commence the process of identifying the significant issues 
relating to the proposed action and of determining the scope of the 
issues to be addressed in the Environmental Assessment or Environmental 
Impact Statement. The originator of an action within the classes of 
actions described in Sec.  216.2(d) shall commence this scoping process 
as soon as practicable. Persons having expertise relevant to the 
environmental aspects of the proposed action shall also participate in 
this scoping process. (Participants may include but are not limited to 
representatives of host governments, public and private institutions, 
the A.I.D. Mission staff and contractors.) This process shall result in 
a written statement which shall include the following matters:
    (a) A determination of the scope and significance of issues to be 
analyzed in the Environmental Assessment or Impact Statement, including 
direct and indirect effects of the project on the environment.
    (b) Identification and elimination from detailed study of the issues 
that are not significant or have been covered by earlier environmental 
review, or approved design considerations, narrowing the discussion of 
these issues to a brief presentation of why they will not have a 
significant effect on the environment.
    (c) A description of (1) the timing of the preparation of 
environmental analyses, including phasing if appropriate, (2) variations 
required in the format of

[[Page 944]]

the Environmental Assessment, and (3) the tentative planning and 
decision making schedule; and
    (d) A description of how the analysis will be conducted and the 
disciplines that will participate in the analysis.
    (ii) These written statements shall be reviewed and approved by the 
Bureau Environmental Officer.
    (iii) Circulation of scoping statement. To assist in the preparation 
of an Environmental Assessment, the Bureau Environmental Office may 
circulate copies of the written statement, together with a request for 
written comments, within thirty days, to selected federal agencies if 
that Officer believes comments by such federal agencies will be useful 
in the preparation of an Environmental Assessment. Comments received 
from reviewing federal agencies will be considered in the preparation of 
the Environmental Assessment and in the formulation of the design and 
implementation of the project, and will, together with the scoping 
statement, will be included in the project file.
    (iv) Change in Threshold Decision. If it becomes evident that the 
action will not have a significant effect on the environment (i.e., will 
not cause significant harm to the environment), the Positive Threshold 
Decision may be withdrawn with the concurrence of the Bureau 
Environmental Officer. In the case of an action included in Sec.  
216.2(d)(2), the request for withdrawal shall be made to the Bureau 
Environmental Officer.
    (5) Preparation of Environmental Assessments and Environmental 
Impact Statement. If the PID or PAIP is approved, and the Threshold 
Decision is positive, or the action is included in Sec.  216.2(d), the 
originator of the action will be responsible for the preparation of an 
Environmental Assessment or Environmental Impact Statement as required. 
Draft Environmental Impact Statements will be circulated for review and 
comment as part of the review of Project Papers and as outlined further 
in Sec.  216.7 of those procedures. Except as provided in paragraph 
(a)(7) of this section, final approval of the PP or PAAD and the method 
of implementation will include consideration of the Environmental 
Assessment of final Environmental Impact Statement.
    (6) Processing and review within A.I.D. (i) Initial Environmental 
Examinations, Environmental Assessments and final Environmental Impact 
Statements will be processed pursuant to standard A.I.D. procedures for 
project approval documents. Except as provided in paragraph (a)(7) of 
this section, Environmental Assessments and final Environmental Impact 
Statements will be reviewed as an integral part of the Project Paper or 
equivalent document. In addition to these procedures, Environmental 
Assessments will be reviewed and cleared by the Bureau Environmental 
Officer. They may also be reviewed by the Agency's Environmental 
Coordinator who will monitor the Environmental Assessment process.
    (ii) When project approval authority is delegated to field posts, 
Environmental Assessments shall be reviewed and cleared by the Bureau 
Environmental Officer prior to the approval of such actions.
    (iii) Draft and final Environmental Impact Statements will be 
reviewed and cleared by the Environmental Coordinator and the Office of 
the General Counsel.
    (7) Environmental review after authorization of financing. (i) 
Environmental review may be performed after authorization of a project, 
program or activity only with respect to subprojects or significant 
aspects of the project, program or activity that are unidentified at the 
time of authorization. Environmental review shall be completed prior to 
authorization for all subprojects and aspects of a project, program or 
activity that are identified.
    (ii) Environmental review should occur at the earliest time in 
design or implementation at which a meaningful review can be undertaken, 
but in no event later than when previously unidentified subprojects or 
aspects of projects, programs or activities are identified and planned. 
To the extent possible, adequate information to undertake deferred 
environmental review should be obtained before funds are obligated for 
unidentified subprojects or aspects of projects, programs or activities. 
(Funds may be obligated for the other aspects for which environmental 
review has been completed.) To avoid

[[Page 945]]

an irreversible commitment of resources prior to the conclusion of 
environmental review, the obligation of funds can be made incrementally 
as subprojects or aspects of projects, programs or activities are 
identified; or if necessary while planning continues, including 
environmental review, the agreement or other document obligating funds 
may contain appropriate convenants or conditions precedent to 
disbursement for unidentified subprojects or aspects of projects, 
programs or activities.
    (iii) When environmetal review must be deferred beyond the time some 
of the funds are to be disbursed (e.g. long lead times for the delivery 
of goods or services), the project agreement or other document 
obligating funds shall contain a covenant or covenants requiring 
environmental review, including an Environmental Assessment or 
Environmental Impact Statement, when appropriate, to be completed and 
taken into account prior to implementation of those subprojects or 
aspects of the project, program or activity for which environmental 
review is deferred. Such convenants shall ensure that implementation 
plans will be modified in accordance with environmental review if the 
parties decide that modifications are necessary.
    (iv) When environmental review will not be completed for an entire 
project, program or activity prior to authorization, the Initial 
Environmental Examination and Threshold Decision required under 
paragraphs (a)(1) and (2) of this section shall identify those aspects 
of the project, program or activity for which environmental review will 
be completed prior to the time financing is authorized. It shall also 
include those subprojects or aspects for which environmental review will 
be deferred, stating the reasons for deferral and the time when 
environmental review will be completed. Further, it shall state how an 
irreversible commitment of funds will be avoided until environmental 
review is completed. The A.I.D. officer responsible for making 
environmental decisions for such projects, programs or activities shall 
also be identified (the same officer who has decision making authority 
for the other aspects of implementation). This deferral shall be 
reviewed and approved by the officer making the Threshold Decision and 
the officer who authorizes the project, program or activity. Such 
approval may be made only after consultation with the Office of General 
Counsel for the purpose of establishing the manner in which conditions 
precedent to disbursement or covenants in project and other agreements 
will avoid an irreversible commitment of resources before environmental 
review is completed.
    (8) Monitoring. To the extent feasible and relevant, projects and 
programs for which Environmental Impact Statements or Environmental 
Assessments have been prepared should be designed to include measurement 
of any changes in environmental quality, positive or negative, during 
their implementation. This will require recording of baseline data at 
the start. To the extent that available data permit, originating offices 
of A.I.D. will formulate systems in collaboration with recipient 
nations, to monitor such impacts during the life of A.I.D.'s 
involvement. Monitoring implementation of projects, programs and 
activities shall take into account environmental impacts to the same 
extent as other aspects of such projects, programs and activities. If 
during implementation of any project, program or activity, whether or 
not an Environmental Assessment or Environmental Impact Statement was 
originally required, it appears to the Mission Director, or officer 
responsible for the project, program or activity, that it is having or 
will have a significant effect on the environment that was not 
previously studied in an Environmental Assessment or Environmental 
Impact Statement, the procedures contained in this part shall be 
followed including, as appropriate, a Threshold Decision, Scoping and an 
Environmental Assessment or Environmental Impact Statement.
    (9) Revisions. If, after a Threshold Decision is made resulting in a 
Negative Determination, a project is revised or new information becomes 
available which indicates that a proposed action might be ``major'' and 
its effects ``significant'', the Negative Determination will be reviewed 
and revised by the cognizant Bureau and an Environmental

[[Page 946]]

Assessment or Environmental Impact Statement will be prepared, if 
appropriate. Environmental Assessments and Environmental Impact 
Statements will be amended and processed appropriately if there are 
major changes in the project or program, or if significant new 
information becomes available which relates to the impact of the 
project, program or activity on the environment that was not considered 
at the time the Environmental Assessment or Environmental Impact 
Statement was approved. When on-going programs are revised to 
incorporate a change in scope or nature, a determination will be made as 
to whether such change may have an environmental impact not previously 
assessed. If so, the procedures outlined in this part will be followed.
    (10) Other approval documents. These procedures refer to certain 
A.I.D. documents such as PIDs, PAIPs, PPs and PAADs as the A.I.D. 
internal instruments for approval of projects, programs or activities. 
From time to time, certain special procedures, such as those in Sec.  
216.4, may not require the use of the aforementioned documents. In these 
situations, these environmental procedures shall apply to those special 
approval procedures, unless otherwise exempt, at approval times and 
levels comparable to projects, programs and activities in which the 
aforementioned documents are used.
    (b) Pesticide procedures--(1) Project Assistance. Except as provided 
in paragraph (b)(2) of this section, all proposed projects involving 
assistance for the procurement or use, or both, of pesticides shall be 
subject to the procedures prescribed in paragraphs (b)(1) (i) through 
(v) of this section. These procedures shall also apply, to the extent 
permitted by agreements entered into by A.I.D. before the effective date 
of these pesticide procedures, to such projects that have been 
authorized but for which pesticides have not been procured as of the 
effective date of these pesticide procedures.
    (i) When a project includes assistance for procurement or use, or 
both, of pesticides registered for the same or similar uses by USEPA 
without restriction, the Initial Environmental Examination for the 
project shall include a separate section evaluating the economic, social 
and environmental risks and benefits of the planned pesticide use to 
determine whether the use may result in significant environmental 
impact. Factors to be considered in such an evaluation shall include, 
but not be limited to the following:
    (a) The USEPA registration status of the requested pesticide;
    (b) The basis for selection of the requested pesticide;
    (c) The extent to which the proposed pesticide use is part of an 
integrated pest management program;
    (d) The proposed method or methods of application, including 
availability of appropriate application and safety equipment;
    (e) Any acute and long-term toxicological hazards, either human or 
environmental, associated with the proposed use and measures available 
to minimize such hazards;
    (f) The effectiveness of the requested pesticide for the proposed 
use;
    (g) Compatibility of the proposed pesticide with target and 
nontarget ecosystems;
    (h) The conditions under which the pesticide is to be used, 
including climate, flora, fauna, geography, hydrology, and soils;
    (i) The availability and effectiveness of other pesticides or 
nonchemical control methods;
    (j) The requesting country's ability to regulate or control the 
distribution, storage, use and disposal of the requested pesticide;
    (k) The provisions made for training of users and applicators; and
    (l) The provisions made for monitoring the use and effectiveness of 
the pesticide.

In those cases where the evaluation of the proposed pesticide use in the 
Initial Environmental Examination indicates that the use will 
significantly effect the human environment, the Threshold Decision will 
include a recommendation for the preparation of an Environmental 
Assessment or Environmental Impact Statement, as appropriate. In the 
event a decision is made to approve the planned pesticide use, the 
Project Paper shall include to the extent practicable, provisions 
designed to mitigate

[[Page 947]]

potential adverse effects of the pesticide. When the pesticide 
evaluation section of the Initial Environmental Examination does not 
indicate a potentially unreasonable risk arising from the pesticide use, 
an Environmental Assessment or Environmental Impact Statement shall 
nevertheless be prepared if the environmental effects of the project 
otherwise require further assessment.
    (ii) When a project includes assistance for the procurement or use, 
or both, of any pesticide registered for the same or similar uses in the 
United States but the proposed use is restricted by the USEPA on the 
basis of user hazard, the procedures set forth in paragraph (b)(1)(i) of 
this section will be followed. In addition, the Initial Environmental 
Examination will include an evaluation of the user hazards associated 
with the proposed USEPA restricted uses to ensure that the 
implementation plan which is contained in the Project Paper incorporates 
provisions for making the recipient government aware of these risks and 
providing, if necessary, such technical assistance as may be required to 
mitigate these risks. If the proposed pesticide use is also restricted 
on a basis other than user hazard, the procedures in paragraph 
(b)(1)(iii) of this section shall be followed in lieu of the procedures 
in this section.
    (iii) If the project includes assistance for the procurement or use, 
or both of:
    (a) Any pesticide other than one registered for the same or similar 
uses by USEPA without restriction or for restricted use on the basis of 
user hazard; or
    (b) Any pesticide for which a notice of rebuttable presumption 
against re- registration, notice of intent to cancel, or notice of 
intent to suspend has been issued by USEPA.

The Threshold Decision will provide for the preparation of an 
Environmental Assessment or Environmental Impact Statement, as 
appropriate (Sec.  216.6(a)). The EA or EIS shall include, but not be 
limited to, an analysis of the factors identified in paragraph (b)(1)(i) 
of this section.
    (iv) Notwithstanding the provisions of paragraphs (b)(1) (i) through 
(iii) of this section, if the project includes assistance for the 
procurement or use, or both, of a pesticide against which USEPA has 
initiated a regulatory action for cause, or for which it has issued a 
notice of rebuttable presumption against reregistration, the nature of 
the action or notice, including the relevant technical and scientific 
factors will be discussed with the requesting government and considered 
in the IEE and, if prepared, in the EA or EIS. If USEPA initiates any of 
the regulatory actions above against a pesticide subsequent to its 
evaluation in an IEE, EA or EIS, the nature of the action will be 
discussed with the recipient government and considered in an amended IEE 
or amended EA or EIS, as appropriate.
    (v) If the project includes assistance for the procurement or use, 
or both of pesticides but the specific pesticides to be procured or used 
cannot be identified at the time the IEE is prepared, the procedures 
outlined in paragraphs (b) (i) through (iv) of this section will be 
followed when the specific pesticides are identified and before 
procurement or use is authorized. Where identification of the pesticides 
to be procured or used does not occur until after Project Paper 
approval, neither the procurement nor the use of the pesticides shall be 
undertaken unless approved, in writing, by the Assistant Administrator 
(or in the case of projects authorized at the Mission level, the Mission 
Director) who approved the Project Paper.
    (2) Exceptions to pesticide procedures. The procedures set forth in 
paragraph (b)(1) of this section shall not apply to the following 
projects including assistance for the procurement or use, or both, of 
pesticides.
    (i) Projects under emergency conditions.

Emergency conditions shall be deemed to exist when it is determined by 
the Administrator, A.I.D., in writing that:
    (a) A pest outbreak has occurred or is imminent; and
    (b) Significant health problems (either human or animal) or 
significant economic problems will occur without the prompt use of the 
proposed pesticide; and
    (c) Insufficient time is available before the pesticide must be used 
to

[[Page 948]]

evaluate the proposed use in accordance with the provisions of this 
regulation.
    (ii) Projects where A.I.D. is a minor donor, as defined in Sec.  
216.1(c)(12) of this part, to a multi-donor project.
    (iii) Projects including assistance for procurement or use, or both, 
of pesticides for research or limited field evaluation purposes by or 
under the supervision of project personnel. In such instances, however, 
A.I.D. will ensure that the manufacturers of the pesticides provide 
toxicological and environmental data necessary to safeguard the health 
or research personnel and the quality of the local environment in which 
the pesticides will be used. Furthermore, treated crops will not be used 
for human or animal consumption unless appropriate tolerances have been 
established by EPA or recommended by FAO/WHO, and the rates and 
frequency of application, together with the prescribed preharvest 
intervals, do not result in residues exceeding such tolerances. This 
prohibition does not apply to the feeding of such crops to animals for 
research purposes.
    (3) Non-project assistance. In a very few limited number of 
circumstances A.I.D. may provide non-project assistance for the 
procurement and use of pesticides. Assistance in such cases shall be 
provided if the A.I.D. Administrator determines in writing that (i) 
emergency conditions, as defined in paragraph (b)(2)(i) of this section 
exists; or (ii) that compelling circumstances exist such that failure to 
provide the proposed assistance would seriously impede the attainment of 
U.S. foreign policy objectives or the objectives of the foreign 
assistance program. In the latter case, a decision to provide the 
assistance will be based to the maximum extent practicable, upon a 
consideration of the factors set forth in paragraph (b)(1)(i) of this 
section and, to the extent available, the history of efficacy and safety 
covering the past use of the pesticide the in recipient country.

[43 FR 20491, May 12, 1978, as amended at 45 FR 70245, Oct. 23, 1980]



Sec.  216.4  Private applicants.

    Programs, projects or activities for which financing from A.I.D. is 
sought by private applicants, such as PVOs and educational and research 
institutions, are subject to these procedures. Except as provided in 
Sec.  216.2 (b), (c) or (d), preliminary proposals for financing 
submitted by private applicants shall be accompanied by an Initial 
Environmental Examination or adequate information to permit preparation 
of an Initial Environmental Examination. The Threshold Decision shall be 
made by the Mission Director for the country to which the proposal 
relates, if the preliminary proposal is submitted to the A.I.D. Mission, 
or shall be made by the officer in A.I.D. who approves the preliminary 
proposal. In either case, the concurrence of the Bureau Environmental 
Officer is required in the same manner as in Sec.  216.3(a)(2), except 
for PVO projects approved in A.I.D. Missions with total life of project 
costs less than $500,000. Thereafter, the same procedures set forth in 
Sec.  216.3 including as appropriate scoping and Environmental 
Assessments or Environmental Impact Statements, shall be applicable to 
programs, projects or activities submitted by private applicants. The 
final proposal submitted for financing shall be treated, for purposes of 
these procedures, as a Project Paper. The Bureau Environmental Officer 
shall advise private applicants of studies or other information 
foreseeably required for action by A.I.D.

[45 FR 70247, Oct. 23, 1980]



Sec.  216.5  Endangered species.

    It is A.I.D. policy to conduct its assistance programs in a manner 
that is sensitive to the protection of endangered or threatened species 
and their critical habitats. The Initial Environmental Examination for 
each project, program or activity having an effect on the environment 
shall specifically determine whether the project, program or activity 
will have an effect on an endangered or threatened species, or critical 
habitat. If the proposed project, program or activity will have the 
effect of jeopardizing an endangered or threatened species or of 
adversely modifying its critical habitat, the Threshold Decision shall 
be a Positive Determination and an Environmental Assessment or 
Environmental Impact Statement completed as appropriate,

[[Page 949]]

which shall discuss alternatives or modifications to avoid or mitigate 
such impact on the species or its habitat.

[45 FR 70247, Oct. 23, 1980]



Sec.  216.6  Environmental assessments.

    (a) General purpose. The purpose of the Environmental Assessment is 
to provide Agency and host country decision makers with a full 
discussion of significant environmental effects of a proposed action. It 
includes alternatives which would avoid or minimize adverse effects or 
enhance the quality of the environment so that the expected benefits of 
development objectives can be weighed against any adverse impacts upon 
the human environment or any irreversible or irretrievable commitment of 
resources.
    (b) Collaboration with affected nation on preparation. Collaboration 
in obtaining data, conducting analyses and considering alternatives will 
help build an awareness of development associated environmental problems 
in less developed countries as well as assist in building an indigenous 
institutional capability to deal nationally with such problems. 
Missions, Bureaus and Offices will collaborate with affected countries 
to the maximum extent possible, in the development of any Environmental 
Assessments and consideration of environmental consequences as set forth 
therein.
    (c) Content and form. The Environmental Assessment shall be based 
upon the scoping statement and shall address the following elements, as 
appropriate:
    (1) Summary. The summary shall stress the major conclusions, areas 
of controversy, if any, and the issues to be resolved.
    (2) Purpose. The Environmental Assessment shall briefly specify the 
underlying purpose and need to which the Agency is responding in 
proposing the alternatives including the proposed action.
    (3) Alternatives including the proposed action. This section should 
present the environmental impacts of the proposal and its alternatives 
in comparative form, thereby sharpening the issues and providing a clear 
basis for choice among options by the decision maker. This section 
should explore and evaluate reasonable alternatives and briefly discuss 
the reasons for eliminating those alternatives which were not included 
in the detailed study; devote substantial treatment to each alternative 
considered in detail including the proposed action so that reviewers may 
evaluate their comparative merits; include the alternative of no action; 
identify the Agency's preferred alternative or alternatives, if one or 
more exists; include appropriate mitigation measures not already 
included in the proposed action or alternatives.
    (4) Affected environment. The Environmental Assessment shall 
succinctly describe the environment of the area(s) to be affected or 
created by the alternatives under consideration. The descriptions shall 
be no longer than is necessary to understand the effects of the 
alternatives. Data and analyses in the Environmental Assessment shall be 
commensurate with the significance of the impact with less important 
material summarized, consolidated or simply referenced.
    (5) Environmental consequences. This section forms the analytic 
basis for the comparisons under paragraph (c)(3) of this section. It 
will include the environmental impacts of the alternatives including the 
proposed action; any adverse effects that cannot be avoided should the 
proposed action be implemented; the relationship between short-term uses 
of the environment and the maintenance and enhancement of long-term 
productivity; and any irreversible or irretrievable commitments of 
resources which would be involved in the proposal should it be 
implemented. It should not duplicate discussions in paragraph (c)(3) of 
this section. This section of the Environmental Assessment should 
include discussions of direct effects and their significance; indirect 
effects and their significance; possible conflicts between the proposed 
action and land use plans, policies and controls for the areas 
concerned; energy requirements and conservation potential of various 
alternatives and mitigation measures; natural or depletable resource 
requirements and conservation potential of various requirements and 
mitigation measures; urban quality; historic and

[[Page 950]]

cultural resources and the design of the built environment, including 
the reuse and conservation potential of various alternatives and 
mitigation measures; and means to mitigate adverse environmental 
impacts.
    (6) List of preparers. The Environmental Assessment shall list the 
names and qualifications (expertise, experience, professional 
discipline) of the persons primarily responsible for preparing the 
Environmental Assessment or significant background papers.
    (7) Appendix. An appendix may be prepared.
    (d) Program assessment. Program Assessments may be appropriate in 
order to assess the environmental effects of a number of individual 
actions and their cumulative environmental impact in a given country or 
geographic area, or the environmental impacts that are generic or common 
to a class of agency actions, or other activities which are not country-
specific. In these cases, a single, programmatic assessment will be 
prepared in A.I.D./Washington and circulated to appropriate overseas 
Missions, host governments, and to interested parties within the United 
States. To the extent practicable, the form and content of the 
programmatic Environmental Assessment will be the same as for project 
Assessments. Subsequent Environmental Assessments on major individual 
actions will only be necessary where such follow-on or subsequent 
activities may have significant environmental impacts on specific 
countries where such impacts have not been adequately evaluated in the 
programmatic Environmental Assessment. Other programmatic evaluations of 
classes of actions may be conducted in an effort to establish additional 
categorical exclusions or design standards or criteria for such classes 
that will eliminate or minimize adverse effects of such actions, enhance 
the environmental effect of such action or reduce the amount of 
paperwork or time involved in these procedures. Programmatic evaluations 
conducted for the purpose of establishing additional categorical 
exclusions under Sec.  216.2(c) or design considerations that will 
eliminate significant effects for classes of actions shall be made 
available for public comment before the categorical exclusions or design 
standards or criteria are adopted by A.I.D. Notice of the availability 
of such document shall be published in the Federal Register. Additional 
categorical exclusions shall be adopted by A.I.D. upon the approval of 
the Administrator, and design consideration in accordance with usual 
agency procedures.
    (e) Consultation and review. (1) When Environmental Assessments are 
prepared on activities carried out within or focused on specific 
developing countries, consultation will be held between A.I.D. staff and 
the host government both in the early stages of preparation and on the 
results and significance of the completed Assessment before the project 
is authorized.
    (2) Missions will encourage the host government to make the 
Environmental Assessment available to the general public of the 
recipient country. If Environmental Assessments are prepared on 
activities which are not country-specific, the Assessment will be 
circulated by the Environmental Coordinator to A.I.D.'s Overseas 
Missions and interested governments for information, guidance and 
comment and will be made available in the U.S. to interested parties.
    (f) Effect in other countries. In a situation where an analysis 
indicates that potential effects may extend beyond the national 
boundaries of a recipient country and adjacent foreign nations may be 
affected, A.I.D. will urge the recipient country to consult with such 
countries in advance of project approval and to negotiate mutually 
acceptable accommodations.
    (g) Classified material. Environmental Assessments will not normally 
include classified or administratively controlled material. However, 
there may be situations where environmental aspects cannot be adequately 
discussed without the inclusion of such material. The handling and 
disclosure of classified or administratively controlled material shall 
be governed by 22 CFR part 9. Those portions of an Environmental 
Assessment which are not classified or administratively controlled will 
be made available to persons outside the Agency as provided for in 22 
CFR part 212.

[45 FR 70247, Oct. 23, 1980]

[[Page 951]]



Sec.  216.7  Environmental impact statements.

    (a) Applicability. An Environmental Impact Statement shall be 
prepared when agency actions significantly affect:
    (1) The global environment or areas outside the jurisdiction of any 
nation (e.g., the oceans);
    (2) The environment of the United States; or
    (3) Other aspects of the environment at the discretion of the 
Administrator.
    (b) Effects on the United States: Content and form. An Environmental 
Impact Statement relating to paragraph (a)(2) of this section shall 
comply with the CEQ Regulations. With respect to effects on the United 
States, the terms environment and significant effect wherever used in 
these procedures have the same meaning as in the CEQ Regulations rather 
than as defined in Sec.  216.1(c) (12) and (13) of these procedures.
    (c) Other effects: Content and form. An Environmental Impact 
Statement relating to paragraphs (a)(1) and (a)(3) of this section will 
generally follow the CEQ Regulations, but will take into account the 
special considerations and concerns of A.I.D. Circulation of such 
Environmental Impact Statements in draft form will precede approval of a 
Project Paper or equivalent and comments from such circulation will be 
considered before final project authorization as outlined in Sec.  216.3 
of these procedures. The draft Environmental Impact Statement will also 
be circulated by the Missions to affected foreign governments for 
information and comment. Draft Environmental Impact Statements generally 
will be made available for comment to Federal agencies with jurisdiction 
by law or special expertise with respect to any environmental impact 
involved, and to public and private organizations and individuals for 
not less than forty-five (45) days. Notice of availability of the draft 
Environmental Impact Statements will be published in the Federal 
Register. Cognizant Bureaus and Offices will submit these drafts for 
circulation through the Environmental Coordinator who will have the 
responsibility for coordinating all such communications with persons 
outside A.I.D. Any comments received by the Environmental Coordinator 
will be forwarded to the originating Bureau or Office for consideration 
in final policy decisions and the preparation of a final Environmental 
Impact Statement. All such comments will be attached to the final 
Statement, and those relevant comments not adequately discussed in the 
draft Environmental Impact Statement will be appropriately dealt with in 
the final Environmental Impact Statement. Copies of the final 
Environmental Impact Statement, with comments attached, will be sent by 
the Environmental Coordinator to CEQ and to all other Federal, state, 
and local agencies and private organizations that made substantive 
comments on the draft, including affected foreign governments. Where 
emergency circumstances or considerations of foreign policy make it 
necessary to take an action without observing the provisions of Sec.  
1506.10 of the CEQ Regulations, or when there are overriding 
considerations of expense to the United States or foreign governments, 
the originating Office will advise the Environmental Coordinator who 
will consult with Department of State and CEQ concerning appropriate 
modification of review procedures.

[45 FR 70249, Oct. 23, 1980]



Sec.  216.8  Public hearings.

    (a) In most instances AID will be able to gain the benefit of public 
participation in the impact statement process through circulation of 
draft statements and notice of public availability in CEQ publications. 
However, in some cases the Administrator may wish to hold public 
hearings on draft Environmental Impact Statements. In deciding whether 
or not a public hearing is appropriate, Bureaus in conjunction with the 
Environmental Coordinator should consider:
    (1) The magnitude of the proposal in terms of economic costs, the 
geographic area involved, and the uniqueness or size of commitment of 
the resources involved;
    (2) The degree of interest in the proposal as evidenced by requests 
from the public and from Federal, state and

[[Page 952]]

local authorities, and private organizations and individuals, that a 
hearing be held;
    (3) The complexity of the issue and likelihood that information will 
be presented at the hearing which will be of assistance to the Agency; 
and
    (4) The extent to which public involvement already has been achieved 
through other means, such as earlier public hearings, meetings with 
citizen representatives, and/or written comments on the proposed action.
    (b) If public hearings are held, draft Environmental Impact 
Statements to be discussed should be made available to the public at 
least fifteen (15) days prior to the time of the public hearings, and a 
notice will be placed in the Federal Register giving the subject, time 
and place of the proposed hearings.

[41 FR 26913, June 30, 1976. Redesignated at 45 FR 70249, Oct. 23, 1980]



Sec.  216.9  Bilateral and multilateral studies and concise reviews 
of environmental issues.

    Notwithstanding anything to the contrary in these procedures, the 
Administrator may approve the use of either of the following documents 
as a substitute for an Environmental Assessment (but not a substitute 
for an Environmental Impact Statement) required under these procedures:
    (a) Bilateral or multilateral environmental studies, relevant or 
related to the proposed action, prepared by the United States and one or 
more foreign countries or by an international body or organization in 
which the United States is a member or participant; or
    (b) Concise reviews of the environmental issues involved including 
summary environmental analyses or other appropriate documents.

[45 FR 70249, Oct. 23, 1980]



Sec.  216.10  Records and reports.

    Each Agency Bureau will maintain a current list of activities for 
which Environmental Assessments and Environmental Impact Statements are 
being prepared and for which Negative Determinations and Declarations 
have been made. Copies of final Initial Environmental Examinations, 
scoping statements, Assessments and Impact Statements will be available 
to interested Federal agencies upon request. The cognizant Bureau will 
maintain a permanent file (which may be part of its normal project 
files) of Environmental Impact Statements, Environmental Assessments, 
final Initial Environmental Examinations, scoping statements, 
Determinations and Declarations which will be available to the public 
under the Freedom of Information Act. Interested persons can obtain 
information or status reports regarding Environmental Assessments and 
Environmental Impact Statements through the A.I.D. Environmental 
Coordinator.

[45 FR 70249, Oct. 23, 1980]



PART 217_NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS 
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                      Subpart A_General Provisions

Sec.
217.1 Purpose.
217.2 Application.
217.3 Definitions.
217.4 Discrimination prohibited.
217.5 Assurances required.
217.6 Remedial action, voluntary action, and self-evaluation.
217.7 Designation of responsible employee and adoption of grievance 
          procedures.
217.8 Notice.
217.9 Administrative requirements for small recipients.
217.10 Effect of state or local law or other requirements and effect of 
          employment opportunities.

                     Subpart B_Employment Practices

217.11 Discrimination prohibited.
217.12 Reasonable accommodation.
217.13 Employment criteria.
217.14 Preemployment inquiries.
217.15-217.20 [Reserved]

                         Subpart C_Accessibility

217.21 Discrimination prohibited.
217.22 Existing facilities.
217.23 New construction.
217.24-217.40 [Reserved]

                    Subpart D_Postsecondary Education

217.41 Application of this subpart.
217.42 Admissions and recruitment.

[[Page 953]]

217.43 Treatment of students; general.
217.44 Academic adjustments.
217.45 Housing.
217.46 Financial and employment assistance to students.
217.47 Nonacademic services.
217.48-217.60 [Reserved]

                          Subpart E_Procedures

217.61 Procedures.
217.62-217.99 [Reserved]

Appendix A to Part 217--Federal Financial Assistance to Which These 
          Regulations Apply

    Authority: 29 U.S.C. 794, unless otherwise noted.

    Source: 45 FR 66415, Oct. 6, 1980, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 217 appear at 68 FR 
51362, Aug. 26, 2003.



                      Subpart A_General Provisions



Sec.  217.1  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 
within the United States receiving Federal financial assistance.



Sec.  217.2  Application.

    This part applies to all programs or activities carried on within 
the United States by recipients of Federal financial assistance pursuant 
to any authority held or delegated by the Administrator of the Agency 
for International Development, including the types of Federal financial 
assistance listed in appendix A of this part. (appendix A may be revised 
from time to time by notice in the Federal Register). It applies to 
money paid, property transferred, or other Federal financial assistance 
extended after the effective date of this regulation, even if the 
application for such assistance is approved prior to such effective 
date. This part does not apply to (a) any Federal financial assistance 
by way of insurance or guaranty contracts, (b) money paid, property 
transferred or other assistance extended before the effective date of 
this part, (c) any assistance to any individual who is the ultimate 
beneficiary, and (d) any procurement of goods or services, including the 
procurement of training. This part does not bar selection and treatment 
reasonably related to the foreign assistance objective or such other 
authorized purpose as the Federal assistance may have. It does not bar 
selections which are limited to particular groups where the purpose of 
the Federal financial assistance calls for such a limitation nor does it 
bar special treatment including special courses of training, orientation 
or counseling consistent with such purpose.



Sec.  217.3  Definitions.

    As used in this part, the term:
    (a) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as 
amended by the Rehabilitation Comprehensive Services and Developmental 
Disabilities Amendments of 1979, Pub. L. 95-602.
    (b) Section 504 means section 504 of the Act.
    (c) Agency means the Agency for International Development.
    (d) The term Administrator means the Administrator of the Agency for 
International Development or any person specifically designated by him 
to perform any function provided for under this part.
    (e) 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 and any sovereign foreign government.
    (f) Applicant for assistance means one who submits an application, 
request, or plan required to be approved by an Agency official or by a 
recipient as a condition to becoming a recipient.
    (g) 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 Agency provides or 
otherwise makes available assistance in the form of:
    (1) Funds;
    (2) Services of Federal personnel; or

[[Page 954]]

    (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 the 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.
    (h) 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.
    (i) Handicapped person. (1) ``Handicapped persons'' means any person 
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 (i)(1) of this section the phrase:
    (i) 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. Such term does not 
include alcoholism or drug abuse, where by reason of such condition the 
individual is prevented from performing the duties of the job in 
question or whose employment, by reason of such current alcohol or drug 
abuse, would constitute a direct threat to property or the safety of 
others.
    (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 substantially 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 
towards such impairment; or (C) has none of the impairments defined in 
paragraph (i)(2)(i) of this section but is treated by a recipient as 
having such an impairment.
    (j) Qualified handicapped person means:
    (1) With respect to employment, a handicapped person who, with or 
without reasonable accommodation, can perform the essential functions of 
the job in question;
    (2) 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;
    (3) With respect to other services, a handicapped person who meets 
the essential eligibility requirements for the receipt of such services.
    (k) Handicap means any condition or characteristic that renders a 
person a handicapped person as defined in paragraph (j) of this section.
    (1) Program or activity means all of the operations of any entity 
described in paragraphs (l)(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--

[[Page 955]]

    (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 (l)(1), (2), or (3) of this section.

[45 FR 66415, Oct. 6, 1980, as amended at 68 FR 51362, Aug. 26, 2003]



Sec.  217.4  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 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, benefits, 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 programs or 
activities provided in accordance with this part, a recipient may not 
deny a qualified handicapped person the opportunity to participate in 
such aid, benefits, or service 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 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

[[Page 956]]

(ii) that have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of the program or 
activity with respect to handicapped persons.
    (6) As used in this section, the aid, benefit, or service provided 
under a program or activity receiving Federal financial assistance 
includes any aid, benefit, or service provided in or through a facility 
that has been constructed, expanded, altered, leased or rented, or 
otherwise acquired, in whole or in part, with Federal financial 
assistance.
    (c) Aid, benefits, or services limited by Federal law. The exclusion 
of nonhandicapped persons from aid, benefits, or services program 
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.

[45 FR 66415, Oct. 6, 1980, as amended at 68 FR 51362, Aug. 26, 2003]



Sec.  217.5  Assurances required.

    (a) Assurances. An applicant for Federal financial assistance to 
which this part applies shall submit an assurance, on a form specified 
by the Administrator, that the program or activity will be operated in 
compliance with this part. An applicant may incorporate these assurances 
by reference in subsequent applications to the Agency.
    (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.
    (c) Covenants. (1) Where Federal financial assistance is provided in 
the form of real property or interest in the property from the Agency 
the instrument effecting or recording this transfer shall contain a 
covenant running with the land to assure nondiscrimination for the 
period during which the real property is used for a purpose involving 
the provision of similar services or benefits.
    (2) Where no transfer of property is involved but property is 
purchased or improved with Federal financial assistance, the recipient 
shall agree to include the covenant described in paragraph (c)(1) of 
this section in the instrument effecting or recording any subsequent 
transfer of the property.
    (3) Where Federal financial assistance is provided in the form of 
real property or interest in the property from the Agency the covenant 
shall also include a condition coupled with a right to be reserved by 
the Agency to revert title to the property in the event of a breach of 
the covenant. If a transferee of real property proposes to mortgage or 
otherwise encumber the real property as security for financing 
construction of new, or improvement of existing, facilities on the 
property for the purposes for which the property was transferred, the 
Administrator may, upon request of the transferee and if necessary to 
accomplish such financing and upon such conditions as he or she deems 
appropriate, agree to forbear the exercise of such right to revert title 
for so long as the lien of such mortgage or other encumbrance remains 
effective.



Sec.  217.6  Remedial action, voluntary action, and self-evaluation.

    (a) Remedial action. (1) If the Administrator 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 Administrator deems necessary to overcome the effects of 
the discrimination.
    (2) Where a recipient is found to have discriminated against persons 
on the

[[Page 957]]

basis of handicap in violation of section 504 or this part and where 
another recipient exercises control over the recipient that has 
discriminated, the Administrator, where appropriate, may require either 
or both recipients to take remedial action.
    (3) The Administrator 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 
presently in the program or activity but not receiving full benefits or 
equal and integrated treatment within the program or (iii) 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 effect 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 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 requirement 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 Administrator upon request: (i) A 
list of the interested persons consulted, (ii) a description of areas 
examined and any problems identified, and (iii) a description of any 
modifications made and of any remedial steps taken.



Sec.  217.7  Designation of responsible employee and adoption 
of grievance procedures.

    (a) Designation of responsible employee. A recipient that employs 
fifteen or 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.  217.8  Notice.

    (a) A recipient that employs fifteen or more persons shall take 
appropriate initial and continuing steps to notify participants, 
beneficiaries, applicants, and employees, including those with impaired 
vision or hearing, and unions or professional organizations holding 
collective bargaining or professional agreements with the recipient that 
it does not discriminate on the basis of 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.  217.7(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

[[Page 958]]

posting of notices, publication in newspapers and magazines, placement 
of notices in recipients' 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.



Sec.  217.9  Administrative requirements for small recipients.

    The Administrator may require any recipient with fewer than fifteen 
employees, or any class of such recipients, to comply with Sec. Sec.  
217.7 and 217.8 in whole or in part, when the Administrator finds a 
violation of this part or finds that such compliance will not 
significantly impair the ability of the recipient or class of recipients 
to provide benefits or services.



Sec.  217.10  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.  217.11  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 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 limit, segregate, or classify applicants or employees in any way 
that adversely affects their opportunities or status because of 
handicap.
    (3) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants 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 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

[[Page 959]]

inconsistent term of any collective bargaining agreement to which it is 
a party.



Sec.  217.12  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 of 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 recipients 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 made reasonable accommodation to the physical or mental 
limitations of the employee or applicant.



Sec.  217.13  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 Administrator to be 
available.
    (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.  217.14  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.  217.6(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.  217.6(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,

[[Page 960]]

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 confidentially 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.  217.15-217.20  [Reserved]



                         Subpart C_Accessibility



Sec.  217.21  Discrimination prohibited.

    No qualified handicapped person shall, because a recipient's 
facilities within the United States 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.  217.22  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 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 
handicapped persons.
    (b) Methods. A recipient may comply with the requirement of 
paragraph (a) of this section through such means as redesign of 
equipment, reassignment of classes or other services to accessible 
buildings, alteration of existing facilities, assignment of aids to 
beneficiaries, and construction of new facilities in conformance with 
the requirements of Sec.  217.23, or any other methods that may result 
in making its program or activity accessible to 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(s) of this section, a recipient 
shall give priority to those methods that serve handicapped persons in 
the most integrated setting appropriate.
    (c) 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.
    (d) 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 handicapped persons or 
organizations representing 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 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 Sec.  217.22(a) and, if the

[[Page 961]]

time period of the transition plan is longer than one year, identify 
steps that will be taken during each year of the transition period; and
    (4) Indicate the person responsible for implementation of the plan.
    (e) Notice. The recipient shall adopt and implement procedures to 
ensure that interested persons, including persons with impaired vision 
or hearing, can obtain information as to the existence and location of 
services, activities, and facilities that are accessible to and usable 
by handicapped persons.

[45 FR 66415, Oct. 6, 1980, as amended at 68 FR 51362, Aug. 26, 2003]



Sec.  217.23  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 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 handicapped persons.
    (c) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as 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.

[45 FR 66415, Oct. 6, 1980, as amended at 55 FR 52138, 52141, Dec. 19, 
1990]



Sec. Sec.  217.24-217.40  [Reserved]



                    Subpart D_Postsecondary Education



Sec.  217.41  Application of this subpart.

    Subpart D applies within the United States to postsecondary 
education programs or activities, including postsecondary vocational 
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 within the United States.



Sec.  217.42  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 limitation 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 
Administrator to be available;
    (3) Shall assure itself that (i) admissions tests are selected and 
administered so as to best to ensure that, when

[[Page 962]]

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.  217.6(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.  217.6(b), 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.  217.43  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.



Sec.  217.44  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, 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

[[Page 963]]

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 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 attendants, individually prescribed devices, 
readers for personal use or study, or other devices or services of a 
personal nature.



Sec.  217.45  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.  217.46  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 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.

[[Page 964]]

    (b) Assistance in making available outside employment. A recipient 
that assists any agency, organization, or person in providing employment 
opportunities to any of its students shall assure itself that such 
employment opportunities, as a whole, are 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.  217.47  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.  217.43(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 interest 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.



Sec. Sec.  217.48-217.60  [Reserved]



                          Subpart E_Procedures



Sec.  217.61  Procedures.

    The procedural provisons applicable to title VI of the Civil Rights 
Act of 1964 apply to this part. These procedures are found in Sec. Sec.  
209.6-209.13 of this title.



Sec. Sec.  217.62-217.99  [Reserved]





Sec. Appendix A to Part 217--Federal Financial Assistance to Which These 
                            Regulations Apply

    1. Grants to research and educational institutions in the United 
States to strengthen their capacity to develop and carry out programs 
concerned with the economic and social development of developing 
countries. (Section 122(d), Foreign Assistance Act of 1961, as amended, 
22 U.S.C. 2151(d).)
    2. Grants to land grant and other qualified agricultural 
universities and colleges in the United States to develop their 
capabilities to assist developing countries in agricultural teaching, 
research and extension services. (Section 297, Foreign Assistance Act of 
1961, as amended, 22 U.S.C. 2220(b).)
    3. Grants to private and voluntary agencies, non-profit 
organizations, educational institutions, and other qualified 
organizations for programs in the United States to promote the economic 
and social development of developing countries. (Section 103--106, 
Foreign Assistance Act of 1961, as amended, 22 U.S.C. 2151a--2151d.)



PART 218_NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS OR ACTIVITIES 
RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                            Subpart A_General

Sec.
218.01 What is the purpose of age discrimination regulations?

[[Page 965]]

218.02 To what programs or activities do these regulations apply?
218.03 Definitions.

         Subpart B_Standards for Determining Age Discrimination

218.11 Standards.

                  Subpart C_Duties of Agency Recipients

218.21 General responsibilities.
218.22 Notice to subrecipients.
218.23 Self-evaluation.
218.24 Information requirements.

    Subpart D_Investigation, Conciliation, and Enforcement Procedures

218.31 Compliance reviews.
218.32 Complaints.
218.33 Mediation.
218.34 Investigation.
218.35 Prohibition against intimidation or retaliation.
218.36 Compliance procedure.
218.37 Hearings, decisions, post-termination proceedings.
218.38 Remedial action by recipients.
218.39 Alternate funds disbursal procedure.

Appendix A to Part 218--List of Federal Financial Assistance
Appendix B to Part 218--List of Types of Federal Financial Assistance
Appendix C to Part 218--List of Types of Federal Financial Assistance

    Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 
6101 et seq.; 45 CFR part 90; 22 U.S.C. 2658, unless otherwise noted.

    Source: 45 FR 62980, Sept. 23, 1980, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 218 appear at 68 FR 
51363, Aug. 26, 2003.



                            Subpart A_General



Sec.  218.01  What is the purpose of the age discrimination regulations?

    The purpose of these regulations is to set out the policies and 
procedures for the three foreign affairs agencies (State, USICA and AID) 
under the Age Discrimination Act of 1975 and the government-wide age 
discrimination regulations at 45 CFR part 90 (published at 44 FR 33768, 
June 12, 1979). The Act and the government-wide regulations prohibit 
discrimination on the basis of age in programs or activities in the 
United States receiving Federal financial assistance. The Act and the 
government-wide regulations permit federally assisted programs or 
activities, and recipients of Federal funds, to continue to use age 
distinctions and factors other than age which meet the requirements of 
the Act and the government-wide regulations.



Sec.  218.02  To what programs or activities do these regulations apply?

    These regulations apply to each foreign affairs agency recipient and 
to each program or activity in the United States operated by the 
recipient which receives Federal financial assistance provided by any of 
these agencies.



Sec.  218.03  Definitions.

    (a) The following terms used in this part are defined in the 
government-wide regulations (45 CFR 90.4, 44 FR 33768):
    Act
    Action
    Age
    Age distinction
    Age-related term
    Federal financial assistance
    Recipient (including subrecipients)
    United States
    (b) As used in this part,
    (1) Agency means the Department of State, the U.S. International 
Communication Agency, and the Agency for International Development.
    (2) Secretary means the Secretary of State, the Director of the U.S. 
International Communication Agency, and the Administrator of the Agency 
for International Development, or the designee of such officer.
    (3) Subrecipient means any of the entities in the definition of 
``recipient'' to which a recipient extends or passes on Federal 
financial assistance. A subrecipient is generally regarded as a 
recipient of Federal financial assistance and has all the duties of a 
recipient in these regulations.
    (4) Program or activity means all of the operations of any entity 
described in paragraphs (b)(4)(i) through (iv) of this section, any part 
of which is extended Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or

[[Page 966]]

agency (and each other State or local government entity) to which the 
assistance is extended, in the case of assistance to a State or local 
government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity which is established by two or more of the 
entities described in paragraph (b)(4)(i), (ii), or (iii) of this 
section.

[45 FR 62980, Sept. 23, 1980, as amended at 68 FR 51363, Aug. 26, 2003]



         Subpart B_Standards for Determining Age Discrimination



Sec.  218.11  Standards.

    The standards each agency uses to determine whether an age 
distinction or age-related term is prohibited are set out in part 90 
(primarily subpart B) of 45 CFR.



                  Subpart C_Duties of Agency Recipients



Sec.  218.21  General responsibilities.

    Each agency recipient has primary responsibility to ensure that its 
programs or activities are in compliance with the Act, the government-
wide regulations, and these regulations.



Sec.  218.22  Notice to subrecipients.

    Where a recipient passes on Federal financial assistance from an 
agency to subrecipients, the recipient shall provide the subrecipients 
written notice to their obligations under these regulations.



Sec.  218.23  Self-evaluation.

    (a) Each recipient employing the equivalent of 15 or more full-time 
employees shall complete a one-time written self-evaluation of its 
compliance under the act within 18 months of the effective date of these 
regulations.
    (b) In its self-evaluation each recipient shall identify each age 
distinction it uses and justify each age distinction it imposes on the 
program or activity receiving Federal financial assistance from an 
agency.
    (c) Each recipient shall take corrective action whenever a self-
evaluation indicates a violation of these regulations.
    (d) Each recipient shall make the self-evaluation available on 
request to the agency and to the public for a period of three years 
following its completion.



Sec.  218.24  Information requirements.

    Each recipient shall:
    (a) Make available upon request to the agency information necessary 
to determine whether the recipient is complying with the regulations.
    (b) Permit reasonable access by the agency to the books, records, 
accounts, and other recipient facilities and sources of information to 
the extent necessary to determine whether a recipient is in compliance 
with these regulations.



    Subpart D_Investigation, Conciliation, and Enforcement Procedures



Sec.  218.31  Compliance reviews.

    (a) The agency may conduct compliance reviews and pre-award reviews 
of recipients that will permit it to investigate and correct violations 
of these regulations. The agency may conduct these reviews even in the 
absence of a

[[Page 967]]

complaint against a recipient. The review may be as comprehensive as 
necessary to determine whether a violation of these regulations has 
occurred.
    (b) If a compliance review or preaward review indicates a violation 
of this part, the agency will attempt to achieve voluntary compliance 
with the Act. If voluntary compliance cannot be achieved, the agency 
will arrange for enforcement as described in Sec.  143.36



Sec.  218.32  Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with an agency, alleging discrimination 
prohibited by these regulations based on an action occurring on or after 
July 1, 1979. A complainant shall file a complaint within 180 days from 
the date the complainant first had knowledge of the alleged act of 
discrimination. However, for good cause shown, the agency may extend 
this time limit.
    (b) The agency will attempt to facilitate the filing of complaints 
wherever possible, including taking the following measures:
    (1) Accepting as a sufficient complaint, any written statement which 
identifies the parties involved, describes generally the action or 
practice complained of, and is signed by the complainant.
    (2) Freely permitting a complainant to add information to the 
complaint to meet the requirements of a sufficient complaint.
    (3) Widely disseminating information regarding the obligations of 
recipients under the Act and these regulations.
    (4) Notifying the complainant and the recipient of their rights 
under the complaint procedure, including the right to have a 
representative at all stages of the complaint process.
    (5) Notifying the complainant and the recipient (or their 
representatives) of their right to contact the agency for information 
and assistance regarding the complaint resolution process.
    (c) The agency will return to the complainant any complaint outside 
the jurisdiction of these regulations and will state the reason(s) why 
it is outside the jurisdiction of these regulations.



Sec.  218.33  Mediation.

    (a) Referral of complaints for mediation. The agency will refer to 
the Federal Mediation and Conciliation Service all complaints that:
    (1) fall within the jurisdiction of these regulations; and
    (2) Contain all information necessary for further processing.
    (b) Both the complainant and the recipient shall participate in the 
mediation process to the extend necessary to reach an agreement or make 
an informed judgment that an agreement is not possible. There must be at 
least one meeting with the mediator, before the agency will accept a 
judgment that an agreement is not possible. However, the recipient and 
the complainant need not meet with the mediator at the same time.
    (c) If the complainant and the recipient reach an agreement, the 
mediator shall prepare a written statement of the agreement and have the 
complainant and recipient sign it. The mediator shall send a copy of the 
agreement to the agency. The agency shall take no further action on the 
complaint unless the complainant or the recipient fails to comply with 
the agreement.
    (d) The mediator shall protect the confidentiality of all 
information obtained in the course of the mediation process. No mediator 
shall testify in any adjudicative proceeding, produce any document, or 
otherwise disclose any information obtained in the course of the 
mediation process without prior approval of the head of the mediation 
agency.
    (e) The agency will use the mediation process for a maximum of 60 
days after receiving a compliant. Mediation ends if:
    (1) Sixty days elapse from the time the agency receives the 
complaints; or
    (2) Prior to the end of that 60-day period, an agreement is reached; 
or
    (3) Prior to the end of that 60-day period, the mediator determines 
that an agreement cannot be reached.
    (f) The mediator shall return unresolved complaints to the agency.



Sec.  218.34  Investigation.

    (a) Informal investigation. (1) The agency will investigate 
complaints that are unresolved after mediation or

[[Page 968]]

are reopened because of a violation of a mediation agreement.
    (2) As part of the initial investigation, the agency will use 
informal fact finding methods, including joint or separate discussions 
with the complainant and recipient to establish the facts, and, if 
possible, settle the complaint on terms that are mutually agreeable. The 
agency may seek the assistance of any involved State agency.
    (3) The agency will put any agreement in writing and have it signed 
by the parties and an authorized official of the agency.
    (4) The settlement shall not affect the operation of any other 
enforcement efforts of the agency, including compliance reviews and 
other individual complaints which may involve the recipient.
    (5) The settlement is not a finding of discrimination against a 
recipient.
    (b) Formal investigation. If the agency cannot resolve the complaint 
through informal investigation, it will begin to develop formal findings 
through further investigation of the complaint. If the investigation 
indicates a violation of these regulations, the agency will attempt to 
obtain voluntary compliance. If the agency cannot obtain voluntary 
compliance, it will begin enforcement as described in Sec.  218.36.



Sec.  218.35  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who:
    (a) Attempts to assert a right protected by these regulations; or
    (b) Cooperates in any mediation, investigation, hearing, or other 
part of the agency's investigation, conciliation, and enforcement 
process.



Sec.  218.36  Compliance procedure.

    (a) An agency may enforce the Act and these regulations through:
    (1) Termination of a recipient's Federal financial assistance from 
the agency under the program or activity involved where the recipient 
has violated the Act and these regulations. The determination of the 
recipient's violation may be made only after a recipient has had an 
opportunity for a hearing on the record before an administrative law 
judge. Therefore, cases which are settled in mediation or prior to a 
hearing, will not involve termination of a recipient's Federal financial 
assistance from the agency.
    (2) Any other means authorized by law including but not limited to:
    (i) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligations by the Act and these 
regulations.
    (ii) Use of any requirement of or referral to any Federal, state, or 
local government agency which will have the effect of correcting a 
violation of the Act or these regulations.
    (b) The agency will limit any termination under paragraph (a)(1) of 
this section to the particular recipient and particular program or 
activity the agency finds in violation of these regulations. The agency 
will not base any part of a termination on a finding with respect to any 
program or activity of the recipient which does not receive Federal 
financial assistance from the agency.
    (c) The agency will take no action under paragraph (a) of this 
section until:
    (1) The agency head has advised the recipient of its failure to 
comply with these regulations and has determined that voluntary 
compliance cannot be obtained.
    (2) Thirty days have lapsed after the agency head has sent a written 
report of the circumstances and grounds of the action to the committees 
of the Congress having legislative jurisdiction over the program or 
activity involved. The agency head shall file a report whenever any 
action is taken under paragraph (a) of this section.
    (d) The agency head also may defer granting new Federal financial 
assistance from the agency to a recipient when a hearing under paragraph 
(a)(1) of this section is initiated.
    (1) New Federal financial assistance from the agency includes all 
assistance for which the agency requires an application or approval, 
including renewal of continuation of existing activities, or 
authorization of the new activities, during the deferral period. New 
Federal financial assistance from the agency does not include increases 
in funding as

[[Page 969]]

a result of changed computation of formula awards or assistance approved 
prior to the beginning of a hearing under paragraph (a)(1) of this 
section.
    (2) The agency will not begin a deferral until the recipient has 
received a notice of opportunity for a hearing under paragraph (a)(1) of 
this section. The agency will not continue a deferral for more than 60 
days unless a hearing has begun within that time or the time for 
beginning the hearing has been extended by mutual consent of the 
recipient and the agency head. The agency will not continue a deferral 
for more than 30 days after the close of a hearing unless the hearing 
results in a finding against the recipient.



Sec.  218.37  Hearings, decisions, post-termination proceedings.

    Certain procedural provisions applicable to title VI of the Civil 
Rights Act of 1964 apply to enforcement of this part. They are 22 CFR 
part 209.



Sec.  218.38  Remedial action by recipient.

    Where the agency head finds a recipient has discriminated on the 
basis of age, the recipient shall take any remedial action that the 
agency head may require to overcome the effects of the discrimination. 
If another recipient exercises control over the recipient that has 
discriminated, the agency head may require both recipients to take 
remedial action.



Sec.  218.39  Alternate funds disbursal procedure.

    (a) When an agency withholds funds from a recipient under these 
regulations, the agency head may disburse the withheld funds directly to 
an alternate recipient, any public or non-profit private organization or 
agency, or State or political subdivision of the State.
    (b) The agency head will require any alternate recipient to 
demonstrate:
    (1) The ability to comply with these regulations; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the Federal financial assistance.





    Sec. Appendix A to Part 218--List of Federal Financial Assistance

  Federal Financial Assistance Administered by the Department of State 
                Subject to Age Discrimination Regulations

    Resettlement of Refugees in the United States Under the Migration 
and Refugee Assistant Act of 1962, as amended (22 U.S.C. 2601 et seq.).
    Diplomat in Residence Program of the Foreign Service Institute Under 
Title VII of the Foreign Service Act of 1946, as amended (22 U.S.C. 1041 
et seq.).
    Assignments under section 576 of the Foreign Service Act of 1946, as 
amended (22 U.S.C. 966).



    Sec. Appendix B to Part 218--List of Types of Federal Financial 
                               Assistance

     Federal Financial Assistance Administered by the United States 
    International Communication Agency Subject to Age Discrimination 
                               Regulations

    Educational and Cultural Exchanges under the Mutual Educational and 
Cultural Exchange Act of 1961, as amended (22 U.S.C. 1431-1479).



    Sec. Appendix C to Part 218--List of Types of Federal Financial 
                               Assistance

    Federal Financial Assistance Administered by AID Subject to Age 
                       Discrimination Regulations

    1. Grants to research and educational institutions in the United 
States to strengthen their capacity to develop and carry out programs 
concerned with the economic and social development of developing 
countries. (Section 122(d), Foreign Assistance Act of 1961, as amended, 
22 U.S.C. 2151(d)).
    2. Grants to land grant and other qualified agricultural 
universities and colleges in the United States to develop their 
capabilities to assist developing countries in agricultural teaching, 
research and extension services. (Section 297, Foreign Assistance Act of 
1961, as amended, 22 U.S.C. 2220(b)).
    3. Grants to private and voluntary agencies, non-profit 
organization, educational institutions, and other qualified 
organizations for programs in the United States to promote the economic 
and social development of developing countries. (Sections 103-106, 
Foreign Assistance Act of 1961, as amended, 22 U.S.C. 2151a-2151d).

[[Page 970]]



 PART 219_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP 
 IN PROGRAMS OR ACTIVITIES CONDUCTED BY INTERNATIONAL DEVELOPMENT 
 COOPERATION AGENCY, AGENCY FOR INTERNATIONAL DEVELOPMENT--Table of Contents



Sec.
219.101 Purpose.
219.102 Application.
219.103 Definitions.
219.104-219.109 [Reserved]
219.110 Self-evaluation.
219.111 Notice.
219.112-219.129 [Reserved]
219.130 General prohibitions against discrimination.
219.131-219.139 [Reserved]
219.140 Employment.
219.141-219.148 [Reserved]
219.149 Program accessibility: Discrimination prohibited.
219.150 Program accessibility: Existing facilities.
219.151 Program accessibility: New construction and alterations.
219.152-219.159 [Reserved]
219.160 Communications.
219.161-219.169 [Reserved]
219.170 Compliance procedures.
219.171-219.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 4576, Feb. 5, 1986, unless otherwise noted.



Sec.  219.101  Purpose.

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



Sec.  219.102  Application.

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



Sec.  219.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one of more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning

[[Page 971]]

disabilities. The term ``physical or mental impairment'' includes, but 
is not limited to, such diseases and conditions as orthopedic, visual, 
speech, and hearing impairments, cerebral palsy, epilepsy, muscular 
dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental 
retardation, emotional illness, and drug addition and alcholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Qualified handicapped person means--
    (1) With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature; or
    (2) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    (3) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec.  219.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.

[51 FR 4576, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]



Sec. Sec.  219.104-219.109  [Reserved]



Sec.  219.110  Self-evaluation.

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



Sec.  219.111  Notice.

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

[[Page 972]]



Sec. Sec.  219.112-219.129  [Reserved]



Sec.  219.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualfied handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Sec. Sec.  219.131-219.139  [Reserved]



Sec.  219.140  Employment.

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

[[Page 973]]



Sec. Sec.  219.141-219.148  [Reserved]



Sec.  219.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec.  219.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec.  219.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons; or
    (2) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec.  219.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods. The agency may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
handicapped persons. The agency is nor required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with this section. The agency, in making 
alterations to existing buildings, shall meet accessibility requirements 
to the extent compelled by the Architectural Barriers Act of 1968, as 
amended (42 U.S.C. 4151-4157), and any regulations implementing it. In 
choosing among available methods for meeting the requirements of this 
section, the agency shall give priority to those methods that offer 
programs and activities to qualified handicapped persons in the most 
integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by June 6, 1986, except that 
where structural changes in facilities are undertaken, such changes 
shall be made by April 7, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by October 7, 1986, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;

[[Page 974]]

    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.

[51 FR 4576, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]



Sec.  219.151  Program accessibility: New construction and alterations.

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



Sec. Sec.  219.152-219.159  [Reserved]



Sec.  219.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec.  219.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, handicapped persons receive the benefits and services 
of the program or activity.



Sec. Sec.  219.161-219.169  [Reserved]



Sec.  219.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity

[[Page 975]]

Commission in 29 CFR part 1613 pursuant to section 501 of the 
Rehabilitation Act of 1973 (29 U.S.C. 791).
    (c) Director, Office of Equal Opportunity Programs shall be 
responsible for coordinating implementation of this section. Complaints 
may be sent to Director, Office of Equal Opportunity Programs, Agency 
for International Development, International Development Cooperation 
Agency, Room 1224, SA-1, Washington, DC.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found;
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec.  219.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[51 FR 4576, Feb. 5, 1986, as amended at 51 FR 4576, Feb. 5, 1986]



Sec. Sec.  219.171-219.999  [Reserved]



PART 221_ISRAEL LOAN GUARANTEE STANDARD TERMS AND CONDITIONS--Table of Contents



                          Subpart A_Definitions

Sec.
221.01 Definitions.

                         Subpart B_The Guarantee

221.11 The Guarantee.
221.12 Guarantee eligibility.
221.13 Non-impairment of the Guarantee.
221.14 Transferability of Guarantee; Note Register.
221.15 Fiscal Agent obligations.

             Subpart C_Procedure for Obtaining Compensation

221.21 Event of Default; Application for Compensation; payment.
221.22 No acceleration of Eligible Notes.
221.23 Payment to A.I.D. of excess amounts received by a Noteholder.
221.24 Subrogation of A.I.D.

                           Subpart D_Covenants

221.31 Prosecution of claims.
221.32 Change in agreements.

                        Subpart E_Administration

221.41 Arbitration.
221.42 Notice.
221.43 Governing law.

Appendix A to Part 221--Application for Compensation

    Authority: 22 U.S.C. 2186.

[[Page 976]]


    Source: 58 FR 14148, Mar. 16, 1993, unless otherwise noted.



                          Subpart A_Definitions



Sec.  221.01  Definitions.

    Wherever used in these standard terms and conditions:
    (a) A.I.D. means the United States Agency for International 
Development or its successor with respect to the guarantee authorities 
contained in title III, chapter 2 of part I of the Foreign Assistance 
Act of 1961, as amended (the ``Act'').
    (b) Eligible Note(s) means [a] Notes[s] meeting the eligibility 
criteria set out in Sec.  221.12 hereof.
    (c) Noteholder means the owner of an Eligible Note who is registered 
as such on the Note Register of Eligible Notes required to be maintained 
by the Fiscal Agent.
    (d) Borrower means the Government of Israel, on behalf of the State 
of Israel.
    (e) Defaulted payment means, as of any date,
    (1) In respect of any current coupon Eligible Note, any interest 
amount and/or principal amount not paid when due, and
    (2) In respect of any zero-coupon Eligible Note, any maturity amount 
not paid when due.
    (f) Further guaranteed payments means the amount of any loss 
suffered by a Noteholder by reason of the Borrower's failure to comply 
on a timely basis with any obligation it may have under an Eligible Note 
to indemnify and hold harmless a Noteholder from taxes or governmental 
charges or any expense arising out of taxes or any other governmental 
charges relating to the Eligible Note in the country of the Borrower.
    (g) Loss of investment respecting any Eligible Note means an amount 
in Dollars equal to the total of the:
    (1) Defaulted Payment unpaid as of the Date of Application,
    (2) Further Guaranteed Payments unpaid as of the Date of 
Application, and
    (3) Interest accrued and unpaid at the rate(s) specified in the 
Eligible Note(s) on the Defaulted Payment and Further Guaranteed 
Payments, in each case from the date of default with respect to such 
payment to and including the date on which full payment thereof is made 
to the Noteholder.
    (h) Application for compensation means an executed application in 
the form of appendix A to this part which a Noteholder, or the Fiscal 
Agent on behalf of a Noteholder, files with A.I.D. pursuant to Sec.  
221.21 of this part.
    (i) Applicant means a Noteholder who files an Application for 
Compensation with A.I.D., either directly or through the Fiscal Agent 
acting on behalf of a Noteholder.
    (j) Date of application means the effective date of an Application 
for Compensation filed with A.I.D. pursuant to Sec.  221.21 of this 
part.
    (k) Business day means any day other than a day on which banks in 
New York, New York are closed or authorized to be closed or a day which 
is observed as a federal holiday in Washington, DC, by the United States 
Government.
    (l) Guarantee payment date means a Business Day not more than three 
(3) Business Days after the related Date of Application.
    (m) Person means any legal person, including any individual, 
corporation, partnership, joint venture, association, joint stock 
company, trust, unincorporated organization, or government or any agency 
or political subdivision thereof.



                         Subpart B_The Guarantee



Sec.  221.11  The Guarantee.

    Subject to these terms and conditions, the United States of America, 
acting through A.I.D., agrees to pay to, or upon the instructions of, 
any Noteholder on each Guarantee Payment Date compensation in Dollars 
equal to such Noteholder's Loss of Investment under its Eligible Note; 
provided, however, that no such payment shall be made to any Noteholder, 
for any such loss arising out of fraud or misrepresentation for which 
such Noteholder is responsible or of which it had knowledge at the time 
it became such Noteholder.
    This Guarantee shall apply to each Eligible Note registered on the 
Note Register required to be maintained by the Fiscal Agent.

[[Page 977]]



Sec.  221.12  Guarantee eligibility.

    (a) Eligible Notes only may be guaranteed hereunder. Notes in order 
to achieve Eligible Note status must be signed on behalf of the 
Borrower, manually or in facsimile, by a duly authorized representative 
of the Borrower; and they must contain a guarantee legend incorporating 
these Standard Terms and Conditions signed on behalf of A.I.D. by either 
a manual signature or a facsimile signature of an authorized 
representative of A.I.D., together with a certificate of authentication 
manually executed by a Fiscal Agent whose appointment by the Borrower is 
consented to by A.I.D. in a Fiscal Agency Agreement (the ``Fiscal 
Agent'').
    (b) A.I.D. shall designate, in a certificate delivered to the Fiscal 
Agent, the Person(s) whose signature shall be binding on A.I.D. The 
certificate of authentication of the Fiscal Agent issued pursuant to the 
Fiscal Agency Agreement shall, when manually executed by the Fiscal 
Agent, be conclusive evidence binding on A.I.D. that a Note has been 
duly executed on behalf of the Borrower and delivered.



Sec.  221.13  Non-impairment of the Guarantee.

    The full faith and credit of the United States of America is pledged 
to the performance of this Guarantee. The Guarantee shall not be 
affected or impaired by any defect in the authorization, execution, 
delivery or enforceability of any agreement or other document executed 
by a Noteholder, A.I.D., the Fiscal Agent or the Borrower in connection 
with the transactions contemplated by this Guarantee. This non-
impairment of the guarantee provision shall not, however, be operative 
with respect to any amount with respect to any loss arising out of fraud 
or misrepresentation for which the claiming Noteholder, is responsible 
or of which it had knowledge at the time it became a Noteholder.



Sec.  221.14  Transferability of Guarantee; Note Register.

    A Noteholder may assign, transfer or pledge an Eligible Note to any 
Person. Any such assignment, transfer or pledge shall be effective on 
the date that the name of the new Noteholder is entered on the Note 
Register required to be maintained by the Fiscal Agent pursuant to the 
Fiscal Agency Agreement. A.I.D. shall be entitled to treat the Persons 
in whose names the Eligible Notes are registered as the owners thereof 
for all purposes of this Guarantee and A.I.D. shall not be affected by 
notice to the contrary.



Sec.  221.15  Fiscal Agent obligations.

    Failure of the Fiscal Agent to perform any of its obligations 
pursuant to the Fiscal Agency Agreement shall not impair any 
Noteholder's rights under this Guarantee, but may be the subject of 
action for damages against the Fiscal Agent by A.I.D. as a result of 
such failure or neglect. A Noteholder may appoint the Fiscal Agent to 
make demand for payment on its behalf under this Guarantee.



             Subpart C_Procedure for Obtaining Compensation



Sec.  221.21  Event of Default; Application for Compensation; payment.

    At any time after an Event of Default, as this term is defined in an 
Eligible Note, any Noteholder hereunder, or the Fiscal Agent on behalf 
of a Noteholder hereunder, may file with A.I.D. an Application for 
Compensation in the form provided in exhibit A. A.I.D. shall pay or 
cause to be paid to any such Applicant any compensation specified in 
such Application for Compensation that is due to the Applicant pursuant 
to the Guarantee as a Loss of Investment not later than three (3) 
Business Days after the Date of Application. In the event that A.I.D. 
receives any other notice of an Event of Default, A.I.D. may pay any 
compensation that is due to any Noteholder pursuant to a Guarantee, 
whether or not such Noteholder has filed with A.I.D. an Application for 
Compensation in respect of such amount.



Sec.  221.22  No acceleration of Eligible Notes.

    Eligible Notes shall not be subject to acceleration by A.I.D., the 
Noteholder or any other party.

[[Page 978]]



Sec.  221.23  Payment to A.I.D. of excess amounts received by a Noteholder.

    If a Noteholder shall, as a result of A.I.D. paying compensation 
under this Guarantee, receive an excess payment, it shall refund the 
excess to A.I.D.



Sec.  221.24  Subrogation of A.I.D.

    In the event of payment by A.I.D. to a Noteholder under this 
Guarantee, A.I.D. shall be subrogated to the extent of such payment to 
all of the rights of such Noteholder against the Borrower under the 
related Note.



                           Subpart D_Covenants



Sec.  221.31  Prosecution of claims.

    After payment by A.I.D. to an Applicant pursuant to Sec.  221.21, 
A.I.D. shall have exclusive power to prosecute all claims related to 
rights to receive payments under the Eligible Notes to which it is 
thereby subrogated. If a Noteholder continues to have an interest in the 
outstanding Eligible Notes, such a Noteholder and A.I.D. shall consult 
with each other with respect to their respective interests in such 
Eligible Notes and the manner of and responsibility for prosecuting 
claims.



Sec.  221.32  Change in agreements.

    No Noteholder will consent to any change or waiver of any provision 
of any document contemplated by this Guarantee without the prior written 
consent of A.I.D.



                        Subpart E_Administration



Sec.  221.41  Arbitration.

    Any controversy or claim between A.I.D. and any noteholder arising 
out of this Guarantee shall be settled by arbitration to be held in 
Washington, DC in accordance with the then prevailing rules of the 
American Arbitration Association, and judgment on the award rendered by 
the arbitrators may be entered in any court of competent jurisdiction.



Sec.  221.42  Notice.

    Any communication to A.I.D. pursuant to this Guarantee shall be in 
writing in the English language, shall refer to the Israel Loan 
Guarantee Number inscribed on the Eligible Note and shall be complete on 
the day it shall be actually received by A.I.D. at the Office of Housing 
and Urban Programs, Bureau for Private Enterprise, Agency for 
International Development, Washington, DC 20523-0030. Other addresses 
may be substituted for the above upon the giving of notice of such 
substitution to each Noteholder by first class mail at the address set 
forth in the Note Register.



Sec.  221.43  Governing law.

    This Guarantee shall be governed by and construed in accordance with 
the laws of the United States of America governing contracts and 
commercial transactions of the United States Government.





        Sec. Appendix A to Part 221--Application for Compensation

[________]
    Agency for International Development, International Development 
Cooperation Agency, Washington, DC 20523.
Ref: Guarantee dated as of ______, 19__:
Gentlemen:
    You are hereby advised that payment of $______ (consisting of 
$______ of principal, $______ of interest and $______ in Further 
Guaranteed Payments, as defined in Sec.  221.01(f) of the Standard Terms 
and Conditions of the above-mentioned Guarantee) [(consisting of $____ 
maturity amount and $____ in Further Guaranteed Payments, as defined in 
Sec.  221.01(f) of the Standard Terms and Conditions of the above-
mentioned Guarantee)] \1\ was due on ______, 19 __, on $______ principal 
[maturity] \1\ amount of Notes held by the undersigned of the Government 
of Israel, on behalf of the State of Israel (the ``Borrower''). Of such 
amount $______ was not received on such date and has not been received 
by the undersigned at the date hereof. In accordance with the terms and 
provisions of the above-mentioned Guarantee, the undersigned hereby 
applies, under Sec.  221.21 of said Guarantee, for payment of $______, 
representing $______, the principal amount of the presently outstanding 
Note(s) of the Borrower held by the undersigned that was due and payable 
on ______ and that remains unpaid, and

[[Page 979]]

$______, the interest amount on such Note(s) that was due and payable by 
the Borrower on ____ and that remains unpaid, [$______, the maturity 
amount of such Note that was due and payable on ________ and that 
remains unpaid] \2\ and $______ in Further Guaranteed Payments, \3\ plus 
accrued and unpaid interest thereon from the date of default with 
respect to such payments to and including the date payment in full is 
made by you pursuant to said Guarantee, at the rate of ___% per annum, 
being the rate for such interest accrual specified in such Note. Such 
payment is to be made at [state payment instructions of Noteholder.]
---------------------------------------------------------------------------

    \1\ Alternate language for zero-coupon Eligible Notes.
    \2\ Alternate language for zero-coupon Eligible Notes.
    \3\ In the event the Application for Compensation relates to Further 
Guaranteed Payments, such Application must also contain a statement of 
the nature and circumstances of the related loss.

---------------------------------------------------------------------------
[Name of Applicant]

By______________________________________________________________________
Name____________________________________________________________________
Title___________________________________________________________________
Dated___________________________________________________________________



PART 223_ADMINISTRATIVE ENFORCEMENT PROCEDURES 
OF POST-EMPLOYMENT RESTRICTIONS--Table of Contents



Sec.
223.1 General.
223.2 Report of violations.
223.3 Initiation of proceeding.
223.4 Examiner.
223.5 Agency representative.
223.6 Time, date and place of hearing.
223.7 Rights of parties at hearing.
223.8 Initial decision.
223.9 Appeal.
223.10 Final decision.
223.11 Appropriate action.

    Authority: 18 U.S.C. 207.

    Source: 46 FR 55957, Nov. 13, 1981, unless otherwise noted.



Sec.  223.1  General.

    The following procedures are hereby established with respect to the 
administrative enforcement of restrictions on post-employment activities 
(18 U.S.C. 207 (a), (b) or (c)) and implementing regulations published 
by the Office of Government Ethics (5 CFR part 737).



Sec.  223.2  Report of violations.

    On receipt of information regarding a possible violation of the 
statutory or regulatory post-employment restrictions by a former 
employee and after determining that such information does not appear to 
be frivolous, the General Counsel shall provide such information to the 
Director of the Office of Government Ethics and to the Criminal 
Division, Department of Justice. Any investigation or administrative 
action shall be coordinated with the Department of Justice to avoid 
prejudicing possible criminal proceedings. If the Department of Justice 
informs the Agency that it does not intend to institute criminal 
proceedings, such coordination shall no longer be required and the 
General Counsel is free to decide whether to pursue administrative 
action.



Sec.  223.3  Initiation of proceeding.

    Whenever the General Counsel has reasonable cause to believe that a 
former Government employee has violated the statutory or regulatory 
post-employment restrictions, he or she shall initiate an administrative 
action by providing the former Government employee with written notice 
of intention to institute administrative action. Notice must include:
    (a) A statement of allegations and the basis thereof sufficiently 
detailed to enable the former Government employee to prepare an adequate 
defense;
    (b) Notification of the right to respond to the allegations in 
writing and/or to request a hearing, together with an explanation of the 
method by which a hearing may be requested; and
    (c) A statement that, in the absence of a request for a hearing, the 
General Counsel shall issue a final decision based upon the evidence 
gathered to date, including any written reply made by the former 
Government employee.



Sec.  223.4  Examiner.

    When a former Government employee after receiving adequate notice 
requests a hearing, a presiding official (hereinafter referred to as 
``examiner'') shall be appointed by the Administrator to make an initial 
decision. The examiner shall be a responsible person

[[Page 980]]

who is impartial and who has not participated in any manner in the 
decision to initiate the proceeding. The hearing officer shall be an 
individual with suitable experience and training to conduct the hearing, 
reach a determination and render an initial decision in an equitable 
manner.



Sec.  223.5  Agency representative.

    The General Counsel shall appoint an agency representative to 
present evidence and otherwise participate in the hearing.



Sec.  223.6  Time, date and place of hearing.

    The examiner shall establish a reasonable time, date and place to 
conduct the hearing. In establishing a date, the examiner shall give due 
regard to the former employee's need for:
    (a) Adequate time to prepare a defense properly, and
    (b) An expeditious resolution of allegations that may be damaging to 
his or her reputation.



Sec.  223.7  Rights of parties at hearing.

    A hearing shall include, at a minimum, the following rights for both 
parties:
    (a) To represent oneself or to be represented by counsel;
    (b) To examine or cross-examine witnesses;
    (c) To submit evidence (including the use of interrogatories);
    (d) To present oral arguments; and
    (e) To receive a transcript of recording of the proceedings on 
request.

In any hearing, the agency has the burden of proof and must establish 
substantial evidence of a violation.



Sec.  223.8  Initial decision.

    The examiner shall issue an initial decision based exclusively on 
matters of record in the proceedings and shall set forth all findings of 
fact and conclusions of law relevant to the matters at issue.



Sec.  223.9  Appeal.

    Within twenty days of the date of initial decision, either party may 
appeal the decision to the Administrator. The opposing party shall have 
ten days after receipt of a copy of the appeal to reply.



Sec.  223.10  Final decision.

    (a) In cases where the former employee failed to request a hearing 
after receiving adequate notice, the General Counsel shall decide the 
matter on its merits based upon the evidence gathered to date, including 
any written reply of the former employee.
    (b) In cases of appeal under Sec.  223.9, the Administrator shall 
accept, reject or modify the initial decision based solely on the record 
of the proceedings or those portions cited by the parties to limit the 
issues.



Sec.  223.11  Appropriate action.

    The Administrator may take appropriate action in the case of any 
individual who is found in violation of the statutory or regulatory post 
employment restrictions after a final decision by:
    (a) Prohibiting the individual from making, on behalf of any other 
person (except the United States), any formal or informal appearance 
before, or with the intent to influence, any oral or written 
communication to, the Agency on any matter of business for a period not 
to exceed five years, which may be accomplished by directing Agency 
employees to refuse to participate in such appearance or to accept any 
such communication; and
    (b) Taking other appropriate disciplinary action.



PART 224_IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT--
Table of Contents



Sec.
224.1 Basis and purpose.
224.2 Definitions.
224.3 Basis for civil penalties and assessments.
224.4 Investigation.
224.5 Review by the reviewing official.
224.6 Prerequisites for issuing a complaint.
224.7 Complaint.
224.8 Service of complaint.
224.9 Answer.
224.10 Default upon failure to file an answer.
224.11 Referral of complaint and answer to the ALJ.
224.12 Notice of hearing.

[[Page 981]]

224.13 Parties to the hearing.
224.14 Separation of functions.
224.15 Ex parte contacts.
224.16 Disqualification of reviewing official or ALJ.
224.17 Rights of parties.
224.18 Authority of the ALJ.
224.19 Prehearing conferences.
224.20 Disclosure of documents.
224.21 Discovery.
224.22 Exchange of witness lists, statements, and exhibits.
224.23 Subpoenas for attendance at hearing.
224.24 Protective order.
224.25 Fees.
224.26 Form, filing and service of papers.
224.27 Computation of time.
224.28 Motions.
224.29 Sanctions.
224.30 The hearing and burden of proof.
224.31 Determining the amount of penalties and assessments.
224.32 Location of hearing.
224.33 Witnesses.
224.34 Evidence.
224.35 The record.
224.36 Post-hearing briefs.
224.37 Initial decision.
224.38 Reconsideration of initial decision.
224.39 Appeal to A.I.D. Administrator.
224.40 Stays ordered by the Department of Justice.
224.41 Stay pending appeal.
224.42 Judicial review.
224.43 Collection of civil penalties and assessments.
224.44 Right to administrative offset.
224.45 Deposit in Treasury of United States.
224.46 Compromise or settlement.
224.47 Limitations.

    Authority: 22 U.S.C. 2381; 31 U.S.C. 3801-3812.

    Source: 52 FR 45313, Nov. 27, 1987, unless otherwise noted.



Sec.  224.1  Basis and purpose.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, Pub. L. 99-509, sections 6101-6104, 100 Stat. 1874 (October 21, 
1986), to be codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the 
Statute requires each authority head to promulgate regulations necessary 
to implement to provisions of the statute.
    (b) Purpose. This part (1) establishes administrative procedures for 
imposing civil penalties and assessments against persons who make, 
submit, or present, or cause to be made, submitted, or presented, false, 
fictitious, or fraudulent claims or written statements to the Agency for 
International Development or to its agents, and (2) specifies the 
hearing and appeal rights of persons subject to allegations of liability 
for such penalties and assessments.



Sec.  224.2  Definitions.

    A.I.D. means the Agency for International Development.
    ALJ means an Administrative Law Judge in the authority appointed 
pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 
U.S.C. 3344.
    Benefit means, in the context of ``statement,'' anything of value, 
including but not limited to any advantage, preference, privilege, 
license, permit, favorable decision, ruling, status, or loan guarantee.
    Claim means any request, demand, or submission--
    (a) Made to A.I.D. for property, services, or money (including money 
representing grants, loans, insurance, or benefits);
    (b) Made to a recipient of property, services, or money from A.I.D. 
or to a party to a contract with A.I.D.--
    (1) For property or services if the United States--
    (i) Provided such property or services;
    (ii) Provided any portion of the funds for the purchase of such 
property or services; or
    (iii) Will reimburse such recipient or party for the purchase of 
such property or services; or
    (2) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States--
    (i) Provided any portion of the money requested or demanded; or
    (ii) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (c) Made to A.I.D. which has the effect of decreasing an obligation 
to pay or account for property, services, or money.
    Complaint means the administrative complaint served by the reviewing 
official on the defendant under Sec.  224.7.
    Defendant means any person alleged in a complaint under Sec.  224.7 
to be liable for a civil penalty or assessment under Sec.  224.3.
    Government means the United States Government.

[[Page 982]]

    Individual means a natural person.
    Initial decision means the written decision of the ALJ required by 
Sec.  224.10 or Sec.  224.37, and includes a revised initial decision 
issued following a remand or a motion for reconsideration.
    Investigating official means the Inspector General for A.I.D. or an 
officer or employee of the Office of Inspector General designated by the 
Inspector General and serving in a position for which the rate of basic 
pay is not less than the minimum rate of basic pay for grade GS-16 under 
the General Schedule.
    Knows or has reason to know, means that a person, with respect to a 
claim or statement--
    (a) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (b) Acts in deliberate ignorance of the truth or falsity of the 
claim or statement; or
    (c) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    Makes, wherever it appears, shall include the terms presents, 
submits, and causes to be made, presented, or submitted. As the context 
requires, making or made, shall likewise include the corresponding forms 
of such terms.
    Person means any individual, partnership, corporation, association, 
or private organization and includes the plural of that term.
    Representative means an attorney who is a member in good standing of 
the bar of any State, Territory, or possession of the United States or 
the District of Columbia or the Commonwealth of Puerto Rico.
    Reviewing official means the General Counsel of A.I.D. or his 
designee who is:
    (a) Not subject to supervision by, or required to report to, the 
investigating official;
    (b) Not employed in the organizational unit of A.I.D. in which the 
investigating official is employed; and
    (c) Is serving in a position for which the rate of basic pay is not 
less than the minimum rate of basic pay for grade GS-16 under the 
General Schedule.
    Statement means any representation, certification, affirmation, 
document, record, or accounting or bookkeeping entry made--
    (a) With respect to a claim or to obtain the approval or payment of 
a claim (including relating to eligibility to make a claim); or
    (b) With respect to (including relating to eligibility for)--
    (1) A contract with, or a bid or proposal for a contract with; or
    (2) A grant, loan, or benefit from, A.I.D., or any State, political 
subdivision of a State, or other party, if the United States Government 
provides any portion of the money or property under such contract or for 
such grant, loan, or benefit, or if the Government will reimburse such 
State, political subdivision, or party for any portion of the money or 
property under such contract or for such grant, loan, or benefit.



Sec.  224.3  Basis for civil penalties and assessments.

    (a) Claims (1) Any person who makes a claim that the person knows or 
has reason to know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed;

shall be subject, in addition to any other remedy that may be prescribed 
by law, to a civil penalty of not more than $5,000 for each such claim.
    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (3) A claim shall be considered made to A.I.D., a recipient, or 
party when such claim is actually made to an agent, fiscal intermediary, 
or other entity, including any State or political

[[Page 983]]

subdivision thereof, acting for or on behalf of A.I.D. or such recipient 
or party.
    (4) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statements. (1) Any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement had a duty to include in such 
statement; and
    (ii) Contains or is accompanied by an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement,

shall be subject, in addition to any other remedy and may be prescribed 
by law, to a civil penalty of not more than $5,000 for each such 
statement.
    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (3) A statement shall be considered made to A.I.D. when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any State or political subdivision thereof, acting for 
or on behalf of A.I.D.
    (c) No proof of specific intent to defraud is required to establish 
liability under this section.
    (d) In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held liable for a civil penalty under this section.
    (e) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.



Sec.  224.4  Investigation.

    (a) If an investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted--
    (1) The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued, and shall 
identify the records of documents sought;
    (2) The investigating official may designate a person to act on his 
or her behalf to receive the documents sought; and
    (3) The person receiving such subpoena shall be required to tender 
to the investigating official or the person designated to receive the 
documents a certification that the documents sought have been produced, 
or that such documents are not available and the reasons therefore, or 
that such documents, suitably identified, have been withheld based upon 
the assertion of an identified privilege.
    (b) If the investigating official concludes that an action under the 
Program Fraud Civil Remedies Act may be warranted, the investigating 
official shall submit a report containing the findings and conclusions 
of such investigation to the reviewing official.
    (c) Nothing in this section shall preclude or limit an investigating 
official's discretion to refer allegations directly to the Department of 
Justice for suit under the False Claims Act or other civil relief, or to 
defer or postpone a report or referral to the reviewing official to 
avoid interference with a criminal investigation or prosecution.
    (d) Nothing in this section modifies any responsibility of an 
investigating official to report violations of criminal law to the 
Attorney General.



Sec.  224.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec.  224.4(b), the

[[Page 984]]

reviewing official determines that there is adequate evidence to believe 
that a person is liable under Sec.  224.3 of this part, the reviewing 
official shall transmit to the Attorney General a written notice of the 
reviewing official's intention to issue a complaint under Sec.  224.7.
    (b) Such notice shall include--
    (1) A statement of the reviewing official's reasons for issuing a 
complaint;
    (2) A statement specifying the evidence that supports the 
allegations of liability;
    (3) A description of the claims or statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money or the value of property, 
services, or other benefits requested or demanded in violation of Sec.  
224.3 of this part;
    (5) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    (6) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.



Sec.  224.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec.  224.7 
only if:
    (1) The Department of Justice approves the issuance of a complaint 
in a written statement described in 31 U.S.C. 3803(b)(1); and
    (2) In the case of allegations of liability under Sec.  224.3(a) 
with respect to a claim, the reviewing official determines that, with 
respect to such claim or a group of related claims submitted at the same 
time such claim is submitted (as defined in paragraph (b) of this 
section), the amount of money or the value of property or services 
demanded or requested in violation of Sec.  224.3(a) does not exceed 
$150,000.
    (b) For the purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    (c) Nothing in this section shall be construed to limit the 
reviewing official's authority to join in a single complaint against a 
person claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.



Sec.  224.7  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official may serve a complaint on the defendant, as provided 
in Sec.  224.8.
    (b) The complaint shall state:
    (1) Allegations of liability against the defendant, including the 
statutory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the defendant's right to request a 
hearing by filing an answer and to be represented by a representative; 
and
    (4) That failure to file an answer within 30 days of service of the 
complaint will result in the imposition of the maximum amount of 
penalties and assessments without right to appeal, as provided in Sec.  
224.10.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the defendant with a copy of these regulations.



Sec.  224.8  Service of complaint.

    (a) Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure. Service is complete upon receipt.
    (b) Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service, may 
be made by:
    (1) Affidavit of the individual serving the complaint by delivery;

[[Page 985]]

    (2) A United States Postal Service return receipt card acknowledging 
receipt; or
    (3) Written acknowledgment of receipt by the defendant or his 
representative.



Sec.  224.9  Answer.

    (a) The defendant may request a hearing by filing an answer with the 
reviewing official within 30 days of service of the complaint. An answer 
shall be deemed to be a request for hearing.
    (b) In the answer, the defendant:
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the defendant intends to rely;
    (3) May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address, and telephone number of the 
person authorized by the defendant to act as defendant's representative, 
if any.
    (c) If the defendant is unable to file an answer meeting the 
requirements of paragraph (b) of this section within the time provided, 
the defendant may, before the expiration of 30 days from service of the 
complaint, file with the reviewing official a general answer denying 
liability and requesting a hearing, and a request for an extension of 
time within which to file an answer meeting the requirements of 
paragraph (b) of this section. The reviewing official shall file 
promptly with the ALJ the complaint, the general answer denying 
liability, and the request for an extension of time as provided in Sec.  
224.11. For good cause shown, the ALJ may grant the defendant up to 30 
additional days within which to file an answer meeting the requirements 
of paragraph (b) of this section.



Sec.  224.10  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time 
prescribed in Sec.  224.9(a), the reviewing official may refer the 
complaint to the ALJ.
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on defendant in the manner prescribed in Sec.  224.8, a notice that an 
initial decision will be issued under this section.
    (c) The ALJ shall assume the facts alleged in the complaint to be 
true, and, if such facts establish liability under Sec.  224.3, the ALJ 
shall issue an initial decision imposing the maximum amount of penalties 
and assessments allowed under the statute.
    (d) Except as otherwise provided in this section, by failing to file 
a timely answer, the defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section, 
and the initial decision shall become final and binding upon the parties 
30 days after it is issued.
    (e) If, before such an initial decision becomes final, the defendant 
files a motion with the ALJ seeking to reopen on the grounds that 
extraordinary circumstances prevented the defendant from filing an 
answer, the initial decision shall be stayed pending the ALJ's decision 
on the motion.
    (f) If, on such motion, the defendant can demonstrate extraordinary 
circumstances excusing the failure to file a timely answer the ALJ shall 
withdraw the initial decision in paragraph (c) of this section, if such 
a decision has been issued, and shall grant the defendant an opportunity 
to answer the complaint.
    (g) A decision of the ALJ denying defendant's motion under paragraph 
(e) of this section is not subject to reconsideration under Sec.  
224.38.
    (h) The defendant may appeal to the A.I.D. Administrator the 
decision denying a motion to reopen by filing a notice of appeal with 
the A.I.D. Administrator within 15 days after the ALJ denies the motion. 
The timely filing of a notice of appeal shall stay the initial decision 
until the A.I.D. Administrator decides the issue.
    (i) If the defendant files a timely notice of appeal with the A.I.D. 
Administrator, the ALJ shall forward the record of the proceeding to the 
A.I.D. Administrator.
    (j) The A.I.D. Administrator shall decide expeditiously whether 
extraordinary circumstances excuse the defendant's failure to file a 
timely answer based solely on the record before the ALJ.

[[Page 986]]

    (k) If the A.I.D. Administrator decides that extraordinary 
circumstances excused the defendant's failure to file a timely answer, 
the A.I.D. Administrator shall remand the case to the ALJ with 
instructions to grant the defendant an opportunity to answer.
    (l) If the A.I.D. Administrator decides that the defendant's failure 
to file a timely answer is not excused, the A.I.D. Administrator shall 
reinstate the initial decision of the ALJ, which shall become final and 
binding upon the parties 30 days after the A.I.D. Administrator issues 
such decision.



Sec.  224.11  Referral of complaint and answer to the ALJ.

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



Sec.  224.12  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the defendant in the manner 
prescribed by Sec.  224.8. At the same time, the ALJ shall send a copy 
of such notice to the representative for the Government.
    (b) Such notice shall include:
    (1) The tentative time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of 
the Government and of the defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec.  224.13  Parties to the hearing.

    (a) The parties to the hearing shall be the defendant and A.I.D.
    (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the 
False Claims Act may participate in these proceedings to the extent 
authorized by the provisions of that Act.



Sec.  224.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of A.I.D. who takes part in investigating, preparing, 
or presenting a particular case may not, in such case or a factually 
related case:
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the A.I.D. Administrator, except as a witness or 
representative in public proceedings; or
    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to, or subject to, the 
supervision or direction of the investigating official or the reviewing 
official.
    (c) Except as provided in paragraph (a) of this section, the 
representative for the Government may be employed anywhere in A.I.D., 
including in the offices of either the investigating official or the 
reviewing official.



Sec.  224.15  Ex parte contacts.

    No party or person (except employees of the ALJ's office) shall 
communicate in any way with the ALJ on any matter at issue in a case, 
unless on notice and opportunity for all parties to participate. This 
provision does not prohibit a person or party from inquiring about the 
status of a case or asking routine questions concerning administrative 
functions or procedures.



Sec.  224.16  Disqualification of reviewing official or ALJ.

    (a) A reviewing official or ALJ in a particular case may disqualify 
himself or herself at any time.
    (b) A party may file with the ALJ a motion for disqualification of a 
reviewing official or ALJ. Such motion shall be accompanied by an 
affidavit alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such 
objections shall be deemed waived.
    (d) Such affidavit shall state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time

[[Page 987]]

and circumstances of the party's discovery of such facts. It shall be 
accompanied by a certificate of the representative of record that it is 
made in good faith.
    (e) Upon the filing of such a motion and affidavit, the ALJ shall 
proceed no further in the case until he or she resolves the matter of 
disqualification in accordance with paragraph (f) of this section.
    (f)(1) If the ALJ determines that the reviewing official is 
disqualified, the ALJ shall dismiss the complaint without prejudice.
    (2) If the ALJ disqualifies himself or herself, the case shall be 
reassigned promptly to another ALJ.
    (3) If the ALJ denies a motion to disqualify, the A.I.D. 
Administrator may determine the matter only as part of his or her review 
of the initial decision upon appeal, if any.



Sec.  224.17  Rights of parties.

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



Sec.  224.18  Authority of the ALJ.

    (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is made.
    (b) The ALJ may:
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Adminster oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.
    (c) The ALJ does not have the authority to find Federal statutes or 
regulations invalid.



Sec.  224.19  Prehearing conferences.

    (a) The ALJ may schedule prehearing conferences as appropriate.
    (b) Upon the motion of any party, the ALJ shall schedule at least 
one prehearing conference at a reasonable time in advance of the 
hearing.
    (c) The ALJ may use prehearing conferences to discuss the following:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    (3) Stipulations and admissions of fact or as to the contents and 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;

[[Page 988]]

    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The ALJ shall issue an order containing all matters agreed upon 
by the parties or ordered by the ALJ at a prehearing conference.



Sec.  224.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the defendent 
may review any relevant and material documents, transcripts, records, 
and other materials that relate to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec.  224.4(b) are based, unless such 
documents are subject to a privilege under Federal law. Upon payment of 
fees for duplication, the defendant may obtain copies of such documents.
    (b) Upon written request to the reviewing official, the defendant 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the reviewing 
official as described in Sec.  224.5 is not discoverable under any 
circumstances.
    (d) The defendant may file a motion to compel disclosure of the 
documents subject to the provisions of this section. Such a motion may 
only be filed with the ALJ following the filing of an answer pursuant to 
Sec.  224.9.



Sec.  224.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purpose of this section and Sec.  224.22 and Sec.  
224.23, the term ``documents'' includes information, documents, reports, 
answers, records, accounts, papers, and other data and documentary 
evidence. Nothing contained herein shall be interpreted to require the 
creation of a document.
    (c) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ shall regulate the timing of 
discovery.
    (d) Motions for discovery. (1) A party seeking discovery may file a 
motion with the ALJ. Such a motion shall be accompanied by a copy of the 
requested discovery, or in the case of depositions, a summary of the 
scope of the proposed deposition.
    (2) Within ten days of service a party may file an opposition to the 
motion and/or a motion for protective order as provided in Sec.  224.24.
    (3) The ALJ may grant a motion for discovery only if he finds that 
the discovery sought:
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec.  224.24.
    (e) Deposition. (1) If a motion for deposition is granted, the ALJ 
shall issue a subpoena for the deponent, which may require the deponent 
to produce documents. The subpoena shall specify the time and place at 
which the deposition will be held.
    (2) The party seeking to depose shall serve the subpoena in the 
manner prescribed in Sec.  224.8.
    (3) The deponent may file with the ALJ a motion to quash the 
subpoena or a motion for a protective order within ten days of service.

[[Page 989]]

    (4) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition which it shall make available to 
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.



Sec.  224.22  Exchange of witness lists, statements, and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the ALJ, the parties shall exchange witness lists, copies 
of prior statements of proposed witnesses, copies of proposed hearing 
exhibits, including copies of any written statements that the party 
intends to offer in lieu of live testimony in accordance with Sec.  
224.33(b). At the time the above documents are exchanged, any party that 
intends to rely on the transcript of deposition testimony in lieu of 
live testimony at the hearing, if permitted by the ALJ, shall provide 
each party with a copy of the specific pages of the transcript it 
intends to introduce into evidence.
    (b) If a party objects, the ALJ shall not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
or any exhibit not provided to the opposing party as provided above 
unless the ALJ finds good cause for the failure or that there is no 
prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ, 
documents exchanged in accordance with paragraph (a) of this section 
shall be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec.  224.23  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request 
therefore not less than 15 days before the date fixed for the hearing 
unless otherwise allowed by the ALJ for good cause shown. Such request 
shall specify any documents to be produced and shall designate the 
witnesses and describe the address and location thereof with sufficient 
particularity to permit such witnesses to be found.
    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec.  224.8. A subpoena on a party or upon an individual 
under the control of a party may be served by first-class mail.
    (f) A party or individual to whom the subpoena is directed may file 
with the ALJ a motion to quash the subpoena within ten days after 
service or on or before the time specified in the subpoena for 
compliance if it is less than ten days after service.



Sec.  224.24  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or, with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the ALJ;

[[Page 990]]

    (8) That a trade secret or other confidential research, development, 
commercial information, or facts pertaining to any criminal 
investigation, proceeding or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
ALJ.



Sec.  224.25  Fees.

    The party requesting a subpoena shall pay the cost of the fee and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in the United States District Court. A 
check for witness fees and mileage shall accompany the subpoena when 
served, except that when a subpoena is issued on behalf of A.I.D., a 
check for witness fees and mileage need not accompany the subpoena.



Sec.  224.26  Form, filing and service of papers.

    (a) Form. (1) Documents filed with the ALJ shall include an original 
and two copies.
    (2) Every pleading and paper filed in the proceeding shall contain a 
caption setting forth the title of the action, the case number assigned 
by the ALJ, and a designation of the paper (e.g., motion to quash 
subpoena).
    (3) Every pleading and paper shall be signed by, and shall contain 
the address and telephone number of the party or the person on whose 
behalf the paper was filed, or his or her representative.
    (4) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (b) Service. A party filing a document with the ALJ shall, at the 
time of filing, serve a copy of such document on every other party. 
Service upon any party of any document other than those required to be 
served as prescribed in Sec.  224.8, shall be made by delivering a copy 
or by placing a copy of the document in the United States mail, postage 
prepaid and addressed, to the party's last known address. When a party 
is represented by a representative, service shall be made upon such 
representative in lieu of the actual party.
    (c) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.



Sec.  224.27  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal government, 
in which event it includes the next business day.
    (b) When the period of time allowed is less than seven days, 
intermediate Saturdays, Sundays, and legal holidays observed by the 
Federal government shall be excluded from the computation.
    (c) Where a document has been served or issued by placing it in the 
mail, an additional five days will be added to the time permitted for 
any response.



Sec.  224.28  Motions.

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

[[Page 991]]



Sec.  224.29  Sanctions.

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



Sec.  224.30  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the defendant is liable for a civil penalty or 
assessment under Sec.  224.3, and if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) A.I.D. shall prove defendant's liability and any aggravating 
factors by a preponderance of the evidence.
    (c) The defendant shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    (d) The hearing shall be open to the public unless otherwise ordered 
by the ALJ for good cause shown.



Sec.  224.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the A.I.D. Administrator, upon appeal, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Because of the intangible costs 
of fraud, the expense of investigating such conduct, and the need to 
deter others who might be similarly tempted, ordinarily double damages 
and a significant civil penalty should be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the A.I.D. Administrator in determining 
the amount of penalties and assessments to impose with respect to the 
misconduct (i.e., the false, fictitious, or fraudulent claims or 
statements) charged in the complaint:
    (1) The number of false, fictitious, or fraudulent claims or 
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the defendant's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation;
    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon national 
defense,

[[Page 992]]

public health or safety, or public confidence in the management of 
Government programs and operations, including particularly the impact on 
the intended beneficiaries of such programs;
    (8) Whether the defendant has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the defendant attempted to conceal the misconduct;
    (10) The degree to which the defendant has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
defendant, the extent to which the defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the defendant's sophistication with respect to it, including the extent 
of defendant's prior participation in the program or in similar 
transactions;
    (15) Whether the defendant has been found, in any criminal, civil, 
or administrative proceeding, to have engaged in similar misconduct or 
to have dealt dishonestly with the Government of the United States or of 
a State, directly or indirectly; and
    (16) The need to deter the defendant and others from engaging in the 
same or similar misconduct.
    (c) Nothing in this section shall be construed to limit the ALJ or 
the A.I.D. Administrator from considering any other factors that in any 
given case may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec.  224.32  Location of hearing.

    (a) The hearing may be held:
    (1) In any judicial district of the United States in which the 
defendant resides or transacts business;
    (2) In any judicial district of the United States in which the claim 
or statement in issue was made; or
    (3) In such other place as may be agreed upon by the defendant and 
the ALJ.
    (b) Each party shall have the opportunity to present argument with 
respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered 
by the ALJ.



Sec.  224.33  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing shall be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written statement or deposition. Any such written statement 
must be provided to all other parties along with the last known address 
of such witness, in a manner which allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written statements of witnesses proposed to testify at the hearing 
and deposition transcripts shall be exchanged as provided in Sec.  
224.22(a).
    (c) The ALJ shall exercise reasonable control over the mode and 
order of interrogating witnesses and presenting evidence so as to--
    (1) Make the interrogation and presentation effective for the 
ascertainment of the truth,
    (2) Avoid needless consumption of time, and
    (3) Protect witnesses from harassment or undue embarrassment.
    (d) The ALJ shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceeding without regard to the scope of his or 
her direct examination. To the extent permitted by the ALJ cross-
examination on matters outside the scope of direct examination shall be 
conducted in the manner of direct examination and may proceed by leading 
questions only if the witness is a hostile witness, an adverse party, or 
a witness identified with an adverse party.
    (f) Upon motion of any party, the ALJ shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses. This rule 
does not authorize exclusion of:

[[Page 993]]

    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party appearing for the entity pro se or designated by 
the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.



Sec.  224.34  Evidence.

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ shall not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence, where appropriate, e g., to exclude unreliable 
evidence.
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec.  224.24.



Sec.  224.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, all papers and requests filed in the proceeding 
constitute the record for the decision by the ALJ and the A.I.D. 
Administrator.
    (c) The record of the hearing may be inspected and copied (upon 
payment of a reasonable fee) by anyone, unless otherwise ordered by the 
ALJ pursuant to Sec.  224.24.



Sec.  224.36  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief. The ALJ shall fix the 
time for filing briefs, at a time not exceeding 60 days from the date 
the parties receive the transcript of the hearing or, if applicable, the 
stipulated record. Such briefs may be accompanied by proposed findings 
of fact and conclusions of law. The ALJ may permit the parties to file 
reply briefs.



Sec.  224.37  Initial decision.

    (a) The ALJ shall issue an initial decision based only on the 
record, which shall contain findings of fact, conclusions of law, and 
the amount of any penalties and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues:
    (1) Whether the claims or statements identified in the complaint, or 
any portion thereof, violate Sec.  224.3;
    (2) If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments, considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec.  224.31.
    (c) The ALJ shall promptly serve the initial decision on all parties 
within 90 days after the time for submission of post-hearing briefs and 
reply briefs (if permitted) has expired. The ALJ shall at the same time 
serve all parties with a statement describing the right of any defendant 
determined to be liable for a civil penalty or assessment to file a 
motion for reconsideration with the ALJ or a notice of appeal with the 
A.I.D. Administrator. If the ALJ fails to meet the deadline contained in 
this paragraph, he or she shall notify the parties of the reason for the 
delay and shall set a new deadline.
    (d) Unless the initial decision of the ALJ is timely appealed to the 
A.I.D. Administrator, or a motion for reconsideration of the initial 
decision is

[[Page 994]]

timely filed, the initial decision shall constitute the final decision 
of the A.I.D. Administrator and shall be final and binding on the 
parties 30 days after it is issued by the ALJ.



Sec.  224.38  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail, 
receipt will be presumed to be five days from the date of mailing in the 
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration, the initial 
decision shall constitute the final decision of the A.I.D. Administrator 
and shall be final and binding on the parties 30 days after the ALJ 
denies the motion, unless the initial decision is timely appealed to the 
A.I.D. Administrator in accordance with Sec.  224.39.
    (g) If the ALJ issues a revised initial decision, that decision 
shall constitute the final decision of the A.I.D. Administrator and 
shall be final and binding on the parties 30 days after it is issued, 
unless it is timely appealed to the A.I.D. Administrator in accordance 
with Sec.  224.39.



Sec.  224.39  Appeal to A.I.D. Administrator.

    (a) Any defendant who has filed a timely answer and who is 
determined in an initial decision to be liable for a civil penalty or 
assessment may appeal such decision to the A.I.D. Administrator by 
filing a notice of appeal with the A.I.D. Administrator in accordance 
with this section.
    (b)(1) A notice of appeal may be filed at any time within 30 days 
after the ALJ issues an initial decision. However, if another party 
files a motion for reconsideration under Sec.  224.38, consideration of 
the appeal shall be stayed automatically pending resolution of the 
motion for reconsideration.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal may be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) The A.I.D. Administrator may extend the initial 30 day period 
for an additional 30 days if the defendant files with the A.I.D. 
Administrator a request for an extension within the initial 30 day 
period and shows good cause.
    (c) If the defendant files a timely notice of appeal with the A.I.D. 
Administrator, and the time for filing motions for reconsideration under 
Sec.  224.38 has expired, the ALJ shall forward the record of the 
proceeding to the A.I.D. Administrator.
    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (e) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the A.I.D. 
Administrator.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the A.I.D. Administrator 
shall not consider any objection that was not raised before the ALJ 
unless a demonstration is made of extraordinary circumstances causing 
the failure to raise the objection.
    (i) If any party demonstrates to the satisfaction of the A.I.D. 
Administrator that additional evidence not presented at such hearing is 
material and that there were reasonable grounds for the failure to 
present such evidence at such hearing, the A.I.D. Administrator shall 
remand the matter to the ALJ for consideration of such additional 
evidence.

[[Page 995]]

    (j) The A.I.D. Administrator may affirm, reduce, reverse, 
compromise, remand, or settle any penalty or assessment determined by 
the ALJ in an initial decision.
    (k) The A.I.D. Administrator shall promptly serve each party to the 
appeal with a copy of his/her decision and a statement describing the 
right of any person determined to be liable for a penalty or assessment 
to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the A.I.D. 
Administrator serves the defendant with a copy of his/her decision, a 
determination that a defendant is liable under Sec.  224.3 is final and 
is not subject to judicial review.



Sec.  224.40  Stays ordered by the Department of Justice.

    If at any time the Attorney General or an Assistant Attorney General 
designated by the Attorney General transmits to the A.I.D. Administrator 
a written finding that continuation of the administrative process 
described in this part with respect to a claim or statement may 
adversely affect any pending or potential criminal or civil action 
related to such claim or statement, the A.I.D. Administrator shall stay 
the process immediately. The A.I.D. Administrator may order the process 
resumed only upon receipt of the written authorization of the Attorney 
General.



Sec.  224.41  Stay pending appeal.

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



Sec.  224.42  Judicial review.

    Section 3805 of title 31, United States Code, authorizes judicial 
review by an appropriate United States District Court of a final 
decision of the A.I.D. Administrator imposing penalties or assessments 
under this part and specifies the procedures for such review.



Sec.  224.43  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31, United States Code, authorize 
actions for collection of civil penalties and assessments imposed under 
this part and specify the procedures for such actions.



Sec.  224.44  Right to administrative offset.

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered under Sec.  224.42 or Sec.  
224.43, or any amount agreed upon in a compromise or settlement under 
Sec.  224.46, may be collected by administrative offset under 31 U.S.C. 
3716, except that an administrative offset may not be made under the 
subsection against a refund of an overpayment of Federal taxes, then or 
later owning by the United States to the defendant.



Sec.  224.45  Deposit in Treasury of United States.

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).



Sec.  224.46  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the ALJ issues an initial decision.
    (c) The A.I.D. Administrator has exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
ALJ issues an initial decision, except during pendency of any review 
under Sec.  224.42 or during the pendency of any action to collect 
penalties and assessments under Sec.  224.43.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec.  224.42 or of any action to recover penalties and assessments under 
31 U.S.C. 3806.

[[Page 996]]

    (e) The investigating official may recommend settlement terms to the 
reviewing official, the A.I.D. Administrator, or the Attorney General, 
as appropriate. The reviewing official may recommend settlement terms to 
the A.I.D. Administrator, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing.



Sec.  224.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec.  224.8 within 6 years after 
the date on which such claim or statement is made.
    (b) If the defendant fails to file a timely answer, service of a 
notice under Sec.  224.10(b) shall be deemed notice of hearing for 
purposes of this section.
    (c) The statute of limitations may be extended by agreement of the 
parties.



PART 225_PROTECTION OF HUMAN SUBJECTS--Table of Contents



Sec.
225.101 To what does this policy apply?
225.102 Definitions for purposes of this policy.
225.103 Assuring compliance with this policy--research conducted or 
          supported by any Federal department or agency.
225.104 Exempt research.
225.105-225.106 [Reserved]
225.107 IRB membership.
225.108 IRB functions and operations.
225.109 IRB review of research.
225.110 Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
225.111 Criteria for IRB approval of research.
225.112 Review by institution.
225.113 Suspension or termination of IRB approval of research.
225.114 Cooperative research.
225.115 IRB records.
225.116 General requirements for informed consent.
225.117 Documentation of informed consent.
225.118 Applications and proposals lacking definite plans for 
          involvement of human subjects.
225.119 Research undertaken without the intention of involving human 
          subjects.
225.120 Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal department 
          or agency.
225.121 [Reserved]
225.122 Use of Federal funds.
225.123 Early termination of research support: Evaluation of 
          applications and proposals.
225.124 Conditions.

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

    Source: 82 FR 7270, Jan. 19, 2017, unless otherwise noted.



Sec.  225.101  To what does this policy apply?

    (a) Except as detailed in Sec.  225.104, this policy applies to all 
research involving human subjects conducted, supported, or otherwise 
subject to regulation by any Federal department or agency that takes 
appropriate administrative action to make the policy applicable to such 
research. This includes research conducted by Federal civilian employees 
or military personnel, except that each department or agency head may 
adopt such procedural modifications as may be appropriate from an 
administrative standpoint. It also includes research conducted, 
supported, or otherwise subject to regulation by the Federal Government 
outside the United States. Institutions that are engaged in research 
described in this paragraph and institutional review boards (IRBs) 
reviewing research that is subject to this policy must comply with this 
policy.
    (b) [Reserved]
    (c) Department or agency heads retain final judgment as to whether a 
particular activity is covered by this policy and this judgment shall be 
exercised consistent with the ethical principles of the Belmont 
Report.\62\
---------------------------------------------------------------------------

    \62\ The National Commission for the Protection of Human Subjects of 
Biomedical and Behavioral Research.- Belmont Report. Washington, DC: 
U.S. Department of Health and Human Services. 1979.
---------------------------------------------------------------------------

    (d) Department or agency heads may require that specific research 
activities or classes of research activities conducted, supported, or 
otherwise subject to regulation by the Federal department or agency but 
not otherwise covered by this policy comply with some or all of the 
requirements of this policy.
    (e) Compliance with this policy requires compliance with pertinent 
federal laws or regulations that provide

[[Page 997]]

additional protections for human subjects.
    (f) This policy does not affect any state or local laws or 
regulations (including tribal law passed by the official governing body 
of an American Indian or Alaska Native tribe) that may otherwise be 
applicable and that provide additional protections for human subjects.
    (g) This policy does not affect any foreign laws or regulations that 
may otherwise be applicable and that provide additional protections to 
human subjects of research.
    (h) When research covered by this policy takes place in foreign 
countries, procedures normally followed in the foreign countries to 
protect human subjects may differ from those set forth in this policy. 
In these circumstances, if a department or agency head determines that 
the procedures prescribed by the institution afford protections that are 
at least equivalent to those provided in this policy, the department or 
agency head may approve the substitution of the foreign procedures in 
lieu of the procedural requirements provided in this policy. Except when 
otherwise required by statute, Executive Order, or the department or 
agency head, notices of these actions as they occur will be published in 
the Federal Register or will be otherwise published as provided in 
department or agency procedures.
    (i) Unless otherwise required by law, department or agency heads may 
waive the applicability of some or all of the provisions of this policy 
to specific research activities or classes of research activities 
otherwise covered by this policy, provided the alternative procedures to 
be followed are consistent with the principles of the Belmont 
Report.\63\ Except when otherwise required by statute or Executive 
Order, the department or agency head shall forward advance notices of 
these actions to the Office for Human Research Protections, Department 
of Health and Human Services (HHS), or any successor office, or to the 
equivalent office within the appropriate Federal department or agency, 
and shall also publish them in the Federal Register or in such other 
manner as provided in department or agency procedures. The waiver notice 
must include a statement that identifies the conditions under which the 
waiver will be applied and a justification as to why the waiver is 
appropriate for the research, including how the decision is consistent 
with the principles of the Belmont Report.
---------------------------------------------------------------------------

    \63\ Id.
---------------------------------------------------------------------------

    (j) Federal guidance on the requirements of this policy shall be 
issued only after consultation, for the purpose of harmonization (to the 
extent appropriate), with other Federal departments and agencies that 
have adopted this policy, unless such consultation is not feasible.
    (k) [Reserved]
    (l) Compliance dates and transition provisions:
    (1) Pre-2018 Requirements. (1) For purposes of this section, the 
pre-2018 Requirements means this subpart as published in the 2016 
edition of the Code of Federal Regulations.
    (2) 2018 Requirements. For purposes of this section, the 2018 
Requirements means the Federal Policy for the Protection of Human 
Subjects requirements contained in this part. The general compliance 
date for the 2018 Requirements is January 21, 2019. The compliance date 
for Sec.  225.114(b) (cooperative research) of the 2018 Requirements is 
January 20, 2020.
    (3) Research subject to pre-2018 requirements. The pre-2018 
Requirements shall apply to the following research, unless the research 
is transitioning to comply with the 2018 Requirements in accordance with 
paragraph (l)(4) of this section:
    (i) Research initially approved by an IRB under the pre-2018 
Requirements before January 21, 2019;
    (ii) Research for which IRB review was waived pursuant to Sec.  
225.101(i) of the pre-2018 Requirements before January 21, 2019; and
    (iii) Research for which a determination was made that the research 
was exempt under Sec.  225.101(b) of the pre-2018 Requirements before 
January 21, 2019.
    (4) Transitioning research. If, on or after July 19, 2018, an 
institution planning or engaged in research otherwise

[[Page 998]]

covered by paragraph (l)(3) of this section determines that such 
research instead will transition to comply with the 2018 Requirements, 
the institution or an IRB must document and date such determination.
    (i) If the determination to transition is documented between July 
19, 2018, and January 20, 2019, the research shall:
    (A) Beginning on the date of such documentation through January 20, 
2019, comply with the pre-2018 Requirements, except that the research 
shall comply with the following:
    (1) Section 225.102(l) of the 2018 Requirements (definition of 
research) (instead of Sec.  225.102(d) of the pre-2018 Requirements);
    (2) Section 225.103(d) of the 2018 Requirements (revised 
certification requirement that eliminates IRB review of application or 
proposal) (instead of Sec.  225.103(f) of the pre-2018 Requirements); 
and
    (3) Section 225.109(f)(1)(i) and (iii) of the 2018 Requirements 
(exceptions to mandated continuing review) (instead of Sec.  225.103(b), 
as related to the requirement for continuing review, and in addition to 
Sec.  225.109, of the pre-2018 Requirements); and
    (B) Beginning on January 21, 2019, comply with the 2018 
Requirements.
    (ii) If the determination to transition is documented on or after 
January 21, 2019, the research shall, beginning on the date of such 
documentation, comply with the 2018 Requirements.
    (5) Research subject to 2018 Requirements. The 2018 Requirements 
shall apply to the following research:
    (i) Research initially approved by an IRB on or after January 21, 
2019;
    (ii) Research for which IRB review is waived pursuant to paragraph 
(i) of this section on or after January 21, 2019; and
    (iii) Research for which a determination is made that the research 
is exempt on or after January 21, 2019.
    (m) Severability: Any provision of this part held to be invalid or 
unenforceable by its terms, or as applied to any person or circumstance, 
shall be construed so as to continue to give maximum effect to the 
provision permitted by law, unless such holding shall be one of utter 
invalidity or unenforceability, in which event the provision shall be 
severable from this part and shall not affect the remainder thereof or 
the application of the provision to other persons not similarly situated 
or to other dissimilar circumstances.

[82 FR 7149, Jan. 19, 2017; 83 FR 28514, June 19, 2018]



Sec.  225.102  Definitions for purposes of this policy.

    (a) Certification means the official notification by the institution 
to the supporting Federal department or agency component, in accordance 
with the requirements of this policy, that a research project or 
activity involving human subjects has been reviewed and approved by an 
IRB in accordance with an approved assurance.
    (b) Clinical trial means a research study in which one or more human 
subjects are prospectively assigned to one or more interventions (which 
may include placebo or other control) to evaluate the effects of the 
interventions on biomedical or behavioral health-related outcomes.
    (c) Department or agency head means the head of any Federal 
department or agency, for example, the Secretary of HHS, and any other 
officer or employee of any Federal department or agency to whom the 
authority provided by these regulations to the department or agency head 
has been delegated.
    (d) Federal department or agency refers to a federal department or 
agency (the department or agency itself rather than its bureaus, offices 
or divisions) that takes appropriate administrative action to make this 
policy applicable to the research involving human subjects it conducts, 
supports, or otherwise regulates (e.g., the U.S. Department of Health 
and Human Services, the U.S. Department of Defense, or the Central 
Intelligence Agency).
    (e)(1) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research:
    (i) Obtains information or biospecimens through intervention or 
interaction with the individual, and uses, studies, or analyzes the 
information or biospecimens; or (ii) Obtains, uses,

[[Page 999]]

studies, analyzes, or generates identifiable private information or 
identifiable biospecimens.
    (2) Intervention includes both physical procedures by which 
information or biospecimens are gathered (e.g., venipuncture) and 
manipulations of the subject or the subject's environment that are 
performed for research purposes.
    (3) Interaction includes communication or interpersonal contact 
between investigator and subject.
    (4) Private information includes information about behavior that 
occurs in a context in which an individual can reasonably expect that no 
observation or recording is taking place, and information that has been 
provided for specific purposes by an individual and that the individual 
can reasonably expect will not be made public (e.g., a medical record).
    (5) Identifiable private information is private information for 
which the identity of the subject is or may readily be ascertained by 
the investigator or associated with the information.
    (6) An identifiable biospecimen is a biospecimen for which the 
identity of the subject is or may readily be ascertained by the 
investigator or associated with the biospecimen.
    (7) Federal departments or agencies implementing this policy shall:
    (i) Upon consultation with appropriate experts (including experts in 
data matching and re-identification), reexamine the meaning of 
``identifiable private information,'' as defined in paragraph (e)(5) of 
this section, and ``identifiable biospecimen,'' as defined in paragraph 
(e)(6) of this section. This reexamination shall take place within 1 
year and regularly thereafter (at least every 4 years). This process 
will be conducted by collaboration among the Federal departments and 
agencies implementing this policy. If appropriate and permitted by law, 
such Federal departments and agencies may alter the interpretation of 
these terms, including through the use of guidance.
    (ii) Upon consultation with appropriate experts, assess whether 
there are analytic technologies or techniques that should be considered 
by investigators to generate ``identifiable private information,'' as 
defined in paragraph (e)(5) of this section, or an ``identifiable 
biospecimen,'' as defined in paragraph (e)(6) of this section. This 
assessment shall take place within 1 year and regularly thereafter (at 
least every 4 years). This process will be conducted by collaboration 
among the Federal departments and agencies implementing this policy. Any 
such technologies or techniques will be included on a list of 
technologies or techniques that produce identifiable private information 
or identifiable biospecimens. This list will be published in the Federal 
Register after notice and an opportunity for public comment. The 
Secretary, HHS, shall maintain the list on a publicly accessible Web 
site.
    (f) Institution means any public or private entity, or department or 
agency (including federal, state, and other agencies).
    (g) IRB means an institutional review board established in accord 
with and for the purposes expressed in this policy.
    (h) IRB approval means the determination of the IRB that the 
research has been reviewed and may be conducted at an institution within 
the constraints set forth by the IRB and by other institutional and 
federal requirements.
    (i) Legally authorized representative means an individual or 
judicial or other body authorized under applicable law to consent on 
behalf of a prospective subject to the subject's participation in the 
procedure(s) involved in the research. If there is no applicable law 
addressing this issue, legally authorized representative means an 
individual recognized by institutional policy as acceptable for 
providing consent in the nonresearch context on behalf of the 
prospective subject to the subject's participation in the procedure(s) 
involved in the research.
    (j) Minimal risk means that the probability and magnitude of harm or 
discomfort anticipated in the research are not greater in and of 
themselves than those ordinarily encountered in daily life or during the 
performance of routine physical or psychological examinations or tests.
    (k) Public health authority means an agency or authority of the 
United States, a state, a territory, a political

[[Page 1000]]

subdivision of a state or territory, an Indian tribe, or a foreign 
government, or a person or entity acting under a grant of authority from 
or contract with such public agency, including the employees or agents 
of such public agency or its contractors or persons or entities to whom 
it has granted authority, that is responsible for public health matters 
as part of its official mandate.
    (l) Research means a systematic investigation, including research 
development, testing, and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities that meet this definition 
constitute research for purposes of this policy, whether or not they are 
conducted or supported under a program that is considered research for 
other purposes. For example, some demonstration and service programs may 
include research activities. For purposes of this part, the following 
activities are deemed not to be research:
    (1) Scholarly and journalistic activities (e.g., oral history, 
journalism, biography, literary criticism, legal research, and 
historical scholarship), including the collection and use of 
information, that focus directly on the specific individuals about whom 
the information is collected.
    (2) Public health surveillance activities, including the collection 
and testing of information or biospecimens, conducted, supported, 
requested, ordered, required, or authorized by a public health 
authority. Such activities are limited to those necessary to allow a 
public health authority to identify, monitor, assess, or investigate 
potential public health signals, onsets of disease outbreaks, or 
conditions of public health importance (including trends, signals, risk 
factors, patterns in diseases, or increases in injuries from using 
consumer products). Such activities include those associated with 
providing timely situational awareness and priority setting during the 
course of an event or crisis that threatens public health (including 
natural or man-made disasters).
    (3) Collection and analysis of information, biospecimens, or records 
by or for a criminal justice agency for activities authorized by law or 
court order solely for criminal justice or criminal investigative 
purposes.
    (4) Authorized operational activities (as determined by each agency) 
in support of intelligence, homeland security, defense, or other 
national security missions.
    (m) Written, or in writing, for purposes of this part, refers to 
writing on a tangible medium (e.g., paper) or in an electronic format.



Sec.  225.103  Assuring compliance with this policy--research conducted 
or supported by any Federal department or agency.

    (a) Each institution engaged in research that is covered by this 
policy, with the exception of research eligible for exemption under 
Sec.  225.104, and that is conducted or supported by a Federal 
department or agency, shall provide written assurance satisfactory to 
the department or agency head that it will comply with the requirements 
of this policy. In lieu of requiring submission of an assurance, 
individual department or agency heads shall accept the existence of a 
current assurance, appropriate for the research in question, on file 
with the Office for Human Research Protections, HHS, or any successor 
office, and approved for Federal-wide use by that office. When the 
existence of an HHS-approved assurance is accepted in lieu of requiring 
submission of an assurance, reports (except certification) required by 
this policy to be made to department and agency heads shall also be made 
to the Office for Human Research Protections, HHS, or any successor 
office. Federal departments and agencies will conduct or support 
research covered by this policy only if the institution has provided an 
assurance that it will comply with the requirements of this policy, as 
provided in this section, and only if the institution has certified to 
the department or agency head that the research has been reviewed and 
approved by an IRB (if such certification is required by Sec.  
225.103(d)).
    (b) The assurance shall be executed by an individual authorized to 
act for the institution and to assume on behalf of the institution the 
obligations imposed by this policy and shall be filed

[[Page 1001]]

in such form and manner as the department or agency head prescribes.
    (c) The department or agency head may limit the period during which 
any assurance shall remain effective or otherwise condition or restrict 
the assurance.
    (d) Certification is required when the research is supported by a 
Federal department or agency and not otherwise waived under Sec.  
225.101(i) or exempted under Sec.  225.104. For such research, 
institutions shall certify that each proposed research study covered by 
the assurance and this section has been reviewed and approved by the 
IRB. Such certification must be submitted as prescribed by the Federal 
department or agency component supporting the research. Under no 
condition shall research covered by this section be initiated prior to 
receipt of the certification that the research has been reviewed and 
approved by the IRB.
    (e) For nonexempt research involving human subjects covered by this 
policy (or exempt research for which limited IRB review takes place 
pursuant to Sec.  225.104(d)(2)(iii), (d)(3)(i)(C), or (d)(7) or (8)) 
that takes place at an institution in which IRB oversight is conducted 
by an IRB that is not operated by the institution, the institution and 
the organization operating the IRB shall document the institution's 
reliance on the IRB for oversight of the research and the 
responsibilities that each entity will undertake to ensure compliance 
with the requirements of this policy (e.g., in a written agreement 
between the institution and the IRB, by implementation of an 
institution-wide policy directive providing the allocation of 
responsibilities between the institution and an IRB that is not 
affiliated with the institution, or as set forth in a research 
protocol).

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



Sec.  225.104  Exempt research.

    (a) Unless otherwise required by law or by department or agency 
heads, research activities in which the only involvement of human 
subjects will be in one or more of the categories in paragraph (d) of 
this section are exempt from the requirements of this policy, except 
that such activities must comply with the requirements of this section 
and as specified in each category.
    (b) Use of the exemption categories for research subject to the 
requirements of subparts B, C, and D: Application of the exemption 
categories to research subject to the requirements of 45 CFR part 46, 
subparts B, C, and D, is as follows:
    (1) Subpart B. Each of the exemptions at this section may be applied 
to research subject to subpart B if the conditions of the exemption are 
met.
    (2) Subpart C. The exemptions at this section do not apply to 
research subject to subpart C, except for research aimed at involving a 
broader subject population that only incidentally includes prisoners.
    (3) Subpart D. The exemptions at paragraphs (d)(1), (4), (5), (6), 
(7), and (8) of this section may be applied to research subject to 
subpart D if the conditions of the exemption are met. Paragraphs 
(d)(2)(i) and (ii) of this section only may apply to research subject to 
subpart D involving educational tests or the observation of public 
behavior when the investigator(s) do not participate in the activities 
being observed. Paragraph (d)(2)(iii) of this section may not be applied 
to research subject to subpart D.
    (c) [Reserved]
    (d) Except as described in paragraph (a) of this section, the 
following categories of human subjects research are exempt from this 
policy:
    (1) Research, conducted in established or commonly accepted 
educational settings, that specifically involves normal educational 
practices that are not likely to adversely impact students' opportunity 
to learn required educational content or the assessment of educators who 
provide instruction. This includes most research on regular and special 
education instructional strategies, and research on the effectiveness of 
or the comparison among instructional techniques, curricula, or 
classroom management methods.
    (2) Research that only includes interactions involving educational 
tests (cognitive, diagnostic, aptitude, achievement), survey procedures, 
interview procedures, or observation of

[[Page 1002]]

public behavior (including visual or auditory recording) if at least one 
of the following criteria is met:
    (i) The information obtained is recorded by the investigator in such 
a manner that the identity of the human subjects cannot readily be 
ascertained, directly or through identifiers linked to the subjects;
    (ii) Any disclosure of the human subjects' responses outside the 
research would not reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, educational advancement, or reputation; or
    (iii) The information obtained is recorded by the investigator in 
such a manner that the identity of the human subjects can readily be 
ascertained, directly or through identifiers linked to the subjects, and 
an IRB conducts a limited IRB review to make the determination required 
by Sec.  225.111(a)(7).
    (3)(i) Research involving benign behavioral interventions in 
conjunction with the collection of information from an adult subject 
through verbal or written responses (including data entry) or 
audiovisual recording if the subject prospectively agrees to the 
intervention and information collection and at least one of the 
following criteria is met:
    (A) The information obtained is recorded by the investigator in such 
a manner that the identity of the human subjects cannot readily be 
ascertained, directly or through identifiers linked to the subjects;
    (B) Any disclosure of the human subjects' responses outside the 
research would not reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, educational advancement, or reputation; or
    (C) The information obtained is recorded by the investigator in such 
a manner that the identity of the human subjects can readily be 
ascertained, directly or through identifiers linked to the subjects, and 
an IRB conducts a limited IRB review to make the determination required 
by Sec.  225.111(a)(7).
    (ii) For the purpose of this provision, benign behavioral 
interventions are brief in duration, harmless, painless, not physically 
invasive, not likely to have a significant adverse lasting impact on the 
subjects, and the investigator has no reason to think the subjects will 
find the interventions offensive or embarrassing. Provided all such 
criteria are met, examples of such benign behavioral interventions would 
include having the subjects play an online game, having them solve 
puzzles under various noise conditions, or having them decide how to 
allocate a nominal amount of received cash between themselves and 
someone else.
    (iii) If the research involves deceiving the subjects regarding the 
nature or purposes of the research, this exemption is not applicable 
unless the subject authorizes the deception through a prospective 
agreement to participate in research in circumstances in which the 
subject is informed that he or she will be unaware of or misled 
regarding the nature or purposes of the research.
    (4) Secondary research for which consent is not required: Secondary 
research uses of identifiable private information or identifiable 
biospecimens, if at least one of the following criteria is met:
    (i) The identifiable private information or identifiable 
biospecimens are publicly available;
    (ii) Information, which may include information about biospecimens, 
is recorded by the investigator in such a manner that the identity of 
the human subjects cannot readily be ascertained directly or through 
identifiers linked to the subjects, the investigator does not contact 
the subjects, and the investigator will not re-identify subjects;
    (iii) The research involves only information collection and analysis 
involving the investigator's use of identifiable health information when 
that use is regulated under 45 CFR parts 160 and 164, subparts A and E, 
for the purposes of ``health care operations'' or ``research'' as those 
terms are defined at 45 CFR 164.501 or for ``public health activities 
and purposes'' as described under 45 CFR 164.512(b); or
    (iv) The research is conducted by, or on behalf of, a Federal 
department or agency using government-generated or

[[Page 1003]]

government-collected information obtained for nonresearch activities, if 
the research generates identifiable private information that is or will 
be maintained on information technology that is subject to and in 
compliance with section 208(b) of the E-Government Act of 2002, 44 
U.S.C. 3501 note, if all of the identifiable private information 
collected, used, or generated as part of the activity will be maintained 
in systems of records subject to the Privacy Act of 1974, 5 U.S.C. 552a, 
and, if applicable, the information used in the research was collected 
subject to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
    (5) Research and demonstration projects that are conducted or 
supported by a Federal department or agency, or otherwise subject to the 
approval of department or agency heads (or the approval of the heads of 
bureaus or other subordinate agencies that have been delegated authority 
to conduct the research and demonstration projects), and that are 
designed to study, evaluate, improve, or otherwise examine public 
benefit or service programs, including procedures for obtaining benefits 
or services under those programs, possible changes in or alternatives to 
those programs or procedures, or possible changes in methods or levels 
of payment for benefits or services under those programs. Such projects 
include, but are not limited to, internal studies by Federal employees, 
and studies under contracts or consulting arrangements, cooperative 
agreements, or grants. Exempt projects also include waivers of otherwise 
mandatory requirements using authorities such as sections 1115 and 1115A 
of the Social Security Act, as amended.
    (i) Each Federal department or agency conducting or supporting the 
research and demonstration projects must establish, on a publicly 
accessible Federal Web site or in such other manner as the department or 
agency head may determine, a list of the research and demonstration 
projects that the Federal department or agency conducts or supports 
under this provision. The research or demonstration project must be 
published on this list prior to commencing the research involving human 
subjects.
    (ii) [Reserved]
    (6) Taste and food quality evaluation and consumer acceptance 
studies:
    (i) If wholesome foods without additives are consumed, or
    (ii) If a food is consumed that contains a food ingredient at or 
below the level and for a use found to be safe, or agricultural chemical 
or environmental contaminant at or below the level found to be safe, by 
the Food and Drug Administration or approved by the Environmental 
Protection Agency or the Food Safety and Inspection Service of the U.S. 
Department of Agriculture.
    (7) Storage or maintenance for secondary research for which broad 
consent is required: Storage or maintenance of identifiable private 
information or identifiable biospecimens for potential secondary 
research use if an IRB conducts a limited IRB review and makes the 
determinations required by Sec.  225.111(a)(8).
    (8) Secondary research for which broad consent is required: Research 
involving the use of identifiable private information or identifiable 
biospecimens for secondary research use, if the following criteria are 
met:
    (i) Broad consent for the storage, maintenance, and secondary 
research use of the identifiable private information or identifiable 
biospecimens was obtained in accordance with Sec.  225.116(a)(1) through 
(4), (a)(6), and (d);
    (ii) Documentation of informed consent or waiver of documentation of 
consent was obtained in accordance with Sec.  225.117;
    (iii) An IRB conducts a limited IRB review and makes the 
determination required by Sec.  225.111(a)(7) and makes the 
determination that the research to be conducted is within the scope of 
the broad consent referenced in paragraph (d)(8)(i) of this section; and 
(iv) The investigator does not include returning individual research 
results to subjects as part of the study plan. This provision does not 
prevent an investigator from abiding by any legal requirements to return 
individual research results.

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

[[Page 1004]]



Sec. Sec.  225.105-225.106  [Reserved]



Sec.  225.107  IRB membership.

    (a) Each IRB shall have at least five members, with varying 
backgrounds to promote complete and adequate review of research 
activities commonly conducted by the institution. The IRB shall be 
sufficiently qualified through the experience and expertise of its 
members (professional competence), and the diversity of its members, 
including race, gender, and cultural backgrounds and sensitivity to such 
issues as community attitudes, to promote respect for its advice and 
counsel in safeguarding the rights and welfare of human subjects. The 
IRB shall be able to ascertain the acceptability of proposed research in 
terms of institutional commitments (including policies and resources) 
and regulations, applicable law, and standards of professional conduct 
and practice. The IRB shall therefore include persons knowledgeable in 
these areas. If an IRB regularly reviews research that involves a 
category of subjects that is vulnerable to coercion or undue influence, 
such as children, prisoners, individuals with impaired decision-making 
capacity, or economically or educationally disadvantaged persons, 
consideration shall be given to the inclusion of one or more individuals 
who are knowledgeable about and experienced in working with these 
categories of subjects.
    (b) Each IRB shall include at least one member whose primary 
concerns are in scientific areas and at least one member whose primary 
concerns are in nonscientific areas.
    (c) Each IRB shall include at least one member who is not otherwise 
affiliated with the institution and who is not part of the immediate 
family of a person who is affiliated with the institution.
    (d) No IRB may have a member participate in the IRB's initial or 
continuing review of any project in which the member has a conflicting 
interest, except to provide information requested by the IRB.
    (e) An IRB may, in its discretion, invite individuals with 
competence in special areas to assist in the review of issues that 
require expertise beyond or in addition to that available on the IRB. 
These individuals may not vote with the IRB.



Sec.  225.108  IRB functions and operations.

    (a) In order to fulfill the requirements of this policy each IRB 
shall:
    (1) Have access to meeting space and sufficient staff to support the 
IRB's review and recordkeeping duties;
    (2) Prepare and maintain a current list of the IRB members 
identified by name; earned degrees; representative capacity; indications 
of experience such as board certifications or licenses sufficient to 
describe each member's chief anticipated contributions to IRB 
deliberations; and any employment or other relationship between each 
member and the institution, for example, full-time employee, part-time 
employee, member of governing panel or board, stockholder, paid or 
unpaid consultant;
    (3) Establish and follow written procedures for:
    (i) Conducting its initial and continuing review of research and for 
reporting its findings and actions to the investigator and the 
institution;
    (ii) Determining which projects require review more often than 
annually and which projects need verification from sources other than 
the investigators that no material changes have occurred since previous 
IRB review; and
    (iii) Ensuring prompt reporting to the IRB of proposed changes in a 
research activity, and for ensuring that investigators will conduct the 
research activity in accordance with the terms of the IRB approval until 
any proposed changes have been reviewed and approved by the IRB, except 
when necessary to eliminate apparent immediate hazards to the subject.
    (4) Establish and follow written procedures for ensuring prompt 
reporting to the IRB; appropriate institutional officials; the 
department or agency head; and the Office for Human Research 
Protections, HHS, or any successor office, or the equivalent office 
within the appropriate Federal department or agency of
    (i) Any unanticipated problems involving risks to subjects or others 
or

[[Page 1005]]

any serious or continuing noncompliance with this policy or the 
requirements or determinations of the IRB; and
    (ii) Any suspension or termination of IRB approval.
    (b) Except when an expedited review procedure is used (as described 
in Sec.  225.110), an IRB must review proposed research at convened 
meetings at which a majority of the members of the IRB are present, 
including at least one member whose primary concerns are in 
nonscientific areas. In order for the research to be approved, it shall 
receive the approval of a majority of those members present at the 
meeting.

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



Sec.  225.109  IRB review of research.

    (a) An IRB shall review and have authority to approve, require 
modifications in (to secure approval), or disapprove all research 
activities covered by this policy, including exempt research activities 
under Sec.  225.104 for which limited IRB review is a condition of 
exemption (under Sec.  225.104(d)(2)(iii), (d)(3)(i)(C), and (d)(7), and 
(8)).
    (b) An IRB shall require that information given to subjects (or 
legally authorized representatives, when appropriate) as part of 
informed consent is in accordance with Sec.  225.116. The IRB may 
require that information, in addition to that specifically mentioned in 
Sec.  225.116, be given to the subjects when in the IRB's judgment the 
information would meaningfully add to the protection of the rights and 
welfare of subjects.
    (c) An IRB shall require documentation of informed consent or may 
waive documentation in accordance with Sec.  225.117.
    (d) An IRB shall notify investigators and the institution in writing 
of its decision to approve or disapprove the proposed research activity, 
or of modifications required to secure IRB approval of the research 
activity. If the IRB decides to disapprove a research activity, it shall 
include in its written notification a statement of the reasons for its 
decision and give the investigator an opportunity to respond in person 
or in writing.
    (e) An IRB shall conduct continuing review of research requiring 
review by the convened IRB at intervals appropriate to the degree of 
risk, not less than once per year, except as described in Sec.  
225.109(f).
    (f)(1) Unless an IRB determines otherwise, continuing review of 
research is not required in the following circumstances:
    (i) Research eligible for expedited review in accordance with Sec.  
225.110;
    (ii) Research reviewed by the IRB in accordance with the limited IRB 
review described in Sec.  225.104(d)(2)(iii), (d)(3)(i)(C), or (d)(7) or 
(8);
    (iii) Research that has progressed to the point that it involves 
only one or both of the following, which are part of the IRB-approved 
study:
    (A) Data analysis, including analysis of identifiable private 
information or identifiable biospecimens, or
    (B) Accessing follow-up clinical data from procedures that subjects 
would undergo as part of clinical care.
    (2) [Reserved]
    (g) An IRB shall have authority to observe or have a third party 
observe the consent process and the research.

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



Sec.  225.110  Expedited review procedures for certain kinds of research 
involving no more than minimal risk, and for minor changes 
in approved research.

    (a) The Secretary of HHS has established, and published as a Notice 
in the Federal Register, a list of categories of research that may be 
reviewed by the IRB through an expedited review procedure. The Secretary 
will evaluate the list at least every 8 years and amend it, as 
appropriate, after consultation with other federal departments and 
agencies and after publication in the Federal Register for public 
comment. A copy of the list is available from the Office for Human 
Research Protections, HHS, or any successor office.
    (b)(1) An IRB may use the expedited review procedure to review the 
following:

[[Page 1006]]

    (i) Some or all of the research appearing on the list described in 
paragraph (a) of this section, unless the reviewer determines that the 
study involves more than minimal risk;
    (ii) Minor changes in previously approved research during the period 
for which approval is authorized; or
    (iii) Research for which limited IRB review is a condition of 
exemption under Sec.  225.104(d)(2)(iii), (d)(3)(i)(C), and (d)(7) and 
(8).
    (2) Under an expedited review procedure, the review may be carried 
out by the IRB chairperson or by one or more experienced reviewers 
designated by the chairperson from among members of the IRB. In 
reviewing the research, the reviewers may exercise all of the 
authorities of the IRB except that the reviewers may not disapprove the 
research. A research activity may be disapproved only after review in 
accordance with the nonexpedited procedure set forth in Sec.  
225.108(b).
    (c) Each IRB that uses an expedited review procedure shall adopt a 
method for keeping all members advised of research proposals that have 
been approved under the procedure.
    (d) The department or agency head may restrict, suspend, terminate, 
or choose not to authorize an institution's or IRB's use of the 
expedited review procedure.



Sec.  225.111  Criteria for IRB approval of research.

    (a) In order to approve research covered by this policy the IRB 
shall determine that all of the following requirements are satisfied:
    (1) Risks to subjects are minimized:
    (i) By using procedures that are consistent with sound research 
design and that do not unnecessarily expose subjects to risk, and
    (ii) Whenever appropriate, by using procedures already being 
performed on the subjects for diagnostic or treatment purposes.
    (2) Risks to subjects are reasonable in relation to anticipated 
benefits, if any, to subjects, and the importance of the knowledge that 
may reasonably be expected to result. In evaluating risks and benefits, 
the IRB should consider only those risks and benefits that may result 
from the research (as distinguished from risks and benefits of therapies 
subjects would receive even if not participating in the research). The 
IRB should not consider possible long-range effects of applying 
knowledge gained in the research (e.g., the possible effects of the 
research on public policy) as among those research risks that fall 
within the purview of its responsibility.
    (3) Selection of subjects is equitable. In making this assessment 
the IRB should take into account the purposes of the research and the 
setting in which the research will be conducted. The IRB should be 
particularly cognizant of the special problems of research that involves 
a category of subjects who are vulnerable to coercion or undue 
influence, such as children, prisoners, individuals with impaired 
decision-making capacity, or economically or educationally disadvantaged 
persons.
    (4) Informed consent will be sought from each prospective subject or 
the subject's legally authorized representative, in accordance with, and 
to the extent required by, Sec.  225.116.
    (5) Informed consent will be appropriately documented or 
appropriately waived in accordance with Sec.  225.117.
    (6) When appropriate, the research plan makes adequate provision for 
monitoring the data collected to ensure the safety of subjects.
    (7) When appropriate, there are adequate provisions to protect the 
privacy of subjects and to maintain the confidentiality of data.
    (i) The Secretary of HHS will, after consultation with the Office of 
Management and Budget's privacy office and other Federal departments and 
agencies that have adopted this policy, issue guidance to assist IRBs in 
assessing what provisions are adequate to protect the privacy of 
subjects and to maintain the confidentiality of data.
    (ii) [Reserved]
    (8) For purposes of conducting the limited IRB review required by 
Sec.  225.104(d)(7)), the IRB need not make the determinations at 
paragraphs (a)(1) through (7) of this section, and shall make the 
following determinations:
    (i) Broad consent for storage, maintenance, and secondary research 
use of identifiable private information or

[[Page 1007]]

identifiable biospecimens is obtained in accordance with the 
requirements of Sec.  225.116(a)(1)-(4), (a)(6), and (d);
    (ii) Broad consent is appropriately documented or waiver of 
documentation is appropriate, in accordance with Sec.  225.117; and
    (iii) If there is a change made for research purposes in the way the 
identifiable private information or identifiable biospecimens are stored 
or maintained, there are adequate provisions to protect the privacy of 
subjects and to maintain the confidentiality of data.
    (b) When some or all of the subjects are likely to be vulnerable to 
coercion or undue influence, such as children, prisoners, individuals 
with impaired decision-making capacity, or economically or educationally 
disadvantaged persons, additional safeguards have been included in the 
study to protect the rights and welfare of these subjects.



Sec.  225.112  Review by Institution

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



Sec.  225.113  Suspension or Termination of IRB Approval of Research.

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

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



Sec.  225.114  Cooperative Research.

    (a) Cooperative research projects are those projects covered by this 
policy that involve more than one institution. In the conduct of 
cooperative research projects, each institution is responsible for 
safeguarding the rights and welfare of human subjects and for complying 
with this policy.
    (b)(1) Any institution located in the United States that is engaged 
in cooperative research must rely upon approval by a single IRB for that 
portion of the research that is conducted in the United States. The 
reviewing IRB will be identified by the Federal department or agency 
supporting or conducting the research or proposed by the lead 
institution subject to the acceptance of the Federal department or 
agency supporting the research.
    (2) The following research is not subject to this provision:
    (i) Cooperative research for which more than single IRB review is 
required by law (including tribal law passed by the official governing 
body of an American Indian or Alaska Native tribe); or
    (ii) Research for which any Federal department or agency supporting 
or conducting the research determines and documents that the use of a 
single IRB is not appropriate for the particular context.
    (c) For research not subject to paragraph (b) of this section, an 
institution participating in a cooperative project may enter into a 
joint review arrangement, rely on the review of another IRB, or make 
similar arrangements for avoiding duplication of effort.



Sec.  225.115  IRB Records.

    (a) An institution, or when appropriate an IRB, shall prepare and 
maintain adequate documentation of IRB activities, including the 
following:
    (1) Copies of all research proposals reviewed, scientific 
evaluations, if any, that accompany the proposals, approved sample 
consent forms, progress reports submitted by investigators, and reports 
of injuries to subjects.
    (2) Minutes of IRB meetings, which shall be in sufficient detail to 
show attendance at the meetings; actions taken by the IRB; the vote on 
these actions including the number of members voting for, against, and 
abstaining; the basis for requiring changes in or disapproving research; 
and a written summary of the discussion of controverted issues and their 
resolution.
    (3) Records of continuing review activities, including the rationale 
for

[[Page 1008]]

conducting continuing review of research that otherwise would not 
require continuing review as described in Sec.  225.109(f)(1).
    (4) Copies of all correspondence between the IRB and the 
investigators.
    (5) A list of IRB members in the same detail as described in Sec.  
225.108(a)(2).
    (6) Written procedures for the IRB in the same detail as described 
in Sec.  225.108(a)(3) and (4).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec.  225.116(c)(5).
    (8) The rationale for an expedited reviewer's determination under 
Sec.  225.110(b)(1)(i) that research appearing on the expedited review 
list described in Sec.  225.110(a) is more than minimal risk.
    (9) Documentation specifying the responsibilities that an 
institution and an organization operating an IRB each will undertake to 
ensure compliance with the requirements of this policy, as described in 
Sec.  225.103(e).
    (b) The records required by this policy shall be retained for at 
least 3 years, and records relating to research that is conducted shall 
be retained for at least 3 years after completion of the research. The 
institution or IRB may maintain the records in printed form, or 
electronically. All records shall be accessible for inspection and 
copying by authorized representatives of the Federal department or 
agency at reasonable times and in a reasonable manner.

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



Sec.  225.116  General Requirements for Informed Consent.

    (a) General. General requirements for informed consent, whether 
written or oral, are set forth in this paragraph and apply to consent 
obtained in accordance with the requirements set forth in paragraphs (b) 
through (d) of this section. Broad consent may be obtained in lieu of 
informed consent obtained in accordance with paragraphs (b) and (c) of 
this section only with respect to the storage, maintenance, and 
secondary research uses of identifiable private information and 
identifiable biospecimens. Waiver or alteration of consent in research 
involving public benefit and service programs conducted by or subject to 
the approval of state or local officials is described in paragraph (e) 
of this section. General waiver or alteration of informed consent is 
described in paragraph (f) of this section. Except as provided elsewhere 
in this policy:
    (1) Before involving a human subject in research covered by this 
policy, an investigator shall obtain the legally effective informed 
consent of the subject or the subject's legally authorized 
representative.
    (2) An investigator shall seek informed consent only under 
circumstances that provide the prospective subject or the legally 
authorized representative sufficient opportunity to discuss and consider 
whether or not to participate and that minimize the possibility of 
coercion or undue influence.
    (3) The information that is given to the subject or the legally 
authorized representative shall be in language understandable to the 
subject or the legally authorized representative.
    (4) The prospective subject or the legally authorized representative 
must be provided with the information that a reasonable person would 
want to have in order to make an informed decision about whether to 
participate, and an opportunity to discuss that information.
    (5) Except for broad consent obtained in accordance with paragraph 
(d) of this section:
    (i) Informed consent must begin with a concise and focused 
presentation of the key information that is most likely to assist a 
prospective subject or legally authorized representative in 
understanding the reasons why one might or might not want to participate 
in the research. This part of the informed consent must be organized and 
presented in a way that facilitates comprehension.
    (ii) Informed consent as a whole must present information in 
sufficient detail relating to the research, and must be organized and 
presented in a way that does not merely provide lists of isolated facts, 
but rather facilitates the prospective subject's or legally authorized 
representative's understanding of

[[Page 1009]]

the reasons why one might or might not want to participate.
    (6) No informed consent may include any exculpatory language through 
which the subject or the legally authorized representative is made to 
waive or appear to waive any of the subject's legal rights, or releases 
or appears to release the investigator, the sponsor, the institution, or 
its agents from liability for negligence.
    (b) Basic elements of informed consent. Except as provided in 
paragraph (d), (e), or (f) of this section, in seeking informed consent 
the following information shall be provided to each subject or the 
legally authorized representative:
    (1) A statement that the study involves research, an explanation of 
the purposes of the research and the expected duration of the subject's 
participation, a description of the procedures to be followed, and 
identification of any procedures that are experimental;
    (2) A description of any reasonably foreseeable risks or discomforts 
to the subject;
    (3) A description of any benefits to the subject or to others that 
may reasonably be expected from the research;
    (4) A disclosure of appropriate alternative procedures or courses of 
treatment, if any, that might be advantageous to the subject;
    (5) A statement describing the extent, if any, to which 
confidentiality of records identifying the subject will be maintained;
    (6) For research involving more than minimal risk, an explanation as 
to whether any compensation and an explanation as to whether any medical 
treatments are available if injury occurs and, if so, what they consist 
of, or where further information may be obtained;
    (7) An explanation of whom to contact for answers to pertinent 
questions about the research and research subjects' rights, and whom to 
contact in the event of a research-related injury to the subject;
    (8) A statement that participation is voluntary, refusal to 
participate will involve no penalty or loss of benefits to which the 
subject is otherwise entitled, and the subject may discontinue 
participation at any time without penalty or loss of benefits to which 
the subject is otherwise entitled; and
    (9) One of the following statements about any research that involves 
the collection of identifiable private information or identifiable 
biospecimens:
    (i) A statement that identifiers might be removed from the 
identifiable private information or identifiable biospecimens and that, 
after such removal, the information or biospecimens could be used for 
future research studies or distributed to another investigator for 
future research studies without additional informed consent from the 
subject or the legally authorized representative, if this might be a 
possibility; or
    (ii) A statement that the subject's information or biospecimens 
collected as part of the research, even if identifiers are removed, will 
not be used or distributed for future research studies.
    (c) Additional elements of informed consent. Except as provided in 
paragraph (d), (e), or (f) of this section, one or more of the following 
elements of information, when appropriate, shall also be provided to 
each subject or the legally authorized representative:
    (1) A statement that the particular treatment or procedure may 
involve risks to the subject (or to the embryo or fetus, if the subject 
is or may become pregnant) that are currently unforeseeable;
    (2) Anticipated circumstances under which the subject's 
participation may be terminated by the investigator without regard to 
the subject's or the legally authorized representative's consent;
    (3) Any additional costs to the subject that may result from 
participation in the research;
    (4) The consequences of a subject's decision to withdraw from the 
research and procedures for orderly termination of participation by the 
subject;
    (5) A statement that significant new findings developed during the 
course of the research that may relate to the subject's willingness to 
continue participation will be provided to the subject;
    (6) The approximate number of subjects involved in the study;

[[Page 1010]]

    (7) A statement that the subject's biospecimens (even if identifiers 
are removed) may be used for commercial profit and whether the subject 
will or will not share in this commercial profit;
    (8) A statement regarding whether clinically relevant research 
results, including individual research results, will be disclosed to 
subjects, and if so, under what conditions; and
    (9) For research involving biospecimens, whether the research will 
(if known) or might include whole genome sequencing (i.e., sequencing of 
a human germline or somatic specimen with the intent to generate the 
genome or exome sequence of that specimen).
    (d) Elements of broad consent for the storage, maintenance, and 
secondary research use of identifiable private information or 
identifiable biospecimens. Broad consent for the storage, maintenance, 
and secondary research use of identifiable private information or 
identifiable biospecimens (collected for either research studies other 
than the proposed research or nonresearch purposes) is permitted as an 
alternative to the informed consent requirements in paragraphs (b) and 
(c) of this section. If the subject or the legally authorized 
representative is asked to provide broad consent, the following shall be 
provided to each subject or the subject's legally authorized 
representative:
    (1) The information required in paragraphs (b)(2), (b)(3), (b)(5), 
and (b)(8) and, when appropriate, (c)(7) and (9) of this section;
    (2) A general description of the types of research that may be 
conducted with the identifiable private information or identifiable 
biospecimens. This description must include sufficient information such 
that a reasonable person would expect that the broad consent would 
permit the types of research conducted;
    (3) A description of the identifiable private information or 
identifiable biospecimens that might be used in research, whether 
sharing of identifiable private information or identifiable biospecimens 
might occur, and the types of institutions or researchers that might 
conduct research with the identifiable private information or 
identifiable biospecimens;
    (4) A description of the period of time that the identifiable 
private information or identifiable biospecimens may be stored and 
maintained (which period of time could be indefinite), and a description 
of the period of time that the identifiable private information or 
identifiable biospecimens may be used for research purposes (which 
period of time could be indefinite);
    (5) Unless the subject or legally authorized representative will be 
provided details about specific research studies, a statement that they 
will not be informed of the details of any specific research studies 
that might be conducted using the subject's identifiable private 
information or identifiable biospecimens, including the purposes of the 
research, and that they might have chosen not to consent to some of 
those specific research studies;
    (6) Unless it is known that clinically relevant research results, 
including individual research results, will be disclosed to the subject 
in all circumstances, a statement that such results may not be disclosed 
to the subject; and
    (7) An explanation of whom to contact for answers to questions about 
the subject's rights and about storage and use of the subject's 
identifiable private information or identifiable biospecimens, and whom 
to contact in the event of a research-related harm.
    (e) Waiver or alteration of consent in research involving public 
benefit and service programs conducted by or subject to the approval of 
state or local officials--(1) Waiver. An IRB may waive the requirement 
to obtain informed consent for research under paragraphs (a) through (c) 
of this section, provided the IRB satisfies the requirements of 
paragraph (e)(3) of this section. If an individual was asked to provide 
broad consent for the storage, maintenance, and secondary research use 
of identifiable private information or identifiable biospecimens in 
accordance with the requirements at paragraph (d) of this section, and 
refused to consent, an IRB cannot waive consent for the storage, 
maintenance, or secondary research use of the identifiable private 
information or identifiable biospecimens.
    (2) Alteration. An IRB may approve a consent procedure that omits 
some, or

[[Page 1011]]

alters some or all, of the elements of informed consent set forth in 
paragraphs (b) and (c) of this section provided the IRB satisfies the 
requirements of paragraph (e)(3) of this section. An IRB may not omit or 
alter any of the requirements described in paragraph (a) of this 
section. If a broad consent procedure is used, an IRB may not omit or 
alter any of the elements required under paragraph (d) of this section.
    (3) Requirements for waiver and alteration. In order for an IRB to 
waive or alter consent as described in this subsection, the IRB must 
find and document that:
    (i) The research or demonstration project is to be conducted by or 
subject to the approval of state or local government officials and is 
designed to study, evaluate, or otherwise examine:
    (A) Public benefit or service programs;
    (B) Procedures for obtaining benefits or services under those 
programs;
    (C) Possible changes in or alternatives to those programs or 
procedures; or
    (D) Possible changes in methods or levels of payment for benefits or 
services under those programs; and
    (ii) The research could not practicably be carried out without the 
waiver or alteration.
    (f) General waiver or alteration of consent--(1) Waiver. An IRB may 
waive the requirement to obtain informed consent for research under 
paragraphs (a) through (c) of this section, provided the IRB satisfies 
the requirements of paragraph (f)(3) of this section. If an individual 
was asked to provide broad consent for the storage, maintenance, and 
secondary research use of identifiable private information or 
identifiable biospecimens in accordance with the requirements at 
paragraph (d) of this section, and refused to consent, an IRB cannot 
waive consent for the storage, maintenance, or secondary research use of 
the identifiable private information or identifiable biospecimens.
    (2) Alteration. An IRB may approve a consent procedure that omits 
some, or alters some or all, of the elements of informed consent set 
forth in paragraphs (b) and (c) of this section provided the IRB 
satisfies the requirements of paragraph (f)(3) of this section. An IRB 
may not omit or alter any of the requirements described in paragraph (a) 
of this section. If a broad consent procedure is used, an IRB may not 
omit or alter any of the elements required under paragraph (d) of this 
section.
    (3) Requirements for waiver and alteration. In order for an IRB to 
waive or alter consent as described in this subsection, the IRB must 
find and document that:
    (i) The research involves no more than minimal risk to the subjects;
    (ii) The research could not practicably be carried out without the 
requested waiver or alteration;
    (iii) If the research involves using identifiable private 
information or identifiable biospecimens, the research could not 
practicably be carried out without using such information or 
biospecimens in an identifiable format;
    (iv) The waiver or alteration will not adversely affect the rights 
and welfare of the subjects; and
    (v) Whenever appropriate, the subjects or legally authorized 
representatives will be provided with additional pertinent information 
after participation.
    (g) Screening, recruiting, or determining eligibility. An IRB may 
approve a research proposal in which an investigator will obtain 
information or biospecimens for the purpose of screening, recruiting, or 
determining the eligibility of prospective subjects without the informed 
consent of the prospective subject or the subject's legally authorized 
representative, if either of the following conditions are met:
    (1) The investigator will obtain information through oral or written 
communication with the prospective subject or legally authorized 
representative, or
    (2) The investigator will obtain identifiable private information or 
identifiable biospecimens by accessing records or stored identifiable 
biospecimens.
    (h) Posting of clinical trial consent form. (1) For each clinical 
trial conducted or supported by a Federal department or agency, one IRB-
approved informed consent form used to enroll subjects must be posted by 
the awardee or the Federal department or agency

[[Page 1012]]

component conducting the trial on a publicly available Federal Web site 
that will be established as a repository for such informed consent 
forms.
    (2) If the Federal department or agency supporting or conducting the 
clinical trial determines that certain information should not be made 
publicly available on a Federal Web site (e.g. confidential commercial 
information), such Federal department or agency may permit or require 
redactions to the information posted.
    (3) The informed consent form must be posted on the Federal Web site 
after the clinical trial is closed to recruitment, and no later than 60 
days after the last study visit by any subject, as required by the 
protocol.
    (i) Preemption. The informed consent requirements in this policy are 
not intended to preempt any applicable Federal, state, or local laws 
(including tribal laws passed by the official governing body of an 
American Indian or Alaska Native tribe) that require additional 
information to be disclosed in order for informed consent to be legally 
effective.
    (j) Emergency medical care. Nothing in this policy is intended to 
limit the authority of a physician to provide emergency medical care, to 
the extent the physician is permitted to do so under applicable Federal, 
state, or local law (including tribal law passed by the official 
governing body of an American Indian or Alaska Native tribe).

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



Sec.  225.117  Documentation of informed consent.

    (a) Except as provided in paragraph (c) of this section, informed 
consent shall be documented by the use of a written informed consent 
form approved by the IRB and signed (including in an electronic format) 
by the subject or the subject's legally authorized representative. A 
written copy shall be given to the person signing the informed consent 
form.
    (b) Except as provided in paragraph (c) of this section, the 
informed consent form may be either of the following:
    (1) A written informed consent form that meets the requirements of 
Sec.  225.116. The investigator shall give either the subject or the 
subject's legally authorized representative adequate opportunity to read 
the informed consent form before it is signed; alternatively, this form 
may be read to the subject or the subject's legally authorized 
representative.
    (2) A short form written informed consent form stating that the 
elements of informed consent required by Sec.  225.116 have been 
presented orally to the subject or the subject's legally authorized 
representative, and that the key information required by Sec.  
225.116(a)(5)(i) was presented first to the subject, before other 
information, if any, was provided. The IRB shall approve a written 
summary of what is to be said to the subject or the legally authorized 
representative. When this method is used, there shall be a witness to 
the oral presentation. Only the short form itself is to be signed by the 
subject or the subject's legally authorized representative. However, the 
witness shall sign both the short form and a copy of the summary, and 
the person actually obtaining consent shall sign a copy of the summary. 
A copy of the summary shall be given to the subject or the subject's 
legally authorized representative, in addition to a copy of the short 
form.
    (c)(1) An IRB may waive the requirement for the investigator to 
obtain a signed informed consent form for some or all subjects if it 
finds any of the following:
    (i) That the only record linking the subject and the research would 
be the informed consent form and the principal risk would be potential 
harm resulting from a breach of confidentiality. Each subject (or 
legally authorized representative) will be asked whether the subject 
wants documentation linking the subject with the research, and the 
subject's wishes will govern;
    (ii) That the research presents no more than minimal risk of harm to 
subjects and involves no procedures for which written consent is 
normally required outside of the research context; or
    (iii) If the subjects or legally authorized representatives are 
members of a distinct cultural group or community

[[Page 1013]]

in which signing forms is not the norm, that the research presents no 
more than minimal risk of harm to subjects and provided there is an 
appropriate alternative mechanism for documenting that informed consent 
was obtained.
    (2) In cases in which the documentation requirement is waived, the 
IRB may require the investigator to provide subjects or legally 
authorized representatives with a written statement regarding the 
research.

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



Sec.  225.118  Applications and proposals lacking definite plans 
for involvement of human subjects.

    Certain types of applications for grants, cooperative agreements, or 
contracts are submitted to Federal departments or agencies with the 
knowledge that subjects may be involved within the period of support, 
but definite plans would not normally be set forth in the application or 
proposal. These include activities such as institutional type grants 
when selection of specific projects is the institution's responsibility; 
research training grants in which the activities involving subjects 
remain to be selected; and projects in which human subjects' involvement 
will depend upon completion of instruments, prior animal studies, or 
purification of compounds. Except for research waived under Sec.  
225.101(i) or exempted under Sec.  225.104, no human subjects may be 
involved in any project supported by these awards until the project has 
been reviewed and approved by the IRB, as provided in this policy, and 
certification submitted, by the institution, to the Federal department 
or agency component supporting the research.



Sec.  225.119  Research undertaken without the intention 
of involving human subjects.

    Except for research waived under Sec.  225.101(i) or exempted under 
Sec.  225.104, in the event research is undertaken without the intention 
of involving human subjects, but it is later proposed to involve human 
subjects in the research, the research shall first be reviewed and 
approved by an IRB, as provided in this policy, a certification sub-
mitted by the institution to the Federal department or agency component 
supporting the research, and final approval given to the proposed change 
by the Federal department or agency component.



Sec.  225.120  Evaluation and disposition of applications and proposals 
for research to be conducted or supported by a Federal department or agency.

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



Sec.  225.121  [Reserved]



Sec.  225.122  Use of Federal funds.

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



Sec.  225.123  Early termination of research support: 
Evaluation of applications and proposals.

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

[[Page 1014]]

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



Sec.  225.124  Conditions.

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



PART 227_NEW RESTRICTIONS ON LOBBYING--Table of Contents



                            Subpart A_General

Sec.
227.100 Conditions on use of funds.
227.105 Definitions.
227.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

227.200 Agency and legislative liaison.
227.205 Professional and technical services.
227.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

227.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

227.400 Penalties.
227.405 Penalty procedures.
227.410 Enforcement.

                          Subpart E_Exemptions

227.500 Secretary of Defense.

                        Subpart F_Agency Reports

227.600 Semi-annual compilation.
227.605 Inspector General report.

Appendix A to Part 227--Certification Regarding Lobbying
Appendix B to Part 227--Disclosure Form To Report Lobbying

    Authority: Section 319, Public Law 101-121 (31 U.S.C. 1352); Sec. 
621, Foreign Assistance Act of 1961, as amended, 75 Stat. 445 (22 U.S.C. 
2381).

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

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



                            Subpart A_General



Sec.  227.100  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

[[Page 1015]]

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.  227.105  Definitions.

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

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

[[Page 1016]]

    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer or employee for 
work that is not furnished to, not funded by, or not furnished in 
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as soon as he or she is employed by 
such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.



Sec.  227.110  Certification and disclosure.

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

Unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraphs (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting

[[Page 1017]]

to influence a covered Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraphs (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,

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



                  Subpart B_Activities by Own Employees



Sec.  227.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec.  
227.100 (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;

[[Page 1018]]

    (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.  227.205  Professional and technical services.

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



Sec.  227.210  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.  227.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
227.100 (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

[[Page 1019]]

pursuant to law as a condition for receiving that Federal contract, 
grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec.  227.110 (a) and (b) 
regarding filing a disclosure form by each person, if required, shall 
not apply with respect to professional or technical services rendered 
directly in the preparation, submission, or negotiation of any 
commitment providing for the United States to insure or guarantee a 
loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting or a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                   Subpart D_Penalties and Enforcement



Sec.  227.400  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

[[Page 1020]]

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.  227.405  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.  227.410  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.  227.500  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.  227.600  Semi-annual compilation.

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

[[Page 1021]]



Sec.  227.605  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 227--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

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

            Statement for Loan Guarantees and Loan Insurance

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

[[Page 1022]]



     Sec. Appendix B to Part 227--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC06OC91.012


[[Page 1023]]


[GRAPHIC] [TIFF OMITTED] TC06OC91.013


[[Page 1024]]


[GRAPHIC] [TIFF OMITTED] TC06OC91.014


[[Page 1025]]





PART 228_RULES FOR PROCUREMENT OF COMMODITIES AND SERVICES 
FINANCED BY USAID--Table of Contents



              Subpart A_Definitions and Scope of This Part

Sec.
228.02 Scope and application.
228.03 Identification of the authorized principal geographic procurement 
          codes.

 Subpart B_Conditions Governing Source and Nationality of Commodity and 
          Service Procurement Transactions for USAID Financing

228.10 Purpose.
228.11 Source of commodities.
228.12 Nationality of suppliers of commodities and services.
228.13 Foreign government-controlled organizations.
228.14 Construction procurement with foreign-owned local firms.
228.15 Nationality of employees and individuals under contracts or 
          subcontracts for services.
228.16 Miscellaneous service transactions.
228.17 Special procurement rules for construction and engineering 
          services.
228.18 Long-term leases.
228.19 Special source rules requiring United States manufacture or 
          procurement.

  Subpart C_Conditions Governing the Eligibility of Commodity-Related 
                      Services for USAID Financing

228.20 Purpose.
228.21 Ocean transportation.
228.22 Air transportation.
228.23 Other delivery services.
228.24 Incidental services.

                            Subpart D_Waivers

228.30 General.
228.31 Authority to approve waivers.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381), 
as amended, E.O. 12163, Sept. 29, 1979, 44 FR 56673: 3 CFR 1979 Comp., 
p. 435.

    Source: 77 FR 1401, Jan. 10, 2012, unless otherwise noted.



              Subpart A_Definitions and Scope of This Part



Sec.  228.02  Scope and application.

    This part is applicable to commodities and services procured under 
implementing instruments using Federal program funds made available for 
assistance under the Foreign Assistance Act of 1961, as amended, 22 
U.S.C. 2151 et seq. (FAA). The authorities and conditions applicable to 
the procurement of commodities or services shall be those in effect on 
the effective date of an implementing instrument for procurement of 
commodities or services. They include any directives, prohibitions, 
restrictions or other statutory and related requirements by the United 
States Congress that govern the Federal program funds appropriated to 
fund the specific procurement, including those on types of assistance 
and recipients of assistance. If additional authorities and conditions 
are otherwise provided by statute, regulation, or related administrative 
authorities, those authorities and conditions shall be incorporated in 
the implementing instrument and shall prevail in the event of any 
conflict with this part 228. This part is not applicable to
    (a) Procurements of commodities and services under General Services 
Administration (GSA) supply schedules;
    (b) Procurements with donated funds received under USAID's gift 
authority, FAA section 635(d);
    (c) Procurements funded by cost share or program income as defined 
in 22 CFR 226.24;
    (d) USAID Title II food programs, including monetization proceeds 
thereunder.
    (e) Procurements funded from any congressional appropriation 
authorized by any statute other than the FAA;
    (f) Procurements with non-program funds (such as operational expense 
account funds) made available under the FAA for any purpose other than 
assistance.



Sec.  228.03  Identification of the authorized principal 
geographic procurement codes.

    (a) USAID has established principal geographic codes which are used 
by USAID in implementing instruments. This regulation establishes a 
presumptive authorized principal geographic code, Code 937, for 
procurement of commodities and services unless otherwise specified in 
the implementing instrument. Code 937 is defined as the United

[[Page 1026]]

States, the cooperating/recipient country, and developing countries 
other than advanced developing countries, and excluding prohibited 
sources. USAID maintains a list of developing countries, advanced 
developing countries, and prohibited sources, which will be available in 
USAID's Automated Directives System, ADS 310.
    (b) For purposes of procurements under the authority of the 
Development Fund for Africa, 22 U.S.C. 2293 et seq.; for any waivers 
authorized under Subpart D of this regulation; and if otherwise 
designated in an implementing instrument, the authorized principal 
geographic code shall be Code 935, any area or country but excluding 
prohibited sources.
    (c) For purposes of procurements under the Support for Economic and 
Democratic Development of the Independent States of the Former Soviet 
Union, 22 U.S.C. 2295b, the authorized principal geographic codes are 
Code 937 and Code 110 (New Independent States).
    (d) Additional principal geographic codes may be added to this 
section if authorized by Congress.



 Subpart B_Conditions Governing Source and Nationality of Commodity and 
          Service Procurement Transactions for USAID Financing



Sec.  228.10  Purpose.

    Sections 228.11 through 228.19 set forth the rules governing the 
eligible source of commodities and nationality of commodity and service 
suppliers for USAID Federal share financing under prime and subawards. 
These rules may be waived in accordance with the provisions in subpart D 
of this part.



Sec.  228.11  Source of commodities.

    The source of all commodities financed with Federal program funds 
appropriated under the Foreign Assistance Act of 1961, as amended, shall 
be Code 937 (unless Code 935 or 110 are designated in the implementing 
instrument), except for essential medical supplies purchased to address 
the COVID-19 pandemic, the source of which must be approved by USAID 
prior to purchase unless otherwise directed by USAID. Procurements of 
agricultural commodities, motor vehicles, and pharmaceuticals must also 
comply with the special procurement rules in Sec.  228.19. Recipients 
and contractors are prohibited from engaging suppliers of commodities in 
an authorized country to import commodities from a country outside of 
the authorized principal geographic codes for the purposes of 
circumventing the requirements of this rule. Any violation of this 
prohibition will result in the disallowance by USAID of the cost of the 
procurement of the subject commodity.

[85 FR 67445, Oct. 23, 2020]

    Effective Date Note: At 85 FR 67445, Oct. 23, 2020, Sec.  228.11 was 
revised, effective Oct. 23, 2020 through Apr. 30, 2021.



Sec.  228.12  Nationality of suppliers of commodities and services.

    The suppliers of all commodities and services financed with federal 
program funds appropriated under the Foreign Assistance Act of 1961, as 
amended, shall:
    (a) If an individual, except as provided in Sec.  228.15, be a 
citizen or lawful permanent resident (or equivalent immigration status 
to live and work on a continuing basis) of a country in Code 937 (or 
other principal geographic procurement code designated in an 
implementing instrument),
    (b) If an organization,
    (1) Be incorporated or legally organized under the laws of a country 
in Code 937 (or other principal geographic procurement code designated 
in an implementing instrument);
    (2) Must be operating as a going concern in a country in Code 937 
(or other principal geographic procurement code designated in an 
implementing instrument), and either
    (3) Be managed by a governing body, the majority of whom are 
citizens or lawful permanent residents (or equivalent immigration status 
to live and work on a continuing basis) of countries in Code 937 (or 
other principal geographic procurement code designated in an 
implementing instrument), or
    (4) Employ citizens or lawful permanent residents (or equivalent 
immigration status to live and work on a continuing basis) of a country 
in Code 937

[[Page 1027]]

(or other principal geographic procurement code designated in an 
implementing instrument), in more than half its permanent full-time 
positions and more than half of its principal management positions.



Sec.  228.13  Foreign government-controlled organizations.

    Firms operated as commercial companies or other organizations or 
enterprises (including nonprofit organizations) in which foreign 
governments or their agents or agencies have a controlling interest are 
not eligible as suppliers of commodities and services, except if their 
eligibility has been established by a waiver approved by USAID in 
accordance with the provisions set forth in subpart D of this part. 
Government ministries or agencies of the cooperating/recipient country, 
including those at the regional and local levels, and government 
educational institutions, health care providers, and other technical 
entities of the cooperating/recipient country not formed primarily for 
commercial or business purposes, are eligible as suppliers of 
commodities and services.



Sec.  228.14  Construction procurement with foreign-owned local firms.

    (a) When the estimated cost of a contract for construction is $10 
million or less and only local firms will be solicited, a local 
corporation or partnership which is a foreign-owned (owned or 
controlling interest by individuals not citizens or permanent residents, 
or equivalent immigration status, of the United States or the 
cooperating/recipient country) local firm will be eligible if it is 
determined by USAID to be an integral part of the local economy, see 
paragraph (b) of this section. However, such a determination is 
contingent on first ascertaining that no United States construction 
company with the required capability is currently operating in the 
cooperating/recipient country or, if there is such a company, that it is 
not interested in bidding for the proposed contract.
    (b) A foreign-owned local firm is an integral part of the local 
economy provided:
    (1) It has done business in the cooperating/recipient country on a 
continuing basis for at least three years prior to the issuance date of 
invitations for bids or requests for proposals to be financed by USAID;
    (2) It has a demonstrated capability to undertake the proposed 
activity;
    (3) All, or substantially all, of its directors of local operations, 
senior staff and operating personnel are lawfully resident (or 
equivalent immigration status to live and work on a continuing basis) in 
the cooperating/recipient country; and
    (4) Most of its operating equipment and physical plant are in the 
cooperating/recipient country.



Sec.  228.15  Nationality of employees and individuals under contracts 
or subcontracts for services.

    The rules set forth in Sec. Sec.  228.10 through 228.13 of this part 
do not apply to the employees of contractors, or individuals providing 
technical or professional services to recipients or contractors. 
However, such individuals must not be citizens or lawful permanent 
residents (or equivalent immigration status) of countries which are 
prohibited sources.



Sec.  228.16  Miscellaneous service transactions.

    This section governs certain miscellaneous services.
    (a) Commissions. The nationality rules of this part do not apply to 
the payment of commissions by suppliers.
    (b) Bonds and guarantees. The nationality rules of this part do not 
apply to sureties, insurance companies or banks who issue bonds or 
guarantees under USAID-financed contracts.
    (c) Liability insurance under construction contracts. The 
nationality rules of this part do not apply to firms providing liability 
insurance under construction contracts.



Sec.  228.17  Special procurement rules for construction 
and engineering services.

    Advanced developing countries, as defined in Sec.  228.01, which 
USAID has determined to have attained a competitive capability in 
international markets for construction services or engineering services 
are not eligible to furnish USAID-financed construction and

[[Page 1028]]

engineering services unless approved to do so under a waiver to Code 935 
under subpart D of this part.



Sec.  228.18  Long-term leases.

    Any commodity obtained under a long-term lease agreement as defined 
in Sec.  228.01, including motor vehicles, is subject to the source and 
nationality requirements of this subpart B of this part, including the 
special procurement rules as set forth in Sec.  228.19.



Sec.  228.19  Special source rules requiring United States manufacture 
or procurement.

    (a) Certain agricultural commodities and products thereof must be 
procured in the United States if the domestic price is less than parity, 
unless the commodity cannot reasonably be procured in the United States 
in fulfillment of the objectives of a particular assistance program 
under which such commodity procurement is to be financed. (22 U.S.C. 
2354). USAID maintains a list of restricted agricultural commodities and 
related policies, which is available in USAID's Automated Directives 
System, ADS 312.
    (b) Motor vehicles must be manufactured in the United States to be 
eligible for USAID financing (22 U.S.C. 2396). Any vehicle to be 
financed by USAID under a long-term lease or where the sale is to be 
guaranteed by USAID must be manufactured in the United States. However, 
financing of transportation or driver services from an individual or 
commercial entity and not directly financing the purchase or lease of a 
vehicle, is subject to the requirements at Sec.  228.12. Financing 
transportation or driver services means:
    (1) The vehicle is independently owned or leased by the hired driver 
or company;
    (2) The vehicle will be maintained by the individual or commercial 
entity and driven only by the hired driver(s); and
    (3) The vehicle is not directly leased, either as a separate line 
item in the contract separate from the cost of the driver's services, or 
under a separate contract.
    (c) Under section 606(c) of the FAA, USAID cannot finance any 
pharmaceutical product that is manufactured outside of the United States 
if the pharmaceutical is covered by a valid U.S. patent, unless the U.S. 
patent holder expressly authorizes the manufacture of the 
pharmaceutical. Without such express authorization, the pharmaceutical 
must be purchased from the U.S. patent holder. In addition, USAID shall 
not finance non-contraceptive pharmaceuticals without prior written 
approval as provided in USAID's Automated Directives System Chapter 312. 
Contraceptives may be financed in accordance with the procedures in ADS 
312.



  Subpart C_Conditions Governing the Eligibility of Commodity-Related 
                      Services for USAID Financing



Sec.  228.20  Purpose.

    Sections 228.21 through 228.24 of this part set forth the rules 
governing the eligibility of commodity-related services, both delivery 
services and incidental services, for USAID financing. These rules, 
except for Sec. Sec.  228.21 and 228.22, may be waived in accordance 
with the provisions in subpart D of this part. The rules on delivery 
services apply whether or not USAID is also financing the commodities 
being transported. In order to be identified and eligible as incidental 
services, such services must be connected with a USAID-financed 
commodity procurement.



Sec.  228.21  Ocean transportation.

    When transporting commodities subject to the provisions of the Cargo 
Preference Act, 46 U.S.C. 55305, USAID will administer its programs in 
accordance with that act and its implementing regulations in 46 CFR part 
381 (and any waivers applicable thereto). Subpart D of 22 CFR part 228 
does not apply to this provision.



Sec.  228.22  Air transportation.

    The Fly America Act, Title 49 of the United States Code, Subtitle 
VII, part A, subpart I, Chapter 401, 40118--Government-Financed Air 
Transportation, is applicable to all transportation of commodities 
subject to this part. Subpart D of 22 CFR part 228 does not apply to 
this provision.

[[Page 1029]]



Sec.  228.23  Other delivery services.

    No source or nationality rules apply to other delivery services, 
such as export packing, loading, commodity inspection services, and 
services of a freight forwarder. Such services are eligible when 
provided as part of a commodity procurement financed by USAID.



Sec.  228.24  Incidental services.

    Source and nationality rules do not apply to suppliers of incidental 
services specified in a purchase contract relating to equipment.



                            Subpart D_Waivers



Sec.  228.30  General.

    USAID may waive the rules contained in subparts A, B, and C of this 
part (except for prohibited sources as defined in Sec.  228.01, and 
Sec. Sec.  228.21 and 228.22), in order to accomplish project or program 
objectives. Except for paragraph (e) of this section, for any waivers 
authorized, the principal geographic code shall be Code 935, any area or 
country but excluding prohibited sources. All waivers must be in 
writing, and where applicable, are limited to the term established by 
the waiver. All waiver decisions will be made solely on the basis of the 
following criteria:
    (a) Waivers to permit procurement outside of Code 937 or 110 must be 
based on a case by case determination that:
    (1) The provision of assistance requires commodities or services of 
the type that are not produced in and available for purchase in Code 937 
or 110;
    (2) It is important to permit procurement from a country not 
specified in Code 937 or 110 to meet unforeseen circumstance; or
    (3) To promote efficiency in the use of United States foreign 
assistance resources, including to avoid impairment of foreign 
assistance objectives.
    (b) Case by case waivers under paragraph (a) of this section may be 
made on the basis of a commodity or service type or category, rather 
than processing repeat, individual waivers for an identical or 
substantially similar commodity or service. Such waivers may be approved 
on a regional, country, or program basis. For purposes of paragraph 
(a)(1) of this section, ``produced in and available for purchase in'' 
shall have the same meaning as the definition of ``available for 
purchase'' in Sec.  228.01. A waiver under paragraph (a)(1) of this 
section may also be based on the fact that a commodity is not available 
for purchase in Code 937 or 110 in sufficient, reasonable, and available 
quantities or sufficient and reasonable quality that is fit for the 
intended purpose.
    (c) A waiver to authorize procurement from outside the United States 
of agricultural commodities, motor vehicles, and pharmaceuticals must 
meet the requirements of Sec.  228.19.
    (d) Any individual transaction not exceeding $25,000 (excluding 
essential medical supplies purchased to address the COVID-19 pandemic), 
excluding those covered by special procurement rules in Sec.  228.19, 
and excluding procurements from prohibited sources) does not require a 
waiver and is hereby authorized.
    (e) For purchases of essential medical supplies to address the 
COVID-19 pandemic, waivers shall be authorized to the United States 
only, to the cooperating/recipient country, and/or to a nearby country. 
Nearby country means any bordering country or any country that is in the 
same geographical region as the country receiving assistance, as defined 
by the Department of State's regional system. If, as determined by USAID 
on a case by case basis, essential medical supplies are unavailable from 
the United States, the cooperating/recipient country, and a nearby 
country, or are unavailable in sufficient, reasonable, and available 
quantities or sufficient and reasonable quality that is fit for the 
intended purpose, procurement from Code 935 is authorized.

[85 FR 67445, Oct. 23, 2020]

    Effective Date Note: At 85 FR 67445, Oct. 23, 2020, Sec.  228.30 was 
revised, effective Oct. 23, 2020 through Apr. 30, 2021.



Sec.  228.31  Authority to approve waivers.

    The authority to approve waivers of established policies under this 
regulation is delegated within USAID. Recipients or contractors shall 
request any

[[Page 1030]]

necessary waivers through the USAID agreement or contracting officer.



PART 229_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS 
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                         Subpart A_Introduction

Sec.
229.100 Purpose and effective date.
229.105 Definitions.
229.110 Remedial and affirmative action and self-evaluation.
229.115 Assurance required.
229.120 Transfers of property.
229.125 Effect of other requirements.
229.130 Effect of employment opportunities.
229.135 Designation of responsible employee and adoption of grievance 
          procedures.
229.140 Dissemination of policy.

                           Subpart B_Coverage

229.200 Application.
229.205 Educational institutions and other entities controlled by 
          religious organizations.
229.210 Military and merchant marine educational institutions.
229.215 Membership practices of certain organizations.
229.220 Admissions.
229.225 Educational institutions eligible to submit transition plans.
229.230 Transition plans.
229.235 Statutory amendments.

     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

229.300 Admission.
229.305 Preference in admission.
229.310 Recruitment.

 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

229.400 Education programs or activities.
229.405 Housing.
229.410 Comparable facilities.
229.415 Access to course offerings.
229.420 Access to schools operated by LEAs.
229.425 Counseling and use of appraisal and counseling materials.
229.430 Financial assistance.
229.435 Employment assistance to students.
229.440 Health and insurance benefits and services.
229.445 Marital or parental status.
229.450 Athletics.
229.455 Textbooks and curricular material.

Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

229.500 Employment.
229.505 Employment criteria.
229.510 Recruitment.
229.515 Compensation.
229.520 Job classification and structure.
229.525 Fringe benefits.
229.530 Marital or parental status.
229.535 Effect of state or local law or other requirements.
229.540 Advertising.
229.545 Pre-employment inquiries.
229.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

229.600 Notice of covered programs.
229.605 Enforcement procedures.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 65 FR 52865, 52879, Aug. 30, 2000, unless otherwise noted.



                         Subpart A_Introduction



Sec.  229.100  Purpose and effective date.

    The purpose of these Title IX regulations is to effectuate Title IX 
of the Education Amendments of 1972, as amended (except sections 904 and 
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 
1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these Title 
IX regulations shall be September 29, 2000.



Sec.  229.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate,

[[Page 1031]]

transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means Director, Office of Equal 
Opportunity Programs.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a

[[Page 1032]]

technical field, whether or not the school or institution offers 
certificates, diplomas, or degrees and whether or not it offers full-
time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at Sec. Sec.  
229.100 through 229.605.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that 
admits students of both sexes without discrimination.

[65 FR 52865, 52879, Aug. 30, 2000]



Sec.  229.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as 
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of September 29, 2000:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.



Sec.  229.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies must ensure that applications for Federal financial 
assistance or awards of Federal financial assistance contain, be 
accompanied by, or be covered by a

[[Page 1033]]

specifically identified assurance from the applicant or recipient, 
satisfactory to the designated agency official, that each education 
program or activity operated by the applicant or recipient and to which 
these Title IX regulations apply will be operated in compliance with 
these Title IX regulations. An assurance of compliance with these Title 
IX regulations shall not be satisfactory to the designated agency 
official if the applicant or recipient to whom such assurance applies 
fails to commit itself to take whatever remedial action is necessary in 
accordance with Sec.  229.110(a) to eliminate existing discrimination on 
the basis of sex or to eliminate the effects of past discrimination 
whether occurring prior to or subsequent to the submission to the 
designated agency official of such assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec.  229.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Sec. Sec.  229.205 through 229.235(a).



Sec.  229.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on

[[Page 1034]]

the basis of sex, in any education program or activity operated by a 
recipient and that receives Federal financial assistance.



Sec.  229.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.



Sec.  229.135  Designation of responsible employee and adoption 
of grievance procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carry out its responsibilities under these Title IX regulations, 
including any investigation of any complaint communicated to such 
recipient alleging its noncompliance with these Title IX regulations or 
alleging any actions that would be prohibited by these Title IX 
regulations. The recipient shall notify all its students and employees 
of the name, office address, and telephone number of the employee or 
employees appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by these Title IX regulations.



Sec.  229.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Sec. Sec.  229.300 through 229.310 do not apply to the recipient, 
and that inquiries concerning the application of Title IX and these 
Title IX regulations to such recipient may be referred to the employee 
designated pursuant to Sec.  229.135, or to the designated agency 
official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of September 29, 2000 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment

[[Page 1035]]

representatives of the policy of nondiscrimination described in 
paragraph (a) of this section, and shall require such representatives to 
adhere to such policy.



                           Subpart B_Coverage



Sec.  229.200  Application.

    Except as provided in Sec. Sec.  229.205 through 229.235(a), these 
Title IX regulations apply to every recipient and to each education 
program or activity operated by such recipient that receives Federal 
financial assistance.



Sec.  229.205  Educational institutions and other entities 
controlled by religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application of 
these Title IX regulations would not be consistent with the religious 
tenets of such organization.
    (b) Exemption claims. An educational institution or other entity 
that wishes to claim the exemption set forth in paragraph (a) of this 
section shall do so by submitting in writing to the designated agency 
official a statement by the highest-ranking official of the institution, 
identifying the provisions of these Title IX regulations that conflict 
with a specific tenet of the religious organization.



Sec.  229.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.



Sec.  229.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the 
membership of which has been traditionally limited to members of one sex 
and principally to persons of less than nineteen years of age.



Sec.  229.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Sec. Sec.  229.225 and 229.230, and Sec. Sec.  229.300 through 
229.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Sec. Sec.  229.300 through .310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec.  229.300 
through 229.310 apply to each recipient. A recipient to which Sec. Sec.  
229.300 through 229.310 apply shall not discriminate on the basis of sex 
in admission or recruitment in violation of Sec. Sec.  229.300 through 
229.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec.  229.300 through 229.310 apply only to institutions of 
vocational education, professional education, graduate higher education, 
and public institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Sec. Sec.  229.300 through 229.310 do not apply to any public 
institution of undergraduate higher education that traditionally and 
continually from its establishment has had a policy of admitting 
students of only one sex.

[[Page 1036]]



Sec.  229.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec.  229.300 through 229.310 apply that:
    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex in 
admission or recruitment in violation of Sec. Sec.  229.300 through 
229.310.



Sec.  229.230  Transition plans.

    (a) Submission of plans. An institution to which Sec.  229.225 
applies and that is composed of more than one administratively separate 
unit may submit either a single transition plan applicable to all such 
units, or a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and the 
name, address, and telephone number of the person to whom questions 
concerning the plan may be addressed. The person who submits the plan 
shall be the chief administrator or president of the institution, or 
another individual legally authorized to bind the institution to all 
actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec.  229.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec.  229.300 through 
229.310 unless such treatment is necessitated by an obstacle identified 
in paragraph (b)(3) of this section and a schedule for eliminating that 
obstacle has been provided as required by paragraph (b)(4) of this 
section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec.  229.225 applies shall include in its transition plan, and 
shall implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs that emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



Sec.  229.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity,

[[Page 1037]]

but if such activities are provided for students of one sex, 
opportunities for reasonably comparable activities shall be provided to 
students of the other sex;
    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.

[[Page 1038]]



     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited



Sec.  229.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be subjected to discrimination in admission, by any 
recipient to which Sec. Sec.  229.300 through Sec. Sec.  229.310 apply, 
except as provided in Sec.  229.225 and Sec.  229.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Sec. Sec.  229.300 through 229.310 
apply shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Sec. Sec.  229.300 through 229.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec.  229.235(d), shall treat disabilities related to 
pregnancy, childbirth, termination of pregnancy, or recovery therefrom 
in the same manner and under the same policies as any other temporary 
disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by these Title IX 
regulations.



Sec.  229.305  Preference in admission.

    A recipient to which Sec. Sec.  229.300 through 229.310 apply shall 
not give preference to applicants for admission, on the basis of 
attendance at any educational institution or other school or entity that 
admits as students only or predominantly members of one sex, if the 
giving of such preference has the effect of discriminating on the basis 
of sex in violation of Sec. Sec.  229.300 through 229.310.



Sec.  229.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.  
229.300 through 229.310 apply shall not discriminate on the basis of sex 
in the recruitment and admission of students. A recipient may be 
required to undertake additional recruitment efforts for one sex as 
remedial action pursuant to Sec.  229.110(a), and may choose to 
undertake such efforts as affirmative action pursuant to Sec.  
229.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec.  229.300 through 229.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that admit 
as students only or predominantly members of one sex, if such actions 
have the effect of discriminating on the basis of sex in violation of 
Sec. Sec.  229.300 through 229.310.

[[Page 1039]]



 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec.  229.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that receives Federal financial assistance. Sections 
229.400 through 229.455 do not apply to actions of a recipient in 
connection with admission of its students to an education program or 
activity of a recipient to which Sec. Sec.  229.300 through 229.310 do 
not apply, or an entity, not a recipient, to which Sec. Sec.  229.300 
through 229.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec.  229.400 
through 229.455, in providing any aid, benefit, or service to a student, 
a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation 
in educational consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec.  229.405  Housing.

    (a) Generally. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing,

[[Page 1040]]

except as provided in this section (including housing provided only to 
married students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.
    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such housing 
as is provided to students of one sex, when compared to that provided to 
students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization, or person that provides all or part of such housing to 
students of only one sex.



Sec.  229.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.



Sec.  229.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music, and adult education 
courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than one 
year from September 29, 2000. With respect to physical education classes 
and activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from September 29, 2000.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.
    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.



Sec.  229.420  Access to schools operated by LEAs.

    A recipient that is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such recipient, 
unless such recipient otherwise makes available to such person, pursuant 
to the same policies and criteria of admission,

[[Page 1041]]

courses, services, and facilities comparable to each course, service, 
and facility offered in or through such schools.



Sec.  229.425  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that uses 
testing or other materials for appraising or counseling students shall 
not use different materials for students on the basis of their sex or 
use materials that permit or require different treatment of students on 
such basis unless such different materials cover the same occupations 
and interest areas and the use of such different materials is shown to 
be essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis of sex. Where the use of a counseling test or other 
instrument results in a substantially disproportionate number of members 
of one sex in any particular course of study or classification, the 
recipient shall take such action as is necessary to assure itself that 
such disproportion is not the result of discrimination in the instrument 
or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.



Sec.  229.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.

[[Page 1042]]

    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec.  229.450.



Sec.  229.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates Sec. Sec.  
229.500 through 229.550.



Sec.  229.440  Health and insurance benefits and services.

    Subject to Sec.  229.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, or 
provide such benefit, service, policy, or plan in a manner that would 
violate Sec. Sec.  229.500 through 229.550 if it were provided to 
employees of the recipient. This section shall not prohibit a recipient 
from providing any benefit or service that may be used by a different 
proportion of students of one sex than of the other, including family 
planning services. However, any recipient that provides full coverage 
health service shall provide gynecological care.



Sec.  229.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec.  229.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy and recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability with respect to any medical or hospital benefit, 
service, plan, or policy that such recipient administers, operates, 
offers, or participates in with respect to students admitted to the 
recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification for a leave of absence for as long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status that she held when the leave began.



Sec.  229.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated

[[Page 1043]]

against in any interscholastic, intercollegiate, club, or intramural 
athletics offered by a recipient, and no recipient shall provide any 
such athletics separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
September 29, 2000. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
secondary or postsecondary school level shall comply fully with this 
section as expeditiously as possible but in no event later than three 
years from September 29, 2000.



Sec.  229.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.



Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited



Sec.  229.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.

[[Page 1044]]

    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Sec. Sec.  229.500 
through 229.550, including relationships with employment and referral 
agencies, with labor unions, and with organizations providing or 
administering fringe benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Sec. Sec.  229.500 through 
229.550 apply to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec.  229.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec.  229.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have so discriminated in the past, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Sec. Sec.  229.500 through 229.550.



Sec.  229.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working conditions.



Sec.  229.520  Job classification and structure.

    A recipient shall not:

[[Page 1045]]

    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements that classify persons on the basis of 
sex, unless sex is a bona fide occupational qualification for the 
positions in question as set forth in Sec.  229.550.



Sec.  229.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service of 
employment not subject to the provision of Sec.  229.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.



Sec.  229.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec.  229235(d), 
a recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy, recovery therefrom, and any temporary 
disability resulting therefrom as any other temporary disability for all 
job-related purposes, including commencement, duration, and extensions 
of leave, payment of disability income, accrual of seniority and any 
other benefit or service, and reinstatement, and under any fringe 
benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec.  229.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec.  229.500 through 229.550 is not obviated or alleviated by the 
existence of any State or local law or other requirement that imposes 
prohibitions or limits upon employment of members of one sex that are 
not imposed upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation,

[[Page 1046]]

service, or benefit to members of the other sex.



Sec.  229.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.



Sec.  229.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is made equally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by these Title IX 
regulations.



Sec.  229.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec.  
229.500 through 229.550 provided it is shown that sex is a bona fide 
occupational qualification for that action, such that consideration of 
sex with regard to such action is essential to successful operation of 
the employment function concerned. A recipient shall not take action 
pursuant to this section that is based upon alleged comparative 
employment characteristics or stereotyped characterizations of one or 
the other sex, or upon preference based on sex of the recipient, 
employees, students, or other persons, but nothing contained in this 
section shall prevent a recipient from considering an employee's sex in 
relation to employment in a locker room or toilet facility used only by 
members of one sex.



                          Subpart F_Procedures



Sec.  229.600  Notice of covered programs.

    Within 60 days of September 29, 2000, each Federal agency that 
awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX regulations. 
Each such Federal agency shall periodically republish the notice of 
covered programs to reflect changes in covered programs. Copies of this 
notice also shall be made available upon request to the Federal agency's 
office that enforces Title IX.



Sec.  229.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 22 CFR part 209.

[65 FR 52879, Aug. 30, 2000]



PART 230_ISRAEL LOAN GUARANTEES ISSUED UNDER THE EMERGENCY WARTIME 
SUPPLEMENTAL APPROPRIATIONS ACT OF 2003, PUB. L. 108	11_STANDARD TERMS 
AND CONDITIONS--Table of Contents



Sec.
230.01 Purpose.
230.02 Definitions.
230.03 The Guarantee.
230.04 Guarantee eligibility.
230.05 Non-impairment of the Guarantee.
230.06 Transferability of Guarantee; Note Register.
230.07 Fiscal Agent obligations.
230.08 Event of Default; Application for Compensation; payment.
230.09 No acceleration of Eligible Notes.
230.10 Payment to USAID of excess amounts received by a Noteholder.
230.11 Subrogation of USAID.
230.12 Prosecution of claims.
230.13 Change in agreements.
230.14 Arbitration.
230.15 Notice.
230.16 Governing law.

Appendix A to Part 230--Application for Compensation

    Authority: Emergency Wartime Supplemental Appropriations Act, 2003, 
Pub. L. 108-11, as amended by Section 534(p) of the Foreign Operations, 
Export Financing and Related Programs Appropriations Act, 2005; Division 
D of the Consolidated Appropriations Act, 2005, Pub. L. 108-447; Section 
13(b) of the Department of State Authorities Act, 2006, Pub. L. 109-472; 
and Section 5(b) of the United States-Israel Enhanced Security 
Cooperation Act of 2012, Pub. L. 112-150.

    Source: 78 FR 66842, Nov. 7, 2013, unless otherwise noted.

[[Page 1047]]



Sec.  230.01  Purpose.

    The purpose of this regulation is to prescribe the procedures and 
standard terms and conditions applicable to loan guarantees issued for 
the benefit of the Government of Israel on behalf of the State of Israel 
(``Borrower''), pursuant to the Emergency Wartime Supplemental 
Appropriations Act of 2003, Public Law 108-11, as amended by Section 
534(p) of the Foreign Operations, Export Financing and Related Programs 
Appropriations Act, 2005; Division D of the Consolidated Appropriations 
Act, 2005, Public Law 108-447; Section 13(b) of the Department of State 
Authorities Act, 2006, Public Law 109-472; and Section 5(b) of the 
United States-Israel Enhanced Security Cooperation Act of 2012, Public 
Law 112-150. The loan guarantees will apply to sums borrowed from time 
to time between March 1, 2003 and September 30, 2016, not exceeding an 
aggregate total of nine billion United States Dollars ($9,000,000,000) 
in principal amount. The loan guarantees shall insure the Borrower's 
repayment of 100% of principal and interest due under such loans. The 
full faith and credit of the United States of America is pledged for the 
full payment and performance of such guarantee obligations. The loan 
guarantees will be issued pursuant to an Amended and Restated Loan 
Guarantee Commitment Agreement between the Borrower and the United 
States Government dated October 24, 2012.



Sec.  230.02  Definitions.

    Wherever used in these standard terms and conditions:
    Applicant means a Noteholder who files an Application for 
Compensation with USAID, either directly or through the Fiscal Agent 
acting on behalf of a Noteholder.
    Application for Compensation means an executed application in the 
form of Appendix A to this part which a Noteholder, or the Fiscal Agent 
on behalf of a Noteholder, files with USAID pursuant to Sec.  230.08 of 
this part.
    Borrower means the Government of Israel, on behalf of the State of 
Israel.
    Business Day means any day other than a day on which banks in New 
York, NY are closed or authorized to be closed or a day which is 
observed as a federal holiday in Washington, DC, by the United States 
Government.
    Date of Application means the date on which an Application for 
Compensation is actually received by USAID pursuant to Sec.  230.15 of 
this part.
    Defaulted Payment means, as of any date and in respect of any 
Eligible Note, any Interest Amount and/or Principal Amount not paid when 
due.
    Eligible Note(s) means [a] Note[s] meeting the eligibility criteria 
set out in Sec.  230.04 hereof.
    Fiscal Agency Agreement means the agreement among USAID, the 
Borrower and the Fiscal Agent pursuant to which the Fiscal Agent agrees 
to provide fiscal agency services in respect of the Note[s], a copy of 
which Fiscal Agency Agreement shall be made available to Noteholders 
upon request to the Fiscal Agent.
    Fiscal Agent means the bank or trust company or its duly appointed 
successor under the Fiscal Agency Agreement which has been appointed by 
the Borrower with the consent of USAID to perform certain fiscal agency 
services for specified Eligible Note[s] pursuant to the terms of the 
Fiscal Agency Agreement.
    Further Guaranteed Payments means the amount of any loss suffered by 
a Noteholder by reason of the Borrower's failure to comply on a timely 
basis with any obligation it may have under an Eligible Note to 
indemnify and hold harmless a Noteholder from taxes or governmental 
charges or any expense arising out of taxes or any other governmental 
charges relating to the Eligible Note in the country of the Borrower.
    Guarantee means the guarantee of USAID pursuant to this part 230 and 
the Emergency Wartime Supplemental Appropriations Act of 2003, Public 
Law 108-11, as amended by Section 534(p) of the Foreign Operations, 
Export Financing and Related Programs Appropriations Act, 2005; Division 
D of the Consolidated Appropriations Act, 2005, Public Law 108-447; 
Section 13(b) of the Department of State Authorities Act, 2006, Public 
Law 109-472; and Section 5(b) of the United States-Israel Enhanced 
Security Cooperation Act of 2012, Public Law 112-150.

[[Page 1048]]

    Guarantee Payment Date means a Business Day not more than three (3) 
Business Days after the related Date of Application.
    Interest Amount means for any Eligible Note the amount of interest 
accrued on the Principal Amount of such Eligible Note at the applicable 
Interest Rate.
    Interest Rate means the interest rate borne by an Eligible Note.
    Loss of Investment respecting any Eligible Note means an amount in 
Dollars equal to the total of the:
    (1) Defaulted Payment unpaid as of the Date of Application,
    (2) Further Guaranteed Payments unpaid as of the Date of 
Application, and
    (3) Interest accrued and unpaid at the Interest Rate(s) specified in 
the Eligible Note(s) on the Defaulted Payment and Further Guaranteed 
Payments, in each case from the date of default with respect to such 
payment to and including the date on which full payment thereof is made 
to the Noteholder.
    Noteholder means the owner of an Eligible Note who is registered as 
such on the Note Register of Eligible Notes required to be maintained by 
the Fiscal Agent.
    Note[s] means any debt securities issued by the Borrower.
    Person means any legal person, including any individual, 
corporation, partnership, joint venture, association, joint stock 
company, trust, unincorporated organization, or government or any agency 
or political subdivision thereof.
    Principal Amount means the principal amount of any Eligible Notes 
issued by the Borrower. For purposes of determining the principal amount 
of any Eligible Notes issued by the Borrower, the principal amount of 
each Eligible Note shall be:
    (1) In the case of any Eligible Note issued having a notional 
amount, but no principal balance, the original issue price (excluding 
any transaction costs) thereof; and
    (2) In the case of any Eligible Note issued with a principal 
balance, the stated principal amount thereof.
    USAID means the United States Agency for International Development 
or its successor.



Sec.  230.03  The Guarantee.

    Subject to these terms and conditions, the United States of America, 
acting through USAID, guarantees to Noteholders the Borrower's repayment 
of 100 percent of principal and interest due on Eligible Notes. Under 
this Guarantee, USAID agrees to pay to any Noteholder compensation in 
Dollars equal to such Noteholder's Loss of Investment under its Eligible 
Note; provided, however, that no such payment shall be made to any 
Noteholder for any such loss arising out of fraud or misrepresentation 
for which such Noteholder is responsible or of which it had knowledge at 
the time it became such Noteholder. This Guarantee shall apply to each 
Eligible Note registered on the Note Register required to be maintained 
by the Fiscal Agent.



Sec.  230.04  Guarantee eligibility.

    (a) Eligible Notes only are guaranteed hereunder. Notes in order to 
achieve Eligible Note status:
    (1) Must be signed on behalf of the Borrower, manually or in 
facsimile, by a duly authorized representative of the Borrower;
    (2) Must contain a certificate of authentication manually executed 
by a Fiscal Agent whose appointment by the Borrower is consented to by 
USAID in the Fiscal Agency Agreement; and
    (3) Shall be approved and authenticated by USAID by either:
    (i) The affixing by USAID on the Notes of a guarantee legend 
incorporating these Standard Terms and Conditions signed on behalf of 
USAID by either a manual signature or a facsimile signature of an 
authorized representative of USAID or
    (ii) The delivery by USAID to the Fiscal Agent of a guarantee 
certificate incorporating these Standard Terms and Conditions signed on 
behalf of USAID by either a manual signature or a facsimile signature of 
an authorized representative of USAID.
    (b) The authorized USAID representatives for purposes of this 
regulation whose signature(s) shall be binding on USAID shall include 
the USAID Chief and Deputy Chief Financial Officer, Assistant 
Administrator and Deputy, Bureau for Economic Growth, Agriculture

[[Page 1049]]

and Trade, Director and Deputy Director, Office of Development Credit, 
and such other individual(s) designated in a certificate executed by an 
authorized USAID Representative and delivered to the Fiscal Agent. The 
certificate of authentication of the Fiscal Agent issued pursuant to the 
Fiscal Agency Agreement shall, when manually executed by the Fiscal 
Agent, be conclusive evidence binding on USAID that an Eligible Note has 
been duly executed on behalf of the Borrower and delivered.



Sec.  230.05  Non-impairment of the Guarantee.

    The full faith and credit of the United States of America is pledged 
to the performance of this Guarantee. The Guarantee shall be 
unconditional, and shall not be affected or impaired by:
    (a) Any defect in the authorization, execution, delivery or 
enforceability of any agreement or other document executed by a 
Noteholder, USAID, the Fiscal Agent or the Borrower in connection with 
the transactions contemplated by this Guarantee or
    (b) The suspension or termination of the program pursuant to which 
USAID is authorized to guarantee the Eligible Notes. This non-impairment 
of the guarantee provision shall not, however, be operative with respect 
to any loss arising out of fraud or misrepresentation for which the 
claiming Noteholder is responsible or of which it had knowledge at the 
time it became a Noteholder.



Sec.  230.06  Transferability of Guarantee; Note Register.

    A Noteholder may assign, transfer or pledge an Eligible Note to any 
Person. Any such assignment, transfer or pledge shall be effective on 
the date that the name of the new Noteholder is entered on the Note 
Register required to be maintained by the Fiscal Agent pursuant to the 
Fiscal Agency Agreement. USAID shall be entitled to treat the Persons in 
whose names the Eligible Notes are registered as the owners thereof for 
all purposes of this Guarantee and USAID shall not be affected by notice 
to the contrary.



Sec.  230.07  Fiscal Agent obligations.

    Failure of the Fiscal Agent to perform any of its obligations 
pursuant to the Fiscal Agency Agreement shall not impair any 
Noteholder's rights under this Guarantee, but may be the subject of 
action for damages against the Fiscal Agent by USAID as a result of such 
failure or neglect. A Noteholder may appoint the Fiscal Agent to make 
demand for payment on its behalf under this Guarantee.



Sec.  230.08  Event of Default; Application for Compensation; payment.

    At any time after an Event of Default, as this term is defined in an 
Eligible Note, any Noteholder hereunder, or the Fiscal Agent on behalf 
of a Noteholder hereunder, may file with USAID an Application for 
Compensation in the form provided in Appendix A to this part. USAID 
shall pay or cause to be paid to any such Applicant any compensation 
specified in such Application for Compensation that is due to the 
Applicant pursuant to the Guarantee as a Loss of Investment not later 
than three (3) Business Days after the Date of Application. In the event 
that USAID receives any other notice of an Event of Default, USAID may 
pay any compensation that is due to any Noteholder pursuant to a 
Guarantee, whether or not such Noteholder has filed with USAID an 
Application for Compensation in respect of such amount.



Sec.  230.09  No acceleration of Eligible Notes.

    Eligible Notes shall not be subject to acceleration, in whole or in 
part, by USAID, the Noteholder or any other party. USAID shall not have 
the right to pay any amounts in respect of the Eligible Notes other than 
in accordance with the original payment terms of such Eligible Notes.



Sec.  230.10  Payment to USAID of excess amounts received by a Noteholder.

    If a Noteholder shall, as a result of USAID paying compensation 
under this Guarantee, receive an excess payment, it shall refund the 
excess to USAID.

[[Page 1050]]



Sec.  230.11  Subrogation of USAID.

    In the event of payment by USAID to a Noteholder under this 
Guarantee, USAID shall be subrogated to the extent of such payment to 
all of the rights of such Noteholder against the Borrower under the 
related Note.



Sec.  230.12  Prosecution of claims.

    After payment by USAID to an Applicant hereunder, USAID shall have 
exclusive power to prosecute all claims related to rights to receive 
payments under the Eligible Notes to which it is thereby subrogated. If 
a Noteholder continues to have an interest in the outstanding Eligible 
Notes, such a Noteholder and USAID shall consult with each other with 
respect to their respective interests in such Eligible Notes and the 
manner of and responsibility for prosecuting claims.



Sec.  230.13  Change in agreements.

    No Noteholder will consent to any change or waiver of any provision 
of any document contemplated by this Guarantee without the prior written 
consent of USAID.



Sec.  230.14  Arbitration.

    Any controversy or claim between USAID and any noteholder arising 
out of this Guarantee shall be settled by arbitration to be held in 
Washington, DC in accordance with the then prevailing rules of the 
American Arbitration Association, and judgment on the award rendered by 
the arbitrators may be entered in any court of competent jurisdiction.



Sec.  230.15  Notice.

    Any communication to USAID pursuant to this Guarantee shall be in 
writing in the English language, shall refer to the Israel Loan 
Guarantee Number inscribed on the Eligible Note and shall be complete on 
the day it shall be actually received by USAID at the Office of 
Development Credit, Bureau for Economic Growth, Agriculture and Trade, 
United States Agency for International Development, Washington, DC 
20523-0030. Other addresses may be substituted for the above upon the 
giving of notice of such substitution to each Noteholder by first class 
mail at the address set forth in the Note Register.



Sec.  230.16  Governing law.

    This Guarantee shall be governed by and construed in accordance with 
the laws of the United States of America governing contracts and 
commercial transactions of the United States Government.



        Sec. Appendix A to Part 230--Application for Compensation

 United States Agency for International Development Washington, DC 20523

Ref: Guarantee dated as of ____, 20 __:

    Gentlemen: You are hereby advised that payment of $_ (consisting of 
$_ of principal, $_ of interest and $_ in Further Guaranteed Payments, 
as defined in Sec.  230.02(f) of the Standard Terms and Conditions of 
the above-mentioned Guarantee) was due on ___, 20__, on $_ principal 
amount of Notes held by the undersigned of the Government of Israel, on 
behalf of the State of Israel (the ``Borrower''). Of such amount $_ was 
not received on such date and has not been received by the undersigned 
at the date hereof. In accordance with the terms and provisions of the 
above-mentioned Guarantee, the undersigned hereby applies, under Sec.  
230.08 of said Guarantee, for payment of $_, representing $_, the 
Principal Amount of the presently outstanding Note(s) of the Borrower 
held by the undersigned that was due and payable on ___ and that remains 
unpaid, and $_, the Interest Amount on such Note(s) that was due and 
payable by the Borrower on ____ and that remains unpaid, and $_ in 
Further Guaranteed Payments,\1\ plus accrued and unpaid interest thereon 
from the date of default with respect to such payments to and including 
the date payment in full is made by you pursuant to said Guarantee, at 
the rate of _% per annum, being the rate for such interest accrual 
specified in such Note. Such payment is to be made at [state payment 
instructions of Noteholder].

________________________________________________________________________

\1\ In the event the Application for Compensation relates to Further 
Guaranteed Payments, such Application must also contain a statement of 
the nature and circumstances of the related loss.
________________________________________________________________________

    All capitalized terms herein that are not otherwise defined shall 
have the meanings assigned to such terms in the Standard Terms and 
Conditions of the above-mentioned Guarantee.

[Name of Applicant]

 By:____________________________________________________________________


[[Page 1051]]

________________________________________________________________________
Name:

Title:

Dated:



PART 231_ARAB REPUBLIC OF EGYPT LOAN GUARANTEES ISSUED UNDER THE EMERGENCY 
WARTIME SUPPLEMENTAL APPROPRIATIONS ACT OF 2003, PUBLIC LAW 108	11_
STANDARD TERMS AND CONDITIONS--Table of Contents



Sec.
231.01 Purpose.
231.02 Definitions.
231.03 The Guarantee.
231.04 Guarantee eligibility.
231.05 Non-impairment of the Guarantee.
231.06 Transferability of Guarantee; Note Register.
231.07 Fiscal Agent obligations.
231.08 Event of Default; Application for Compensation; payment.
231.09 No acceleration of Eligible Notes.
231.10 Payment to USAID of excess amounts received by a Noteholder.
231.11 Subrogation of USAID.
231.12 Prosecution of claims.
231.13 Change in agreements.
231.14 Arbitration.
231.15 Notice.
231.16 Governing law.

Appendix A to Part 231--Application for Compensation

    Authority: Emergency Wartime Supplemental Appropriations Act, 2003, 
Pub. L. 108-11, chapter 5, title I, ``Economic Support Fund'', para. 
(2).

    Source: 70 FR 56102, Sept. 23, 2005, unless otherwise noted.



Sec.  231.01  Purpose.

    The purpose of the regulations in this part is to prescribe the 
procedures and standard terms and conditions applicable to loan 
guarantees issued for the benefit of the Arab Republic of Egypt 
(``Borrower''), pursuant to the Emergency Wartime Supplemental 
Appropriations Act of 2003, Public Law 108-11. The loan guarantees will 
apply to sums borrowed from time to time between September 23, 2005 and 
September 30, 2005, not exceeding an aggregate total of two billion 
United States Dollars ($2,000,000,000) in principal amount. The loan 
guarantees shall insure the Borrower's repayment of 100% of principal 
and interest due under such loans. The full faith and credit of the 
United States of America is pledged for the full payment and performance 
of such guarantee obligations. The loan guarantees will be issued 
pursuant to a Loan Guarantee Commitment Agreement between the Borrower 
and the United States dated September 12, 2005.



Sec.  231.02  Definitions.

    Wherever used in the standard terms and conditions set out in this 
part:
    (a) USAID means the United States Agency for International 
Development or its successor.
    (b) Eligible Note(s) means [a] Note[s] meeting the eligibility 
criteria set out in Sec.  231.04.
    (c) Noteholder means the owner of an Eligible Note who is registered 
as such on the Note Register of Eligible Notes required to be maintained 
by the Fiscal Agent.
    (d) Borrower means the Arab Republic of Egypt.
    (e) Defaulted payment means, as of any date and in respect of any 
Eligible Note, any Interest Amount and/or Principal Amount not paid when 
due.
    (f) Further guaranteed payments means the amount of any loss 
suffered by a Noteholder by reason of the Borrower's failure to comply 
on a timely basis with any obligation it may have under an Eligible Note 
to indemnify and hold harmless a Noteholder from taxes or governmental 
charges or any expense arising out of taxes or any other governmental 
charges relating to the Eligible Note in the country of the Borrower.
    (g) Interest amount means for any Eligible Note the amount of 
interest accrued on the Principal Amount of such Eligible Note at the 
applicable Interest Rate.
    (h) Principal amount means the principal amount of any Eligible 
Notes issued by the Borrower. For purposes of determining the principal 
amount of any Eligible Notes issued by the Borrower, the principal 
amount of each Eligible Note shall be the stated principal amount 
thereof.
    (i) Interest rate means the interest rate borne by an Eligible Note.
    (j) Loss of investment respecting any Eligible Note means an amount 
in Dollars equal to the total of the:

[[Page 1052]]

    (1) Defaulted Payment unpaid as of the Date of Application,
    (2) Further Guaranteed Payments unpaid as of the Date of 
Application, and
    (3) Interest accrued and unpaid at the Interest Rate(s) specified in 
the Eligible Note(s) on the Defaulted Payment and Further Guaranteed 
Payments, in each case from the date of default with respect to such 
payment to and including the date on which full payment thereof is made 
to the Noteholder.
    (k) Application for Compensation means an executed application in 
the form of Appendix A to this part which a Noteholder, or the Fiscal 
Agent on behalf of a Noteholder, files with USAID pursuant to Sec.  
231.08.
    (l) Applicant means a Noteholder who files an Application for 
Compensation with USAID, either directly or through the Fiscal Agent 
acting on behalf of a Noteholder.
    (m) Date of application means the date on which an Application for 
Compensation is actually received by USAID pursuant to Sec.  231.15.
    (n) Business day means any day other than a day on which banks in 
New York, NY are closed or authorized to be closed or a day which is 
observed as a federal holiday in Washington, DC, by the United States 
Government.
    (o) Guarantee means the guarantee of USAID pursuant to this part 231 
and the Emergency Wartime Supplemental Appropriations Act of 2003, 
Public Law 108-11.
    (p) Guarantee payment date means a Business Day not more than three 
(3) Business Days after the related Date of Application.
    (q) Person means any legal person, including any individual, 
corporation, partnership, joint venture, association, joint stock 
company, trust, unincorporated organization, or government or any agency 
or political subdivision thereof.
    (r) Note[s] means any debt securities issued by the Borrower.
    (s) Fiscal Agency Agreement means the agreement among USAID, the 
Borrower and the Fiscal Agent pursuant to which the Fiscal Agent agrees 
to provide fiscal agency services in respect of the Note[s], a copy of 
which Fiscal Agency Agreement shall be made available to Noteholders 
upon request to the Fiscal Agent.
    (t) Fiscal Agent means the bank or trust company or its duly 
appointed successor under the Fiscal Agency Agreement which has been 
appointed by the Borrower with the consent of USAID to perform certain 
fiscal agency services for specified Eligible Note[s] pursuant to the 
terms of the Fiscal Agency Agreement.



Sec.  231.03  The Guarantee.

    Subject to the terms and conditions set out in this part, the United 
States of America, acting through USAID, guarantees to Noteholders the 
Borrower's repayment of 100 percent of principal and interest due on 
Eligible Notes. Under this Guarantee, USAID agrees to pay to any 
Noteholder compensation in Dollars equal to such Noteholder's Loss of 
Investment under its Eligible Note; provided, however, that no such 
payment shall be made to any Noteholder for any such loss arising out of 
fraud or misrepresentation for which such Noteholder is responsible or 
of which it had knowledge at the time it became such Noteholder. This 
Guarantee shall apply to each Eligible Note registered on the Note 
Register required to be maintained by the Fiscal Agent.



Sec.  231.04  Guarantee eligibility.

    (a) Eligible Notes only are guaranteed hereunder. Notes in order to 
achieve Eligible Note status:
    (1) Must be signed on behalf of the Borrower, manually or in 
facsimile, by a duly authorized representative of the Borrower;
    (2) Must contain a certificate of authentication manually executed 
by a Fiscal Agent whose appointment by the Borrower is consented to by 
USAID in the Fiscal Agency Agreement; and
    (3) Shall be approved and authenticated by USAID by either:
    (i) The affixing by USAID on the Notes of a guarantee legend 
incorporating these Standard Terms and Conditions signed on behalf of 
USAID by either a manual signature or a facsimile signature of an 
authorized representative of USAID or
    (ii) The delivery by USAID to the Fiscal Agent of a guarantee 
certificate

[[Page 1053]]

incorporating these Standard Terms and Conditions signed on behalf of 
USAID by either a manual signature or a facsimile signature of an 
authorized representative of USAID.
    (b) The authorized USAID representatives for purposes of the 
regulations in this part whose signature(s) shall be binding on USAID 
shall include the USAID Chief and Deputy Chief Financial Officer, 
Assistant Administrator and Deputy, Bureau for Economic Growth, 
Agriculture and Trade, Director and Deputy Director, Office of 
Development Credit, and such other individual(s) designated in a 
certificate executed by an authorized USAID Representative and delivered 
to the Fiscal Agent. The certificate of authentication of the Fiscal 
Agent issued pursuant to the Fiscal Agency Agreement shall, when 
manually executed by the Fiscal Agent, be conclusive evidence binding on 
USAID that an Eligible Note has been duly executed on behalf of the 
Borrower and delivered.



Sec.  231.05  Non-impairment of the Guarantee.

    The full faith and credit of the United States of America is pledged 
to the performance of this Guarantee. The Guarantee shall be 
unconditional, and shall not be affected or impaired by:
    (a) Any defect in the authorization, execution, delivery or 
enforceability of any agreement or other document executed by a 
Noteholder, USAID, the Fiscal Agent or the Borrower in connection with 
the transactions contemplated by this Guarantee or
    (b) The suspension or termination of the program pursuant to which 
USAID is authorized to guarantee the Eligible Notes. This non-impairment 
of the guarantee provision shall not, however, be operative with respect 
to any loss arising out of fraud or misrepresentation for which the 
claiming Noteholder is responsible or of which it had knowledge at the 
time it became a Noteholder.



Sec.  231.06  Transferability of Guarantee; Note Register.

    A Noteholder may assign, transfer or pledge an Eligible Note to any 
Person. Any such assignment, transfer or pledge shall be effective on 
the date that the name of the new Noteholder is entered on the Note 
Register required to be maintained by the Fiscal Agent pursuant to the 
Fiscal Agency Agreement. USAID shall be entitled to treat the Persons in 
whose names the Eligible Notes are registered as the owners thereof for 
all purposes of this Guarantee and USAID shall not be affected by notice 
to the contrary.



Sec.  231.07  Fiscal Agent obligations.

    Failure of the Fiscal Agent to perform any of its obligations 
pursuant to the Fiscal Agency Agreement shall not impair any 
Noteholder's rights under this Guarantee, but may be the subject of 
action for damages against the Fiscal Agent by USAID as a result of such 
failure or neglect. A Noteholder may appoint the Fiscal Agent to make 
demand for payment on its behalf under this Guarantee.



Sec.  231.08  Event of Default; Application for Compensation; payment.

    At any time after an Event of Default, as this term is defined in an 
Eligible Note, any Noteholder hereunder, or the Fiscal Agent on behalf 
of a Noteholder hereunder, may file with USAID an Application for 
Compensation in the form provided in Appendix A to this part. USAID 
shall pay or cause to be paid to any such Applicant any compensation 
specified in such Application for Compensation that is due to the 
Applicant pursuant to the Guarantee as a Loss of Investment not later 
than three (3) Business Days after the Date of Application. In the event 
that USAID receives any other notice of an Event of Default, USAID may 
pay any compensation that is due to any Noteholder pursuant to a 
Guarantee, whether or not such Noteholder has filed with USAID an 
Application for Compensation in respect of such amount.



Sec.  231.09  No acceleration of Eligible Notes.

    Eligible Notes shall not be subject to acceleration, in whole or in 
part, by USAID, the Noteholder or any other party. USAID shall not have 
the right to pay any amounts in respect of the

[[Page 1054]]

Eligible Notes other than in accordance with the original payment terms 
of such Eligible Notes.



Sec.  231.10  Payment to USAID of excess amounts received by a Noteholder.

    If a Noteholder shall, as a result of USAID paying compensation 
under this Guarantee, receive an excess payment, it shall refund the 
excess to USAID.



Sec.  231.11  Subrogation of USAID.

    In the event of payment by USAID to a Noteholder under this 
Guarantee, USAID shall be subrogated to the extent of such payment to 
all of the rights of such Noteholder against the Borrower under the 
related Note.



Sec.  231.12  Prosecution of claims.

    After payment by USAID to an Applicant hereunder, USAID shall have 
exclusive power to prosecute all claims related to rights to receive 
payments under the Eligible Notes to which it is thereby subrogated. If 
a Noteholder continues to have an interest in the outstanding Eligible 
Notes, such a Noteholder and USAID shall consult with each other with 
respect to their respective interests in such Eligible Notes and the 
manner of and responsibility for prosecuting claims.



Sec.  231.13  Change in agreements.

    No Noteholder will consent to any change or waiver of any provision 
of any document contemplated by this Guarantee without the prior written 
consent of USAID.



Sec.  231.14  Arbitration.

    Any controversy or claim between USAID and any noteholder arising 
out of this Guarantee shall be settled by arbitration to be held in 
Washington, DC in accordance with the then prevailing rules of the 
American Arbitration Association, and judgment on the award rendered by 
the arbitrators may be entered in any court of competent jurisdiction.



Sec.  231.15  Notice.

    Any communication to USAID pursuant to this Guarantee shall be in 
writing in the English language, shall refer to the Arab Republic of 
Egypt Loan Guarantee Number inscribed on the Eligible Note and shall be 
complete on the day it shall be actually received by USAID at the Office 
of Development Credit, Bureau for Economic Growth, Agriculture and 
Trade, United States Agency for International Development, Washington, 
DC 20523-0030. Other addresses may be substituted for the above upon the 
giving of notice of such substitution to each Noteholder by first class 
mail at the address set forth in the Note Register.



Sec.  231.16  Governing law.

    This Guarantee shall be governed by and construed in accordance with 
the laws of the United States of America governing contracts and 
commercial transactions of the United States Government.



        Sec. Appendix A to Part 231--Application for Compensation

United States Agency for International Development
Washington, DC 20523
Ref: Guarantee dated as of ___, 20__:
Gentlemen:
    You are hereby advised that payment of $____ (consisting of $____ of 
principal, $____ of interest and $____ in Further Guaranteed Payments, 
as defined in Sec.  231.02(f) of the Standard Terms and Conditions of 
the above-mentioned Guarantee) was due on ______, 20__, on $____ 
principal amount of Notes issued by the Arab Republic of Egypt (the 
``Borrower'') held by the undersigned. Of such amount $____ was not 
received on such date and has not been received by the undersigned at 
the date hereof. In accordance with the terms and provisions of the 
above-mentioned Guarantee, the undersigned hereby applies, under Sec.  
231.08 of said Guarantee, for payment of $____, representing $____, the 
Principal Amount of the presently outstanding Note(s) of the Borrower 
held by the undersigned that was due and payable on ____ and that 
remains unpaid, and $____, the Interest Amount on such Note(s) that was 
due and payable by the Borrower on ____ and that remains unpaid, and 
$____ in Further Guaranteed Payments, \1\ plus accrued and unpaid 
interest thereon from the date of default with respect to such payments 
to and including the date payment in full is made by you pursuant to 
said Guarantee, at the rate of __% per

[[Page 1055]]

annum, being the rate for such interest accrual specified in such Note. 
Such payment is to be made at [state payment instructions of 
Noteholder].
---------------------------------------------------------------------------

    \1\ In the event the Application for Compensation relates to Further 
Guaranteed Payments, such Application must also contain a statement of 
the nature and circumstances of the related loss.
---------------------------------------------------------------------------

    All capitalized terms herein that are not otherwise defined shall 
have the meanings assigned to such terms in the Standard Terms and 
Conditions of the above-mentioned Guarantee.

[Name of Applicant]

 By:____________________________________________________________________

Name:
Title:
Dated:



 PART 232_REPUBLIC OF TUNISIA LOAN GUARANTEES ISSUED UNDER 
 THE DEPARTMENT OF STATE, FOREIGN OPERATIONS, AND RELATED 
 PROGRAMS APPROPRIATIONS ACT, 2012, DIV. I, PUB. L. 112	74_STANDARD TERMS 
 AND CONDITIONS--Table of Contents



Sec.
232.01 Purpose.
232.02 Definitions.
232.03 The Guarantee.
232.04 Guarantee eligibility.
232.05 Non-impairment of the Guarantee.
232.06 Transferability of Guarantee; Note Register.
232.07 Fiscal agent obligations.
232.08 Event of Default; Application for Compensation; payment.
232.09 No acceleration of Eligible Notes.
232.10 Payment to USAID of excess amounts received by a Noteholder.
232.11 Subrogation of USAID.
232.12 Prosecution of claims.
232.13 Change in agreements.
232.14 Arbitration.
232.15 Notice.
232.16 Governing law.

Appendix A to Part 232--Application for Compensation

    Authority: Title III of the Department of State, Foreign Operations, 
and Related Programs Appropriations Act, 2012, Division I, Pub. L. 112-
74.

    Source: 77 FR 40790, July 11, 2012, unless otherwise noted.



Sec.  232.01  Purpose.

    The purpose of the regulations in this part is to prescribe the 
procedures and standard terms and conditions applicable to loan 
guarantees issued for the benefit of the Borrower, pursuant to Title Ill 
of the Department of State, Foreign Operations, and Related Programs 
Appropriations Act, 2012, Division I, Public Law 112-74. The loan 
guarantees will be issued as provided herein pursuant to the Loan 
Guarantee Agreement, dated June 8, 2012, between the Republic of Tunisia 
and the United States of America (the ``Loan Guarantee Agreement'') and 
will apply to sums borrowed during a period beginning on the date that 
the Loan Guarantee Agreement enters into force and ending one year after 
such date, in such amount and on such terms as may be determined by 
USAID, such determination to be conclusive. The loan guarantees shall 
insure the Borrower's repayment of 100% of principal and interest due 
under such loans. The full faith and credit of the United States of 
America is pledged for the full payment and performance of such 
guarantee obligations.



Sec.  232.02  Definitions.

    Wherever used in the standard terms and conditions set out in this 
part:
    Applicant means a Noteholder who files an Application for 
Compensation with USAID, either directly or through the Fiscal Agent 
acting on behalf of a Noteholder.
    Application for Compensation means an executed application in the 
form of Appendix A to this part which a Noteholder, or the Fiscal Agent 
on behalf of a Noteholder, files with USAID pursuant to Sec.  232.08.
    Borrower means Banque Centrale de Tunisie, acting on behalf of the 
Republic of Tunisia.
    Business Day means any day other than a day on which banks in New 
York, NY are closed or authorized to be closed or a day which is 
observed as a federal holiday in Washington, DC, by the United States 
Government.
    Date of Application means the date on which an Application for 
Compensation is actually received by USAID pursuant to Sec.  232.15.
    Defaulted Payment means, as of any date and in respect of any 
Eligible Note, any Interest Amount and/or Principal Amount not paid when 
due.
    Eligible Note(s) means [a] Note[s] meeting the eligibility criteria 
set out in Sec.  232.04.

[[Page 1056]]

    Fiscal Agency Agreement means the agreement among USAID, the 
Borrower and the Fiscal Agent pursuant to which the Fiscal Agent agrees 
to provide fiscal agency services in respect of the Note[s], a copy of 
which Fiscal Agency Agreement shall be made available to Noteholders 
upon request to the Fiscal Agent.
    Fiscal Agent means the bank or trust company or its duly appointed 
successor under the Fiscal Agency Agreement which has been appointed by 
the Borrower with the consent of USAID to perform certain fiscal agency 
services for specified Eligible Note[s] pursuant to the terms of the 
Fiscal Agency Agreement.
    Further Guaranteed Payments means the amount of any loss suffered by 
a Noteholder by reason of the Borrower's failure to comply on a timely 
basis with any obligation it may have under an Eligible Note to 
indemnify and hold harmless a Noteholder from taxes or governmental 
charges or any expense arising out of taxes or any other governmental 
charges relating to the Eligible Note in the country of the Borrower.
    Guarantee means the guarantee of USAID pursuant to this part 232 and 
the State, Foreign Operations, and Related Programs Appropriations Act 
of 2012 (Pub. L. 112-74).
    Guarantee Payment Date means a Business Day not more than three (3) 
Business Days after the related Date of Application.
    Interest Amount means for any Eligible Note the amount of interest 
accrued on the Principal Amount of such Eligible Note at the applicable 
Interest Rate.
    Interest Rate means the interest rate borne by an Eligible Note.
    Loss of Investment means, in respect of any Eligible Note, an amount 
in Dollars equal to the total of the:
    (1) Defaulted Payment unpaid as of the Date of Application,
    (2) Further Guaranteed Payments unpaid as of the Date of 
Application, and
    (3) Interest accrued and unpaid at the Interest Rate(s) specified in 
the Eligible Note(s) on the Defaulted Payment and Further Guaranteed 
Payments, in each case from the date of default with respect to such 
payment to and including the date on which full payment thereof is made 
to the Noteholder.
    Notes[s] means any debt securities issued by the Borrower.
    Noteholder means the owner of an Eligible Note who is registered as 
such on the Note Register of Eligible Notes required to be maintained by 
the Fiscal Agent.
    Person means any legal person, including any individual, 
corporation, partnership, joint venture, association, joint stock 
company, trust, unincorporated organization, or government or any agency 
or political subdivision thereof.
    Principal amount means the principal amount of any Eligible Notes 
issued by the Borrower. For purposes of determining the principal amount 
of any Eligible Notes issued by the Borrower, the principal amount of 
each Eligible Note shall be the stated principal amount thereof.
    USAID means the United States Agency for International Development 
or its successor.



Sec.  232.03  The Guarantee.

    Subject to the terms and conditions set out in this part, the United 
States of America, acting through USAID, guarantees to Noteholders the 
Borrower's repayment of 100 percent of principal and interest due on 
Eligible Notes. Under this Guarantee, USAID agrees to pay to any 
Noteholder compensation in Dollars equal to such Noteholder's Loss of 
Investment under its Eligible Note; provided, however, that no such 
payment shall be made to any Noteholder for any such loss arising out of 
fraud or misrepresentation for which such Noteholder is responsible or 
of which it had knowledge at the time it became such Noteholder. This 
Guarantee shall apply to each Eligible Note registered on the Note 
Register required to be maintained by the Fiscal Agent.



Sec.  232.04  Guarantee eligibility.

    (a) Eligible Notes only are guaranteed hereunder. Notes in order to 
achieve Eligible Note status:
    (1) Must be signed on behalf of the Borrower, manually or in 
facsimile, by a duly authorized representative of the Borrower;

[[Page 1057]]

    (2) Must contain a certificate of authentication manually executed 
by a Fiscal Agent whose appointment by the Borrower is consented to by 
USAID in the Fiscal Agency Agreement; and
    (3) Shall be approved and authenticated by USAID by either:
    (i) The affixing by USAID on the Notes of a guarantee legend 
incorporating these Standard Terms and Conditions signed on behalf of 
USAID by either a manual signature or a facsimile signature of an 
authorized representative of USAID or
    (ii) The delivery by USAID to the Fiscal Agent of a guarantee 
certificate incorporating these Standard Terms and Conditions signed on 
behalf of USAID by either a manual signature or a facsimile signature of 
an authorized representative of USAID.
    (b) The authorized USAID representatives for purposes of the 
regulations in this part whose signature(s) shall be binding on USAID 
shall include the USAID Chief and Deputy Chief Financial Officer, 
Assistant Administrator and Deputy, Bureau for Economic Growth, 
Education, and Environment, Director and Deputy Director, Office of 
Development Credit, and such other individual(s) designated in a 
certificate executed by an authorized USAID Representative and delivered 
to the Fiscal Agent. The certificate of authentication of the Fiscal 
Agent issued pursuant to the Fiscal Agency Agreement shall, when 
manually executed by the Fiscal Agent, be conclusive evidence binding on 
USAID that an Eligible Note has been duly executed on behalf of the 
Borrower and delivered.



Sec.  232.05  Non-impairment of the Guarantee.

    The full faith and credit of the United States of America is pledged 
to the performance of this Guarantee. The Guarantee shall be 
unconditional, and shall not be affected or impaired by:
    (a) Any defect in the authorization, execution, delivery or 
enforceability of any agreement or other document executed by a 
Noteholder, USAID, the Fiscal Agent or the Borrower in connection with 
the transactions contemplated by this Guarantee or
    (b) The suspension or termination of the program pursuant to which 
USAID is authorized to guarantee the Eligible Notes. This non-impairment 
of the guarantee provision shall not, however, be operative with respect 
to any loss arising out of fraud or misrepresentation for which the 
claiming Noteholder is responsible or of which it had knowledge at the 
time it became a Noteholder.



Sec.  232.06  Transferability of Guarantee; Note Register.

    A Noteholder may assign, transfer or pledge an Eligible Note to any 
Person. Any such assignment, transfer or pledge shall be effective on 
the date that the name of the new Noteholder is entered on the Note 
Register required to be maintained by the Fiscal Agent pursuant to the 
Fiscal Agency Agreement. USAID shall be entitled to treat the Persons in 
whose names the Eligible Notes are registered as the owners thereof for 
all purposes of this Guarantee and USAID shall not be affected by notice 
to the contrary.



Sec.  232.07  Fiscal agent obligations.

    Failure of the Fiscal Agent to perform any of its obligations 
pursuant to the Fiscal Agency Agreement shall not impair any 
Noteholder's rights under this Guarantee, but may be the subject of 
action for damages against the Fiscal Agent by USAID as a result of such 
failure or neglect. A Noteholder may appoint the Fiscal Agent to make 
demand for payment on its behalf under this Guarantee.



Sec.  232.08  Event of Default; Application for Compensation; payment.

    At any time after an Event of Default, as this term is defined in an 
Eligible Note, any Noteholder hereunder, or the Fiscal Agent on behalf 
of a Noteholder hereunder, may file with USAID an Application for 
Compensation in the form provided in Appendix A to this part. USAID 
shall pay or cause to be paid to any such Applicant any compensation 
specified in such Application for Compensation that is due to the 
Applicant pursuant to the Guarantee as a Loss of Investment not later 
than the Guarantee Payment Date. In the event that USAID receives any 
other notice of an Event of Default, USAID may pay any compensation

[[Page 1058]]

that is due to any Noteholder pursuant to a Guarantee, whether or not 
such Noteholder has filed with USAID an Application for Compensation in 
respect of such amount.



Sec.  232.09  No acceleration of Eligible Notes.

    Eligible Notes shall not be subject to acceleration, in whole or in 
part, by USAID, the Noteholder or any other party. USAID shall not have 
the right to pay any amounts in respect of the Eligible Notes other than 
in accordance with the original payment terms of such Eligible Notes.



Sec.  232.10  Payment to USAID of excess amounts received by a Noteholder.

    If a Noteholder shall, as a result of USAID paying compensation 
under this Guarantee, receive an excess payment, it shall refund the 
excess to USAID.



Sec.  232.11  Subrogation of USAID.

    In the event of payment by USAID to a Noteholder under this 
Guarantee, USAID shall be subrogated to the extent of such payment to 
all of the rights of such Noteholder against the Borrower under the 
related Note.



Sec.  232.12  Prosecution of claims.

    After payment by USAID to an Applicant hereunder, USAID shall have 
exclusive power to prosecute all claims related to rights to receive 
payments under the Eligible Notes to which it is thereby subrogated. If 
a Noteholder continues to have an interest in the outstanding Eligible 
Notes, such a Noteholder and USAID shall consult with each other with 
respect to their respective interests in such Eligible Notes and the 
manner of and responsibility for prosecuting claims.



Sec.  232.13  Change in agreements.

    No Noteholder will consent to any change or waiver of any provision 
of any document contemplated by this Guarantee without the prior written 
consent of USAID.



Sec.  232.14  Arbitration.

    Any controversy or claim between USAID and any Noteholder arising 
out of this Guarantee shall be settled by arbitration to be held in 
Washington, DC in accordance with the then prevailing rules of the 
American Arbitration Association, and judgment on the award rendered by 
the arbitrators may be entered in any court of competent jurisdiction.



Sec.  232.15  Notice.

    Any communication to USAID pursuant to this Guarantee shall be in 
writing in the English language, shall refer to the Republic of Tunisia 
Loan Guarantee Number inscribed on the Eligible Note and shall be 
complete on the day it shall be actually received by USAID at the Office 
of Development Credit, Bureau for Economic Growth, Agriculture and 
Trade, United States Agency for International Development, Washington, 
DC 20523-0030. Other addresses may be substituted for the above upon the 
giving of notice of such substitution to each Noteholder by first class 
mail at the address set forth in the Note Register.



Sec.  232.16  Governing law.

    This Guarantee shall be governed by and construed in accordance with 
the laws of the United States of America governing contracts and 
commercial transactions of the United States Government.



        Sec. Appendix A to Part 232--Application for Compensation

 United States Agency for International Development Washington, DC 20523

                  Ref: Guarantee dated as of ___, 20__:

    Gentlemen:
    You are hereby advised that payment of $____ (consisting of $____ of 
principal, $____ of interest and $____ in Further Guaranteed Payments, 
as defined in Sec.  232.02(1) of the Standard Terms and Conditions of 
the above-mentioned Guarantee) was due on 20__, on $____ Principal 
Amount of Notes issued by Banque Centrale de Tunisie, acting on behalf 
of the Republic of Tunisia (the ``Borrower'') held by the undersigned. 
Of such amount $____ was not received on such date and has not been 
received by the undersigned at the date hereof. In accordance with the 
terms and provisions of the above-mentioned Guarantee, the undersigned 
hereby applies, under Sec.  232.08 of said Guarantee, for payment of 
$____, representing $_____ the Principal Amount of the presently 
outstanding Note(s) of the Borrower held by the undersigned that

[[Page 1059]]

was due and payable on ____ and that remains unpaid, and $____, the 
Interest Amount on such Note(s) that was due and payable by the Borrower 
on ____ and that remains unpaid, and $____ in Further Guaranteed 
Payments,\1\ plus accrued and unpaid interest thereon from the date of 
default with respect to such payments to and including the date payment 
in full is made by you pursuant to said Guarantee, at the rate of __% 
per annum, being the rate for such interest accrual specified in such 
Note. Such payment is to be made at [state payment instructions of 
Noteholder].
---------------------------------------------------------------------------

    \1\ In the event the Application for Compensation relates to Further 
Guaranteed Payments, such Application must also contain a statement of 
the nature and circumstances of the related loss.
---------------------------------------------------------------------------

    All capitalized terms herein that are not otherwise defined shall 
have the meanings assigned to such terms in the Standard Terms and 
Conditions of the above-mentioned Guarantee.

[Name of Applicant]

By:

Name:

Title:

Dated:



  PART 233_HASHEMITE KINGDOM OF JORDAN LOAN GUARANTEES ISSUED 
  UNDER THE FURTHER CONTINUING APPROPRIATIONS ACT, 2013, DIV. F, 
  PUB. L. 113	6_STANDARD TERMS AND CONDITIONS--Table of Contents



Sec.
233.01 Purpose.
233.02 Definitions.
233.03 The Guarantee.
233.04 Guarantee eligibility.
233.05 Non-impairment of the Guarantee.
233.06 Transferability of Guarantee; Note Register.
233.07 Fiscal Agent obligations.
233.08 Event of Default; Application for Compensation; payment.
233.09 No acceleration of Eligible Notes.
233.10 Payment to USAID of excess amounts received by a Noteholder.
233.11 Subrogation of USAID.
233.12 Prosecution of claims.
233.13 Change in agreements.
233.14 Arbitration.
233.15 Notice.
233.16 Governing law.

Appendix A to Part 233--Application for Compensation

    Authority: Title III of the Department of State, Foreign Operations, 
and Related Programs Appropriations Act, 2012, Division I, Pub. L. 112-
74, as applied to fiscal year 2013 funding by section 1706(j) of the 
Further Continuing Appropriations Act, 2013, Division F, Pub. L. 113-6.

    Source: 78 FR 64175, Oct. 28, 2013, unless otherwise noted.



Sec.  233.01  Purpose.

    The purpose of the regulations in this part is to prescribe the 
procedures and standard terms and conditions applicable to loan 
guarantees issued for the benefit of the Borrower, pursuant to Title III 
of the Department of State, Foreign Operations, and Related Programs 
Appropriations Act, 2012, (Div. I, Pub. L. 112-74) as applied to fiscal 
year 2013 funding by section 1706(j) of the Further Continuing 
Appropriations Act, 2013, (Div. F, Pub. L. 113-6). The loan guarantees 
will be issued as provided herein pursuant to the Loan Guarantee 
Agreement, dated August 14, 2013, between the United States of America 
and the Hashemite Kingdom of Jordan (the ``Loan Guarantee Agreement''). 
The loan guarantee will apply to sums borrowed during a period beginning 
on the date that the Loan Guarantee Agreement enters into force and 
ending thirty days after such date, not exceeding an aggregate total of 
one billion, two hundred and fifty million United States Dollars 
($1,250,000,000) in principal amount. The loan guarantees shall insure 
the Borrower's repayment of 100% of principal and interest due under 
such loans. The full faith and credit of the United States of America is 
pledged for the full payment and performance of such guarantee 
obligations.



Sec.  233.02  Definitions.

    Wherever used in the standard terms and conditions set out in this 
part:
    Applicant means a Noteholder who files an Application for 
Compensation with USAID, either directly or through the Fiscal Agent 
acting on behalf of a Noteholder.
    Application for Compensation means an executed application in the 
form of Appendix A to this part which a Noteholder, or the Fiscal Agent 
on behalf of a Noteholder, files with USAID pursuant to Sec.  233.08.

[[Page 1060]]

    Borrower means the Hashemite Kingdom of Jordan.
    Business day means any day other than a day on which banks in New 
York, NY are closed or authorized to be closed or a day which is 
observed as a federal holiday in Washington, DC, by the United States 
Government.
    Date of application means the date on which an Application for 
Compensation is actually received by USAID pursuant to Sec.  233.15.
    Defaulted payment means, as of any date and in respect of any 
Eligible Note, any Interest Amount and/or Principal Amount not paid when 
due.
    Eligible note(s) means [a] Note[s] meeting the eligibility criteria 
set out in Sec.  233.04.
    Fiscal Agency Agreement means the agreement among USAID, the 
Borrower and the Fiscal Agent pursuant to which the Fiscal Agent agrees 
to provide fiscal agency services in respect of the Note[s], a copy of 
which Fiscal Agency Agreement shall be made available to Noteholders 
upon request to the Fiscal Agent.
    Fiscal Agent means the bank or trust company or its duly appointed 
successor under the Fiscal Agency Agreement which has been appointed by 
the Borrower with the consent of USAID to perform certain fiscal agency 
services for specified Eligible Note[s] pursuant to the terms of the 
Fiscal Agency Agreement.
    Further guaranteed payments means the amount of any loss suffered by 
a Noteholder by reason of the Borrower's failure to comply on a timely 
basis with any obligation it may have under an Eligible Note to 
indemnify and hold harmless a Noteholder from taxes or governmental 
charges or any expense arising out of taxes or any other governmental 
charges relating to the Eligible Note in the country of the Borrower.
    Guarantee means the guarantee of USAID pursuant to this part 233 and 
the State, Foreign Operations, and Related Programs Appropriations Act 
of 2012 (Pub. L. 112-74) as applied to fiscal year 2013 funding by the 
Further Continuing Appropriations Act, 2013 (Pub. L. 113-6).
    Guarantee payment date means a Business Day not more than three (3) 
Business Days after the related Date of Application.
    Interest amount means for any Eligible Note the amount of interest 
accrued on the Principal Amount of such Eligible Note at the applicable 
Interest Rate.
    Interest rate means the interest rate borne by an Eligible Note.
    Loss of investment means, in respect of any Eligible Note, an amount 
in Dollars equal to the total of the:
    (1) Defaulted Payment unpaid as of the Date of Application,
    (2) Further Guaranteed Payments unpaid as of the Date of 
Application, and
    (3) Interest accrued and unpaid at the Interest Rate(s) specified in 
the Eligible Note(s) on the Defaulted Payment and Further Guaranteed 
Payments, in each case from the date of default with respect to such 
payment to and including the date on which full payment thereof is made 
to the Noteholder.
    Note[s] means any debt securities issued by the Borrower.
    Noteholder means the owner of an Eligible Note who is registered as 
such on the Note Register of Eligible Notes required to be maintained by 
the Fiscal Agent.
    Person means any legal person, including any individual, 
corporation, partnership, joint venture, association, joint stock 
company, trust, unincorporated organization, or government or any agency 
or political subdivision thereof.
    Principal amount means the principal amount of any Eligible Notes 
issued by the Borrower. For purposes of determining the principal amount 
of any Eligible Notes issued by the Borrower, the principal amount of 
each Eligible Note shall be the stated principal amount thereof.
    USAID means the United States Agency for International Development 
or its successor.



Sec.  233.03  The Guarantee.

    Subject to the terms and conditions set out in this part, the United 
States of America, acting through USAID, guarantees to Noteholders the 
Borrower's repayment of 100 percent of principal and interest due on 
Eligible Notes. Under this Guarantee, USAID

[[Page 1061]]

agrees to pay to any Noteholder compensation in Dollars equal to such 
Noteholder's Loss of Investment under its Eligible Note; provided, 
however, that no such payment shall be made to any Noteholder for any 
such loss arising out of fraud or misrepresentation for which such 
Noteholder is responsible or of which it had knowledge at the time it 
became such Noteholder. This Guarantee shall apply to each Eligible Note 
registered on the Note Register required to be maintained by the Fiscal 
Agent.



Sec.  233.04  Guarantee eligibility.

    (a) Eligible Notes only are guaranteed hereunder. Notes in order to 
achieve Eligible Note status:
    (1) Must be signed on behalf of the Borrower, manually or in 
facsimile, by a duly authorized representative of the Borrower;
    (2) Must contain a certificate of authentication manually executed 
by a Fiscal Agent whose appointment by the Borrower is consented to by 
USAID in the Fiscal Agency Agreement; and
    (3) Shall be approved and authenticated by USAID by either:
    (i) The affixing by USAID on the Notes of a guarantee legend 
incorporating these Standard Terms and Conditions signed on behalf of 
USAID by either a manual signature or a facsimile signature of an 
authorized representative of USAID or
    (ii) The delivery by USAID to the Fiscal Agent of a guarantee 
certificate incorporating these Standard Terms and Conditions signed on 
behalf of USAID by either a manual signature or a facsimile signature of 
an authorized representative of USAID.
    (b) The authorized USAID representatives for purposes of the 
regulations in this part whose signature(s) shall be binding on USAID 
shall include the USAID Chief and Deputy Chief Financial Officer, 
Assistant Administrator and Deputy, Bureau for Economic Growth, 
Education, and Environment, Director and Deputy Director, Office of 
Development Credit, and such other individual(s) designated in a 
certificate executed by an authorized USAID Representative and delivered 
to the Fiscal Agent. The certificate of authentication of the Fiscal 
Agent issued pursuant to the Fiscal Agency Agreement shall, when 
manually executed by the Fiscal Agent, be conclusive evidence binding on 
USAID that an Eligible Note has been duly executed on behalf of the 
Borrower and delivered.



Sec.  233.05  Non-impairment of the Guarantee.

    The full faith and credit of the United States of America is pledged 
to the performance of this Guarantee. The Guarantee shall be 
unconditional, and shall not be affected or impaired by:
    (a) Any defect in the authorization, execution, delivery or 
enforceability of any agreement or other document executed by a 
Noteholder, USAID, the Fiscal Agent or the Borrower in connection with 
the transactions contemplated by this Guarantee or
    (b) The suspension or termination of the program pursuant to which 
USAID is authorized to guarantee the Eligible Notes. This non-impairment 
of the guarantee provision shall not, however, be operative with respect 
to any loss arising out of fraud or misrepresentation for which the 
claiming Noteholder is responsible or of which it had knowledge at the 
time it became a Noteholder.



Sec.  233.06  Transferability of Guarantee; Note Register.

    A Noteholder may assign, transfer or pledge an Eligible Note to any 
Person. Any such assignment, transfer or pledge shall be effective on 
the date that the name of the new Noteholder is entered on the Note 
Register required to be maintained by the Fiscal Agent pursuant to the 
Fiscal Agency Agreement. USAID shall be entitled to treat the Persons in 
whose names the Eligible Notes are registered as the owners thereof for 
all purposes of this Guarantee and USAID shall not be affected by notice 
to the contrary.



Sec.  233.07  Fiscal Agent obligations.

    Failure of the Fiscal Agent to perform any of its obligations 
pursuant to the Fiscal Agency Agreement shall not impair any 
Noteholder's rights under this Guarantee, but may be the subject of 
action for damages against the Fiscal Agent by USAID as a result of such 
failure or neglect. A Noteholder may

[[Page 1062]]

appoint the Fiscal Agent to make demand for payment on its behalf under 
this Guarantee.



Sec.  233.08  Event of default; Application for Compensation; payment.

    At any time after an Event of Default, as this term is defined in an 
Eligible Note, any Noteholder hereunder, or the Fiscal Agent on behalf 
of a Noteholder hereunder, may file with USAID an Application for 
Compensation in the form provided in Appendix A to this part. USAID 
shall pay or cause to be paid to any such Applicant any compensation 
specified in such Application for Compensation that is due to the 
Applicant pursuant to the Guarantee as a Loss of Investment not later 
than the Guarantee Payment Date. In the event that USAID receives any 
other notice of an Event of Default, USAID may pay any compensation that 
is due to any Noteholder pursuant to a Guarantee, whether or not such 
Noteholder has filed with USAID an Application for Compensation in 
respect of such amount.



Sec.  233.09  No acceleration of Eligible Notes.

    Eligible Notes shall not be subject to acceleration, in whole or in 
part, by USAID, the Noteholder or any other party. USAID shall not have 
the right to pay any amounts in respect of the Eligible Notes other than 
in accordance with the original payment terms of such Eligible Notes.



Sec.  233.10  Payment to USAID of excess amounts received by a Noteholder.

    If a Noteholder shall, as a result of USAID paying compensation 
under this Guarantee, receive an excess payment, it shall refund the 
excess to USAID.



Sec.  233.11  Subrogation of USAID.

    In the event of payment by USAID to a Noteholder under this 
Guarantee, USAID shall be subrogated to the extent of such payment to 
all of the rights of such Noteholder against the Borrower under the 
related Note.



Sec.  233.12  Prosecution of claims.

    After payment by USAID to an Applicant hereunder, USAID shall have 
exclusive power to prosecute all claims related to rights to receive 
payments under the Eligible Notes to which it is thereby subrogated. If 
a Noteholder continues to have an interest in the outstanding Eligible 
Notes, such a Noteholder and USAID shall consult with each other with 
respect to their respective interests in such Eligible Notes and the 
manner of and responsibility for prosecuting claims.



Sec.  233.13  Change in agreements.

    No Noteholder will consent to any change or waiver of any provision 
of any document contemplated by this Guarantee without the prior written 
consent of USAID.



Sec.  233.14  Arbitration.

    Any controversy or claim between USAID and any Noteholder arising 
out of this Guarantee shall be settled by arbitration to be held in 
Washington, DC in accordance with the then prevailing rules of the 
American Arbitration Association, and judgment on the award rendered by 
the arbitrators may be entered in any court of competent jurisdiction.



Sec.  233.15  Notice.

    Any communication to USAID pursuant to this Guarantee shall be in 
writing in the English language, shall refer to the Hashemite Kingdom of 
Jordan Loan Guarantee Number inscribed on the Eligible Note and shall be 
complete on the day it shall be actually received by USAID at the Office 
of Development Credit, Bureau for Economic Growth, Agriculture and 
Trade, United States Agency for International Development, Washington, 
DC 20523-0030. Other addresses may be substituted for the above upon the 
giving of notice of such substitution to each Noteholder by first class 
mail at the address set forth in the Note Register.



Sec.  233.16  Governing law.

    This Guarantee shall be governed by and construed in accordance with 
the laws of the United States of America governing contracts and 
commercial transactions of the United States Government.

[[Page 1063]]



Sec. Appendix A to Part 233--Application for Compensation United States 
        Agency for International Development Washington, DC 20523

    Ref: Guarantee dated as of ___, 20__:
    Gentlemen: You are hereby advised that payment of $___ (consisting 
of $___ of principal, $___of interest and $___in Further Guaranteed 
Payments, as defined in Sec.  233.02 of the Standard Terms and 
Conditions of the above-mentioned Guarantee) was due on ______, 20__, on 
$___Principal Amount of Notes issued by Hashemite Kingdom of Jordan (the 
``Borrower'') held by the undersigned. Of such amount $___ was not 
received on such date and has not been received by the undersigned at 
the date hereof. In accordance with the terms and provisions of the 
above-mentioned Guarantee, the undersigned hereby applies, under Sec.  
233.08 of said Guarantee, for payment of $___, representing $___, the 
Principal Amount of the presently outstanding Note(s) of the Borrower 
held by the undersigned that was due and payable on___ and that remains 
unpaid, and $___, the Interest Amount on such Note(s) that was due and 
payable by the Borrower on ___ and that remains unpaid, and $___ in 
Further Guaranteed Payments,\1\ plus accrued and unpaid interest thereon 
from the date of default with respect to such payments to and including 
the date payment in full is made by you pursuant to said Guarantee, at 
the rate of __% per annum, being the rate for such interest accrual 
specified in such Note. Such payment is to be made at [state payment 
instructions of Noteholder].
---------------------------------------------------------------------------

    \1\ In the event the Application for Compensation relates to Further 
Guaranteed Payments, such Application must also contain a statement of 
the nature and circumstances of the related loss.
---------------------------------------------------------------------------

    All capitalized terms herein that are not otherwise defined shall 
have the meanings assigned to such terms in the Standard Terms and 
Conditions of the above-mentioned Guarantee.

[Name of Applicant]

By:

Name:

Title:

Dated:



PART 234_UKRAINE LOAN GUARANTEES ISSUED UNDER THE SUPPORT FOR THE SOVEREIGNTY, 
INTEGRITY, DEMOCRACY, AND ECONOMIC STABILITY OF UKRAINE ACT OF 2014, 
PUB. L. 113 95_STANDARD TERMS AND CONDITIONS--Table of Contents



Sec.
234.1 Purpose.
234.2 Definitions.
234.3 The Guarantee.
234.4 Guarantee eligibility.
234.5 Non-impairment of the Guarantee.
234.6 Transferability of Guarantee; Note Register.
234.7 Fiscal Agent obligations.
234.8 Event of Default; Application for Compensation; payment.
234.9 No acceleration of Eligible Notes.
234.10 Payment to USAID of excess amounts received by a Noteholder.
234.11 Subrogation of USAID.
234.12 Prosecution of claims.
234.13 Change in agreements.
234.14 Arbitration.
234.15 Notice.
234.16 Governing Law.

Appendix A to Part 234--Application for Compensation, United States 
          Agemcy for International Development, Washington, DC 20523

    Authority: Pub. L. 113-95, 128 Stat. 1088.

    Source: 79 FR 26834, May 12, 2014, unless otherwise noted.



Sec.  234.1  Purpose.

    The purpose of the regulations in this part is to prescribe the 
procedures and standard terms and conditions applicable to loan 
guarantees issued for the benefit of the Borrower, pursuant to the 
Support for the Sovereignty, Integrity, Democracy, and Economic 
Stability of Ukraine Act of 2014 (Pub. L. 113-95). The loan guarantees 
will be issued as provided herein pursuant to the Loan Guarantee 
Agreement, dated April 14, 2014, between the United States of America 
and Ukraine (the ``Loan Guarantee Agreement''). The loan guarantee will 
apply to sums borrowed during a period beginning on the date that the 
Loan Guarantee Agreement enters into force and ending thirty days after 
such date, not exceeding an aggregate total of one billion United States 
Dollars ($1,000,000,000) in principal amount. The loan guarantees

[[Page 1064]]

shall ensure the Borrower's repayment of 100% of principal and interest 
due under such borrowings. The full faith and credit of the United 
States of America is pledged for the full payment and performance of 
such guarantee obligations.



Sec.  234.2  Definitions.

    Wherever used in the standard terms and conditions set out in this 
part:
    Applicant means a Noteholder who files an Application for 
Compensation with USAID, either directly or through the Fiscal Agent 
acting on behalf of a Noteholder.
    Application for Compensation means an executed application in the 
form of Appendix A to this part which a Noteholder, or the Fiscal Agent 
on behalf of a Noteholder, files with USAID pursuant to Sec.  234.8.
    Borrower means Ukraine.
    Business day means any day other than a day on which banks in New 
York, NY are closed or authorized to be closed or a day which is 
observed as a federal holiday in Washington, DC, by the United States 
Government.
    Date of application means the date on which an Application for 
Compensation is actually received by USAID pursuant to Sec.  234.15.
    Defaulted Payment means, as of any date and in respect of any 
Eligible Note, any Interest Amount and/or Principal Amount not paid when 
due.
    Eligible Note(s) means [a] Note[s] meeting the eligibility criteria 
set out in Sec.  234.4.
    Fiscal Agency Agreement means the agreement among USAID, the 
Borrower and the Fiscal Agent pursuant to which the Fiscal Agent agrees 
to provide fiscal agency and trust services in respect of the Note[s], a 
copy of which Fiscal Agency Agreement shall be made available to 
Noteholders upon request to the Fiscal Agent.
    Fiscal agent means the bank or trust company or its duly appointed 
successor under the Fiscal Agency Agreement which has been appointed by 
the Borrower with the consent of USAID to perform certain fiscal agency 
and trust services for specified Eligible Note[s] pursuant to the terms 
of the Fiscal Agency Agreement.
    Further guaranteed payments means the amount of any loss suffered by 
a Noteholder by reason of the Borrower's failure to comply on a timely 
basis with any obligation it may have under an Eligible Note to 
indemnify and hold harmless a Noteholder from taxes or governmental 
charges or any expense arising out of taxes or any other governmental 
charges relating to the Eligible Note in the country of the Borrower.
    Guarantee means the guarantee of USAID pursuant to this part 234 and 
the Support for the Sovereignty, Integrity, Democracy, and Economic 
Stability of Ukraine Act of 2014 (Pub. L. 113-95).
    Guarantee payment date means a Business Day not more than three (3) 
Business Days after the related Date of Application.
    Interest amount means for any Eligible Note the amount of interest 
accrued on the Principal Amount of such Eligible Note at the applicable 
Interest Rate.
    Interest rate means the interest rate borne by an Eligible Note.
    Loss of investment means, in respect of any Eligible Note, an amount 
in Dollars equal to the total of the:
    (1) Defaulted Payment unpaid as of the Date of Application,
    (2) Further Guaranteed Payments unpaid as of the Date of 
Application, and
    (3) Interest accrued and unpaid at the Interest Rate(s) specified in 
the Eligible Note(s) on the Defaulted Payment and Further Guaranteed 
Payments, in each case from the date of default with respect to such 
payment to and including the date on which full payment thereof is made 
to the Noteholder.
    Note[s] means any debt securities issued by the Borrower.
    Noteholder means the owner of an Eligible Note who is registered as 
such on the Note Register.
    Note Register means the register of Eligible Notes required to be 
maintained by the Fiscal Agent.
    Person means any legal person, including any individual, 
corporation, partnership, joint venture, association, joint stock 
company, trust, unincorporated organization, or government or any agency 
or political subdivision thereof.

[[Page 1065]]

    Principal amount means the principal amount of the Eligible Notes 
issued by the Borrower. For purposes of determining the principal amount 
of the Eligible Notes issued by the Borrower, the principal amount of 
each Eligible Note shall be the stated principal amount thereof.
    USAID means the United States Agency for International Development 
or its successor.



Sec.  234.3  The Guarantee.

    Subject to the terms and conditions set out in this part, the United 
States of America, acting through USAID, guarantees to Noteholders the 
Borrower's repayment of 100 percent of principal and interest due on 
Eligible Notes. Under this Guarantee, USAID agrees to pay to any 
Noteholder compensation in Dollars equal to such Noteholder's Loss of 
Investment under its Eligible Note; provided, however, that no such 
payment shall be made to any Noteholder for any such loss arising out of 
fraud or misrepresentation for which such Noteholder is responsible or 
of which it had knowledge at the time it became such Noteholder. This 
Guarantee shall apply to each Eligible Note registered on the Note 
Register.



Sec.  234.4  Guarantee eligibility.

    (a) Eligible Notes only are guaranteed hereunder. Notes in order to 
achieve Eligible Note status:
    (1) Must be signed on behalf of the Borrower, manually or in 
facsimile, by a duly authorized representative of the Borrower;
    (2) Must contain a certificate of authentication manually executed 
by the Fiscal Agent whose appointment by the Borrower is consented to by 
USAID in the Fiscal Agency Agreement; and
    (3) Shall be approved and authenticated by USAID by either:
    (i) The affixing by USAID on the Notes of a guarantee legend 
incorporating these Standard Terms and Conditions signed on behalf of 
USAID by either a manual signature or a facsimile signature of an 
authorized representative of USAID or
    (ii) The delivery by USAID to the Fiscal Agent of a guarantee 
certificate incorporating these Standard Terms and Conditions signed on 
behalf of USAID by either a manual signature or a facsimile signature of 
an authorized representative of USAID.
    (b) The authorized USAID representatives for purposes of the 
regulations in this part whose signature(s) shall be binding on USAID 
shall include the USAID Chief and Deputy Chief Financial Officer; 
Assistant Administrator and Deputy, Bureau for Economic Growth, 
Education, and Environment; Director and Deputy Director, Office of 
Development Credit; and such other individual(s) designated in a 
certificate executed by an authorized USAID Representative and delivered 
to the Fiscal Agent. The certificate of authentication of the Fiscal 
Agent issued pursuant to the Fiscal Agency Agreement shall, when 
manually executed by the Fiscal Agent, be conclusive evidence binding on 
USAID that an Eligible Note has been duly executed on behalf of the 
Borrower and delivered.



Sec.  234.5  Non-impairment of the Guarantee.

    After issuance of a Guarantee, that Guarantee will be an 
unconditional, full faith and credit obligation of the United States of 
America, and will not be affected or impaired by any subsequent 
condition or event. This non-impairment of the guarantee provision shall 
not, however, be operative with respect to any loss arising out of fraud 
or misrepresentation for which the claiming Noteholder is responsible or 
of which it had knowledge at the time it became a Noteholder. Moreover, 
the Guarantee shall not be affected or impaired by:
    (a) Any defect in the authorization, execution, delivery or 
enforceability of any agreement or other document executed by a 
Noteholder, USAID, the Fiscal Agent or the Borrower in connection with 
the transactions contemplated by this Guarantee; or
    (b) The suspension or termination of the program pursuant to which 
USAID is authorized to guarantee the Eligible Notes.



Sec.  234.6  Transferability of Guarantee; Note Register.

    A Noteholder may assign, transfer or pledge an Eligible Note to any 
Person.

[[Page 1066]]

Any such assignment, transfer or pledge shall be effective on the date 
that the name of the new Noteholder is entered on the Note Register. 
USAID shall be entitled to treat the Persons in whose names the Eligible 
Notes are registered as the owners thereof for all purposes of this 
Guarantee and USAID shall not be affected by notice to the contrary.



Sec.  234.7  Fiscal Agent obligations.

    Failure of the Fiscal Agent to perform any of its obligations 
pursuant to the Fiscal Agency Agreement shall not impair any 
Noteholder's rights under this Guarantee, but may be the subject of 
action for damages against the Fiscal Agent by USAID as a result of such 
failure or neglect. A Noteholder may appoint the Fiscal Agent to make 
demand for payment on its behalf under this Guarantee.



Sec.  234.8  Event of Default; Application for Compensation; payment.

    At any time after an Event of Default, as this term is defined in an 
Eligible Note, any Noteholder hereunder, or the Fiscal Agent on behalf 
of a Noteholder hereunder, may file with USAID an Application for 
Compensation in the form provided in Appendix A to this part. USAID 
shall pay or cause to be paid to any such Applicant any compensation 
specified in such Application for Compensation that is due to the 
Applicant pursuant to the Guarantee as a Loss of Investment not later 
than the Guarantee Payment Date. In the event that USAID receives any 
other notice of an Event of Default, USAID may pay any compensation that 
is due to any Noteholder pursuant to a Guarantee, whether or not such 
Noteholder has filed with USAID an Application for Compensation in 
respect of such amount.



Sec.  234.9  No acceleration of Eligible Notes.

    Eligible Notes shall not be subject to acceleration, in whole or in 
part, by USAID, the Noteholder or any other party. USAID shall not have 
the right to pay any amounts in respect of the Eligible Notes other than 
in accordance with the original payment terms of such Eligible Notes.



Sec.  234.10  Payment to USAID of excess amounts received by a Noteholder.

    If a Noteholder shall, as a result of USAID paying compensation 
under this Guarantee, receive an excess payment, it shall refund the 
excess to USAID.



Sec.  234.11  Subrogation of USAID.

    In the event of payment by USAID to a Noteholder under this 
Guarantee, USAID shall be subrogated to the extent of such payment to 
all of the rights of such Noteholder against the Borrower under the 
related Note.



Sec.  234.12  Prosecution of claims.

    After payment by USAID to an Applicant hereunder, USAID shall have 
exclusive power to prosecute all claims related to rights to receive 
payments under the Eligible Notes to which it is thereby subrogated. If 
a Noteholder continues to have an interest in the outstanding Eligible 
Notes, such a Noteholder and USAID shall consult with each other with 
respect to their respective interests in such Eligible Notes and the 
manner of and responsibility for prosecuting claims.



Sec.  234.13  Change in agreements.

    No Noteholder will consent to any change or waiver of any provision 
of any document contemplated by this Guarantee without the prior written 
consent of USAID.



Sec.  234.14  Arbitration.

    Any controversy or claim between USAID and any Noteholder arising 
out of this Guarantee shall be settled by arbitration to be held in 
Washington, DC in accordance with the then prevailing rules of the 
American Arbitration Association, and judgment on the award rendered by 
the arbitrators may be entered in any court of competent jurisdiction.



Sec.  234.15  Notice.

    Any communication to USAID pursuant to this Guarantee shall be in 
writing in the English language, shall refer to the Ukraine Loan 
Guarantee Number inscribed on the Eligible Note and shall be complete on 
the day it shall be actually received by USAID at the Office of 
Development Credit, Bureau for

[[Page 1067]]

Economic Growth, Education and Environment, United States Agency for 
International Development, Washington, DC 20523-0030. Other addresses 
may be substituted for the above upon the giving of notice of such 
substitution to each Noteholder by first class mail at the address set 
forth in the Note Register.



Sec.  234.16  Governing Law.

    This Guarantee shall be governed by and construed in accordance with 
the laws of the United States of America governing contracts and 
commercial transactions of the United States Government.



Sec. Appendix A to Part 234--Application for Compensation United States 
        Agency for International Development Washington, DC 20523

    Ref: Guarantee dated as of __, 20__:
    Gentlemen: You are hereby advised that payment of $__ (consisting of 
$__ of principal, $__ of interest and $__ in Further Guaranteed 
Payments, as defined in Sec.  234.2 of the Standard Terms and Conditions 
of the above-mentioned Guarantee) was due on ______, 20__, on $__ 
Principal Amount of Notes issued by Ukraine (the ``Borrower'') held by 
the undersigned. Of such amount $__ was not received on such date and 
has not been received by the undersigned at the date hereof. In 
accordance with the terms and provisions of the above-mentioned 
Guarantee, the undersigned hereby applies, under Sec.  234.8 of said 
Guarantee, for payment of $__, representing $__, the Principal Amount of 
the presently outstanding Note(s) of the Borrower held by the 
undersigned that was due and payable on __ and that remains unpaid, and 
$__, the Interest Amount on such Note(s) that was due and payable by the 
Borrower on __ and that remains unpaid, and $__ in Further Guaranteed 
Payments,\1\ plus accrued and unpaid interest thereon from the date of 
default with respect to such payments to and including the date payment 
in full is made by you pursuant to said Guarantee, at the rate of __% 
per annum, being the rate for such interest accrual specified in such 
Note. Such payment is to be made at [state payment instructions of 
Noteholder or Fiscal Agent, as applicable].
---------------------------------------------------------------------------

    \1\ In the event the Application for Compensation relates to Further 
Guaranteed Payments, such Application must also contain a statement of 
the nature and circumstances of the related loss.
---------------------------------------------------------------------------

    All capitalized terms herein that are not otherwise defined shall 
have the meanings assigned to such terms in the Standard Terms and 
Conditions of the above-mentioned Guarantee.

[Name of Applicant]

By:_____________________________________________________________________

Name:
Title:
Dated:



  PART 235_HASHEMITE KINGDOM OF JORDAN LOAN GUARANTEES ISSUED 
  UNDER THE FURTHER CONTINUING APPROPRIATIONS ACT, 2014, DIV. F, 
  PUB. L. 113	6_STANDARD TERMS AND CONDITIONS--Table of Contents



Sec.
235.1 Purpose.
235.2 Definitions.
235.3 The Guarantee.
235.4 Guarantee eligibility.
235.5 Non-impairment of the Guarantee.
235.6 Transferability of Guarantee; Note Register.
235.7 Fiscal Agent obligations.
235.8 Event of Default; Application for Compensation; payment.
235.9 No acceleration of Eligible Notes.
235.10 Payment to USAID of excess amounts received by a Noteholder.
235.11 Subrogation of USAID.
235.12 Prosecution of claims.
235.13 Change in agreements.
235.14 Arbitration.
235.15 Notice.
235.16 Governing Law.

Appendix A to Part 235--Application for Compensation

    Authority: Sec. 7041(g)(1)(A), Div. K, Pub. L. 113-76, 128 Stat. 5.

    Source: 79 FR 35283, June 20, 2014, unless otherwise noted.



Sec.  235.1  Purpose.

    The purpose of the regulations in this part is to prescribe the 
procedures and standard terms and conditions applicable to loan 
guarantees issued for the benefit of the Borrower, pursuant to Section 
7041(g)(1)(A) of the Department of State, Foreign Operations, and 
Related Programs Appropriations Act, 2014 (Div. K, Pub. L. 113-76). The 
loan guarantees will be issued as provided herein pursuant to the Loan 
Guarantee Agreement, dated May 5, 2014, between the United States of 
America and the Hashemite Kingdom of Jordan (the

[[Page 1068]]

``Loan Guarantee Agreement''). The loan guarantee will apply to sums 
borrowed during a period beginning on the date that the Loan Guarantee 
Agreement enters into force and ending thirty days after such date, not 
exceeding an aggregate total of one billion United States Dollars 
($1,000,000,000) in principal amount. The loan guarantees shall ensure 
the Borrower's repayment of 100% of principal and interest due under 
such loans. The full faith and credit of the United States of America is 
pledged for the full payment and performance of such guarantee 
obligations.



Sec.  235.2  Definitions.

    Wherever used in the standard terms and conditions set out in this 
part:
    Applicant means a Noteholder who files an Application for 
Compensation with USAID, either directly or through the Fiscal Agent 
acting on behalf of a Noteholder.
    Application for Compensation means an executed application in the 
form of Appendix A to this part which a Noteholder, or the Fiscal Agent 
on behalf of a Noteholder, files with USAID pursuant to Sec.  235.8.
    Borrower means the Hashemite Kingdom of Jordan.
    Business Day means any day other than a day on which banks in New 
York, NY are closed or authorized to be closed or a day which is 
observed as a federal holiday in Washington, DC, by the United States 
Government.
    Date of application means the date on which an Application for 
Compensation is actually received by USAID pursuant to Sec.  235.15.
    Defaulted payment means, as of any date and in respect of any 
Eligible Note, any Interest Amount and/or Principal Amount not paid when 
due.
    Eligible Note(s) means [a] Note[s] meeting the eligibility criteria 
set out in Sec.  235.4.
    Fiscal Agency Agreement means the agreement among USAID, the 
Borrower and the Fiscal Agent pursuant to which the Fiscal Agent agrees 
to provide fiscal agency services in respect of the Note[s], a copy of 
which Fiscal Agency Agreement shall be made available to Noteholders 
upon request to the Fiscal Agent.
    Fiscal agent means the bank or trust company or its duly appointed 
successor under the Fiscal Agency Agreement which has been appointed by 
the Borrower with the consent of USAID to perform certain fiscal agency 
services for specified Eligible Note[s] pursuant to the terms of the 
Fiscal Agency Agreement.
    Further guaranteed payments means the amount of any loss suffered by 
a Noteholder by reason of the Borrower's failure to comply on a timely 
basis with any obligation it may have under an Eligible Note to 
indemnify and hold harmless a Noteholder from taxes or governmental 
charges or any expense arising out of taxes or any other governmental 
charges relating to the Eligible Note in the country of the Borrower.
    Guarantee means the guarantee of USAID issued pursuant to this part 
and Section 7041(g)(1)(A) of the Department of State, Foreign 
Operations, and Related Programs Appropriations Act, 2014 (Div. K, Pub. 
L. 113-76).
    Guarantee payment date means a Business Day not more than three (3) 
Business Days after the related Date of Application.
    Interest Amount means for any Eligible Note the amount of interest 
accrued on the Principal Amount of such Eligible Note at the applicable 
Interest Rate.
    Interest rate means the interest rate borne by an Eligible Note.
    Loss of investment means, in respect of any Eligible Note, an amount 
in Dollars equal to the total of the:
    (1) Defaulted Payment unpaid as of the Date of Application,
    (2) Further Guaranteed Payments unpaid as of the Date of 
Application, and
    (3) Interest accrued and unpaid at the Interest Rate(s) specified in 
the Eligible Note(s) on the Defaulted Payment and Further Guaranteed 
Payments, in each case from the date of default with respect to such 
payment to and including the date on which full payment thereof is made 
to the Noteholder.
    Note[s] means any debt securities issued by the Borrower.
    Noteholder means the owner of an Eligible Note who is registered as 
such on the Note Register.

[[Page 1069]]

    Note register means the register of Eligible Notes required to be 
maintained by the Fiscal Agent.
    Person means any legal person, including any individual, 
corporation, partnership, joint venture, association, joint stock 
company, trust, unincorporated organization, or government or any agency 
or political subdivision thereof.
    Principal amount means the principal amount of the Eligible Notes 
issued by the Borrower. For purposes of determining the principal amount 
of the Eligible Notes issued by the Borrower, the principal amount of 
each Eligible Note shall be the stated principal amount thereof.
    USAID means the United States Agency for International Development 
or its successor.



Sec.  235.3  The Guarantee.

    Subject to the terms and conditions set out in this part, the United 
States of America, acting through USAID, guarantees to Noteholders the 
Borrower's repayment of 100 percent of principal and interest due on 
Eligible Notes. Under the Guarantee, USAID agrees to pay to any 
Noteholder compensation in Dollars equal to such Noteholder's Loss of 
Investment under its Eligible Note; provided, however, that no such 
payment shall be made to any Noteholder for any such loss arising out of 
fraud or misrepresentation for which such Noteholder is responsible or 
of which it had knowledge at the time it became such Noteholder. The 
Guarantee shall apply to each Eligible Note registered on the Note 
Register required to be maintained by the Fiscal Agent.



Sec.  235.4  Guarantee eligibility.

    (a) Eligible Notes only are guaranteed hereunder. Notes in order to 
achieve Eligible Note status:
    (1) Must be signed on behalf of the Borrower, manually or in 
facsimile, by a duly authorized representative of the Borrower;
    (2) Must contain a certificate of authentication manually executed 
by a Fiscal Agent whose appointment by the Borrower is consented to by 
USAID in the Fiscal Agency Agreement; and
    (3) Shall be approved and authenticated by USAID by either:
    (i) The affixing by USAID on the Notes of a guarantee legend 
incorporating these Standard Terms and Conditions signed on behalf of 
USAID by either a manual signature or a facsimile signature of an 
authorized representative of USAID or
    (ii) The delivery by USAID to the Fiscal Agent of a guarantee 
certificate incorporating these Standard Terms and Conditions signed on 
behalf of USAID by either a manual signature or a facsimile signature of 
an authorized representative of USAID.
    (b) The authorized USAID representatives for purposes of the 
regulations in this part whose signature(s) shall be binding on USAID 
shall include the USAID Chief and Deputy Chief Financial Officer, 
Assistant Administrator and Deputy, Bureau for Economic Growth, 
Education, and Environment, Director and Deputy Director, Office of 
Development Credit, and such other individual(s) designated in a 
certificate executed by an authorized USAID Representative and delivered 
to the Fiscal Agent. The certificate of authentication of the Fiscal 
Agent issued pursuant to the Fiscal Agency Agreement shall, when 
manually executed by the Fiscal Agent, be conclusive evidence binding on 
USAID that an Eligible Note has been duly executed on behalf of the 
Borrower and delivered.



Sec.  235.5  Non-impairment of the Guarantee.

    After issuance of the Guarantee, the Guarantee will be an 
unconditional, full faith and credit obligation of the United States of 
America and will not be affected or impaired by any subsequent condition 
or event. This non-impairment of the guarantee provision shall not, 
however, be operative with respect to any loss arising out of fraud or 
misrepresentation for which the claiming Noteholder is responsible or of 
which it had knowledge at the time it became a Noteholder. In particular 
and without limitation, the Guarantee shall not be affected or impaired 
by:
    (a) Any defect in the authorization, execution, delivery or 
enforceability of

[[Page 1070]]

any agreement or other document executed by a Noteholder, USAID, the 
Fiscal Agent or the Borrower in connection with the transactions 
contemplated by this Guarantee or
    (b) The suspension or termination of the program pursuant to which 
USAID is authorized to guarantee the Eligible Notes.



Sec.  235.6  Transferability of Guarantee; Note Register.

    A Noteholder may assign, transfer or pledge an Eligible Note to any 
Person. Any such assignment, transfer or pledge shall be effective on 
the date that the name of the new Noteholder is entered on the Note 
Register required to be maintained by the Fiscal Agent pursuant to the 
Fiscal Agency Agreement. USAID shall be entitled to treat the Persons in 
whose names the Eligible Notes are registered as the owners thereof for 
all purposes of the Guarantee and USAID shall not be affected by notice 
to the contrary.



Sec.  235.7  Fiscal Agent obligations.

    Failure of the Fiscal Agent to perform any of its obligations 
pursuant to the Fiscal Agency Agreement shall not impair any 
Noteholder's rights under the Guarantee, but may be the subject of 
action for damages against the Fiscal Agent by USAID as a result of such 
failure or neglect. A Noteholder may appoint the Fiscal Agent to make 
demand for payment on its behalf under the Guarantee.



Sec.  235.8  Event of Default; Application for Compensation; payment.

    At any time after an Event of Default, as this term is defined in an 
Eligible Note, any Noteholder hereunder, or the Fiscal Agent on behalf 
of a Noteholder hereunder, may file with USAID an Application for 
Compensation in the form provided in Appendix A to this part. USAID 
shall pay or cause to be paid to any such Applicant any compensation 
specified in such Application for Compensation that is due to the 
Applicant pursuant to the Guarantee as a Loss of Investment not later 
than the Guarantee Payment Date. In the event that USAID receives any 
other notice of an Event of Default, USAID may pay any compensation that 
is due to any Noteholder pursuant to the Guarantee, whether or not such 
Noteholder has filed with USAID an Application for Compensation in 
respect of such amount.



Sec.  235.9  No acceleration of Eligible Notes.

    Eligible Notes shall not be subject to acceleration, in whole or in 
part, by USAID, the Noteholder or any other party. USAID shall not have 
the right to pay any amounts in respect of the Eligible Notes other than 
in accordance with the original payment terms of such Eligible Notes.



Sec.  235.10  Payment to USAID of excess amounts received by a Noteholder.

    If a Noteholder shall, as a result of USAID paying compensation 
under the Guarantee, receive an excess payment, it shall refund the 
excess to USAID.



Sec.  235.11  Subrogation of USAID.

    In the event of payment by USAID to a Noteholder under the 
Guarantee, USAID shall be subrogated to the extent of such payment to 
all of the rights of such Noteholder against the Borrower under the 
related Note.



Sec.  235.12  Prosecution of claims.

    After payment by USAID to an Applicant hereunder, USAID shall have 
exclusive power to prosecute all claims related to rights to receive 
payments under the Eligible Notes to which it is thereby subrogated. If 
a Noteholder continues to have an interest in the outstanding Eligible 
Notes, such a Noteholder and USAID shall consult with each other with 
respect to their respective interests in such Eligible Notes and the 
manner of and responsibility for prosecuting claims.



Sec.  235.13  Change in agreements.

    No Noteholder will consent to any change or waiver of any provision 
of any document contemplated by the Guarantee without the prior written 
consent of USAID.



Sec.  235.14  Arbitration.

    Any controversy or claim between USAID and any Noteholder arising 
out of the Guarantee shall be settled by arbitration to be held in 
Washington, DC

[[Page 1071]]

in accordance with the then prevailing rules of the American Arbitration 
Association, and judgment on the award rendered by the arbitrators may 
be entered in any court of competent jurisdiction.



Sec.  235.15  Notice.

    Any communication to USAID pursuant to the Guarantee shall be in 
writing in the English language, shall refer to the Hashemite Kingdom of 
Jordan Loan Guarantee Number inscribed on the Eligible Note and shall be 
complete on the day it shall be actually received by USAID at the Office 
of Development Credit, Bureau for Economic Growth, Education and 
Environment, United States Agency for International Development, 
Washington, DC 20523-0030. Other addresses may be substituted for the 
above upon the giving of notice of such substitution to each Noteholder 
by first class mail at the address set forth in the Note Register.



Sec.  235.16  Governing Law.

    The Guarantee shall be governed by and construed in accordance with 
the laws of the United States of America governing contracts and 
commercial transactions of the United States Government.



Sec. Appendix A to Part 235--Application for Compensation United States 
        Agency for International Development Washington, DC 20523

    Ref: Guarantee dated as of __, 20_:
    Gentlemen: You are hereby advised that payment of $__ (consisting of 
$__ of principal, $__ of interest and $____in Further Guaranteed 
Payments, as defined in Sec.  235.2 of the Standard Terms and Conditions 
of the above-mentioned Guarantee) was due on ____, 20_, on $__ Principal 
Amount of Notes issued by Hashemite Kingdom of Jordan (the ``Borrower'') 
held by the undersigned. Of such amount $__ was not received on such 
date and has not been received by the undersigned at the date hereof. In 
accordance with the terms and provisions of the above-mentioned 
Guarantee, the undersigned hereby applies, under Sec.  235.8 of said 
Guarantee, for payment of $__, representing $__, the Principal Amount of 
the presently outstanding Note(s) of the Borrower held by the 
undersigned that was due and payable on __ and that remains unpaid, and 
$__, the Interest Amount on such Note(s) that was due and payable by the 
Borrower on __ and that remains unpaid, and $__ in Further Guaranteed 
Payments,\1\ plus accrued and unpaid interest thereon from the date of 
default with respect to such payments to and including the date payment 
in full is made by you pursuant to said Guarantee, at the rate of __ % 
per annum, being the rate for such interest accrual specified in such 
Note. Such payment is to be made at [state payment instructions of 
Noteholder].
---------------------------------------------------------------------------

    \1\ In the event the Application for Compensation relates to Further 
Guaranteed Payments, such Application must also contain a statement of 
the nature and circumstances of the related loss.
---------------------------------------------------------------------------

    All capitalized terms herein that are not otherwise defined shall 
have the meanings assigned to such terms in the Standard Terms and 
Conditions of the above-mentioned Guarantee.
[Name of Applicant]
By: ________
Name:
Title:
Dated:



     PART 236_REPUBLIC OF TUNISIA LOAN GUARANTEES ISSUED 
     UNDER THE FURTHER CONTINUING APPROPRIATIONS ACT, 2014, DIV. F, 
     PUBLIC LAW 113	6_STANDARD TERMS AND CONDITIONS--Table of Contents



Sec.
236.1 Purpose.
236.2 Definitions.
236.3 The Guarantee.
236.4 Guarantee eligibility.
236.5 Non-impairment of the Guarantee.
236.6 Transferability of Guarantee; Note Register.
236.7 Fiscal Agent obligations.
236.8 Event of Default; Application for Compensation; payment.
236.9 No acceleration of Eligible Notes.
236.10 Payment to USAID of excess amounts received by a Noteholder.
236.11 Subrogation of USAID.
236.12 Prosecution of claims.
236.13 Change in agreements.
236.14 Arbitration.
236.15 Notice.
236.16 Governing law.

Appendix A to Part 236--Application for Compensation

    Authority: Sec. 1706(j), Div. F, Public Law 113-6.

    Source: 79 FR 41883, July 18, 2014, unless otherwise noted.

[[Page 1072]]



Sec.  236.1  Purpose.

    The purpose of the regulations in this part is to prescribe the 
procedures and standard terms and conditions applicable to loan 
guarantees issued for the benefit of the Borrower, pursuant to Title III 
of the Department of State, Foreign Operations, and Related Programs 
Appropriations Act, 2012 (Div. I, Pub. L. 112-74), as applied to FY 2013 
funding by section 1706(j) of the Further Continuing Appropriations Act, 
2013 (Div. F, Pub. L. 113-6). The loan guarantees will be issued as 
provided herein pursuant to the Loan Guarantee Agreement, dated June 3, 
2014, between the United States of America and the Republic of Tunisia 
(the ``Loan Guarantee Agreement''). The loan guarantee will apply to 
sums borrowed during a period beginning on the date that the Loan 
Guarantee Agreement enters into force and ending thirty days after such 
date, not exceeding an aggregate total of five hundred million United 
States Dollars ($500,000,000) in principal amount. The loan guarantees 
shall ensure the Borrower's repayment of 100% of principal and interest 
due under such loans. The full faith and credit of the United States of 
America is pledged for the full payment and performance of such 
guarantee obligations.



Sec.  236.2  Definitions.

    Wherever used in the standard terms and conditions set out in this 
part:
    Applicant means a Noteholder who files an Application for 
Compensation with USAID, either directly or through the Fiscal Agent 
acting on behalf of a Noteholder.
    Application for Compensation means an executed application in the 
form of Appendix A to this part which a Noteholder, or the Fiscal Agent 
on behalf of a Noteholder, files with USAID pursuant to Sec.  236.8.
    Borrower means Banque Centrale de Tunisie, acting on behalf of 
Republic of Tunisia.
    Business Day means any day other than a day on which banks in New 
York, NY are closed or authorized to be closed or a day which is 
observed as a federal holiday in Washington, DC, by the United States 
Government.
    Date of application means the date on which an Application for 
Compensation is actually received by USAID pursuant to Sec.  236.15.
    Defaulted payment means, as of any date and in respect of any 
Eligible Note, any Interest Amount and/or Principal Amount not paid when 
due.
    Eligible Note(s) means [a] Note[s] meeting the eligibility criteria 
set out in Sec.  236.4.
    Fiscal Agency Agreement means the agreement among USAID, the 
Borrower and the Fiscal Agent pursuant to which the Fiscal Agent agrees 
to provide fiscal agency services in respect of the Note[s], a copy of 
which Fiscal Agency Agreement shall be made available to Noteholders 
upon request to the Fiscal Agent.
    Fiscal agent means the bank or trust company or its duly appointed 
successor under the Fiscal Agency Agreement which has been appointed by 
the Borrower with the consent of USAID to perform certain fiscal agency 
services for specified Eligible Note[s] pursuant to the terms of the 
Fiscal Agency Agreement.
    Further guaranteed payments means the amount of any loss suffered by 
a Noteholder by reason of the Borrower's failure to comply on a timely 
basis with any obligation it may have under an Eligible Note to 
indemnify and hold harmless a Noteholder from taxes or governmental 
charges or any expense arising out of taxes or any other governmental 
charges relating to the Eligible Note in the country of the Borrower.
    Guarantee means the guarantee of USAID issued pursuant to this part 
and Section 7041(g)(1)(A) of the Department of State, Foreign 
Operations, and Related Programs Appropriations Act, 2014 (Div. K, Pub. 
L. 113-76).
    Guarantee Payment Date means a Business Day not more than three (3) 
Business Days after the related Date of Application.
    Interest Amount means for any Eligible Note the amount of interest 
accrued on the Principal Amount of such Eligible Note at the applicable 
Interest Rate.
    Interest rate means the interest rate borne by an Eligible Note.

[[Page 1073]]

    Loss of Investment means, in respect of any Eligible Note, an amount 
in Dollars equal to the total of the:
    (1) Defaulted Payment unpaid as of the Date of Application,
    (2) Further Guaranteed Payments unpaid as of the Date of 
Application, and
    (3) Interest accrued and unpaid at the Interest Rate(s) specified in 
the Eligible Note(s) on the Defaulted Payment and Further Guaranteed 
Payments, in each case from the date of default with respect to such 
payment to and including the date on which full payment thereof is made 
to the Noteholder.
    Note[s] means any debt securities issued by the Borrower.
    Noteholder means the owner of an Eligible Note who is registered as 
such on the Note Register.
    Note Register means the register of Eligible Notes required to be 
maintained by the Fiscal Agent.
    Person means any legal person, including any individual, 
corporation, partnership, joint venture, association, joint stock 
company, trust, unincorporated organization, or government or any agency 
or political subdivision thereof.
    Principal Amount means the principal amount of the Eligible Notes 
issued by the Borrower. For purposes of determining the principal amount 
of the Eligible Notes issued by the Borrower, the principal amount of 
each Eligible Note shall be the stated principal amount thereof.
    USAID means the United States Agency for International Development 
or its successor.



Sec.  236.3  The Guarantee.

    Subject to the terms and conditions set out in this part, the United 
States of America, acting through USAID, guarantees to Noteholders the 
Borrower's repayment of 100 percent of principal and interest due on 
Eligible Notes. Under the Guarantee, USAID agrees to pay to any 
Noteholder compensation in Dollars equal to such Noteholder's Loss of 
Investment under its Eligible Note; provided, however, that no such 
payment shall be made to any Noteholder for any such loss arising out of 
fraud or misrepresentation for which such Noteholder is responsible or 
of which it had knowledge at the time it became such Noteholder. The 
Guarantee shall apply to each Eligible Note registered on the Note 
Register required to be maintained by the Fiscal Agent.



Sec.  236.4  Guarantee eligibility.

    (a) Eligible Notes only are guaranteed hereunder. Notes in order to 
achieve Eligible Note status:
    (1) Must be signed on behalf of the Borrower, manually or in 
facsimile, by a duly authorized representative of the Borrower;
    (2) Must contain a certificate of authentication manually executed 
by a Fiscal Agent whose appointment by the Borrower is consented to by 
USAID in the Fiscal Agency Agreement; and
    (3) Shall be approved and authenticated by USAID by either:
    (i) The affixing by USAID on the Notes of a guarantee legend 
incorporating these Standard Terms and Conditions signed on behalf of 
USAID by either a manual signature or a facsimile signature of an 
authorized representative of USAID or
    (ii) The delivery by USAID to the Fiscal Agent of a guarantee 
certificate incorporating these Standard Terms and Conditions signed on 
behalf of USAID by either a manual signature or a facsimile signature of 
an authorized representative of USAID.
    (b) The authorized USAID representatives for purposes of the 
regulations in this part whose signature(s) shall be binding on USAID 
shall include the USAID Chief and Deputy Chief Financial Officer, 
Assistant Administrator and Deputy, Bureau for Economic Growth, 
Education, and Environment, Director and Deputy Director, Office of 
Development Credit, and such other individual(s) designated in a 
certificate executed by an authorized USAID Representative and delivered 
to the Fiscal Agent. The certificate of authentication of the Fiscal 
Agent issued pursuant to the Fiscal Agency Agreement shall, when 
manually executed by the Fiscal Agent, be conclusive evidence binding on 
USAID that an Eligible Note has been duly executed on behalf of the 
Borrower and delivered.

[[Page 1074]]



Sec.  236.5  Non-impairment of the Guarantee.

    After issuance of the Guarantee, the Guarantee will be an 
unconditional, full faith and credit obligation of the United States of 
America and will not be affected or impaired by any subsequent condition 
or event. This non-impairment of the guarantee provision shall not, 
however, be operative with respect to any loss arising out of fraud or 
misrepresentation for which the claiming Noteholder is responsible or of 
which it had knowledge at the time it became a Noteholder. In particular 
and without limitation, the Guarantee shall not be affected or impaired 
by:
    (a) Any defect in the authorization, execution, delivery or 
enforceability of any agreement or other document executed by a 
Noteholder, USAID, the Fiscal Agent or the Borrower in connection with 
the transactions contemplated by this Guarantee or
    (b) The suspension or termination of the program pursuant to which 
USAID is authorized to guarantee the Eligible Notes.



Sec.  236.6  Transferability of Guarantee; Note Register.

    A Noteholder may assign, transfer or pledge an Eligible Note to any 
Person. Any such assignment, transfer or pledge shall be effective on 
the date that the name of the new Noteholder is entered on the Note 
Register required to be maintained by the Fiscal Agent pursuant to the 
Fiscal Agency Agreement. USAID shall be entitled to treat the Persons in 
whose names the Eligible Notes are registered as the owners thereof for 
all purposes of the Guarantee and USAID shall not be affected by notice 
to the contrary.



Sec.  236.7  Fiscal Agent obligations.

    Failure of the Fiscal Agent to perform any of its obligations 
pursuant to the Fiscal Agency Agreement shall not impair any 
Noteholder's rights under the Guarantee, but may be the subject of 
action for damages against the Fiscal Agent by USAID as a result of such 
failure or neglect. A Noteholder may appoint the Fiscal Agent to make 
demand for payment on its behalf under the Guarantee.



Sec.  236.8  Event of Default; Application for Compensation; payment.

    At any time after an Event of Default, as this term is defined in an 
Eligible Note, any Noteholder hereunder, or the Fiscal Agent on behalf 
of a Noteholder hereunder, may file with USAID an Application for 
Compensation in the form provided in Appendix A to this part. USAID 
shall pay or cause to be paid to any such Applicant any compensation 
specified in such Application for Compensation that is due to the 
Applicant pursuant to the Guarantee as a Loss of Investment not later 
than the Guarantee Payment Date. In the event that USAID receives any 
other notice of an Event of Default, USAID may pay any compensation that 
is due to any Noteholder pursuant to the Guarantee, whether or not such 
Noteholder has filed with USAID an Application for Compensation in 
respect of such amount.



Sec.  236.9  No acceleration of Eligible Notes.

    Eligible Notes shall not be subject to acceleration, in whole or in 
part, by USAID, the Noteholder or any other party. USAID shall not have 
the right to pay any amounts in respect of the Eligible Notes other than 
in accordance with the original payment terms of such Eligible Notes.



Sec.  236.10  Payment to USAID of excess amounts received by a Noteholder.

    If a Noteholder shall, as a result of USAID paying compensation 
under the Guarantee, receive an excess payment, it shall refund the 
excess to USAID.



Sec.  236.11  Subrogation of USAID.

    In the event of payment by USAID to a Noteholder under the 
Guarantee, USAID shall be subrogated to the extent of such payment to 
all of the rights of such Noteholder against the Borrower under the 
related Note.



Sec.  236.12  Prosecution of claims.

    After payment by USAID to an Applicant hereunder, USAID shall have 
exclusive power to prosecute all claims related to rights to receive 
payments under the Eligible Notes to which it is thereby subrogated. If 
a Noteholder continues to have an interest in the

[[Page 1075]]

outstanding Eligible Notes, such a Noteholder and USAID shall consult 
with each other with respect to their respective interests in such 
Eligible Notes and the manner of and responsibility for prosecuting 
claims.



Sec.  236.13  Change in agreements.

    No Noteholder will consent to any change or waiver of any provision 
of any document contemplated by the Guarantee without the prior written 
consent of USAID.



Sec.  236.14  Arbitration.

    Any controversy or claim between USAID and any Noteholder arising 
out of the Guarantee shall be settled by arbitration to be held in 
Washington, DC in accordance with the then prevailing rules of the 
American Arbitration Association, and judgment on the award rendered by 
the arbitrators may be entered in any court of competent jurisdiction.



Sec.  236.15  Notice.

    Any communication to USAID pursuant to the Guarantee shall be in 
writing in the English language, shall refer to the Republic of Tunisia 
Loan Guarantee Number inscribed on the Eligible Note and shall be 
complete on the day it shall be actually received by USAID at the Office 
of Development Credit, Bureau for Economic Growth, Education and 
Environment, United States Agency for International Development, 
Washington, DC 20523-0030. Other addresses may be substituted for the 
above upon the giving of notice of such substitution to each Noteholder 
by first class mail at the address set forth in the Note Register.



Sec.  236.16  Governing law.

    The Guarantee shall be governed by and construed in accordance with 
the laws of the United States of America governing contracts and 
commercial transactions of the United States Government.



        Sec. Appendix A to Part 236--Application for Compensation

           United States Agency for International Development

                          Washington, DC 20523

Ref: Guarantee dated as of ___, 20__:
    Gentlemen: You are hereby advised that payment of $____ (consisting 
of $____ of principal, $____ of interest and $____ in Further Guaranteed 
Payments, as defined in Sec.  236.2 of the Standard Terms and Conditions 
of the above-mentioned Guarantee) was due on __________, 20__, on $____ 
Principal Amount of Notes issued by Banque Centrale de Tunisie, acting 
on behalf of the Republic of Tunisia (the ``Borrower'') held by the 
undersigned. Of such amount $____ was not received on such date and has 
not been received by the undersigned at the date hereof. In accordance 
with the terms and provisions of the above-mentioned Guarantee, the 
undersigned hereby applies, under Sec.  236.8 of said Guarantee, for 
payment of $____, representing $____, the Principal Amount of the 
presently outstanding Note(s) of the Borrower held by the undersigned 
that was due and payable on _____ and that remains unpaid, and $____, 
the Interest Amount on such Note(s) that was due and payable by the 
Borrower on ____ and that remains unpaid, and $____ in Further 
Guaranteed Payments,\1\ plus accrued and unpaid interest thereon from 
the date of default with respect to such payments to and including the 
date payment in full is made by you pursuant to said Guarantee, at the 
rate of __ % per annum, being the rate for such interest accrual 
specified in such Note. Such payment is to be made at [state payment 
instructions of Noteholder].
---------------------------------------------------------------------------

    \1\ In the event the Application for Compensation relates to Further 
Guaranteed Payments, such Application must also contain a statement of 
the nature and circumstances of the related loss.
---------------------------------------------------------------------------

    All capitalized terms herein that are not otherwise defined shall 
have the meanings assigned to such terms in the Standard Terms and 
Conditions of the above-mentioned Guarantee.

    [Name of Applicant]
By:_____________________________________________________________________
Name:
Title:
Dated:

[[Page 1076]]



PART 237_UKRAINE LOAN GUARANTEES ISSUED UNDER THE DEPARTMENT OF STATE, 
FOREIGN OPERATIONS, AND RELATED PROGRAMS APPROPRIATIONS ACT OF 2015, 
AND THE SUPPORT FOR THE SOVEREIGNTY, INTEGRITY, DEMOCRACY, 
AND ECONOMIC STABILITY OF UKRAINE ACT OF 2014_STANDARD TERMS 
AND CONDITIONS--Table of Contents



Sec.
237.01 Purpose.
237.02 Definitions.
237.03 The Guarantee.
237.04 Guarantee eligibility.
237.05 Non-impairment of the Guarantee.
237.06 Transferability of Guarantee; Note Register.
237.07 Fiscal Agent obligations.
237.08 Event of Default; Application for Compensation; payment.
237.09 No acceleration of Eligible Notes.
237.10 Payment to USAID of excess amounts received by a Noteholder.
237.11 Subrogation of USAID.
237.12 Prosecution of claims.
237.13 Change in agreements.
237.14 Arbitration.
237.15 Notice.
237.16 Governing law.

Appendix A to Part 237--Application for Compensation

    Authority: Title III of the Department of State, Foreign Operations, 
and Related Programs Appropriations Act, 2015 (Div. J, Pub. L. 113-235); 
and the Support for the Sovereignty, Integrity, Democracy, and Economic 
Stability of Ukraine Act of 2014 (Pub. L. 113-95).

    Source: 80 FR 22642, Apr. 23, 2015, unless otherwise noted.



Sec.  237.01  Purpose.

    The purpose of the regulations in this part is to prescribe the 
procedures and standard terms and conditions applicable to loan 
guarantees issued for the benefit of the Borrower, pursuant to Title III 
of the Department of State, Foreign Operations, and Related Programs 
Appropriations Act, 2015 (Div. J, Pub. L. 113-235) and the Support for 
the Sovereignty, Integrity, Democracy, and Economic Stability of Ukraine 
Act of 2014 (Pub. L. 113-95). The loan guarantees will be issued as 
provided herein pursuant to a Loan Guarantee Agreement to be signed in 
April 2015, between the United States of America and Ukraine (the ``Loan 
Guarantee Agreement''). The loan guarantee will apply to sums borrowed 
during a period beginning on the date that the Loan Guarantee Agreement 
enters into force and ending thirty days after such date, not exceeding 
an aggregate total of one billion United States Dollars ($1,000,000,000) 
in principal amount. The loan guarantees shall ensure the Borrower's 
repayment of 100% of principal and interest due under such borrowings. 
The full faith and credit of the United States of America is pledged for 
the full payment and performance of such guarantee obligations.



Sec.  237.02  Definitions.

    Wherever used in the standard terms and conditions set out in this 
part:
    Applicant means a Noteholder who files an Application for 
Compensation with USAID, either directly or through the Fiscal Agent 
acting on behalf of a Noteholder.
    Application for Compensation means an executed application in the 
form of Appendix A to this part which a Noteholder, or the Fiscal Agent 
on behalf of a Noteholder, files with USAID pursuant to Sec.  237.08.
    Borrower means Ukraine.
    Business Day means any day other than a day on which banks in New 
York, NY are closed or authorized to be closed or a day which is 
observed as a federal holiday in Washington, DC, by the United States 
Government.
    Date of Application means the date on which an Application for 
Compensation is actually received by USAID pursuant to Sec.  237.15.
    Defaulted Payment means, as of any date and in respect of any 
Eligible Note, any Interest Amount and/or Principal Amount not paid when 
due.
    Eligible Note(s) means [a] Note[s] meeting the eligibility criteria 
set out in Sec.  237.04.
    Fiscal Agency Agreement means the agreement among USAID, the 
Borrower and the Fiscal Agent pursuant to which the Fiscal Agent agrees 
to provide fiscal agency and trust services in respect of the Note[s], a 
copy of which Fiscal Agency Agreement shall be made available to 
Noteholders upon request to the Fiscal Agent.

[[Page 1077]]

    Fiscal Agent means the bank or trust company or its duly appointed 
successor under the Fiscal Agency Agreement which has been appointed by 
the Borrower with the consent of USAID to perform certain fiscal agency 
and trust services for specified Eligible Note[s] pursuant to the terms 
of the Fiscal Agency Agreement.
    Further Guaranteed Payments means the amount of any loss suffered by 
a Noteholder by reason of the Borrower's failure to comply on a timely 
basis with any obligation it may have under an Eligible Note to 
indemnify and hold harmless a Noteholder from taxes or governmental 
charges or any expense arising out of taxes or any other governmental 
charges relating to the Eligible Note in the country of the Borrower.
    Guarantee means the guarantee of USAID pursuant to this part 237, 
Title III of the Department of State, Foreign Operations, and Related 
Programs Appropriations Act, 2015 (Div. J, Pub. L. 113-235), and the 
Support for the Sovereignty, Integrity, Democracy, and Economic 
Stability of Ukraine Act of 2014 (Pub. L. 113-95).
    Guarantee Payment Date means a Business Day not more than three (3) 
Business Days after the related Date of Application.
    Interest Amount means for any Eligible Note the amount of interest 
accrued on the Principal Amount of such Eligible Note at the applicable 
Interest Rate.
    Interest Rate means the interest rate borne by an Eligible Note.
    Loss of Investment means, in respect of any Eligible Note, an amount 
in Dollars equal to the total of the:
    (1) Defaulted Payment unpaid as of the Date of Application,
    (2) Further Guaranteed Payments unpaid as of the Date of 
Application, and
    (3) Interest accrued and unpaid at the Interest Rate(s) specified in 
the Eligible Note(s) on the Defaulted Payment and Further Guaranteed 
Payments, in each case from the date of default with respect to such 
payment to and including the date on which full payment thereof is made 
to the Noteholder.
    Note[s] means any debt securities issued by the Borrower.
    Noteholder means the owner of an Eligible Note who is registered as 
such on the Note Register.
    Note Register means the register of Eligible Notes required to be 
maintained by the Fiscal Agent.
    Person means any legal person, including any individual, 
corporation, partnership, joint venture, association, joint stock 
company, trust, unincorporated organization, or government or any agency 
or political subdivision thereof.
    Principal Amount means the principal amount of the Eligible Notes 
issued by the Borrower. For purposes of determining the principal amount 
of the Eligible Notes issued by the Borrower, the principal amount of 
each Eligible Note shall be the stated principal amount thereof.
    USAID means the United States Agency for International Development 
or its successor.



Sec.  237.03  The Guarantee.

    Subject to the terms and conditions set out in this part, the United 
States of America, acting through USAID, guarantees to Noteholders the 
Borrower's repayment of 100 percent of principal and interest due on 
Eligible Notes. Under this Guarantee, USAID agrees to pay to any 
Noteholder compensation in Dollars equal to such Noteholder's Loss of 
Investment under its Eligible Note; provided, however, that no such 
payment shall be made to any Noteholder for any such loss arising out of 
fraud or misrepresentation for which such Noteholder is responsible or 
of which it had knowledge at the time it became such Noteholder. This 
Guarantee shall apply to each Eligible Note registered on the Note 
Register.



Sec.  237.04  Guarantee eligibility.

    (a) Eligible Notes only are guaranteed hereunder. Notes in order to 
achieve Eligible Note status:
    (1) Must be signed on behalf of the Borrower, manually or in 
facsimile, by a duly authorized representative of the Borrower;
    (2) Must contain a certificate of authentication manually executed 
by the Fiscal Agent whose appointment by

[[Page 1078]]

the Borrower is consented to by USAID in the Fiscal Agency Agreement; 
and
    (3) Shall be approved and authenticated by USAID by either:
    (i) The affixing by USAID on the Notes of a guarantee legend 
incorporating these Standard Terms and Conditions signed on behalf of 
USAID by either a manual signature or a facsimile signature of an 
authorized representative of USAID or
    (ii) The delivery by USAID to the Fiscal Agent of a guarantee 
certificate incorporating these Standard Terms and Conditions signed on 
behalf of USAID by either a manual signature or a facsimile signature of 
an authorized representative of USAID.
    (b) The authorized USAID representatives for purposes of the 
regulations in this part whose signature(s) shall be binding on USAID 
shall include the USAID Chief and Deputy Chief Financial Officer; 
Assistant Administrator and Deputy, Bureau for Economic Growth, 
Education, and Environment; Director and Deputy Director, Office of 
Development Credit; and such other individual(s) designated in a 
certificate executed by an authorized USAID Representative and delivered 
to the Fiscal Agent. The certificate of authentication of the Fiscal 
Agent issued pursuant to the Fiscal Agency Agreement shall, when 
manually executed by the Fiscal Agent, be conclusive evidence binding on 
USAID that an Eligible Note has been duly executed on behalf of the 
Borrower and delivered.



Sec.  237.05  Non-impairment of the Guarantee.

    After issuance of a Guarantee, that Guarantee will be an 
unconditional, full faith and credit obligation of the United States of 
America, and will not be affected or impaired by any subsequent 
condition or event. This non-impairment of the guarantee provision shall 
not, however, be operative with respect to any loss arising out of fraud 
or misrepresentation for which the claiming Noteholder is responsible or 
of which it had knowledge at the time it became a Noteholder. Moreover, 
the Guarantee shall not be affected or impaired by:
    (a) Any defect in the authorization, execution, delivery or 
enforceability of any agreement or other document executed by a 
Noteholder, USAID, the Fiscal Agent or the Borrower in connection with 
the transactions contemplated by this Guarantee or
    (b) The suspension or termination of the program pursuant to which 
USAID is authorized to guarantee the Eligible Notes.



Sec.  237.06  Transferability of Guarantee; Note Register.

    A Noteholder may assign, transfer or pledge an Eligible Note to any 
Person. Any such assignment, transfer or pledge shall be effective on 
the date that the name of the new Noteholder is entered on the Note 
Register. USAID shall be entitled to treat the Persons in whose names 
the Eligible Notes are registered as the owners thereof for all purposes 
of this Guarantee and USAID shall not be affected by notice to the 
contrary.



Sec.  237.07  Fiscal Agent obligations.

    Failure of the Fiscal Agent to perform any of its obligations 
pursuant to the Fiscal Agency Agreement shall not impair any 
Noteholder's rights under this Guarantee, but may be the subject of 
action for damages against the Fiscal Agent by USAID as a result of such 
failure or neglect. A Noteholder may appoint the Fiscal Agent to make 
demand for payment on its behalf under this Guarantee.



Sec.  237.08  Event of Default; Application for Compensation; payment.

    At any time after an Event of Default, as this term is defined in an 
Eligible Note, any Noteholder hereunder, or the Fiscal Agent on behalf 
of a Noteholder hereunder, may file with USAID an Application for 
Compensation in the form provided in Appendix A to this part. USAID 
shall pay or cause to be paid to any such Applicant any compensation 
specified in such Application for Compensation that is due to the 
Applicant pursuant to the Guarantee as a Loss of Investment not later 
than the Guarantee Payment Date. In the event that USAID receives any 
other notice of an Event of Default, USAID may pay any compensation that 
is due to any Noteholder pursuant to a Guarantee, whether or not such

[[Page 1079]]

Noteholder has filed with USAID an Application for Compensation in 
respect of such amount.



Sec.  237.09  No acceleration of Eligible Notes.

    Eligible Notes shall not be subject to acceleration, in whole or in 
part, by USAID, the Noteholder or any other party. USAID shall not have 
the right to pay any amounts in respect of the Eligible Notes other than 
in accordance with the original payment terms of such Eligible Notes.



Sec.  237.10  Payment to USAID of excess amounts received by a Noteholder.

    If a Noteholder shall, as a result of USAID paying compensation 
under this Guarantee, receive an excess payment, it shall refund the 
excess to USAID.



Sec.  237.11  Subrogation of USAID.

    In the event of payment by USAID to a Noteholder under this 
Guarantee, USAID shall be subrogated to the extent of such payment to 
all of the rights of such Noteholder against the Borrower under the 
related Note.



Sec.  237.12  Prosecution of claims.

    After payment by USAID to an Applicant hereunder, USAID shall have 
exclusive power to prosecute all claims related to rights to receive 
payments under the Eligible Notes to which it is thereby subrogated. If 
a Noteholder continues to have an interest in the outstanding Eligible 
Notes, such a Noteholder and USAID shall consult with each other with 
respect to their respective interests in such Eligible Notes and the 
manner of and responsibility for prosecuting claims.



Sec.  237.13  Change in agreements.

    No Noteholder will consent to any change or waiver of any provision 
of any document contemplated by this Guarantee without the prior written 
consent of USAID.



Sec.  237.14  Arbitration.

    Any controversy or claim between USAID and any Noteholder arising 
out of this Guarantee shall be settled by arbitration to be held in 
Washington, DC in accordance with the then prevailing rules of the 
American Arbitration Association, and judgment on the award rendered by 
the arbitrators may be entered in any court of competent jurisdiction.



Sec.  237.15  Notice.

    Any communication to USAID pursuant to this Guarantee shall be in 
writing in the English language, shall refer to the Ukraine Loan 
Guarantee Number inscribed on the Eligible Note and shall be complete on 
the day it shall be actually received by USAID at the Office of 
Development Credit, Bureau for Economic Growth, Education and 
Environment, United States Agency for International Development, 
Washington, DC 20523-0030. Other addresses may be substituted for the 
above upon the giving of notice of such substitution to each Noteholder 
by first class mail at the address set forth in the Note Register.



Sec.  237.16  Governing law.

    This Guarantee shall be governed by and construed in accordance with 
the laws of the United States of America governing contracts and 
commercial transactions of the United States Government.



        Sec. Appendix A to Part 237--Application for Compensation

           United States Agency for International Development

                          Washington, DC 20523

    Ref: Guarantee dated as of ____, 20__:
    Gentlemen: You are hereby advised that payment of $___ (consisting 
of $___ of principal, $___ of interest and $___ in Further Guaranteed 
Payments, as defined in Sec.  237.02 of the Standard Terms and 
Conditions of the above-mentioned Guarantee) was due on ______, 20__, on 
$___ Principal Amount of Notes issued by Ukraine (the ``Borrower'') held 
by the undersigned. Of such amount $___ was not received on such date 
and has not been received by the undersigned at the date hereof. In 
accordance with the terms and provisions of the above-mentioned 
Guarantee, the undersigned hereby applies, under Sec.  237.08 of said 
Guarantee, for payment of $___, representing $___, the Principal Amount 
of the presently outstanding Note(s) of the Borrower held by the 
undersigned that was due and payable on ___ and that remains unpaid, and 
$___, the Interest Amount on such

[[Page 1080]]

Note(s) that was due and payable by the Borrower on ___ and that remains 
unpaid, and $___ in Further Guaranteed Payments,\1\ plus accrued and 
unpaid interest thereon from the date of default with respect to such 
payments to and including the date payment in full is made by you 
pursuant to said Guarantee, at the rate of __ % per annum, being the 
rate for such interest accrual specified in such Note. Such payment is 
to be made at [state payment instructions of Noteholder or Fiscal Agent, 
as applicable].
---------------------------------------------------------------------------

    \1\ In the event the Application for Compensation relates to Further 
Guaranteed Payments, such Application must also contain a statement of 
the nature and circumstances of the related loss.
---------------------------------------------------------------------------

    All capitalized terms herein that are not otherwise defined shall 
have the meanings assigned to such terms in the Standard Terms and 
Conditions of the above-mentioned Guarantee.

[Name of Applicant]
By:_____________________________________________________________________
Name:___________________________________________________________________
Title:__________________________________________________________________
Dated:__________________________________________________________________



  PART 238_HASHEMITE KINGDOM OF JORDAN LOAN GUARANTEES ISSUED 
  UNDER THE DEPARTMENT OF STATE, FOREIGN OPERATIONS, AND RELATED PROGRAMS 
  APPROPRIATIONS ACT, 2015_STANDARD TERMS AND CONDITIONS--Table of Contents



Sec.
238.1 Purpose.
238.2 Definitions.
238.3 The Guarantee.
238.4 Guarantee eligibility.
238.5 Non-impairment of the Guarantee.
238.6 Transferability of Guarantee; Note Register.
238.7 Fiscal Agent obligations.
238.8 Event of Default; Application for Compensation; payment.
238.9 No acceleration of Eligible Notes.
238.10 Payment to USAID of excess amounts received by a Noteholder.
238.11 Subrogation of USAID.
238.12 Prosecution of claims.
238.13 Change in agreements.
238.14 Arbitration.
238.15 Notice.
238.16 Governing Law.

Appendix A to Part 238--Application for Compensation

    Authority: Sec. 7034(r) of the Department of State, Foreign 
Operations, and Related Programs Appropriations Act, 2015 (Div. J, Pub. 
L. 113-235).

    Source: 80 FR 36237, June 24, 2015, unless otherwise noted.



Sec.  238.1  Purpose.

    The purpose of the regulations in this part is to prescribe the 
procedures and standard terms and conditions applicable to loan 
guarantees issued for the benefit of the Borrower, pursuant to section 
7034(r) of the Department of State, Foreign Operations, and Related 
Programs Appropriations Act, 2015 (Div. J, Pub. L. 113-235). The loan 
guarantees will be issued as provided herein pursuant to the Loan 
Guarantee Agreement, dated May 31, 2015, between the United States of 
America and the Hashemite Kingdom of Jordan (the ``Loan Guarantee 
Agreement''). The loan guarantee will apply to sums borrowed during a 
period beginning on the date that the Loan Guarantee Agreement enters 
into force and ending thirty days after such date, not exceeding an 
aggregate total of one billion five hundred million United States 
Dollars ($1,500,000,000) in principal amount. The loan guarantees shall 
ensure the Borrower's repayment of 100% of principal and interest due 
under such loans. The full faith and credit of the United States of 
America is pledged for the full payment and performance of such 
guarantee obligations.



Sec.  238.2  Definitions.

    Wherever used in the standard terms and conditions set out in this 
part:
    Applicant means a Noteholder who files an Application for 
Compensation with USAID, either directly or through the Fiscal Agent 
acting on behalf of a Noteholder.
    Application for Compensation means an executed application in the 
form of Appendix A to this part which a Noteholder, or the Fiscal Agent 
on behalf of a Noteholder, files with USAID pursuant to Sec.  238.8.
    Borrower means the Hashemite Kingdom of Jordan.
    Business Day means any day other than a day on which banks in New 
York, NY are closed or authorized to be closed or a day which is 
observed as a federal holiday in Washington, DC, by the United States 
Government.

[[Page 1081]]

    Date of Application means the date on which an Application for 
Compensation is actually received by USAID pursuant to Sec.  238.15.
    Defaulted Payment means, as of any date and in respect of any 
Eligible Note, any Interest Amount and/or Principal Amount not paid when 
due.
    Eligible Note(s) means [a] Note[s] meeting the eligibility criteria 
set out in Sec.  238.4 issued in one or more series.
    Fiscal Agency Agreement means the agreement among USAID, the 
Borrower and the Fiscal Agent pursuant to which the Fiscal Agent agrees 
to provide fiscal agency services in respect of the Note[s], a copy of 
which Fiscal Agency Agreement shall be made available to Noteholders 
upon request to the Fiscal Agent.
    Fiscal Agent means the bank or trust company or its duly appointed 
successor under the Fiscal Agency Agreement which has been appointed by 
the Borrower with the consent of USAID to perform certain fiscal agency 
services for specified Eligible Note[s] pursuant to the terms of the 
Fiscal Agency Agreement.
    Further Guaranteed Payments means the amount of any loss suffered by 
a Noteholder by reason of the Borrower's failure to comply on a timely 
basis with any obligation it may have under an Eligible Note to 
indemnify and hold harmless a Noteholder from taxes or governmental 
charges or any expense arising out of taxes or any other governmental 
charges relating to the Eligible Note in the country of the Borrower.
    Guarantee means the guarantee of USAID issued pursuant to this part 
and Section 7034(r) of the Department of State, Foreign Operations, and 
Related Programs Appropriations Act, 2015 (Div. J, Pub. L. 113-235).
    Guarantee Payment Date means a Business Day not more than three (3) 
Business Days after the related Date of Application.
    Interest Amount means for any Eligible Note the amount of interest 
accrued on the Principal Amount of such Eligible Note at the applicable 
Interest Rate.
    Interest Rate means the interest rate borne by an Eligible Note.
    Loss of Investment means, in respect of any Eligible Note, an amount 
in Dollars equal to the total of the:
    (1) Defaulted Payment unpaid as of the Date of Application,
    (2) Further Guaranteed Payments unpaid as of the Date of 
Application, and
    (3) Interest accrued and unpaid at the Interest Rate(s) specified in 
the Eligible Note(s) on the Defaulted Payment and Further Guaranteed 
Payments, in each case from the date of default with respect to such 
payment to and including the date on which full payment thereof is made 
to the Noteholder.
    Note[s] means any debt securities issued by the Borrower in one or 
more series.
    Noteholder means the owner of an Eligible Note who is registered as 
such on the Note Register.
    Note Register means the register of Eligible Notes required to be 
maintained by the Fiscal Agent.
    Person means any legal person, including any individual, 
corporation, partnership, joint venture, association, joint stock 
company, trust, unincorporated organization, or government or any agency 
or political subdivision thereof.
    Principal Amount means the principal amount of the Eligible Notes 
issued by the Borrower. For purposes of determining the principal amount 
of the Eligible Notes issued by the Borrower, the principal amount of 
each Eligible Note shall be the stated principal amount thereof.
    USAID means the United States Agency for International Development 
or its successor.



Sec.  238.3  The Guarantee.

    Subject to the terms and conditions set out in this part, the United 
States of America, acting through USAID, guarantees to Noteholders the 
Borrower's repayment of 100 percent of principal and interest due on 
each series of Eligible Notes. Under the Guarantee, USAID agrees to pay 
to any Noteholder compensation in Dollars equal to such Noteholder's 
Loss of Investment under its Eligible Note; provided, however, that no 
such payment shall be made to any Noteholder for any such loss arising 
out of fraud or misrepresentation for which such

[[Page 1082]]

Noteholder is responsible or of which it had knowledge at the time it 
became such Noteholder. The Guarantee shall apply to each Eligible Note 
registered on the Note Register required to be maintained by the Fiscal 
Agent.



Sec.  238.4  Guarantee eligibility.

    (a) Eligible Notes only are guaranteed hereunder. Notes, in order to 
achieve Eligible Note status:
    (1) Must be signed on behalf of the Borrower, manually or in 
facsimile, by a duly authorized representative of the Borrower;
    (2) Must contain a certificate of authentication manually executed 
by a Fiscal Agent whose appointment by the Borrower is consented to by 
USAID in the Fiscal Agency Agreement; and
    (3) Shall be approved and authenticated by USAID by either:
    (i) The affixing by USAID on the Notes of a guarantee legend 
incorporating these Standard Terms and Conditions signed on behalf of 
USAID by either a manual signature or a facsimile signature of an 
authorized representative of USAID or
    (ii) The delivery by USAID to the Fiscal Agent of a guarantee 
certificate incorporating these Standard Terms and Conditions signed on 
behalf of USAID by either a manual signature or a facsimile signature of 
an authorized representative of USAID.
    (b) The authorized USAID representatives for purposes of the 
regulations in this part whose signature(s) shall be binding on USAID 
shall include the USAID Chief and Deputy Chief Financial Officer, 
Assistant Administrator and Deputy, Bureau for Economic Growth, 
Education, and Environment, Director and Deputy Director, Office of 
Development Credit, and such other individual(s) designated in a 
certificate executed by an authorized USAID Representative and delivered 
to the Fiscal Agent. The certificate of authentication of the Fiscal 
Agent issued pursuant to the Fiscal Agency Agreement shall, when 
manually executed by the Fiscal Agent, be conclusive evidence binding on 
USAID that an Eligible Note has been duly executed on behalf of the 
Borrower and delivered.



Sec.  238.5  Non-impairment of the Guarantee.

    After issuance of the Guarantee, the Guarantee will be an 
unconditional, full faith and credit obligation of the United States of 
America and will not be affected or impaired by any subsequent condition 
or event. This non-impairment of the guarantee provision shall not, 
however, be operative with respect to any loss arising out of fraud or 
misrepresentation for which the claiming Noteholder is responsible or of 
which it had knowledge at the time it became a Noteholder. In particular 
and without limitation, the Guarantee shall not be affected or impaired 
by:
    (a) Any defect in the authorization, execution, delivery or 
enforceability of any agreement or other document executed by a 
Noteholder, USAID, the Fiscal Agent or the Borrower in connection with 
the transactions contemplated by this Guarantee or
    (b) The suspension or termination of the program pursuant to which 
USAID is authorized to guarantee the Eligible Notes.



Sec.  238.6  Transferability of Guarantee; Note Register.

    A Noteholder may assign, transfer or pledge an Eligible Note to any 
Person. Any such assignment, transfer or pledge shall be effective on 
the date that the name of the new Noteholder is entered on the Note 
Register required to be maintained by the Fiscal Agent pursuant to the 
Fiscal Agency Agreement. USAID shall be entitled to treat the Persons in 
whose names the Eligible Notes are registered as the owners thereof for 
all purposes of the Guarantee, and USAID shall not be affected by notice 
to the contrary.



Sec.  238.7  Fiscal Agent obligations.

    Failure of the Fiscal Agent to perform any of its obligations 
pursuant to the Fiscal Agency Agreement shall not impair any 
Noteholder's rights under the Guarantee but may be the subject of action 
for damages against the Fiscal Agent by USAID as a result of such 
failure or neglect. A Noteholder may appoint the Fiscal Agent to make 
demand for payment on its behalf under the Guarantee.

[[Page 1083]]



Sec.  238.8  Event of Default; Application for Compensation; payment.

    At any time after an Event of Default, as this term is defined in an 
Eligible Note, any Noteholder hereunder, or the Fiscal Agent on behalf 
of a Noteholder hereunder, may file with USAID an Application for 
Compensation in the form provided in Appendix A to this part. USAID 
shall pay or cause to be paid to any such Applicant any compensation 
specified in such Application for Compensation that is due to the 
Applicant pursuant to the Guarantee as a Loss of Investment not later 
than the Guarantee Payment Date. In the event that USAID receives any 
other notice of an Event of Default, USAID may pay any compensation that 
is due to any Noteholder pursuant to the Guarantee, whether or not such 
Noteholder has filed with USAID an Application for Compensation in 
respect of such amount.



Sec.  238.9  No acceleration of Eligible Notes.

    Eligible Notes shall not be subject to acceleration, in whole or in 
part, by USAID, the Noteholder or any other party. USAID shall not have 
the right to pay any amounts in respect of the Eligible Notes other than 
in accordance with the original payment terms of such Eligible Notes.



Sec.  238.10  Payment to USAID of excess amounts received by a Noteholder.

    If a Noteholder shall, as a result of USAID paying compensation 
under the Guarantee, receive an excess payment, it shall refund the 
excess to USAID.



Sec.  238.11  Subrogation of USAID.

    In the event of payment by USAID to a Noteholder under the 
Guarantee, USAID shall be subrogated to the extent of such payment to 
all of the rights of such Noteholder against the Borrower under the 
related Note.



Sec.  238.12  Prosecution of claims.

    After payment by USAID to an Applicant hereunder, USAID shall have 
exclusive power to prosecute all claims related to rights to receive 
payments under the Eligible Notes to which it is thereby subrogated. If 
a Noteholder continues to have an interest in the outstanding Eligible 
Notes, such Noteholder and USAID shall consult with each other with 
respect to their respective interests in such Eligible Notes and the 
manner of and responsibility for prosecuting claims.



Sec.  238.13  Change in agreements.

    No Noteholder will consent to any change or waiver of any provision 
of any document contemplated by the Guarantee without the prior written 
consent of USAID.



Sec.  238.14  Arbitration.

    Any controversy or claim between USAID and a Noteholder arising out 
of the Guarantee shall be settled by arbitration to be held in 
Washington, DC in accordance with the then prevailing rules of the 
American Arbitration Association, and judgment on the award rendered by 
the arbitrators may be entered in any court of competent jurisdiction.



Sec.  238.15  Notice.

    Any communication to USAID pursuant to the Guarantee shall be in 
writing in the English language, shall refer to the Hashemite Kingdom of 
Jordan Loan Guarantee Number inscribed on the Eligible Note and shall be 
complete on the day it shall be actually received by USAID at the Office 
of Development Credit, Bureau for Economic Growth, Education and 
Environment, United States Agency for International Development, 
Washington, DC 20523-0030. Other addresses may be substituted for the 
above upon the giving of notice of such substitution to each Noteholder 
by first class mail at the address set forth in the Note Register.



Sec.  238.16  Governing Law.

    The Guarantee shall be governed by and construed in accordance with 
the laws of the United States of America governing contracts and 
commercial transactions of the United States Government.

[[Page 1084]]



        Sec. Appendix A to Part 238--Application for Compensation

           United States Agency for International Development

                          Washington, DC 20523

Ref: Guarantee dated as of __, 20 _:
    Gentlemen: You are hereby advised that payment of $__ (consisting of 
$__ of principal, $__ of interest and $__ in Further Guaranteed 
Payments, as defined in Sec.  238.2 of the Standard Terms and Conditions 
of the above-mentioned Guarantee) was due on __, 20 __, on $__ Principal 
Amount of Notes issued by Hashemite Kingdom of Jordan (the ``Borrower'') 
held by the undersigned. Of such amount $__ was not received on such 
date and has not been received by the undersigned at the date hereof. In 
accordance with the terms and provisions of the above-mentioned 
Guarantee, the undersigned hereby applies, under Sec.  238.8 of said 
Guarantee, for payment of $__, representing $__, the Principal Amount of 
the presently outstanding Note(s) of the Borrower held by the 
undersigned that was due and payable on __ and that remains unpaid, and 
$__, the Interest Amount on such Note(s) that was due and payable by the 
Borrower on __ and that remains unpaid, and $__ in Further Guaranteed 
Payments,\1\ plus accrued and unpaid interest thereon from the date of 
default with respect to such payments to and including the date payment 
in full is made by you pursuant to said Guarantee, at the rate of __% 
per annum, being the rate for such interest accrual specified in such 
Note. Such payment is to be made at [state payment instructions of 
Noteholder].
---------------------------------------------------------------------------

    \1\ In the event the Application for Compensation relates to Further 
Guaranteed Payments, such Application must also contain a statement of 
the nature and circumstances of the related loss.
---------------------------------------------------------------------------

    All capitalized terms herein that are not otherwise defined shall 
have the meanings assigned to such terms in the Standard Terms and 
Conditions of the above-mentioned Guarantee.

[Name of Applicant]

By:_____________________________________________________________________

Name:
Title:
Dated:



 PART 239_REPUBLIC OF TUNISIA LOAN GUARANTEES ISSUED UNDER SECTION 7034(o) 
 OF THE DEPARTMENT OF STATE, FOREIGN OPERATIONS, AND RELATED 
 PROGRAMS APPROPRIATIONS ACT OF 2016--Table of Contents



Sec.
239.1 Purpose.
239.2 Definitions.
239.3 The Guarantee.
239.4 Guarantee eligibility.
239.5 Non-impairment of the Guarantee.
239.6 Transferability of Guarantee; Note Register.
239.7 Fiscal Agent obligations.
239.8 Event of Default; Application for Compensation; payment.
239.9 No acceleration of Eligible Notes.
239.10 Payment to USAID of excess amounts received by a Noteholder.
239.11 Subrogation of USAID.
239.12 Prosecution of claims.
239.13 Change in agreements.
239.14 Arbitration.
239.15 Notice.
239.16 Governing law.

Appendix A to Part 239--Application for Compensation

    Authority: Section 7034(o) of the Department of State, Foreign 
Operations, and Related Programs Appropriations Act, 2016 (Div. K, Pub. 
L. 114-113)

    Source: 81 FR 50618, Aug. 2, 2016, unless otherwise noted.



Sec.  239.1  Purpose.

    The purpose of the regulations in this part is to prescribe the 
procedures and standard terms and conditions applicable to loan 
guarantees issued for the benefit of the Borrower, pursuant Section 
7034(o) of the Department of State, Foreign Operations, and Related 
Programs Appropriations Act, 2016 (Div. K, Pub. L. 114-113). The loan 
guarantees will be issued as provided herein pursuant to the Loan 
Guarantee Agreement, dated June 6, 2016, between the United States of 
America and the Republic of Tunisia (the ``Loan Guarantee Agreement''). 
The loan guarantee will apply to sums borrowed during a period beginning 
on the date that the Loan Guarantee Agreement enters into force and 
ending thirty days after such date, not exceeding an aggregate total of 
five hundred million United States Dollars (U.S. $500,000,000) in 
principal

[[Page 1085]]

amount. The loan guarantees shall ensure the Borrower's repayment of 
100% of principal and interest due under such loans. The full faith and 
credit of the United States of America is pledged for the full payment 
and performance of such guarantee obligations.



Sec.  239.2  Definitions.

    Wherever used in the standard terms and conditions set out in this 
part:
    Applicant means a Noteholder who files an Application for 
Compensation with USAID, either directly or through the Fiscal Agent 
acting on behalf of a Noteholder.
    Application for Compensation means an executed application in the 
form of Appendix A to this part which a Noteholder, or the Fiscal Agent 
on behalf of a Noteholder, files with USAID pursuant to Sec.  239.8.
    Borrower means Banque Centrale de Tunisie, acting on behalf of 
Republic of Tunisia.
    Business Day means any day other than a day on which banks in New 
York, NY are closed or authorized to be closed or a day which is 
observed as a Federal holiday in Washington, DC, by the United States 
Government.
    Date of Application means the date on which an Application for 
Compensation is actually received by USAID pursuant to Sec.  239.15.
    Defaulted Payment means, as of any date and in respect of any 
Eligible Note, any Interest Amount and/or Principal Amount not paid when 
due.
    Eligible Note(s) means [a] Note[s] meeting the eligibility criteria 
set out in Sec.  239.4.
    Fiscal Agency Agreement means the agreement among USAID, the 
Borrower and the Fiscal Agent pursuant to which the Fiscal Agent agrees 
to provide fiscal agency services in respect of the Note[s], a copy of 
which Fiscal Agency Agreement shall be made available to Noteholders 
upon request to the Fiscal Agent.
    Fiscal Agent means the bank or trust company or its duly appointed 
successor under the Fiscal Agency Agreement which has been appointed by 
the Borrower with the consent of USAID to perform certain fiscal agency 
services for specified Eligible Note[s] pursuant to the terms of the 
Fiscal Agency Agreement.
    Further Guaranteed Payments means the amount of any loss suffered by 
a Noteholder by reason of the Borrower's failure to comply on a timely 
basis with any obligation it may have under an Eligible Note to 
indemnify and hold harmless a Noteholder from taxes or governmental 
charges or any expense arising out of taxes or any other governmental 
charges relating to the Eligible Note in the country of the Borrower.
    Guarantee means the guarantee of USAID issued pursuant to this part 
and Section 7034(o) of the Department of State, Foreign Operations, and 
Related Programs Appropriations Act, 2016 (Div. K, Pub. L. 114-113).
    Guarantee Payment Date means a Business Day not more than three (3) 
Business Days after the related Date of Application.
    Interest Amount means for any Eligible Note the amount of interest 
accrued on the Principal Amount of such Eligible Note at the applicable 
Interest Rate.
    Interest Rate means the interest rate borne by an Eligible Note.
    Loss of Investment means, in respect of any Eligible Note, an amount 
in United States Dollars equal to the total of the:
    (1) Defaulted Payment unpaid as of the Date of Application,
    (2) Further Guaranteed Payments unpaid as of the Date of 
Application, and
    (3) Interest accrued and unpaid at the Interest Rate(s) specified in 
the Eligible Note(s) on the Defaulted Payment and Further Guaranteed 
Payments, in each case from the date of default with respect to such 
payment to and including the date on which full payment thereof is made 
to the Noteholder.
    Note[s] means any debt securities issued by the Borrower.
    Noteholder means the owner of an Eligible Note who is registered as 
such on the Note Register.
    Note Register means the register of Eligible Notes required to be 
maintained by the Fiscal Agent.
    Person means any legal person, including any individual, 
corporation, partnership, joint venture, association,

[[Page 1086]]

joint stock company, trust, unincorporated organization, or government 
or any agency or political subdivision thereof.
    Principal amount means the principal amount of the Eligible Notes 
issued by the Borrower. For purposes of determining the principal amount 
of the Eligible Notes issued by the Borrower, the principal amount of 
each Eligible Note shall be the stated principal amount thereof.
    USAID means the United States Agency for International Development 
or its successor.



Sec.  239.3  The Guarantee.

    Subject to the terms and conditions set out in this part, the United 
States of America, acting through USAID, guarantees to Noteholders the 
Borrower's repayment of 100 percent of principal and interest due on 
Eligible Notes. Under the Guarantee, USAID agrees to pay to any 
Noteholder compensation in United States Dollars equal to such 
Noteholder's Loss of Investment under its Eligible Note; provided, 
however, that no such payment shall be made to any Noteholder for any 
such loss arising out of fraud or misrepresentation for which such 
Noteholder is responsible or of which it had knowledge at the time it 
became such Noteholder. The Guarantee shall apply to each Eligible Note 
registered on the Note Register required to be maintained by the Fiscal 
Agent.



Sec.  239.4  Guarantee eligibility.

    (a) Eligible Notes only are guaranteed hereunder. Notes in order to 
achieve Eligible Note status:
    (1) Must be signed on behalf of the Borrower, manually or in 
facsimile, by a duly authorized representative of the Borrower;
    (2) Must contain a certificate of authentication manually executed 
by a Fiscal Agent whose appointment by the Borrower is consented to by 
USAID in the Fiscal Agency Agreement; and
    (3) Shall be approved and authenticated by USAID by either:
    (i) The affixing by USAID on the Notes of a guarantee legend 
incorporating these Standard Terms and Conditions signed on behalf of 
USAID by either a manual signature or a facsimile signature of an 
authorized representative of USAID or
    (ii) The delivery by USAID to the Fiscal Agent of a guarantee 
certificate incorporating these Standard Terms and Conditions signed on 
behalf of USAID by either a manual signature or a facsimile signature of 
an authorized representative of USAID.
    (b) The authorized USAID representatives for purposes of the 
regulations in this part whose signature(s) shall be binding on USAID 
shall include the USAID Chief and Deputy Chief Financial Officer, 
Assistant Administrator and Deputy, Bureau for Economic Growth, 
Education, and Environment, Director and Deputy Director, Office of 
Development Credit, and such other individual(s) designated in a 
certificate executed by an authorized USAID Representative and delivered 
to the Fiscal Agent. The certificate of authentication of the Fiscal 
Agent issued pursuant to the Fiscal Agency Agreement shall, when 
manually executed by the Fiscal Agent, be conclusive evidence binding on 
USAID that an Eligible Note has been duly executed on behalf of the 
Borrower and delivered.



Sec.  239.5  Non-impairment of the Guarantee.

    After issuance of the Guarantee, the Guarantee will be an 
unconditional, full faith and credit obligation of the United States of 
America and will not be affected or impaired by any subsequent condition 
or event. This non-impairment of the guarantee provision shall not, 
however, be operative with respect to any loss arising out of fraud or 
misrepresentation for which the claiming Noteholder is responsible or of 
which it had knowledge at the time it became a Noteholder. In particular 
and without limitation, the Guarantee shall not be affected or impaired 
by:
    (a) Any defect in the authorization, execution, delivery or 
enforceability of any agreement or other document executed by a 
Noteholder, USAID, the Fiscal Agent or the Borrower in connection with 
the transactions contemplated by this Guarantee or
    (b) The suspension or termination of the program pursuant to which 
USAID is authorized to guarantee the Eligible Notes.

[[Page 1087]]



Sec.  239.6  Transferability of Guarantee; Note Register.

    A Noteholder may assign, transfer or pledge an Eligible Note to any 
Person, provided that such transfer is permitted under applicable law 
and regulation, including, without limitation, the Office of Foreign 
Asset Control (OFAC) regulations. Any such assignment, transfer or 
pledge shall be effective on the date that the name of the new 
Noteholder is entered on the Note Register required to be maintained by 
the Fiscal Agent pursuant to the Fiscal Agency Agreement. USAID shall be 
entitled to treat the Persons in whose names the Eligible Notes are 
registered as the owners thereof for all purposes of the Guarantee, and 
USAID shall not be affected by notice to the contrary.



Sec.  239.7  Fiscal Agent obligations.

    Failure of the Fiscal Agent to perform any of its obligations 
pursuant to the Fiscal Agency Agreement shall not impair any 
Noteholder's rights under the Guarantee, but may be the subject of 
action for damages against the Fiscal Agent by USAID as a result of such 
failure or neglect. A Noteholder may appoint the Fiscal Agent to make 
demand for payment on its behalf under the Guarantee.



Sec.  239.8  Event of Default; Application for Compensation; payment.

    At any time after an Event of Default, as this term is defined in an 
Eligible Note, any Noteholder hereunder, or the Fiscal Agent on behalf 
of a Noteholder hereunder, may file with USAID an Application for 
Compensation in the form provided in Appendix A to this part. USAID 
shall pay or cause to be paid to any such Applicant any compensation 
specified in such Application for Compensation that is due to the 
Applicant pursuant to the Guarantee as a Loss of Investment not later 
than the Guarantee Payment Date. In the event that USAID receives any 
other notice of an Event of Default, USAID may pay any compensation that 
is due to any Noteholder pursuant to the Guarantee, whether or not such 
Noteholder has filed with USAID an Application for Compensation in 
respect of such amount.



Sec.  239.9  No acceleration of Eligible Notes.

    Eligible Notes shall not be subject to acceleration, in whole or in 
part, by USAID, the Noteholder or any other party. USAID shall not have 
the right to pay any amounts in respect of the Eligible Notes other than 
in accordance with the original payment terms of such Eligible Notes.



Sec.  239.10  Payment to USAID of excess amounts received by a Noteholder.

    If a Noteholder shall, as a result of USAID paying compensation 
under the Guarantee, receive an excess payment, it shall refund the 
excess to USAID.



Sec.  239.11  Subrogation of USAID.

    In the event of payment by USAID to a Noteholder under the 
Guarantee, USAID shall be subrogated to the extent of such payment to 
all of the rights of such Noteholder against the Borrower under the 
related Note.



Sec.  239.12  Prosecution of claims.

    After payment by USAID to an Applicant hereunder, USAID shall have 
exclusive power to prosecute all claims related to rights to receive 
payments under the Eligible Notes to which it is thereby subrogated. If 
a Noteholder continues to have an interest in the outstanding Eligible 
Notes, such a Noteholder and USAID shall consult with each other with 
respect to their respective interests in such Eligible Notes and the 
manner of and responsibility for prosecuting claims.



Sec.  239.13  Change in agreements.

    No Noteholder will consent to any change or waiver of any provision 
of any document contemplated by the Guarantee without the prior written 
consent of USAID.



Sec.  239.14  Arbitration.

    Any controversy or claim between USAID and any Noteholder arising 
out of the Guarantee shall be settled by arbitration to be held in 
Washington, DC in accordance with the then prevailing rules of the 
American Arbitration Association, and judgment on the award

[[Page 1088]]

rendered by the arbitrators may be entered in any court of competent 
jurisdiction.



Sec.  239.15  Notice.

    Any communication to USAID pursuant to the Guarantee shall be in 
writing in the English language, shall refer to the Republic of Tunisia 
Loan Guarantee Number inscribed on the Eligible Note and shall be 
complete on the day it shall be actually received by USAID at the Office 
of Development Credit, Bureau for Economic Growth, Education and 
Environment, United States Agency for International Development, 
Washington, DC 20523-0030. Other addresses may be substituted for the 
above upon the giving of notice of such substitution to each Noteholder 
by first class mail at the address set forth in the Note Register.



Sec.  239.16  Governing law.

    The Guarantee shall be governed by and construed in accordance with 
the laws of the United States of America governing contracts and 
commercial transactions of the United States Government.



        Sec. Appendix A to Part 239--Application for Compensation

                      Application for Compensation

           United States Agency for International Development

                          Washington, DC 20523

Ref: Guarantee dated as of __, 20__:

    Gentlemen: You are hereby advised that payment of $__ (consisting of 
$__ of principal, $__ of interest and $__ in Further Guaranteed 
Payments, as defined in Sec.  239.2 of the Standard Terms and Conditions 
of the above-mentioned Guarantee) was due on ____, 20_, on $__ Principal 
Amount of Notes issued by Banque Centrale de Tunisie, acting on behalf 
of the Republic of Tunisia (the ``Borrower'') held by the undersigned. 
Of such amount $__ was not received on such date and has not been 
received by the undersigned at the date hereof. In accordance with the 
terms and provisions of the above-mentioned Guarantee, the undersigned 
hereby applies, under Sec.  239.8 of said Guarantee, for payment of $__, 
representing $__, the Principal Amount of the presently outstanding 
Note(s) of the Borrower held by the undersigned that was due and payable 
on __ and that remains unpaid, and $__, the Interest Amount on such 
Note(s) that was due and payable by the Borrower on __ and that remains 
unpaid, and $__ in Further Guaranteed Payments,\1\ plus accrued and 
unpaid interest thereon from the date of default with respect to such 
payments to and including the date payment in full is made by you 
pursuant to said Guarantee, at the rate of _% per annum, being the rate 
for such interest accrual specified in such Note. Such payment is to be 
made at [state payment instructions of Noteholder].
---------------------------------------------------------------------------

    \1\ In the event the Application for Compensation relates to Further 
Guaranteed Payments, such Application must also contain a statement of 
the nature and circumstances of the related loss.
---------------------------------------------------------------------------

    All capitalized terms herein that are not otherwise defined shall 
have the meanings assigned to such terms in the Standard Terms and 
Conditions of the above-mentioned Guarantee.

By:_____________________________________________________________________

Gayle Girod,

Assistant General Counsel
Office of the General Counsel
U.S. Agency for International Development

July 27, 2016.



PART 240_SOVEREIGN LOAN GUARANTEE_STANDARD TERMS AND CONDITIONS--
Table of Contents



Sec.
240.1 Purpose.
240.2 Definitions.
240.3 The Guarantee.
240.4 Guarantee eligibility.
240.5 Non-impairment of the Guarantee.
240.6 Transferability of Guarantee; Note Register.
240.7 Fiscal Agent obligations.
240.8 Event of Default; Application for Compensation; payment.
240.9 No acceleration of Eligible Notes.
240.10 Payment to USAID of excess amounts received by a Noteholder.
240.11 Subrogation of USAID.
240.12 Prosecution of claims.
240.13 Change in agreements.
240.14 Arbitration.
240.15 Notice.
240.16 Governing Law.

Appendix A to Part 240--Application for Compensation

    Authority: Section 7034(o)(1) of the Department of State, Foreign 
Operations, and Related Programs Appropriations Act, 2016 (Div. K, Pub. 
L. 114-113).

    Source: 81 FR 65281, Sept. 22, 2016, unless otherwise noted.

[[Page 1089]]



Sec.  240.1  Purpose.

    The purpose of the regulations in this part is to prescribe the 
procedures and standard terms and conditions applicable to loan 
guarantees issued for the benefit of the Borrower, pursuant to section 
7034(o)(1) of the Department of State, Foreign Operations, and Related 
Programs Appropriations Act, 2016 (Div. K, Pub. L. 114-113) (the 
``Authority''). The loan guarantees will be issued as provided herein 
pursuant to a Loan Guarantee Agreement signed on June 3, 2016, between 
the United States of America and Ukraine (the ``Loan Guarantee 
Agreement''). The loan guarantee will apply to sums borrowed during a 
period beginning on the date that the Loan Guarantee Agreement enters 
into force and ending thirty days after such date, not exceeding an 
aggregate total of one billion United States Dollars ($1,000,000,000) in 
principal amount. The loan guarantees shall ensure the Borrower's 
repayment of 100% of principal and interest due under such borrowings. 
The full faith and credit of the United States of America is pledged for 
the full payment and performance of such guarantee obligations.



Sec.  240.2  Definitions.

    Wherever used in the standard terms and conditions set out in this 
part:
    Applicant means a Noteholder who files an Application for 
Compensation with USAID, either directly or through the Fiscal Agent 
acting on behalf of a Noteholder.
    Application for Compensation means an executed application in the 
form of appendix A to this part which a Noteholder, or the Fiscal Agent 
on behalf of a Noteholder, files with USAID pursuant to Sec.  240.8.
    Borrower means Ukraine.
    Business Day means any day other than a day on which banks in New 
York, NY are closed or authorized to be closed or a day which is 
observed as a federal holiday in Washington, DC, by the United States 
Government.
    Date of Application means the date on which an Application for 
Compensation is actually received by USAID pursuant to Sec.  240.15.
    Defaulted Payment means, as of any date and in respect of any 
Eligible Note, any Interest Amount and/or Principal Amount not paid when 
due.
    Eligible Note(s) means [a] Note[s] meeting the eligibility criteria 
set out in Sec.  240.4.
    Fiscal Agency Agreement means the agreement among USAID, the 
Borrower and the Fiscal Agent pursuant to which the Fiscal Agent agrees 
to provide fiscal agency and trust services in respect of the Note[s], a 
copy of which Fiscal Agency Agreement shall be made available to 
Noteholders upon request to the Fiscal Agent.
    Fiscal Agent means the bank or trust company or its duly appointed 
successor under the Fiscal Agency Agreement which has been appointed by 
the Borrower with the consent of USAID to perform certain fiscal agency 
and trust services for specified Eligible Note[s] pursuant to the terms 
of the Fiscal Agency Agreement.
    Further Guaranteed Payments means the amount of any loss suffered by 
a Noteholder by reason of the Borrower's failure to comply on a timely 
basis with any obligation it may have under an Eligible Note to 
indemnify and hold harmless a Noteholder from taxes or governmental 
charges or any expense arising out of taxes or any other governmental 
charges relating to the Eligible Note in the country of the Borrower.
    Guarantee means the guarantee of USAID pursuant to the Authority.
    Guarantee Payment Date means a Business Day not more than three (3) 
Business Days after the related Date of Application.
    Interest Amount means for any Eligible Note the amount of interest 
accrued on the Principal Amount of such Eligible Note at the applicable 
Interest Rate.
    Interest Rate means the interest rate borne by an Eligible Note.
    Loss of Investment means, in respect of any Eligible Note, an amount 
in Dollars equal to the total of the:
    (1) Defaulted Payment unpaid as of the Date of Application;
    (2) Further Guaranteed Payments unpaid as of the Date of 
Application; and
    (3) Interest accrued and unpaid at the Interest Rate(s) specified in 
the Eligible Note(s) on the Defaulted Payment and Further Guaranteed 
Payments, in

[[Page 1090]]

each case from the date of default with respect to such payment to and 
including the date on which full payment thereof is made to the 
Noteholder.
    Note[s] means any debt securities issued by the Borrower.
    Noteholder means the owner of an Eligible Note who is registered as 
such on the Note Register.
    Note Register means the register of Eligible Notes required to be 
maintained by the Fiscal Agent.
    Person means any legal person, including any individual, 
corporation, partnership, joint venture, association, joint stock 
company, trust, unincorporated organization, or government or any agency 
or political subdivision thereof.
    Principal Amount means the principal amount of the Eligible Notes 
issued by the Borrower. For purposes of determining the principal amount 
of the Eligible Notes issued by the Borrower, the principal amount of 
each Eligible Note shall be the stated principal amount thereof.
    USAID means the United States Agency for International Development 
or its successor.



Sec.  240.3  The Guarantee.

    Subject to the terms and conditions set out in this part, the United 
States of America, acting through USAID, guarantees to Noteholders the 
Borrower's repayment of 100% of principal and interest due on Eligible 
Notes. Under this Guarantee, USAID agrees to pay to any Noteholder 
compensation in Dollars equal to such Noteholder's Loss of Investment 
under its Eligible Note; provided, however, that no such payment shall 
be made to any Noteholder for any such loss arising out of fraud or 
misrepresentation for which such Noteholder is responsible or of which 
it had knowledge at the time it became such Noteholder. This Guarantee 
shall apply to each Eligible Note registered on the Note Register.



Sec.  240.4  Guarantee eligibility.

    (a) Eligible Notes only are guaranteed hereunder. Notes in order to 
achieve Eligible Note status:
    (1) Must be signed on behalf of the Borrower, manually or in 
facsimile, by a duly authorized representative of the Borrower;
    (2) Must contain a certificate of authentication manually executed 
by the Fiscal Agent whose appointment by the Borrower is consented to by 
USAID in the Fiscal Agency Agreement; and
    (3) Shall be approved and authenticated by USAID by either:
    (i) The affixing by USAID on the Notes of a guarantee legend 
incorporating these Standard Terms and Conditions signed on behalf of 
USAID by either a manual signature or a facsimile signature of an 
authorized representative of USAID; or
    (ii) The delivery by USAID to the Fiscal Agent of a guarantee 
certificate incorporating these Standard Terms and Conditions signed on 
behalf of USAID by either a manual signature or a facsimile signature of 
an authorized representative of USAID.
    (b) The authorized USAID representatives for purposes of the 
regulations in this part whose signature(s) shall be binding on USAID 
shall include the USAID Chief and Deputy Chief Financial Officer; 
Assistant Administrator and Deputy Assistant Administrator, Bureau for 
Economic Growth, Education and Environment; Assistant Administrator, 
Bureau for Europe and Eurasia; Director and Deputy Director, Office of 
Development Credit; and such other individual(s) designated in a 
certificate executed by an authorized USAID Representative and delivered 
to the Fiscal Agent. The certificate of authentication of the Fiscal 
Agent issued pursuant to the Fiscal Agency Agreement shall, when 
manually executed by the Fiscal Agent, be conclusive evidence binding on 
USAID that an Eligible Note has been duly executed on behalf of the 
Borrower and delivered.



Sec.  240.5  Non-impairment of the Guarantee.

    After issuance of a Guarantee, that Guarantee will be an 
unconditional, full faith and credit obligation of the United States of 
America, and will not be affected or impaired by any subsequent 
condition or event. This non-impairment of the guarantee provision shall 
not, however, be operative with respect to any loss arising out of fraud 
or misrepresentation for which the

[[Page 1091]]

claiming Noteholder is responsible or of which it had knowledge at the 
time it became a Noteholder. Moreover, the Guarantee shall not be 
affected or impaired by:
    (a) Any defect in the authorization, execution, delivery or 
enforceability of any agreement or other document executed by a 
Noteholder, USAID, the Fiscal Agent or the Borrower in connection with 
the transactions contemplated by this Guarantee; or
    (b) The suspension or termination of the program pursuant to which 
USAID is authorized to guarantee the Eligible Notes.



Sec.  240.6  Transferability of Guarantee; Note Register.

    A Noteholder may assign, transfer or pledge an Eligible Note to any 
Person. Any such assignment, transfer or pledge shall be effective on 
the date that the name of the new Noteholder is entered on the Note 
Register. USAID shall be entitled to treat the Persons in whose names 
the Eligible Notes are registered as the owners thereof for all purposes 
of this Guarantee and USAID shall not be affected by notice to the 
contrary.



Sec.  240.7  Fiscal Agent obligations.

    Failure of the Fiscal Agent to perform any of its obligations 
pursuant to the Fiscal Agency Agreement shall not impair any 
Noteholder's rights under this Guarantee, but may be the subject of 
action for damages against the Fiscal Agent by USAID as a result of such 
failure or neglect. A Noteholder may appoint the Fiscal Agent to make 
demand for payment on its behalf under this Guarantee.



Sec.  240.8  Event of Default; Application for Compensation; payment.

    At any time after an Event of Default, as this term is defined in an 
Eligible Note, any Noteholder hereunder, or the Fiscal Agent on behalf 
of a Noteholder hereunder, may file with USAID an Application for 
Compensation in the form provided in appendix A to this part. USAID 
shall pay or cause to be paid to any such Applicant any compensation 
specified in such Application for Compensation that is due to the 
Applicant pursuant to the Guarantee as a Loss of Investment not later 
than the Guarantee Payment Date. In the event that USAID receives any 
other notice of an Event of Default, USAID may pay any compensation that 
is due to any Noteholder pursuant to a Guarantee, whether or not such 
Noteholder has filed with USAID an Application for Compensation in 
respect of such amount.



Sec.  240.9  No acceleration of Eligible Notes.

    Eligible Notes shall not be subject to acceleration, in whole or in 
part, by USAID, the Noteholder or any other party. USAID shall not have 
the right to pay any amounts in respect of the Eligible Notes other than 
in accordance with the original payment terms of such Eligible Notes.



Sec.  240.10  Payment to USAID of excess amounts received by a Noteholder.

    If a Noteholder shall, as a result of USAID paying compensation 
under this Guarantee, receive an excess payment, it shall refund the 
excess to USAID.



Sec.  240.11  Subrogation of USAID.

    In the event of payment by USAID to a Noteholder under this 
Guarantee, USAID shall be subrogated to the extent of such payment to 
all of the rights of such Noteholder against the Borrower under the 
related Note.



Sec.  240.12  Prosecution of claims.

    After payment by USAID to an Applicant hereunder, USAID shall have 
exclusive power to prosecute all claims related to rights to receive 
payments under the Eligible Notes to which it is thereby subrogated. If 
a Noteholder continues to have an interest in the outstanding Eligible 
Notes, such a Noteholder and USAID shall consult with each other with 
respect to their respective interests in such Eligible Notes and the 
manner of and responsibility for prosecuting claims.



Sec.  240.13  Change in agreements.

    No Noteholder will consent to any change or waiver of any provision 
of any document contemplated by this Guarantee without the prior written 
consent of USAID.

[[Page 1092]]



Sec.  240.14  Arbitration.

    Any controversy or claim between USAID and any Noteholder arising 
out of this Guarantee shall be settled by arbitration to be held in 
Washington, DC in accordance with the then prevailing rules of the 
American Arbitration Association, and judgment on the award rendered by 
the arbitrators may be entered in any court of competent jurisdiction.



Sec.  240.15  Notice.

    Any communication to USAID pursuant to this Guarantee shall be in 
writing in the English language, shall refer to the Ukraine Loan 
Guarantee Number inscribed on the Eligible Note and shall be complete on 
the day it shall be actually received by USAID at the Office of 
Development Credit, Bureau for Economic Growth, Education and 
Environment, United States Agency for International Development, 
Washington, DC 20523-0030. Other addresses may be substituted for the 
above upon the giving of notice of such substitution to each Noteholder 
by first class mail at the address set forth in the Note Register.



Sec.  240.16  Governing Law.

    This Guarantee shall be governed by and construed in accordance with 
the laws of the United States of America governing contracts and 
commercial transactions of the United States Government.



        Sec. Appendix A to Part 240--Application for Compensation

           United States Agency for International Development

                          Washington, DC 20523

    Ref: Guarantee dated as of ___, 20_:
    Gentlemen: You are hereby advised that payment of $___(consisting of 
$ ___ of principal, $___ of interest and $___ in Further Guaranteed 
Payments, as defined in Sec.  240.02 of the Standard Terms and 
Conditions of the above-mentioned Guarantee) was due on ___, 20_, on 
$___ Principal Amount of Notes issued by Ukraine (the ``Borrower'') held 
by the undersigned. Of such amount $___ was not received on such date 
and has not been received by the undersigned at the date hereof. In 
accordance with the terms and provisions of the above-mentioned 
Guarantee, the undersigned hereby applies, under Sec.  240.08 of said 
Guarantee, for payment of $___, representing $___, the Principal Amount 
of the presently outstanding Note(s) of the Borrower held by the 
undersigned that was due and payable on ___ and that remains unpaid, and 
$___, the Interest Amount on such Note(s) that was due and payable by 
the Borrower on ___ and that remains unpaid, and $___ in Further 
Guaranteed Payments,\1\ plus accrued and unpaid interest thereon from 
the date of default with respect to such payments to and including the 
date payment in full is made by you pursuant to said Guarantee, at the 
rate of ___ % per annum, being the rate for such interest accrual 
specified in such Note. Such payment is to be made at [state payment 
instructions of Noteholder or Fiscal Agent, as applicable].
---------------------------------------------------------------------------

    \1\ In the event the Application for Compensation relates to Further 
Guaranteed Payments, such Application must also contain a statement of 
the nature and circumstances of the related loss.
---------------------------------------------------------------------------

    All capitalized terms herein that are not otherwise defined shall 
have the meanings assigned to such terms in the Standard Terms and 
Conditions of the above-mentioned Guarantee.

[Name of Applicant]
By:_____________________________________________________________________

Name:___________________________________________________________________

Title:__________________________________________________________________

Dated:__________________________________________________________________



PART 241_REPUBLIC OF IRAQ LOAN GUARANTEES ISSUED UNDER THE FURTHER CONTINUING 
AND SECURITY ASSISTANCE APPROPRIATIONS ACT OF 2017--Table of Contents



Sec.
241.1 Purpose.
241.2 Definitions.
241.3 The Guarantee.
241.4 Guarantee eligibility.
241.5 Non-impairment of the Guarantee.
241.6 Transferability of Guarantee; Note Register.
241.7 Fiscal Agent obligations.
241.8 Event of Default; Application for Compensation; payment.
241.9 No acceleration of Eligible Notes.
241.10 Payment to USAID of excess amounts received by a Noteholder.
241.11 Subrogation of USAID.
241.12 Prosecution of claims.
241.13 Change in agreements.
241.14 Arbitration.
241.15 Notice.
241.16 Governing law.

[[Page 1093]]


Appendix A to Part 241--Application for Compensation

    Authority: Security Assistance Appropriations Act, 2017 (Div. B, 
Pub. L. 114-254).

    Source: 82 FR 2218, Jan. 9, 2017, unless otherwise noted.



Sec.  241.1  Purpose.

    The purpose of the regulations in this part is to prescribe the 
procedures and standard terms and conditions applicable to loan 
guarantees issued for the benefit of the Borrower, pursuant the Further 
Continuing and Security Assistance Appropriations Act, 2017 (Pub. L. 
114-254) (the ``Authority''). The loan guarantees will be issued as 
provided herein pursuant to the Loan Guarantee Agreement, executed in 
January 2017, between the United States of America and the Republic of 
Iraq (the ``Loan Guarantee Agreement''). The loan guarantee will apply 
to sums borrowed during a period beginning on the date that the Loan 
Guarantee Agreement enters into force and ending thirty days after such 
date, not exceeding an aggregate total of one billion United States 
Dollars ($1,000,000,000) in principal amount. The loan guarantees shall 
ensure the Borrower's repayment of 100% of principal and interest due 
under such borrowings. The full faith and credit of the United States of 
America is pledged for the full payment and performance of such 
guarantee obligations.



Sec.  241.2  Definitions.

    Wherever used in the standard terms and conditions set out in this 
part:
    Applicant means a Noteholder who files an Application for 
Compensation with USAID, either directly or through the Fiscal Agent 
acting on behalf of a Noteholder.
    Application for Compensation means an executed application in the 
form of Appendix A to this part which a Noteholder, or the Fiscal Agent 
on behalf of a Noteholder, files with USAID pursuant to Sec.  241.8.
    Borrower means the Republic of Iraq.
    Business Day means any day other than a day on which banks in New 
York, NY are closed or authorized to be closed or a day which is 
observed as a federal holiday in Washington, DC, by the United States 
Government.
    Date of Application means the date on which an Application for 
Compensation is actually received by USAID pursuant to Sec.  241.15.
    Defaulted Payment means, as of any date and in respect of any 
Eligible Note, any Interest Amount and/or Principal Amount not paid when 
due, regardless of the reason the Borrower fails to pay, including 
without limitation withholding taxes.
    Eligible Note(s) means [a] Note[s] meeting the eligibility criteria 
set out in Sec.  241.4.
    Fiscal Agency Agreement means the agreement among USAID, the 
Borrower and the Fiscal Agent pursuant to which the Fiscal Agent agrees 
to provide fiscal agency services in respect of the Note[s], a copy of 
which Fiscal Agency Agreement shall be made available to Noteholders 
upon request to the Fiscal Agent.
    Fiscal Agent means the bank or trust company or its duly appointed 
successor under the Fiscal Agency Agreement which has been appointed by 
the Borrower with the consent of USAID to perform certain fiscal agency 
services for specified Eligible Note[s] pursuant to the terms of the 
Fiscal Agency Agreement.
    Further Guaranteed Payments means the amount of any loss suffered by 
a Noteholder by reason of the Borrower's failure to comply on a timely 
basis with any obligation it may have under an Eligible Note to the 
Noteholders, including late fees under the Eligible Note, but not 
including any taxes or governmental charges or any expense arising out 
of taxes or any other governmental charges relating to the Eligible Note 
in the country of the Borrower.
    Guarantee means the guarantee of USAID pursuant to the Authority.
    Guarantee Payment Date means a Business Day not more than three (3) 
Business Days after the related Date of Application.
    Interest Amount means for any Eligible Note the amount of interest 
accrued on the Principal Amount of such Eligible Note at the applicable 
Interest Rate.
    Interest Rate means the interest rate borne by an Eligible Note.

[[Page 1094]]

    Loss of Investment means, in respect of any Eligible Note, an amount 
in Dollars equal to the total of the:
    (1) Defaulted Payment unpaid as of the Date of Application,
    (2) Further Guaranteed Payments unpaid as of the Date of 
Application, and
    (3) Interest accrued and unpaid at the Interest Rate(s) specified in 
the Eligible Note(s) on the Defaulted Payment and Further Guaranteed 
Payments, in each case from the date of default with respect to such 
payment to and including the date on which full payment thereof is made 
to the Noteholder.
    Note[s] means any debt securities issued by the Borrower.
    Noteholder means the owner of an Eligible Note who is registered as 
such on the Note Register.
    Note Register means the register of Eligible Notes required to be 
maintained by the Fiscal Agent.
    Person means any legal person, including any individual, 
corporation, partnership, joint venture, association, joint stock 
company, trust, unincorporated organization, or government or any agency 
or political subdivision thereof.
    Principal Amount means the principal amount of the Eligible Notes 
issued by the Borrower. For purposes of determining the principal amount 
of the Eligible Notes issued by the Borrower, the principal amount of 
each Eligible Note shall be the stated principal amount thereof.
    USAID means the United States Agency for International Development 
or its successor.



Sec.  241.3  The Guarantee.

    Subject to the terms and conditions set out in this part, the United 
States of America, acting through USAID, guarantees to Noteholders the 
Borrower's repayment of 100% of principal and interest due on Eligible 
Notes. Under this Guarantee, USAID agrees to pay to any Noteholder 
compensation in Dollars equal to such Noteholder's Loss of Investment 
under its Eligible Note; provided, however, that no such payment shall 
be made to any Noteholder for any such loss arising out of fraud or 
misrepresentation for which such Noteholder is responsible or of which 
it had knowledge at the time it became such Noteholder. This Guarantee 
shall apply to each Eligible Note registered on the Note Register 
required to be maintained by the Fiscal Agent.



Sec.  241.4  Guarantee eligibility.

    (a) Eligible Notes only are guaranteed hereunder. Notes in order to 
achieve Eligible Note status:
    (1) Must be signed on behalf of the Borrower, manually or in 
facsimile, by a duly authorized representative of the Borrower;
    (2) Must contain a certificate of authentication manually executed 
by the Fiscal Agent whose appointment by the Borrower is consented to by 
USAID in the Fiscal Agency Agreement; and
    (3) Shall be approved and authenticated by USAID by either:
    (i) The affixing by USAID on the Notes of a guarantee legend 
incorporating these Standard Terms and Conditions signed on behalf of 
USAID by either a manual signature or a facsimile signature of an 
authorized representative of USAID; or
    (ii) The delivery by USAID to the Fiscal Agent of a guarantee 
certificate incorporating these Standard Terms and Conditions signed on 
behalf of USAID by either a manual signature or a facsimile signature of 
an authorized representative of USAID.
    (b) The authorized USAID representatives for purposes of the 
regulations in this part whose signature(s) shall be binding on USAID 
shall include the USAID Chief and Deputy Chief Financial Officer, 
Assistant Administrator and Deputy, Bureau for the Middle East, Mission 
Director and Acting Mission Director for USAID/Iraq, and such other 
individual(s) designated in a certificate executed by an authorized 
USAID Representative and delivered to the Fiscal Agent. The certificate 
of authentication of the Fiscal Agent issued pursuant to the Fiscal 
Agency Agreement shall, when manually executed by the Fiscal Agent, be 
conclusive evidence binding on USAID that an Eligible Note has been duly 
executed on behalf of the Borrower and delivered.



Sec.  241.5  Non-impairment of the Guarantee.

    After issuance of a Guarantee, that Guarantee will be an 
unconditional,

[[Page 1095]]

full faith and credit obligation of the United States of America, and 
will not be affected or impaired by any subsequent condition or event. 
This non-impairment of the guarantee provision shall not, however, be 
operative with respect to any loss arising out of fraud or 
misrepresentation for which the claiming Noteholder is responsible or of 
which it had knowledge at the time it became a Noteholder. Moreover, the 
Guarantee shall not be affected or impaired by:
    (a) Any defect in the authorization, execution, delivery or 
enforceability of any agreement or other document executed by a 
Noteholder, USAID, the Fiscal Agent or the Borrower in connection with 
the transactions contemplated by this Guarantee; or
    (b) The suspension or termination of the program pursuant to which 
USAID is authorized to guarantee the Eligible Notes.



Sec.  241.6  Transferability of Guarantee; Note Register.

    A Noteholder may assign, transfer or pledge an Eligible Note to any 
Person, provided that such transfer is permitted under applicable law 
and regulation, including, without limitation, the Office of Foreign 
Assets Control (OFAC) regulations. Any such assignment, transfer or 
pledge shall be effective on the date that the name of the new 
Noteholder is entered on the Note Register required to be maintained by 
the Fiscal Agent pursuant to the Fiscal Agency Agreement. USAID shall be 
entitled to treat the Persons in whose names the Eligible Notes are 
registered as the owners thereof for all purposes of this Guarantee and 
USAID shall not be affected by notice to the contrary.



Sec.  241.7  Fiscal Agent obligations.

    Failure of the Fiscal Agent to perform any of its obligations 
pursuant to the Fiscal Agency Agreement shall not impair any 
Noteholder's rights under this Guarantee, but may be the subject of 
action for damages against the Fiscal Agent by USAID as a result of such 
failure or neglect. A Noteholder may appoint the Fiscal Agent to make 
demand for payment on its behalf under this Guarantee.



Sec.  241.8  Event of Default; Application for Compensation; payment.

    At any time after an Event of Default, as this term is defined in an 
Eligible Note, any Noteholder hereunder, or the Fiscal Agent on behalf 
of a Noteholder hereunder, may file with USAID an Application for 
Compensation in the form provided in Appendix A to this part. USAID 
shall pay or cause to be paid to any such Applicant any compensation 
specified in such Application for Compensation that is due to the 
Applicant pursuant to the Guarantee as a Loss of Investment not later 
than the Guarantee Payment Date. In the event that USAID receives any 
other notice of an Event of Default, USAID may pay any compensation that 
is due to any Noteholder pursuant to a Guarantee, whether or not such 
Noteholder has filed with USAID an Application for Compensation in 
respect of such amount.



Sec.  241.9  No acceleration of Eligible Notes.

    Eligible Notes shall not be subject to acceleration, in whole or in 
part, by USAID, the Noteholder or any other party. USAID shall not have 
the right to pay any amounts in respect of the Eligible Notes other than 
in accordance with the original payment terms of such Eligible Notes.



Sec.  241.10  Payment to USAID of excess amounts received by a Noteholder.

    If a Noteholder shall, as a result of USAID paying compensation 
under this Guarantee, receive an excess payment, it shall refund the 
excess to USAID.



Sec.  241.11  Subrogation of USAID.

    In the event of payment by USAID to a Noteholder under this 
Guarantee, USAID shall be subrogated to the extent of such payment to 
all of the rights of such Noteholder against the Borrower under the 
related Note.



Sec.  241.12  Prosecution of claims.

    After payment by USAID to an Applicant hereunder, USAID shall have 
exclusive power to prosecute all claims related to rights to receive 
payments under the Eligible Notes to which it is thereby subrogated. If 
a Noteholder continues to have an interest in the

[[Page 1096]]

outstanding Eligible Notes, such a Noteholder and USAID shall consult 
with each other with respect to their respective interests in such 
Eligible Notes and the manner of and responsibility for prosecuting 
claims.



Sec.  241.13  Change in agreements.

    No Noteholder will consent to any change or waiver of any provision 
of any document contemplated by this Guarantee without the prior written 
consent of USAID.



Sec.  241.14  Arbitration.

    Any controversy or claim between USAID and any Noteholder arising 
out of this Guarantee shall be settled by arbitration to be held in 
Washington, DC in accordance with the then prevailing rules of the 
American Arbitration Association, and judgment on the award rendered by 
the arbitrators may be entered in any court of competent jurisdiction.



Sec.  241.15  Notice.

    Any communication to USAID pursuant to this Guarantee shall be in 
writing in the English language, shall refer to the Republic of Iraq 
Loan Guarantee Number inscribed on the Eligible Note and shall be 
complete on the day it shall be actually received by USAID at the Office 
of Development Credit, Bureau for Economic Growth, Education and 
Environment, United States Agency for International Development, 
Washington, DC 20523-0030. Other addresses may be substituted for the 
above upon the giving of notice of such substitution to each Noteholder 
by first class mail at the address set forth in the Note Register.



Sec.  241.16  Governing law.

    This Guarantee shall be governed by and construed in accordance with 
the laws of the United States of America governing contracts and 
commercial transactions of the United States Government.



        Sec. Appendix A to Part 241--Application for Compensation

           United States Agency for International Development

                          Washington, DC 20523

Ref: Guarantee dated as of ____, 20 __:

    To Whom It May Concern: You are hereby advised that payment of $____ 
(consisting of ____ of principal, ____ of interest and $____ in Further 
Guaranteed Payments, as defined in Sec.  241.2 of the Standard Terms and 
Conditions of the above-mentioned Guarantee) was due on ____, 20_, on 
$____ Principal Amount of Notes issued by the Republic of Iraq (the 
``Borrower'') held by the undersigned. Of such amount $____ was not 
received on such date and has not been received by the undersigned at 
the date hereof. In accordance with the terms and provisions of the 
above-mentioned Guarantee, the undersigned hereby applies, under Sec.  
241.8 of said Guarantee, for payment of $____, representing $____, the 
Principal Amount of the presently outstanding Note(s) of the Borrower 
held by the undersigned that was due and payable on ____ and that 
remains unpaid, and $____, the Interest Amount on such Note(s) that was 
due and payable by the Borrower on ____ and that remains unpaid, and 
$____ in Further Guaranteed Payments,\1\ plus accrued and unpaid 
interest thereon from the date of default with respect to such payments 
to and including the date payment in full is made by you pursuant to 
said Guarantee, at the rate of __% per annum, being the rate for such 
interest accrual specified in such Note. Such payment is to be made at 
[state payment instructions of Noteholder or Fiscal Agent, as 
applicable].
---------------------------------------------------------------------------

    \1\ In the event the Application for Compensation relates to Further 
Guaranteed Payments, such Application must also contain a statement of 
the nature and circumstances of the related loss.
---------------------------------------------------------------------------

    All capitalized terms herein that are not otherwise defined shall 
have the meanings assigned to such terms in the Standard Terms and 
Conditions of the above-mentioned Guarantee.

[Name of Applicant]

By:_____________________________________________________________________
Name:___________________________________________________________________
Title:__________________________________________________________________
Dated:__________________________________________________________________

                        PARTS 242	299 [RESERVED]

[[Page 1097]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 1099]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 2021)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--599)
        VI  National Capital Planning Commission (Parts 600--699)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 2--199)
        II  Office of Management and Budget Guidance (Parts 200--
                299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300--
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
         X  Department of the Treasury (Parts 1000--1099)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Department of Housing and Urban Development (Parts 
                2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)

[[Page 1100]]

     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXIX  Department of Labor (Parts 2900--2999)
       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
     XXXVI  Office of National Drug Control Policy, Executive 
                Office of the President (Parts 3600--3699)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)
       LIX  Gulf Coast Ecosystem Restoration Council (Parts 5900--
                5999)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Office of Personnel Management and Office of the 
                Director of National Intelligence (Parts 1400--
                1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600--3699)

[[Page 1101]]

    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  U.S. International Development Finance Corporation 
                (Parts 4300--4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
     XXXVI  Department of Homeland Security (Parts 4600--4699)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)

[[Page 1102]]

     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
    XCVIII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)
      XCIX  Military Compensation and Retirement Modernization 
                Commission (Parts 9900--9999)
         C  National Council on Disability (Parts 10000--10049)
        CI  National Mediation Board (Part 10101)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--199)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Agricultural Marketing Service (Federal Grain 
                Inspection Service, Fair Trade Practices Program), 
                Department of Agriculture (Parts 800--899)

[[Page 1103]]

        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  (Parts 1600--1699) [Reserved]
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  (Parts 2200--2299) [Reserved]
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

[[Page 1104]]

         L  Rural Business-Cooperative Service, Rural Housing 
                Service, and Rural Utilities Service, Department 
                of Agriculture (Part 5001)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Agricultural Marketing Service (Fair Trade Practices 
                Program), Department of Agriculture (Parts 200--
                299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  (Parts 500--599) [Reserved]
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  (Parts 900--999) [Reserved]
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)

[[Page 1105]]

        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research, Department of the 
                Treasury (Parts 1600--1699)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--1199)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)

[[Page 1106]]

      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  National Technical Information Service, Department of 
                Commerce (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399) [Reserved]

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599) [Reserved]

[[Page 1107]]

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Agency for Global Media (Parts 500--599)
       VII  U.S. International Development Finance Corporation 
                (Parts 700--799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millennium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

[[Page 1108]]

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) [Reserved]
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799) [Reserved]
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)

[[Page 1109]]

      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099) [Reserved]
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--899)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900--999)
        VI  Office of the Assistant Secretary, Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--End)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--799)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

[[Page 1110]]

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)

[[Page 1111]]

        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of Investment Security, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Department of Defense, Defense Logistics Agency (Parts 
                1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army, Department 
                of Defense (Parts 200--399)
        IV  Great Lakes St. Lawrence Seaway Development 
                Corporation, Department of Transportation (Parts 
                400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education

[[Page 1112]]

         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Career, Technical, and Adult Education, 
                Department of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599) 
                [Reserved]
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799) 
                [Reserved]
            Subtitle C--Regulations Relating to Education
        XI  (Parts 1100--1199) [Reserved]
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  National Institute of Standards and Technology, 
                Department of Commerce (Parts 400--599)

[[Page 1113]]

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)
      VIII  Gulf Coast Ecosystem Restoration Council (Parts 1800--
                1899)
        IX  Federal Permitting Improvement Steering Council (Part 
                1900)

          Title 41--Public Contracts and Property Management

            Subtitle A--Federal Procurement Regulations System 
                [Note]
            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  (Parts 103-001--104-099) [Reserved]
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]

[[Page 1114]]

            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
   II--III  [Reserved]
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--699)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1099)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare

[[Page 1115]]

        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
        IX  Denali Commission (Parts 900--999)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Administration for Children and Families, Department 
                of Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission of Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Parts 2300--2399)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)

[[Page 1116]]

       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)
         V  The First Responder Network Authority (Parts 500--599)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199) [Reserved]
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)

[[Page 1117]]

        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499) 
                [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)

[[Page 1118]]

        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 1119]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 2021)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     5, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, VIII, IX, X, XI; 9, 
                                                  II
Agricultural Research Service                     7, V
Agriculture, Department of                        2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  Agricultural Marketing Service                  7, I, VIII, IX, X, XI; 9, 
                                                  II
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  National Institute of Food and Agriculture      7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force, Department of                          32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
   Compliance Board
[[Page 1120]]

Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI; 38, II
Army, Department of                               32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase from People Who Are
  Federal Acquisition Regulation                  48, 19
Career, Technical, and Adult Education, Office    34, IV
     of
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazard Investigation Board    40, VI
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X, XIII
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce, Department of                           2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II; 37, IV
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Technical Information Service          15, XI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Secretary of Commerce, Office of                15, Subtitle A
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I
Defense, Department of                            2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III; 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54

[[Page 1121]]

  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy, Department of                             32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Denali Commission                                 45, IX
Disability, National Council on                   5, C; 34, XII
District of Columbia, Court Services and          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Career, Technical, and Adult Education, Office  34, IV
       of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Policy, National Commission for        1, IV
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             2, IX; 5, XXIII; 10, II, 
                                                  III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99
  National Drug Control Policy, Office of         2, XXXVI; 21, III
  National Security Council                       32, XXI; 47, II
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II

[[Page 1122]]

Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    5, LXXX; 12, XII
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Permitting Improvement Steering Council   40, IX
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission of                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F

[[Page 1123]]

  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Gulf Coast Ecosystem Restoration Council          2, LIX; 40, VIII
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X, XIII
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 5, XXXVI; 6, I; 8, 
                                                  I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Immigration and Customs Enforcement Bureau        19, IV
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Independent Counsel, Offices of                   28, VI
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII

[[Page 1124]]

Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior, Department of                           2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Safety and Enforcement Bureau, Bureau of        30, II
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Development Finance Corporation,    5, XXXIII; 22, VII
     U.S.
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice, Department of                            2, XXVIII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Independent Counsel, Offices of                 28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor, Department of                              2, XXIX; 5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV

[[Page 1125]]

  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I, VI
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Libraries and Information Science, National       45, XVII
     Commission on
Library of Congress                               36, VII
  Copyright Royalty Board                         37, III
  U.S. Copyright Office                           37, II
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Military Compensation and Retirement              5, XCIX
     Modernization Commission
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV, VI
National Counterintelligence Center               32, XVIII
National Credit Union Administration              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           2, XXXVI; 21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Geospatial-Intelligence Agency           32, I
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II; 37, IV
National Intelligence, Office of Director of      5, IV; 32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          5, CI; 29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI; 47, II
National Technical Information Service            15, XI
National Telecommunications and Information       15, XXIII; 47, III, IV, V
   Administration
[[Page 1126]]

National Transportation Safety Board              49, VIII
Natural Resource Revenue, Office of               30, XII
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy, Department of                               32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, IV, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Contracts, Department of Labor             41, 50
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Utilities Service                           7, XVII, XVIII, XLII
Safety and Environmental Enforcement, Bureau of   30, II
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of, and     32, XXIV; 47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State, Department of                              2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6

[[Page 1127]]

Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Tennessee Valley Authority                        5, LXIX; 18, XIII
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury, Department of the                       2, X; 5, XXI; 12, XV; 17, 
                                                  IV; 31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
Truman, Harry S. Scholarship Foundation           45, XVIII
United States Agency for Global Media             22, V
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
U.S. Copyright Office                             37, II
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs, Department of                   2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I, VII
World Agricultural Outlook Board                  7, XXXVIII

[[Page 1129]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2016 are enumerated in the following list. Entries indicate the 
nature of the changes effected. Page numbers refer to Federal Register 
pages. The user should consult the entries for chapters, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.govinfo.gov. For changes to this volume of the 
CFR prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 
1964-1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. 
The ``List of CFR Sections Affected 1986-2000'' is available at 
www.govinfo.gov.

                                  2016

22 CFR
                                                                   81 FR
                                                                    Page
Chapter I
35 Authority citation revised......................................36793
35.3 Amended; (f) added............................................36793
41 Authority citation revised.......................................5908
    Technical correction............................................7454
41.2 (e) removed; (f) through (m) redesignated as new (e) through 
        (l); new (e)(2)(iv) revised; interim........................5908
41.21 (a)(3) revised...............................................88102
41.22 (b) revised..................................................88103
41.24 (b)(4) revised...............................................88103
41.122 (b) and (d) revised; (c) amended............................72523
42 Authority citation revised......................................63695
42.33 (b)(2)(iv) through (viii) redesignated as (b)(2)(v) through 
        (ix); new (b)(2)(iv) added; new (b)(2)(viii) revised.......63695
51 Authority citation revised......................................60609
51.1 Amended; interim..............................................67157
51.3 Regulation at 80 FR 27857 confirmed............................6758
    Revised; interim...............................................67157
51.4 Revised; interim..............................................67158
51.60 (a)(3), (4), (f) and (g) added...............................60609
    (a)(4) and (g) corrected.......................................66185
62 Authority citation revised.......................................4955
62.24 Revised.......................................................4955
103 Authority citation revised.....................................36793
103.6 (a)(1) and (2) amended.......................................36793
120.5 Heading and (b) revised......................................54735
120.17 Revised; interim............................................35616
    Regulation at 81 FR 35616 confirmed............................62008
120.19 Revised; interim............................................35616
    Regulation at 81 FR 35616 confirmed; (a) introductory text 
revised............................................................62008
120.32 Revised; interim............................................66805
120.46 Added.......................................................87429
120.50 Added; interim..............................................35616
    Regulation at 81 FR 35616 confirmed............................62008
120.51 Added; interim..............................................35616
    Regulation at 81 FR 35616 confirmed; revised...................62008
121.1 Amended........................................49536, 70354, 83132
    (a) and (b) revised; (c), (d) and (e) removed; (x) amended.....87429
122.4 (c)(4) revised...............................................87429
123.4 (a)(4) revised...............................................54735
123.9 (b)(1) and (2) revised; (d) added............................54735
123.13 Revised.....................................................54736
123.28 Added; interim..............................................35616
    Regulation at 81 FR 35616 confirmed............................62008
124.1 (e) added; interim...........................................35616
    Regulation at 81 FR 35616 confirmed............................62008
124.2 (c)(5)(v) revised............................................87429

[[Page 1130]]

124.7 Introductory text redesignated as (a) introductory text; new 
        (a)(1) revised.............................................54736
124.8 Amended; interim.............................................35616
    Introductory text redesignated as (a) introductory text........54736
    Regulation at 81 FR 35616 confirmed............................62008
124.9 (a)(6) revised...............................................54736
124.12 (a)(10) removed; interim....................................35617
    (a) introductory text and (b)(4) revised.......................54736
    Regulation at 81 FR 35617 confirmed............................62008
    (a)(9) revised.................................................87430
124.14 (c)(7) and (e) introductory text revised....................54736
124.16 Removed; interim............................................35617
    Regulation at 81 FR 35617 confirmed............................62008
125.1 (f) added....................................................62008
125.2 (a) revised..................................................54737
125.4 (b)(9) revised; interim......................................35617
    Regulation at 81 FR 35617 confirmed............................62008
125.7 (b) revised..................................................54737
126.1 (a), (c), (d), (i)(2), (3) and (m) revised; (h) and (i)(5) 
        added; (l), (n), (o) and (q) removed; interim..............66805
126.9 Heading revised; (a) amended; (c) added......................54737
    (a) revised....................................................87430
126.10 (b) revised.................................................87430
126.16 (a)(1)(iii) revised.........................................62008
126.17 (a)(1)(iii) revised.........................................62008
126.18 (a) amended; (d) added; interim.............................35617
    Regulation at 81 FR 35617 confirmed; (d)(1) revised............62008
    (c)(2) amended; interim........................................66807
127 Authority citation revised.....................................36793
127.7 (b) revised..................................................87430
127.10 (a) revised.................................................36793
127.11 (c) revised.................................................87430
130.2 Revised......................................................62008
138 Authority citation revised.....................................36793
138.400 Amended....................................................36793
147 Added..........................................................32646
171 Revised........................................................19865
171.26 (b)(2) amended..............................................33590
171.36 (b)(5) and (6) amended.......................................2989
    (b)(1) and (2) amended..........................................8835
Chapter II
205.1 (b), (c), (e) and (f) revised; (j) added.....................19415
    (d) revised; (j) and (i) redesignated as (i) and (k); new (j) 
added..............................................................42248
212 Revised........................................................93807
239 Added..........................................................50618
240 Added..........................................................65281

                                  2017

22 CFR
                                                                   82 FR
                                                                    Page
Chapter I
35.3 Amended; (f) amended...........................................3170
41 Authority citation revised......................................41885
41.2 (i) revised...................................................41885
103.6 (a)(1) and (2) amended........................................3170
120.28 (b)(2) revised.................................................17
120.30 Removed........................................................17
121.1 Amended................................................2891, 41173
    Amended; eff. 8-30-18..........................................41173
123.4 (d)(2) revised..................................................17
123.5 (b) amended.....................................................17
123.16 (b)(4) and (5) amended.........................................17
123.17 (a)(2)(iii), (3)(iii), (c)(1) and (f)(1) revised; (g)(2) 
        and (h) amended...............................................18
123.22 (a), (b)(1) introductory text, (2) introductory text, (ii), 
        (3)(iii) and (c) revised......................................18
123.24 (a) revised....................................................19
126.4 (d) revised.....................................................19
126.6 (c)(5)(ii), (iii) and (6)(iii) revised..........................19
126.16 (l)(1)(xv) and (2) introductory text revised...................19
126.17 (l)(1)(xv) and (2) introductory text revised...................19
127.10 (a)(1)(i), (ii) and (iii) amended............................3170
138 Heading revised.................................................3170
138.400 Amended.....................................................3170
147.7 (c) amended..................................................34853
Chapter II
225 Revised; eff. 1-19-18...........................................7271
241 Added...........................................................2218

                                  2018

22 CFR
                                                                   83 FR
                                                                    Page
Chapter I
5 Revised..........................................................50824
22 Authority citation revised; eff. 4-2-18..........................4428
22.1 Regulation at 80 FR 53709 confirmed............................4425

[[Page 1131]]

    Table amended; eff. 4-2-18......................................4428
35.3 Amended; (f) amended............................................236
41.2 Regulations at 81 FR 5908 and 7454 confirmed..................31451
50.7 (d) revised...................................................21874
    50.7 (d) stayed until 6-10-18..................................22849
50.11 (b) revised..................................................21874
    (b) stayed until 6-10-18.......................................22849
51 Authority citation revised......................................21874
51.1 Regulation at 81 FR 67157 confirmed............................4143
51.3 Regulation at 81 FR 67157 confirmed............................4143
51.4 Regulation at 81 FR 67158 confirmed............................4143
    (g)(1) revised; (g)(8) added...................................21874
    (g)(1) and (8) stayed until 6-10-18............................22849
51.60--51.66 (Subpart E) Heading revised...........................21874
    (h) and (i) added..............................................21874
    (h) and (i) stayed until 6-10-18...............................22849
51.62 Revised......................................................21874
    Stayed until 6-10-18...........................................22849
51.65 Revised......................................................21874
    Stayed until 6-10-18...........................................22849
51.66 Revised......................................................21875
    Stayed until 6-10-18...........................................22849
51.70 Revised......................................................21875
    Stayed until 6-10-18...........................................22849
51.71 Revised......................................................21875
    Stayed until 6-10-18...........................................22849
51.72 Revised......................................................21876
    Stayed until 6-10-18...........................................22849
51.73 Revised......................................................21876
    Stayed until 6-10-18...........................................22849
51.74 Revised......................................................21876
    Stayed until 6-10-18...........................................22849
103.6 (a)(1) and (2) amended.........................................237
121.1 Amended; eff. in part 8-30-19................................44229
    Amended; interim...............................................50006
123.22 (b)(3)(i) and (c)(2) revised; interim.......................50007
126.1 (d)(2) table revised; (w) added; note removed.................6458
127.10 (a)(1)(i), (ii) and (iii) amended.............................237
    (a)(1)(ii) amended..............................................2738
138.400 (e) and section amended......................................237
172 Authority citation revised.....................................17489
172.1 (e) amended..................................................17489
172.2 (c) and section amended......................................17489
172.5 (a) and (c) amended..........................................17489
172.6 (a)(4) amended...............................................17489
193 Removed........................................................15741
Chapter II
225 Effective date delayed to 7-19-18...............................2885
225.101 (l)(3) and (4) revised......................................2892
    (l)(1) heading and (5) added; (l)(2), (3), and (4) revised.....28514

                                  2019

22 CFR
                                                                   84 FR
                                                                    Page
Chapter I
22 Authority citation revised......................................35298
22.1 Table amended.................................................35298
35.3 Amended........................................................9959
40 Authority citation revised...............................19714, 55012
40.41 Revised; interim.............................................55012
40.301 Revised.....................................................19714
41 Authority citation revised......................................16612
41.121 Heading and (a) revised.....................................16612
41.122 Regulation at 81 FR 72523 confirmed.........................22968
41.123 Added.......................................................16612
42 Authority citation revised...............................25991, 35298
42.33 (b)(1)(viii) and (ix) added; interim.........................25991
42.71 Revised......................................................35298
42.73 Revised......................................................35299
42.74 Revised......................................................35299
42.81 Heading and (a) revised......................................16612
42.84 Added........................................................16613
51 Authority citation revised......................................67185
51.60 (a)(3) removed; (h) revised..................................67185
103.6 (a)(1) and (2) amended........................................9959
120.17 (a) introductory text and (a)(6) revised; interim; eff. 3-
        25-20......................................................70892
120.18 Revised; interim; eff. 3-25-20..............................70892
120.19 (a) introductory text revised; interim; eff. 3-25-20........70892
120.50 (a)(1) and (2) amended; (a)(3), (4), and (b) added; 
        interim; eff. 3-25-20......................................70892
120.51 (a) introductory text revised; interim; eff. 3-25-20........70892
120.54 Added; interim; eff. 3-25-20................................70892
120.55 Added; interim; eff. 3-25-20................................70893

[[Page 1132]]

121.1 (a)(3)(ix) removed; (b) revised; Category XI note added......45654
121.1 Category XI (b) revised; eff. 8-30-21........................45654
126.1 (a) revised..................................................16401
126.4 Revised......................................................16401
127.10 (a)(1)(i), (ii), and (iii) amended...........................9959
138.400 Amended.....................................................9959
147 Heading revised................................................37577
147.1--147.9 (Subpart A) Nomenclature change.......................37577
147.2 Amended......................................................37577
147.3 Introductory text and section amended........................37577
147.4 (a) and (b) amended..........................................37577
147.5 Amended......................................................37577
147.6 Heading revised..............................................37577
147.6 (b), (c), and (d) amended....................................37577
147.7--147.9 (Subpart B) Amended...................................37578
147.7 (b) amended..................................................37578
147.9 Added........................................................37578
Chapter II
203 Removed........................................................37081

                                  2020

22 CFR
                                                                   85 FR
                                                                    Page
Chapter I
35.3 (f) amended; nomenclature change...............................2022
41 Authority citation revised.......................................4225
41.11 (c) added; eff. through 6-24-21..............................74882
41.12 Table amended................................................38321
41.31 (b)(2) revised................................................4225
41.57 Heading revised; (b) removed.................................38321
41.101 (f) removed.................................................38321
42.23 (a) removed..................................................38322
42.32 (d)(2) revised...............................................36326
42.34 Added........................................................36326
103.6 (a)(1) and (2) amended........................................2022
120 Policy statement........................................25287, 45513
120 Notifications...........................................35376, 79836
121 Notification...................................................18445
121.1 Amended.......................................................3830
122 Policy statement........................................25287, 26847
122 Notifications..................................................35376
123 Notification............................................18445, 35376
123 Policy statement...............................................25287
123.15 (a)(3) revised...............................................3832
123.16 (b)(2) introductory text and (6) revised; (b)(7) removed.....3832
123.17 Heading and (j) revised; (a) through (e) removed.............3832
123.18 Removed......................................................3833
124 Notification............................................18445, 35376
124 Policy statement...............................................25287
124.14 (c)(9) revised...............................................3833
126 Authority citation revised.....................................44189
126 Notification...................................................18445
126.1 (u) revised..................................................44189
126.1 (r) revised; eff. 1-1-20 through 9-30-21.....................60699
126.1 (s) revised...................................................3833
127.10 (a)(1)(i), (ii), and (iii) amended...........................2022
129 Notification............................................18445, 35376
129 Policy statement...............................................25287
129 Notification............................................18445, 35376
129 Policy statement...............................................25287
129.1 (b) revised...................................................3833
129.2 (b)(2)(v) and (vi) amended; (b)(2)(vii) and (viii) added......3833
129.4 (a)(1) and (2)(i) revised.....................................3833
129.6 (b)(3)(i) revised.............................................3833
138.400 (e) amended; nomenclature change............................2022
139 Removed........................................................38321
Chapter II
171.26 (a)(2)(iii) and (b)(1) through (7) amended..................13483
205.1 (a), (c), (f), and (g) revised; (l) added....................82134
228.01 Revised; eff. through 4-30-21...............................67445
228.01 Correction: Revised; eff. through 4-30-21...................81390
228.11 Revised; eff. through 4-30-21...............................67445
228.30 Revised; eff. through 4-30-21...............................67445

                                  2021

   (Regulations published from January 1, 2021, through April 1, 2021)

22 CFR
                                                                   86 FR
                                                                    Page
Chapter I
35.3 Section and (f) amended........................................7806
41.26 (a)(3), (c) introductory text, (1) introductory text, (xii), 
        (xiv), (2) introductory text, (vi)(A), and (xiii) revised; 
        (c)(1)(xvi) amended........................................10456

[[Page 1133]]

41.27 (c)(1)(i) through (xiii) revised.............................10456
103.6 (a)(1) and (2) amended........................................7806
126.1 (a) amended; (d)(2) table revised; (l) added.................14802
127.10 (a)(1)(i) through (iii) amended..............................7807
138.400 Section and (e) amended.....................................7807
Chapter II
212.25 (Subpart N) Added.............................................251
212.26--212.40 (Subpart O) Added.....................................251


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