[Title 31 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2022 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          


          Title 31

Money and Finance: Treasury


________________________

Parts 0 to 199

                         Revised as of July 1, 2022

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2022
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

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                            Table of Contents



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

  Title 31:
          SUBTITLE A--Office of the Secretary of the Treasury        3
    SUBTITLE B--Regulations Relating to Money and Finance
          Chapter I--Monetary Offices, Department of the 
          Treasury                                                 459
  Finding Aids:
      Table of CFR Titles and Chapters........................     529
      Alphabetical List of Agencies Appearing in the CFR......     549
      List of CFR Sections Affected...........................     559

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 31 CFR 0.101 refers 
                       to title 31, part 0, 
                       section 101.

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

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                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
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    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2022), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
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Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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Register since the last revision of that volume of the Code. Source 
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inserted following the text.

OMB CONTROL NUMBERS

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

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
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PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
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``[RESERVED]'' TERMINOLOGY

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Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
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not dropped in error.

INCORPORATION BY REFERENCE

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This material, like any other properly issued regulation, has the force 
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    An index to the text of ``Title 3--The President'' is carried within 
that volume.

[[Page vii]]

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the revision dates of the 50 CFR titles.

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    Oliver A. Potts,
    Director,
    Office of the Federal Register
    July 1, 2022







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                               THIS TITLE

    Title 31--Money and Finance: Treasury is composed of three volumes. 
The parts in these volumes are arranged in the following order: Parts 0-
199, parts 200-499, and part 500 to end. The contents of these volumes 
represent all current regulations codified under this title of the CFR 
as of July 1, 2022.

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

[[Page 1]]



                  TITLE 31--MONEY AND FINANCE: TREASURY




                   (This book contains parts 0 to 199)

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

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

          SUBTITLE B--Regulations Relating to Money and Finance

chapter i--Monetary Offices, Department of the Treasury.....          56


Abbreviation Used in This Chapter:
    C. P. D. = Commissioner of the Public Debt.

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           Subtitle A--Office of the Secretary of the Treasury

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

Part                                                                Page
0               Department of the Treasury Employee Rules of 
                    Conduct.................................           5
1               Disclosure of records.......................           9
2               National security information...............          75
3               Claims regulations and indemnification of 
                    Department of Treasury employees........          78
4               Employees' personal property claims.........          81
5               Treasury debt collection....................          81
6               Applications for awards under the Equal 
                    Access to Justice Act...................          99
7               Employee inventions.........................         103
8               Practice before the Bureau of Alcohol, 
                    Tobacco and Firearms....................         104
9               Effects of imported articles on the national 
                    security................................         118
10              Practice before the Internal Revenue Service         121
11              Operation of vending facilities by the blind 
                    on Federal property under the control of 
                    the Department of the Treasury..........         162
12              Restriction of sale and distribution of 
                    tobacco products........................         164
13              Procedures for providing assistance to State 
                    and local governments in protecting 
                    foreign diplomatic missions.............         164
14              Right to Financial Privacy Act..............         169
15              Post employment conflict of interest........         170
16              Regulations implementing the Program Fraud 
                    Civil Remedies Act of 1986..............         176
17              Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Department 
                    of the Treasury.........................         192

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18              Officials designated to perform the 
                    functions and duties of certain offices 
                    in case of absence, disability, or 
                    vacancy.................................         198
19              Governmentwide debarment and suspension 
                    (nonprocurement)........................         199
20              Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         222
21              New restrictions on lobbying................         228
22              Nondiscrimination on the basis of race, 
                    color, or national origin in programs or 
                    activities receiving Federal financial 
                    assistance from the Department of the 
                    Treasury................................         239
23              Nondiscrimination on the basis of age in 
                    programs and activities receiving 
                    federal financial assistance from the 
                    Department of the Treasury..............         249
25              Prepayment of foreign military sales loans 
                    made by the Defense Security Assistance 
                    Agency and foreign military sales loans 
                    made by the Federal Financing Bank and 
                    guaranteed by the Defense Security 
                    Assistance Agency.......................         256
26              Environmental review of actions by 
                    Multilateral Development Bands (MDBs)...         267
27              Civil penalty assessment for misuse of 
                    Department of the Treasury names, 
                    symbols, etc............................         269
28              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         274
29              Federal benefit payments under certain 
                    District of Columbia retirement programs         296
30              TARP standards for compensation and 
                    corporate governance....................         332
31              Troubled Asset Relief Program...............         365
32              Payments in lieu of low income housing tax 
                    credits.................................         371
33              Waivers for State innovation................         372
34              Resources and ecosystems sustainability, 
                    tourist opportunities, and revised 
                    economies of the Gulf Coast states......         381
35              Pandemic relief programs....................         397
50              Terrorism Risk Insurance Program............         421

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PART 0_DEPARTMENT OF THE TREASURY EMPLOYEE RULES OF CONDUCT-
-Table of Contents



                      Subpart A_General Provisions

Sec.
0.101 Purpose.
0.102 Applicability.
0.103 Other rules of conduct applicable to Department employees.
0.104 Definitions.
0.105 Responsibilities of employees and supervisors.
0.106 Corrective action.

                       Subpart B_Rules of Conduct

0.201 Acting within scope of authority.
0.202 Conformance with policy and subordination to authority.
0.203 Reporting suspected misconduct.
0.204 Prohibition of reprisal for reporting suspected misconduct.
0.205 Controlled substances and intoxicants.
0.206 Strikes.
0.207 Possession of weapons or explosives.
0.208 Care of agency records.
0.209 Disclosure of records or information.
0.210 Cooperation with official inquiries.
0.211 Falsification of official records.
0.212 Use of government property.
0.213 Government issued charge cards.
0.214 Conduct while on government property.
0.215 Recording government business.
0.216 Influencing legislation or petitioning Congress.
0.217 Nondiscrimination.
0.218 General conduct prejudicial to the government.

    Authority: 5 U.S.C. 301.

    Source: 81 FR 8403, Feb. 19, 2016, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  0.101  Purpose.

    The regulations in this part prescribe procedures and standards of 
conduct that are appropriate to the particular functions and activities 
of the Department of the Treasury (Department).



Sec.  0.102  Applicability.

    (a) Unless otherwise specified, the regulations in this part apply 
to all employees of the Department at all times, regardless of whether 
they are on duty or on leave, including leave without pay.
    (b) The regulations in this part may be supplemented by regulations, 
interpretive guidelines and procedures issued by the Department's 
offices and bureaus. The absence of a specific published rule of conduct 
covering an action or omission does not validate that action or omission 
nor indicate that the action or omission would not result in corrective 
or disciplinary action.



Sec.  0.103  Other rules of conduct applicable to Department employees.

    In addition to the regulations in this part, employees of the 
Department are subject to other applicable statutes and regulations, 
including the following:
    (a) The Standards of Ethical Conduct for Employees of the Executive 
Branch at 5 CFR part 2635;
    (b) The Supplemental Standards of Ethical Conduct for Employees of 
the Department of the Treasury at 5 CFR part 3101;
    (c) Political Activities of Federal Employees regulations at 5 CFR 
part 734;
    (d) The Employee Responsibilities and Conduct regulations at 5 CFR 
part 735; and
    (e) Department of the Treasury Disclosure of Records regulations at 
31 CFR part 1.



Sec.  0.104  Definitions.

    The following definitions are used throughout this part:
    (a) Bureau means:
    (1) Alcohol and Tobacco Tax and Trade Bureau;
    (2) Bureau of Engraving and Printing;
    (3) Bureau of the Fiscal Service;
    (4) Departmental Offices;
    (5) Financial Crimes Enforcement Network;
    (6) Internal Revenue Service;
    (7) Office of the Comptroller of the Currency;
    (8) Office of the Inspector General;
    (9) Office of the Special Inspector General for the Troubled Asset 
Relief Program;
    (10) Office of the Treasury Inspector General for Tax 
Administration;
    (11) United States Mint; and
    (12) Any other organization designated as a bureau by the Secretary 
of the Treasury pursuant to appropriate authority.

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    (b) Person means an individual, corporation, company, association, 
firm, partnership, society, joint stock company, or any other entity, 
organization, or institution.
    (c) Employee means an officer or employee of the Department 
regardless of grade, status or place of employment, including an 
employee on leave with pay or on leave without pay. Unless stated 
otherwise, employee shall include a special government employee.
    (d) Special government employee means an officer or employee of the 
Department who is retained, designated, appointed, or employed, 
regardless of type of appointment, to perform temporary duties on a 
full-time or intermittent basis, with or without compensation, for not 
to exceed 130 days during any period of 365-consecutive days. 18 U.S.C. 
202(a).
    (e) On Department property means present in a building, on property, 
or in space owned by, leased by, occupied by, or under the control of 
the Department.



Sec.  0.105  Responsibilities of employees and supervisors.

    (a) Employees shall comply with all generally accepted rules of 
conduct, the specific provisions of this part, and other applicable 
regulations. An employee with questions about generally accepted rules 
of conduct, the specific provisions of this part, and other applicable 
regulations should consult his or her supervisor, a human resources 
specialist, or Bureau counsel.
    (b) Supervisors, because of their day-to-day relationships with 
their employees, are responsible for ensuring that their employees 
maintain high standards of conduct. Supervisors must be familiar with 
this part and other applicable regulations and must apply generally 
accepted rules of conduct, the standards in this part, and the standards 
in other applicable regulations to the work they do and supervise. 
Supervisors shall take appropriate action, including disciplinary 
action, when violations of this part or other applicable regulations 
occur.



Sec.  0.106  Corrective action.

    An employee's violation of generally accepted rules of conduct, the 
standards in this part, or the standards in other applicable regulations 
may result in appropriate corrective or disciplinary action, in addition 
to any penalty prescribed by law.



                       Subpart B_Rules of Conduct



Sec.  0.201  Acting within scope of authority.

    An employee shall not engage in any conduct or activity that is in 
excess of his or her authority or is otherwise contrary to any law, 
regulation, or Department policy.



Sec.  0.202  Conformance with policy and subordination to authority.

    (a) Employees are required to comply with the lawful directives of 
their supervisor and other management officials.
    (b) Employees shall be familiar and comply with regulations and 
published instructions that relate to their official duties and 
responsibilities.



Sec.  0.203  Reporting suspected misconduct.

    (a) An employee shall immediately report to his or her supervisor, 
to any management official, or to the applicable Office of Inspector 
General:
    (1) Any information that the employee reasonably believes indicates 
a possible offense against the United States by an employee of the 
Department or any other individual working on behalf of the Department, 
including, but not limited to, bribery; fraud; perjury; conflict of 
interest; misuse of funds, government purchase or employee travel credit 
cards, equipment, or facilities; and other conduct which is prohibited 
by title 18 of the United States Code;
    (2) Any suspected violation of a statute, rule, or regulation, 
including this part and the regulations referenced in section 0.103 of 
this part;
    (3) Any instance in which another person inside or outside the 
federal government uses or attempts to use undue influence to induce an 
employee to do or omit to do any official act in derogation of his 
official duty; and,
    (4) Any information that the employee reasonably believes indicates

[[Page 7]]

the existence of an activity constituting:
    (i) Mismanagement, a gross waste of funds, or abuse of authority;
    (ii) A substantial and specific danger to the public health and 
safety;
    (iii) A threat to the integrity of programs and operations relating 
to the Department; or
    (iv) A violation of merit systems principles or a prohibited 
personnel practice as described in 5 U.S.C. 2301 and 2302.
    (b) Bureau counsel who, during the course of providing advice to or 
representation of a bureau, acquire information of the type described in 
paragraph (a) of this section, shall report the information to the 
reporting employee's supervisor, the Chief or Legal Counsel, or the 
Deputy General Counsel, who shall report such information to the 
relevant Inspector General.
    (c) This section does not cover matters addressed through employee 
grievances, equal employment opportunity complaints, Merit Systems 
Protection Board appeals, classification appeals, or other matters for 
which separate, formal systems have been established.



Sec.  0.204  Prohibition of reprisal for reporting suspected misconduct.

    Any employee who has authority to take, direct others to take, 
recommend, or approve any personnel action, shall not, with respect to 
such authority, take or threaten to take any action against any employee 
as a reprisal for providing any information in accordance with Sec.  
0.203 of this part or through other processes established by law. 
However, if an employee makes a complaint or discloses information with 
the knowledge that it was false, or with willful disregard of its truth 
or falsity, such conduct may be grounds for disciplinary action, and 
such action shall not constitute reprisal.



Sec.  0.205  Controlled substances and intoxicants.

    Employees shall not sell, offer to sell, buy, offer to buy, use, or 
possess, controlled substances in violation of federal law. Employees 
shall not use or be under the influence of alcohol in a manner that 
adversely affects their work performance. Employees may consume alcohol 
on Department property only when authorized in accordance with 
Department or bureau policies and directives.



Sec.  0.206  Strikes.

    Employees shall not participate in a labor strike, work stoppage, or 
work slowdown against the government.



Sec.  0.207  Possession of weapons or explosives.

    (a) Employees shall not possess firearms, explosives, or other 
dangerous weapons, as defined at 40 U.S.C. 5104(a), either openly or 
concealed, while on Department property or while on official duty.
    (b) The prohibition of paragraph (a) of this section does not apply 
to the possession of authorized weapons or explosives by employees who 
are required to possess such authorized weapons or explosives in the 
performance of their official duties.



Sec.  0.208  Care of agency records.

    (a) Employees shall not remove, alter, destroy, mutilate, access, 
copy, or retain documents or data in the custody of the federal 
government or provided to them in the course of their employment, 
without proper authorization.
    (b) The term ``documents'' includes, but is not limited to, any 
written, printed, typed or other graphic material, recording, computer 
tape, disk or hard drive, storage medium, blueprint, photograph, or 
other physical object on which information is recorded, including all 
copies of the foregoing by whatever means made, and any electronic file, 
data, or information stored on or created on a government computer, 
database, application, program, network, or storage medium.



Sec.  0.209  Disclosure of records or information.

    (a) Employees shall not disclose or use official information without 
proper authority. Employees authorized to make disclosures should 
respond promptly and courteously to requests from the public for 
information when permitted to do so by law.
    (b) Employees who have access to information that is classified for 
security

[[Page 8]]

reasons in accordance with Executive Order 13526, or any successor 
Executive Order governing Classified National Security Information, are 
responsible for its custody and safekeeping, and for assuring that it is 
not disclosed to unauthorized persons. See 18 U.S.C. 798; 50 U.S.C. 
783(a); 31 CFR part 2.



Sec.  0.210  Cooperation with official inquiries.

    Employees directed by competent Department or other federal 
authority to provide oral or written responses to questions, or to 
provide documents and other materials concerning matters of official 
interest, shall timely respond fully, truthfully, and, when required, 
under oath.



Sec.  0.211  Falsification of official records.

    Employees shall not intentionally or with willful disregard make 
false or misleading statements, orally or in writing, in connection with 
any matter of official interest. Matters of official interest include, 
but are not limited to, the following: Official reports and any other 
official information upon which the Department, the Congress, other 
government agencies, or the public may act or rely; transactions with 
the public, government agencies or other government employees; 
application forms and other forms that serve as a basis for any 
personnel action; vouchers; time and attendance records, including leave 
records; work reports of any nature or accounts of any kind; affidavits; 
record of or data concerning any matter relating to or connected with an 
employee's duties; personnel records; and reports of any moneys or 
securities received, held or paid to, for or on behalf of the United 
States.



Sec.  0.212  Use of government property.

    (a) An employee shall not directly or indirectly use, or allow the 
use of, government property of any kind, including property leased to 
the government, for other than officially approved activities. This 
includes the use of government-provided information technology 
equipment, internet access, cellular telephones, personal digital 
assistants, and other devices in a manner that is inconsistent with the 
Department's policy permitting reasonable personal use. An employee has 
a positive duty to protect and conserve government property including 
equipment, supplies, intellectual property, and other property made 
available, entrusted, or issued to the employee for official use.
    (b) Employees shall not use government vehicles for unofficial 
purposes, including to transport unauthorized passengers. The use of 
government vehicles for transporting employees between their domiciles 
and places of employment is prohibited except when authorized by the 
Secretary pursuant to 31 U.S.C. 1344 or other statute.



Sec.  0.213  Government issued charge cards.

    (a) Employees shall not make improper purchases with government 
contractor-issued charge cards.
    (b) Employees shall timely pay undisputed amounts owed on government 
contractor-issued travel charge cards.



Sec.  0.214  Conduct while on government property.

    (a) Employees must adhere to the regulations that govern the conduct 
of individuals who are in the buildings or space occupied by, or on 
grounds of, particular government property.
    (b) Employees shall not solicit, make collections, canvass for the 
sale of any article, or distribute literature or advertising on 
Department property without appropriate authorization.



Sec.  0.215  Recording government business.

    An employee shall not electronically transmit, or create audio or 
video recordings of, conversations, meetings, or conferences in the 
workplace or while conducting business on behalf of the Department, 
except where authorized.

[82 FR 47106, Oct. 11, 2017]



Sec.  0.216  Influencing legislation or petitioning Congress.

    Except for the official handling, through the proper channels, of 
matters relating to legislation in which the Department has an interest, 
employees shall not use government time, money, or property to petition 
a Member of

[[Page 9]]

Congress to favor or oppose any legislation or proposed legislation, or 
to encourage others to do so. This section does not prohibit the use of 
government time by union representatives to petition a Member of 
Congress to favor or oppose any legislation or proposed legislation, 
where permitted by the terms of a collective bargaining agreement.

[82 FR 47106, Oct. 11, 2017]



Sec.  0.217  Nondiscrimination.

    (a) Employees shall not discriminate against or harass any other 
employee, applicant for employment, contractor, or person dealing with 
the Department on official business on the basis of race, color, 
religion, national origin, sex, sexual orientation, age, disability, 
political affiliation, marital status, parental status, veterans status, 
or genetic information.
    (b) Supervisors shall not retaliate against an employee for 
complaining about suspected unlawful discrimination or harassment, 
seeking accommodation for a disability, or otherwise exercising their 
right to be free from unlawful discrimination.
    (c) An employee who engages in discriminatory or retaliatory conduct 
may be disciplined under these regulations, as well as other applicable 
laws. However, this section does not create any enforceable legal rights 
in any person.



Sec.  0.218  General conduct prejudicial to the government.

    An employee shall not engage in criminal, infamous, dishonest, 
immoral, or notoriously disgraceful conduct, or other conduct 
prejudicial to the government.



PART 1_DISCLOSURE OF RECORDS--Table of Contents



                  Subpart A_Freedom of Information Act

Sec.
1.0 General provisions.
1.1 Proactive disclosure of Department records.
1.2 Requirements for making requests.
1.3 Responsibility for responding to requests.
1.4 Responses to requests.
1.5 Confidential commercial information.
1.6 Administrative appeals.
1.7 Fees.

Appendix A to Subpart A of Part 1--Departmental Offices
Appendix B to Subpart A of Part 1--Internal Revenue Service
Appendix C to Subpart A of Part 1--Bureau of Engraving and Printing
Appendix D to Subpart A of Part 1--Bureau of the Fiscal Service
Appendix E to Subpart A of Part 1--United States Mint
Appendix F to Subpart A of Part 1--Office of the Comptroller of the 
          Currency
Appendix G to Subpart A of Part 1--Financial Crimes Enforcement Network
Appendix H to Subpart A of Part 1--Alcohol and Tobacco Tax and Trade 
          Bureau
Appendix I to Subpart A of Part 1--Treasury Inspector General for Tax 
          Administration

                  Subpart B_Other Disclosure Provisions

1.8 Scope.
1.9 Records not to be otherwise withdrawn or disclosed.
1.10 Oral information.
1.11 Testimony or the production of records in a court or other 
          proceeding.
1.12 Regulations not applicable to official request.

                          Subpart C_Privacy Act

1.20 Purpose and scope of regulation.
1.21 Definitions.
1.22 Requirements relating to systems of records.
1.23 Publication in the Federal Register--Notices of systems of records, 
          general exemptions, specific exemptions, review of all 
          systems.
1.24 Disclosure of records to person other than the individual to whom 
          they pertain.
1.25 Accounting of disclosures.
1.26 Procedures for notification and access to records pertaining to 
          individuals--format and fees for request for access.
1.27 Procedures for amendment of records pertaining to individuals--
          format, agency review and appeal from initial adverse agency 
          determination.
1.28 Training, rules of conduct, penalties for non-compliance.
1.29 Records transferred to Federal Records Center or National Archives 
          of the United States.
1.30 Application to system of records maintained by Government 
          contractors.
1.31 Sale or rental of mailing lists.
1.32 Use and disclosure of social security numbers.
1.34 Guardianship.
1.35 Information forms.

[[Page 10]]

1.36 Systems exempt in whole or in part from provisions of 5 U.S.C. 552a 
          and this part.

Appendix A to Subpart C of Part 1--Departmental Offices
Appendix B to Subpart C of Part 1--Internal Revenue Service
Appendix C to Subpart C of Part 1--United States Customs Service
Appendix D to Subpart C of Part 1--United States Secret Service
Appendix E to Subpart C of Part 1--Bureau of Alcohol, Tobacco and 
          Firearms
Appendix F to Subpart C of Part 1--Bureau of Engraving and Printing
Appendix G to Subpart C of Part 1--Financial Management Service
Appendix H to Subpart C of Part 1--United States Mint
Appendix I to Subpart C of Part 1--Bureau of the Public Debt
Appendix J to Subpart C of Part 1--Office of the Comptroller of the 
          Currency
Appendix K to Subpart C of Part 1--Federal Law Enforcement Training 
          Center
Appendix L to Subpart C of Part 1--Office of Thrift Supervision
Appendix M to Subpart C of Part 1 [Reserved]
Appendix N to Subpart C of Part 1--Financial Crimes Network

    Authority: 5 U.S.C. 301, 552, 552a, 553; 31 U.S.C. 301, 321; 31 
U.S.C. 3717.

    Source: 52 FR 26305, July 14, 1987, unless otherwise noted.



                  Subpart A_Freedom of Information Act

    Source: 84 FR 6325, Feb. 27, 2019, unless otherwise noted.



Sec.  1.0  General provisions.

    (a) This subpart contains the rules that the Department of the 
Treasury follows in processing requests for records under the Freedom of 
Information Act (FOIA), 5 U.S.C. 552 as amended. These regulations apply 
to all components of the Department of the Treasury. Requests made by 
individuals for records about themselves under the Privacy Act of 1974, 
5 U.S.C. 552a, are processed under subpart C of part 1 as well as under 
this subpart.
    (b) The components of the Department of the Treasury for the 
purposes of this subpart are the following offices and bureaus:
    (1) The Departmental Offices, which include the offices of:
    (i) The Secretary of the Treasury, including immediate staff;
    (ii) The Deputy Secretary of the Treasury, including immediate 
staff;
    (iii) The Chief of Staff, including immediate staff;
    (iv) The Executive Secretary of the Treasury and all offices 
reporting to such official, including immediate staff;
    (v) The Under Secretary (International Affairs) and all offices 
reporting to such official, including immediate staff;
    (vi) The Under Secretary (Domestic Finance) and all offices 
reporting to such official, including immediate staff;
    (vii) The Director of the Community Development Financial 
Institution Fund and all offices reporting to such official, including 
immediate staff;
    (viii) The Director of the Office of Financial Research and all 
offices reporting to such official, including immediate staff;
    (ix) The Under Secretary (Terrorism and Financial Intelligence) and 
all offices reporting to such official, including immediate staff;
    (x) The Director of the Office of Foreign Assets Control and all 
offices reporting to such official, including immediate staff;
    (xi) The General Counsel and all offices reporting to such official, 
including immediate staff, but not including legal counsel to the 
components listed in paragraphs (b)(2) through (10) of this section;
    (xii) The Treasurer of the United States, including immediate staff;
    (xiii) The Assistant Secretary (Legislative Affairs) and all offices 
reporting to such official, including immediate staff;
    (xiv) The Assistant Secretary (Public Affairs) and all offices 
reporting to such official, including immediate staff;
    (xv) The Assistant Secretary (Economic Policy) and all offices 
reporting to such official, including immediate staff;
    (xvi) The Assistant Secretary (Tax Policy) and all offices reporting 
to such official, including immediate staff;

[[Page 11]]

    (xvii) The Assistant Secretary (Management) and all offices 
reporting to such official, including immediate staff; and
    (xviii) [Reserved]
    (xix) The Inspector General and all offices reporting to such 
official, including immediate staff;
    (2) The Alcohol and Tobacco Tax and Trade Bureau;
    (3) The Bureau of Engraving and Printing;
    (4) The Bureau of the Fiscal Service;
    (5) The Financial Crimes Enforcement Network;
    (6) The Internal Revenue Service;
    (7) The Office of the Comptroller of the Currency;
    (8) The United States Mint;
    (9) The Treasury Inspector General for Tax Administration;
    (10) The Special Inspector General for the Troubled Asset Relief 
Program.
    (c) Any Treasury office which is now in existence or may hereafter 
be established, which is not specifically listed above and is not a 
subsidiary unit of a component of those listed above, shall be deemed a 
part of the Departmental Offices for the purpose of these regulations.
    (d) The head of each component is hereby authorized to substitute 
the official designated and change the address specified in the appendix 
to this subpart applicable to that component. Components may issue 
supplementary regulations applicable only to the component in question, 
which (except with respect to fee schedules) shall be consistent with 
these regulations. Persons interested in the records of a particular 
component should, therefore, also consult the Code of Federal 
Regulations for any rules or regulations promulgated specifically with 
respect to that component (see Appendices to this subpart for cross 
references). In the event of any actual or apparent inconsistency, these 
Departmental regulations shall govern.
    (e) Each component 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 4.2 of the National Archives and Records Administration. 
Records that are identified as responsive to a request will not be 
disposed of or destroyed while they are the subject of a pending 
request, administrative appeal, or lawsuit under the FOIA.
    (f) Nothing in this subpart shall be construed to entitle any 
person, as of right, to any service or to the disclosure of any record 
to which such person is not entitled under the FOIA.



Sec.  1.1  Proactive disclosure of Department records.

    (a) Records that are required by the FOIA to be made available for 
public inspection in an electronic format may be accessed through the 
Department's website, http://www.treasury.gov, and/or on the website of 
the component that maintains such records. The FOIA office of each 
component is responsible for determining which of the component's 
records are required to be made publicly available, as well as 
identifying additional records of interest to the public that are 
appropriate for public disclosure, and for posting such records. Each 
component has a FOIA Public Liaison who can assist individuals in 
locating records particular to that component. A list of the 
Department's FOIA Public Liaisons is available at: https://
home.treasury.gov/footer/freedom-of-information-act.
    (b) When a component receives three or more requests for the same 
records, it shall make available for public inspection in an electronic 
format, any records released in response to those requests.



Sec.  1.2  Requirements for making requests.

    (a) General information. (1) Requests should be addressed to the 
FOIA office of the component that maintains the requested records. The 
appendices to this subpart list the addresses of each FOIA office and 
the methods for submitting requests to each component. Requesters are 
encouraged to submit requests online (through FOIA.gov, component web 
pages or by completing the ``Submit an Online Request'' form located at 
https://home.treasury.gov/footer/freedom-of-information-act.

[[Page 12]]

    (2) When a requester is unable to determine the appropriate 
Departmental component to which to direct a request, the requester may 
send the request to Freedom of Information Act Request, Department of 
the Treasury, Departmental Offices (DO), Director, FOIA and 
Transparency, 1500 Pennsylvania Avenue NW, Washington, DC 20220. The 
FOIA and Transparency team will forward the request to the component(s) 
that it determines to be most likely to maintain the records that are 
sought.
    (3) A requester who is making a request for records about himself or 
herself must comply with the verification of identity provision set 
forth in section 1.26 of subpart C of this part.
    (4) 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 by that 
individual made in compliance with the requirements set forth in 28 
U.S.C. 1746, authorizing disclosure of the records to the requester, or 
submitting proof that the individual is deceased (e.g., a copy of a 
death certificate). As an exercise of its administrative discretion, 
each component can require a requester to supply additional information, 
if necessary, in order to verify that a particular individual has 
consented to disclosure.
    (b) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable Department personnel to 
locate them with a reasonable amount of effort. To the extent possible, 
requesters should include specific information that may assist a 
component 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. Requesters should refer to the 
Appendices of this subpart for additional component-specific 
requirements. In general, requesters should include as much detail as 
possible about the specific records or the types of records that they 
are seeking. If the requester fails to reasonably describe the records 
sought, the component shall inform the requester what additional 
information is needed or why the request is deficient. Requesters who 
are attempting to reformulate or modify such a request may discuss their 
request with the component's designated FOIA contact or the FOIA Public 
Liaison. When a requester fails to provide sufficient detail after 
having been asked to clarify a request, the component shall notify the 
requester that the request has not been properly made and that the 
request will be administratively closed.



Sec.  1.3  Responsibility for responding to requests.

    (a) In general. The component that first receives a request for a 
record and maintains that record is the component responsible for 
responding to the request. In determining which records are responsive 
to a request, a component ordinarily will include only records in its 
possession as of the date that it begins its search. If any other date 
is used, the component shall inform the requester of that date. A record 
that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 
552(c), shall not be considered responsive to a request.
    (b) Authority to grant or deny requests. The head of a component, or 
designee, is authorized to grant or to deny any requests for records 
that are maintained by that component.
    (c) Re-routing of misdirected requests. When a component's FOIA 
office determines that a request was misdirected within the agency, the 
receiving component's FOIA office must route the request to the FOIA 
office of the proper component(s) within the agency.
    (d) Consultation, referral, and coordination. When reviewing records 
located by a component in response to a request, the component will 
determine whether another agency of the Federal Government is better 
able to determine whether the record is exempt from disclosure under the 
FOIA. As to any such record, the agency must proceed in one of the 
following ways:
    (1) Consultation. When records originated with the component 
processing the request, but contain within them information of interest 
to another agency or other Federal Government office, the agency 
processing the request should typically consult with

[[Page 13]]

that other entity prior to making a release determination.
    (2) Referral. (i) When the component processing the request believes 
that a different agency is best able to determine whether to disclose 
the record, the component typically should refer the responsibility for 
responding to the request regarding that record to that agency. 
Ordinarily, the agency that originated the record is presumed to be the 
best agency to make the disclosure determination. However, if the 
component processing the request is in the best position to respond 
regarding the record, then the record may be handled as a consultation.
    (ii) Whenever a component refers any part of the responsibility for 
responding to a request to another agency, it must document the 
referral, maintain a copy of the record that it refers, and notify the 
requester of the referral, informing 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. For example, if a non-law enforcement 
agency responding to a request for records on a living third party 
locates within its files records originating with a law enforcement 
agency, and if the existence of that law enforcement interest in the 
third party was not publicly known, then to disclose that law 
enforcement interest could cause an unwarranted invasion of the personal 
privacy of the third party. Similarly, if an agency locates within its 
files material originating with an Intelligence Community agency, and 
the involvement of that agency in the matter is classified and not 
publicly acknowledged, then to disclose or give attribution to the 
involvement of that Intelligence Community agency could cause national 
security harms. In such instances, in order to avoid harm to an interest 
protected by an applicable exemption, the agency that received the 
request should 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 should then be conveyed 
to the requester by the agency that originally received the request.
    (4) Timing of responses to consultations and referrals. All 
consultations and referrals will be handled according to the date that 
the FOIA request was initially received by the component or other agency 
of the Federal government.
    (5) Agreements regarding consultations and referrals. Components may 
establish agreements with other Treasury components or agencies of the 
Federal government to eliminate the need for consultations or referrals 
with respect to particular types of records.
    (e) Classified information. On receipt of any request involving 
classified information, the component shall take appropriate action to 
ensure compliance with part 2 of this title and with all other laws and 
regulations relating to proper handling of classified information. 
Whenever a request involves a record containing information that has 
been classified or may be appropriate for classification by another 
component or agency under any applicable executive order concerning the 
classification of records, the receiving component shall refer the 
responsibility for responding to the request regarding that information 
to the component or agency that classified the information, or that 
should consider the information for classification. Whenever a 
component's record contains information that has been derivatively 
classified, i.e., it contains information classified by another 
component or agency of the Federal government, the component shall refer 
the responsibility for responding to that portion of the request to the 
component or agency that classified the underlying information.



Sec.  1.4  Responses to requests.

    (a) In general. Components ordinarily will respond to requests 
according to their order of receipt. The Appendices to this subpart 
contain the list of the Departmental components that are designated to 
accept requests. In instances involving misdirected requests, i.e., 
where a request is sent to one of

[[Page 14]]

the components designated in the Appendices but is actually seeking 
records maintained by another component, the response time will commence 
on the date that the request is received by the appropriate component, 
but in any event not later than ten working days after the request is 
first received.
    (b) Multitrack processing. All components must designate a specific 
track for requests that are granted expedited processing, in accordance 
with the standards set forth in paragraph (e) of this section. A 
component may also 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. A 
component can consider factors such as the number of pages involved in 
processing the request or the need for consultations or referrals. 
Components 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.
    (c) Unusual circumstances. Whenever the statutory time limits for 
processing a request cannot be met because of ``unusual circumstances,'' 
as defined in the FOIA, and the component extends the time limits on 
that basis, the component shall, before expiration of the twenty-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 ten 
working days, the component shall, as described by the FOIA, provide the 
requester with an opportunity to modify the request or agree to an 
alternative time period for processing. The component shall make 
available its designated FOIA contact or its FOIA Public Liaison for 
this purpose. The component must also alert requesters to the 
availability of the Office of Government Information Services to provide 
dispute resolution services.
    (d) Aggregating requests. For the purposes of identifying unusual 
circumstances under the FOIA, components may aggregate requests in cases 
where it reasonably appears that multiple requests, submitted either by 
a requester or by a group of requesters acting in concert, constitute a 
single request that would otherwise involve unusual circumstances. 
Components will not aggregate multiple requests that involve unrelated 
matters.
    (e) Expedited processing. (1) Requests and appeals will be processed 
on an expedited basis only upon request and when 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. The standard of ``urgency to 
inform'' requires that the records requested pertain to a matter of 
current exigency to the public and that delaying a response to a request 
for records would compromise a significant recognized interest to and 
throughout the general public; or
    (iii) The loss of substantial due process rights.
    (2) A request for expedited processing may be made at any time. 
Requests must be submitted to the component that maintains the records 
requested. The time period for making the determination on the request 
for expedited processing under this section shall commence on the date 
that the component receives the request.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. As a matter of 
administrative discretion, a component may waive the formal 
certification requirement.
    (4) A requester seeking expedited processing under paragraph 
(e)(1)(ii) of this section, who is not a full-time member of the news 
media must establish that he or she is a person whose primary 
professional activity or occupation is information dissemination. Such a 
requester also must establish a particular urgency to inform the public 
about the government activity involved in the request--one that extends

[[Page 15]]

beyond the public's right to know about government activity generally.
    (5) A component shall notify the requester within ten calendar days 
of the receipt of a request for expedited processing of its decision 
whether to grant or deny expedited processing. If expedited processing 
is granted, the request shall be given priority, placed in the 
processing track for expedited requests, and shall be processed as soon 
as practicable. If a component denies expedited processing, any appeal 
of that decision that complies with the procedures set forth in Sec.  
1.6 of this subpart shall be acted on expeditiously.
    (f) Acknowledgments of requests. Upon receipt of a request that will 
take longer than ten business days to process, a component shall send 
the requester an acknowledgment letter that assigns the request an 
individualized tracking number. The component shall also include in the 
acknowledgment a brief description of the records sought to allow 
requesters to more easily keep track of their requests.
    (g) Grants of requests. Once a component makes a determination to 
grant a request in full or in part, it shall notify the requester in 
writing. The component also shall inform the requester of any fees 
charged under Sec.  1.7 of this subpart and shall disclose the requested 
records to the requester promptly upon payment of any applicable fees. 
The component must also inform the requester of the availability of the 
FOIA Public Liaison to offer assistance.
    (h) Adverse determinations of requests. A component making an 
adverse determination denying a request in any respect shall notify the 
requester of that determination in writing. Adverse determinations, or 
denials of requests, include decisions that: The requested record is 
exempt, in whole or in part; the request does not reasonably describe 
the records sought; the information requested is not a record subject to 
the FOIA; the requested record does not exist, cannot be located, or has 
been destroyed; or the requested record is not readily reproducible in 
the form or format sought by the requester. Adverse determinations also 
include denials involving fees or fee waiver matters, and denials of 
requests for expedited processing.
    (i) Content of denial letter. The denial letter shall be signed by 
the head of the component, or FOIA designee, and shall include, when 
applicable:
    (1) The name and title or position of the person responsible for the 
denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by the component in denying the request; and
    (3) An estimate of the volume of any records or information 
withheld, for example, by providing the number of pages or some other 
reasonable form of estimation. This estimation is not required if the 
volume is otherwise indicated by deletions marked on records that are 
disclosed in part, or if the estimate would cause a harm protected by 
one of the exemptions.
    (4) A statement that the denial may be appealed under Sec.  1.6(a) 
of this subpart, and a description of the requirements set forth 
therein.
    (5) A statement notifying the requester of the assistance available 
from the component's FOIA Public Liaison and the dispute resolution 
services offered by the Office of Government Information Services.
    (j) Markings on released documents. 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 shall also be indicated on the record, if 
technically feasible.
    (k) Use of record exclusions. (1) In the event a component 
identifies records that may be subject to exclusion from the 
requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component 
shall consult with the Department of Justice, Office of Information 
Policy (OIP), before applying the exclusion.
    (2) A component invoking an exclusion must maintain an 
administrative record of the process of invocation and of the 
consultation with OIP.



Sec.  1.5  Confidential commercial information.

    (a) Definitions--(1) Confidential commercial information means trade 
secrets and commercial or financial information obtained by the 
Department from

[[Page 16]]

a submitter that may be protected from disclosure under Exemption 4 of 
the FOIA.
    (2) Submitter means any person or entity from whom the Department 
obtains confidential commercial information, directly or indirectly.
    (3) 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 will expire ten years after the date of the submission 
unless the submitter requests and provides justification for a longer 
designation period.
    (b) When notice to submitters is required. (1) A component shall 
promptly provide written notice to a submitter whenever:
    (i) The requested confidential commercial information has been 
designated in good faith by the submitter as information considered 
protected from disclosure under Exemption 4; or
    (ii) The component has a reason to believe that the requested 
confidential commercial information may be protected from disclosure 
under Exemption 4 of the FOIA.
    (2) The notice shall either describe the confidential 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 or manner reasonably likely to 
accomplish it.
    (c) Exceptions to submitter notice requirements. The notice 
requirements of this section shall not apply if:
    (1) The component determines that the confidential commercial 
information is exempt from disclosure under the FOIA;
    (2) The confidential commercial information lawfully has been 
published or has been officially made available to the public; or
    (3) Disclosure of the confidential commercial 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;
    (d) Opportunity to object to disclosure. (1) A component will 
specify a reasonable time period as determined within its administrative 
discretion within which the submitter must respond to the notice 
referenced above. 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 confidential commercial 
information under any exemption of the FOIA. In order to rely on 
Exemption 4 as a basis for nondisclosure, the submitter must explain why 
the information constitutes a trade secret, or commercial or financial 
information that is privileged or confidential.
    (2) A submitter who fails to respond within the time period 
specified in the notice shall be considered to have no objection to 
disclosure of the information. An objection to disclosure received by 
the component after the time period specified in the notice will not be 
considered by the component. Any information provided by a submitter 
under this subpart may itself be subject to disclosure under the FOIA 
and/or protected from disclosure by applicable exemptions or by a 
statute other than the FOIA.
    (e) Analysis of objections. A component shall consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether to 
disclose the requested confidential commercial information.
    (f) Notice of intent to disclose. Whenever a component decides to 
disclose confidential commercial information over the objection of a 
submitter, the component shall provide the submitter written notice, 
which shall include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) Copies of the records that the component intends to disclose or, 
in the alternative, a description of the confidential commercial 
information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.

[[Page 17]]

    (g) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial information, 
the component shall promptly notify the submitter.
    (h) Requester notification. The component shall notify a 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 confidential commercial information; and 
whenever a submitter files a lawsuit to prevent the disclosure of the 
confidential commercial information.



Sec.  1.6  Administrative appeals.

    (a) Requirements for making an appeal. Before seeking review by a 
court of a component's adverse determination, a requester generally must 
first submit a timely administrative appeal. A requester may appeal any 
adverse determinations denying his or her request to the official 
specified in the appropriate appendix to this subpart. Examples of 
adverse determinations are provided in Sec.  1.4(h) of this subpart. The 
requester must make the appeal in writing and to be considered timely it 
must be postmarked, or in the case of electronic submissions, 
transmitted, within 90 calendar days after the date of the component's 
final response. The appeal letter should clearly identify the 
component's determination that is being appealed and the assigned 
request number. The requester should mark both the appeal letter and 
envelope, or subject line of the electronic transmission, ``Freedom of 
Information Act Appeal.''
    (b) Adjudication of appeals. (1) The FOIA appeal official or 
designee specified in the appropriate appendix will act on all appeals 
under this section.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (3) On receipt of any appeal involving classified information, the 
FOIA appeal official or designee must take appropriate action to ensure 
compliance with applicable classification rules.
    (c) Decision on appeals. A decision on an appeal must be made in 
writing by the component within 20 business days after receipt of the 
appeal. A decision that upholds a component's determination must contain 
a statement that identifies the reasons for the affirmance, including 
any FOIA exemptions applied. The decision must 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. If a 
component's decision is remanded or modified on appeal the requester 
will be notified of that determination in writing. The component will 
then further process the request in accordance with that appeal 
determination and respond directly to the requester. Appeals that have 
not been postmarked or transmitted within the specified time frame will 
be considered untimely and will be administratively closed with written 
notice to the requester.
    (d) Engaging in dispute resolution services provided by Office of 
Government Information Services (OGIS). Mediation is a voluntary 
process. If a component 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.



Sec.  1.7  Fees.

    (a) In general. Components may charge for processing requests under 
the FOIA in accordance with the provisions of this section or may issue 
their own fee schedules as long as they are consistent with the OMB 
Guidelines. In order to resolve any fee issues that arise under this 
section, a component may contact a requester for additional information. 
A component 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, or by 
other means specified at https://home.treasury.gov/footer/freedom-of-
information-act.
    (b) Definitions. For purposes of this section:
    (1) Commercial-use request is a request for information for a use or 
a purpose that furthers a commercial, trade, or

[[Page 18]]

profit interest, which can include furthering those interests through 
litigation.
    (2) Direct costs are those expenses that a component expends in 
searching for and duplicating (and, in the case of commercial-use 
requests, reviewing) records in order to respond to a FOIA request. For 
example, direct costs include the salary of the employee performing the 
work (i.e., the basic rate of pay for the employee, plus 16 percent of 
that rate to cover benefits) and the cost of operating computers and 
other electronic equipment, such as photocopiers and scanners. Direct 
costs do not include overhead expenses such as the costs of space, and 
of heating or lighting a facility. Components shall ensure that 
searches, review, and duplication are conducted in the most efficient 
and the least expensive manner.
    (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 category must show that the 
request is made in connection with the requester's role at the 
educational institution. Components may seek assurance from the 
requester that the request is in furtherance of scholarly research and 
will advise requesters of their placement in this category.
    (5) 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 not for a commercial use.
    (6) Representative of the news media is any person or entity that 
actively gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience. The term 
``news'' means information that is about current events or that would be 
of current interest to the public. Examples of news media entities 
include television or radio stations broadcasting news to the public at 
large and publishers of periodicals that disseminate ``news'' and make 
their products available through a variety of means to the general 
public. A request for records that supports the news-dissemination 
function of the requester shall not be considered to be for a commercial 
use. ``Freelance'' journalists who demonstrate a solid basis for 
expecting publication through a news media entity shall be considered as 
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.
    (7) Other requester refers to a requester who does not fall within 
any of the previously described categories.
    (8) 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 time spent 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 time also includes time spent 
obtaining and considering any formal objection to disclosure made by a 
confidential commercial information submitter under Sec.  1.5 of this 
subpart, but it does not include time spent resolving general legal or 
policy issues regarding the application of exemptions. Review costs are 
properly charged even if a record ultimately is not disclosed.
    (9) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes time devoted 
to 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.

[[Page 19]]

    (c) Charging fees. Unless a component has issued a separate fee 
schedule, or a waiver or reduction of fees has been granted under 
paragraph (k) of this section, components shall charge the following 
fees. Because the fee amounts provided below already account for the 
direct costs associated with a given fee type, components should not add 
any additional costs to those charges.
    (1) Search. (i) Search fees shall be charged for all requests, 
subject to the restrictions of paragraph (d) of this section. Components 
will charge search fees for all other requesters, subject to the 
restrictions of paragraph (d) of this section. Components 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.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require new 
programming, the fees shall be as follows: executive--$21; 
professional--$16.50; and administrative--$13.00.
    (iii) In addition, requesters will be charged the direct costs 
associated with the creation of any new computer program required to 
locate the requested records.
    (2) Duplication. Duplication fees will be charged to all requesters, 
subject to the restrictions of paragraph (d) of this section. A 
component shall honor a requester's preference for receiving a record in 
a particular form or format where it is readily reproducible by the 
component in the form or format requested. Where photocopies are 
supplied, the component will provide one copy per request at a cost of 
$0.15 per page. For copies of records produced on tapes, disks, other 
forms of duplication, or other electronic media, components will charge 
the direct costs of producing the copy, including operator time. Where 
paper documents must be scanned in order to comply with a requester's 
preference to receive the records in an electronic format, the requester 
shall pay the direct costs associated with scanning those materials, 
including operator's time. For other forms of duplication, components 
will charge the direct costs.
    (3) Review. Review fees will only be charged to requesters who make 
commercial-use requests. Review fees will be assessed in connection with 
the initial review of the record, i.e., the review conducted by a 
component 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, when the appellate authority determines that a 
particular exemption no longer applies, any costs associated with a 
component's re-review of the records in order to consider the use of 
other exemptions may be assessed as review fees. Review costs are 
properly charged even if a record ultimately is not disclosed. Review 
fees will be charged at the same rates as those charged for a search 
under paragraph (c)(1)(ii) of this section.
    (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) If a component fails to comply with the FOIA's time limits in 
which to respond to a 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, except as described in 
paragraphs (d)(2)(i) through (iii) of this section.
    (i) If a component has determined that unusual circumstances as 
defined by the FOIA apply and the agency provided timely written notice 
to the requester in accordance with the FOIA, a failure to comply with 
the time limit shall be excused for an additional ten days.
    (ii) If a component has determined that unusual circumstances as 
defined by the FOIA apply, and more than 5,000 pages are necessary to 
respond to the request, the component may charge search fees, or, in the 
case of requesters described in paragraph (d)(1) of this section, may 
charge duplication fees if

[[Page 20]]

the following steps are taken. The component must have provided timely 
written notice of unusual circumstances to the requester in accordance 
with the FOIA and the component must have discussed with the requester 
via written mail, email, or telephone (or made not less than three good-
faith attempts to do so) how the requester could effectively limit the 
scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If 
this exception is satisfied, the component may charge all applicable 
fees incurred in the processing of the request.
    (iii) If a court has determined that exceptional circumstances exist 
as defined in the FOIA, a failure to comply with the time limits shall 
be excused for the length of time provided by the court order.
    (3) 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.
    (4) Except for requesters seeking records for a commercial use, 
components will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) 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. When a component 
determines or estimates that the fees to be assessed in accordance with 
this section will exceed $25.00, the component shall notify the 
requester of the actual or estimated amount of the fees, including a 
breakdown of the fees for search, review or duplication, unless the 
requester has indicated a willingness to pay fees as high as those 
anticipated. If only a portion of the fee can be estimated readily, the 
component shall advise the requester accordingly. 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. Such a commitment must 
be made by the requester in writing, must indicate a given dollar amount 
the requester is willing to pay, and must be received by the component 
within 30 calendar days from the date of notification of the fee 
estimate. If a commitment is not received within this period, the 
requester shall be notified, in writing, that the request shall be 
closed. Components will inform the requester of their right to seek 
assistance from the appropriate component FOIA Public Liaison or other 
FOIA professional to assist the requester in reformulating request in an 
effort to reduce fees. Components are not required to accept payments in 
installments. If the requester has indicated a willingness to pay some 
designated amount of fees, but the component estimates that the total 
fee will exceed that amount, the component will 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 Component will 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.
    (f) Charges for other services. Although not required to provide 
special services, if a component chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
will be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same document, 
or sending records by means other than first class mail.
    (g) Charging interest. Components may charge interest on any unpaid 
bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the billing date until payment is 
received by the component. Components will 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.

[[Page 21]]

    (h) Aggregating requests. When a component 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 component may aggregate those requests and charge 
accordingly. Components 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, components 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 will not be aggregated.
    (i) Advance payments. (1) For requests other than those described in 
paragraphs (i)(2) and (i)(3) of this section, a component 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 a component 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. A component 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 any component or agency within 30 calendar days of 
the billing date, a component may require that the requester pay the 
full amount due, plus any applicable interest on that prior request and 
the component may require that the requester make an advance payment of 
the full amount of any anticipated fee before the component begins to 
process a new request or continues to process a pending request, or any 
pending appeal. Where a component has a reasonable basis to believe that 
a requester has misrepresented his or her identity in order to avoid 
paying outstanding fees, it may require that the requester provide proof 
of identity.
    (4) In cases in which a component 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 component's fee determination letter, 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 component will 
inform the requester of the contact information for that source.
    (k) Requirements for waiver or reduction of fees. (1) Requesters may 
seek a waiver of fees by submitting a written application demonstrating 
how 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 is not primarily 
in the commercial interest of the requester.
    (2) A component must furnish records responsive to a request without 
charge or at a reduced rate when it determines, based on all available 
information, that 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 is not primarily in the commercial interest of the requester. In 
deciding whether this standard is satisfied the component must consider 
the factors described in paragraphs (k)(2)(i) through (iii) of this 
section:
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the government. 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 information would be likely to 
contribute

[[Page 22]]

significantly to public understanding of those operations or activities. 
This factor is satisfied when the following criteria are met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure of 
information that is already in the public domain, in either the same or 
a substantially identical form, would not be meaningfully informative if 
nothing new would be added to the public's understanding.
    (B) 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 must be 
considered. Components will presume that a representative of the news 
media will satisfy this consideration.
    (iii) The disclosure must not be primarily in the commercial 
interest of the requester. To determine whether disclosure of the 
requested information is primarily in the commercial interest of the 
requester, components will consider the following criteria:
    (A) Components must identify whether the requester has any 
commercial interest that would be furthered by the requested disclosure. 
A commercial interest includes any commercial, trade, or profit 
interest. Requesters must be given an opportunity to provide explanatory 
information regarding this consideration.
    (B) If there is an identified commercial interest, the component 
must determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirements of paragraphs (k)(2)(i) and (ii) of this section are 
satisfied and any commercial interest is not the primary interest 
furthered by the request. Components ordinarily will presume that when a 
news media requester has satisfied the requirements of paragraphs 
(k)(2)(i) and (ii) of this section, the request is not primarily in the 
commercial interest of the requester. Disclosure to data brokers or 
others who merely compile and market government information for direct 
economic return will not be presumed to primarily serve the public 
interest.
    (3) 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.
    (4) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the component and should address the 
criteria referenced above. A requester may submit a fee waiver request 
at a later time so long as the underlying record request is pending or 
on administrative appeal. When a requester who has committed to pay fees 
subsequently asks for a waiver of those fees and that waiver is denied, 
the requester shall be required to pay any costs incurred up to the date 
the fee waiver request was received.
    (5) The requester shall be notified in writing of the decision to 
grant or deny the fee waiver.



      Sec. Appendix A to Subpart A of Part 1--Departmental Offices

    1. In general. This appendix applies to the Departmental Offices as 
defined in 31 CFR 1.1(b)(1).
    2. Public Reading Room. The public reading room for the Departmental 
Offices is the Treasury Library. The library is located in the 
Freedman's Bank Building (Treasury Annex), Room 1020, 1500 Pennsylvania 
Avenue NW, Washington, DC 20220. For building security purposes, 
visitors are required to make an appointment by calling 202-622-0990. 
Treasury also maintains an electronic reading room, which may be 
accessed at https://home.treasury.gov/footer/freedom-of-information-act.
    3. Requests for records.
    (a) Initial determinations as to whether to grant requests for 
records of the Departmental Offices will be made by the Director for 
FOIA and Transparency, or the designee of such official, with the 
exception of initial determinations by the Office of the Inspector 
General and the Special Inspector General for the Troubled Asset Relief 
Program, which will be made by the designee of the respective Inspector 
General.
    (b) Requests for records should be sent to: Freedom of Information 
Request, Departmental Offices, Director, FOIA and Transparency, 
Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington, DC 
20220. Requests may also be submitted via email at [email protected].

[[Page 23]]

    4. Administrative appeal of initial determination to deny records.
    (a) Appellate determinations with respect to records of the 
Departmental Offices or requests for expedited processing will be made 
by the Deputy Assistant Secretary for Privacy, Transparency, and 
Records, or the designee of such official, with the exception of 
appellate determinations by the Office of the Inspector General and the 
Special Inspector General for the Troubled Asset Relief Program, which 
will be made by the respective Inspector General or his or her designee.
    (b) Appeals should be addressed to: Freedom of Information Appeal, 
Departmental Offices, FOIA and Transparency, Department of the Treasury, 
1500 Pennsylvania Avenue NW, Washington, DC 20220. Appeals may also be 
submitted via email at [email protected].



    Sec. Appendix B to Subpart A of Part 1--Internal Revenue Service

    1. In general. This appendix applies to the Internal Revenue Service 
(IRS). See also 26 CFR 601.702.
    2. Public reading room. The IRS no longer maintains physical reading 
rooms. Documents for the public are found on various websites at irs.gov 
including the electronic FOIA Reading Room located at https://
www.irs.gov/uac/electronic-reading-room.
    3. Requests for records. Initial determinations as to whether to 
grant requests for records of the IRS, grant expedited processing, grant 
a fee waiver, or determine requester category will be made by those 
officials specified in 26 CFR 601.702.
    Requests for records should be submitted to the IRS using the 
information below:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
IRS accepts FOIA requests by fax or by mail
------------------------------------------------------------------------
If your request is for IRS Headquarters  ...............................
 Office records concerning matters of
 nationwide applicability, such as
 published guidance (regulations and
 revenue rulings), program management,
 operations, or policies, including
 National or Headquarters Offices of
 Chief Counsel records that are not
 available at the Electronic FOIA
 Reading Room site:.
If your request is for your own records
 or other records controlled at IRS
 field locations including Division
 Counsel offices that are not available
 at the Electronic FOIA Reading Room
 site:.
Fax: 877-807-9215, Mail: IRS FOIA        Fax: 877-891-6035, Mail: IRS
 Request, Stop 211, PO Box 621506,        FOIA Request, Stop 93A, Post
 Atlanta, GA 30362-3006.                  Office Box 621506, Atlanta GA
                                          30362-3006.
------------------------------------------------------------------------

    4. Administrative appeal of initial determination to deny records. 
Appellate determinations with respect to records of the Internal Revenue 
Service will be made by the Commissioner of Internal Revenue or the 
delegate of such officer. Appeals must be in writing and addressed to: 
IRS Appeals Attention: FOIA Appeals, M/Stop 55202, 5045 E Butler Ave., 
Fresno, CA 93727-5136.



Sec. Appendix C to Subpart A of Part 1--Bureau of Engraving and Printing

    1. In general. This appendix applies to the Bureau of Engraving and 
Printing (BEP).
    2. Public reading room. BEP's public reading room is located at 14th 
and C Streets SW, Washington, DC 20228. Individuals wishing to visit the 
public reading room must request an appointment by telephoning (202) 
874-2500. The reading room is open on official business days from 10:00 
a.m. to 4:00 p.m. eastern standard time. Visitors shall comply with 31 
CFR part 605, governing the conduct of persons within the buildings and 
grounds of the BEP. In addition, BEP also maintains an electronic 
reading room, which may be accessed at http://www.bep.gov/
bepfoialibrary.html.
    3. Requests for records. Initial determinations as to whether to 
grant or deny requests for records of the BEP or applicable fees will be 
made by the BEP Director delegate, i.e., Disclosure Officer. Requests 
may be mailed or faxed to: FOIA/PA Request, Disclosure Officer, Bureau 
of Engraving and Printing, Office of the Chief Counsel--FOIA and 
Transparency Services, Washington, DC 20228-0001, Fax Number: (202) 874-
2951.
    4. Administrative Appeal of initial determination to deny records. 
Appellate determinations with respect to records of the BEP will be made 
by the Director of the BEP or the delegate of the Director for purposes 
of this

[[Page 24]]

section. Appeals may be mailed or delivered in person to: FOIA/PA 
APPEAL, Director, Bureau of Engraving and Printing, Office of the 
Director, 14th and C Streets SW, Washington, DC 20228-0001.



  Sec. Appendix D to Subpart A of Part 1-- Bureau of the Fiscal Service

    1. In general. This appendix applies to the Bureau of the Fiscal 
Service.
    2. Public reading room. The public reading room for the Bureau of 
the Fiscal Service is the Treasury Library. The library is located in 
the Freedman's Bank Building (Treasury Annex), Room 1020, 1500 
Pennsylvania Avenue NW, Washington, DC 20220. For building security 
reasons, visitors are required to make an appointment by calling 202-
622-0990. Fiscal Service also maintains an electronic reading room, 
which may be accessed at https://www.fiscal.treasury.gov/foia/
foia_readingroom.htm.
    3. Requests for records. Initial determinations whether to grant 
requests for records will be made by the Disclosure Officer, Bureau of 
the Fiscal Service. Requests may be mailed or delivered in person to:
    Freedom of Information Request, Disclosure Officer, Bureau of the 
Fiscal Service, 401 14th Street SW, Washington, DC 20227.
    4. Administrative appeal of initial determination to deny records. 
Appellate determinations will be made by the Commissioner, Bureau of the 
Fiscal Service, or that official's delegate. Appeals may be mailed to: 
Freedom of Information Appeal (FOIA), Commissioner, Bureau of the Fiscal 
Service, 401 14th Street SW, Washington, DC 20227.
    Appeals may be delivered personally to the Office of the 
Commissioner, Bureau of the Fiscal Service, 401 14th Street SW, 
Washington, DC.



       Sec. Appendix E to Subpart A of Part 1--United States Mint

    1. In general. This appendix applies to the United States Mint.
    2. Public reading room. The U.S. Mint will provide a room on an ad 
hoc basis when necessary. Contact the Freedom of Information/Privacy Act 
Officer, United States Mint, Judiciary Square Building, 7th Floor, 633 
3rd Street NW, Washington, DC 20220.
    3. Requests for records. Initial determinations as to whether to 
grant requests for records of the United States Mint will be made by the 
Freedom of Information/Privacy Act Officer, United States Mint. Requests 
may be mailed or delivered in person to: Freedom of Information Act 
Request, Freedom of Information/Privacy Act Officer, United States Mint, 
Judiciary Square Building, 7th Floor, 633 3rd Street NW, Washington, DC 
20220.
    4. Administrative appeal of initial determination to deny records. 
Appellate determinations with respect to records of the United States 
Mint will be made by the Director of the Mint. Appeals made by mail 
should be addressed to: Freedom of Information Appeal, Director, United 
States Mint, Judiciary Square Building, 7th Floor, 633 3rd Street NW, 
Washington, DC 20220.



Sec. Appendix F to Subpart A of Part 1--Office of the Comptroller of the 
                                Currency

    1. In general. This appendix applies to the Office of the 
Comptroller of the Currency.
    2. Public reading room. The Office of the Comptroller of the 
Currency will make materials available through its Public Information 
Room at 250 E Street SW, Washington, DC 20219.
    3. Requests for records. Initial determinations as to whether to 
grant requests for records of the Office of the Comptroller of the 
Currency will be made by the Disclosure Officer or the official so 
designated. Requests may be mailed or delivered in person to: Freedom of 
Information Act Request, Disclosure Officer, Communications Division, 
3rd Floor, Comptroller of the Currency, 250 E Street SW, Washington, DC 
20219.
    4. Administrative appeal of initial determination to deny records. 
Appellate determinations with respect to records of the Comptroller of 
the Currency will be made by the Chief Counsel or delegates of such 
official. Appeals made by mail shall be addressed to: Communications 
Division, Comptroller of the Currency, 250 E Street SW, Washington, DC 
20219.
    Appeals may be delivered personally to the Communications Division, 
Comptroller of the Currency, 250 E Street SW, Washington, DC.



  Sec. Appendix G to Subpart A of Part 1--Financial Crimes Enforcement 
                                 Network

    1. In general. This appendix applies to the Financial Crimes 
Enforcement Network (FinCEN).
    2. Public reading room. FinCEN will provide records on the online 
reading room located on the FinCEN FOIA page or in the Code of Federal 
Regulations.
    3. Requests for records. Initial determinations as to whether to 
grant requests for records of FinCEN will be made by the Freedom of 
Information Act/Privacy Act Officer, FinCEN. Requests for records may be 
mailed to: Freecom of Information Act/Privacy Act Request, Financial 
Crimes Enforcement Network, Post Office Box 39, Vienna, VA 22183.
    4. Administrative appeal of initial determination to deny records. 
Appellate determinations with respect to the records of FinCEN

[[Page 25]]

will be made by the Director of FinCEN or the delegate of the Director. 
Appeals should be mailed to: Freedom of Information Act Appeal, Post 
Office Box 39, Vienna, VA 22183, or emailed to: [email protected].



  Sec. Appendix H to Subpart A of Part 1--Alcohol and Tobacco Tax and 
                              Trade Bureau

    1. In general. This appendix applies to the Alcohol and Tobacco Tax 
and Trade Bureau (TTB).
    2. Public reading room. The public reading room for TTB is 
maintained at 1310 G Street NW, Washington, DC 20005. For building 
security purposes, visitors are required to make an appointment by 
calling 202-882-9904.
    3. Requests for records. Initial determinations as to whether to 
grant requests for records of TTB will be made by the Director, 
Regulations and Rulings Division. Requests for records may be mailed to: 
TTB FOIA Requester Service Center, 1310 G Street NW, Box 12, Washington, 
DC 20005. Requests may also be faxed to: 202-453-2331.
    4. Administrative appeal of initial determination to deny records. 
Appellate determinations with respect to the records of TTB will be made 
by the Assistant Administrator (Headquarters Operations), Alcohol and 
Tobacco Tax and Trade Bureau or the delegate of such official. Appeals 
may be mailed or delivered in person to: FOIA Appeal, Assistant 
Administrator (Headquarters Operations), Alcohol and Tobacco Tax and 
Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005.



 Sec. Appendix I to Subpart A of Part 1--Treasury Inspector General for 
                           Tax Administration

    1. In general. This appendix applies to the Treasury Inspector 
General for Tax Administration (TIGTA).
    2. Public reading room. TIGTA will provide a room upon request when 
necessary. Contact the Disclosure Branch, Office of Chief Counsel, 
TIGTA, at 202-622-4068.
    3. Requests for records. Initial determinations as to whether to 
grant requests for records of TIGTA will be made by the Disclosure 
Officer, TIGTA. Requests for records may be mailed to: Freedom of 
Information Act/Privacy Act Request, Treasury Inspector General for Tax 
Administration, Office of Chief Counsel, Disclosure Branch, 1401 H 
Street NW, Room 469, Washington, DC 20005. You may also view the How to 
Make a FOIA Request for TIGTA Records at https://www.treasury.gov/tigta/
important_foia_mafr.shtml. TIGTA's FOIA email address is 
[email protected].
    4. Administrative appeal of initial determination to deny records. 
Appellate determinations with respect to the records of TIGTA will be 
made by the Chief Counsel, TIGTA, or the delegate of the Chief Counsel. 
Appeals should be mailed to: Freedom of Information Act/Privacy Act 
Appeal, Treasury Inspector General for Tax Administration, Office of 
Chief Counsel, 1401 H Street NW, Room 469, Washington, DC 20005.



                  Subpart B_Other Disclosure Provisions



Sec.  1.8  Scope.

    The regulations in this subpart concern access to information and 
records other than under 5 U.S.C. 552. This subpart is applicable to the 
Departmental Offices and to the bureaus of the Department as defined in 
Sec.  1.1(a) of this part, except to the extent that bureaus of the 
Department have adopted separate guidance governing the subject matter 
of a provision of this subpart.

[69 FR 54003, Sept. 7, 2004]



Sec.  1.9  Records not to be otherwise withdrawn or disclosed.

    Except in accordance with this part, or as otherwise authorized, 
Treasury Department officers and employees are prohibited from making 
records or duplicates available to any person who is not an officer or 
employee of the Department, and are prohibited from withdrawing any such 
records or duplicates from the files, possession or control of the 
Department.

[69 FR 54003, Sept. 7, 2004]



Sec.  1.10  Oral information.

    (a) Officers and employees of the Department may, in response to 
requests, orally provide information contained in records of the 
Department that are determined to be available to the public. If the 
obtaining of such information requires a search of records, a written 
request and the payment of the fee for a record search set forth in 
Sec.  1.6 will be required.
    (b) Information with respect to activities of the Department not a 
matter of record shall not be disclosed if the information involves 
matters exempt from disclosure under 5 U.S.C. 552 or the regulations in 
this part, or if the disclosure of such information would

[[Page 26]]

give the person requesting the information advantages not accorded to 
other citizens.

[69 FR 54003, Sept. 7, 2004]



Sec.  1.11  Testimony or the production of records in a court or other
proceeding.

    (a) Applicability. (1) This section sets forth the policies and 
procedures of the Department regarding the testimony of employees and 
former employees as witnesses in legal proceedings and the production or 
disclosure of information contained in Department documents for use in 
legal proceedings pursuant to a request, order, or subpoena 
(collectively referred to in this subpart as a demand).
    (2) This section does not apply to any legal proceeding in which an 
employee is to testify while on leave status regarding facts or events 
that are unrelated to the official business of the Department.
    (3)(i) Nothing in this section affects the rights and procedures 
governing public access to records pursuant to the Freedom of 
Information Act (5 U.S.C. 552) or the Privacy Act (5 U.S.C. 552a).
    (ii) Demands in legal proceedings for the production of records, or 
for the testimony of Department employees regarding information 
protected by the Privacy Act (5 U.S.C. 552a), the Trade Secrets Act (18 
U.S.C. 1905) or other confidentiality statutes, must satisfy the 
requirements for disclosure set forth in those statutes and the 
applicable regulations of this part before the records may be provided 
or testimony given.
    (4) This section is intended only to provide guidance for the 
internal operations of the Department and to inform the public about 
Department procedures concerning the service of process and responses to 
demands or requests, and the procedures specified in this section, or 
the failure of any Treasury employee to follow the procedures specified 
in this section, are not intended to, do not, and may not be relied upon 
to create a right or benefit, substantive or procedural, enforceable at 
law by a party against the United States.
    (b) Definitions. For purposes of this section:
    (1) Agency counsel means:
    (i) With respect to the Departmental Offices, the General Counsel or 
his or her designee; or
    (ii) With respect to a bureau or office of the Department, the Chief 
Counsel or Legal Counsel (or his or her designee) of such bureau or 
office.
    (2) Demand means a request, order, or subpoena for testimony or 
documents related to or for possible use in a legal proceeding.
    (3) Department means the United States Department of the Treasury.
    (4) Document means any record or other property, no matter what 
media and including copies thereof, held by the Department, including 
without limitation, official letters, telegrams, memoranda, reports, 
studies, calendar and diary entries, maps, graphs, pamphlets, notes, 
charts, tabulations, analyses, statistical or informational 
accumulations, any kind of summaries of meetings and conversations, film 
impressions, magnetic tapes and sound or mechanical reproductions.
    (5) Employee means all employees or officers of the Department, 
including contractors and any other individuals who have been appointed 
by, or are subject to the supervision, jurisdiction or control of the 
Secretary, as well as the Secretary of the Treasury. The procedures 
established within this subpart also apply to former employees of the 
Department where specifically noted.
    (6) General Counsel means the General Counsel of the Department or 
other Department employee to whom the General Counsel has delegated 
authority to act under this subpart.
    (7) Legal proceeding means all pretrial, trial and post trial stages 
of all existing or reasonably anticipated judicial or administrative 
actions, hearings, investigations, or similar proceedings before courts, 
commissions, boards, grand juries, or other tribunals, foreign or 
domestic. This phrase includes all phases of discovery as well as 
responses to formal or informal requests by attorneys or others involved 
in legal proceedings.
    (8) Official business means the authorized business of the 
Department.

[[Page 27]]

    (9) Secretary means the Secretary of the Treasury.
    (10) Testimony means a statement in any form, including personal 
appearances before a court or other legal tribunal, interviews, 
depositions, telephonic, televised, or videotaped statements or any 
responses given during discovery or similar proceedings, which response 
would involve more than the production of documents.
    (c) Department policy. No current or former employee shall, in 
response to a demand, produce any Department documents, provide 
testimony regarding any information relating to or based upon Department 
documents, or disclose any information or produce materials acquired as 
part of the performance of that employee's official duties or official 
status, without the prior authorization of the General Counsel or the 
appropriate agency counsel.
    (d) Procedures for demand for testimony or production of documents. 
(1) A demand directed to the Department for the testimony of a 
Department employee or for the production of documents shall be served 
in accordance with the Federal Rules of Civil Procedure, Federal Rules 
of Criminal Procedure, or applicable state procedures and shall be 
directed to the General Counsel, Department of the Treasury, 1500 
Pennsylvania Avenue, NW., Washington, DC 20220, or to the Chief or Legal 
Counsel of the concerned Department component. Acceptance of a demand 
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 applicable laws or rules.
    (2) A subpoena or other demand for testimony directed to an employee 
or former employee shall be served in accordance with the Federal Rules 
of Civil or Criminal Procedure or applicable State procedure and a copy 
of the subpoena shall be sent to agency counsel.
    (3)(i) In court cases in which the United States or the Department 
is not a party, where the giving of testimony or the production of 
documents by the Department, or a current or former employee is desired, 
an affidavit (or if that is not feasible, a statement) by the litigant 
or the litigant's attorney, setting forth the information with respect 
to which the testimony or production is desired, must be submitted in 
order to obtain a decision concerning whether such testimony or 
production will be authorized. Such information shall include: the title 
of the legal proceeding, the forum, the requesting party's interest in 
the legal proceeding, the reason for the demand, a showing that other 
evidence reasonably suited to the requester's needs is not available 
from any other source and, if testimony is requested, the intended use 
of the testimony, a general summary of the desired testimony, and a 
showing that no document could be provided and used in lieu of 
testimony. The purpose of this requirement is to assist agency counsel 
in making an informed decision regarding whether testimony or the 
production of document should be authorized. Permission to testify or 
produce documents will, in all cases, be limited to the information set 
forth in the affidavit or statement, or to such portions thereof as may 
be deemed proper.
    (ii) Agency counsel may consult or negotiate with an attorney for a 
party, or the party if not represented by an attorney, to refine or 
limit a demand so that compliance is less burdensome or obtain 
information necessary to make the determination required by paragraph 
(e) of this section. Failure of the attorney or party to cooperate in 
good faith to enable agency counsel to make an informed determination 
under this subpart may serve, where appropriate, as a basis for a 
determination not to comply with the demand.
    (iii) A determination under this subpart to comply or not to comply 
with a demand is without prejudice as to any formal assertion or waiver 
of privilege, lack of relevance, technical deficiency or any other 
ground for noncompliance.
    (4)(i) Employees shall immediately refer all inquiries and demands 
made on the Department to agency counsel.
    (ii) An employee who receives a subpoena shall immediately forward 
the subpoena to agency counsel. Agency counsel will determine the manner 
in which to respond to the subpoena.

[[Page 28]]

    (e) Factors to be considered by agency counsel. (1) In deciding 
whether to authorize the release of official information or the 
testimony of personnel concerning official information (hereafter 
referred to as ``the disclosure'') agency counsel shall consider the 
following factors:
    (i) Whether the request or demand is unduly burdensome;
    (ii) Whether the request would involve the Department in 
controversial issues unrelated to the Department's mission;
    (iii) Whether the time and money of the United States would be used 
for private purposes;
    (iv) The extent to which the time of employees for conducting 
official business would be compromised;
    (v) Whether the public might misconstrue variances between personal 
opinions of employees and Department policy;
    (vi) Whether the request demonstrates that the information requested 
is relevant and material to the action pending, genuinely necessary to 
the proceeding, unavailable from other sources, and reasonable in its 
scope;
    (vii) Whether the number of similar requests would have a cumulative 
effect on the expenditure of agency resources;
    (viii) Whether disclosure otherwise would be inappropriate under the 
circumstances; and
    (ix) Any other factor that is appropriate.
    (2) Among those demands and requests in response to which compliance 
will not ordinarily be authorized are those with respect to which any of 
the following factors exists:
    (i) The disclosure would violate a statute, Executive order, or 
regulation;
    (ii) The integrity of the administrative and deliberative processes 
of the Department would be compromised;
    (iii) The disclosure would not be appropriate under the rules of 
procedure governing the case or matter in which the demand arose;
    (iv) The disclosure, including release in camera, is not appropriate 
or necessary under the relevant substantive law concerning privilege;
    (v) The disclosure, except when in camera and necessary to assert a 
claim of privilege, would reveal information properly classified or 
other matters exempt from unrestricted disclosure; or
    (vi) The disclosure would interfere with ongoing enforcement 
proceedings, compromise constitutional rights, reveal the identity of an 
intelligence source or confidential informant, or disclose trade secrets 
or similarly confidential commercial or financial information.
    (f) Requests for opinion or expert testimony. (1) Subject to 5 CFR 
2635.805, an employee or former employee shall not provide, with or 
without compensation, opinion or expert testimony concerning official 
information, subjects, or activities, except on behalf of the United 
States or a party represented by the Department of Justice, without 
written approval of agency counsel.
    (2) 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 Department or the United States, agency counsel 
may, in writing, grant authorization for an employee, or former 
employee, to appear and testify at no expense to the United States.
    (3) Any expert or opinion testimony by a former employee of the 
Department shall be excepted from Sec.  1.11(f)(1) where the testimony 
involves only general expertise gained while employed at the Department.
    (g) Procedures when agency counsel directs an employee not to 
testify or provide documents. (1) If agency counsel determines that an 
employee or former employee should not comply with a subpoena or other 
request for testimony or the production of documents, agency counsel 
will so inform the employee and the party who submitted the subpoena or 
made the request.
    (2) If, despite the determination of the agency counsel that 
testimony should not be given and/or documents not be produced, a court 
of competent jurisdiction or other appropriate authority orders the 
employee or former employee to testify and/or produce documents, the 
employee shall notify agency counsel of such order.
    (i) If agency counsel determines that no further legal review of, or 
challenge

[[Page 29]]

to, the order will be sought, the employee or former employee shall 
comply with the order.
    (ii) If agency counsel determines to challenge the order, or that 
further legal review is necessary, the employee or former employee 
should not comply with the order. Where necessary, the employee should 
appear at the time and place set forth in the subpoena. If legal counsel 
cannot appear on behalf of the employee, the employee should produce a 
copy of this subpart and respectfully inform the legal tribunal that he/
she has been advised by counsel not to provide the requested testimony 
and/or produce documents. If the legal tribunal rules that the subpoena 
must be complied with, the employee shall respectfully decline to 
comply, citing this section and United States ex rel. Touhy v. Ragen, 
340 U.S. 462 (1951).

[69 FR 54003, Sept. 7, 2004]



Sec.  1.12  Regulations not applicable to official request.

    The regulations in this part shall not be applicable to official 
requests of other governmental agencies or officers thereof acting in 
their official capacities, unless it appears that granting a particular 
request would be in violation of law or inimical to the public interest. 
Cases of doubt should be referred for decision to agency counsel (as 
defined in Sec.  1.11(b)(1)).

[69 FR 54003, Sept. 7, 2004]



                          Subpart C_Privacy Act



Sec.  1.20  Purpose and scope of regulation.

    The regulations in this subpart are issued to implement the 
provisions of the Privacy Act of 1974 (5 U.S.C. 552a). The regulations 
apply to all records which are contained in systems of records 
maintained by the Department of the Treasury and which are retrieved by 
an individual's name or personal identifier. They do not relate to those 
personnel records of Government employees, which are under the 
jurisdiction of the Office of Personnel Management to the extent such 
records are subject to regulations issued by such OPM. The regulations 
apply to all components of the Department of the Treasury. Any reference 
in this subpart to the Department or its officials, employees, or 
records shall be deemed to refer also to the components or their 
officials, employees, or records. The regulations set forth the 
requirements applicable to Department of the Treasury employees 
maintaining, collecting, using or disseminating records pertaining to 
individuals. They also set forth the procedures by which individuals may 
request notification of whether the Department of the Treasury maintains 
or has disclosed a record pertaining to them or may seek access to such 
records maintained in any nonexempt system of records, request 
correction of such records, appeal any initial adverse determination of 
any request for amendment, or may seek an accounting of disclosures of 
such records. For the convenience of interested persons, the components 
of the Department of the Treasury may reprint these regulations in their 
entirety (less any appendices not applicable to the component in 
question) in those titles of the Code of Federal Regulations which 
normally contain regulations applicable to such components. In 
connection with such republication, and at other appropriate times, 
components may issue supplementary regulations applicable only to the 
component in question, which are consistent with these regulations. In 
the event of any actual or apparent inconsistency, these Departmental 
regulations shall govern. Persons interested in the records of a 
particular component should, therefore, also consult the Code of Federal 
Regulations for any rules or regulations promulgated specifically with 
respect to that component (see Appendices to this subpart for cross 
references). The head of each component is hereby also authorized to 
substitute other appropriate officials for those designated and correct 
addresses specified in the appendix to this subpart applicable to the 
component. The components of the Department of the Treasury for the 
purposes of this subpart are the following offices and bureaus:
    (a) The Departmental Offices, which include the offices of:
    (1) The Secretary of the Treasury, including immediate staff;
    (2) The Deputy Secretary of the Treasury, including immediate staff;

[[Page 30]]

    (3) The Chief of Staff, including immediate staff;
    (4) The Executive Secretary of the Treasury and all offices 
reporting to such official, including immediate staff;
    (5) Under Secretary (International Affairs) and all offices 
reporting to such official, including immediate staff;
    (6) Assistant Secretary (International Economics and Development) 
and all offices reporting to such official, including immediate staff;
    (7) Assistant Secretary (Financial Markets and Investment Policy) 
and all offices reporting to such official, including immediate staff;
    (8) Under Secretary (Domestic Finance) and all offices reporting to 
such official, including immediate staff;
    (9) Fiscal Assistant Secretary and all offices reporting to such 
official, including immediate staff;
    (10) Assistant Secretary (Financial Institutions) and all offices 
reporting to such official, including immediate staff;
    (11) Assistant Secretary (Financial Markets) and all offices 
reporting to such official, including immediate staff;
    (12) Assistant Secretary (Financial Stability) and all offices 
reporting to such official, including immediate staff;
    (13) Under Secretary (Terrorism & Financial Intelligence) and all 
offices reporting to such official, including immediate staff;
    (14) Assistant Secretary (Terrorist Financing) and all offices 
reporting to such official, including immediate staff;
    (15) Assistant Secretary (Intelligence and Analysis) and all offices 
reporting to such official, including immediate staff;
    (16) General Counsel and all offices reporting to such official, 
including immediate staff; except legal counsel to the components listed 
in paragraphs (a)(23), (a)(24), and (a)(25) and (b) through (j) of this 
section;
    (17) Treasurer of the United States including immediate staff;
    (18) Assistant Secretary (Legislative Affairs) and all offices 
reporting to such official, including immediate staff;
    (19) Assistant Secretary (Public Affairs) and all offices reporting 
to such official, including immediate staff;
    (20) Assistant Secretary (Economic Policy) and all offices reporting 
to such official, including immediate staff;
    (21) Assistant Secretary (Tax Policy) and all offices reporting to 
such official, including immediate staff;
    (22) Assistant Secretary (Management) and Chief Financial Officer, 
and all offices reporting to such official, including immediate staff;
    (23) The Inspector General, and all offices reporting to such 
official, including immediate staff;
    (24) The Treasury Inspector General for Tax Administration, and all 
offices reporting to such official, including immediate staff;
    (25) The Special Inspector General for the Troubled Asset Relief 
Program, and all offices reporting to such official, including immediate 
staff;
    (b) Alcohol and Tobacco Tax and Trade Bureau.
    (c) Bureau of Public Debt.
    (d) Financial Management Service.
    (e) Internal Revenue Service.
    (f) Comptroller of the Currency.
    (g) Office of Thrift Supervision.
    (h) Bureau of Engraving and Printing.
    (i) United States Mint.
    (j) Financial Crimes Enforcement Network.

For purposes of this subpart, the office of the legal counsel for the 
components listed in paragraphs (a)(23), (a)(24), (a)(25), (b) through 
(j) of this section are to be considered a part of such components. Any 
office, which is now in existence or may hereafter be established, which 
is not specifically listed or known to be a component of any of those 
listed above, shall be deemed a part of the Departmental Offices for the 
purpose of these regulations.

[52 FR 26305, July 14, 1987, as amended at 60 FR 31633, June 16, 1995; 
65 FR 2333, Jan. 14, 2000; 68 FR 55311, Sept. 25, 2003; 73 FR 51221, 
Sept. 2, 2008; 75 FR 744, Jan. 6, 2010; 75 FR 36535, June 28, 2010]



Sec.  1.21  Definitions.

    (a) The term agency means agency as defined in 5 U.S.C. 552(e);

[[Page 31]]

    (b) The term individual means a citizen of the United States or an 
alien lawfully admitted for permanent residence;
    (c) The term maintain includes maintain, collect, use, or 
disseminate;
    (d) The term record means any item, collection, or grouping of 
information about an individual that is maintained by the Department of 
the Treasury or component of the Department. This includes, but is not 
limited to, the individual's education, financial transactions, medical 
history, and criminal or employment history and that contains the name, 
or an identifying number, symbol, or other identifying particular 
assigned to the individual, such as a finger or voice print or a 
photograph;
    (e) The term system of records means a group of any records under 
the control of the Department of the Treasury or any component from 
which information is retrieved by the name of the individual or by some 
identifying number, symbol, or other identifying particular assigned to 
the individual;
    (f) The term statistical record means a record in a system of 
records maintained for statistical research or reporting purposes only 
and not used in whole or part in making any determination about an 
identifiable individual, except as provided by 13 U.S.C. 8.
    (g) The term routine use means the disclosure of a record that is 
compatible with the purpose for which the record was collected;
    (h) The term component means a bureau or office of the Department of 
the Treasury as set forth in Sec.  1.20 and in the appendices to these 
regulations. (See 5 U.S.C. 552a(a).)
    (i) The term request for access means a request made pursuant to 5 
U.S.C. 552a(d)(1).
    (j) The term request for amendment means a request made pursuant to 
5 U.S.C. 552a(d)(2).
    (k) The term request for accounting means a request made pursuant to 
5 U.S.C. 552a(c)(3).



Sec.  1.22  Requirements relating to systems of records.

    (a) In general. Subject to 5 U.S.C. 552a (j) and (k) and Sec.  
1.23(c), each component shall, in conformance with 5 U.S.C. 552a:
    (1) Maintain in its records only such information about an 
individual as is relevant and necessary to accomplish a purpose of the 
agency required to be accomplished by the statute or by Executive order 
of the President (See 5 U.S.C. 552a(e)(1)).
    (2) Collect information to the greatest extent practicable directly 
from the subject individual when the information may result in adverse 
determinations about an individual's rights, benefits, and privileges 
under Federal programs. (See 5 U.S.C. 552a(e)(2)).
    (b) Requests for information from individuals. Subject to 5 U.S.C. 
552a(j) and Sec.  1.23(c)(1), each component of the Treasury shall 
inform each individual whom it asks to supply information, on the form 
which it uses to collect the information or on a separate form that can 
be retained by the individual:
    (1) The authority (whether granted by statute, or by Executive order 
of the President) which authorizes the solicitation of the information 
and whether disclosure of such information is mandatory or voluntary;
    (2) The principal purpose or purposes for which the information is 
intended to be used;
    (3) The routine uses which may be made of the information, as 
published pursuant to 5 U.S.C. 552a(e)(4)(D); and
    (4) The effects on such individual, if any, of not providing all or 
any part of the requested information. (See 5 U.S.C. 552a(e)(3)).
    (c) Report on new systems. Each component of the Treasury shall 
provide adequate advance notice to Congress and the Office of Management 
and Budget through the Disclosure Branch and Administration Section of 
the Office of the General Counsel of any proposal to establish or alter 
any system of records in order to permit an evaluation of the probable 
or potential effect of such proposal on the privacy and other personal 
or property rights of individuals or the disclosure of information 
relating to such individuals, and its effect on the preservation of the 
constitutional principles of federalism and separation of powers. (See 5 
U.S.C. 552a(o)).

[[Page 32]]

    (d) Accurate and secure maintenance of records. Each component 
shall:
    (1) Subject to 5 U.S.C. 552a(j) and Sec.  1.23(c)(1), maintain all 
records which are used in making any determination about any individual 
with such accuracy, relevance, timeliness, and completeness as is 
reasonably necessary to assure fairness to the individual in the 
determination (see 5 U.S.C. 552a(e)(5);
    (2) Prior to disseminating any record about an individual to any 
person other than an agency, unless the dissemination is made pursuant 
to 5 U.S.C. 552 (see 31 CFR part 1, subpart A), make reasonable efforts 
to assure that such records are accurate, complete, timely, and relevant 
for Department of the Treasury purposes (see 5 U.S.C. 552a(e)(6)) and
    (3) Establish appropriate administrative, technical, and physical 
safeguards to insure the security and confidentiality of records and to 
protect against any anticipated threats or hazards to their security or 
integrity which could result in substantial harm, embarrassment, 
inconvenience, or unfairness to any individual on whom information is 
maintained. (See 5 U.S.C. 552a(e)(10)).
    (i) System managers, with the approval of the head of their offices 
within a component, shall establish administrative and physical 
controls, consistent with Department regulations, to insure the 
protection of records systems from unauthorized access or disclosure and 
from physical damage or destruction. The controls instituted shall be 
proportional to the degree of sensitivity of the records but at a 
minimum must insure that records other than those available to the 
general public under the Freedom of Information Act (5 U.S.C. 552), are 
protected from public view, that the area in which the records are 
stored is supervised during all business hours and physically secure 
during nonbusiness hours to prevent unauthorized personnel from 
obtaining access to the records. Automated systems shall comply with the 
security standards promulgated by the National Bureau of Standards.
    (ii) System managers, with the approval of the head of their offices 
within a component, shall adopt access restrictions to insure that only 
those individuals within the agency who have a need to have access to 
the records for the performance of their duties have access to them. 
Procedures shall also be adopted to prevent accidental access to, or 
dissemination of, records.
    (e) Prohibition against maintenance of records concerning First 
Amendment rights. No component shall maintain a record describing how 
any individual exercises rights guaranteed by the First Amendment (e.g. 
speech), unless the maintenance of such record is:
    (1) Expressly authorized by statute, or
    (2) Expressly authorized by the individual about whom the record is 
maintained, or
    (3) Pertinent to and within the scope of an authorized law 
enforcement activity. (See 5 U.S.C. 552a (e)(7))
    (f) Notification of disclosure under compulsory legal process. 
Subject to 5 U.S.C. 552a(j) and Sec.  1.23(c)(1), when records 
concerning an individual are subpoenaed by a Grand Jury, Court, or 
quasi-judicial agency, or disclosed in accordance with an ex parte court 
order pursuant to 26 U.S.C. 6103(i), the official served with the 
subpoena or court order shall make reasonable efforts to assure that 
notice of any disclosure is provided to the individual. Notice shall be 
provided within five working days of making the records available under 
compulsory legal process or, in the case of a Grand Jury subpoena or an 
ex parte order, within five days of its becoming a matter of public 
record. Notice shall be mailed to the last known address of the 
individual and shall contain the following information: the date and 
authority to which the subpoena is, or was returnable, or the date of 
and court issuing the ex parte order, the name and number of the case or 
proceeding, and the nature of the information sought and provided. 
Notice of the issuance of a subpoena or an ex parte order is not 
required if the system of records has been exempted from the notice 
requirement of 5 U.S.C. 552a (e)(8) and this section, pursuant to 5 
U.S.C. 552a (j) and Sec.  1.23 (c)(1), by a Notice of Exemption 
published in the Federal Register. (See 5 U.S.C. 552a (e)(8)).

[[Page 33]]

    (g) Emergency disclosure. If information concerning an individual 
has been disclosed to any person under compelling circumstances 
affecting health or safety, the individual shall be notified at the last 
known address within 5 days of the disclosure (excluding Saturdays, 
Sundays, and legal public holidays). Notification shall include the 
following information: The nature of the information disclosed, the 
person or agency to whom it was disclosed, the date of disclosure, and 
the compelling circumstances justifying the disclosure. Notification 
shall be given by the officer who made or authorized the disclosure. 
(See 5 U.S.C. 552a (b)(8)).



Sec.  1.23  Publication in the Federal Register--Notices of systems of
records, general exemptions, specific exemptions, review of all systems.

    (a) Notices of systems of records to be published in the Federal 
Register. (1) The Department shall publish a notice of the existence and 
character of all systems of records every 3 years in the Federal 
Register. An annual notice of systems of records is required to be 
published by the Office of the Federal Register in the publication 
entitled ``Privacy Act Issuances'', as specified in 5 U.S.C. 552a(f).
    (2) Minor changes to systems of records shall be published annually. 
(See paragraph (d)(8) of this section)
    (3) In addition, the Department shall publish in the Federal 
Register upon establishment or revision a notice of the existence and 
character of any new or revised systems of records. Unless otherwise 
instructed, each notice shall include:
    (i) The name and location of the system;
    (ii) The categories of individuals on whom records are maintained in 
the system;
    (iii) The categories of records maintained in the system;
    (iv) Each routine use of the records contained in the system, 
including the categories of users and the purpose of such use;
    (v) The policies and practices of the component regarding storage, 
retrievability, access controls, retention, and disposal of the records;
    (vi) The title and business address of the Treasury official who is 
responsible for the system of records;
    (vii) The procedures of the component whereby an individual can be 
notified if the system of records contain a record pertaining to the 
individual, including reasonable times, places, and identification 
requirements.
    (viii) The procedures of the component whereby an individual can be 
notified on how to gain access to any record pertaining to such 
individual that may be contained in the system of records, and how to 
contest its content; and
    (ix) The categories of sources of records in the system. (See 5 
U.S.C. 552a(e)(4))
    (b) Notice of new or modified routine uses to be published in the 
Federal Register. At least 30 days prior to a new use or modification of 
a routine use, as published under paragraph (a)(3)(iv) of this section, 
each component shall publish in the Federal Register notice of such new 
or modified use of the information in the system and provide an 
opportunity for interested persons to submit written data, views, or 
arguments to the components. (See 5 U.S.C. 552a(e)(11))
    (c) Promulgation of rules exempting systems from certain 
requirements--(1) General exemptions. In accordance with existing 
procedures applicable to a Treasury component's issuance of regulations, 
the head of each such component may adopt rules, in accordance with the 
requirements (including general notice) of 5 U.S.C. 553 (b) (1), (2), 
and (3), (c) and (e), to exempt any system of records within the 
component from any part of 5 U.S.C. 552a and these regulations except 
subsections (b) (sec. 1.24, conditions of disclosure), (c)(1) (sec. 
1.25, keep accurate accounting of disclosures), (c)(2) (sec. 1.25, 
retain accounting for five years or life of record), (e)(4) (A) through 
(F) (paragraph (a) of this section, publication of annual notice of 
systems of records), (e)(6) (sec. 1.22(d), accuracy of records prior to 
dissemination), (e)(7) (sec. 1.22(e), maintenance of records on First 
Amendment rights), (e)(9) (sec. 1.28, establish rules of conduct), 
(e)(10) (sec. 1.22(d)(3), establish safeguards for records), (e)(11) 
(paragraph (c) of this

[[Page 34]]

section, publish new intended use), and (i) (sec. 1.28(c), criminal 
penalties) if the systems of records maintained by the component 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:
    (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. (See 5 U.S.C. 552a(j))
    (2) Specific exemptions. In accordance with existing procedures 
applicable to a Treasury component's issuance of regulations, the head 
of each such component may adopt rules, in accordance with the 
requirements (including general notice) of 5 U.S.C. 553 (b) (1), (2), 
and (3), (c), and (e), to exempt any system of records within the 
component from 5 U.S.C. 552a(c)(3) (sec. 1.25(c)(2), accounting of 
certain disclosures available to the individual), (d) (sec. 1.26(a), 
access to records), (e)(1) (sec. 1.22(a)(1), maintenance of information 
to accomplish purposes authorized by statute or executive order only), 
(e)(4)(G) (paragraph (a)(7) of this section, publication of procedures 
for notification), (e)(4)(H) (paragraph (a)(8) of this section, 
publication of procedures for access and contest), (e)(4)(I) (paragraph 
(a)(9) of this section, publication of sources of records), and (f) 
(sec. 1.26, promulgate rules for notification, access and contest), if 
the system of records is:
    (i) Subject to the provisions of 5 U.S.C. 552(b)(1);
    (ii) Investigatory material compiled for law enforcement purposes, 
other than material within the scope of subsection (j)(2) of 5 U.S.C. 
552a and paragraph (a)(1) of this section. If any individual is denied 
any right, privilege, or benefit that such individual would otherwise be 
entitled to by Federal law, or for which such individual would otherwise 
be eligible, as a result of the maintenance of this material, such 
material shall be provided to the individual, except to the extent that 
the disclosure of the material would reveal the identity of a source who 
furnished information to the Government under an express promise that 
the identity of the source would be held in confidence, or prior to 
September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence;
    (iii) Maintained in connection with providing protective services to 
the President of the United States or other individuals pursuant to 18 
U.S.C. 3056;
    (iv) Required by statute to be maintained and used solely as 
statistical records;
    (v) 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 September 27, 
1975, under an implied promise that the identity of the source would be 
held in confidence;
    (vi) 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
    (vii) 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 35]]

held in confidence, or, prior to September 27, 1975, under an implied 
promise that the identity of the source would be held in confidence.
    (3) At the time that rules under this subsection are adopted, the 
head of the component shall include in the statement required under 5 
U.S.C. 553(c) the reasons why the system of records is to be exempted 
from a provision of 5 U.S.C. 552a and this part. (See 5 U.S.C. 552a (j) 
and (k))
    (d) Review and report to OMB. The Department shall ensure that the 
following reviews are conducted as often as specified below by each of 
the components who shall be prepared to report to the Departmental 
Disclosure Branch upon request the results of such reviews and any 
corrective action taken to resolve problems uncovered. Each component 
shall:
    (1) Review every two years a random sample of the component's 
contracts that provide for the maintenance of a system of records on 
behalf of the component to accomplish a function of the component, in 
order to ensure that the working of each contract makes the provisions 
of the Act apply. (5 U.S.C. 552a(m)(1))
    (2) Review annually component's recordkeeping and disposal policies 
and practices in order to assure compliance with the Act.
    (3) Review routine use disclosures every 3 years, that are 
associated with each system of records in order to ensure that the 
recipient's use of such records continues to be compatible with the 
purpose for which the disclosing agency originally collected the 
information.
    (4) Review every three years each system of records for which the 
component has issued exemption rules pursuant to section (j) or (k) of 
the Privacy Act in order to determine whether the exemption is needed.
    (5) Review annually each ongoing matching program in which the 
component has participated during the year, either as a source or as a 
matching agency in order to assure that the requirements of the Act, the 
OMB Matching Guidelines, and the OMB Model Control System and checklist 
have been met.
    (6) Review component's training practices annually to ensure that 
all component personnel are familiar with the requirements of the Act, 
these regulations and Departmental directives.
    (7) Review annually the actions of component personnel that have 
resulted either in the agency being found civilly liable under section 
(g) of the Act, or an employee being found criminally liable under the 
provisions of section (i) of the Act, in order to determine the extent 
of the problem and to prevent future recurrences.
    (8) Review annually each system of records notice to ensure that it 
accurately describes the system. Where minor changes are needed, publish 
an amended notice in the Federal Register. Minor changes shall be 
consolidated in one annual comprehensive publication. The term ``minor 
change to a system of records'' means a change that does not 
significantly change the system. More specifically, a minor change does 
not affect the character or purpose of the system and does not affect 
the ability of an individual to gain access to a record about the 
individual or to any information pertaining to such individual which is 
contained in the system; for example, changing the title of the system 
manager or the location of the system.



Sec.  1.24  Disclosure of records to person other than the individual to
whom they pertain.

    (a) Conditions of disclosure. No component of Treasury shall 
disclose any record which is contained in a system of records maintained 
by it by any means of communication to any person, or to another agency, 
except pursuant to a written request by, or with the prior written 
consent of, the individual to whom the record pertains, or the parent, 
if a minor, or legal guardian, if incompetent, of such individual, 
unless disclosure of the record would be:
    (1) To those offices and employees of the Department of the Treasury 
who have a need for the record in the performance of their duties;
    (2) Retired under 5 U.S.C. 552 (subpart A of this part);

[[Page 36]]

    (3) For a routine use as defined in 5 U.S.C. 552a(a)(7) and Sec.  
1.21(g) and as described under 5 U.S.C. 552a(e)(4)(D) and Sec.  
1.23(a)(4);
    (4) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to the provisions of 
title 13 of the U.S. Code;
    (5) To a recipient who has provided the component with advance 
adequate written assurance that the record will be used solely as a 
statistical research or reporting record, and the record is to be 
transferred in a form that is not individually identifiable;
    (6) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the United States Government, or for evaluation by the 
Administrator of General Services or the designee of such official 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.
    (i) If the activity is authorized by law; and
    (ii) If the head of the agency or instrumentality has made a written 
request to the Department of the Treasury specifying the particular 
portion desired and the law enforcement activities for which the record 
is sought;
    (8) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual, if upon such 
disclosure, notification is transmitted to the last known address of 
such individual;
    (9) To either House of Congress, or, to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee.
    (10) To the Comptroller General, or the authorized representatives 
of such official, in the course of the performance of the duties of the 
General Accounting Office; or
    (11) Pursuant to the order of a court of competent jurisdiction. 
(See 5 U.S.C. 552a(b))



Sec.  1.25  Accounting of disclosures.

    (a) Accounting of certain disclosures. Each component, with respect 
to each system of records under its control, shall:
    (1) Keep an accurate accounting of: (i) The date, nature, and 
purpose of each disclosure of a record to any person or to an agency 
made under 5 U.S.C. 552a (b) and Sec.  1.24; and (ii) the name and 
address of the person or agency to whom the disclosure is made;
    (2) Retain the accounting made under paragraph (a)(1) of this 
section for at least five years or the life of the record, whichever is 
longer, after the disclosure for which the accounting is made; and
    (3) Inform any person or other agency about any correction or 
notation of dispute made by the constitutent unit in accordance with 5 
U.S.C. 552a (d) and Sec.  1.28 of any record that has been disclosed to 
the person or agency if an accounting of the disclosure was made. (See 5 
U.S.C. 552(c).)
    (b) Accounting systems. To permit the accounting required by 
paragraph (a) of this section, system managers, with the approval of the 
head of their offices within a component, shall establish or implement, 
a system of accounting for all disclosures of records, either orally or 
in writing, made outside the Department of the Treasury. Accounting 
records shall:
    (1) Be established in the least expensive and most convenient form 
that will permit the system manager to advise individuals, promptly upon 
request, what records concerning them have been disclosed and to whom:
    (2) Provide, as a minimum, the identification of the particular 
record disclosed, the name and address of the person or agency to whom 
or to whom or to which disclosed, and the date, nature and purpose of 
the disclosure; and
    (3) Be maintained for 5 years or until the record is destroyed or 
transferred to the National Archives and Records Service for storage in 
records centers, in which event, the accounting pertaining to those 
records, unless maintained separately, shall be transferred with the 
records themselves.
    (c) Exemptions from accounting requirements. No accounting is 
required for disclosure of records:

[[Page 37]]

    (1) To those officers and employees of the Department of the 
Treasury who have a need for the record in the performance of their 
duties; or
    (2) If disclosure would be required under 5 U.S.C. 552 and Subpart A 
of this part.
    (d) Access to accounting by individual. (1) Subject to paragraphs 
(c) and (d)(2) of this section, each component shall establish and set 
forth in the appendix to this subpart applicable to the component, 
procedures for making the accounting required under paragraph (a) of 
this section available to the individual to whom the record pertains and 
shall thereafter make such accounting available in accordance therewith 
at the request of the individual. The procedures may require the 
requester to provide reasonable identification.
    (2) Access accountings of disclosure may be withheld from the 
individual named in the record only if the disclosures were (i) made 
under 5 U.S.C. 552a (b)(7) and Sec.  1.24 (a)(7), or (ii) under a system 
of records exempted from the requirements of 5 U.S.C. 552a(c)(3) in 
accordance with 5 U.S.C. 552 (j) or (k) and Sec.  1.23(c). (See 5 U.S.C. 
552a(c))



Sec.  1.26  Procedures for notification and access to records pertaining
to individuals--format and fees for request for access.

    (a) Procedures for notification and access. Each component shall 
establish, in accordance with the requirements of 5 U.S.C. 553, and set 
forth in the appendix to this subpart applicable to such component 
procedures whereby an individual can be notified, in response to a 
request, if any system of records named by the individual contains a 
record pertaining to that individual. In addition, such procedures shall 
set forth the requirements for access to such records. As a minimum such 
procedures shall specify the times during, and the places at which 
access will be accorded, together with such identification as may be 
required of the individual before access. (See 5 U.S.C. 552a(f) (1), (2) 
and (3))
    (b) Access. Each component in accordance with the procedures 
prescribed under paragraph (a) of this section, shall allow an 
individual to gain access to records or to any information pertaining to 
such individual which is contained in the system of records upon 
request. The individual shall be permitted to review the record and have 
a copy made of all or any portion of the record in a form that is 
comprehensible. The individual will also be permitted to be accompanied 
by any person of the individual's choosing to review the record, except 
that the agency may require the individual to furnish a written 
statement authorizing discussion of that individual's record in the 
accompanying person's presence. (See 5 U.S.C. 552a(d)(1))
    (c) Exceptions. Neither the procedures prescribed under paragraph 
(a) of this section nor the requirements for access under paragraph (b) 
of this section shall be applicable to--(1) systems of records exempted 
pursuant to 5 U.S.C. 552a (j) and (k) and Sec.  1.23(c); (2) information 
compiled in reasonable anticipation of a civil action or proceeding (See 
5 U.S.C. 552(d)(5)); or (3) information pertaining to an individual 
which is contained in, and inseparable from, another individual's 
record.
    (d) Format of request. (1) A record for notification of whether a 
record exists shall:
    (i) Be made in writing and signed by the person making the request, 
who must be the individual about whom the record is maintained, or such 
individual's duly authorized representative (See Sec.  1.34);
    (ii) State that it is made pursuant to the Privacy Act, 5 U.S.C. 
552a or these regulations, have marked ``Privacy Act Request'' on the 
request and on the envelope;
    (iii) Give the name of the system or subsystem or categories of 
records to which access is sought, as specified in ``Privacy Act 
Issuances'' published by the Office of the Federal Register and 
referenced in the appendices to this subpart;
    (iv) Describe the nature of the record(s) sought in sufficient 
detail to enable Department personnel to locate the system of records 
containing the record with a reasonable amount of effort. Whenever 
possible, a request for access should describe the nature of the record 
sought, the date of the record or the period in which the record was 
compiled.

[[Page 38]]

    (v) Provide such identification of the requester as may be specified 
in the appropriate appendix to this subpart; and
    (vi) Be addressed or delivered in person to the office or officer of 
the component indicated for the particular system or subsystem or 
categories of records the individual wishes access to, as specified in 
``Privacy Act Issuances'' published by the Office of the Federal 
Register and referenced in the appendices to this subpart. Assistance in 
ascertaining the appropriate component or in preparing a request for 
notification may be obtained by a written request to this effect 
addressed as specified in appendix A of this part, as the address for 
the Departmental Offices for ``Request for notification and access to 
records and accountings of disclosures''.
    (2) A request for access to records shall, in addition to complying 
with paragraph (a)(1)(i) through (vi) of this section:
    (i) State whether the requester wishes to inspect the records or 
desires to have a copy made and furnished without first inspecting them;
    (ii) If the requester desires to have a copy made, state the firm 
agreement of the requester to pay the fees for duplication ultimately 
determined in accordance with (31 CFR 1.6) Subpart A of this title, 
unless such fees are waived pursuant to that section by the system 
manager or other appropriate official as indicated in the appropriate 
appendix to these regulations; and
    (iii) Comply with any other requirement set forth in the applicable 
appendix to this subpart or the ``Notice of Records Systems'' applicable 
to the system in question. Requesters are hereby advised that any 
request for access which does not comply with the foregoing requirements 
and those set forth elsewhere in this Subpart C, will not be deemed 
subject to the time constraints of this section, unless and until 
amended so as to comply. However, components shall advise the requester 
in what respect the request is deficient so that it may be processed. 
This section applies only to records which are contained in a system of 
records and which are in the possession or control of the component. 
(See 5 U.S.C. 552a (d) and (f))
    (e) Requests for records not in control of component. (1) Treasury 
employees shall make reasonable efforts to assist an oral requester to 
ascertain to which office or officer a written request should be sent. 
When the request is for a record which is not in the possession or 
control of any component of the Department of the Treasury, the 
requester shall be so advised.
    (2) Where the record requested was created by a Department or agency 
other than the Department of the Treasury or a component of the 
Department and has been classified (e.g. National Defense or 
Intelligence Information) or otherwise restrictively endorsed (e.g. 
Office of Personnel Management records of FBI reports) by such other 
Department or agency, and a copy is in the possession of a component of 
the Department of the Treasury, that portion of the request shall be 
referred to the originating agency for determination as to all issues in 
accordance with the Privacy Act. In the case of a referral to another 
agency under this paragraph, the requester shall be notified that such 
portion of the request has been so referred and that the requester may 
expect to hear from that agency.
    (3) When information sought from a system manager or other 
appropriate official in the Department of the Treasury includes 
information furnished by other Federal agencies not classified or 
otherwise restrictively endorsed, the system manager or other 
appropriate official receiving the request shall consult with the 
appropriate agency prior to making a decision to disclose or not to 
disclose the record. The decision as to whether the record shall be 
disclosed shall be made, in the first instance by the system manager or 
other appropriate official maintaining the record. (See 5 U.S.C. 552a 
(d) and (f))
    (f) Date of receipt of request. A request for notification or access 
to records shall be considered to have been received for purposes of 
this subpart on the date on which the requirements of paragraph (d) of 
this section have been satisfied. Requests for notification or access to 
records and any separate agreement to pay shall be stamped or endorsed 
with the date of receipt by

[[Page 39]]

the receiving office. The latest of such stamped dates will be deemed to 
be the date of receipt of the request for the purposes of this subpart. 
(See 5 U.S.C. 552a (d) and (f))
    (g) Notification of determination--(1) In general. Notification of 
determinations as to notification of whether a record exists or as to 
whether to grant access to records requested will be made by the 
officers designated in the appendices to this subpart. The notification 
of the determination shall be mailed within 30 days (excluding 
Saturdays, Sundays and legal public holidays) after the date of receipt 
of the request, as determined in accordance with paragraph (f) of this 
section. If it is not possible to respond within 30 days, the designated 
officer shall inform the requester, stating the reason for the delay 
(e.g. volume of records requested, scattered location of the records, 
need to consult other agencies, or the difficulty of the legal issues 
involved) and when a response will be dispatched. (See 5 U.S.C. 552a (d) 
and (f))
    (2) Granting of access. When it has been determined that the request 
for access will be granted--(i) and a copy requested; such copy in a 
form comprehensible to the requester shall be furnished promptly, 
together with a statement of the applicable fees for duplication; and 
(ii) and the right to inspect has been requested, the requester shall be 
promptly notified in writing of the determination, and when and where 
the requested records may be inspected. An individual seeking to inspect 
such records may be accompanied by another person of such individual's 
choosing. The individual seeking access shall be required to sign the 
required form indicating that the Department of the Treasury is 
authorized to discuss the contents of the subject record in the 
accompanying person's presence. If, after making the inspection, the 
individual making the request desires a copy of all or a portion of the 
requested records, such copy in a form comprehensible to the individual 
shall be furnished upon payment of the applicable fees for duplication. 
Fees to be charged are as prescribed by 31 CFR part 1, subpart A, Sec.  
1.6 Fees shall not be charged where they would amount, in the aggregate, 
to less than $3.00. (See 5 U.S.C. 552a (d) and (f))
    (3) Requirements for access to medical records. When access is 
requested to medical records, including psychological records, the 
responsible official may determine that such release could have an 
adverse effect on the individual and that release will be made only to a 
physician authorized in writing to have access to such records by the 
individual making the request. Upon receipt of the authorization the 
physician will be permitted to review the records or to receive copies 
of the records by mail, upon proper verification of identity. (See 5 
U.S.C. 552a (f) (3))
    (4) Denial of request. When it is determined that the request for 
notification of whether a record exists or access to records will be 
denied (whether in whole or part or subject to conditions or 
exceptions), the person making the request shall be so notified by mail 
in accordance with paragraph (g)(1) of this section. The letter of 
notification shall specify the city or other location where the 
requested records are situated (if known), contain a statement of the 
reasons for not granting the request as made, set forth the name and 
title or position of the responsible official and advise the individual 
making the request of the right to file suit in accordance with 5 U.S.C. 
552a (g)(1)(B).
    (5) Prohibition against the use of 5 U.S.C. 552 (b) exemptions. 
Exemptions from disclosure under 5 U.S.C. 552 (b) (31 CFR part 1, 
subpart A, Sec.  1.2 (c)), may not be invoked for the purpose of 
withholding from an individual any record which is otherwise accessible 
to such individual under the Privacy Act, 5 U.S.C. 552a and this 
subpart. (See 5 U.S.C. 552a (q))
    (6) Records exempt in whole or in part. (i) When an individual 
requests notification as to whether a record exists or access to records 
concerning the individual which have been exempted from individual 
access pursuant to 5 U.S.C. 552a (j) or which have been compiled in 
reasonable anticipation of a civil action or proceeding in either a 
court or before an administrative tribunal and the assertion of the 
exemption is deemed necessary, the Department of the Treasury will 
neither confirm nor

[[Page 40]]

deny the existence of the record but shall advise the individual only 
that no record available to the individual pursuant to the Privacy Act 
of 1974 has been identified.
    (ii) Requests from individuals for access to records which have been 
exempted from access pursuant to 5 U.S.C. 552a (k) shall be processed as 
follows:
    (A) Requests for information classified pursuant to Executive Orders 
12958, 13526, or successor or prior Executive Orders require the 
responsible component of the Department to review the information to 
determine whether it continues to warrant classification pursuant to an 
Executive Order. Information which no longer warrants classification 
under these criteria shall be declassified and made available to the 
individual. If the information continues to warrant classification, the 
individual shall be advised that the information sought is classified, 
that it has been reviewed and continues to warrant classification, and 
that it has been exempted from access pursuant to 5 U.S.C. 552 (b)(1) 
and 5 U.S.C. 552a (k)(1). Information which has been exempted pursuant 
to 5 U.S.C. 552a (j) and which is also classified shall be reviewed as 
required by this paragraph but the response to the individual shall be 
in the form prescribed by paragraph (g)(6)(i) of this section.
    (B) Requests for information which has been exempted from disclosure 
pursuant to 5 U.S.C. 552a (k)(2) shall be responded to in the manner 
provided in paragraph (g)(6)(i) of this section unless the requester 
shows that the information has been used or is being used to deny the 
individual any right, privilege or benefit for which he is eligible or 
to which he would otherwise be entitled under federal law. In that 
event, the individual shall be advised of the existence of the 
information but such information as would identify a confidential source 
shall be extracted or summarized in a manner which protects the source 
to the maximum degree possible and the summary extract shall be provided 
to the requesting individual.
    (C) Information compiled as part of an employee background 
investigation which has been exempted pursuant to 5 U.S.C. 552a (k)(5) 
shall be made available to an individual upon request except to the 
extent that it identifies the confidential source. Material identifying 
the confidential sources shall be extracted or summarized in a manner 
which protects the source to the maximum degree possible and the summary 
or extract shall be provided to the requesting individual.
    (D) Testing or examination material which has been exempted pursuant 
to 5 U.S.C. 552a (k)(6) shall not be made available to an individual if 
disclosure would compromise the objectivity or fairness of the testing 
or examination process; but may be made available if no such compromise 
possibility exists. (See 5 U.S.C. 552a (d)(5), (j) and (k)).

[52 FR 26305, July 14, 1987, as amended at 76 FR 4817, Jan. 27, 2011]



Sec.  1.27  Procedures for amendment of records pertaining to individuals-
-format, agency review and appeal from initial adverse agency determination.

    (a) In general. Subject to the application of exemptions promulgated 
by the head of each component, in accordance with Sec.  1.23(c), and 
subject to Sec.  1.27(f), each component of the Department of the 
Treasury, shall in conformance with 5 U.S.C. 552a(d)(2), permit an 
individual to request amendment of a record pertaining to such 
individual. Any request for amendment of records or any appeal that does 
not fully comply with the requirements of this section and any 
additional specific requirements imposed by the component in the 
applicable appendix to this subpart will not be deemed subject to the 
time constraints of paragraph (e) of this section, unless and until 
amended so as to comply. However, components shall advise the requester 
in what respect the request or appeal is deficient so that it may be 
resubmitted or amended. (See 5 U.S.C. 552a (d) and (f))
    (b) Form of request to amend records. In order to be subject to the 
provisions of this section, a request to amend records shall:
    (1) Be made in writing and signed by the person making the request, 
who must be the individual about whom the

[[Page 41]]

record is maintained, or the duly authorized representative of such 
individual;
    (2) State that it is made pursuant to the Privacy Act, 5 U.S.C. 552a 
or these regulations, have marked ``Privacy Act Amendment Request'' on 
the request and on the envelope;
    (3) Be addressed to the office or officer of the component specified 
for such purposes in ``Privacy Act Issuances'' published by the Office 
of the Federal Register and referenced in the appendices to this subpart 
for that purpose; and
    (4) Reasonably describe the records which the individual desires to 
have amended, including, to the best of the requester's knowledge, dates 
of letters requesting access to such records previously and dates of 
letters in which notification concerning access was made, if any, and 
the individual's documentation justifying the correction. (See U.S.C. 
552a (d) and (f))
    (c) Date of receipt of request. A request for amendment of records 
pertaining to an individual shall be deemed to have been received for 
purposes of this subpart when the requirements of paragraph (b) of this 
section have been satisfied. The receiving office or officer shall stamp 
or otherwise endorse the date of receipt of the request. (See 5 U.S.C. 
552a (d) and (f))
    (d) Review of requests to amend records. Officials responsible for 
review of requests to amend records pertaining to an individual, as 
specified in the appropriate appendix to this subpart, shall:
    (1) Not later than 10 days (excluding Saturdays, Sundays, and legal 
public holidays) after the date of receipt of such request, acknowledge 
in writing such receipt; and
    (2) Promptly, either--
    (i) Make any correction of any portion which the individual believes 
and the official agrees is not accurate, relevant, timely, or complete; 
or
    (ii) Inform the individual of the refusal to amend the record in 
accordance with the individual's request, the reason for the refusal, 
and the name and business address of the officer designated in the 
applicable appendix to this subpart, as the person who is to review such 
refusal. (See 5 U.S.C. 552a (d) and (f))
    (e) Administrative appeal--(1) In general. Each component shall 
permit individuals to request a review of initial decisions made under 
paragraph (d) of this section, when an individual disagrees with a 
refusal to amend this record. (See 5 U.S.C. 552a (d), (f), and (g)(1))
    (2) Form of request for administrative review of refusal to amend 
record. At any time within 35 days after the date of the notification of 
the initial decision described in paragraph (d)(2)(ii) of this section, 
the requester may submit an administrative appeal from such refusal to 
the official specified in the notification of the initial decision and 
the appropriate appendix to this subpart. The appeal shall:
    (i) Be made in writing stating any arguments in support thereof and 
be signed by the person to whom the record pertains, or the duly 
authorized representative of such official;
    (ii) Be addressed to and mailed or hand delivered within 35 days of 
the date of the initial decision, to the office or officer specified in 
the appropriate appendix to this subpart and in the notification. (See 
the appendices to this subpart for the address to which appeals made by 
mail should be addressed);
    (iii) Have clearly marked on the appeal and on the envelope, 
``Privacy Act Amendment Appeal'';
    (iv) Reasonably describe the records requested to be amended; and
    (v) Specify the date of the initial request, to amend records, and 
the date of the letter giving notification that the request was denied. 
(See 5 U.S.C. 552a (d) and (f))
    (3) Date of receipt. Appeals shall be promptly stamped with the date 
of their receipt by the office to which addressed and such stamped date 
will be deemed to be the date of receipt for all purposes of this 
subpart. The receipt of the appeal shall be acknowledged within 10 days 
(excluding Saturdays, Sundays, and legal public holidays) from the date 
of the receipt (unless the determination on appeal is dispatched in 10 
days, in which case, no acknowledgement is required) by the responsible 
official and the requester advised of the

[[Page 42]]

date of receipt established by the foregoing and when a response is due 
in accordance with this paragraph. (See 5 U.S.C. 552a (d) and (f))
    (4) Review of administrative appeals from denial of requests to 
amend records. Officials responsible for deciding administrative appeals 
from denials of requests to amend records pertaining to an individual, 
as specified in the appendices to this subpart shall: Complete the 
review, and notify the requester of the final agency decision within 30 
days (exclusive of Saturdays, Sundays and legal public holidays) after 
the date of receipt of such appeal, unless the time is extended by the 
head of the agency or the delegate of such official, for good cause 
shown. If such final agency decision is to refuse to amend the record, 
in whole or in part, the requester shall also be advised of the right--
(i) to file a concise ``Statement of Disagreement'' setting forth the 
reasons for his disagreement with the decision which shall be filed 
within 35 days of the date of the notification of the final agency 
decision and (ii) to judicial review of the final agency decision under 
5 U.S.C. 552a(g)(1)(A). (See 5 U.S.C. 552a (d), (f) and (g)(1))
    (5) Notation on record and distribution of statements of 
disagreement. The system manager is responsible, in any disclosure 
containing information about which an individual has filed a ``Statement 
of Disagreement'', occurring after the filing of the statement under 
paragraph (e)(4) of this section, for clearly noting any portion of the 
record which is disputed and providing copies of the statement and, if 
deemed appropriate, a concise statement of the component's reasons for 
not making the amendments requested to persons or other agencies to whom 
the disputed record has been disclosed. (See 5 U.S.C. 552a(d)(4))
    (f) Records not subject to correction under the Privacy Act. The 
following records are not subject to correction or amendment by 
individuals:
    (1) Transcripts or written statements made under oath; and
    (2) Transcripts of Grand Jury proceedings, judicial or quasi-
judicial proceedings which form the official record of those 
proceedings; and
    (3) Pre-sentence reports comprising the property of the courts but 
maintained in agency files; and
    (4) Records pertaining to the determination, the collection and the 
payment of the Federal taxes; and
    (5) Records duly exempted from correction by notice published in the 
Federal Register; and
    (6) Records compiled in reasonable anticipation of a civil action or 
proceeding.



Sec.  1.28  Training, rules of conduct, penalties for non-compliance.

    (a) Training. Subject to policy guidance and regulations issued by 
the Deputy Secretary, who has Departmentwide responsibility therefor, 
each component shall institute a training program to instruct employees 
and employees of Government contractors covered by 5 U.S.C. 552a(m), who 
are involved in the design, development, operation or maintenance of any 
system of records, on a continuing basis with respect to the duties and 
responsibilities imposed on them and the rights conferred on individuals 
by the Privacy Act, the regulations in this subpart, including the 
appendices thereto, and any other related regulations. Such training 
shall provide suitable emphasis on the civil and criminal penalties 
imposed on the Department and the individual employees by the Privacy 
Act for non-compliance with specified requirements of the Act as 
implemented by the regulations in this subpart. (See 5 U.S.C. 
552a(e)(9))
    (b) Rules of conduct. In addition, to the Standards of Conduct 
published in part O of this title, particularly 31 CFR 0.735-44, the 
following are applicable to employees of the Department of the Treasury 
(including, to the extent required by the contract or 5 U.S.C. 552a(m), 
Government contractors and employees of such contractors), who are 
involved in the design, development, operation or maintenance of any 
system of records, or in maintaining any records, for or on behalf of 
the Department, including any component thereof.
    (1) The head of each office of a component of the Department shall 
be responsible for assuring that employees subject to such official's 
supervision

[[Page 43]]

are advised of the provisions of the Privacy Act, including the criminal 
penalties and civil liabilities provided therein, and the regulations in 
this subpart, and that such employees are made aware of their individual 
and collective responsibilities to protect the security of personal 
information, to assure its accuracy, relevance, timeliness and 
completeness, to avoid unauthorized disclosure either orally or in 
writing, and to insure that no information system concerning 
individuals, no matter how small or specialized is maintained without 
public notice.
    (2) Employees of the Department of the Treasury involved in the 
design, development, operation, or maintenance of any system of records, 
or in maintaining any record shall:
    (i) Collect no information of a personal nature from individuals 
unless authorized to collect it to achieve a function or carry out a 
responsibility of the Department;
    (ii) Collect from individuals only that information which is 
necessary to Department functions or responsibilities, unless related to 
a system exempted under 5 U.S.C. 552a (j) or (k):
    (iii) Collect information, wherever possible, directly from the 
individual to whom it relates, unless related to a system exempted under 
5 U.S.C. 552a(j);
    (iv) Inform individuals from whom information is collected about 
themselves of the authority for collection, the purposes thereof, the 
use that will be made of the information, and the effects, both legal 
and practical, of not furnishing the information. (While this provision 
does not explicitly require it, where feasible, third party sources 
should be informed of the purposes for which information they are asked 
to provide will be used.);
    (v) Neither collect, maintain, use nor disseminate information 
concerning an individual's religious or political beliefs or activities 
or membership in associations or organizations, unless (A) the 
individual has volunteered such information for the individual's own 
benefits; (B) the information is expressly authorized by statute to be 
collected, maintained, used or disseminated; or (C) the activities 
involved are pertinent to and within the scope of an authorized 
investigation, adjudication or correctional activity;
    (vi) Advise their supervisors of the existence or contemplated 
development of any record system which is capable of retrieving 
information about individuals by individual identifier;
    (vii) Disseminate no information concerning individuals outside the 
Department except when authorized by 5 U.S.C. 552a or pursuant to a 
routine use published in the Federal Register;
    (viii) Assure that an accounting is kept in the prescribed form, of 
all dissemination of personal information outside the Department, 
whether made orally or in writing, unless disclosed under 5 U.S.C. 552 
and subpart A of this part;
    (ix) Maintain and process information concerning individuals with 
care in order to insure that no inadvertent disclosure of the 
information is made either within or without the Department; and
    (x) Assure that the proper Department authorities are aware of any 
information in a system maintained by the Department which is not 
authorized to be maintained under the provisions of the Privacy Act of 
1974, including information on First Amendment Activities, information 
that is inaccurate, irrelevant or so incomplete as to risk unfairness to 
the individual concerned.
    (3) Heads of components within the Department or their delegates 
shall, at least annually, review the record systems subject to their 
supervision to insure compliance with the provisions of the Privacy Act 
of 1974 and the regulations in this subpart. (See 5 U.S.C. 552a (e)(9), 
(i) and (m))
    (c) Criminal penalties. (1) The Privacy Act imposes criminal 
penalties on the conduct of Government officers or employees as follows: 
Any officer or employee of an agency (which term includes the Department 
of the Treasury):
    (i) Who by virtue of the official's employment or official position, 
has possession of, or access to, agency records which contain 
individually identifiable information the disclosure of which is 
prohibited by this section (5 U.S.C.

[[Page 44]]

552a) or regulations established thereunder, and who knowing that 
disclosure of the specific material is so prohibited, willfully 
discloses the material in any manner to any person or agency not 
entitled to receive it, or
    (ii) Who willfully maintains a system of records without meeting the 
notice requirements of paragraph (e)(4) of this section (5 U.S.C. 
552a)--shall be guilty of a misdemeanor and fined not more than $5,000.
    (2) The Act also imposes a collateral criminal penalty on the 
conduct of any person as follows:

    ``Any person who knowingly and willfully requests or obtains any 
record concerning an individual from an agency under false pretenses 
shall be guilty of a misdemeanor and fined not more than $5,000.''

    (3) For the purposes of 5 U.S.C. 552a (i), the provisions of 
paragraph (c)(1) of this section are applicable to Government 
contractors and employees of such contractors who by contract, operate 
by or on behalf of the Department of the Treasury a system of records to 
accomplish a Departmental function. Such contractor and employees are 
considered employees of the Department of the Treasury for the purposes 
of 5 U.S.C. 552a(i). (See 5 U.S.C. 552a (i) and (m).)



Sec.  1.29  Records transferred to Federal Records Center or National
Archives of the United States.

    (a) Records transferred to the Administrator of General Services for 
storage in the Federal Records Center. Records pertaining to an 
identifiable individual which are transferred to the Federal Records 
Center in accordance with 44 U.S.C. 3103 shall, for the purposes of the 
Privacy Act, 5 U.S.C. 552a, be considered to be maintained by the 
component which deposited the record and shall be subject to the 
provisions of the Privacy Act and this subpart. The Administrator of 
General Services shall not disclose such records except to the 
Department of the Treasury or to others under rules consistent with the 
Privacy Act which may be established by the Department of the Treasury 
or a component. If such records are retrieved for the purpose of making 
a determination about an individual, they must be reviewed for accuracy, 
relevance, timeliness, and completeness.
    (b) Records transferred to the National Archives of the United 
States. (1) Records transferred to National Archives prior to September 
27, 1975. Records pertaining to an identifiable individual transferred 
to the National Archives prior to September 27, 1975, as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the United States Government shall be considered to be 
maintained by the National Archives, and
    (i) Shall not be subject to 5 U.S.C. 552a,
    (ii) Except, that a statement describing such records [modeled after 
5 U.S.C. 552a (e)(4) (A) through (G)] shall be published in the Federal 
Register.
    (2) Records transferred to National Archives on or after September 
27, 1975. Records pertaining to an identifiable individual transferred 
to the National Archives as a record which has sufficient historical or 
other value to warrant its continued preservation by the United States 
Government, on or after September 27, 1975, shall be considered to be 
maintained by the National Archives, and
    (i) Shall not be subject to 5 U.S.C. 552a,
    (ii) Except, that a statement describing such records in accordance 
with 5 U.S.C. 552a (e)(4) (A) through (G) shall be published in the 
Federal Register and rules of conduct and training in accordance with 5 
U.S.C. 552 (e) (9) are to be established by the National Archives. (See 
5 U.S.C. 552a (e))



Sec.  1.30  Application to system of records maintained by Government
contractors.

    When a component contracts for the operation of a system of records, 
to accomplish a Departmental function, the provisions of the Privacy 
Act, 5 U.S.C. 552a, and this subpart shall be applicable to such system. 
The component shall have responsibility for insuring that the contractor 
complies with the contract requirements relating to privacy.



Sec.  1.31  Sale or rental of mailing lists.

    (a) In general. An individual's name and address shall not be sold 
or rented

[[Page 45]]

by a component unless such action is specifically authorized by law.
    (b) Withholding of names and addresses. This section shall not be 
construed to require the withholding of names and addresses otherwise 
permitted to be made public. (See 5 U.S.C. 552a (n)).



Sec.  1.32  Use and disclosure of social security numbers.

    (a) In general. An individual shall not be denied any right, 
benefit, or privilege provided by law by a component because of such 
individual's refusal to disclose his social security number.
    (b) Exceptions. The provisions of paragraph (a) of this section 
shall not apply with respect to:
    (1) Any disclosure which is required by Federal statute, or
    (2) The disclosure of a social security number to any Federal, 
State, or local agency maintaining a system of records in existence and 
operating before January 1, 1975, if such disclosure was required under 
statute or regulation adopted prior to such date to verify the identity 
of an individual.
    (c) Requests for disclosure of social security number. Any component 
which requests an individual to disclose his or her social security 
account number shall inform that individual whether:
    (1) Disclosure is mandatory or voluntary.
    (2) By what statutory or other authority such number is solicited, 
and
    (3) What uses will be made of it. (See section 7 of the Privacy Act 
of 1974 set forth at 5 U.S.C. 552a, note.)



Sec.  1.34  Guardianship.

    The parent or guardian of a minor or a person judicially determined 
to be incompetent shall, in addition to establishing the identity of the 
minor or other person represented, establish parentage or guardianship 
by furnishing a copy of a birth certificate showing parentage or a court 
order establishing the guardianship and may thereafter, act on behalf of 
such individual. (See 5 U.S.C. 552a (h))



Sec.  1.35  Information forms.

    (a) Review of forms. Except for forms developed and used by 
constituent units, the Deputy Assistant Secretary for Administration 
shall be responsible for reviewing all forms developed and used by the 
Department of the Treasury to collect information from and about 
individuals. The heads of components shall each be responsible for the 
review of forms used by such component to collect information from and 
about individuals.
    (b) Scope of review. The responsible officers shall review each form 
for the purpose of eliminating any requirement for information that is 
not relevant and necessary to carry out an agency function and to 
accomplish the following objectives;
    (1) To insure that no information concerning religion, political 
beliefs or activities, association memberships (other than those 
required for a professional license), or the exercise of First Amendment 
rights is required to be disclosed unless such requirement of disclosure 
is expressly authorized by statute or is pertinent to, and within the 
scope of, any authorized law enforcement activity;
    (2) To insure that the form or a separate form that can be retained 
by the individual makes clear to the individual which information he is 
required by law to disclose and the authority for that requirement and 
which information is voluntary;
    (3) To insure that the form or a separate form that can be retained 
by the individual states clearly the principal purpose or purposes for 
which the information is being collected, and summarizes concisely the 
routine uses that will be made of the information;
    (4) To insure that the form or a separate form that can be retained 
by the individual clearly indicates to the individual the effect in 
terms of rights, benefits or privileges of not providing all or part of 
the requested information; and
    (5) To insure that any form requesting disclosure of a Social 
Security Number, or a separate form that can be retained by the 
individual, clearly advises the individual of the statute or regulation 
requiring disclosure of the number or clearly advises the individual 
that disclosure is voluntary and that no consequence will follow from 
the refusal to disclose it, and the uses

[[Page 46]]

that will be made of the number whether disclosed mandatorily and 
voluntarily.
    (c) Revision of forms. Any form which does not meet the objectives 
specified in the Privacy Act and in this section, shall be revised to 
conform thereto. A separate statement may be used in instances when a 
form does not conform. This statement will accompany a form and shall 
include all the information necessary to accomplish the objectives 
specified in the Privacy Act and this section.



Sec.  1.36  Systems exempt in whole or in part from provisions of
5 U.S.C. 552a and this part.

    (a) In General. In accordance with 5 U.S.C. 552a(j) and (k) and 
Sec.  1.23(c), the Department of the Treasury hereby exempts the systems 
of records identified below from the following provisions of the Privacy 
Act for the reasons indicated.
    (b) Authority. These rules are promulgated pursuant to the authority 
vested in the Secretary of the Treasury by 5 U.S.C. 552a(j) and (k) and 
pursuant to the authority of Sec.  1.23(c).
    (c) General exemptions under 5 U.S.C. 552a(j)(2). (1) Under 5 U.S.C. 
552a(j)(2), the head of any agency may promulgate rules to exempt any 
system of records within the agency from certain provisions of the 
Privacy Act if the agency or component thereof that maintains the system 
performs as its principal function any activities pertaining to the 
enforcement of criminal laws. Certain components of the Department of 
the Treasury have as their principal function activities pertaining to 
the enforcement of criminal laws. This paragraph applies to the 
following systems of records maintained by the Department of the 
Treasury:
    (i) Treasury.
    (ii) Departmental Offices:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
DO .190......................  Investigation Data Management System.
DO .220......................  SIGTARP Hotline Database.
DO .221......................  SIGTARP Correspondence Database.
DO .222......................  SIGTARP Investigative MIS Database.
DO .223......................  SIGTARP Investigative Files Database.
DO .224......................  SIGTARP Audit Files Database.
DO .227......................  CFIUS Case Management System.
DO .303......................  TIGTA General Correspondence.
DO .307......................  TIGTA Employee Relations Matters,
                                Appeals, Grievances, and Complaint
                                Files.
DO .308......................  TIGTA Data Extracts.
DO .309......................  TIGTA Chief Counsel Case Files.
DO .310......................  TIGTA Chief Counsel Disclosure Section
                                Records.
DO .311......................  TIGTA Office of Investigations Files.
SIGPR .420--Audit and          .........................................
 Evaluations Records.
SIGPR .421--Case Management    .........................................
 System and Investigative
 Records.
SIGPR .423--Legal Records....  .........................................
------------------------------------------------------------------------

    (iii) Alcohol and Tobacco Tax and Trade Bureau.
    (iv) Comptroller of the Currency:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
CC .110......................  Reports of Suspicious Activities.
CC .120......................  Bank Fraud Information System.
CC .500......................  Chief Counsel's Management Information
                                System.
CC .510......................  Litigation Information System.
OTS .001.....................  Confidential Individual Information
                                System.
OTS .004.....................  Criminal Referral Database.
------------------------------------------------------------------------

    (v) Bureau of Engraving and Printing.
    (vi) Financial Management Service.
    (vii) Internal Revenue Service:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
Treasury/IRS 46.002..........  Management Information System and Case
                                Files, Criminal Investigation.
Treasury/IRS 46.003..........  Confidential Informant Records, Criminal
                                Investigation.

[[Page 47]]

 
Treasury/IRS 46.005..........  Electronic Surveillance and Monitoring
                                Records, Criminal Investigation.
Treasury/IRS 46.015..........  Relocated Witness Records, Criminal
                                Investigation.
Treasury/IRS 46.050..........  Automated Information Analysis and
                                Recordkeeping, Criminal Investigation.
IRS 90.001...................  Chief Counsel Management Information
                                System Records.
IRS 90.003...................  Chief Counsel Litigation and Advice
                                (Criminal) Records.
IRS 90.004...................  Chief Counsel Legal Processing Division
                                Records.
IRS 90.005...................  Chief Counsel Library Records.
------------------------------------------------------------------------

    (viii) U.S. Mint.
    (ix) Bureau of the Public Debt.
    (x) Financial Crimes Enforcement Network:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
FinCEN .001..................  FinCEN Database.
FinCEN .002..................  Suspicious Activity Reporting System.
FinCEN .003..................  Bank Secrecy Act Reports System.
------------------------------------------------------------------------

    (2) The Department hereby exempts the systems of records listed in 
paragraphs (c)(1)(i) through (x) of this section from the following 
provisions of 5 U.S.C. 552a, pursuant to 5 U.S.C. 552a(j)(2): 5 U.S.C. 
552a(c)(3) and (4), 5 U.S.C. 552a(d)(1), (2), (3), (4), 5 U.S.C. 
552a(e)(1), (2) and (3), 5 U.S.C. 552a(e)(4)(G), (H), and (I), 5 U.S.C. 
552a(e)(5) and (8), 5 U.S.C. 552a(f), and 5 U.S.C. 552a(g).
    (d) Reasons for exemptions under 5 U.S.C. 552a(j)(2). (1) 5 U.S.C. 
552a(e)(4)(G) and (f)(l) enable individuals to inquire whether a system 
of records contains records pertaining to them. Application of these 
provisions to the systems of records would give individuals an 
opportunity to learn whether they have been identified as suspects or 
subjects of investigation. As further described in the following 
paragraph, access to such knowledge would impair the Department's 
ability to carry out its mission, since individuals could:
    (i) Take steps to avoid detection;
    (ii) Inform associates that an investigation is in progress;
    (iii) Learn the nature of the investigation;
    (iv) Learn whether they are only suspects or identified as law 
violators;
    (v) Begin, continue, or resume illegal conduct upon learning that 
they are not identified in the system of records; or
    (vi) Destroy evidence needed to prove the violation.
    (2) 5 U.S.C. 552a(d)(1), (e)(4)(H) and (f)(2), (3) and (5) grant 
individuals access to records pertaining to them. The application of 
these provisions to the systems of records would compromise the 
Department's ability to provide useful tactical and strategic 
information to law enforcement agencies.
    (i) Permitting access to records contained in the systems of records 
would provide individuals with information concerning the nature of any 
current investigations and would enable them to avoid detection or 
apprehension by:
    (A) Discovering the facts that would form the basis for their 
arrest;
    (B) Enabling them to destroy or alter evidence of criminal conduct 
that would form the basis for their arrest; and
    (C) Using knowledge that criminal investigators had reason to 
believe that a crime was about to be committed, to delay the commission 
of the crime or commit it at a location that might not be under 
surveillance.
    (ii) Permitting access to either on-going or closed investigative 
files would also reveal investigative techniques and procedures, the 
knowledge of which could enable individuals planning crimes to structure 
their operations so as to avoid detection or apprehension.
    (iii) Permitting access to investigative files and records could, 
moreover, disclose the identity of confidential sources and informants 
and the nature of the information supplied and thereby endanger the 
physical safety of those sources by exposing them to possible reprisals 
for having provided the information. Confidential sources and

[[Page 48]]

informants might refuse to provide criminal investigators with valuable 
information unless they believe that their identities will not be 
revealed through disclosure of their names or the nature of the 
information they supplied. Loss of access to such sources would 
seriously impair the Department's ability to carry out its mandate.
    (iv) Furthermore, providing access to records contained in the 
systems of records could reveal the identities of undercover law 
enforcement officers who compiled information regarding the individual's 
criminal activities and thereby endanger the physical safety of those 
undercover officers or their families by exposing them to possible 
reprisals.
    (v) By compromising the law enforcement value of the systems of 
records for the reasons outlined in paragraphs (d)(2)(i) through (iv) of 
this section, permitting access in keeping with these provisions would 
discourage other law enforcement and regulatory agencies, foreign and 
domestic, from freely sharing information with the Department and thus 
would restrict the Department's access to information necessary to 
accomplish its mission most effectively.
    (vi) Finally, the dissemination of certain information that the 
Department maintains in the systems of records is restricted by law.
    (3) 5 U.S.C. 552a(d)(2), (3) and (4), (e)(4)(H), and (f)(4) permit 
an individual to request amendment of a record pertaining to him or her 
and require the agency either to amend the record, or to note the 
disputed portion of the record and to provide a copy of the individual's 
statement of disagreement with the agency's refusal to amend a record to 
persons or other agencies to whom the record is thereafter disclosed. 
Since these provisions depend on the individual having access to his or 
her records, and since these rules exempt the systems of records from 
the provisions of 5 U.S.C. 552a relating to access to records, for the 
reasons set out in paragraph (d)(2) of this section, these provisions 
should not apply to the systems of records.
    (4) 5 U.S.C. 552a(c)(3) requires an agency to make accountings of 
disclosures of a record available to the individual named in the record 
upon his or her request. The accountings must state the date, nature, 
and purpose of each disclosure of the record and the name and address of 
the recipient.
    (i) The application of this provision would impair the ability of 
law enforcement agencies outside the Department of the Treasury to make 
effective use of information provided by the Department. Making 
accountings of disclosures available to the subjects of an investigation 
would alert them to the fact that another agency is conducting an 
investigation into their criminal activities and could reveal the 
geographic location of the other agency's investigation, the nature and 
purpose of that investigation, and the dates on which that investigation 
was active. Individuals possessing such knowledge would be able to take 
measures to avoid detection or apprehension by altering their 
operations, by transferring their criminal activities to other 
geographical areas, or by destroying or concealing evidence that would 
form the basis for arrest. In the case of a delinquent account, such 
release might enable the subject of the investigation to dissipate 
assets before levy.
    (ii) Moreover, providing accountings to the subjects of 
investigations would alert them to the fact that the Department has 
information regarding their criminal activities and could inform them of 
the general nature of that information. Access to such information could 
reveal the operation of the Department's information-gathering and 
analysis systems and permit individuals to take steps to avoid detection 
or apprehension.
    (5) 5 U.S.C. 552(c)(4) requires an agency to inform any person or 
other agency about any correction or notation of dispute that the agency 
made in accordance with 5 U.S.C. 552a(d) to any record that the agency 
disclosed to the person or agency if an accounting of the disclosure was 
made. Since this provision depends on an individual's having access to 
and an opportunity to request amendment of records pertaining to him or 
her, and since these rules exempt the systems of records from the 
provisions of 5 U.S.C. 552a relating to access to and amendment of

[[Page 49]]

records, for the reasons set out in paragraph (f)(3) of this section, 
this provision should not apply to the systems of records.
    (6) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a general 
notice listing the categories of sources for information contained in a 
system of records. The application of this provision to the systems of 
records could compromise the Department's ability to provide useful 
information to law enforcement agencies, since revealing sources for the 
information could:
    (i) Disclose investigative techniques and procedures;
    (ii) Result in threats or reprisals against informants by the 
subjects of investigations; and
    (iii) Cause informants to refuse to give full information to 
criminal investigators for fear of having their identities as sources 
disclosed.
    (7) 5 U.S.C. 552a(e)(1) requires an agency to maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required to be 
accomplished by statute or executive order. The term ``maintain,'' as 
defined in 5 U.S.C. 552a(a)(3), includes ``collect'' and 
``disseminate.'' The application of this provision to the systems of 
records could impair the Department's ability to collect and disseminate 
valuable law enforcement information.
    (i) In many cases, especially in the early stages of investigation, 
it may be impossible to immediately determine whether information 
collected is relevant and necessary, and information that initially 
appears irrelevant and unnecessary often may, upon further evaluation or 
upon collation with information developed subsequently, prove 
particularly relevant to a law enforcement program.
    (ii) Not all violations of law discovered by the Department fall 
within the investigative jurisdiction of the Department of the Treasury. 
To promote effective law enforcement, the Department will have to 
disclose such violations to other law enforcement agencies, including 
State, local and foreign agencies, that have jurisdiction over the 
offenses to which the information relates. Otherwise, the Department 
might be placed in the position of having to ignore information relating 
to violations of law not within the jurisdiction of the Department of 
the Treasury when that information comes to the Department's attention 
during the collation and analysis of information in its records.
    (8) 5 U.S.C. 552a(e)(2) requires an agency to collect information to 
the greatest extent practicable directly from the subject individual 
when the information may result in adverse determinations about an 
individual's rights, benefits, and privileges under Federal programs. 
The application of this provision to the systems of records would impair 
the Department's ability to collate, analyze, and disseminate 
investigative, intelligence, and enforcement information.
    (i) Most information collected about an individual under criminal 
investigation is obtained from third parties, such as witnesses and 
informants. It is usually not feasible to rely upon the subject of the 
investigation as a source for information regarding his criminal 
activities.
    (ii) An attempt to obtain information from the subject of a criminal 
investigation will often alert that individual to the existence of an 
investigation, thereby affording the individual an opportunity to 
attempt to conceal his criminal activities so as to avoid apprehension.
    (iii) In certain instances, the subject of a criminal investigation 
may assert his/her constitutional right to remain silent and refuse to 
supply information to criminal investigators upon request.
    (iv) During criminal investigations it is often a matter of sound 
investigative procedure to obtain information from a variety of sources 
to verify information already obtained from the subject of a criminal 
investigation or other sources.
    (9) 5 U.S.C. 552a(e)(3) requires an agency to inform each individual 
whom it asks to supply information, on the form that it uses to collect 
the information or on a separate form that the individual can retain, of 
the agency's authority for soliciting the information; whether 
disclosure of information is voluntary or mandatory; the principal 
purposes for which the agency

[[Page 50]]

will use the information; the routine uses that may be made of the 
information; and the effects on the individual of not providing all or 
part of the information. The systems of records should be exempted from 
this provision to avoid impairing the Department's ability to collect 
and collate investigative, intelligence, and enforcement data.
    (i) Confidential sources or undercover law enforcement officers 
often obtain information under circumstances in which it is necessary to 
keep the true purpose of their actions secret so as not to let the 
subject of the investigation or his or her associates know that a 
criminal investigation is in progress.
    (ii) If it became known that the undercover officer was assisting in 
a criminal investigation, that officer's physical safety could be 
endangered through reprisal, and that officer may not be able to 
continue working on the investigation.
    (iii) Individuals often feel inhibited in talking to a person 
representing a criminal law enforcement agency but are willing to talk 
to a confidential source or undercover officer whom they believe are not 
involved in law enforcement activities.
    (iv) Providing a confidential source of information with written 
evidence that he or she was a source, as required by this provision, 
could increase the likelihood that the source of information would be 
subject to retaliation by the subject of the investigation.
    (v) Individuals may be contacted during preliminary information 
gathering, surveys, or compliance projects concerning the administration 
of the internal revenue laws before any individual is identified as the 
subject of an investigation. Informing the individual of the matters 
required by this provision would impede or compromise subsequent 
investigations.
    (10) 5 U.S.C. 552a(e)(5) requires an agency to maintain all records 
it uses in making any determination about any individual with such 
accuracy, relevance, timeliness, and completeness as is reasonably 
necessary to assure fairness to the individual in the determination.
    (i) Since 5 U.S.C. 552a(a)(3) defines ``maintain'' to include 
``collect'' and ``disseminate,'' application of this provision to the 
systems of records would hinder the initial collection of any 
information that could not, at the moment of collection, be determined 
to be accurate, relevant, timely, and complete. Similarly, application 
of this provision would seriously restrict the Department's ability to 
disseminate information pertaining to a possible violation of law to law 
enforcement and regulatory agencies. In collecting information during a 
criminal investigation, it is often impossible or unfeasible to 
determine accuracy, relevance, timeliness, or completeness prior to 
collection of the information. In disseminating information to law 
enforcement and regulatory agencies, it is often impossible to determine 
accuracy, relevance, timeliness, or completeness prior to dissemination 
because the Department may not have the expertise with which to make 
such determinations.
    (ii) Information that may initially appear inaccurate, irrelevant, 
untimely, or incomplete may, when collated and analyzed with other 
available information, become more pertinent as an investigation 
progresses. In addition, application of this provision could seriously 
impede criminal investigators and intelligence analysts in the exercise 
of their judgment in reporting results obtained during criminal 
investigations.
    (11) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable 
efforts to serve notice on an individual when the agency makes any 
record on the individual available to any person under compulsory legal 
process, when such process becomes a matter of public record. The 
systems of records should be exempted from this provision to avoid 
revealing investigative techniques and procedures outlined in those 
records and to prevent revelation of the existence of an ongoing 
investigation where there is need to keep the existence of the 
investigation secret.
    (12) 5 U.S.C. 552a(g) provides for civil remedies to an individual 
when an agency wrongfully refuses to amend a record or to review a 
request for amendment, when an agency wrongfully refuses to grant access 
to a record, when an agency fails to maintain accurate, relevant, 
timely, and

[[Page 51]]

complete records which are used to make a determination adverse to the 
individual, and when an agency fails to comply with any other provision 
of 5 U.S.C. 552a so as to adversely affect the individual. The systems 
of records should be exempted from this provision to the extent that the 
civil remedies may relate to provisions of 5 U.S.C. 552a from which 
these rules exempt the systems of records, since there should be no 
civil remedies for failure to comply with provisions from which the 
Department is exempted. Exemption from this provision will also protect 
the Department from baseless civil court actions that might hamper its 
ability to collate, analyze, and disseminate investigative, 
intelligence, and law enforcement data.
    (e) Specific exemptions under 5 U.S.C. 552a(k)(1). (1) Under 5 
U.S.C. 552a(k)(1), the head of any agency may promulgate rules to exempt 
any system of records within the agency from certain provisions of the 
Privacy Act to the extent that the system contains information subject 
to the provisions of 5 U.S.C. 552(b)(1). This paragraph applies to the 
following systems of records maintained by the Department of the 
Treasury:
    (i) Departmental Offices:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
DO .120......................  Records Related to Office of Foreign
                                Assets Control Economic Sanctions.
------------------------------------------------------------------------

    (ii) Financial Crimes Enforcement Network:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
FinCEN .001..................  FinCEN Database.
------------------------------------------------------------------------

    (2) The Department of the Treasury hereby exempts the systems of 
records listed in paragraph (e)(1)(i) and (ii) of this section from the 
following provisions of 5 U.S.C. 552a, pursuant to 5 U.S.C. 552a(k)(1): 
5 U.S.C. 552a(c)(3), 5 U.S.C. 552a(d)(1), (2), (3), and (4), 5 U.S.C. 
552a(e)(1), 5 U.S.C. 552a(e)(4)(G), (H), and (I), and 5 U.S.C. 552a(f).
    (f) Reasons for exemptions under 5 U.S.C. 552a(k)(1). The reason for 
invoking the exemption is to protect material authorized to be kept 
secret in the interest of national defense or foreign policy pursuant to 
Executive Orders 12958, 13526, or successor or prior Executive Orders.
    (g) Specific exemptions under 5 U.S.C. 552a(k)(2). (1) Under 5 
U.S.C. 552a(k)(2), the head of any agency may promulgate rules to exempt 
any system of records within the agency from certain provisions of the 
Privacy Act if the system is investigatory material compiled for law 
enforcement purposes and for the purposes of assuring the safety of 
individuals protected by the Department pursuant to the provisions of 18 
U.S.C. 3056. This paragraph applies to the following systems of records 
maintained by the Department of the Treasury:
    (i) Treasury:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
Treasury .013................  Department of the Treasury Civil Rights
                                Complaints and Compliance Review Files.
------------------------------------------------------------------------

    (ii) Departmental Offices:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
DO .120......................  Records Related to Office of Foreign
                                Assets Control Economic Sanctions.
DO .144......................  General Counsel Litigation Referral and
                                Reporting System.
DO .190......................  Investigation Data Management System.
DO .220......................  SIGTARP Hotline Database.
DO .221......................  SIGTARP Correspondence Database.
DO .222......................  SIGTARP Investigative MIS Database.
DO .223......................  SIGTARP Investigative Files Database.
DO .224......................  SIGTARP Audit Files Database.

[[Page 52]]

 
DO .225......................  TARP Fraud Investigation Information
                                System.
DO .227......................  CFIUS Case Management System.
DO .303......................  TIGTA General Correspondence.
DO .307......................  TIGTA Employee Relations Matters,
                                Appeals, Grievances, and Complaint
                                Files.
DO .308......................  TIGTA Data Extracts.
DO .309......................  TIGTA Chief Counsel Case Files.
DO .310......................  TIGTA Chief Counsel Disclosure Section
                                Records.
DO .311......................  TIGTA Office of Investigations Files.
SIGPR .420--Audit and          .........................................
 Evaluations Records.
SIGPR .421--Case Management    .........................................
 System and Investigative
 Records.
SIGPR .423--Legal Records....  .........................................
------------------------------------------------------------------------

    (iii) Alcohol and Tobacco Tax and Trade Bureau:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
TTB .001.....................  Regulatory Enforcement Record System.
------------------------------------------------------------------------

    (iv) Comptroller of the Currency:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
CC .100......................  Enforcement Action Report System.
CC .110......................  Reports of Suspicious Activities.
CC .120......................  Bank Fraud Information System.
CC .220......................  Section 914 Tracking System.
CC .500......................  Chief Counsel's Management Information
                                System.
CC .510......................  Litigation Information System.
CC .600......................  Consumer Complaint Inquiry and
                                Information System.
OTS .001.....................  Confidential Individual Information
                                System.
OTS .004.....................  Criminal Referral Database.
------------------------------------------------------------------------

    (v) Bureau of Engraving and Printing:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
BEP .021.....................  Investigative files.
------------------------------------------------------------------------

    (vi) Financial Management Service.
    (vii) Internal Revenue Service:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
IRS 00.002...................  Correspondence File-Inquiries about
                                Enforcement Activities.
IRS 00.007...................  Employee Complaint and Allegation
                                Referral Records.
IRS 00.334...................  Third Party Contact Reprisal Records.
IRS 22.061...................  Wage and Information Returns Processing
                                (IRP).
IRS 24.047...................  Audit Underreporter Case Files.
IRS 26.001...................  Acquired Property Records.
IRS 26.006...................  Form 2209, Courtesy Investigations.
IRS 26.012...................  Offer in Compromise (OIC) Files.
IRS 26.013...................  One-hundred Per Cent Penalty Cases.
IRS 26.019...................  TDA (Taxpayer Delinquent Accounts).
IRS 26.020...................  TDI (Taxpayer Delinquency Investigations)
                                Files.
IRS 26.021...................  Transferee Files.
IRS 34.037...................  IRS Audit Trail and Security Records
                                System.
IRS 37.007...................  Practitioner Disciplinary Records.
IRS 37.009...................  Enrolled Agents Records.
IRS 37.111...................  Preparer Tax Identification Number
                                Records.
IRS 42.001...................  Examination Administrative File.
IRS 42.002...................  Excise Compliance Programs.
IRS 42.005...................  Whistleblower Office Records.
IRS 42.008...................  Audit Information Management System
                                (AIMS).
IRS 42.016...................  Classification and Examination Selection
                                Files.
IRS 42.017...................  International Enforcement Program Files.

[[Page 53]]

 
IRS 42.021...................  Compliance Programs and Projects Files.
IRS 42.031...................  Anti-Money Laundering/Bank Secrecy Act
                                (BSA) and Form 8300 Records.
IRS 44.001...................  Appeals Case Files.
Treasury/IRS 46.050..........  Automated Information Analysis and
                                Recordkeeping, Criminal Investigation.
IRS 48.001...................  Disclosure Records.
IRS 49.001...................  Collateral and Information Requests
                                System.
IRS 49.002...................  Component Authority and Index Card
                                Microfilm Retrieval System.
IRS 50.222...................  Tax Exempt Government Entities Case
                                Management Records.
IRS 60.000...................  Employee Protection System Records.
IRS 90.001...................  Chief Counsel Management Information
                                System Records.
IRS 90.002...................  Chief Counsel Litigation and Advice
                                (Civil) Records.
IRS 90.004...................  Chief Counsel Legal Processing Division
                                Records.
IRS 90.005...................  Chief Counsel Library Records.
------------------------------------------------------------------------

    (viii) U.S. Mint:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
Mint .008....................  Criminal investigation files.
------------------------------------------------------------------------

    (ix) Bureau of the Public Debt:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
BPD.009......................  U.S. Treasury Securities Fraud
                                Information System.
------------------------------------------------------------------------

    (x) Financial Crimes Enforcement Network:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
FinCEN .001..................  FinCEN Database.
FinCEN .002..................  Suspicious Activity Reporting System.
FinCEN .003..................  Bank Secrecy Act Reports System.
------------------------------------------------------------------------

    (2) The Department hereby exempts the systems of records listed in 
paragraphs (g)(1)(i) through (x) of this section from the following 
provisions of 5 U.S.C. 552a, pursuant to 5 U.S.C. 552a(k)(2): 5 U.S.C. 
552a(c)(3), 5 U.S.C. 552a(d)(1), (2), (3), (4), 5 U.S.C. 552a(e)(1), 5 
U.S.C. 552a(e)(4)(G), (H), and (I), and 5 U.S.C. 552a(f).
    (h) Reasons for exemptions under 5 U.S.C. 552a(k)(2). (1) 5 U.S.C. 
552a(c)(3) requires an agency to make accountings of disclosures of a 
record available to the individual named in the record upon his or her 
request. The accountings must state the date, nature, and purpose of 
each disclosure of the record and the name and address of the recipient.
    (i) The application of this provision would impair the ability of 
the Department of the Treasury and of law enforcement agencies outside 
the Department to make effective use of information maintained by the 
Department. Making accountings of disclosures available to the subjects 
of an investigation would alert them to the fact that an agency is 
conducting an investigation into their illegal activities and could 
reveal the geographic location of the investigation, the nature and 
purpose of that investigation, and the dates on which that investigation 
was active. Individuals possessing such knowledge would be able to take 
measures to avoid detection or apprehension by altering their 
operations, by transferring their illegal activities to other 
geographical areas, or by destroying or concealing evidence that would 
form the basis for detection or apprehension. In the case of a 
delinquent account, such release might enable the subject of the 
investigation to dissipate assets before levy.
    (ii) Providing accountings to the subjects of investigations would 
alert them to the fact that the Department has information regarding 
their illegal

[[Page 54]]

activities and could inform them of the general nature of that 
information.
    (2) 5 U.S.C. 552a(d)(1), (e)(4)(H) and (f)(2), (3) and (5) grant 
individuals access to records pertaining to them. The application of 
these provisions to the systems of records would compromise the 
Department's ability to utilize and provide useful tactical and 
strategic information to law enforcement agencies.
    (i) Permitting access to records contained in the systems of records 
would provide individuals with information concerning the nature of any 
current investigations and would enable them to avoid detection or 
apprehension by:
    (A) Discovering the facts that would form the basis for their 
detection or apprehension;
    (B) Enabling them to destroy or alter evidence of illegal conduct 
that would form the basis for their detection or apprehension, and
    (C) Using knowledge that investigators had reason to believe that a 
violation of law was about to be committed, to delay the commission of 
the violation or commit it at a location that might not be under 
surveillance.
    (ii) Permitting access to either on-going or closed investigative 
files would also reveal investigative techniques and procedures, the 
knowledge of which could enable individuals planning non-criminal acts 
to structure their operations so as to avoid detection or apprehension.
    (iii) Permitting access to investigative files and records could, 
moreover, disclose the identity of confidential sources and informants 
and the nature of the information supplied and thereby endanger the 
physical safety of those sources by exposing them to possible reprisals 
for having provided the information. Confidential sources and informants 
might refuse to provide investigators with valuable information unless 
they believed that their identities would not be revealed through 
disclosure of their names or the nature of the information they 
supplied. Loss of access to such sources would seriously impair the 
Department's ability to carry out its mandate.
    (iv) Furthermore, providing access to records contained in the 
systems of records could reveal the identities of undercover law 
enforcement officers or other persons who compiled information regarding 
the individual's illegal activities and thereby endanger the physical 
safety of those undercover officers, persons, or their families by 
exposing them to possible reprisals.
    (v) By compromising the law enforcement value of the systems of 
records for the reasons outlined in paragraphs (h)(2)(i) through (iv) of 
this section, permitting access in keeping with these provisions would 
discourage other law enforcement and regulatory agencies, foreign and 
domestic, from freely sharing information with the Department and thus 
would restrict the Department's access to information necessary to 
accomplish its mission most effectively.
    (vi) Finally, the dissemination of certain information that the 
Department may maintain in the systems of records is restricted by law.
    (3) 5 U.S.C. 552a(d)(2), (3) and (4), (e)(4)(H), and (f)(4) permit 
an individual to request amendment of a record pertaining to him or her 
and require the agency either to amend the record, or to note the 
disputed portion of the record and to provide a copy of the individual's 
statement of disagreement with the agency's refusal to amend a record to 
persons or other agencies to whom the record is thereafter disclosed. 
Since these provisions depend on the individual having access to his or 
her records, and since these rules exempt the systems of records from 
the provisions of 5 U.S.C. 552a relating to access to records, these 
provisions should not apply to the systems of records for the reasons 
set out in paragraph (h)(2) of this section.
    (4) 5 U.S.C. 552a(e)(1) requires an agency to maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
executive order. The term ``maintain,'' as defined in 5 U.S.C. 
552a(a)(3), includes ``collect'' and ``disseminate.'' The application of 
this provision to the system of records could impair the Department's 
ability to collect, utilize and disseminate valuable law enforcement 
information.
    (i) In many cases, especially in the early stages of investigation, 
it may be

[[Page 55]]

impossible immediately to determine whether information collected is 
relevant and necessary, and information that initially appears 
irrelevant and unnecessary often may, upon further evaluation or upon 
collation with information developed subsequently, prove particularly 
relevant to a law enforcement program.
    (ii) Not all violations of law discovered by the Department analysts 
fall within the investigative jurisdiction of the Department of the 
Treasury. To promote effective law enforcement, the Department will have 
to disclose such violations to other law enforcement agencies, including 
State, local and foreign agencies that have jurisdiction over the 
offenses to which the information relates. Otherwise, the Department 
might be placed in the position of having to ignore information relating 
to violations of law not within the jurisdiction of the Department of 
the Treasury when that information comes to the Department's attention 
during the collation and analysis of information in its records.
    (5) 5 U.S.C. 552a(e)(4)(G) and (f)(1) enable individuals to inquire 
whether a system of records contains records pertaining to them. 
Application of these provisions to the systems of records would allow 
individuals to learn whether they have been identified as suspects or 
subjects of investigation. As further described in the following 
paragraph, access to such knowledge would impair the Department's 
ability to carry out its mission, since individuals could:
    (i) Take steps to avoid detection;
    (ii) Inform associates that an investigation is in progress;
    (iii) Learn the nature of the investigation;
    (iv) Learn whether they are only suspects or identified as law 
violators;
    (v) Begin, continue, or resume illegal conduct upon learning that 
they are not identified in the system of records; or
    (vi) Destroy evidence needed to prove the violation.
    (6) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a general 
notice listing the categories of sources for information contained in a 
system of records. The application of this provision to the systems of 
records could compromise the Department's ability to complete or 
continue investigations or to provide useful information to law 
enforcement agencies, since revealing sources for the information could:
    (i) Disclose investigative techniques and procedures;
    (ii) Result in threats or reprisals against informants by the 
subjects of investigations; and
    (iii) Cause informants to refuse to give full information to 
investigators for fear of having their identities as sources disclosed.
    (i) Specific exemptions under 5 U.S.C. 552a(k)(4). (1) Under 5 
U.S.C. 552a(k)(4), the head of any agency may promulgate rules to exempt 
any system of records within the agency from certain provisions of the 
Privacy Act if the system is required by statute to be maintained and 
used solely as statistical records. This paragraph applies to the 
following system of records maintained by the Department, for which 
exemption is claimed under 5 U.S.C. 552a(k)(4).
    Internal Revenue Service:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
IRS 70.001...................  Statistics of Income--Individual Tax
                                Returns.
------------------------------------------------------------------------

    (2) The Department hereby exempts the system of records listed in 
paragraph (i)(1) of this section from the following provisions of 5 
U.S.C. 552a, pursuant to 5 U.S.C. 552a(k)(4): 5 U.S.C. 552a(c)(3), 5 
U.S.C. 552a(d)(1), (2), (3), and (4), 5 U.S.C. 552a(e)(1), 5 U.S.C. 
552a(e)(4)(G), (H), and (I), and 5 U.S.C. 552a(f).
    (3) The system of records is maintained under section 6108 of the 
Internal Revenue Code, which provides that ``the Secretary or his 
delegate shall prepare and publish annually statistics reasonably 
available with respect to the operation of the income tax laws, 
including classifications of taxpayers and of income, the amounts 
allowed as

[[Page 56]]

deductions, exemptions, and credits, and any other facts deemed 
pertinent and valuable.''
    (j) Reasons for exemptions under 5 U.S.C. 552a(k)(4). The reason for 
exempting the system of records is that disclosure of statistical 
records (including release of accounting for disclosures) would in most 
instances be of no benefit to a particular individual since the records 
do not have a direct effect on a given individual.
    (k) Specific exemptions under 5 U.S.C. 552a(k)(5). (1) Under 5 
U.S.C. 552a(k)(5), the head of any agency may promulgate rules to exempt 
any system of records within the agency from certain provisions of the 
Privacy Act if the system is investigatory material compiled solely for 
the purpose of determining suitability, eligibility, and qualifications 
for Federal civilian employment 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 September 27, 1975, under an implied promise 
that the identity of the source would be held in confidence. Thus to the 
extent that the records in this system can be disclosed without 
revealing the identity of a confidential source, they are not within the 
scope of this exemption and are subject to all the requirements of the 
Privacy Act. This paragraph applies to the following systems of records 
maintained by the Department or one of its bureaus:
    (i) Treasury:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
Treasury .007................  Personnel Security System.
------------------------------------------------------------------------

    (ii) Departmental Offices:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
DO .306......................  TIGTA Recruiting and Placement.
------------------------------------------------------------------------

    (iii) Alcohol and Tobacco Tax and Trade Bureau.
    (iv) Comptroller of the Currency.
    (v) Bureau of Engraving and Printing.
    (vi) Financial Management Service.
    (vii) Internal Revenue Service:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
IRS 34.021...................  Personnel Security Investigations,
                                National Background Investigations
                                Center.
IRS 34.022...................  Automated Background Investigations
                                System (ABIS).
IRS 90.006...................  Chief Counsel Human Resources and
                                Administrative Records.
------------------------------------------------------------------------

    (viii) U.S. Mint.
    (ix) Bureau of the Public Debt.
    (x) Financial Crimes Enforcement Network.
    (2) The Department hereby exempts the systems of records listed in 
paragraph (k)(1)(i) through (x) of this section from the following 
provisions of 5 U.S.C. 552a, pursuant to 5 U.S.C. 552a(k)(5): 5 U.S.C. 
552a(c)(3), 5 U.S.C. 552a(d)(1), (2), (3), and (4), 5 U.S.C. 552a(e)(1), 
5 U.S.C. 552a(e)(4)(G), (H), and (I), and 5 U.S.C. 552a(f).
    (l) Reasons for exemptions under 5 U.S.C. 552a(k)(5). (1) The 
sections of 5 U.S.C. 552a from which the systems of records are exempt 
include in general those providing for individuals' access to or 
amendment of records. When such access or amendment would cause the 
identity of a confidential source to be revealed, it would impair the 
future ability of the Department to compile investigatory material for 
the purpose of determining suitability, eligibility, or qualifications 
for Federal civilian

[[Page 57]]

employment, Federal contracts, or access to classified information. In 
addition, the systems shall be exempt from 5 U.S.C. 552a(e)(1) which 
requires that an agency maintain in its records only such information 
about an individual as is relevant and necessary to accomplish a purpose 
of the agency required to be accomplished by statute or executive order. 
The Department believes that to fulfill the requirements of 5 U.S.C. 
552a(e)(1) would unduly restrict the agency in its information gathering 
inasmuch as it is often not until well after the investigation that it 
is possible to determine the relevance and necessity of particular 
information.
    (2) If any investigatory material contained in the above-named 
systems becomes involved in criminal or civil matters, exemptions of 
such material under 5 U.S.C. 552a(j)(2) or (k)(2) is hereby claimed.
    (m) Exemption under 5 U.S.C. 552a(k)(6). (1) Under 5 U.S.C. 
552a(k)(6), the head of any agency may promulgate rules to exempt any 
system of records that is 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. This paragraph 
applies to the following system of records maintained by the Department, 
for which exemption is claimed under 5 U.S.C. 552a(k)(6).
    Departmental Officers:

------------------------------------------------------------------------
            Number                            System name
------------------------------------------------------------------------
DO .306......................  TIGTA Recruiting and Placement Records.
------------------------------------------------------------------------

    (2) The Department hereby exempts the system of records listed in 
paragraphs (m)(1) of this section from the following provisions of 5 
U.S.C. 552a, pursuant to 5 U.S.C. 552a(k)(6): 5 U.S.C. 552a(c)(3), 5 
U.S.C. 552a(d)(1), (2), (3), and (4), 5 U.S.C. 552a(e)(1), 5 U.S.C. 
552a(e)(4)(G), (H), and (I), and 5 U.S.C. 552a(f).
    (n) Reasons for exemptions under 5 U.S.C. 552a(k)(6). The reason for 
exempting the system of records is that disclosure of the material in 
the system would compromise the objectivity or fairness of the 
examination process.
    (o) Exempt information included in another system. Any information 
from a system of records for which an exemption is claimed under 5 
U.S.C. 552a(j) or (k) which is also included in another system of 
records retains the same exempt status such information has in the 
system for which such exemption is claimed.

[77 FR 28479, May 15, 2012, as amended at 77 FR 59548, Sept. 28, 2012; 
79 FR 12944, Mar. 7, 2014; 80 FR 13765, Mar. 17, 2015; 85 FR 86512, Dec. 
30, 2020; 86 FR 35398, July 6, 2021]



      Sec. Appendix A to Subpart C of Part 1--Departmental Offices

    1. In general. This appendix applies to the Departmental Offices as 
defined in 31 CFR part 1, subpart C, Sec.  1.20. It sets forth specific 
notification and access procedures with respect to particular systems of 
records, identifies the officers designated to make the initial 
determinations with respect to notification and access to records, the 
officers designated to make the initial and appellate determinations 
with respect to requests for amendment of records, the officers 
designated to grant extensions of time on appeal, the officers with whom 
``Statement of Disagreement'' may be filed, the officer designated to 
receive service of process and the addresses for delivery of requests, 
appeals, and service of process. In addition, it references the notice 
of systems of records and notices of the routine uses of the information 
in the system required by 5 U.S.C. 552a(e)(4) and (11) and published 
annually by the Office of the Federal Register in ``Privacy Act 
Issuances''.
    2. Requests for notification and access to records and accountings 
of disclosures. Initial determinations under 31 CFR 1.26, whether to 
grant requests for notification and access to records and accountings of 
disclosures for the Departmental Offices, will be made by the head of 
the organizational unit having immediate custody of the records 
requested, or the delegate of such official. This information is 
contained in the appropriate system notice in the ``Privacy Act 
Issuances'', published annually by the Office of the Federal Register. 
Requests for information and specific guidance on where to send requests 
for records should be addressed to:
    Privacy Act Request, DO, Director, Disclosure Services Department of 
the Treasury,

[[Page 58]]

1500 Pennsylvania Avenue, NW., Washington, DC 20220.
    3. Requests for amendments of records. Initial determinations under 
31 CFR 1.27(a) through (d) with respect to requests to amend records for 
records maintained by the Departmental Offices will be made by the head 
of the organization or unit having immediate custody of the records or 
the delegate of such official. Requests for amendment of records should 
be addressed as indicated in the appropriate system notice in ``Privacy 
Act Issuances'' published by the Office of the Federal Register. 
Requests for information and specific guidance on where to send these 
requests should be addressed to: Privacy Act Amendment Request, DO, 
Director, Disclosure Services Department of the Treasury, 1500 
Pennsylvania Avenue, NW., Washington, DC 20220.
    4. Administrative appeal of initial determination refusing to amend 
record. Appellate determinations under 31 CFR 1.27(e) with respect to 
records of the Departmental Offices, including extensions of time on 
appeal, will be made by the Secretary, Deputy Secretary, Under 
Secretary, General Counsel, Special Inspector General for Troubled 
Assets Relief Program, or Assistant Secretary having jurisdiction over 
the organizational unit which has immediate custody of the records, or 
the delegate of such official, as limited by 5 U.S.C. 552a(d) (2) and 
(3). Appeals made by mail should be addressed as indicated in the letter 
of initial decision or to:
    Privacy Act Amendment Request, DO, Director, Disclosure Services 
Department of the Treasury, 1500 Pennsylvania Avenue, NW., Washington, 
DC 20220.
    5. Statements of disagreement. ``Statements of Disagreement'' as 
described in 31 CFR 1.27(e)(4) shall be filed with the official signing 
the notification of refusal to amend at the address indicated in the 
letter of notification within 35 days of the date of notification and 
should be limited to one page.
    6. Service of process. Service of process will be received by the 
General Counsel of the Department of the Treasury or the delegate of 
such official and shall be delivered to the following location:
    General Counsel, Department of the Treasury, Room 3000, Main 
Treasury Building, 1500 Pennsylvania Avenue, NW., Washington, DC 20220.
    7. Annual notice of systems of records. The annual notice of systems 
of records required to be published by the Office of the Federal 
Register in the publication entitled ``Privacy Act Issuances'', as 
specified in 5 U.S.C. 552a (f). Any specific requirements for access, 
including identification requirements, in addition to the requirements 
set forth in 31 CFR 1.26 and 1.27 and 8 of this appendix, and locations 
for access are indicated in the notice for the pertinent system.
    8. Verification of identity. An individual seeking notification or 
access to records, or seeking to amend a record, must satisfy one of the 
following identification requirements before action will be taken by the 
Departmental Offices on any such request:
    (i) An individual seeking notification or access to records in 
person, or seeking to amend a record in person, may establish identity 
by the presentation of a single official document bearing a photograph 
(such as a passport or identification badge) or by the presentation of 
two items of identification which do not bear a photograph but do bear 
both a name and signature (such as a driver's license or credit card).
    (ii) An individual seeking notification or access to records by 
mail, or seeking to amend a record by mail, may establish identity by a 
signature, address, and one other identifier such as a photocopy of a 
driver's license or other official document bearing the individual's 
signature.
    (iii) Notwithstanding subdivisions (i) and (ii) of this 
subparagraph, an individual seeking notification or access to records by 
mail or in person, or seeking to amend a record by mail or in person, 
who so desires, may establish identity by providing a notarized 
statement, swearing or affirming to such individual's identity and to 
the fact that the individual understands the penalties provided in 5 
U.S.C. 552a(i)(3) for requesting or obtaining access to records under 
false pretenses.
Notwithstanding subdivision (i), (ii), or (iii) of this subparagraph, a 
designated official may require additional proof of an individual's 
identity before action will be taken on any request, if such official 
determines that it is necessary to protect against unauthorized 
disclosure of information in a particular case. In addition, a parent of 
any minor or a legal guardian of any individual will be required to 
provide adequate proof of legal relationship before such person may act 
on behalf of such minor or such individual.

[52 FR 26305, July 14, 1987, as amended at 75 FR 745, Jan. 6, 2010]



    Sec. Appendix B to Subpart C of Part 1--Internal Revenue Service

    1. Purpose. The purpose of this section is to set forth the 
procedures that have been established by the Internal Revenue Service 
for individuals to exercise their rights under the Privacy Act of 1974 
(88 Stat. 1896) with respect to systems of records maintained by the 
Internal Revenue Service, including the Office of the Chief Counsel. The 
procedures contained in this section are to be promulgated under the 
authority of 5 U.S.C. 552a(f). The procedures contained in this section 
relate to the following:
    (a) The procedures whereby an individual can be notified in response 
to a request if a

[[Page 59]]

system of records named by the individual contains a record pertaining 
to such individual (5 U.S.C. 552a(f)(1)).
    (b) The procedures governing reasonable times, places, and 
requirements for identifying an individual who requests a record of 
information pertaining to such individual before the Internal Revenue 
Service will make the record or information available to the individual 
(5 U.S.C. 552a (f)(2)).
    (c) The procedures for the disclosure to an individual upon a 
request of a record of information pertaining to such individual, 
including special procedures for the disclosure to an individual of 
medical records, including psychological records. (5 U.S.C. 552a 
(f)(3)).
    (d) The procedures for reviewing a request from an individual 
concerning the amendment of any record or information pertaining to the 
individual, for making a determination on the request, for an appeal 
within the Internal Revenue Service of an initial adverse agency 
determination, and for whatever additional means may be necessary for 
individuals to be able to exercise fully their right under 5 U.S.C. 552a 
(5 U.S.C. 552a (f)(4)).
    Any individual seeking to determine whether a system of records 
maintained by any office of the Internal Revenue Service contains a 
record or information pertaining to such individual, or seeking access 
to, or amendment of, such a record, must comply fully with the 
applicable procedure contained in paragraph (3) or (4) of this section 
before the Internal Revenue Service will act on the request. Neither the 
notification and access (or accounting of disclosures) procedures under 
paragraph (3) of this section nor the amendment procedures under 
paragraph (4) of this section are applicable to (i) systems of records 
exempted pursuant to 5 U.S.C. 552a (j) and (k), (ii) information 
compiled in reasonable anticipation of a civil action or proceeding (see 
5 U.S.C. 552a (d)(5)), or (iii) information pertaining to an individual 
which is contained in, and inseparable from, another individual's 
record.
    2. Access to and amendment of tax records. The provisions of the 
Privacy Act of 1974 may not be used by an individual to amend or correct 
any tax record. The determination of liability for taxes imposed by the 
Internal Revenue Service Code, the collection of such taxes, and the 
payment (including credits or refunds of overpayments) of such taxes are 
governed by the provisions of the Internal Revenue Service Code and by 
the procedural rules of the Internal Revenue Service. These provisions 
set forth the established procedures governing the determination of 
liability for tax, the collection of such taxes, and the payment 
(including credits or refunds of overpayments) of such taxes. In 
addition, these provisions set forth the procedures (including 
procedures for judicial review) for resolving disputes between taxpayers 
and the Internal Revenue Service involving the amount of tax owed, or 
the payment or collection of such tax. These procedures are the 
exclusive means available to an individual to contest the amount of any 
liability for tax or the payment or collection thereof. See, for 
example, 26 CFR 601.103 for summary of general tax procedures. 
Individuals are advised that Internal Revenue Service procedures permit 
the examination of tax records during the course of an investigation, 
audit, or collection activity. Accordingly, individuals should contact 
the Internal Revenue Service employee conducting an audit or effecting 
the collection of tax liabilities to gain access to such records, rather 
than seeking access under the provisions of the Privacy Act. Where, on 
the other hand, an individual desires information or records not in 
connection with an investigation, audit, or collection activity, the 
individual may follow these procedures.
    3. Procedures for access to records--(a) In general. This paragraph 
sets forth the procedure whereby an individual can be notified in 
response to a request if a system of records named by the individual 
which is maintained by the Internal Revenue Service contains a record 
pertaining to such individual. In addition, this paragraph sets forth 
the procedure for the disclosure to an individual upon a request of a 
record or information pertaining to such individual, including the 
procedures for verifying the identity of the individual before the 
Internal Revenue Service will make a record available, and the procedure 
for requesting an accounting of disclosures of such records. An 
individual seeking to determine whether a particular system of records 
contains a record or records pertaining to such individual and seeking 
access to such records (or seeking an accounting of disclosures of such 
records) shall make a request for notification and access (or a request 
for an accounting of disclosures) in accordance with the rules provided 
in paragraph 3(b) of this section.
    (b) Form of request for notification and access or request for an 
accounting of disclosures. (i) A request for notification and access (or 
request for an accounting of disclosures) shall be made in writing and 
shall be signed by the person making the request.
    (ii) Such request shall be clearly marked, ``Request for 
notification and access,'' or ``Request for accounting of disclosures.''
    (iii) Such a request shall contain a statement that it is being made 
under the provisions of the Privacy Act of 1974.
    (iv) Such request shall contain the name and address of the 
individual making the request. In addition, if a particular system 
employs an individual's social security number as an essential means of 
accessing the system, the request must include the individual's social 
security number. In the case of a record maintained in the name of two 
or

[[Page 60]]

more individuals (e.g., husband and wife), the request shall contain the 
names, addresses, and social security numbers (if necessary) of both 
individuals.
    (v) Such request shall specify the name and location of the 
particular system of records (as set forth in the Notice of Systems) for 
which the individual is seeking notification and access (or an 
accounting of disclosures), and the title and business address of the 
official designated in the access section for the particular system (as 
set forth in the Notice of Systems). In the case of two or more systems 
of records which are under the control of the same designated official 
at the same systems location, a single request may be made for such 
systems. In the case of two or more systems of records which are not in 
the control of the same designated official at the same systems 
location, a separate request must be made for each such system.
    (vi) If an individual wishes to limit a request for notification and 
access to a particular record or records, the request should identify 
the particular record. In the absence of a statement to the contrary, a 
request for notification and access for a particular system of records 
shall be considered to be limited to records which are currently 
maintained by the designated official at the systems location specified 
in the request.
    (vii) If such request is seeking notification and access to material 
maintained in a system of records which is exempt from disclosure and 
access under 5 U.S.C. 552a (k)(2), the individual making the request 
must establish that such individual has been denied a right, privilege, 
or benefit that such individual would otherwise be entitled to under 
Federal law as a result of the maintenance of such material.
    (viii) Such request shall state whether the individual wishes to 
inspect the record in person, or desires to have a copy made and 
furnished without first inspecting it. If the individual desires to have 
a copy made, the request must include an agreement to pay the fee for 
duplication ultimately determined to be due. If the individual does not 
wish to inspect a record, but merely wishes to be notified whether a 
particular system or records contains a record pertaining to such 
individual, the request should so state.
    (c) Time and place for making a request. A request for notification 
and access to records under the Privacy Act (or a request for accounting 
of disclosures) shall be addressed to or delivered in person to the 
office of the official designated in the access section for the 
particular system of records for which the individual is seeking 
notification and access (or an accounting of disclosures). The title and 
office address of such official is set forth for each system of records 
in the Notice of Systems of Records. A request delivered to an office in 
person must be delivered during the regular office hours of that office.
    (d) Sample request for notification and access to records. The 
following are sample requests for notification and access to records 
which will satisfy the requirements of this paragraph:

         Request for Notification and Access to Records by Mail

    I, John Doe, of 100 Main Street, Boston, MA 02108 (soc. sec. num. 
000-00-0000) request under the Privacy Act of 1974 that the following 
system of records be examined and that I be furnished with a copy of any 
record (or a specified record) contained therein pertaining to me. I 
agree that I will pay the fees ultimately determined to be due for 
duplication of such record. I have enclosed the necessary information.

System Name:
System Location:
Designated Official:

________________________________________________________________________
                                                                John Doe

        Request for Notification and Access to Records in Person

    I, John Doe, of 100 Main Street, Boston, MA 02108 (soc. sec. num. 
000-00-0000) request under the provisions of the Privacy Act of 1974, 
that the following system of records be examined and that I be granted 
access in person to inspect any record (or a specified record) contained 
therein pertaining to me. I have enclosed the necessary identification.

System Name:
System Location:
Designated Official:

________________________________________________________________________
                                                                John Doe

    (e) Processing a request for notification and access to records or a 
request for an accounting of disclosures. (i) If a request for 
notification and access (or request for an accounting of disclosures) 
omits any information which is essential to processing the request, the 
request will not be acted upon and the individual making the request 
will be promptly advised of the additional information which must be 
submitted before the request can be processed.
    (ii) Within 30 days (not including Saturdays, Sundays, and legal 
public holidays) after the receipt of a request for notification and 
access (or a request for an accounting of disclosures), to a particular 
system of records by the designated official for such system, a 
determination will be made as to whether the particular system of 
records is exempt from the notification and access provisions of the 
Privacy Act, and if such system is not exempt, whether it does or does

[[Page 61]]

not contain a record pertaining to the individual making the request. If 
a determination cannot be made within 30 days, the individual will be 
notified of the delay, the reasons therefor, and the approximate time 
required to make a determination. If it is determined by the designated 
official that the particular system of records is exempt from the 
notification and access provisions of the Privacy Act, the individual 
making the request will be notified of the provisions of the Privacy Act 
under which the exemption is claimed. On the other hand, if it is 
determined by the designated official that the particular system of 
records is not exempted from the notification and access provisions of 
the Privacy Act and that such system contains a record pertaining to the 
individual making the request, the individual will be notified of the 
time and place where inspection may be made. If an individual has not 
requested that access be granted to inspect the record in person, but 
merely requests that a copy of the record be furnished, or if it is 
determined by the designated official that the granting of access to 
inspect a record in person is not feasible in a particular case, then 
the designated official will furnish a copy of the record with the 
notification, or if a copy cannot be furnished at such time, a statement 
indicating the approximate time such copy will be furnished. If the 
request is for an accounting of disclosures from a system of records 
which is not exempt from the accounting of disclosure provisions of the 
Privacy Act, the individual will be furnished with an accounting of such 
disclosures.
    (f) Granting of access. Normally, an individual will be granted 
access to inspect a record in person within 30 days (excluding 
Saturdays, Sundays, and legal public holidays) after the receipt for a 
request for notification and access by the designated official. If 
access cannot be granted within 30 days, the notification will state the 
reasons for the delay and the approximate time such access will be 
granted. An individual wishing to inspect a record may be accompanied by 
another person of his choosing. Both the individual seeking access and 
the individual accompanying him may be required to sign a form supplied 
by the IRS indicating that the Service is authorized to disclose or 
discuss the contents of the record in the presence of both individuals. 
See 26 CFR 601.502 for requirements to be met by taxpayer's 
representatives in order to discuss the contents of any tax records.
    (g) Medical records. When access is requested to medical records 
(including psychological records), the designated official may determine 
that release of such records will be made only to a physician designated 
by the individual to have access to such records.
    (h) Verification of identity. An individual seeking notification or 
access to records, or seeking to amend a record, must satisfy one of the 
following identification requirements before action will be taken by the 
IRS on any such request:
    (i) An individual seeking notification or access to records in 
person, or seeking to amend a record in person, may establish identity 
by the presentation of a single document bearing a photograph (such as a 
passport or identification badge) or by the presentation of two items of 
identification which do not bear a photograph but do bear both a name 
and signature (such as a driver's license or credit card).
    (ii) An individual seeking notification or access to records by 
mail, or seeking to amend a record by mail, may establish identity by a 
signature, address, and one other identifier such as a photocopy of a 
driver's license or other document bearing the individual's signature.
    (iii) Notwithstanding subdivisions (i) and (ii) of this 
subparagraph, an individual seeking notification or access to records by 
mail or in person, or seeking to amend a record by mail or in person, 
who so desires, may establish identity by providing a notarized 
statement, swearing or affirming to such individual's identity and to 
the fact that the individual understands the penalties provided in 5 
U.S.C. 552a(i)(3) for requesting or obtaining access to records under 
false pretenses.
    (iv) Notwithstanding subdivisions (i), (ii), or (iii) of this 
subparagraph, a designated official may require additional proof of an 
individual's identity before action will be taken on any request if such 
official determines that it is necessary to protect unauthorized 
disclosure of information in a particular case. In addition, a parent of 
any minor or a legal guardian of any individual will be required to 
provide adequate proof of legal relationship before such person may act 
on behalf of such minor or such individual.
    (i) Fees. The fee for costs required of the IRS in copying records 
pursuant to this paragraph is $0.15 per page. However, no fee will be 
charged if the aggregate costs required of the IRS in copying records is 
less than $3.00. If an individual who has requested access to inspect a 
record in person is denied such access by the designated official 
because it would not be feasible in a particular case, copies of such 
record will be furnished to the individual without payment of the fees 
otherwise required under this subparagraph. If the IRS estimates that 
the total fees for costs incurred in complying with a request for copies 
of records will amount to $50 or more, the individual making the request 
may be required to enter into a contract for the payment of the actual 
fees with respect to the request before the Service will furnish the 
copies requested. Payment of fees

[[Page 62]]

for copies of records should be made by check or money order payable to 
the Internal Revenue Service.
    4. Procedures for amendment of records. (a) In general. This 
paragraph sets forth the procedures for reviewing a request from an 
individual concerning the amendment of any record or information 
pertaining to such individual, for making a determination on the 
request, for making an appeal within the IRS of an initial adverse 
determination, and for judicial review of a final determination.
    (b) Amendment of record. Under 5 U.S.C. 552a(d)(2), an individual 
who has been granted access to a record pertaining to such individual 
may, after inspecting the record, request that the record be amended to 
make any correction of any portion thereof which the individual believes 
is not accurate, relevant, timely, or complete. An individual may seek 
to amend a record in accordance with the rules provided in paragraph 
(d)(3) of this section. See paragraph (b) of this section for 
prohibition against amendment of tax records.
    (c) Form of request for amendment of record. (i) A request for 
amendment of a record shall be in writing and shall be signed by the 
individual making the request.
    (ii) Such request shall be clearly marked ``Request for amendment of 
record.''
    (iii) Such request shall contain a statement that it is being made 
under the provisions of the Privacy Act of 1974.
    (iv) Such request shall contain the name and address of the 
individual making the request. In addition, if a particular system 
employs an individual's social security number as an essential means of 
accessing the system, the request must include the individual's social 
security number. In the case of a record maintained in the name of two 
or more individuals (e.g., husband and wife), the request shall contain 
the names, addresses, and social security numbers (if necessary) of both 
individuals.
    (v) Such request shall specify the name and location of the system 
of records (as set forth in the Notice of Systems) in which such record 
is maintained, and the title and business address of the official 
designated in the access section for such system (as set forth in the 
Notice of Systems).
    (vi) Such request shall specify the particular record in the system 
which the individual is seeking to amend.
    (vii) Such request shall clearly state the specific changes which 
the individual wishes to make in the record and a concise explanation of 
the reasons for the changes. If the individual wishes to correct or add 
any information, the request shall contain specific language making the 
desired correction or addition.
    (d) Time and place for making request. A request to amend a record 
under the Privacy Act shall be addressed to or delivered in person to 
the office of the official designated in the access section for the 
particular system of records. The title and office address of such 
official is set forth for each system of records in the Notice of 
Systems of Records. A request delivered to an office in person must be 
delivered during the regular office hours of that office.
    (e) Processing a request for amendment of a record. (i) Within 10 
days (not including Saturdays, Sundays, and legal public holidays) after 
the receipt of a request to amend a record by the designated official, 
the individual will be sent a written acknowledgement that will state 
that the request has been received, that action is being taken thereon, 
and that the individual will be notified within 30 days (not including 
Saturdays, Sundays, and legal public holidays) after the receipt of the 
request whether the requested amendments will or will not be made. If a 
request for amendment of a record omits any information which is 
essential to processing the request, the request will not be acted upon 
and the individual making the request will be promptly advised on the 
additional information which must be submitted before the request can be 
processed.
    (ii) Within 30 days (not including Saturdays, Sundays, and legal 
public holidays) after the receipt of a request to amend a record by the 
designated official, a determination will be made as to whether to grant 
the request in whole or part. The individual will then be notified in 
writing of the determination. If a determination cannot be made within 
30 days, the individual will be notified in writing within such time of 
the reasons for the delay and the approximate time required to make a 
determination. If it is determined by the designated official that the 
request will be granted, the requested changes will be made in the 
record and the individual will be notified of the changes. In addition, 
to the extent an accounting was maintained, all prior recipients of such 
record will be notified of the changes. Upon request, an individual will 
be furnished with a copy of the record, as amended, subject to the 
payment of the appropriate fees. On the other hand, if it is determined 
by the designated official that the request, or any portion thereof, 
will not be granted, the individual will be notified in writing of the 
adverse determination. The notification of an adverse determination will 
set forth the reasons for refusal to amend the record. In addition, the 
notification will contain a statement informing the individual of such 
individual's right to request an independent review of the adverse 
determination by a reviewing officer in the national office of the IRS 
and the procedures for requesting such a review.
    (f) Administrative review of adverse determination. Under 5 U.S.C. 
552a (d)(3), an individual who disagrees with the refusal of the

[[Page 63]]

agency to amend a record may, within 35 days of being notified of the 
adverse determination, request an independent review of such refusal by 
a reviewing officer in the national office of the IRS. The reviewing 
officer for the IRS is the Commission of Internal Revenue, the Deputy 
Commissioner, or an Assistant Commissioner. In the case of an adverse 
determination relating to a system of records maintained by the Office 
of General Counsel for the IRS, the reviewing officer is the Chief 
Counsel or his delegate. An individual seeking a review of an adverse 
determination shall make a request for review in accordance with the 
rules provided in paragraph (d)(7) of this section.
    (g) Form of request for review. (i) A request for review of an 
adverse determination shall be in writing and shall be signed by the 
individual making the request.
    (ii) Such request shall be clearly marked ``Request for review of 
adverse determination''.
    (iii) Such request shall contain a statement that it is being made 
under the provisions of the Privacy Act of 1974.
    (iv) Such request shall contain the name and address of the 
individual making the request. In addition, if a particular system 
employs an individual's social security number as an essential means of 
accessing the system, the request must include the individual's social 
security number. In the case of a record maintained in the name of two 
or more individuals (e.g. husband and wife), the request shall contain 
the names, addresses, and social security numbers (if necessary) of both 
individuals.
    (v) Such request shall specify the particular record which the 
individual is seeking to amend, the name and location of the system of 
records (as set forth in the Notice of Systems) in which such record is 
maintained, and the title and business address of the designated 
official for such system (as set forth in the Notice of Systems).
    (vi) Such request shall include the date of the initial request for 
amendment of the record, and the date of the letter notifying the 
individual of the initial adverse determination with respect to such 
request.
    (vii) such request shall clearly state the specific changes which 
the individual wishes to make in the record and a concise explanation of 
the reasons for the changes. If the individual wishes to correct or add 
any information, the request shall contain specific language making the 
desired correction or addition.
    (h) Time and place for making the request. A request for review of 
an adverse determination under the Privacy Act shall be addressed to or 
delivered in person to the Director, Office of Disclosure, Attention: 
OP:EX:D Internal Revenue Service, 1111 Constitution Avenue, NW, 
Washington, DC 20224. A request for review of an adverse determination 
will be promptly referred by the Director, Office of Disclosure to the 
appropriate reviewing officer for his review and final determination.
    (i) Processing a request for review of adverse determination. Within 
30 days (not including Saturdays, Sundays, and legal public holidays) 
after the receipt of a request for review of an adverse determination by 
the appropriate reviewing officer, the reviewing officer will review the 
initial adverse determination, make a final determination whether to 
grant the request to amend the record in whole or in part, and notify 
the individual in writing of the final determination. If a final 
determination cannot be made within 30 days, the Commissioner of 
Internal Revenue may extend such 30-day period. The individual will be 
notified in writing within the 30 day period of the cause for the delay 
and the approximate time required to make a final determination. If it 
is determined by the reviewing officer that the request to amend the 
record will be granted, the reviewing officer will cause the requested 
changes to be made and the individual will be so notified. Upon request, 
an individual will be furnished with a copy of the record as amended 
subject to the payment of appropriate fees. On the other hand, if it is 
determined by the reviewing officer that the request to amend the 
record, or any portion thereof, will not be granted, the individual will 
be notified in writing of the final adverse determination. The 
notification of a final adverse determination will set forth the reasons 
for the refusal of the reviewing officer to amend the record. The 
notification shall include a statement informing the individual of the 
right to submit a concise statement for insertion in the record setting 
forth the reasons for the disagreement with the refusal of the reviewing 
officer to amend the record. In addition, the notification will contain 
a statement informing the individual of the right to seek judicial 
review by a United States district court of a final adverse 
determination.
    (j) Statement of disagreement. Under 5 U.S.C. 552a (d)(3), an 
individual who disagrees with a final adverse determination not to amend 
a record subject to amendment under the Privacy Act may submit a concise 
statement for insertion in the record setting forth the reasons for 
disagreement with the refusal of the reviewing officer to amend the 
record. A statement of disagreement should be addressed to or delivered 
in person to the Director, Office of Disclosure, Attention: OP:EX:D, 
Internal Revenue Service, 1111 Constitution Avenue, NW, Washington, DC 
20224. The Director, Office of Disclosure will foward the statement of 
disagreement to the appropriate designated official who will cause the 
statement to be inserted in the individual's record. Any such statement 
will be available to anyone to whom the record is

[[Page 64]]

subsequently disclosed and the prior recipients of the record will be 
provided with a copy of the statement of disagreement, to the extent an 
accounting of disclosures was maintained.
    (k) Judicial review. If, after a review and final determination on a 
request to amend a record by the appropriate reviewing officer, the 
individual is notified that the request will not be granted, or if, 
after the expiration of 30 days (not including Sundays, Saturdays, and 
legal public holidays) from the receipt of such request by the Director, 
Disclosure Operations Division, action is not taken thereon in 
accordance with the requirements of paragraph (d)(9) of this section, an 
individual may commence an action within the time prescribed by law in a 
U.S. District Court pursuant to 5 U.S.C. 552a (g)(1). The statute 
authorizes an action only against the agency. With respect to records 
maintained by the IRS, the agency is the Internal Revenue Service, not 
an officer or employee thereof. Service of process in such an action 
shall be in accordance with the Federal Rules of Civil Procedure (28 
U.S.C. App.) applicable to actions against an agency of the United 
States. Where provided in such Rules, delivery of process upon the IRS 
must be directed to the Commissioner of Internal Revenue, Attention: 
CC:GLS, 1111 Constitution Avenue, NW, Washington, DC 20224. The district 
court will determine the matter de novo.
    5. Records transferred to Federal Records Centers. Records 
transferred to the Administrator of General Services for storage in a 
Federal Records Center are not used by the Internal Revenue Service in 
making any determination about any individual while stored at such 
location and therefore are not subject to the provisions of 5 U.S.C. 
552a (e)(5) during such time.



  Sec. Appendix C to Subpart C of Part 1--United States Customs Service

    1. In general. This appendix applies to the United States Customs 
Service. It sets forth specific notification and access procedures with 
respect to particular systems of records, identifies the officer 
designated to make the initial determinations with respect to 
notification and access to records and accountings of disclosures of 
records. This appendix also sets forth the specific procedures for 
requesting amendment of records and identifies the officers designated 
to make the initial and appellate determinations with respect to 
requests for amendment of records. It identifies the officers designated 
to grant extensions of time on appeal, the officers with whom 
``Statements of Disagreement may be filed, the officer designated to 
receive service of process and the addresses for delivery of requests, 
appeals, and service of process. In addition, it references the notice 
of systems of records and notices of the routine uses of the information 
in the system required by 5 U.S.C. 552a(e) (4) and (11) and published 
annually by the Office of the Federal Register in ``Privacy Act 
Issuances''.
    2. Requests for notification and access to records and accounting of 
disclosures. (a) For records which are maintained at the United States 
Customs Service Headquarters, initial requests for notification and 
access to records and accountings of disclosures under 31 CFR 1.26, 
should be mailed or personally delivered to the Director, Office of 
Regulations & Rulings, U.S. Customs Service, 1301 Constitution Avenue 
NW., Washington, DC 20229. The official who has authority over the 
maintenance of the file will have the authority to grant or deny the 
request.
    (b) For records maintained at Regional Offices, initial requests for 
notification and access to records and accountings of disclosures under 
31 CFR 1.26, should be mailed or personally delivered to the Regional 
Commissioner of Customs in whose region the records are located. This 
official shall have the authority to grant the request or deny the 
request. The appropriate location of the regional offices is specified 
in Customs Appendix A in ``Privacy Act Issuances'' published annually by 
the Office of the Federal Register.
    (c) Each request shall comply with the identification and other 
requirements set forth in 31 CFR 1.26, and in the appropriate system 
notice in the ``Privacy Act Issuances'' published annually by the Office 
of the Federal Register. Each request should be conspicuously labeled on 
the face of the envelope ``Privacy Act Request''.
    3. Request for amendment of records. (a) For records which are 
maintained at Customs Service Headquarters, initial requests for 
amendment of records under 31 CFR 1.27 (a) through (d) should be mailed 
or personally delivered to the Director, Office of Regulations & 
Rulings, U.S. Customs Service, 1301 Constitution Avenue NW., Washington, 
DC 20229. The official who has authority over the maintenance of the 
file will have the authority to grant or deny the request.
    (b) For records not maintained at Customs Service Headquarters, 
initial requests for amendment of records under 31 CFR 1.27 (a) through 
(d) should be mailed or personally delivered to the Regional 
Commissioner of Customs in whose region the records are located. This 
official shall have the authority to grant or deny the request. A 
request directed to a Regional Commissioner should be mailed to or 
personally delivered at the appropriate location specified in Customs 
Appendix A in ``Privacy Act Issuances'' published annually by the Office 
of the Federal Register.
    (c) Each request shall comply with the identification and other 
requirements set forth in 31 CFR 1.27, and in the appropriate

[[Page 65]]

system notice in ``Privacy Act Issuance published by the Office of the 
Federal Register. Each request should be conspicuously labeled on the 
face of the envelope ``Privacy Act Amendment Request''.
    4. Administrative appeal of initial determination refusing to amend 
records. Appellate determinations (including extensions of time on 
appeal under 31 CFR 1.27 (e) with respect to all Customs Service records 
will be made by the Director, Office of Regulations & Rulings or the 
delegate of such official. All such appeals should be mailed or 
personally delivered to the United States Customs Service, Office of 
Regulations & Rulings, 1301 Constitution Avenue NW., Washington, DC 
20229. Each appeal should be conspicuously labeled on the face of the 
envelope ``Privacy Act Amendment Appeal''.
    5. Statements of disagreement. ``Statements of Disagreement'' 
pursuant to 31 CFR 1.27 (e)(4)(i) shall be filed with the official 
signing the notification of refusal to amend at the address indicated in 
the letter of notification within 35 days of the date of such 
notification and should be limited to one page.
    6. Service of process. Service of process will be received by the 
Chief Counsel, United States Customs Service, 1301 Constitution Avenue 
NW., Washington, DC 20229.
    7. Annual notice of systems of records. The annual notice of the 
United States Customs Service systems of records required to be 
published by the Office of the Federal Register, as specified in 5 
U.S.C. 552a(f), is included in the publication entitled ``Privacy Act 
Issuances''.
    8. Verification of identity. Each request shall comply with the 
identification and other requirements set forth in 31 CFR 1.26 and in 
the appropriate system notice published by the Office of the Federal 
Register. Each request should be conspicuously labeled on the face of 
the envelope ``Privacy Act Request''.



  Sec. Appendix D to Subpart C of Part 1--United States Secret Service

    1. In general. This appendix applies to the United States Secret 
Service. It sets forth specific notification and access procedures with 
respect to particular systems of records including identification 
requirements, and time and places where records may be reviewed; 
identifies the officers designated to make the initial determinations 
with respect to notification and access to records and accountings of 
disclosures of records. This appendix also sets forth the specific 
procedures for requesting amendment of records and identifies the 
officers designated to make the initial and appellate determinations 
with respect to requests for amendment of records. It identifies the 
officers designated to grant extensions of time on appeal, the officers 
with whom ``Statements of Disagreement may be filed, the officer 
designated to receive service of process and the addresses for delivery 
of requests, appeals, and service of process. In addition, it references 
the notice of systems of records and notices of the routine uses of the 
information in the system required by 5 U.S.C. 552a(e) (4) and (11) and 
published annually by the Office of the Federal Register in ``Privacy 
Act Issuances''.
    2. Requests for notification and access to records and accountings 
of disclosures. Initial determinations under 31 CFR 1.26, whether to 
grant requests for notification and access to records and accountings of 
disclosures for the United States Secret Service, will be made by the 
Freedom of Information and Privacy Act Officer, United States Secret 
Service. Requests for notification should be made by mail or delivered 
personally between the hours of 9:00 a.m. and 5:30 of any day excluding 
Saturdays, Sundays, and legal holidays to: Privacy Act Request, Freedom 
of Information and Privacy Act Officer, United States Secret Service, 
Suite 3000, 950 H Street, NW., Washington, DC 20373-5802.
    a. Identification requirements. In addition to the requirements 
specified in 31 CFR 1.26, each request for notification, access or 
amendment of records made by mail shall contain the requesting 
individual's date and place of birth and a duly notarized statement 
signed by the requester asserting his or her identity and stipulating 
that the requesting individual understands that knowingly or willfully 
seeking or obtaining access to records about another person under false 
pretences is punishable by a fine of up to $5,000.
    b. Individuals making requests in person. Individuals making 
requests in person will be required to exhibit acceptable identifying 
documents such as employee identification numbers, drivers licenses, 
medical cards or other documents sufficient to verify the identity of 
the requester.
    c. Physical inspection of records. Upon determining that a request 
for the physical inspection of records is to be granted, the requester 
shall be notified in writing of the determination, and when and where 
the requested records may be inspected. The inspection of records will 
be conducted at the Secret Service field office or other facility 
located nearest to the residence of the individual making the request. 
Such inspection shall be conducted during the regular business hours of 
the Secret Service Field Office or other facility where the disclosure 
is made. A person of his or her own choosing may accompany the 
individual making the request provided the individual furnishes a 
written statement authorizing the disclosure of that individual's record 
in the accompanying person's presence. Any disclosure of a record will 
be made in the presence of a representative of the United States Secret 
Service.
    3. Requests for amendment of records. Initial determination under 31 
CFR part 1, whether

[[Page 66]]

to grant requests to amend records will be made by the Freedom of 
Information and Privacy Act Officer. Requests should be mailed or 
delivered personally between the hours of 9:00 a.m. and 5:30 p.m. to: 
Privacy Act Amendment Request, Freedom of Information and Privacy Acts 
Officer, United States Secret Service, Suite 3000, 950 H Street, NW., 
Washington, DC 20373-5802.
    4. Administrative appeal of initial determinations refusing 
amendment of records. Appellate determinations, including extensions of 
time on appeal, with respect to records of the United States Secret 
Service will be made by the Deputy Director, United States Secret 
Service. Appeals may be mailed or delivered personally to: Privacy Act 
Amendment Appeal, Deputy Director, United States Secret Service, 950 H 
Street, NW., Suite 8300, Washington, DC 20373-5802.
    5. Statements of disagreement. ``Statements of Disagreements'' under 
31 CFR 1.27 (e)(4)(i) shall be filed with the official signing of the 
notification of refusal to amend at the address indicated in the letter 
of notification within 35 days of the date of such notification and 
should be limited to one page.
    6. Service of process. Service of process will be received by the 
United States Secret Service General Counsel and shall be delivered to 
the following location: General Counsel, United States Secret Service, 
Suite 8300, 950 H Street, NW., Washington, DC 20373-5802.
    7. Annual notice of systems of records. The annual notice of systems 
of records is published by the Office of the Federal Register, as 
specified in 5 U.S.C. 552a(f). The publication is entitled ``Privacy Act 
Issuances''. Any specific requirements for access, including 
identification requirements, in addition to the requirements set forth 
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent 
system.

[52 FR 26305, July 14, 1987, as amended at 66 FR 9959, Feb. 13, 2001]



  Sec. Appendix E to Subpart C of Part 1--Alcohol and Tobacco Tax and 
                              Trade Bureau

    1. In general. This appendix applies to the Alcohol and Tobacco Tax 
and Trade Bureau. It sets forth specific notification and access 
procedures with respect to particular systems of records, identifies the 
officers designated to make the initial determinations with respect to 
notification and access to records and accountings of disclosures of 
records. This appendix also sets forth the specific procedures for 
requesting amendment of records and identifies the officers designated 
to make the initial and appellate determinations with respect to 
requests for amendment of records. It identifies the officers designated 
to grant extensions of time on appeal, the officers with whom 
``Statements of Disagreement'' may be filed, the officer designated to 
receive service of process and the addresses for delivery of requests, 
appeals, and service of process. In addition, it references the notice 
of systems of records and notices of the routine uses of the information 
in the system required by 5 U.S.C. 552a(3), (4) and (11) and published 
annually by the Office of the Federal Register in ``Privacy Act 
Issuances''.
    2. Requests for notification and access to records and accountings 
of disclosures. Initial determination under 31 CFR 1.26, whether to 
grant requests for notification and access to records and accountings of 
disclosures for the Alcohol and Tobacco Tax and Trade Bureau, will be 
made by the Director, Regulations and Rulings Division, or the delegate 
of such officer. Requests may be mailed or delivered in person to:
    Privacy Act Request, Director, Regulations and Rulings Division, 
Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street, NW., Box 12, 
Washington, DC 20005. Requests may also be faxed to 202-453-2331.
    3. Requests for amendment of record. Initial determinations under 31 
CFR 1.27 (a) through (d) with respect to requests to amend records 
maintained by the Alcohol and Tobacco Tax and Trade Bureau will be made 
by the Director, Regulations and Rulings Division. Requests for 
amendment of records may be mailed or delivered in person to:
    Privacy Act Request, Director, Regulations and Rulings Division, 
Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, 
Washington, DC 20005. Requests may also be faxed to 202-453-2331. The 
Bureau will process a faxed request when the request meets the identity 
verification requirements outlined in paragraph 4(a) of this Appendix.
    4. Verification of identity. (a) In addition to the requirements 
specified in 31 CFR 1.26(d) of this appendix, each request for 
notification, access or amendment of records made by mail or fax shall 
contain the requesting individual's date and place of birth and a 
statement signed by the requester asserting his or her identity and 
stipulating that the requester understands that knowingly or willfully 
seeking or obtaining access to records about another person under false 
pretenses is a misdemeanor and punishable by a fine of up to $5,000 
provided, that the Alcohol and Tobacco Tax and Trade Bureau may require 
a signed notarized statement verifying the identity of the requester.
    (b) Individuals making requests in person will be required to 
exhibit at least two acceptable identifying documents such as employee 
identification cards, driver's license, medical cards, or other 
documents sufficient to verify the identity of the requester.
    (c) The parent or guardian of a minor or a person judicially 
determined to be incompetent, shall in addition to establishing the

[[Page 67]]

identity of the minor or other person he represents as required in (a) 
and (b), establish his own parentage or guardianship by furnishing a 
copy of a birth certificate showing parentage (or other satisfactory 
documentation) or a court order establishing the guardianship.
    5. Request for physical inspection of records. Upon determining that 
a request for the physical inspection of records is to be granted, the 
requester shall be notified in writing of the determination, and when 
and where the records may be inspected. The inspection of records will 
be made at the Alcohol and Tobacco Tax and Trade Bureau Field Office or 
other facility located nearest to the residence of the individual making 
the request. Such inspection shall be conducted during the regular 
business hours of the field office or other facility where the 
disclosure is made. A person of the requester's own choosing may 
accompany the requester provided the requester furnishes a written 
statement authorizing the disclosure of the requester's record in the 
accompanying person's presence. The record inspection will be made in 
the presence of a representative of the Bureau. Following the inspection 
of the record, the individual will acknowledge in writing the fact that 
he or she had an opportunity to inspect the requested record.
    6. Requests for copies of records without prior physical inspection. 
Upon determining that an individual's request for copies of his or her 
records without prior physical inspection is to be granted, the 
requester shall be notified in writing of the determination, and the 
location and time for his or her receipt of the requested copies. The 
copies will be made available at the Alcohol and Tobacco Tax and Trade 
Bureau field office or other facility located nearest to the residence 
of the individual making the request, unless the individual requests 
that the documents be sent by mail. Copies shall be received by the 
requester during the regular business hours of the field office or other 
facility where the disclosure is made. Transfer of the copies to the 
individual shall be conditioned upon payment of copying costs and his 
presentation of at least two acceptable identifying documents such as 
employee identification cards, driver's license, medical cards, or other 
documents sufficient to verify the identity of the requester. Following 
the receipt of the copies in person, the individual will acknowledge 
receipt in writing.
    7. Administrative appeal of initial determination refusing to amend 
record. Appellate determinations under 31 CFR 1.27(e) with respect to 
records of the Alcohol and Tobacco Tax and Trade Bureau, including 
extensions of time on appeal, will be made by the Administrator or the 
delegate of such officer. Appeals should be addressed to, or delivered 
in person to:
    Privacy Act Amendment Appeal, Administrator, Alcohol and Tobacco Tax 
and Trade Bureau, 1310 G Street, NW., Box 12, Washington, DC 20005.
    8. Statements of disagreement. ``Statements of Disagreement'' as 
described in 31 CFR 1.27(e)(4) shall be filed with the official signing 
the notification within 35 days of the date of such notification and 
should be limited to one page.
    9. Service of process. Service of process will be received by the 
Administrator of the Alcohol and Tobacco Tax and Trade Bureau or the 
delegate of such official and shall be delivered to the following 
location:
    Administrator, Alcohol and Tobacco Tax and Trade Bureau, 1310 G 
Street, NW., Box 12, Washington, DC 20005, Attention: Chief Counsel.
    10. Annual notice of systems of records. The annual notice of 
systems of records is published by the Office of the Federal Register, 
as specified in 5 U.S.C. 552a(f). The publication is entitled ``Privacy 
Act Issuances''. Any specific requirements for access, including 
identification requirements, in addition to the requirements set forth 
in 31 CFR 1.26 and 1.27 are indicated in the notice for each pertinent 
system.

[76 FR 62298, Oct. 7, 2011]



Sec. Appendix F to Subpart C of Part 1--Bureau of Engraving and Printing

    1. In general. This appendix applies to the Bureau of Engraving and 
Printing. It sets forth specific notification and access procedures with 
respect to particular systems of records including identification 
requirements, identifies the officers designated to make the initial 
determinations with respect to notification and access to records and 
accountings of disclosures of records. This appendix also sets forth the 
specific procedures for requesting amendment of records and identifies 
the officers designated to make the initial and appellate determinations 
with respect to requests for amendment of records. It identifies the 
officers designated to grant extensions of time on appeal, the officers 
with whom ``Statements of Disagreement may be filed, the officer 
designated to receive service of process and the addresses for delivery 
of requests, appeals, and service of process. In addition, it references 
the notice of systems of records and notices of the routine uses of the 
information in the system required by 5 U.S.C. 552a (e) (4) and (11) and 
published annually by the Office of the Federal Register in ``Privacy 
Act Issuances.''
    2. Requests for notification and access to records and accountings 
of disclosures. Initial determinations under 31 CFR 1.26, whether to 
grant requests for notification and access to records and accountings of 
disclosures for the Bureau of Engraving and Printing, will

[[Page 68]]

be made by the head of the organizational unit having immediate custody 
of the records requested, or the delegate of such official. Requests for 
access to records contained within a particular system of records should 
be submitted to the address indicated for that system in the access 
section of the notices published by the Office of the Federal Register 
in ``Privacy Act Issuances.'' Requests for information and specific 
guidance should be addressed to: Privacy Act Request, Disclosure Officer 
(Executive Assistant to the Director), Room 104-18M, Bureau of Engraving 
and Printing, Washington, DC 20228.
    3. Requests for amendment of records. Initial determination under 31 
CFR 1.27 (a) through (d), whether to grant request to amend records will 
be made by the head of the organizational unit having immediate custody 
of the records or the delegate of such official. Requests for amendment 
should be addressed as indicated in the appropriate system notice in 
``Privacy Act Issuances'' published by the Office of the Federal 
Register. Requests for information and specific guidance on where to 
send requests for amendment should be addressed to: Privacy Act 
Amendment Request, Disclosure Officer (Executive Assistant to the 
Director), Bureau of Engraving and Printing, Room 104-18M, Washington, 
DC 20228.
    4. Administrative appeal of initial determinations refusing 
amendment of records. Appellate determinations refusing amendment of 
records under 31 CFR 1.27(e) including extensions of time on appeal, 
with respect to records of the Bureau of Engraving and Printing will be 
made by the Director of the Bureau or the delegate of such officer. 
Appeals made by mail should be addressed to, or delivered personally to: 
Privacy Act Amendment Appeal, Disclosure Officer (Executive Assistant to 
the Director), Room 104-18M, Bureau of Engraving and Printing, 
Washington, DC 20228.
    5. Statements of disagreement. ``Statements of Disagreement'' under 
31 CFR 1.27(e)(4)(8) shall be filed with the official signing the 
notification of refusal to amend at the address indicated in the letter 
of notification within 35 days of the date of such notification and 
should be limited to one page.
    6. Service of process. Service of process will be received by the 
Chief Counsel of the Bureau of Engraving and Printing and shall be 
delivered to the following location: Chief Counsel, Bureau of Engraving 
and Printing, Room 109-M, 14th and C Streets, SW., Washington, DC 20228.
    7. Verification of identity. An individual seeking notification or 
access to records, or seeking to amend a record, or seeking an 
accounting of disclosures, must satisfy one of the following 
identification requirements before action will be taken by the Bureau of 
Engraving and Printing on any such request:
    (i) An individual appearing in person may establish identity by the 
presentation of a single document bearing a photograph (such as a 
passport or identification badge) or by the presentation of two items of 
identification which do not bear a photograph, but do bear both a name 
and signature (such as a credit card).
    (ii) An individual may establish identity through the mail by a 
signature, address, and one other identifier such as a photocopy of a 
driver's license or other document bearing the individual's signature.
    (iii) Notwithstanding subdivisions (i) and (ii) of this 
subparagraph, an individual who so desires, may establish identity by 
providing a notarized statement, swearing or affirming to such 
individual's identity and to the fact that the individual understands 
the penalties provided in 5 U.S.C. 552a(1)(3) for requesting or 
obtaining access to records under false pretenses.
    Notwithstanding subdivision (i), (ii), or (iii) of this 
subparagraph, the Executive Assistant or other designated official may 
require additional proof of an individual's identity before action will 
be taken on any request if such official determines that it is necessary 
to protect against unauthorized disclosure of information in a 
particular case. In addition, a parent of any minor or a legal guardian 
of any individual will be required to provide adequate proof of legal 
relationship before such person may act on behalf of such minor or such 
individual.
    8. Annual notice of systems of records. The annual notice of systems 
of records is published by the Office of the Federal Register, as 
specified in 5 U.S.C. 522a(f). The publication is entitled ``Privacy Act 
Issuances''. Any specific requirements for access, including 
identification requirements, in addition to the requirements set forth 
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent 
system.



  Sec. Appendix G to Subpart C of Part 1--Financial Management Service

    1. In general. This appendix applies to the Financial Management 
Service. It sets forth specific notification and access procedures with 
respect to particular systems of records, identifies the officers 
designated to make the initial determinations with respect to 
notification and access to records and accountings of disclosures of 
records. This appendix also sets forth the specific procedures for 
requesting amendment of records and identifies the officers designated 
to make the initial and appellate determinations with respect to 
requests for amendment of records. It identifies the officers designated 
to grant extensions of time on appeal, the officers with whom 
``Statements of Disagreement'' may be filed, the officer designated to 
receive service of process and the addresses

[[Page 69]]

for delivery of requests, appeals, and service of process. In addition, 
it references the notice of systems of records and notices of the 
routine uses of the information in the system required by 5 U.S.C. 
552a(e) (4) and (11) and published annually by the Office of the Federal 
Register in ``Privacy Act Issuances''.
    2. Requests for notification and access to records and accountings 
of disclosures. Initial determinations under 31 CFR 1.26, whether to 
grant requests for notification and access to records and accountings of 
disclosures for the Financial Management Service, will be made by the 
head of the organizational unit having immediate custody of the records 
requested or an official designated by this official. This is indicated 
in the appropriate system notice in ``Privacy Act Issuances'' published 
annually by the Office of the Federal Register. Requests for information 
and specific guidance on where to send requests for records may be 
mailed or delivered personally to: Privacy Act Request, Disclosure 
Officer, Financial Management Service, Room 108, Treasury Department 
Annex No. 1, Pennsylvania Avenue and Madison Place, NW., Washington, DC 
20226.
    3. Requests for amendment of records. Initial determination under 31 
CFR 1.27(a) through (d), whether to grant requests to amend records will 
be made by the head of the organzational unit having immediate custody 
of the records or the delegate of such official. Requests for amendment 
should be addressed as indicated in the appropriate system notice in 
``Privacy Act Issuances'' published by the Office of the Federal 
Register. Requests for information and specific guidance on where to 
send requests for amendment should be addressed to: Privacy Act 
Amendment Request, Disclosure Officer, Financial Management Service, 
Department of the Treasury, Treasury Annex No. 1, Washington, DC 20226.
    4. Administrative appeal of initial determinations refusing 
amendment of records. Appellate determinations refusing amendment of 
records under 31 CFR 1.27(e) incuding extensions of time on appeal, with 
respect to records of the Financial Management Service will be made by 
the Commissioner or the delegate of such official. Appeals made by mail 
should be addressed to, or delivered personally to: Privacy Act 
Amendment Appeal Commissioner, Financial Management Service (Privacy), 
Department of the Treasury, Room 618, Treasury Annex No. 1, Pennsylvania 
Avenue and Madison Place, NW., Washington, DC 20226.
    5. Statements of disagreement. ``Statements of Disagreement'' under 
31 CFR 1.27(e)(4)(i) shall be filed with the official signing the 
notification of refusal to amend at the address indicated in the letter 
of notification within 35 days of the date of such notification and 
should be limited to one page.
    6. Service of process. Service of process will be received by the 
Commissioner, Financial Management Service or the delegate of such 
official and shall be delivered to the following location: Commissioner, 
Financial Management Service (Privacy), Department of the Treasury, Room 
618, Treasury Annex No. 1, Pennsylvania Avenue and Madison Place, NW, 
Washington, DC 20226.
    7. Annual notice of systems of records. The annual notice of systems 
of records is published by the Office of the Federal Register, as 
specified in 5 U.S.C. 552a(f). The publication is entitled ``Privacy Act 
Issuances''. Any specific requirements for access, including 
identification requirements, in addition to the requirements set forth 
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent 
system.



       Sec. Appendix H to Subpart C of Part 1--United States Mint

    1. In general. This appendix applies to the United States Mint. It 
sets forth specific notification and access procedures with respect to 
particluar systems of records, identifies the officers designated to 
make the initial determinations with respect to notification and access 
to records and accountings of disclosures of records. This appendix also 
sets forth the specific procedures for requesting amendment of records 
and identifies the officers designated to make the initial and appellate 
determinations with respect to requests for amendment of records. It 
identifies the officers designated to grant extensions of time on 
appeal, the officers with whom ``Statements of Disagreement'' may be 
filed, the officer designated to receive service of process and the 
addresses for delivery of requests, appeals, and service of process. In 
addition, it references the notice of systems of records and notices of 
the routine uses of the information in the system required by 5 U.S.C. 
552a(e) (4) and (11) and published annually by the Office of the Federal 
Register in ``Privacy Act Issuances''.
    2. Requests for notification and access to records and accountings 
of disclosures. Initial determinations under 31 CFR 1.26, whether to 
grant requests for notification and access to records and accountings of 
disclosures for the United States Mint will be made by the head of the 
organizational unit having immediate custody of the records requested or 
an official designated by this official. This is indicated in the 
appropriate system notice in ``Privacy Act Issuances'' published 
annually by the Office of the Federal Register. Requests should be 
directed to the Superintendent or Officer in charge of the facility in 
which the records are located or to the Chief, Administrative Programs 
Division. Requests for information and specific guidance on where to 
send requests for records may be mailed or delivered personally to:

[[Page 70]]

Privacy Act Request, Chief, Administrative Programs Division, United 
States Mint, Judiciary Square Building, 633 3rd Street, N.W, Washington, 
DC 20220.
    3. Requests for amendment of records. Initial determination under 31 
CFR 1.27 (a) through (d), whether to grant requests to amend records 
will be made by the head of the Mint installation having immediate 
custody of the records or the delegated official. Requests should be 
mailed or delivered personally to: Privacy Act Amendment Request, 
Freedom of Information and Privacy Acts Officer, United States Mint, 
Judiciary Square Building, 633 3rd Street, Washington, DC 20220.
    4. Administrative appeal of initial determinations refusing 
amendment of records. Appellate determinations refusing amendment of 
records under 31 CFR 1.27 including extensions of time on appeal, with 
respect to records of the United States Mint will be made by the 
Director of the Mint or the delegate of the Director. Appeals made by 
mail should be addressed to, or delivered personally to: Privacy Act 
Amendment Appeal, United States Mint, Judiciary Square Building, 633 3rd 
Street, NW, Washington, DC 20220.
    5. Statements of disagreement. ``Statements of Disagreement'' under 
31 CFR 1.27 (e)(4)(i) shall be filed with the official signing the 
notification of refusal to amend at the address indicated in the letter 
of notification within 35 days of the date of such notification and 
should be limited to one page.
    6. Service of process. Service of process will be received by the 
Director of the Mint and shall be delivered to the following location: 
Director of the Mint, Judiciary Square Building, 633 3rd street, NW., 
Washington, DC 20220.
    7. Annual notice of systems of records. The annual notice of systems 
of records is published by the Office of the Federal Register, as 
specified in 5 U.S.C. 552a(f). The publication is entitled ``Privacy Act 
Issuances''. Any specific requirements for access, including 
identification requirements, in addition to the requirements set forth 
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent 
system.



    Sec. Appendix I to Subpart C of Part 1--Bureau of the Public Debt

    1. In general. This appendix applies to the Bureau of the Public 
Debt. It sets forth specific notification and access procedures with 
respect to particular systems of records, identifies the officers 
designated to make the initial determinations with respect to 
notification and access to records and accountings of disclosures of 
records. This appendix also sets forth the specific procedures for 
requesting amendment of records and identifies the officers designated 
to make the initial and appellate determinations with respect to 
requests for amendment of records. It identifies the officer designated 
to grant extension of time on appeal, the officers with whom 
``Statements of Disagreement'' may be filed, the officer designated to 
receive service of process and the addresses for delivery of requests, 
appeals, and service of process. In addition, it references the notice 
of systems of records and notices of the routine uses of the information 
in the system required by 5 U.S.C. 552a(e) (4) and (11) and published 
annually by the Office of the Federal Register in ``Privacy Act 
Issuances''.
    2. Requests for notification and access to records and accountings 
of disclosures. Initial determinations under 31 CFR 1.26, whether to 
grant requests for notification and access to records and accountings of 
disclosures for the Bureau of Public Debt, will be made by the head of 
the organizational unit having immediate custody of the records 
requested or an official designated by this official. This is indicated 
in the appropriate system notice in ``Privacy Act Issuances'' published 
annually by the Office of the Federal Register. Requests for information 
and specific guidance on where to send requests for records may be 
mailed or delivered personally to: Privacy Act Request, Disclosure 
Officer, Administrative Resource Center, Bureau of the Public Debt, 
Department of the Treasury, 200 Third Street, Room 211, Parkersburg, WV 
26101-5312.
    3. Requests for amendment of records. Initial determination under 31 
CFR 1.27 (a) through (d), whether to grant requests to amend records 
will be made by the head of the organizational unit having immediate 
custody of the records or the delegate of such official. Requests for 
amendment should be addressed as indicated in the appropriate system 
notice in ``Privacy Act Issuances'' published by the Office of the 
Federal Register. Requests for information and specific guidance on 
where to send requests for amendment should be addressed to: Privacy Act 
Amendment Request, Disclosure Officer, Administrative Resource Center, 
Bureau of the Public Debt, Department of the Treasury, 200 Third Street, 
Room 211, Parkersburg, WV 26101-5312.
    4. Administrative appeal of initial determinations refusing 
amendment of records. Appellate determinations refusing amendment of 
records under 31 CFR 1.27(e) including extensions of time on appeal, 
with respect to records of the Bureau of the Public Debt will be made by 
the Executive Director, Administrative Resource Center, Bureau of the 
Public Debt or the delegate of such officer. Appeals made by mail should 
be addressed to, or delivered personally to: Privacy Act Amendment 
Appeal, Chief Counsel, Bureau of the Public Debt, Department of the 
Treasury, Executive Director, Administrative Resource Center, Bureau of 
the Public Debt.

[[Page 71]]

    5. Statements of disagreement. ``Statements of Disagreement'' under 
31 CFR 1.27 (e)(4)(i) shall be filed with the official signing the 
notification of refusal to amend at the address indicated in the letter 
of notification within 35 days of the date of such notification and 
should be limited to one page.
    6. Service of process. Service of process will be received by the 
Chief Counsel of the Bureau of the Public Debt and shall be delivered to 
the following location: Chief Counsel, Bureau of the Public Debt, 
Department of the Treasury, 200 Third Street, Room G-15, Parkersburg, WV 
26106-1328.
    7. Annual notice of systems of records. The annual notice of systems 
of records is published by the Office of the Federal Register, as 
specified in 5 U.S.C. 552a(f). The publication is entitled ``Privacy Act 
Issuances''. Any specific requirements for access, including 
identification requirements, in addition to the requirements set forth 
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent 
system.



Sec. Appendix J to Subpart C of Part 1--Office of the Comptroller of the 
                                Currency

    1. In general. This appendix applies to the Office of the 
Comptroller of the Currency. It sets forth specific notification and 
access procedures with respect to particular systems of records, 
identifies the officers designated to make the initial determinations 
with respect to notification and access to records and accountings of 
disclosures of records. This appendix also sets forth the specific 
procedures for requesting amendment of records and identifies the 
officers designated to make the intial and appellate determinations with 
respect to requests for amendment of records. It identifies the officers 
designated to grant extensions of time on appeal, the officers with whom 
``Statements of Disagreement'' may be filed, the officer designated to 
receive service of process and the addresses for delivery of requests, 
appeals, and service of process. In addition, it references the notice 
of systems of records and notices of the routine uses of the information 
in the system required by 5 U.S.C. 552a(e) (4) and (11) and published 
annually by the Office of the Federal Register in ``Privacy Act 
Issuances''.
    2. Requests for notification and access to records and accountings 
of disclosures. Initial determinations under 31 CFR 1.26 whether to 
grant requests for notification and access to records and accountings of 
disclosures for the Office of the Comptroller of the Currency will be 
made by the head of the organizational unit having immediate custody of 
the records requested or the delegate of that official. This is 
indicated in the appropriate system notice in ``Privacy Act Issuances'' 
published biennially by the Office of the Federal Register. Requests for 
information and specific guidance on where to send requests for records 
shall be mailed or delivered personally to: Disclosure Officer, 
Communications Division, Office of the Comptroller of the Currency, 250 
E Street, SW, Washington, DC 20219.
    3. Requests for amendment of records. Initial determinations under 
31 CFR 1.27 (a) through (d) whether to grant requests to amend records 
will be made by the Comptroller's delegate or the head of the 
organizational unit having immediate custody of the records or the 
delegate of that official. Requests for amendment shall be mailed or 
delivered personally to: Disclosure Officer, Communications Division, 
Office of the Comptroller of the Currency, 250 E Street, SW., 
Washington, DC 20219.
    4. Administrative appeal of initial determinations refusing 
amendment of records. Appellate determinations refusing amendment of 
records under 31 CFR 1.27(e) including extensions of time on appeal, 
with respect to records of the Office of the Comptroller of the Currency 
will be made by the Comptroller of the Currency or the Comptroller's 
delegate. Appeals shall be mailed or delivered personally to: Disclosure 
Officer, Communications Division, Office of the Comptroller of the 
Currency, 250 E Street, SW., Washington, DC 20219.
    5. Statements of disagreement. ``Statements of Disagreement'' under 
31 CFR 1.27(e)(4)(i) shall be filed with the OCC's Director of 
Communications at the address indicated in the letter of notification 
within 35 days of the date of such notification and should be limited to 
one page.
    6. Service of process. Service of process shall be delivered to the 
Chief Counsel or the Chief Counsel's delegate at the following location: 
Office of the Comptroller of the Currency, 250 E Street, SW., 
Washington, DC 20219.
    7. Annual notice of systems of records. The annual notice of systems 
of records is published by the Office of the Federal Register, as 
specified in 5 U.S.C. 552a(f). The publication is entitled ``Privacy Act 
Issuances''. Any specific requirements for access, including 
identification requirements, in addition to the requirements set forth 
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent 
system.

[52 FR 26305, July 14, 1987, as amended at 60 FR 57333, Nov. 15, 1995; 
67 FR 34402, May 14, 2002]



Sec. Appendix K to Subpart C of Part 1--Federal Law Enforcement Training 
                                 Center

    1. In general. This appendix applies to the Federal Law Enforcement 
Training Center. It sets forth specific notification and access

[[Page 72]]

procedures with respect to particular systems of records, identifies the 
officers designated to make the initial determinations with respect to 
notification and access to records and accountings of disclosure of 
records. This appendix also sets forth the specific procedures for 
requesting amendment of records and identifies the officers designated 
to make the initial and appellate determinations with respect to 
requests for amendment of records. It identifies the officers designated 
to grant extensions of time on appeal, the officers with whom 
``Statements of Disagreement'' may be filed, the officer designated to 
receive service of process and the addresses for delivery of requests, 
appeals, and service of process. In addition, it references the notice 
of systems of records and notices of the routine uses of the information 
in the system required by 5 U.S.C. 552a(e) (4) and (11) and published 
annually by the Office of the Federal Register, in ``Privacy Act 
Issuances''.
    2. Requests for notification and access to records and accounting of 
disclosures. Initial determinations under 31 CFR 1.26, whether to grant 
requests for notification and acess to records and accounting of 
disclosures for the Federal Law Enforcement Training Center, will be 
made by the head of the organizational unit having immediate custody of 
the records requested or an official designated by this official. This 
is indicated in the appropriate system notice in ``Privacy Act 
Issuances'' published annually by the Office of the Federal Register. 
Requests for information and specific guidance on where to send requests 
for records may be mailed or delivered personally to: Privacy Act 
Request, Library Building 262, Federal Law Enforcement Training Center, 
Glynco, Georgia 31524.
    3. Requests for amendment of records. Initial determinations under 
31 CFR 1.27 (a) through (d), whether to grant requests to amend records 
will be made by the head of the organizational unit having immediate 
custody of the records or the delegate of such official. Requests for 
amendment should be addressed as indicated in the appropriate system 
notice in ``Privacy Act Issuances'' published by the Office of the 
Federal Register. Requests for information and specific guidance on 
where to send requests for amendment should be addressed to: Privacy Act 
Amendment Request, Federal Law Enforcement Training Center, Glynco, 
Georgia 31524.
    4. Administrative appeal of initial determinations refusing 
amendment of records. Appellate determinations refusing amendment of 
records under 31 CFR 1.27(e) including extensions of time on appeal, 
with respect to records of the Federal Law Enforcement Training Center 
will be made by the Assistant Secretary (Enforcement), Department of the 
Treasury or the delegate of such officer. Appeals made by mail should be 
addressed to, or delivered personally to: Privacy Act Amendment Appeal, 
FLETC, Assistant Secretary (Enforcement), Department of the Treasury, 
1500 Pennsylvania Avenue, NW., Room 4312, Washington, DC 20220.
    5. Statements of disagreement. ``Statements of Disagreement'' under 
31 CFR 1.27(e)(4)(i) shall be filed with the official signing the 
notification of refusal to amend at the address indicated in the letter 
of notification within 35 days of the date of such notification and 
should be limited to one page.
    6. Service of process. Service of process will be received by the 
General Counsel of the Department of the Treasury or the delegate of 
such official and shall be delivered to the following location: General 
Counsel, Department of the Treasury, Room 3000, Main Treasury Building, 
1500 Pennsylvania Avenue, NW., Washington, DC 20220.
    7. Annual notice of systems of records. The annual notice of systems 
of records is published by the Office of the Federal Register, as 
specified in 5 U.S.C. 552a(f). The publication is entitled ``Privacy Act 
Issuances''. Any specific requirements for access, including 
identification requirements, in addition to the requirements set forth 
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent 
system.

[52 FR 26305, July 14, 1987. Redesignated at 65 FR 2334, Jan. 14, 2000]



  Sec. Appendix L to Subpart C of Part 1--Office of Thrift Supervision

    1. In general. This appendix applies to the Office of Thrift 
Supervision. It sets forth specific notification and access procedures 
with respect to particular systems of records, and identifies the 
officers designated to make the initial determinations with respect to 
notification and access to records, the officers designated to make the 
initial and appellate determinations with respect to requests for 
amendment of records, the officers designated to grant extensions of 
time on appeal, the officers with whom ``Statement of Disagreement'' may 
be filed, the officer designated to receive services of process and the 
addresses for delivery of requests, appeals, and service of process. In 
addition, it references the notice of systems of records and notices of 
the routine uses of the information in the system required by 5 U.S.C. 
552a(e) (4) and (11) and published biennially by the Office of the 
Federal Register in ``Privacy Act Issuances.''
    2. Requests for notification and access to records and accounting of 
disclosures. Initial determinations under 31 CFR 1.26, whether to grant 
requests for notification and access to records and accountings of 
disclosures for the Office of Thrift Supervision, will be made

[[Page 73]]

by the head of the organizational unit having immediate custody of the 
records requested, or the delegate of such official. This information is 
contained in the appropriate system notice in the ``Privacy Act 
Issuances,'' published biennially by the Office of the Federal Register. 
Requests for information and specific guidance on where to send requests 
for records should be addressed to: Privacy Act Request, Chief, 
Disclosure Branch, Information Services Division, Office of Thrift 
Supervision, 1700 G Street, NW., Washington, DC 20552.
    Requests may be delivered in person to: Office of Thrift 
Supervision, Information Services Division, 1700 G Street, NW., 
Washington, DC.
    3. Requests for amendments of records. Initial determinations under 
31 CFR 1.27 (a) through (d) with respect to requests to amend records 
maintained by the Office of Thrift Supervision will be made by the head 
of the organization or unit having immediate custody of the records or 
the delegates of such official. Requests for amendment of records should 
be addressed as indicated in the appropriate system notice in ``Privacy 
Act Issuances'' published by the Office of the Federal Register. 
Requests for information and specific guidance on where to send these 
requests should be addressed to: Privacy Act Amendment Request, Chief, 
Disclosure Branch, Information Services Division, Office of Thrift 
Supervision, 1700 G Street, NW., Washington, DC 20552.
    Privacy Act Amendment Requests may be delivered in person to: Office 
of Thrift Supervision, Information Services Division, 1700 G Street, 
NW., Washington, DC.
    4. Administrative appeal of initial determination refusing to amend 
record. Appellate determination under 31 CFR 1.27(e) with respect to 
records of the Office of Thrift Supervision, including extensions of 
time on appeal, will be made by the Director, Public Affairs, Office of 
Thrift Supervision, or the delegate of such official, as limited by 5 
U.S.C. 552a(d) (2) and (3). Appeals made by mail should be addressed as 
indicated in the letter of initial decision or to: Privacy Act Amendment 
Request, Chief, Disclosure Branch, Information Services Division, Office 
of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.
    Appeals may be delivered in person to: Office of Thrift Supervision, 
Information Services Division, 1700 G Street, NW., Washington, DC.
    5. Statements of Disagreement. ``Statements of Disagreement'' as 
described in 31 CFR 1.27(e)(4) shall be filed with the official signing 
the notification of refusal to amend at the address indicated in the 
letter of notification within 35 days of the date of notification and 
should be limited to one page.
    6. Service of process. Service of process will be received by the 
Corporate Secretary of the Office of Thrift Supervision or the delegate 
of such official and shall be delivered to the following location: 
Corporate Secretary, Office of Thrift Supervision, 1700 G Street, NW., 
Washington, DC 20552.
    7. Annual notice of systems of record. The annual notice of systems 
of records required to be published by the Office of the Federal 
Register is included in the publication entitled ``Privacy Act 
Issuances,'' as specified in 5 U.S.C. 552a(f). Any specific requirements 
for access, including identification requirements, in addition to the 
requirements set forth in 31 CFR 1.26 and 1.27 and (8) below, and 
locations for access are indicated in the notice for the pertinent 
system.
    8. Verification of identity. An individual seeking notification or 
access to records, or seeking to amend a record, must satisfy one of the 
following identification requirements before action will be taken by the 
Office of Thrift Supervision on any such request:
    (i) An individual seeking notification or access to records in 
person, or seeking to amend a record in person, may establish identity 
by the presentation of a single official document bearing a photograph 
(such as a passport or identification badge) or by the presentation of 
two items of identification which do not bear a photograph but do bear 
both a name and signature (such as a driver's license or credit card).
    (ii) An individual seeking notification or access to records by 
mail, or seeking to amend a record by mail, may establish identity by a 
signature, address, and one other identifier such as a photocopy of a 
driver's license or other official document bearing the individual's 
signature.
    (iii) Notwithstanding subdivisions (i) and (ii) of this 
subparagraph, an individual seeking notification or access to records by 
mail or in person, or seeking to amend a record by mail or in person, 
who so desires, may establish identity by providing a notarized 
statement, swearing or affirming to such individual's identity and to 
the fact that the individual understands the penalties provided in 5 
U.S.C. 552a(i)(3) for requesting or obtaining access to records under 
false pretenses. Alternatively, an individual may provide a statement 
that the individual understands the penalties provided in 5 U.S.C. 
552a(i)(3) for requesting or obtaining access to records under false 
pretenses which is subscribed by the individual as true and correct 
under penalty of perjury pursuant to 28 U.S.C. 1746. Notwithstanding 
subdivision (i), (ii), or (iii) of this subparagraph, a designated 
official may require additional proof of an individual's identity before 
action will be taken on any request, if such official determines that it 
is necessary to protect against unauthorized disclosure of information 
in a particular case. In addition, a parent of any minor or a

[[Page 74]]

legal guardian of any individual will be required to provide adequate 
proof of legal relationship before such person may act on behalf of such 
minor or such individual.

[60 FR 31633, June 16, 1995. Redesignated at 65 FR 2334, Jan. 14, 2000]



            Sec. Appendix M to Subpart C of Part 1 [Reserved]



  Sec. Appendix N to Subpart C of Part 1--Financial Crimes Enforcement 
                                 Network

    1. In general. This appendix applies to the Financial Crimes 
Enforcement Network (FinCEN). It sets forth specific notification and 
access procedures with respect to particular systems of records, and 
identifies the officers designated to make the initial determinations 
with respect to notification and access to records and accountings of 
disclosures of records. This appendix also sets forth the specific 
procedures for requesting amendment of records and identifies the 
officers designated to make the initial and appellate determinations 
with respect to requests for amendment of records. It identifies the 
officers designated to grant extensions of time on appeal, the officers 
with whom ``Statements of Disagreement'' may be filed, the officer 
designated to receive service of process and the addresses for delivery 
of requests, appeals, and service of process. In addition, it references 
the notice of systems of records and notices of the routine uses of the 
information in the system required by 5 U.S.C. 552a(4) and (11) and 
published biennially by the Office of the Federal Register in ``Privacy 
Act Issuances.''
    2. Requests for notification and access to records and accountings 
of disclosures. Initial determinations under 31 CFR 1.26, whether to 
grant requests for notification and access to records and accountings of 
disclosures for FinCEN will be made by the Freedom of Information/
Privacy Act officer, FinCEN. Requests may be mailed to: Privacy Act 
Request, Financial Crimes Enforcement Network, Post Office Box 39, 
Vienna, VA 22183.
    3. Requests for amendments of records. Initial determinations under 
31 CFR 1.27(a) through (d) whether to grant requests to amend records 
maintained by FinCEN will be made by the Freedom of Information/Privacy 
Act officer, FinCEN. Requests may be mailed to: Privacy Act Request, 
Financial Crimes Enforcement Network, Post Office Box 39, Vienna, VA 
22183.
    4. Verification of Identity. An individual seeking notification or 
access to records, or seeking to amend a record, or seeking an 
accounting of disclosures, must satisfy one of the following 
identification requirements before action will be taken by FinCEN on any 
such request:
    (i) An individual may establish identity through the mail by a 
signature, address, and one other identifier such as a photocopy of a 
driver's license or other official document bearing the individual's 
signature.
    (ii) Notwithstanding this paragraph (4)(i), an individual may 
establish identity by providing a notarized statement, swearing or 
affirming to such individual's identity and to the fact that the 
individual understands the penalties provided in 5 U.S.C. 552a(i)(3) for 
requesting or obtaining access to records under false pretenses.
    (iii) Notwithstanding this paragraph (4)(i) and (ii), the Freedom of 
Information Act/Privacy Act Officer or other designated official may 
require additional proof of an individual's identity before action will 
be taken on any request, if such official determines that it is 
necessary to protect against unauthorized disclosure of information in a 
particular case. In addition, a parent of any minor or a legal guardian 
of any individual will be required to provide adequate proof of legal 
relationship before such person may act on behalf of such minor or such 
individual.
    5. Administrative appeal of initial determinations refusing 
amendment of records. Appellate determinations refusing amendment of 
records under 31 CFR 1.27(e) including extensions of time on appeal with 
respect to the records of FinCEN will be made by the Director of FinCEN 
or the delegate of the Director. Appeals should be addressed to: Privacy 
Act Amendment Appeal, Financial Crimes Enforcement Network, Post Office 
Box 39, Vienna, VA 22183.
    6. Statements of Disagreement. ``Statements of Disagreement'' as 
described in 31 CFR 1.27(e)(4) shall be filed with the official signing 
the notification of refusal to amend at the address indicated in the 
letter of notification within 35 days of the date of such notification 
and should be limited to one page.
    7. Service of Process. Service of process will be received by the 
Chief Counsel of FinCEN and shall be delivered to the following 
location: Office of Chief Counsel, Financial Crimes Enforcement Network, 
Post Office Box 39, Vienna, VA 22183.
    8. Biennial notice of systems of records. The biennial notice of 
systems of records is published by the Office of the Federal Register, 
as specified in 5 U.S.C. 552a(f). The publication is entitled ``Privacy 
Act Issuances.'' Any specific requirements for access, including 
identification requirements, in addition to the requirements set forth 
in 31 CFR 1.26 and 1.27 and paragraph 4 of this appendix are indicated 
in the notice for the pertinent system.

[68 FR 55311, Sept. 25, 2003]

[[Page 75]]



PART 2_NATIONAL SECURITY INFORMATION--Table of Contents



Sec.
2.1 Processing of mandatory declassification review requests.
2.2 Access to classified information by historical researchers, former 
          Treasury Presidential and Vice Presidential appointees, and 
          former Presidents and Vice Presidents.

    Authority: 31 U.S.C. 321, E.O. 12958, 60 FR 19825, E.O. 13292, 68 FR 
15315.

    Source: 72 FR 63104, Nov. 8, 2007, unless otherwise noted.



Sec.  2.1  Processing of mandatory declassification review requests.

    (a) Except as provided by section 3.4(b) of Executive Order 13292, 
Further Amendment to Executive Order 12958, as amended, Classified 
National Security Information, all information classified by the 
Department of the Treasury under these Orders or any predecessor 
Executive Order shall be subject to mandatory declassification review by 
the Department, if:
    (1) The request for a mandatory declassification review describes 
the document or material containing the information with sufficient 
specificity to enable Treasury personnel to locate it with a reasonable 
amount of effort;
    (2) The information is not exempt from search and review under 
sections 105C, 105D, or 701 of the National Security Act of 1947 (50 
U.S.C. 431, 432 and 432a); and
    (3) The information has not been reviewed for declassification 
within the past 2 years or the information is not the subject of pending 
litigation.
    (b) Requests for classified records originated by the Department of 
the Treasury shall be directed to the Office of Security Programs, 
Attention: Assistant Director (Information Security), 1500 Pennsylvania 
Avenue, NW., Washington, DC 20220. Upon receipt of each request for 
mandatory declassification review, pursuant to section 3.5 of Executive 
Order 13292, the following procedures will apply:
    (1) The Office of Security Programs will acknowledge receipt of the 
request.
    (2)(i) A mandatory declassification review request need not identify 
the requested information by date or title of the responsive records, 
but must be of sufficient specificity to allow Treasury personnel to 
locate records containing the information sought with a reasonable 
amount of effort. Whenever a request does not reasonably describe the 
information sought, the requester will be notified by the Office of 
Security Programs that unless additional information is provided or the 
scope of the request is narrowed, no further action will be undertaken 
with respect to the request.
    (ii) If Treasury has reviewed the information within the past 2 
years and determined that all or part thereof remains classified, or the 
information is the subject of pending litigation, the requester shall be 
so informed and advised of the requester's appeal rights.
    (3) The Office of Security Programs will determine the appropriate 
Treasury offices or bureaus to conduct the mandatory declassification 
review. The Office of Security Programs will also advise Treasury and/or 
bureau reviewing officials concerning the mandatory declassification 
review process. Classified information relating to intelligence 
activities (including special activities), intelligence sources or 
methods, or cryptology will also be coordinated with the Office of the 
Assistant Secretary (Intelligence and Analysis). As appropriate, the 
Office of Security Programs will refer requests to other Federal 
departments and agencies having a direct interest in the requested 
documents.
    (4)(i) Treasury personnel undertaking a mandatory declassification 
review shall make reasonable efforts to determine if particular 
information may be declassified. Reviewing officials may rely on 
applicable exemption criteria under the Freedom of Information Act, the 
Privacy Act, and any other applicable law that authorizes the 
withholding of information. Reviewing officials shall also identify the 
amount of search and review time required to process each request. 
Barring extenuating circumstances, mandatory declassification reviews 
for reasonably small volumes of records should be completed in a timely 
fashion. A final determination regarding large volumes of records should 
ordinarily be made

[[Page 76]]

within one year of Treasury's receipt of any mandatory declassification 
review request.
    (ii) If the Director, Office of Security Programs determines that a 
Treasury office or bureau responsible for conducting a mandatory 
declassification review is not making reasonable efforts to review 
classified information subject to a mandatory declassification request, 
the Director may authorize Treasury-and/or bureau-originated information 
to be declassified in consultation with the Department's Senior Agency 
Official.
    (iii) If information cannot be declassified in its entirety, 
reasonable efforts, consistent with applicable law, will be made to 
release those declassified portions of the requested information that 
constitute a coherent segment. Upon the denial or partial denial of a 
declassification request, the requester will be so informed by the 
Office of Security Programs and advised of the requester's appeal 
rights.
    (5)(i) If Treasury receives a mandatory declassification review 
request for information in its possession that were originated by 
another Federal department or agency, the Office of Security Programs 
will forward the request to that department or agency for a 
declassification determination, together with a copy of the requested 
records, a recommendation concerning a declassification determination, 
and a request to be advised of that department's or agency's 
declassification determination. The Office of Security Programs may, 
after consultation with the originating department or agency, inform any 
requester of the referral unless such association is itself classified 
under Executive Order 13292 or prior orders.
    (ii) Mandatory declassification review requests concerning 
classified information originated by a Treasury office or bureau that 
has been transferred to another Federal department or agency will be 
forwarded to the appropriate successor department or agency for a 
declassification determination.
    (6) If another Federal department or agency forwards a mandatory 
declassification review request to Treasury for information in its 
custody that was classified by Treasury, the Office of Security Programs 
will:
    (i) Advise the referring department or agency as to whether it may 
notify the requester of the referral; and
    (ii) Respond to the Federal department, agency, or requester, as 
applicable, in accordance with the requirements of this section.
    (7)(i) Upon the denial, in whole or in part, of a request for the 
mandatory declassification review of information, the Office of Security 
Programs will so notify the requester in writing and will inform the 
requester of the right to appeal the classification determination within 
60 calendar days of the receipt of the classification determination. The 
notice will also advise the requester of the name and address of the 
Treasury official who will be responsible for deciding an appeal (the 
Deciding Official). The Office of Security Programs will coordinate 
appeals with the appropriate Treasury offices and bureaus.
    (ii) The Deciding Official should make a determination on an appeal 
within 30 working days following the receipt of the appeal, or within 60 
working days following receipt if the Deciding Official determines that 
additional time is required to make a determination and so notifies the 
requester. The Deciding Official should notify the requester in writing 
of Treasury's determination on appeal and, if applicable, the reasons 
for any whole or partial denial of the appeal. The Office of Security 
Programs will also notify the requester of their right of a final appeal 
to the Interagency Security Classification Appeals Panel, as 
appropriate, under 32 CFR 2001.33.
    (8)(i) Treasury may charge fees for search, review, and duplicating 
costs in connection with a mandatory declassification review request.
    (A) The fee for services of Treasury personnel involved in locating 
and/or reviewing records will be charged at the rate of a GS-11, Step 1 
employee, in the Washington-Baltimore Federal pay area, in effect when 
the mandatory declassification review request is received by the Office 
of Security Programs for searches that take more than two hours or for 
review times that are greater than two hours. Fees may

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be waived, in writing, by a bureau head or the equivalent Treasury 
official at the Assistant Secretary level.
    (B) There is no fee for duplicating the first 100 pages of fully or 
partially releasable documents. The cost of additional pages is 20 cents 
per page. No charges shall be levied for search and/or review time 
requiring less than 2 hours.
    (ii) If it is estimated that the fees associated with a mandatory 
declassification review will exceed $100, the Office of Security 
Programs will notify the requester in writing of the estimated costs and 
shall obtain satisfactory written assurance of full payment or require 
the requester to make an advance payment of the entire estimated fee 
before proceeding to process the request. Treasury may request pre-
payment where the fee is likely to exceed $500. After 60 calendar days 
without receiving the requester's written assurance of full payment or 
agreement to make pre-payment of estimated fees (or to amend the 
mandatory declassification review request in a manner as to result in 
fees acceptable to the requester), Treasury may administratively 
terminate the mandatory declassification review request. Failure of a 
requester to pay fees after billing will result in future requests not 
being honored. Nothing in this paragraph will preclude Treasury from 
taking any other lawful action to recover payment for costs incurred in 
processing a mandatory declassification review request.
    (iii) Payment of fees shall be made by check or money order to the 
Treasurer of the United States. Fees charged by Treasury for mandatory 
declassification review are separate and distinct from any other fees 
that may be imposed by a Presidential Library, the National Archives and 
Records Administration, or another Federal department or agency.



Sec.  2.2  Access to classified information by historical researchers,
former Treasury Presidential and Vice Presidential appointees, and former
Presidents and Vice Presidents.

    (a) Access to classified information may be granted only to 
individuals who have a need-to-know the information. This requirement 
may be waived, however, for individuals who:
    (1) Are engaged in historical research projects;
    (2) Previously occupied a position in the Treasury to which they 
were appointed by the President under 3 U.S.C. 105(a)(2)(A), or the Vice 
President under 3 U.S.C. 106(a)(1)(A); or
    (3) Served as President or Vice President.
    (b) Access to classified information may be granted to individuals 
described in paragraph (a) of this section upon:
    (1) A written determination by Treasury's Senior Agency Official, 
under Section 5.4(d) of Executive Order 13292, that access is consistent 
with the interest of the national security; and
    (2) Receipt of the individual's written agreement to safeguard 
classified information, including taking all appropriate steps to 
protect classified information from unauthorized disclosure or 
compromise. This written agreement must also include the individual's 
consent to have any and all notes (including those prepared or stored in 
electronic media, whether written or oral) reviewed by authorized 
Treasury personnel to ensure that no classified information is contained 
therein and, if so, that the classified information is not published.
    (c)(i)(A) A historical researcher is not authorized to have access 
to foreign government information or information classified by another 
Federal department or agency.
    (B) A former Treasury Presidential or Vice Presidential appointee is 
only authorized access to classified information that the former 
official originated, reviewed, signed or received while serving as such 
an appointee.
    (C) A former President or Vice President is only authorized access 
to classified information that was prepared by Treasury while that 
individual was serving as President or Vice President.
    (ii) Granting access to classified information pursuant to this 
section does not constitute the granting of a security clearance for 
access to classified information.
    (d) Treasury personnel will coordinate access to classified 
information by individuals described in paragraph (a) of this section 
with the Director, Office of Security Programs, who will

[[Page 78]]

ensure that the written agreement described in paragraph (b)(2) of this 
section is signed as a condition of being granted access to classified 
information.
    (e) Any review of classified information by an individual described 
in paragraph (a) of this section shall take place in a location 
designated by the Director, Office of Security Programs. Such persons 
must be accompanied at all times by appropriately authorized Treasury 
personnel authorized to have access to the classified information being 
reviewed. All notes (including those prepared or stored in electronic 
media, whether written or oral) made by an individual described in 
paragraph (a) of this section shall remain in the custody of the Office 
of Security Programs pending a determination by appropriately cleared 
subject matter experts that no classified information is contained 
therein.
    (f) An individual described in paragraph (a) of this section is 
subject to search, as are all packages or carrying cases prior to 
entering or leaving Treasury. Access to Treasury-originated classified 
information at another Federal department or agency, as may be 
authorized by the Director, Office of Security Programs shall be 
governed by security protocols in effect at the other Federal department 
or agency.
    (g) Treasury personnel must perform a physical verification and an 
accounting of all classified information each time such information is 
viewed by an individual described in paragraph (a) of this section. 
Physical verification and an accounting of all classified information 
shall be made both prior to and after viewing. Any discrepancy must be 
immediately reported to the Director, Office of Security Programs.
    (h) An individual described in paragraph (a) of this section may be 
charged reasonable fees for services rendered by Treasury in connection 
with the review of classified information under this section. To the 
extent such services involve searching, reviewing, and copying material, 
the provisions of Sec.  2.1(b)(8) shall apply.



PART 3_CLAIMS REGULATIONS AND INDEMNIFICATION OF DEPARTMENT OF 
TREASURY EMPLOYEES--Table of Contents



           Subpart A_Claims Under the Federal Tort Claims Act

Sec.
3.1 Scope of regulations.
3.2 Filing of claims.
3.3 Legal review.
3.4 Approval of claims not in excess of $25,000.
3.5 Limitations on authority to approve claims.
3.6 Final denial of a claim.
3.7 Action on approved claims.
3.8 Statute of limitations.

               Subpart B_Claims Under the Small Claims Act

3.20 General.
3.21 Action by claimant.
3.22 Legal review.
3.23 Approval of claims.
3.24 Statute of limitations.

      Subpart C_Indemnification of Department of Treasury Employees

3.30 Policy.

    Authority: 28 U.S.C. 2672; 28 CFR part 14; 5 U.S.C. 301.

    Source: 35 FR 6429, Apr. 22, 1970, unless otherwise noted.



           Subpart A_Claims Under the Federal Tort Claims Act



Sec.  3.1  Scope of regulations.

    (a) The regulations in this part shall apply to claims asserted 
under the Federal Tort Claims Act, as amended, 28 U.S.C. 2672, accruing 
on or after January 18, 1967, for money damages against the United 
States for injury to or loss of property or personal injury or death 
caused by the negligent or wrongful act or omission of an employee of 
the Department while acting within the scope of his office or 
employment, under circumstances where the United States if a private 
person, would be liable to the claimant for such damage, loss, injury, 
or death, in accordance with the law of the place where the act or 
omission occurred. The regulations in this subpart

[[Page 79]]

do not apply to any tort claims excluded from the Federal Tort Claims 
Act, as amended, under 28 U.S.C. 2680.
    (b) Unless specifically modified by the regulations in this part, 
procedures and requirements for filing and handling claims under the 
Federal Tort Claims Act shall be in accordance with the regulations 
issued by the Department of Justice, at 28 CFR part 14, as amended.



Sec.  3.2  Filing of claims.

    (a) When presented. A claim shall be deemed to have been presented 
upon the receipt from a claimant, his duly authorized agent or legal 
representative of an executed Standard Form 95 or other written 
notification of an incident, accompanied by a claim for money damages in 
a sum certain for injury to or loss of property, or personal injury, or 
death alleged to have occurred by reason of the incident.
    (b) Place of filing claim. Claims shall be submitted directly or 
through the local field headquarters to the head of the bureau or office 
of the Department out of whose activities the incident occurred, if 
known; or if not known, to the General Counsel, Treasury Department, 
Washington, DC 20220.
    (c) Contents of claim. The evidence and information to be submitted 
with the claim shall conform to the requirements of 28 CFR 14.4.



Sec.  3.3  Legal review.

    Any claim that exceeds $500, involves personal injuries or 
automobile damage, or arises out of an incident that is likely to result 
in multiple claimants, shall be forwarded to the legal division of the 
bureau or office out of whose activities the claim arose. The claim, 
together with the reports of the employee and the investigation, shall 
be reviewed in the legal division which shall thereupon make a 
recommendation that the claim be approved, disapproved, or compromised, 
and shall advise on the need for referral of the claim to the Department 
of Justice. This recommendation and advice, together with the file, 
shall be forwarded to the head of the bureau or office or his designee.

[35 FR 6429, Apr. 22, 1970, as amended at 48 FR 16253, Apr. 15, 1983]



Sec.  3.4  Approval of claims not in excess of $25,000.

    (a) Claims not exceeding $25,000 and not otherwise requiring 
consultation with the Department of Justice pursuant to 28 CFR 14.6(b) 
shall be approved, disapproved, or compromised by the head of the bureau 
or office or his designee, taking into consideration the recommendation 
of the legal division.



Sec.  3.5  Limitations on authority to approve claims.

    (a) All proposed awards, compromises or settlements in excess of 
$25,000 require the prior written approval of the Attorney General.
    (b) All claims which fall within the provisions of 28 CFR 14.6(b) 
require referral to and consultation with the Department of Justice.
    (c) Any claim which falls within paragraph (a) or (b) of this 
section shall be reviewed by the General Counsel. If the claim, award, 
compromise, or settlement receives the approval of the General Counsel 
and the head of the bureau or office or his designee, a letter shall be 
prepared for the signature of the General Counsel transmitting to the 
Assistant Attorney General, Civil Division, Department of Justice, the 
case for approval or consultation as required by 28 CFR 14.6. Such 
letter shall conform with the requirements set forth in 28 CFR 14.7.



Sec.  3.6  Final denial of a claim.

    The final denial of an administrative claim shall conform with the 
requirements of 28 CFR 14.9 and shall be signed by the head of the 
bureau or office, or his designee.



Sec.  3.7  Action on approved claims.

    (a) Any award, compromise, or settlement in an amount of $2,500 or 
less shall be processed for payment from the appropriations of the 
bureau or office out of whose activity the claim arose.
    (b) Payment of an award, compromise, or settlement in excess of 
$2,500 and not more than $100,000 shall be obtained by the bureau or 
office by forwarding Standard Form 1145 to the Claims Division, General 
Accounting Office.

[[Page 80]]

    (c) Payment of an award, compromise, or settlement in excess of 
$100,000 shall be obtained by the bureau by forwarding Standard Form 
1145 to the Bureau of Government Financial Operations, Department of the 
Treasury, which will be responsible for transmitting the award, 
compromise, or settlement to the Bureau of the Budget for inclusion in a 
deficiency appropriation bill.
    (d) When an award is in excess of $25,000, Standard Form 1145 must 
be accompanied by evidence that the award, compromise, or settlement has 
been approved by the Attorney General or his designee.
    (e) When the use of Standard Form 1145 is required, it shall be 
executed by the claimant. When a claimant is represented by an attorney, 
the voucher for payment shall designate both the claimant and his 
attorney as payees; the check shall be delivered to the attorney, whose 
address shall appear on the voucher.
    (f) Acceptance by the claimant, his agent, or legal representative, 
of any award, compromise or settlement made pursuant to the provisions 
of section 2672 or 2677 of title 28, United States Code, shall be final 
and conclusive on the claimant, his agent or legal representative and 
any other person on whose behalf or for whose benefit the claim has been 
presented, and shall constitute a complete release of any claim against 
the United States and against any employee of the Government whose act 
or omission gave rise to the claim, by reason of the same subject 
matter.

[35 FR 6429, Apr. 22, 1970, as amended at 39 FR 19470, June 3, 1974]



Sec.  3.8  Statute of limitations.

    Claims under this subpart must be presented in writing to the 
Department within 2 years after the claim accrued.



               Subpart B_Claims Under the Small Claims Act



Sec.  3.20  General.

    The Act of December 28, 1922, 42 Stat. 1066, the Small Claims Act, 
authorized the head of each department and establishment to consider, 
ascertain, adjust, and determine claims of $1,000 or less for damage to, 
or loss of, privately owned property caused by the negligence of any 
officer or employee of the Government acting within the scope of his 
employment. The Federal Tort Claims Act superseded the Small Claims Act 
with respect to claims that are allowable under the former act. 
Therefore, claims that are not allowable under the Federal Tort Claims 
Act, for example, claims arising abroad, may be allowable under the 
Small Claims Act.



Sec.  3.21  Action by claimant.

    Procedures and requirements for filing claims under this section 
shall be the same as required for filing claims under the Federal Tort 
Claims Act as set forth in Subpart A of this part.



Sec.  3.22  Legal review.

    Claims filed under this subpart shall be forwarded to the legal 
division of the bureau or office out of whose activities the claim 
arose. The claim, together with the reports of the employee and the 
investigation, shall be reviewed in the legal division which shall 
thereupon make a recommendation that the claim be approved, disapproved 
or compromised.



Sec.  3.23  Approval of claims.

    Claims shall be approved, disapproved, or compromised by the head of 
the bureau or office or his designee, taking into consideration the 
recommendation of the legal division.



Sec.  3.24  Statute of limitations.

    No claim will be considered under this subpart unless filed within 1 
year from the date of the accrual of said claim.



      Subpart C_Indemnification of Department of Treasury Employees

    Source: 56 FR 42938, Aug. 30, 1991, unless otherwise noted.



Sec.  3.30  Policy.

    (a) The Department of the Treasury may indemnify, in whole or in 
part, a

[[Page 81]]

Department employee (which for purposes of this regulation shall include 
a former employee) for any verdict, judgment or other monetary award 
rendered against such employee, provided the Secretary or his or her 
designee determines that (1) the conduct giving rise to such verdict, 
judgment or award was within the scope of his or her employment and (2) 
such indemnification is in the interest of the Department of the 
Treasury.
    (b) The Department of the Treasury may pay for the settlement or 
compromise of a claim against a Department employee at any time, 
provided the Secretary or his or her designee determines that (1) the 
alleged conduct giving rise to the claim was within the scope of the 
employee's employment and (2) such settlement or compromise is in the 
interest of the Department of the Treasury.
    (c) Absent exceptional circumstances, as determined by the Secretary 
or his or her designee, the Department will not entertain a request to 
indemnify or to pay for settlement of a claim before entry of an adverse 
judgment, verdict or other determination.
    (d) When a Department employee becomes aware that he or she has been 
named as a party in a proceeding in his or her individual capacity as a 
result of conduct within the scope of his or her employment, the 
employee should immediately notify his or her supervisor that such an 
action is pending. The supervisor shall promptly thereafter notify the 
chief legal officer of the employee's employing component. The employee 
shall immediately apprise the chief legal officer of his or her 
employing component of any offer to settle the proceeding.
    (e) A Department employee may request indemnification to satisfy a 
verdict, judgment or monetary award entered against the employee or to 
compromise a claim pending against the employee. The employee shall 
submit a written request, with appropriate documentation including a 
copy of the verdict, judgment, award or other order or settlement 
proposal, in a timely manner to the Secretary or his or her designee for 
decision.
    (f) Any payment under this section either to indemnify a Department 
employee or to settle a claim shall be contingent upon the availability 
of appropriated funds for the payment of salaries and expenses of the 
employing component.



PART 4_EMPLOYEES' PERSONAL PROPERTY CLAIMS--Table of Contents



    Authority: 31 U.S.C. 3721(j).

    Source: 62 FR 18518, Apr. 16, 1997, unless otherwise noted.



Sec.  4.1  Procedures.

    The procedures for filing a claim with the Treasury Department for 
personal property that is lost or damaged incident to service are 
contained in Treasury Directive 32-13, ``Claims for Loss or Damage to 
Personal Property,'' and Treasury Department Publication 32-13, 
``Policies and Procedures For Employees' Claim for Loss or Damage to 
Personal Property Incident to Service.''



PART 5_TREASURY DEBT COLLECTION--Table of Contents



                      Subpart A_General Provisions

Sec.
5.1 What definitions apply to the regulations in this part?
5.2 Why is the Treasury Department issuing these regulations and what do 
          they cover?
5.3 Do these regulations adopt the Federal Claims Collection Standards 
          (FCCS)?

             Subpart B_Procedures To Collect Treasury Debts

5.4 What notice will Treasury entities send to a debtor when collecting 
          a Treasury debt?
5.5 How will Treasury entities add interest, penalty charges, and 
          administrative costs to a Treasury debt?
5.6 When will Treasury entities allow a debtor to pay a Treasury debt in 
          installments instead of one lump sum?
5.7 When will Treasury entities compromise a Treasury debt?
5.8 When will Treasury entities suspend or terminate debt collection on 
          a Treasury debt?

[[Page 82]]

5.9 When will Treasury entities transfer a Treasury debt to the Treasury 
          Department's Financial Management Service for collection?
5.10 How will Treasury entities use administrative offset (offset of 
          non-tax Federal payments) to collect a Treasury debt?
5.11 How will Treasury entities use tax refund offset to collect a 
          Treasury debt?
5.12 How will Treasury entities offset a Federal employee's salary to 
          collect a Treasury debt?
5.13 How will Treasury entities use administrative wage garnishment to 
          collect a Treasury debt from a debtor's wages?
5.14 How will Treasury entities report Treasury debts to credit bureaus?
5.15 How will Treasury entities refer Treasury debts to private 
          collection agencies?
5.16 When will Treasury entities refer Treasury debts to the Department 
          of Justice?
5.17 Will a debtor who owes a Treasury debt be ineligible for Federal 
          loan assistance or Federal licenses, permits or privileges?
5.18 How does a debtor request a special review based on a change in 
          circumstances such as catastrophic illness, divorce, death, or 
          disability?
5.19 Will Treasury entities issue a refund if money is erroneously 
          collected on a debt?

   Subpart C_Procedures for Offset of Treasury Department Payments To 
              Collect Debts Owed to Other Federal Agencies

5.20 How do other Federal agencies use the offset process to collect 
          debts from payments issued by a Treasury entity?
5.21 What does a Treasury entity do upon receipt of a request to offset 
          the salary of a Treasury entity employee to collect a debt 
          owed by the employee to another Federal agency?

Appendix A to Part 5--Treasury Directive 34-01--Waiving Claims Against 
          Treasury Employees for Erroneous Payments

    Authority: 5 U.S.C. 5514; 26 U.S.C. 6402; 31 U.S.C. 321, 3701, 3711, 
3716, 3717, 3718, 3720A, 3720B, 3720D.

    Source: 67 FR 65845, Oct. 28, 2002, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  5.1  What definitions apply to the regulations in this part?

    As used in this part:
    Administrative offset or offset means withholding funds payable by 
the United States (including funds payable by the United States on 
behalf of a State Government) to, or held by the United States for, a 
person to satisfy a debt owed by the person. The term ``administrative 
offset'' includes, but is not limited to, the offset of Federal salary, 
vendor, retirement, and Social Security benefit payments. The terms 
``centralized administrative offset'' and ``centralized offset'' refer 
to the process by which the Treasury Department's Financial Management 
Service offsets Federal payments through the Treasury Offset Program.
    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, as authorized by 31 U.S.C. 3720D, 31 CFR 
285.11, and this part.
    Agency or Federal agency means a department, agency, court, court 
administrative office, or instrumentality in the executive, judicial, or 
legislative branch of the Federal Government, including government 
corporations.
    Creditor agency means any Federal agency that is owed a debt.
    Debt means any amount of money, funds or property that has been 
determined by an appropriate official of the Federal Government to be 
owed to the United States by a person. As used in this part, the term 
``debt'' does not include debts arising under the Internal Revenue Code 
of 1986 (26 U.S.C. 1 et seq.).
    Debtor means a person who owes a debt to the United States.
    Delinquent debt means a debt that has not been paid by the date 
specified in the agency's initial written demand for payment or 
applicable agreement or instrument (including a post-delinquency payment 
agreement) unless other satisfactory payment arrangements have been 
made.
    Delinquent Treasury debt means a delinquent debt owed to a Treasury 
entity.
    Disposable pay has the same meaning as that term is defined in 5 CFR 
550.1103.
    Employee or Federal employee means a current employee of the 
Treasury Department or other Federal agency, including a current member 
of the Armed Forces, Reserve of the Armed Forces of

[[Page 83]]

the United States, or the National Guard.
    FCCS means the Federal Claims Collection Standards, which were 
jointly published by the Departments of the Treasury and Justice and 
codified at 31 CFR parts 900-904.
    Financial Management Service means the Financial Management Service, 
a bureau of the Treasury Department, which is responsible for the 
centralized collection of delinquent debts through the offset of Federal 
payments and other means.
    Payment agency or Federal payment agency means any Federal agency 
that transmits payment requests in the form of certified payment 
vouchers, or other similar forms, to a disbursing official for 
disbursement. The ``payment agency'' may be the agency that employs the 
debtor. In some cases, the Treasury Department may be both the creditor 
agency and payment agency.
    Person means an individual, corporation, partnership, association, 
organization, State or local government, or any other type of entity 
other than a Federal agency.
    Salary offset means a type of administrative offset to collect a 
debt owed by a Federal employee from the current pay account of the 
employee.
    Secretary means the Secretary of the Treasury.
    Tax refund offset is defined in 31 CFR 285.2(a).
    Treasury debt means a debt owed to a Treasury entity by a person.
    Treasury Department means the United States Department of the 
Treasury.
    Treasury entity means the Office of Inspector General, the Office of 
Inspector General for Tax Administration, or a bureau of the Treasury 
Department, including the Departmental Offices, responsible for the 
collection of the applicable Treasury debt. Departmental Offices 
include, but are not limited to, the Office of D.C. Pensions, the 
Community Development Financial Institution Fund, the Executive Office 
of Asset Forfeiture, and the Office of Foreign Assets Control. Other 
bureaus include, but are not limited to, the Bureau of Public Debt; 
Bureau of Engraving and Printing; U.S. Mint; U.S. Secret Service; 
Customs Service; Financial Management Service; Internal Revenue Service; 
Bureau of Alcohol, Tobacco, and Firearms; Office of Comptroller of the 
Currency; the Office of Thrift Supervision; Federal Law Enforcement 
Training Center; and the Financial Crimes Enforcement Network.



Sec.  5.2  Why is the Treasury Department issuing these regulations and
what do they cover?

    (a) Scope. This part provides procedures for the collection of 
Treasury debts. This part also provides procedures for collection of 
other debts owed to the United States when a request for offset of a 
Treasury payment is received by the Treasury Department from another 
agency (for example, when a Treasury Department employee owes a debt to 
the United States Department of Education).
    (b) Applicability. (1) This part applies to the Treasury Department 
when collecting a Treasury debt, to persons who owe Treasury debts, and 
to Federal agencies requesting offset of a payment issued by the 
Treasury Department as a payment agency (including salary payments to 
Treasury Department employees).
    (2) This part does not apply to tax debts nor to any debt for which 
there is an indication of fraud or misrepresentation, as described in 
Sec.  900.3 of the FCCS, unless the debt is returned by the Department 
of Justice to the Treasury Department for handling.
    (3) This part does not apply to the Financial Management Service 
when acting on behalf of other Federal agencies and states to collect 
delinquent debt referred to the Financial Management Service for 
collection action as required or authorized by Federal law. See 31 CFR 
part 285.
    (4) Nothing in this part precludes collection or disposition of any 
debt under statutes and regulations other than those described in this 
part. See, for example, 5 U.S.C. 5705, Advancements and Deductions, 
which authorizes Treasury entities to recover travel advances by offset 
of up to 100% of a Federal employee's accrued pay. See, also, 5 U.S.C. 
4108, governing the collection of training expenses. To the extent that 
the provisions of laws, other regulations, and Treasury Department 
enforcement

[[Page 84]]

policies differ from the provisions of this part, those provisions of 
law, other regulations, and Treasury Department enforcement policies 
apply to the remission or mitigation of fines, penalties, and 
forfeitures, and debts arising under the tariff laws of the United 
States, rather than the provisions of this part.
    (c) Additional policies and procedures. Treasury entities may, but 
are not required to, promulgate additional policies and procedures 
consistent with this part, the FCCS, and other applicable Federal law, 
policies, and procedures.
    (d) Duplication not required. Nothing in this part requires a 
Treasury entity to duplicate notices or administrative proceedings 
required by contract, this part, or other laws or regulations.
    (e) Use of multiple collection remedies allowed. Treasury entities 
and other Federal agencies may simultaneously use multiple collection 
remedies to collect a debt, except as prohibited by law. This part is 
intended to promote aggressive debt collection, using for each debt all 
available collection remedies. These remedies are not listed in any 
prescribed order to provide Treasury entities with flexibility in 
determining which remedies will be most efficient in collecting the 
particular debt.



Sec.  5.3  Do these regulations adopt the Federal Claims Collection
Standards (FCCS)?

    This part adopts and incorporates all provisions of the FCCS. This 
part also supplements the FCCS by prescribing procedures consistent with 
the FCCS, as necessary and appropriate for Treasury Department 
operations.



             Subpart B_Procedures To Collect Treasury Debts



Sec.  5.4  What notice will Treasury entities send to a debtor when 
collecting a Treasury debt?

    (a) Notice requirements. Treasury entities shall aggressively 
collect Treasury debts. Treasury entities shall promptly send at least 
one written notice to a debtor informing the debtor of the consequences 
of failing to pay or otherwise resolve a Treasury debt. The notice(s) 
shall be sent to the debtor at the most current address of the debtor in 
the records of the Treasury entity collecting the debt. Generally, 
before starting the collection actions described in Sec. Sec.  5.5 and 
5.9 through 5.17 of this part, Treasury entities will send no more than 
two written notices to the debtor. The purpose of the notice(s) is to 
explain why the debt is owed, the amount of the debt, how a debtor may 
pay the debt or make alternate repayment arrangements, how a debtor may 
review documents related to the debt, how a debtor may dispute the debt, 
the collection remedies available to Treasury entities if the debtor 
refuses to pay the debt, and other consequences to the debtor if the 
debt is not paid. Except as otherwise provided in paragraph (b) of this 
section, the written notice(s) shall explain to the debtor:
    (1) The nature and amount of the debt, and the facts giving rise to 
the debt;
    (2) How interest, penalties, and administrative costs are added to 
the debt, the date by which payment should be made to avoid such 
charges, and that such assessments must be made unless excused in 
accordance with 31 CFR 901.9 (see Sec.  5.5 of this part);
    (3) The date by which payment should be made to avoid the enforced 
collection actions described in paragraph (a)(6) of this section;
    (4) The Treasury entity's willingness to discuss alternative payment 
arrangements and how the debtor may enter into a written agreement to 
repay the debt under terms acceptable to the Treasury entity (see Sec.  
5.6 of this part);
    (5) The name, address, and telephone number of a contact person or 
office within the Treasury entity;
    (6) The Treasury entity's intention to enforce collection if the 
debtor fails to pay or otherwise resolve the debt, by taking one or more 
of the following actions:
    (i) Offset. Offset the debtor's Federal payments, including income 
tax refunds, salary, certain benefit payments (such as Social Security), 
retirement, vendor, travel reimbursements and advances, and other 
Federal payments (see Sec. Sec.  5.10 through 5.12 of this part);

[[Page 85]]

    (ii) Private collection agency. Refer the debt to a private 
collection agency (see Sec.  5.15 of this part);
    (iii) Credit bureau reporting. Report the debt to a credit bureau 
(see Sec.  5.14 of this part);
    (iv) Administrative wage garnishment. Garnish the debtor's wages 
through administrative wage garnishment (see Sec.  5.13 of this part);
    (v) Litigation. Refer the debt to the Department of Justice to 
initiate litigation to collect the debt (see Sec.  5.16 of this part);
    (vi) Treasury Department's Financial Management Service. Refer the 
debt to the Financial Management Service for collection (see Sec.  5.9 
of this part);
    (7) That Treasury debts over 180 days delinquent must be referred to 
the Financial Management Service for the collection actions described in 
paragraph (a)(6) of this section (see Sec.  5.9 of this part);
    (8) How the debtor may inspect and copy records related to the debt;
    (9) How the debtor may request a review of the Treasury entity's 
determination that the debtor owes a debt and present evidence that the 
debt is not delinquent or legally enforceable (see Sec. Sec.  5.10(c) 
and 5.11(c) of this part);
    (10) How a debtor may request a hearing if the Treasury entity 
intends to garnish the debtor's private sector (i.e., non-Federal) wages 
(see Sec.  5.13(a) of this part), including:
    (i) The method and time period for requesting a hearing;
    (ii) That the timely filing of a request for a hearing on or before 
the 15th business day following the date of the notice will stay the 
commencement of administrative wage garnishment, but not necessarily 
other collection procedures; and
    (iii) The name and address of the office to which the request for a 
hearing should be sent.
    (11) How a debtor who is a Federal employee subject to Federal 
salary offset may request a hearing (see Sec.  5.12(e) of this part), 
including:
    (i) The method and time period for requesting a hearing;
    (ii) That the timely filing of a request for a hearing on or before 
the 15th calendar day following receipt of the notice will stay the 
commencement of salary offset, but not necessarily other collection 
procedures;
    (iii) The name and address of the office to which the request for a 
hearing should be sent;
    (iv) That the Treasury entity will refer the debt to the debtor's 
employing agency or to the Financial Management Service to implement 
salary offset, unless the employee files a timely request for a hearing;
    (v) That a final decision on the hearing, if requested, will be 
issued at the earliest practical date, but not later than 60 days after 
the filing of the request for a hearing, unless the employee requests 
and the hearing official grants a delay in the proceedings;
    (vi) That any knowingly false or frivolous statements, 
representations, or evidence may subject the Federal employee to 
penalties under the False Claims Act (31 U.S.C. 3729-3731) or other 
applicable statutory authority, and criminal penalties under 18 U.S.C. 
286, 287, 1001, and 1002, or other applicable statutory authority;
    (vii) That unless prohibited by contract or statute, amounts paid on 
or deducted for the debt which are later waived or found not owed to the 
United States will be promptly refunded to the employee; and
    (viii) That proceedings with respect to such debt are governed by 5 
U.S.C. 5514 and 31 U.S.C. 3716;
    (12) How the debtor may request a waiver of the debt, if applicable 
(see, for example, Treasury Directive 34-01 (Waiving Claims Against 
Treasury Employees for Erroneous Payments), set forth at appendix A of 
this part and at http://www.treas.gov/regs);
    (13) How the debtor's spouse may claim his or her share of a joint 
income tax refund by filing Form 8379 with the Internal Revenue Service 
(see http://www.irs.gov)
    (14) How the debtor may exercise other statutory or regulatory 
rights and remedies available to the debtor;
    (15) That certain debtors may be ineligible for Federal Government 
loans, guaranties and insurance (see 31 U.S.C. 3720B, 31 CFR 285.13, and 
Sec.  5.17(a) of this part);

[[Page 86]]

    (16) If applicable, the Treasury entity's intention to suspend or 
revoke licenses, permits or privileges (see Sec.  5.17(b) of this part); 
and
    (17) That the debtor should advise the Treasury entity of a 
bankruptcy proceeding of the debtor or another person liable for the 
debt being collected.
    (b) Exceptions to notice requirements. A Treasury entity may omit 
from a notice to a debtor one or more of the provisions contained in 
paragraphs (a)(6) through (a)(17) of this section if the Treasury 
entity, in consultation with its legal counsel, determines that any 
provision is not legally required given the collection remedies to be 
applied to a particular debt.
    (c) Respond to debtors; comply with FCCS. Treasury entities should 
respond promptly to communications from debtors and comply with other 
FCCS provisions applicable to the administrative collection of debts. 
See 31 CFR part 901.



Sec.  5.5  How will Treasury entities add interest, penalty charges, and
administrative costs to a Treasury debt?

    (a) Assessment and notice. Treasury entities shall assess interest, 
penalties and administrative costs on Treasury debts in accordance with 
the provisions of 31 U.S.C. 3717 and 31 CFR 901.9, on Treasury debts. 
Interest shall be charged in accordance with the requirements of 31 
U.S.C. 3717(a). Penalties shall accrue at the rate of 6% per year, or 
such other higher rate as authorized by law. Administrative costs, that 
is the costs of processing and handling a delinquent debt, shall be 
determined by the Treasury entity collecting the Treasury debt. Treasury 
entities may have additional policies regarding how interest, penalties, 
and administrative costs are assessed on particular types of debts. 
Treasury entities are required to explain in the notice to the debtor 
described in Sec.  5.4 of this part how interest, penalties, costs, and 
other charges are assessed, unless the requirements are included in a 
contract or repayment agreement.
    (b) Waiver of interest, penalties, and administrative costs. Unless 
otherwise required by law, Treasury entities may not charge interest if 
the amount due on the debt is paid within 30 days after the date from 
which the interest accrues. See 31 U.S.C. 3717(d). Treasury entities may 
waive interest, penalties, and administrative costs, or any portion 
thereof, when it would be against equity and good conscience or not in 
the Treasury entity's best interest to collect such charges, in 
accordance with Treasury guidelines for waiving claims against Treasury 
employees for erroneous overpayments. See Treasury Directive 34-01 
(Waiving Claims Against Treasury Employees for Erroneous Payments) set 
forth at appendix A of this part and at http://www.treas.gov/regs. Legal 
counsel approval is not required to waive such charges. Cf., Sec. Sec.  
5.7 and 5.8 of this part, which require legal counsel approval when 
compromising a debt or terminating debt collection activity on a debt.
    (c) Accrual during suspension of debt collection. In most cases, 
interest, penalties and administrative costs will continue to accrue 
during any period when collection has been suspended for any reason (for 
example, when the debtor has requested a hearing). Treasury entities may 
suspend accrual of any or all of these charges when accrual would be 
against equity and good conscience or not in the Treasury entity's best 
interest, in accordance with Treasury guidelines for waiving claims 
against Treasury employees for erroneous overpayments. See Treasury 
Directive 34-01 (Waiving Claims Against Treasury Employees for Erroneous 
Payments), set forth at appendix A of this part and http://
www.treas.gov/regs.



Sec.  5.6  When will Treasury entities allow a debtor to pay a Treasury
debt in installments instead of one lump sum?

    If a debtor is financially unable to pay the debt in one lump sum, a 
Treasury entity may accept payment of a Treasury debt in regular 
installments, in accordance with the provisions of 31 CFR 901.8 and the 
Treasury entity's policies and procedures.



Sec.  5.7  When will Treasury entities compromise a Treasury debt?

    If a Treasury entity cannot collect the full amount of a Treasury 
debt, the

[[Page 87]]

Treasury entity may compromise the debt in accordance with the 
provisions of 31 CFR part 902 and the Treasury entity's policies and 
procedures. Legal counsel approval to compromise a Treasury debt is 
required as described in Treasury Directive 34-02 (Credit Management and 
Debt Collection), which may be found at http://www.treas.gov/regs.



Sec.  5.8  When will Treasury entities suspend or terminate debt collection
on a Treasury debt?

    If, after pursuing all appropriate means of collection, a Treasury 
entity determines that a Treasury debt is uncollectible, the Treasury 
entity may suspend or terminate debt collection activity in accordance 
with the provisions of 31 CFR part 903 and the Treasury entity's 
policies and procedures. Legal counsel approval to terminate debt 
collection activity is required as described in Treasury Directive 34-02 
(Credit Management and Debt Collection), which may be found at http://
www.treas.gov/regs.



Sec.  5.9  When will Treasury entities transfer a Treasury debt to the
Treasury Department's Financial Management Service for collection?

    (a) Treasury entities will transfer any eligible debt that is more 
than 180 days delinquent to the Financial Management Service for debt 
collection services, a process known as ``cross-servicing.'' See 31 
U.S.C. 3711(g) and 31 CFR 285.12. Treasury entities may transfer debts 
delinquent 180 days or less to the Financial Management Service in 
accordance with the procedures described in 31 CFR 285.12. The Financial 
Management Service takes appropriate action to collect or compromise the 
transferred debt, or to suspend or terminate collection action thereon, 
in accordance with the statutory and regulatory requirements and 
authorities applicable to the debt and the collection action to be 
taken. See 31 CFR 285.12(b)(2). Appropriate action includes, but is not 
limited to, contact with the debtor, referral of the debt to the 
Treasury Offset Program, private collection agencies or the Department 
of Justice, reporting of the debt to credit bureaus, and administrative 
wage garnishment.
    (b) At least sixty (60) days prior to transferring a Treasury debt 
to the Financial Management Service, Treasury entities will send notice 
to the debtor as required by Sec.  5.4 of this part. Treasury entities 
will certify to the Financial Management Service, in writing, that the 
debt is valid, delinquent, legally enforceable, and that there are no 
legal bars to collection. In addition, Treasury entities will certify 
their compliance with all applicable due process and other requirements 
as described in this part and other Federal laws. See 31 CFR 285.12(i) 
regarding the certification requirement.
    (c) As part of its debt collection process, the Financial Management 
Service uses the Treasury Offset Program to collect Treasury debts by 
administrative and tax refund offset. See 31 CFR 285.12(g). The Treasury 
Offset Program is a centralized offset program administered by the 
Financial Management Service to collect delinquent debts owed to Federal 
agencies and states (including past-due child support). Under the 
Treasury Offset Program, before a Federal payment is disbursed, the 
Financial Management Service compares the name and taxpayer 
identification number (TIN) of the payee with the names and TINs of 
debtors that have been submitted by Federal agencies and states to the 
Treasury Offset Program database. If there is a match, the Financial 
Management Service (or, in some cases, another Federal disbursing 
agency) offsets all or a portion of the Federal payment, disburses any 
remaining payment to the payee, and pays the offset amount to the 
creditor agency. Federal payments eligible for offset include, but are 
not limited to, income tax refunds, salary, travel advances and 
reimbursements, retirement and vendor payments, and Social Security and 
other benefit payments.



Sec.  5.10  How will Treasury entities use administrative offset 
(offset of non-tax Federal payments) to collect a Treasury debt?

    (a) Centralized administrative offset through the Treasury Offset 
Program. (1) In most cases, the Financial Management Service uses the 
Treasury Offset Program to collect Treasury debts by

[[Page 88]]

the offset of Federal payments. See Sec.  5.9(c) of this part. If not 
already transferred to the Financial Management Service under Sec.  5.9 
of this part, Treasury entities will refer any eligible debt over 180 
days delinquent to the Treasury Offset Program for collection by 
centralized administrative offset. See 31 U.S.C. 3716(c)(6); 31 CFR part 
285, subpart A; and 31 CFR 901.3(b). Treasury entities may refer any 
eligible debt less than 180 days delinquent to the Treasury Offset 
Program for offset.
    (2) At least sixty (60) days prior to referring a debt to the 
Treasury Offset Program, in accordance with paragraph (a)(1) of this 
section, Treasury entities will send notice to the debtor in accordance 
with the requirements of Sec.  5.4 of this part. Treasury entities will 
certify to the Financial Management Service, in writing, that the debt 
is valid, delinquent, legally enforceable, and that there are no legal 
bars to collection by offset. In addition, Treasury entities will 
certify their compliance with the requirements described in this part.
    (b) Non-centralized administrative offset for Treasury debts. (1) 
When centralized administrative offset through the Treasury Offset 
Program is not available or appropriate, Treasury entities may collect 
past-due, legally enforceable Treasury debts through non-centralized 
administrative offset. See 31 CFR 901.3(c). In these cases, Treasury 
entities may offset a payment internally or make an offset request 
directly to a Federal payment agency. If the Federal payment agency is 
another Treasury entity, the Treasury entity making the request shall do 
so through the Deputy Chief Financial Officer as described in Sec.  
5.20(c) of this part.
    (2) At least thirty (30) days prior to offsetting a payment 
internally or requesting a Federal payment agency to offset a payment, 
Treasury entities will send notice to the debtor in accordance with the 
requirements of Sec.  5.4 of this part. When referring a debt for offset 
under this paragraph (b), Treasury entities making the request will 
certify, in writing, that the debt is valid, delinquent, legally 
enforceable, and that there are no legal bars to collection by offset. 
In addition, Treasury entities will certify their compliance with these 
regulations concerning administrative offset. See 31 CFR 
901.3(c)(2)(ii).
    (c) Administrative review. The notice described in Sec.  5.4 of this 
part shall explain to the debtor how to request an administrative review 
of a Treasury entity's determination that the debtor owes a Treasury 
debt and how to present evidence that the debt is not delinquent or 
legally enforceable. In addition to challenging the existence and amount 
of the debt, the debtor may seek a review of the terms of repayment. In 
most cases, Treasury entities will provide the debtor with a ``paper 
hearing'' based upon a review of the written record, including 
documentation provided by the debtor. Treasury entities shall provide 
the debtor with a reasonable opportunity for an oral hearing when the 
debtor requests reconsideration of the debt and the Treasury entity 
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. Unless otherwise 
required by law, an oral hearing under this section is not required to 
be a formal evidentiary hearing, although Treasury entities should 
carefully document all significant matters discussed at the hearing. 
Treasury entities may suspend collection through administrative offset 
and/or other collection actions pending the resolution of a debtor's 
dispute. Each Treasury entity will have its own policies and procedures 
concerning the administrative review process consistent with the FCCS 
and the regulations in this section.
    (d) Procedures for expedited offset. Under the circumstances 
described in 31 CFR 901.3(b)(4)(iii), Treasury entities may effect an 
offset against a payment to be made to the debtor prior to sending a 
notice to the debtor, as described in Sec.  5.4 of this part, or 
completing the procedures described in paragraph (b)(2) and (c) of this 
section. Treasury entities shall give the debtor notice and an 
opportunity for review as soon as practicable and promptly refund any 
money ultimately found not to have been owed to the Government.

[[Page 89]]



Sec.  5.11  How will Treasury entities use tax refund offset to collect
a Treasury debt?

    (a) Tax refund offset. In most cases, the Financial Management 
Service uses the Treasury Offset Program to collect Treasury debts by 
the offset of tax refunds and other Federal payments. See Sec.  5.9(c) 
of this part. If not already transferred to the Financial Management 
Service under Sec.  5.9 of this part, Treasury entities will refer to 
the Treasury Offset Program any past-due, legally enforceable debt for 
collection by tax refund offset. See 26 U.S.C. 6402(d), 31 U.S.C. 3720A 
and 31 CFR 285.2.
    (b) Notice. At least sixty (60) days prior to referring a debt to 
the Treasury Offset Program, Treasury entities will send notice to the 
debtor in accordance with the requirements of Sec.  5.4 of this part. 
Treasury entities will certify to the Financial Management Service's 
Treasury Offset Program, in writing, that the debt is past-due and 
legally enforceable in the amount submitted and that the Treasury 
entities have made reasonable efforts to obtain payment of the debt as 
described in 31 CFR 285.2(d). In addition, Treasury entities will 
certify their compliance with all applicable due process and other 
requirements described in this part and other Federal laws. See 31 
U.S.C. 3720A(b) and 31 CFR 285.2.
    (c) Administrative review. The notice described in Sec.  5.4 of this 
part shall provide the debtor with at least 60 days prior to the 
initiation of tax refund offset to request an administrative review as 
described in Sec.  5.10(c) of this part. Treasury entities may suspend 
collection through tax refund offset and/or other collection actions 
pending the resolution of the debtor's dispute.



Sec.  5.12  How will Treasury entities offset a Federal employee's 
salary to collect a Treasury debt?

    (a) Federal salary offset. (1) Salary offset is used to collect 
debts owed to the United States by Treasury Department and other Federal 
employees. If a Federal employee owes a Treasury debt, Treasury entities 
may offset the employee's Federal salary to collect the debt in the 
manner described in this section. For information on how a Federal 
agency other than a Treasury entity may collect debt from the salary of 
a Treasury Department employee, see Sec. Sec.  5.20 and 5.21, subpart C, 
of this part.
    (2) Nothing in this part requires a Treasury entity to collect a 
Treasury debt in accordance with the provisions of this section if 
Federal law allows otherwise. See, for example, 5 U.S.C. 5705 (travel 
advances not used for allowable travel expenses are recoverable from the 
employee or his estate by setoff against accrued pay and other means) 
and 5 U.S.C. 4108 (recovery of training expenses).
    (3) Treasury entities may use the administrative wage garnishment 
procedure described in Sec.  5.13 of this part to collect a debt from an 
individual's non-Federal wages.
    (b) Centralized salary offset through the Treasury Offset Program. 
As described in Sec.  5.9(a) of this part, Treasury entities will refer 
Treasury debts to the Financial Management Service for collection by 
administrative offset, including salary offset, through the Treasury 
Offset Program. When possible, Treasury entities should attempt salary 
offset through the Treasury Offset Program before applying the 
procedures in paragraph (c) of this section. See 5 CFR 550.1109.
    (c) Non-centralized salary offset for Treasury debts. When 
centralized salary offset through the Treasury Offset Program is not 
available or appropriate, Treasury entities may collect delinquent 
Treasury debts through non-centralized salary offset. See 5 CFR 
550.1109. In these cases, Treasury entities may offset a payment 
internally or make a request directly to a Federal payment agency to 
offset a salary payment to collect a delinquent debt owed by a Federal 
employee. If the Federal payment agency is another Treasury entity, the 
Treasury entity making the request shall do so through the Deputy Chief 
Financial Officer as described in Sec.  5.20(c) of this part. At least 
thirty (30) days prior to offsetting internally or requesting a Federal 
agency to offset a salary payment, Treasury entities will send notice to 
the debtor in accordance with the requirements of Sec.  5.4 of this 
part. When referring a debt for offset, Treasury entities will certify 
to the payment agency, in writing, that the

[[Page 90]]

debt is valid, delinquent and legally enforceable in the amount stated, 
and there are no legal bars to collection by salary offset. In addition, 
Treasury entities will certify that all due process and other 
prerequisites to salary offset have been met. See 5 U.S.C. 5514, 31 
U.S.C. 3716(a), and this section for a description of the due process 
and other prerequisites for salary offset.
    (d) When prior notice not required. Treasury entities are not 
required to provide prior notice to an employee when the following 
adjustments are made by a Treasury entity to a Treasury employee's pay:
    (1) Any adjustment to pay arising out of any employee's election of 
coverage or a change in coverage under a Federal benefits program 
requiring periodic deductions from pay, if the amount to be recovered 
was accumulated over four pay periods or less;
    (2) A routine 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 four pay periods preceding the adjustment, and, at the time 
of such adjustment, or as soon thereafter as practical, the individual 
is provided written notice of the nature and the amount of the 
adjustment and point of contact for contesting such 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 
individual is provided written notice of the nature and the amount of 
the adjustment and a point of contact for contesting such adjustment.
    (e) Hearing procedures--(1) Request for a hearing. A Federal 
employee who has received a notice that his or her Treasury debt will be 
collected by means of salary offset may request a hearing concerning the 
existence or amount of the debt. The Federal employee also may request a 
hearing concerning the amount proposed to be deducted from the 
employee's pay each pay period. The employee must send any request for 
hearing, in writing, to the office designated in the notice described in 
Sec.  5.4. See Sec.  5.4(a)(11). The request must be received by the 
designated office on or before the 15th calendar day following the 
employee's receipt of the notice. The employee must sign the request and 
specify whether an oral or paper hearing is requested. If an oral 
hearing is requested, the employee must explain why the matter cannot be 
resolved by review of the documentary evidence alone. All travel 
expenses incurred by the Federal employee in connection with an in-
person hearing will be borne by the employee.
    (2) Failure to submit timely request for hearing. If the employee 
fails to submit a request for hearing within the time period described 
in paragraph (e)(1) of this section, the employee will have waived the 
right to a hearing, and salary offset may be initiated. However, 
Treasury entities should accept a late request for hearing if the 
employee can show that the late request was the result of circumstances 
beyond the employee's control or because of a failure to receive actual 
notice of the filing deadline.
    (3) Hearing official. Treasury entities must obtain the services of 
a hearing official who is not under the supervision or control of the 
Secretary. Treasury entities may contact the Deputy Chief Financial 
Officer as described in Sec.  5.20(c) of this part or an agent of any 
agency designated in Appendix A to 5 CFR part 581 (List of Agents 
Designated to Accept Legal Process) to request a hearing official.
    (4) Notice of hearing. After the employee requests a hearing, the 
designated hearing official shall inform the employee of the form of the 
hearing to be provided. For oral hearings, the notice shall set forth 
the date, time and location of the hearing. For paper hearings, the 
notice shall notify the employee of the date by which he or she should 
submit written arguments to the designated hearing official. The hearing 
official shall give the employee reasonable time to submit documentation 
in support of the employee's position. The hearing official shall 
schedule a new hearing date if requested by both parties. The hearing 
official shall give both parties reasonable notice of the time and place 
of a rescheduled hearing.
    (5) Oral hearing. The hearing official will conduct an oral hearing 
if he or

[[Page 91]]

she determines that the matter cannot be resolved by review of 
documentary evidence alone (for example, when an issue of credibility or 
veracity is involved). The hearing need not take the form of an 
evidentiary hearing, but may be conducted in a manner determined by the 
hearing official, including but not limited to:
    (i) Informal conferences with the hearing official, in which the 
employee and agency representative will be given full opportunity to 
present evidence, witnesses and argument;
    (ii) Informal meetings with an interview of the employee by the 
hearing official; or
    (iii) Formal written submissions, with an opportunity for oral 
presentation.
    (6) Paper hearing. If the hearing official determines that an oral 
hearing is not necessary, he or she will make the determination based 
upon a review of the available written record, including any 
documentation submitted by the employee in support of his or her 
position.
    (7) Failure to appear or submit documentary evidence. In the absence 
of good cause shown (for example, excused illness), if the employee 
fails to appear at an oral hearing or fails to submit documentary 
evidence as required for a paper hearing, the employee will have waived 
the right to a hearing, and salary offset may be initiated. Further, the 
employee will have been deemed to admit the existence and amount of the 
debt as described in the notice of intent to offset. If the Treasury 
entity representative fails to appear at an oral hearing, the hearing 
official shall proceed with the hearing as scheduled, and make his or 
her determination based upon the oral testimony presented and the 
documentary evidence submitted by both parties.
    (8) Burden of proof. Treasury entities will have the initial burden 
to prove the existence and amount of the debt. Thereafter, if the 
employee disputes the existence or amount of the debt, the employee must 
prove by a preponderance of the evidence that no debt exists or that the 
amount of the debt is incorrect. In addition, the employee may present 
evidence that the proposed terms of the repayment schedule are unlawful, 
would cause a financial hardship to the employee, or that collection of 
the debt may not be pursued due to operation of law.
    (9) Record. The hearing official shall maintain a summary record of 
any hearing provided by this part. Witnesses will testify under oath or 
affirmation in oral hearings.
    (10) Date of decision. The hearing official shall issue a written 
opinion stating his or her decision, based upon documentary evidence and 
information developed at the hearing, as soon as practicable after the 
hearing, but not later than 60 days after the date on which the request 
for hearing was received by the Treasury entity. If the employee 
requests a delay in the proceedings, the deadline for the decision may 
be postponed by the number of days by which the hearing was postponed. 
When a decision is not timely rendered, the Treasury entity shall waive 
penalties applied to the debt for the period beginning with the date the 
decision is due and ending on the date the decision is issued.
    (11) 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, if applicable.
    (12) Final agency action. The hearing official's decision shall be 
final.
    (f) Waiver not precluded. Nothing in this part precludes an employee 
from requesting waiver of an overpayment under 5 U.S.C. 5584 or 8346(b), 
10 U.S.C. 2774, 32 U.S.C. 716, or other statutory authority.
    (g) Salary offset process--(1) Determination of disposable pay. The 
office of the Deputy Chief Financial Officer will consult with the 
appropriate Treasury entity payroll office to determine the amount of a 
Treasury Department employee's disposable pay (as defined in Sec.  5.1 
of this part) and will implement salary offset when requested to do so 
by a Treasury entity, as described in paragraph (c) of this section, or 
another agency, as described in Sec.  5.20 of this part. If the debtor 
is not employed

[[Page 92]]

by the Treasury Department, the agency employing the debtor will 
determine the amount of the employee's disposable pay and will implement 
salary offset upon request.
    (2) When salary offset begins. Deductions shall begin within three 
official pay periods following receipt of the creditor agency's request 
for offset.
    (3) Amount of salary offset. The amount to be offset from each 
salary payment will be up to 15 percent of a debtor's disposable pay, as 
follows:
    (i) If the amount of the debt is equal to or less than 15 percent of 
the disposable pay, such debt generally will be collected in one lump 
sum payment;
    (ii) Installment deductions will be made over a period of no greater 
than the anticipated period of employment. An installment deduction will 
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 or the creditor agency has determined that smaller 
deductions are appropriate based on the employee's ability to pay.
    (4) Final salary payment. After the employee has separated either 
voluntarily or involuntarily from the payment agency, the payment agency 
may make a lump sum deduction exceeding 15 percent of disposable pay 
from any final salary or other payments pursuant to 31 U.S.C. 3716 in 
order to satisfy a debt.
    (h) Payment agency's responsibilities. (1) As required by 5 CFR 
550.1109, if the employee separates from the payment agency from which a 
Treasury entity has requested salary offset, the payment agency must 
certify the total amount of its collection and notify the Treasury 
entity and the employee of the amounts collected. If the payment agency 
is aware that the employee is entitled to payments from the Civil 
Service Retirement Fund and Disability Fund, the Federal Employee 
Retirement System, or other similar payments, it must provide written 
notification to the payment agency responsible for making such payments 
that the debtor owes a debt, the amount of the debt, and that the 
Treasury entity has complied with the provisions of this section. 
Treasury entities must submit a properly certified claim to the new 
payment agency before the collection can be made.
    (2) If the employee is already separated from employment and all 
payments due from his or her former payment agency have been made, 
Treasury entities may request that money due and payable to the employee 
from the Civil Service Retirement Fund and Disability Fund, the Federal 
Employee Retirement System, or other similar funds, be administratively 
offset to collect the debt. Generally, Treasury entities will collect 
such monies through the Treasury Offset Program as described in Sec.  
5.9(c) of this part.
    (3) When an employee transfers to another agency, Treasury entities 
should resume collection with the employee's new payment agency in order 
to continue salary offset.



Sec.  5.13  How will Treasury entities use administrative wage garnishment
to collect a Treasury debt from a debtor's wages?

    (a) Treasury entities are authorized to collect debts from a 
debtor's wages by means of administrative wage garnishment in accordance 
with the requirements of 31 U.S.C. 3720D and 31 CFR 285.11. This part 
adopts and incorporates all of the provisions of 31 CFR 285.11 
concerning administrative wage garnishment, including the hearing 
procedures described in 31 CFR 285.11(f). Treasury entities may use 
administrative wage garnishment to collect a delinquent Treasury debt 
unless the debtor is making timely payments under an agreement to pay 
the debt in installments (see Sec.  5.6 of this part). At least thirty 
(30) days prior to initiating an administrative wage garnishment, 
Treasury entities will send notice to the debtor in accordance with the 
requirements of Sec.  5.4 of this part, including the requirements of 
Sec.  5.4(a)(10) of this part. For Treasury debts referred to the 
Financial Management Service under Sec.  5.9 of this part, Treasury 
entities may authorize the Financial Management Service to send a notice 
informing the debtor that administrative wage garnishment will be 
initiated and how the debtor may request a hearing as described in Sec.  
5.4(a)(10) of this part. If a debtor makes a timely request for

[[Page 93]]

a hearing, administrative wage garnishment will not begin until a 
hearing is held and a decision is sent to the debtor. See 31 CFR 
285.11(f)(4). If a debtor's hearing request is not timely, Treasury 
entities may suspend collection by administrative wage garnishment in 
accordance with the provisions of 31 CFR 285.11(f)(5). All travel 
expenses incurred by the debtor in connection with an in-person hearing 
will be borne by the debtor.
    (b) This section does not apply to Federal salary offset, the 
process by which Treasury entities collect debts from the salaries of 
Federal employees (see Sec.  5.12 of this part).



Sec.  5.14  How will Treasury entities report Treasury debts to credit
bureaus?

    Treasury entities shall report delinquent Treasury debts to credit 
bureaus in accordance with the provisions of 31 U.S.C. 3711(e), 31 CFR 
901.4, and the Office of Management and Budget Circular A-129, 
``Policies for Federal Credit Programs and Nontax Receivables.'' For 
additional information, see Financial Management Service's ``Guide to 
the Federal Credit Bureau Program,'' which may be found at http://
www.fms.treas.gov/debt. At least sixty (60) days prior to reporting a 
delinquent debt to a consumer reporting agency, Treasury entities will 
send notice to the debtor in accordance with the requirements of Sec.  
5.4 of this part. Treasury entities may authorize the Financial 
Management Service to report to credit bureaus those delinquent Treasury 
debts that have been transferred to the Financial Management Service 
under Sec.  5.9 of this part.



Sec.  5.15  How will Treasury entities refer Treasury debts to private
collection agencies?

    Treasury entities will transfer delinquent Treasury debts to the 
Financial Management Service to obtain debt collection services provided 
by private collection agencies. See Sec.  5.9 of this part.



Sec.  5.16  When will Treasury entities refer Treasury debts to the
Department of Justice?

    (a) Compromise or suspension or termination of collection activity. 
Treasury entities shall refer Treasury debts having a principal balance 
over $100,000, or such higher amount as authorized by the Attorney 
General, to the Department of Justice for approval of any compromise of 
a debt or suspension or termination of collection activity. See 
Sec. Sec.  5.7 and 5.8 of this part; 31 CFR 902.1; 31 CFR 903.1.
    (b) Litigation. Treasury entities shall promptly refer to the 
Department of Justice for litigation delinquent Treasury debts on which 
aggressive collection activity has been taken in accordance with this 
part and that should not be compromised, and on which collection 
activity should not be suspended or terminated. See 31 CFR part 904. 
Treasury entities may authorize the Financial Management Service to 
refer to the Department of Justice for litigation those delinquent 
Treasury debts that have been transferred to the Financial Management 
Service under Sec.  5.9 of this part.



Sec.  5.17  Will a debtor who owes a Treasury debt be ineligible for
Federal loan assistance or Federal licenses, permits or privileges?

    (a) Delinquent debtors barred from obtaining Federal loans or loan 
insurance or guaranties. As required by 31 U.S.C. 3720B and 31 CFR 
901.6, Treasury entities will not extend financial assistance in the 
form of a loan, loan guarantee, or loan insurance to any person 
delinquent on a debt owed to a Federal agency. This prohibition does not 
apply to disaster loans. Treasury entities may extend credit after the 
delinquency has been resolved. See 31 CFR 285.13 for standards defining 
when a ``delinquency'' is ``resolved'' for purposes of this prohibition.
    (b) Suspension or revocation of eligibility for licenses, permits, 
or privileges. Unless prohibited by law, Treasury entities should 
suspend or revoke licenses, permits, or other privileges for any 
inexcusable or willful failure of a debtor to pay a debt. The Treasury 
entity responsible for distributing the licenses, permits, or other 
privileges will establish policies and procedures governing suspension 
and revocation for delinquent debtors. If applicable, Treasury entities 
will advise the debtor in the notice required by Sec.  5.4 of this

[[Page 94]]

part of the Treasury entities' ability to suspend or revoke licenses, 
permits or privileges. See Sec.  5.4(a)(16) of this part.



Sec.  5.18  How does a debtor request a special review based on a change
in circumstances such as catastrophic illness, divorce, death, or 
disability?

    (a) Material change in circumstances. A debtor who owes a Treasury 
debt may, at any time, request a special review by the applicable 
Treasury entity of the amount of any offset, administrative wage 
garnishment, or voluntary payment, based on materially changed 
circumstances beyond the control of the debtor such as, but not limited 
to, catastrophic illness, divorce, death, or disability.
    (b) Inability to pay. For purposes of this section, in determining 
whether an involuntary or voluntary payment would prevent the debtor 
from meeting essential subsistence expenses (costs incurred for food, 
housing, clothing, transportation, and medical care), the debtor shall 
submit a detailed statement and supporting documents for the debtor, his 
or her spouse, and dependents, indicating:
    (1) Income from all sources;
    (2) Assets;
    (3) Liabilities;
    (4) Number of dependents;
    (5) Expenses for food, housing, clothing, and transportation;
    (6) Medical expenses; and
    (7) Exceptional expenses, if any.
    (c) Alternative payment arrangement. If the debtor requests a 
special review under this section, the debtor shall submit an 
alternative proposed payment schedule and a statement to the Treasury 
entity collecting the debt, with supporting documents, showing why the 
current offset, garnishment or repayment schedule imposes an extreme 
financial hardship on the debtor. The Treasury entity will evaluate the 
statement and documentation and determine whether the current offset, 
garnishment, or repayment schedule imposes extreme financial hardship on 
the debtor. The Treasury entity shall notify the debtor in writing of 
such determination, including, if appropriate, a revised offset, 
garnishment, or payment schedule. If the special review results in a 
revised offset, garnishment, or repayment schedule, the Treasury entity 
will notify the appropriate agency or other persons about the new terms.



Sec.  5.19  Will Treasury entities issue a refund if money is erroneously
collected on a debt?

    Treasury entities shall promptly refund to a debtor any amount 
collected on a Treasury debt when the debt is waived or otherwise found 
not to be owed to the United States, or as otherwise required by law. 
Refunds under this part shall not bear interest unless required by law.



   Subpart C_Procedures for Offset of Treasury Department Payments To 
              Collect Debts Owed to Other Federal Agencies



Sec.  5.20  How do other Federal agencies use the offset process to 
collect debts from payments issued by a Treasury entity?

    (a) Offset of Treasury entity payments to collect debts owed to 
other Federal agencies. (1) In most cases, Federal agencies submit 
eligible debts to the Treasury Offset Program to collect delinquent 
debts from payments issued by Treasury entities and other Federal 
agencies, a process known as ``centralized offset.'' When centralized 
offset is not available or appropriate, any Federal agency may ask a 
Treasury entity (when acting as a ``payment agency'') to collect a debt 
owed to such agency by offsetting funds payable to a debtor by the 
Treasury entity, including salary payments issued to Treasury entity 
employees. This section and Sec.  5.21 of this subpart C apply when a 
Federal agency asks a Treasury entity to offset a payment issued by the 
Treasury entity to a person who owes a debt to the United States.
    (2) This subpart C does not apply to Treasury debts. See Sec. Sec.  
5.10 through 5.12 of this part for offset procedures applicable to 
Treasury debts.
    (3) This subpart C does not apply to the collection of non-Treasury 
debts through tax refund offset. See 31 CFR 285.2 for tax refund offset 
procedures.
    (b) Administrative offset (including salary offset); certification. 
A Treasury entity will initiate a requested offset

[[Page 95]]

only upon receipt of written certification from the creditor agency that 
the debtor owes the past-due, legally enforceable debt in the amount 
stated, and that the creditor agency has fully complied with all 
applicable due process and other requirements contained in 31 U.S.C. 
3716, 5 U.S.C. 5514, and the creditor agency's regulations, as 
applicable. Offsets will continue until the debt is paid in full or 
otherwise resolved to the satisfaction of the creditor agency.
    (c) Where a creditor agency makes requests for offset. Requests for 
offset under this section shall be sent to the U.S. Department of the 
Treasury, ATTN: Deputy Chief Financial Officer, 1500 Pennsylvania 
Avenue, NW., Attention: Metropolitan Square, Room 6228, Washington, DC 
20220. The Deputy Chief Financial Officer will forward the request to 
the appropriate Treasury entity for processing in accordance with this 
subpart C.
    (d) Incomplete certification. A Treasury entity will return an 
incomplete debt certification to the creditor agency with notice that 
the creditor agency must comply with paragraph (b) of this section 
before action will be taken to collect a debt from a payment issued by a 
Treasury entity.
    (e) Review. A Treasury entity is not authorized to review the merits 
of the creditor agency's determination with respect to the amount or 
validity of the debt certified by the creditor agency.
    (f) When Treasury entities will not comply with offset request. A 
Treasury entity will comply with the offset request of another agency 
unless the Treasury entity determines that the offset would not be in 
the best interests of the United States, or would otherwise be contrary 
to law.
    (g) Multiple debts. When two or more creditor agencies are seeking 
offsets from payments made to the same person, or when two or more debts 
are owed to a single creditor agency, the Treasury entity that has been 
asked to offset the payments may determine the order in which the debts 
will be collected or whether one or more debts should be collected by 
offset simultaneously.
    (h) Priority of debts owed to Treasury entity. For purposes of this 
section, debts owed to a Treasury entity generally take precedence over 
debts owed to other agencies. The Treasury entity that has been asked to 
offset the payments may determine whether to pay debts owed to other 
agencies before paying a debt owed to a Treasury entity. The Treasury 
entity that has been asked to offset the payments will determine the 
order in which the debts will be collected based on the best interests 
of the United States.



Sec.  5.21  What does a Treasury entity do upon receipt of a request to
offset the salary of a Treasury entity employee to collect a debt owed
by the employee to another Federal agency?

    (a) Notice to the Treasury employee. When a Treasury entity receives 
proper certification of a debt owed by one of its employees, the 
Treasury entity will begin deductions from the employee's pay at the 
next officially established pay interval. The Treasury entity will send 
a written notice to the employee indicating that a certified debt claim 
has been received from the creditor agency, the amount of the debt 
claimed to be owed by the creditor agency, the date deductions from 
salary will begin, and the amount of such deductions.
    (b) Amount of deductions from Treasury employee's salary. The amount 
deducted under Sec.  5.20(b) of this part will be the lesser of the 
amount of the debt certified by the creditor agency or an amount up to 
15% of the debtor's disposable pay. Deductions shall continue until the 
Treasury entity knows that the debt is paid in full or until otherwise 
instructed by the creditor agency. Alternatively, the amount offset may 
be an amount agreed upon, in writing, by the debtor and the creditor 
agency. See Sec.  5.12(g) (salary offset process).
    (c) When the debtor is no longer employed by the Treasury entity--
(1) Offset of final and subsequent payments. If a Treasury entity 
employee retires or resigns or if his or her employment ends before 
collection of the debt is complete, the Treasury entity will continue to 
offset, under 31 U.S.C. 3716, up to 100% of an employee's subsequent 
payments until the debt is paid or otherwise resolved. Such payments 
include

[[Page 96]]

a debtor's final salary payment, lump-sum leave payment, and other 
payments payable to the debtor by the Treasury entity. See 31 U.S.C. 
3716 and 5 CFR 550.1104(l) and 550.1104(m).
    (2) Notice to the creditor agency. If the employee is separated from 
the Treasury entity before the debt is paid in full, the Treasury entity 
will certify to the creditor agency the total amount of its collection. 
If the Treasury entity is aware that the employee is entitled to 
payments from the Civil Service Retirement and Disability Fund, Federal 
Employee Retirement System, or other similar payments, the Treasury 
entity will provide written notice to the agency making such payments 
that the debtor owes a debt (including the amount) and that the 
provisions of 5 CFR 550.1109 have been fully complied with. The creditor 
agency is responsible for submitting a certified claim to the agency 
responsible for making such payments before collection may begin. 
Generally, creditor agencies will collect such monies through the 
Treasury Offset Program as described in Sec.  5.9(c) of this part.
    (3) Notice to the debtor. The Treasury entity will provide to the 
debtor a copy of any notices sent to the creditor agency under paragraph 
(c)(2) of this section.
    (d) When the debtor transfers to another Federal agency--(1) Notice 
to the creditor agency. If the debtor transfers to another Federal 
agency before the debt is paid in full, the Treasury entity will notify 
the creditor agency and will certify the total amount of its collection 
on the debt. The Treasury entity will provide a copy of the 
certification to the creditor agency. The creditor agency is responsible 
for submitting a certified claim to the debtor's new employing agency 
before collection may begin.
    (2) Notice to the debtor. The Treasury entity will provide to the 
debtor a copy of any notices and certifications sent to the creditor 
agency under paragraph (d)(1) of this section.
    (e) Request for hearing official. A Treasury entity will provide a 
hearing official upon the creditor agency's request with respect to a 
Treasury entity employee. See 5 CFR 550.1107(a).



  Sec. Appendix A to Part 5--Treasury Directive 34-01--Waiving Claims 
            Against Treasury Employees for Erroneous Payments

                        Treasury Directive 34-01

    Date: July 12, 2000.
    Sunset Review: July 12, 2004.
    Subject: Waiving Claims Against Treasury Employees for Erroneous 
Payments.

                               1. Purpose

    This Directive establishes the Department of the Treasury's policies 
and procedures for waiving claims by the Government against an employee 
for erroneous payments of: (1) Pay and allowances (e.g., health and life 
insurance) and (2) travel, transportation, and relocation expenses and 
allowances.

                              2. Background

    a. 5 U.S.C. Sec.  5584 authorizes the waiver of claims by the United 
States in whole or in part against an employee arising out of erroneous 
payments of pay and allowances, travel, transportation, and relocation 
expenses and allowances. A waiver may be considered when collection of 
the claim would be against equity and good conscience and not in the 
best interest of the United States provided that there does not exist, 
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 of the claim.
    b. The General Accounting Office Act of 1996 (Pub. L. 104-316), 
Title I, Sec.  103(d), enacted October 19, 1996, amended 5 U.S.C. Sec.  
5584 by transferring the authority to waive claims for erroneous 
payments exceeding $1,500 from the Comptroller General of the United 
States to the Office of Management and Budget (OMB). OMB subsequently 
redelegated this waiver authority to the executive agency that made the 
erroneous payment. The authority to waive claims not exceeding $1,500, 
which was vested in the head of each agency prior to the enactment of 
Pub. L. 104-316, was unaffected by the Act.
    c. 5 U.S.C. Sec.  5514 authorizes the head of each agency, upon a 
determination that an employee is indebted to the United States for 
debts to which the United States is entitled to be repaid at the time of 
the determination, to deduct up to 15%, or a greater amount if agreed to 
by the employee, from the employee's pay at officially established pay 
intervals in order to repay the debt.

                              3. Delegation

    a. The Deputy Assistant Secretary (Administration), the heads of 
bureaus, the Inspector General, and the Inspector General for

[[Page 97]]

Tax Administration are delegated the authority to waive, in whole or in 
part, a claim of the United States against an employee for an erroneous 
payment of pay and allowances, travel, transportation, and relocation 
expenses and allowances, aggregating less than $5,000 per claim, in 
accordance with the limitations and standards in 5 U.S.C. Sec.  5584.
    b. Treasury's Deputy Chief Financial Officer is delegated the 
authority to waive, in whole or in part, a claim of the United States 
against an employee for an erroneous payment of pay and allowances, 
travel, transportation, and relocation expenses and allowances, 
aggregating $5,000 or more per claim, in accordance with the limitations 
and standards in 5 U.S.C. Sec.  5584.

                               4. Appeals

    a. Requests for waiver of claims aggregating less than $5,000 per 
claim which are denied in whole or in part may be appealed to the Deputy 
Chief Financial Officer for the Department of the Treasury.
    b. Requests for waiver of claims aggregating $5,000 or more per 
claim which are denied in whole or in part may be appealed to the 
Assistant Secretary (Management)/Chief Financial Officer.

                             5. Redelegation

    The Deputy Assistant Secretary (Administration), the heads of 
bureaus, the Inspector General, and the Inspector General for Tax 
Administration may redelegate their respective authority and 
responsibility in writing no lower than the bureau deputy chief 
financial officer unless authorized by Treasury's Deputy Chief Financial 
Officer. Copies of each redelegation shall be submitted to the 
Department's Deputy Chief Financial Officer.

                           6. Responsibilities

    a. The Deputy Assistant Secretary (Administration), the heads of 
bureaus, the Inspector General, and the Inspector General for Tax 
Administration shall:
    (1) Promptly notify an employee upon discovery of an erroneous 
payment to that employee;
    (2) Promptly act to collect the erroneous overpayment, following 
established debt collection policies and procedures;
    (3) Establish time frames for employees to request a waiver in 
writing and for the bureau to review the waiver request. These time 
frames must take into consideration the responsibilities of the United 
States to take prompt action to pursue enforced collection on overdue 
debts, which may arise from erroneous payments.
    (4) Notify employees whose requests for waiver of claims aggregating 
less than $5,000 per claim are denied in whole or in part of the basis 
for the denial and the right to appeal the denial to the Deputy Chief 
Financial Officer of the Department of the Treasury. All such appeals 
shall:
    (a) Be made in writing;
    (b) Specify the basis for the appeal;
    (c) Include a chronology of the events surrounding the erroneous 
payments;
    (d) Include a statement regarding any mitigating factors; and
    (e) Be submitted to the official who denied the waiver request no 
later than 60 days from receipt by the employee of written notice of the 
denial of the waiver; and
    (f) Attach at least the following documents: the employee's original 
request for a waiver; the bureau's denial of the request; any personnel 
actions, e.g., promotions, demotions, step increases, etc. that relate 
to the overpayment.
    (5) Forward to Treasury's Deputy Chief Financial Officer the appeal 
and supporting documentation, the bureau's recommendation as to why the 
appeal should be approved or denied; and a statement as to the action 
taken by the bureau to avoid a recurrence of the error.
    (6) Pay a refund when appropriate if a waiver is granted;
    (7) Fulfill all labor relations responsibilities when implementing 
this directive; and
    (8) Fulfill any other responsibility of the agency imposed by 5 
U.S.C. Sec.  5584, or other applicable laws and regulations.
    b. Treasury's Deputy Chief Financial Officer shall advise employees 
whose requests for waiver of claims aggregating $5,000 or more per claim 
are denied in whole or in part of the basis for the denial and the right 
to appeal the denial to the Assistant Secretary (Management)/Chief 
Financial Officer. All such appeals shall be in the format and contain 
the information and documentation described in subsection 6.a.(4), 
above. The Deputy Chief Financial Officer shall forward to Assistant 
Secretary (Management)/Chief Financial Officer the appeal and supporting 
documentation, his/her recommendation as to why the appeal should be 
approved or denied, and a statement obtained from the bureau from which 
the claim arose as to the action taken by the bureau to avoid a 
recurrence of the error.

                        7. Reporting Requirements

    a. Each bureau, the Deputy Assistant Secretary (Administration) for 
Departmental Offices, the Inspector General, and the Inspector General 
for Tax Administration shall maintain a register of waiver actions 
subject to Departmental review. The register shall cover each fiscal 
year and be prepared by December 31 of each year for the preceding 
fiscal year. The register shall contain the following information:
    (1) The total amount waived by the bureau;
    (2) The number and dollar amount of waiver applications granted in 
full;

[[Page 98]]

    (3) The number and dollar amount of waiver applications granted in 
part and denied in part, and the dollar amount of each;
    (4) The number and dollar amount of waiver applications denied in 
their entirety;
    (5) The number of waiver applications referred to the Deputy Chief 
Financial Officer for initial action or for appeal;
    (6) The dollar amount refunded as a result of waiver action by the 
bureau; and
    (7) The dollar amount refunded as a result of waiver action by the 
Deputy Chief Financial Officer or the Assistant Secretary (Management)/
Chief Financial Officer.
    b. Each bureau, the Deputy Assistant Secretary (Administration) for 
Departmental Offices, the Inspector General, and the Inspector General 
for Tax Administration shall retain a written record of each waiver 
action for 6 years and 3 months. At a minimum, the written record shall 
contain:
    (1) The bureau's summary of the events surrounding the erroneous 
payment;
    (2) Any written comments submitted by the employee from whom 
collection is sought;
    (3) An account of the waiver action taken and the reasons for such 
action; and
    (4) Other pertinent information such as any action taken to refund 
amounts repaid.

                     8. Effect of Request for Waiver

    A request for a waiver of a claim shall not affect an employee's 
opportunity under 5 U.S.C. Sec.  5514(a)(2)(D) for a hearing on the 
determination of the agency concerning the existence or the amount of 
the debt, or the terms of the repayment schedule. A request by an 
employee for a hearing under 5 U.S.C. Sec.  5514(a)(2)(D) shall not 
affect an employee's right to request a waiver of the claim. The 
determination whether to waive a claim may be made at the discretion of 
the deciding official either before or after a final decision is 
rendered pursuant to 5 U.S.C. Sec.  5514(a)(2)(D) concerning the 
existence or the amount of the debt, or the terms of the repayment 
schedule.

                 9. Guidelines for Determining Requests

    a. A request for a waiver shall not be granted if the deciding 
official determines 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 of the claim. There are no exceptions to this rule 
for financial hardship or otherwise.
    (1) ``Fault'' exists if, in light of all the circumstances, it is 
determined that the employee knew or should have known that an error 
existed, but failed to take action to have it corrected. Fault can 
derive from an act or a failure to act. Unlike fraud, fault does not 
require a deliberate intent to deceive. Whether an employee should have 
known about an error in pay is determined from the perspective of a 
reasonable person. Pertinent considerations in finding fault include 
whether:
    (a) The payment resulted from the employee's incorrect, but not 
fraudulent, statement that the employee should have known was incorrect;
    (b) The payment resulted from the employee's failure to disclose 
material facts in the employee's possession which the employee should 
have known to be material; or
    (c) The employee accepted a payment, which the employee knew or 
should have known to be erroneous.
    (2) Every case must be examined in light of its particular facts. 
For example, where an employee is promoted to a higher grade but the 
step level for the employee's new grade is miscalculated, it may be 
appropriate to conclude that there is no fault on the employee's part 
because employees are not typically expected to be aware of and 
understand the rules regarding determination of step level upon 
promotion. On the other hand, a different conclusion as to fault 
potentially may be reached if the employee in question is a personnel 
specialist or an attorney who concentrates on personnel law.
    b. If the deciding official finds 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 of 
the claim, then the request for a waiver must be denied.
    c. 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:
    (1) Whether collection of the claim would cause serious financial 
hardship to the employee from whom collection is sought.
    (2) 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.
    (a) To establish that a valuable right has been relinquished, it 
must be shown that the right was, in fact, valuable; that it cannot be 
regained; and that the action was based chiefly or solely on reliance on 
the overpayment.

[[Page 99]]

    (b) To establish that the employee's position has changed for the 
worse, it must be shown that the decision would not have been made but 
for the overpayment, and that the decision resulted in a loss.
    (c) An example of a ``detrimental reliance'' would be a decision to 
sign a lease for a more expensive apartment based chiefly or solely upon 
reliance on an erroneous calculation of salary, and the funds spent for 
rent cannot be recovered.
    (3) The cost of collecting the claim equals or exceeds the amount of 
the claim;
    (4) The time elapsed between the erroneous payment and discovery of 
the error and notification of the employee;
    (5) Whether failure to make restitution would result in unfair gain 
to the employee;
    (6) Whether recovery of the claim would be unconscionable under the 
circumstances.
    d. The burden is on the employee to demonstrate that collection of 
the claim would be against equity and good conscience and not in the 
best interest of the United States.

                             10. Authorities

    a. 5 U.S.C. Sec.  5584, ``Claims for Overpayment of Pay and 
Allowances, and of Travel, Transportation and Relocation Expenses and 
Allowances.''
    b. 31 U.S.C. Sec.  3711, ``Collection and Compromise.''
    c. 31 U.S.C. Sec.  3716, ``Administrative Offset.''
    d. 31 U.S.C. Sec.  3717, ``Interest and Penalty on Claims.''
    e. 5 CFR Part 550, subpart K, ``Collection by Offset from Indebted 
Government Employees.''
    f. 31 CFR Part 5, subpart B, ``Salary Offset.''
    g. Determination with Respect to Transfer of Functions Pursuant to 
Public Law 104-316, OMB, December 17, 1996.

                            11. Cancellation

    TD 34-01, ``Waiver of Claims for Erroneous Payments,'' dated October 
25, 1995, is superseded.

                     12. Office of Primary Interest

    Office of Accounting and Internal Control.



PART 6_APPLICATIONS FOR AWARDS UNDER THE EQUAL ACCESS TO JUSTICE ACT-
-Table of Contents



                      Subpart A_General Provisions

Sec.
6.1 Purpose of these rules.
6.2 When the Act applies.
6.3 Proceedings covered.
6.4 Eligibility of applicants.
6.5 Standards for awards.
6.6 Allowable fees and other expenses.
6.7 Delegations of authority.

             Subpart B_Information Required From Applicants

6.8 Contents of application.
6.9 Net worth exhibit.
6.10 Documentation of fees and expenses.
6.11 When an application may be filed.

            Subpart C_Procedures for Considering Applications

6.12 Filing and service of documents.
6.13 Answer to application.
6.14 Decision.
6.15 Agency review.
6.16 Judicial review.
6.17 Payment of award.

    Authority: Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C. 
504(c)(1)).

    Source: 47 FR 20765, May 14, 1982, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  6.1  Purpose of these rules.

    The Equal Access to Justice Act, 5 U.S.C. 504 (called ``the Act'' in 
this part), provides for the award of attorney fees and other expenses 
to eligible individuals and entities who are parties to certain 
administrative proceedings (called ``adversary adjudications'') before 
agencies of the Government of the United States. An eligible party may 
receive an award when it prevails over an agency, unless the agency's 
position in the proceeding was substantially justified or special 
circumstances make an award unjust. The rules in this part describe the 
parties eligible for awards and the proceedings that are covered. They 
also explain how to apply for awards, and the procedures and standards 
that the Treasury Department will use to make them.



Sec.  6.2  When the Act applies.

    The Act applies to any adversary adjudication pending before an 
agency 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.

[[Page 100]]



Sec.  6.3  Proceedings covered.

    The Act applies to adversary adjudications required to be conducted 
by the Treasury Department under 5 U.S.C. 554. Within the Treasury 
Department, these proceedings are:
    (a) Bureau of Alcohol, Tobacco and Firearms: (1) Permit proceedings 
under the Federal Alcohol Administration Act (27 U.S.C. 204); (2) Permit 
proceedings under the Internal Revenue Code of 1954 (26 U.S.C. 5171, 
5271, 5713); (3) License and permit proceedings under the Federal 
Explosives Laws (18 U.S.C. 843).
    (b) Comptroller of the Currency:

All proceedings conducted under 12 CFR part 19, subpart A.



Sec.  6.4  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 that it meets all conditions 
of eligibility set out in this subpart and has complied with the 
requirements in Subpart B of this part.
    (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. 1141(a)) with not more than 500 
employees, or
    (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 matter in controversy is primarily 
related 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.
    (f) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual or group of individuals, corporation or other entity that 
directly or indirectly controls or owns a majority of the voting shares 
of another business, or controls in any manner the election of a 
majority of that business's board of directors, trustees, or other 
persons exercising similar functions, will be considered an affiliate of 
that business for purposes of this part, unless the adjudicative officer 
determines that such treatment would be unjust and contrary to the 
purposes of the Act in light of the actual relationship between the 
affiliated entities. In addition, the adjudicative officer may determine 
that financial relationships of the applicant other than those described 
in this paragraph constitute special circumstances that would make an 
award unjust.
    (g) An applicant that participates in a proceeding primarily on 
behalf of one or more other persons or entities that would be ineligible 
is not itself eligible for an award.



Sec.  6.5  Standards for awards.

    (a) A prevailing applicant may receive an award for fees and 
expenses incurred in connection with the final disposition of a 
proceeding, unless (1) the position of the agency was substantially 
justified, or (2) special circumstances make the award unjust. No 
presumption arises that the agency's position was not substantially 
justified simply because the agency did not prevail.
    (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.

[[Page 101]]



Sec.  6.6  Allowable fees and other expenses.

    (a) The following fees and other expenses are allowable under the 
Act:
    (1) Reasonable expenses of expert witnesses;
    (2) Reasonable cost of any study, analysis, engineering report, 
test, or project which the agency finds necessary for the preparation of 
the party's case;
    (3) Reasonable attorney or agent fees.
    (b) The amount of fees awarded will be based upon the prevailing 
market rates for the kind and quality of services furnished, except that
    (1) Compensation for an expert witness will not exceed the highest 
rate paid by the agency for expert witnesses; and
    (2) Attorney or agent fees will not be in excess of $75 per hour.



Sec.  6.7  Delegations of authority.

    The Director, Bureau of Alcohol, Tobacco and Firearms and the 
Comptroller of the Currency are authorized to take final action on 
matters pertaining to the Equal Access to Justice Act, 5 U.S.C. 504, in 
proceedings listed in Sec.  6.3 under the respective bureau or office. 
The Secretary of the Treasury may by order delegate authority to take 
final action on matters pertaining to the Equal Access to Justice Act in 
particular cases to other subordinate officials.



             Subpart B_Information Required From Applicants



Sec.  6.8  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 agency in the proceeding that the applicant 
alleges was not substantially justified. The application shall state the 
basis for the applicant's belief that the position 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 qualifies under 
such section; or
    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
    (c) The application shall itemize 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 agency to consider in determining whether and in 
what amount an award should be made.
    (e) The application shall be signed by the applicant or an 
authorized officer with respect to the eligibility of the applicant and 
by the attorney of the applicant with respect to fees and expenses 
sought. It shall also contain or be accompanied by a written 
verification under oath or under penalty of perjury that the information 
provided in the application is true and correct.

(Approved by the Office of Management and Budget under control number 
1512-0444, for applications filed with the Bureau of Alcohol, Tobacco 
and Firearms)

(5 U.S.C. 552(a) (80 Stat. 383, as amended))

[47 FR 20765, May 14, 1982, as amended at 49 FR 14944, Apr. 16, 1984]



Sec.  6.9  Net worth exhibit.

    (a) Each applicant except a qualified tax-exempt organization, or 
cooperative association must provide with its application a detailed 
exhibit showing the net worth of the applicant and any affiliates (as 
defined in Sec.  6.4(f)) when

[[Page 102]]

the proceeding was initiated. In the case of national banking 
associations, ``net worth'' shall be considered to be the total capital 
and surplus as reported, in conformity with the applicable instructions 
and guidelines, on the bank's last Consolidated Report of Condition 
filed before the initiation of the underlying proceeding.
    (b) The exhibit may be in any form convenient to the applicant that 
provides full disclosure of the applicant's and its affiliates assets 
and liabilities and is sufficient to determine whether the applicant 
qualifies under the standards in this part. The adjudicative officer may 
require an applicant to file additional information to determine its 
eligibility for an award.



Sec.  6.10  Documentation of fees and expenses.

    (a) The application shall be accompanied by full documentation of 
the fees and expenses, including the cost of any study, engineering 
report, test, or project, for which an award is sought.
    (b) The documentation shall include an affidavit from any attorney, 
agent, or expert witness representing or appearing in behalf of the 
party, stating the actual time expended and the rate at which fees and 
other expenses were computed and describing the specific services 
performed.
    (1) The affidavit shall state the services performed. In order to 
establish the hourly rate, the affidavit shall state the hourly rate 
which is billed and paid by the majority of clients during the relevant 
time periods.
    (2) If not hourly rate is paid by the majority of clients because, 
for instance, the attorney or agent represents most clients on a 
contingency basis, the attorney or agent shall provide information about 
two attorneys or agents with similar experience, who perform similar 
work, stating their hourly rate.
    (c) The documentation shall also include a description of any 
expenses for which reimbursement is sought and a statement of the 
amounts paid and payable by the applicant or by any other person or 
entity for the services provided.
    (d) The adjudicative officer may require the applicant to provide 
vouchers, receipts, or other substantiation for any expenses claimed.



Sec.  6.11  When an application may be filed.

    (a) An application may be filed whenever the applicant has prevailed 
in the proceeding but in no case later than 30 days after the agency's 
final disposition of the proceeding.
    (b) If review or reconsideration is sought or taken of a decision as 
to which an applicant believes it has prevailed, proceedings for the 
award of fees shall be stayed pending final disposition of the 
underlying controversy.



            Subpart C_Procedures for Considering Applications



Sec.  6.12  Filing and service of documents.

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



Sec.  6.13  Answer to application.

    (a) Within 30 days after service of an application, counsel 
representing the agency against which an award is sought shall file an 
answer to the application.
    (b) If agency counsel and the applicant believe that the issues in 
the fee application can be settled, they may jointly file a statement of 
their intent to negotiate a settlement. The filing of this statement 
shall extend the time for filing an answer for an additional 60 days and 
further extensions may be granted by the adjudicative officer upon 
request by agency counsel and the applicant.
    (c) The answer shall explain any objections to the award requested 
and identify the facts relied on in support of agency counsel's 
position. If the answer is based on any alleged facts not already in the 
record of the proceeding, agency counsel shall include with the answer 
supporting affidavits.



Sec.  6.14  Decision.

    The adjudicative officer shall issue an initial decision on the 
application

[[Page 103]]

within 60 days after completion of proceedings on the application. The 
decision shall include written findings 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 agency's position was substantially 
justified, whether the applicant unduly protracted the proceedings, or 
whether special circumstances make an award unjust.



Sec.  6.15  Agency review.

    Either the applicant or agency counsel may seek review of the 
initial decision on the fee application, or the agency may decide to 
review the decision on its own initiative. If neither the applicant nor 
agency counsel seeks a review and the agncy does not take review on its 
own initiative, the initial decision on the application shall become a 
final decision of the agency 30 days after it is issued. Whether to 
review a decision is a matter within the discretion of the agency. If 
review is taken, the agency will issue a final decision on the 
application or remand the application to the adjudicative officer for 
further proceedings.



Sec.  6.16  Judicial review.

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



Sec.  6.17  Payment of award.

    An applicant seeking payment of an award shall submit to the agency 
a copy of the agency's final decision granting the award, accompanied by 
a statement that the applicant will not seek review of the decision in 
the United States courts. An applicant shall be paid the amount awarded 
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 7_EMPLOYEE INVENTIONS--Table of Contents



Sec.
7.1 Purpose.
7.2 Responsibilities of the Department.
7.3 Responsibilities of heads of offices.
7.4 Responsibilities of the General Counsel.
7.5 Responsibilities of employees.
7.6 Effect of awards.
7.7 Appeals.
7.8 Delegation.

    Authority: 80 Stat. 379; 5 U.S.C. 301, sec. 6, E.O. 10096; 3 CFR, 
1949-1953 Comp., p. 292, as amended by E.O. 10930; 3 CFR, 1959-1963 
Comp., p. 456.

    Source: 33 FR 10088, July 13, 1968, unless otherwise noted.



Sec.  7.1  Purpose.

    Provisions defining the right, title, and interest of the Government 
in and to an invention made by a Government employee under various 
circumstances and the duties of Government agencies with respect thereto 
are set forth in Executive Order 10096, 15 FR 389, as amended (35 U.S.C. 
266 note). Further definition of the circumstances under which the 
Government will acquire the right to a patent in such an invention or a 
nonexclusive, irrevocable, royalty-free license in the invention, and 
the procedures for the determination of these interests, are set forth 
in the regulations issued under that Executive order by the Patent 
Office, 37 CFR part 100. The purpose of this part 7 is to implement for 
the Treasury Department the foregoing Executive order and regulations of 
the Patent Office by (a) bringing to the attention of Treasury employees 
the law and procedure governing their rights to, and interest in, 
inventions made by them, (b) defining responsibility within the 
Department for making the necessary determinations, and, (c) 
establishing internal procedures for action in conformity with the 
Executive order and the Patent Office regulations.



Sec.  7.2  Responsibilities of the Department.

    The responsibilities of the Treasury Department are to determine 
initially (a) the occurrence of an invention by an employee, (b) his 
rights in the invention and the rights of the Government therein, and 
(c) whether patent protection will be sought in the United States by the 
Department, and to furnish the required reports to the Patent Office.

[[Page 104]]



Sec.  7.3  Responsibilities of heads of offices.

    (a) Heads of bureaus or offices in the Department shall be 
responsible for determining initially whether the results of research, 
development, or other activity of an employee within that bureau or 
office constitute an invention which falls within the purview of 
Executive Order 10096, as amended, and is to be handled in accordance 
with the regulations in this part.
    (b) Heads of bureaus or offices are responsible for obtaining from 
the employee the necessary information and, if the determination under 
paragraph (a) of this section is affirmative, preparing on behalf of the 
bureau or office a description of the invention and its relationship to 
the employee's duties and work assignments.
    (c) Heads of bureaus or offices, after such examination and 
investigation as may be necessary, shall refer to the General Counsel 
all information obtained concerning the invention and such determination 
as the head of the bureau or office has made with respect to the 
character of the activity as an invention. These reports shall include 
any determination as to the giving of a cash award to the employee for 
his performance relating to that invention.



Sec.  7.4  Responsibilities of the General Counsel.

    (a) The General Counsel shall be responsible for determining, 
subject to review by the Commissioner of Patents, the respective rights 
of the Government and of the inventor in and to any invention made by an 
employee of the Department.
    (b) On the basis of the foregoing determination, the General Counsel 
shall determine whether patent protection will be sought by the 
Department for such an invention.
    (c) The General Counsel will prepare and furnish to the Patent 
Office the reports required by the regulations of that Office and will 
serve as the liaison officer between the Department and the Commissioner 
of Patents.



Sec.  7.5  Responsibilities of employees.

    All employees are required to report to the heads of their bureaus 
or offices any result of research, development, or other activity on 
their part which may constitute an invention and the circumstances under 
which this possible invention came into being.



Sec.  7.6  Effect of awards.

    The acceptance by an employee of a cash award for performance which 
constitutes an invention shall, in accordance with 5 U.S.C. 4502(c), 
constitute an agreement that the use by the Government of the idea, 
method, or device for which the award is made does not form the basis of 
any further claim against the Government by the employee, his heirs or 
assigns.



Sec.  7.7  Appeals.

    (a) Any employee who is aggrieved by a determination made by the 
head of his bureau or office under this part may obtain a review of the 
determination by filing an appeal with the General Counsel within 30 
days after receiving the notice of the determination complained of.
    (b) Any employee who is aggrieved by a determination made by the 
General Counsel under this part may obtain a review of the determination 
by filing a written appeal with the Commissioner of Patents within 30 
days after receiving notice of the determination complained of, or 
within such longer period as the Commissioner may provide. The appeal to 
the Commissioner shall be processed in accordance with the provisions in 
the regulations of the Patent Office for an appeal from an agency 
determination.



Sec.  7.8  Delegation.

    The heads of bureaus or offices and the General Counsel may 
delegate, as appropriate, the performance of the responsibilities 
assigned to them under this part.



PART 8_PRACTICE BEFORE THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS-
-Table of Contents



                     Subpart A_General Requirements

Sec.
8.1 Scope.
8.2 Persons who may practice.
8.3 Conference and practice requirements.
8.4 Director of Practice.

[[Page 105]]

8.5 Records.
8.6 Special orders.

                          Subpart B_Definitions

8.11 Meaning of terms.

                     Subpart C_Enrollment Procedures

8.21 Eligibility for enrollment.
8.22 Application for enrollment.
8.23 Denial of enrollment; appeal.
8.24 Enrollment cards.
8.25 Renewal of enrollment card.
8.26 Change in enrollment.
8.27 Enrollment registers.
8.28 Termination of enrollment.
8.29 Limited practice without enrollment.

         Subpart D_Duties and Restrictions Relating to Practice

8.31 Furnishing of information.
8.32 Prompt disposition of pending matters.
8.33 Accuracy.
8.34 Knowledge of client's omission.
8.35 Assistance from disbarred or suspended persons and former Treasury 
          employees.
8.36 Practice by partners of Government employees.
8.37 Practice by former Government employees.
8.38 Notaries.
8.39 Fees.
8.40 Conflicting interests.
8.41 Solicitation.
8.42 Practice of law.

                   Subpart E_Disciplinary Proceedings

8.51 Authority to disbar or suspend.
8.52 Disreputable conduct.
8.53 Initiation of disciplinary proceedings.
8.54 Conferences.
8.55 Contents of complaint.
8.56 Service of complaint and other papers.
8.57 Answer.
8.58 Supplemental charges.
8.59 Proof; variance; amendment of pleadings.
8.60 Motions and requests.
8.61 Representation.
8.62 Administrative Law Judge.
8.63 Hearings.
8.64 Evidence.
8.65 Depositions.
8.66 Transcript.
8.67 Proposed findings and conclusions.
8.68 Decision of Administrative Law Judge.
8.69 Appeal to the Secretary.
8.70 Decision of the Secretary.
8.71 Effect of disbarment or suspension.
8.72 Petition for reinstatement.

    Authority: Sec. 3, 23 Stat. 258 (31 U.S.C. 1026); 5 U.S.C. 301, 500, 
551-559; and Reorganization Plan No. 26 of 1950, 15 FR 4935, 64 Stat. 
1280, as amended.

    Source: 42 FR 33026, June 29, 1977, unless otherwise noted.



                     Subpart A_General Requirements



Sec.  8.1  Scope.

    This part contains rules governing the recognition of attorneys, 
certified public accountants, enrolled practitioners, and other persons 
representing clients before the Bureau of Alcohol, Tobacco and Firearms.



Sec.  8.2  Persons who may practice.

    (a) Attorneys. Any attorney who is not currently under suspension or 
disbarment from practice before the Bureau of Alcohol, Tobacco and 
Firearms, may practice before the Bureau upon filing a written 
declaration with the Bureau, that he or she is currently qualified as an 
attorney and is authorized to represent the particular party on whose 
behalf he or she acts.
    (b) Certified public accountants. Any certified public accountant 
who is not currently under suspension or disbarment before the Bureau of 
Alcohol, Tobacco and Firearms, may practice before the Bureau upon 
filing a written declaration with the Bureau, that he or she is 
currently qualified as a certified public accountant and is authorized 
to represent the particular party on whose behalf he or she acts.
    (c) Enrollment practitioners. Any person enrolled as a practitioner 
under the provisions of subpart C of this part and who is not under 
suspension or disbarment from enrollment may practice before the Bureau.
    (d) Limited practitioners. Any person qualified for limited practice 
without enrollment under the provisions of Sec.  8.29 may practice 
before the Bureau.
    (e) Restrictions on Government officers and employees. Any officer 
or employee of the United States in the executive, legislative, or 
judicial branch of the Government, or in any agency of the United 
States, including the District of Columbia, who is otherwise eligible to 
practice under the provisions of this part, may represent parties before 
the Bureau when doing so in the conduct of his or her official duties. A 
Government officer or employee may not otherwise practice before the 
Bureau except that, subject to the requirements

[[Page 106]]

of 18 U.S.C. 205, he or she may represent a member of his or her 
immediate family or a person or estate for which he or she serves as 
guardian, executor, administrator, trustee or other personal fiduciary. 
Member of Congress or Resident Commissioners (elect or serving) may not 
practice before the Bureau in connection with any matter for which they 
directly or indirectly seek any compensation.
    (f) Restrictions on State officers and employees. No officer or 
employee of any State, or subdivision thereof, whose official 
responsibilities require him or her to pass upon, investigate, or deal 
with any State law or regulation concerning alcohol, tobacco, firearms, 
explosives matters or wagering, may practice before the Bureau if his or 
her official responsibility may disclose pertinent facts or information 
relating to matters administered by the Bureau.
    (g) Customhouse brokers. Customhouse brokers, licensed by the 
Commissioner of Customs according to 19 CFR part 111, may represent a 
party for whom they have acted as a customhouse broker before the Bureau 
with respect to matters relating to the importation or exportation of 
merchandise under customs or intenal revenue laws.

(Approved by the Office of Management and Budget under control number 
1512-0418)

(18 U.S.C. 203, 205; 5 U.S.C. 552(a) (80 Stat. 383, as amended))

[42 FR 33026, June 29, 1977, as amended at 49 FR 14944, Apr. 16, 1984]



Sec.  8.3  Conference and practice requirements.

    Conference and practice requrements of the Bureau of Alcohol, 
Tobacco and Firearms, including requirements for powers of attorney are 
set forth in:
    (a) 26 CFR part 601, subpart E (or those regulations as recodified 
in 27 CFR part 71 subsequent to the effective date of these regulations, 
31 CFR part 8) with respect to all representations before the Bureau 
except those concerning license or permit proceedings;
    (b) 27 CFR part 200 with respect to proceedings concerning permits 
issued under the Federal Alcohol Administration Act or the Internal 
Revenue Code;
    (c) 27 CFR 47.44 with respect to proceedings concerning licenses 
issued under the Arms Export Control Act (22 U.S.C. 2778);
    (d) 27 CFR part 178, subpart E, with respect to proceedings 
concerning licenses issued under the Gun Control Act of 1968 (18 U.S.C. 
Chapter 44); and
    (e) 27 CFR part 181, subpart E, with respect to proceedings 
concerning licenses or permits issued under the Organized Crime Control 
Act of 1970 (18 U.S.C. Chapter 40).



Sec.  8.4  Director of Practice.

    (a) Appointment. The Secretary shall appoint the Director of 
Practice. In the event of the absence of the Director of Practice or a 
vacancy in that office, the Secretary shall designate an officer or 
employee of the Treasury Department to act as Director of Practice.
    (b) Duties. The Director of Practice, Office of the Secretary of the 
Treasury, shall: Act upon appeals from decisions of the Director denying 
applications for enrollment to practice before the Bureau; institute and 
provide for the conduct of disciplinary proceedings relating to 
attorneys, certified public accountants, and enrolled practitioners; 
make inquiries with respect to matters under his or her jurisdiction; 
and perform other duties as are necessary or appropriate to carry out 
his or her functions under this part or as are prescribed by the 
Secretary.



Sec.  8.5  Records.

    (a) Availability. Registers of all persons admitted to practice 
before the Bureau, and of all persons disbarred or suspended from 
practice, which are required to be maintained by the director under the 
provisions of Sec.  8.27, will be available for public inspection at the 
Office of the Director. Other records may be disclosed upon specific 
request in accordance with the disclosure regulations of the Bureau (27 
CFR part 71) and the Office of the Secretary.
    (b) Disciplinary proceedings. The Director, may grant a request by 
an attorney, certified public accountant, or enrolled practitioner to 
make public a hearing in a disciplinary proceeding, conducted under the 
provisions of subpart E of this part concerning the attorney, certified 
public accountant or enrolled practioner, and to make the record of the 
proceeding available for

[[Page 107]]

public inspection by interested persons, if an agreement is reached by 
stipulation in advance to prevent disclosure of any information which is 
confidential, in accordance with applicable laws and regulations.



Sec.  8.6  Special orders.

    The secretary reserves the power to issue special orders as he or 
she may deem proper in any cases within the scope of this part.



                          Subpart B_Definitions



Sec.  8.11  Meaning of terms.

    As used in this part, terms shall have the meaning given in this 
section. Words in the plural shall include the singular, and vice versa. 
The terms include and including do not exclude things not enumerated 
which are in the same general class.
    Administrative Law Judge. The person appointed pursuant to 5 U.S.C. 
3105, designated to preside over any administrative proceedings under 
this part.
    Attorney. A person who is a member in good standing of the bar of 
the highest court of any State, possession, territory, Commonwealth, or 
the District of Columbia.
    Bureau. The Bureau of Alcohol, Tobacco and Firearms, the Department 
of the Treasury, Washington, DC 20226.
    Certified public accountant. Any person who is qualified to practice 
as a certified public accountant in any State, possession, territory, 
Commonwealth, or the District of Columbia.
    CFR. The Code of Federal Regulations.
    Director. The Director, Bureau of Alcohol, Tobacco and Firearms, the 
Department of the Treasury, Washington, DC.
    Enrolled practitioner. Any person enrolled to practice before the 
Bureau of Alcohol, Tobacco and Firearms pursuant to Subpart C of this 
part.
    Practice before the Bureau. This comprehends all matters connected 
with presentation to the Bureau or any of its officers or employees 
relating to a client's rights, privileges or liabilities under laws or 
regulations administered by the Bureau. Presentations include the 
preparation and filing of necessary documents, correspondence with and 
communications to the Bureau, and the representation of a client at 
conferences, hearings, and meetings. Preparation of a tax return, 
appearance of an individual as a witness for any party, or furnishing 
information at the request of the Bureau of any of its officers or 
employees is not considered practice before the Bureau.
    Secretary. The Secretary of the Treasury.
    U.S.C. The United States Code.



                     Subpart C_Enrollment Procedures



Sec.  8.21  Eligibility for enrollment.

    (a) General qualifications. The Director may grant enrollment to 
practice to any person who has not engaged in conduct which would 
justify the disbarment or suspension of any attorney, certified public 
accountant, or enrolled practioner. Each person shall demonstrate to the 
satisfaction of the Director that he or she possesses the necessary 
technical qualifications to enable him or her to render valuable service 
before the Bureau, and that he or she is otherwise competent to advise 
and assists in the presentation of matters before the Bureau.
    (b) Technical qualifications. The Director may grant enrollment to 
practice only to persons possessing technical knowledge of the laws and 
regulations administered by the Bureau.
    (1) Minimum criteria required of an enrolled practioner will consist 
of: 5 years employment with the Treasury Department in a responsible 
position which would familiarize the person with applicable laws and 
regulations; or 5 years employment in a regulated industry in a 
responsible position which would familiarize the person with applicable 
laws and regulations; or possession of a law degree; or other 
significant experience such as the prior respresentation of persons 
before the Internal Revenue Service or the Bureau of Alcohol, Tobacco 
and Firearms.
    (2) An enrolled paractioner may demonstrate technical knowledge in 
one or more of the several areas of laws and regulations administered by 
the Bureau (alcohol, tobacco firearms, or explosives matters).

[[Page 108]]

    (c) Natural persons. Enrollment to practice may only be granted to 
natural persons who have become 18 years of age.
    (d) Attorneys, certified public accountants. Enrollment if not 
available to persons who are attorneys or certified public accountants 
who qualify to practice without enrollment under Sec.  8.2 (a) or (b).

[42 FR 33026, June 29, 1977; 42 FR 36455, July 15, 1977]



Sec.  8.22  Application for enrollment.

    (a) Information to be furnished. An applicant for enrollment to 
practice shall state his or her name, address, and business address, 
citizenship, and age on the application. The applicant shall also state 
if he or she has ever been suspended or disbarred as an attorney or 
certified public accountant, or if the applicant's right to practice has 
ever been revoked by any court, commission, or administrative agency in 
any jurisdiction. The applicant shall set forth his or her technical 
qualifications as required by Sec.  8.21(b) which enable him or her to 
render valuable service before the Bureau. The applicant shall indicate 
which area or areas of Bureau matters in which he or she desires to 
practice (alcohol, tobacco, firearms, or explosives matters).
    (b) Fee. Each application for enrollment will be accompanied by a 
check or money order in the amount of $25, payable to the Bureau of 
Alcohol, Tobacco and Firearms. This fee will be retained by the United 
States whether or not the applicant is granted enrollment. Agents who 
are enrolled to practice before the Internal Revenue Service prior to 
September 27, 1977, need not include this fee and should indicate their 
enrollment number on the application.
    (c) Execution under oath. All applications for enrollment will be 
executed under oath or affirmation.
    (d) Filing. Applications for enrollment will be filed with the 
Assistant Director, Regulatory Enforcement, Bureau of Alcohol, Tobacco 
and Firearms, 1200 Pensylvania Avenue NW., Washington, DC 20226.
    (e) Additional information. The Director, as a condition to 
consideration for enrollment, may require the applicant to file 
additional information as necessary to determine if the applicant is 
qualified. The Director shall, upon written request, afford an applicant 
the opportunity to be heard with respect to his or her application for 
enrollment.

(Approved by the Office of Management and Budget under control number 
1512-0418)

(Sec. 501, Pub. L. 82-137, 65 Stat. 290 (31 U.S.C. 483a); 5 U.S.C. 
552(a) (80 Stat. 383, as amended))

[42 FR 33026, June 29, 1977; 42 FR 36455, July 15, 1977, as amended at 
49 FR 14944, Apr. 16, 1984]



Sec.  8.23  Denial of enrollment; appeal.

    (a) The Director, in denying an application for enrollment, shall 
inform the applicant as to the reasons. The applicant may, within 30 
days after receipt of the notice of denial, file a written appeal 
together with reasons in support thereof, with the Director of Practice. 
The Director of Practice shall render a decision on the appeal as soon 
as practicable.
    (b) An applicant may, within 30 days after receipt of the decision 
of the Director of Practice in sustaining a denial of enrollment, appeal 
the decision to the Secretary.



Sec.  8.24  Enrollment cards.

    The Director shall issue an enrollment card to each practitioner who 
is enrolled to practice before the Bureau. Each enrollment card is valid 
for a period of 5 years as long as the holder remains enrolled and in 
good standing before the Bureau. Unless advised to the contrary by the 
Director, any officer or employee of the Bureau may consider the holder 
of an unexpired enrollment card to be authorized to practice before the 
Bureau in the subject area or areas indicated upon the card (alcohol, 
tobacco, firearms, or explosives matters).



Sec.  8.25  Renewal of enrollment card.

    (a) Period of renewal. An enrolled practitioner may apply for 
renewal of his or her enrollment card during a 12-month period prior to 
the expiration of the enrollment card.
    (b) Application. Each enrolled practitioner applying for a renewal 
of enrollment shall apply to the Director. The

[[Page 109]]

enrolled practitioner shall include in the application all information 
required by Sec.  8.22 except information relating to technical 
qualifications unless the enrolled practitioner is applying for 
enrollment in a subject area or areas in which he or she was not 
previously qualified to practice.
    (c) Fee. Each application for renewal of enrollment will be 
accompanied by a check or money order in the amount of $5, payable to 
the Bureau of Alcohol, Tobacco and Firearms.

(Approved by the Office of Management and Budget under control number 
1512-0418)

(5 U.S.C. 552(a) (80 Stat. 383, as amended))

[42 FR 33026, June 29, 1977, as amended at 49 FR 14944, Apr. 16, 1984]



Sec.  8.26  Change in enrollment.

    (a) Change in area of practice. At any time during a period of 
enrollment, an enrolled practitioner may apply to practice in a subject 
area or areas in which he or she was not previously qualified to 
practice (alcohol, tobacco, firearms, or explosives matters).
    (b) Application. Each enrolled practitioner applying for a change in 
enrollment shall apply to the Director. The enrolled practitioner shall 
include in the application all information required by Sec.  8.22 but 
shall include information relating to technical qualifications only in 
those additional subject areas in which he or she is applying to 
practice.
    (c) Fee. Each application for change in enrollment will be 
accompanied by a check or money order in the amount of $5, payable to 
the Bureau of Alcohol, Tobacco and Firearms.

(Approved by the Office of Management and Budget under control number 
1512-0418)

(5 U.S.C. 552(a) (80 Stat. 383, as amended))

[42 FR 33026, June 29, 1977, as amended at 49 FR 14944, Apr. 16, 1984]



Sec.  8.27  Enrollment registers.

    The Director shall maintain, for public inspection, a register of 
all persons enrolled to practice before the Bureau and the subject areas 
in which each person is enrolled to practice, a register of all persons 
disbarred or suspended from practice, and a register of all persons 
whose applications for enrollment before the Bureau have been denied.



Sec.  8.28  Termination of enrollment.

    (a) Attorneys, certified public accountants. The enrollment of a 
practitioner to whom an enrollment card has been issued will terminate 
when that person becomes eligible to practice without enrollment under 
Sec.  8.2 (a) or (b), and that person shall surrender his or her 
enrollment card to the Director for cancellation.
    (b) Expiration of enrollment. The enrollment of any person will 
automatically terminate after the date indicated on the enrollment card 
unless, during the 12-month period prior to the expiration date, that 
person applies for renewal of enrollment with the Director as provided 
in Sec.  8.25. In this case, the person may continue to practice before 
the Bureau until his or her application has been finally determined.



Sec.  8.29  Limited practice without enrollment.

    (a) General. Individuals may appear on their own behalf and may 
otherwise appear without enrollment, providing they present satisfactory 
identification, in the following classes of cases:
    (1) An individual may represent another individual who is his or her 
regular full-time employer, may represent a partnership of which he or 
she is a member or a regular full-time employee, of may represent 
without compensation a member of his or her immediate family.
    (2) Corporations (including parent corporations, subsidiaries or 
affiliated corporations), trusts, estates, associations, or organized 
groups may be represented by bona fide officers or regular full-time 
employees.
    (3) Trusts, receiverships, guardianships, or estates may be 
represented by their trustees, receivers, guardians, administrators, 
executors, or their regular full-time employees.
    (4) Any government unit, agency, or authority may be represented by 
an officer or regular employee in the course of his or her official 
duties.
    (5) Unenrolled persons may participate in rulemaking as provided in 
5 U.S.C. 553.

[[Page 110]]

    (b) Special appearances. The Director, subject to conditions he or 
she deems appropriate, may authorize any person to represent a party 
without enrollment, for the purpose of a particular matter.



         Subpart D_Duties and Restrictions Relating to Practice



Sec.  8.31  Furnishing of information.

    (a) To the Bureau. No attorney, certified public accountant, or 
enrolled practitioner may neglect or refuse promptly to submit records 
or information in any matter before the Bureau, upon proper and lawful 
request by an authorized officer or employee of the Bureau, or may 
interfere, or attempt to interfere, with any proper and lawful effort by 
the Bureau or its officers or employees, to obtain the requested record 
or information, unless he or she believes in good faith and on 
reasonable grounds that the record or information is privileged or that 
the request for, or effort to obtain, that record or information is of 
doubtful legality.
    (b) To the Director of Practice. It is the duty of an attorney or 
certified public accountant, who practices before the Bureau, or 
enrolled practitioner when requested by the Director of Practice, to 
provide the Director of Practice with any information he or she may have 
concerning violation of the regulations in this part by any person, and 
to testify thereto in any proceeding instituted under this part for the 
disbarment or suspension of an attorney, certified public accountant, or 
enrolled practitioner, unless he or she believes in good faith and on 
reasonable grounds that that information is privileged or that the 
request is of doubtful legality.



Sec.  8.32  Prompt disposition of pending matters.

    No attorney, certified public accountant, or enrolled practitioner 
may unreasonably delay the prompt disposition of any matter before the 
Bureau.



Sec.  8.33  Accuracy.

    Each attorney, certified public accountant, and enrolled 
practitioner shall exercise due diligence in:
    (a) Preparing or assisting in the preparation of, approving, and 
filing returns, documents, affidavits, and other papers relating to 
Bureau matters;
    (b) Determining the correctness of any representations made by him 
or her to the Bureau; and
    (c) Determining the correctness of any information which he or she 
imparts to a client with reference to any matter administered by the 
Bureau.



Sec.  8.34  Knowledge of client's omission.

    Each attorney, certified public accountant, or enrolled practitioner 
who knows that a client has not complied with applicable law, or has 
made an error in or omission from any document, affidavit, or other 
paper which the law requires the client to execute, shall advise the 
client promptly of the fact of such noncompliance, error, or omission.



Sec.  8.35  Assistance from disbarred or suspended persons and former
Treasury employees.

    No attorney, certified public accountant or enrolled practitioner 
shall, in practice before the Bureau, knowingly and directly or 
indirectly:
    (a) Employ or accept assistance from any person who is under 
disbarment or suspension from practice before any agency of the Treasury 
Department;
    (b) Accept employment as associate, correspondent, or subagent from, 
or share fees with, any such person;
    (c) Accept assistance in a specific matter from any person who 
participated personally and substantially in the matter as an employee 
of the Treasury Department.

[44 FR 47059, Aug. 10, 1979]



Sec.  8.36  Practice by partners of Government employees.

    No partner of an officer or employee of the executive branch of the 
U.S. Government, of any independent agency of the United States, or of 
the District of Columbia, may represent anyone in any matter 
administered by the Bureau in which the Government employee participates 
or has participated personally and substantially as a Government 
employee, or which is the subject of that employee's official 
responsibility.

[[Page 111]]



Sec.  8.37  Practice by former Government employees.

    (a) Violation of law. No former officer or employee of the U.S. 
Government, of any independent agency of the United States, or of the 
District of Columbia, may represent anyone in any matter administered by 
the Bureau if the representation would violate any of the laws of the 
United States.
    (b) Personal and substantial participation. No former officer or 
employee of the executive branch of the U.S. Government, of any 
independent agency of the United States, or of the District of Columbia, 
may represent anyone with repect to any matter under the administration 
of the Bureau, if he or she participated personally and substantially in 
that matter as a Government employee.
    (c) Official responsibility. No former officer or employee of the 
executive branch of the U.S. Government, of any indepenednt agency of 
the United States, or of the District of Columbia, may within one year 
after his or her employment has ceased, appear personally as a 
practitioner before the Bureau with respect to any matter administered 
by the Bureau if that representation involves a specific matter under 
the former employee's official responsibility as a Government employee, 
within a one-year period prior to the termination of that 
responsibility.
    (d) Aid or assistance. No former officer or employee of the Bureau, 
who is eligible to practice before the Bureau, may aid or assist any 
person in the representation of a specific matter in which the former 
officer or employee participated personally and substantially as an 
officer or employee of the Bureau.

(18 U.S.C. 207)



Sec.  8.38  Notaries.

    No attorney, certified public accountant, or enrolled practitioner 
may, with respect to any matter administered by the Bureau, take 
acknowledgements, administer oaths, certify papers, or perform any 
official act in connection with matters in which he or she is employed 
as counsel, attorney, or practioner, or in which he or she may be in any 
way interested before the Bureau.

(26 Op. Atty. Gen. 236)



Sec.  8.39  Fees.

    No attorney, certified public accountant, or enrolled practitioner 
may charge an unconscionable fee for representing a client in any matter 
before the Bureau.



Sec.  8.40  Conflicting interests.

    No attorney, certified public accountant, or enrolled practitioner 
may represent conflicting interests in practice before the Bureau, 
except by express consent of all directly interested parties after full 
disclosure has been made.



Sec.  8.41  Solicitation.

    (a) Advertising and solicitation restrictions. (1) No attorney, 
certified public accountant or enrolled practitioner shall, with respect 
to any Bureau matter, in any way use or participate in the use of any 
form of public communication containing a false, fraudulent, misleading, 
deceptive, unduly influencing, coercive or unfair statement or claim. 
For the purposes of this subsection, the prohibition includes, but is 
not limited to, statements pertaining to the quality of services 
rendered unless subject to factual verification, claims of specialized 
expertise not authorized by State or Federal agencies having 
jurisdiction over the practitioner, and statements or suggestions that 
the ingenuity and/or prior record of a representative rather than the 
merit of the matter are principal factors likely to determine the result 
of the matter.
    (2) No attorney, certified public accountant or enrolled 
practitioner shall make, directly or indirectly, an uninvited 
solicitation of employment, in matters related to the Bureau. 
Solicitation includes, but is not limited to, in-person contacts, 
telephone communications, and personal mailings directed to the specific 
circumstances unique to the recipient. This restriction does not apply 
to: (i) Seeking new business from an existing or former client in a 
related matter; (ii) solicitation by mailings, the contents of which are

[[Page 112]]

designed for the general public; or (iii) non-coercive in-person 
solicitation by those eligible to practice before the Bureau while 
acting as an employee, member, or officer of an exempt organization 
listed in sections 501(c) (3) or (4) of the Internal Revenue Code of 
1954 (26 U.S.C.).
    (b) Permissible advertising. (1) Attorneys, certified public 
accountants and enrolled practitioners may publish, broadcast, or use in 
a dignified manner through any means of communication set forth in 
paragraph (d) of this section:
    (i) The name, address, telephone number, and office hours of the 
practitioner or firm.
    (ii) The names of individuals associated with the firm.
    (iii) A factual description of the services offered.
    (iv) Acceptable credit cards and other credit arrangements.
    (v) Foreign language ability.
    (vi) Membership in pertinent, professional organizations.
    (vii) Pertinent professional licenses.
    (viii) A statement that an individual's or firm's practice is 
limited to certain areas.
    (ix) In the case of an enrolled practitioner, the phrase ``enrolled 
to practice before the Bureau of Alcohol, Tobacco and Firearms.''
    (x) Other facts relevant to the selection of a practitioner in 
matters related to the Bureau which are not prohibited by these 
regulations.
    (2) Attorneys, certified public accountants and enrolled 
practitioners may use, to the extent they are consistent with the 
regulations in this section, customary biographical insertions in 
approved law lists and reputable professional journals and directories, 
as well as professional cards, letterheads and announcements: Provided, 
That (i) attorneys do not violate applicable standards of ethical 
conduct adopted by the American Bar Association, (ii) certified public 
accountants do not violate applicable standards of ethical conduct 
adopted by the American Institute of Certified Public Accountants, and 
(iii) enrolled practitioners do not violate applicable standards of 
ethical conduct adopted by the National Society of Public Accountants.
    (c) Fee information. (1) Attorneys, certified public accountants and 
enrolled practitioners may disseminate the following fee information:
    (i) Fixed fees for specific routine services.
    (ii) Hourly rates.
    (iii) Range of fees for particular services.
    (iv) Fee charged for an initial consultation.
    (2) Attorneys, certified public accountants and enrolled 
practitioners may also publish the availability of a written schedule of 
fees.
    (3) Attorneys, certified public accountants and enrolled 
practitioners shall be bound to charge the hourly rate, the fixed fee 
for specific routine services, the range of fees for particular 
services, or the fee for an initial consultation published for a 
reasonable period of time, but no less than thirty days from the last 
publication of such hourly rate or fees.
    (d) Communications. Communications, including fee information, shall 
be limited to professional lists, telephone directories, print media, 
permissible mailings as provided in these regulations, radio and 
television. In the case of radio and television broadcasting, the 
broadcast shall be pre-recorded and the practitioner shall retain a 
recording of the actual audio transmission.
    (e) Improper associations. An attorney, certified public accountant 
or enrolled practitioner may, in matters related to the Bureau, employ 
or accept employment or assistance as an associate, correspondent, or 
subagent from, or share fees with, any person or entity who, to the 
knowledge of the practitioner, obtains clients or otherwise practices in 
a manner forbidden under this section: Provided, That an attorney, 
certified public accountant or enrolled practitioner does not, directly 
or indirectly, act or hold himself out as authorized to practice before 
the Bureau in connection with that relationship. Nothing herein shall 
prohibit an attorney, certified public accountant, or enrolled 
practitioner from practice before the Bureau in a capacity other than 
that described above.

[44 FR 47060, Aug. 10, 1979]

[[Page 113]]



Sec.  8.42  Practice of law.

    Nothing in the regulations in this part may be construed as 
authorizing persons not members of the bar to practice law.



                   Subpart E_Disciplinary Proceedings



Sec.  8.51  Authority to disbar or suspend.

    The Secretary, after due notice and opportunity for hearing, may 
suspend or disbar from practice before the Bureau any attorney, 
certified public accountant, or enrolled practitioner shown to be 
incompetent, disreputable or who refuses to comply with the rules and 
regulations in this part or who shall, with intent to defraud, in any 
manner willfully and knowingly deceive, mislead, or threaten any client 
or prospective client, by word, circular, letter, or by advertisement.

(Sec. 3, 23 Stat. 258 (31 U.S.C. 1026))



Sec.  8.52  Disreputable conduct.

    Disreputable conduct for which an attorney, certified public 
accountant, or enrolled practitioner may be disbarred or suspended from 
practice before the Bureau includes, but is not limited to:
    (a) Conviction of any criminal offense under the revenue laws of the 
United States; under any other law of the United States which the Bureau 
enforces pursuant to Treasury Department Order No. 221 (37 FR 11696) 
effective July 1, 1972; or for any offense involving dishonesty or 
breach of trust.
    (b) Giving false or misleading information, or participating in any 
way in the giving of false or misleading information, to the Bureau or 
any officer or employee thereof, or to any tribunal authorized to pass 
upon matters administered by the Bureau in connection with any matter 
pending or likely to be pending before them, knowing the information to 
be false or misleading. Facts or other matters contained in testimony, 
Federal tax returns, financial statements, applications for enrollment, 
affidavits, declarations, or any other document or statement, written or 
oral, are included in the term ``information''.
    (c) Solicitation of employment as prohibited under Sec.  8.41, the 
use of false or misleading representations with intent to deceive a 
client or a prospective client in order to procure employment, or 
intimating that the practitioner is able improperly to obtain special 
consideration or action from the Bureau or an officer or employee 
thereof.
    (d) Willfully failing to make a Federal tax return in violation of 
the revenue laws of the United States, or evading, attempting to evade, 
or participating in any way in evading or attempting to evade any 
Federal tax or payment thereof; knowingly counseling or suggesting to a 
client or prospective client an illegal plan to evade Federal taxes or 
payment thereof, or concealing assets of himself or herself, or of 
another in order to evade Federal taxes or payment thereof.
    (e) Misappropriation of, or failure properly and promptly to remit 
funds received from a client for the purpose of payment of taxes or 
other obligations due the United States.
    (f) Directly or indirectly attempting to influence, or offering or 
agreeing to attempt to influence, the official action of any officer or 
employee of the Bureau by the use of threats, false accusations, duress 
or coercion, by the offer of any special inducement or promise of 
advantage or by the bestowing of any gift, favor, or thing of value.
    (g) Disbarment or suspension from practice as an attorney or 
certified public accountant by any duly constituted authority of any 
State, possession, Commonwealth, the District of Columbia, or by any 
Federal court of record.
    (h) Disbarment or suspension from practice as an attorney, certified 
public accountant, or other person admitted to practice before the 
Internal Revenue Service.
    (i) Knowingly aiding and abetting another person to practice before 
the Bureau during a period of suspension, disbarment, or ineligibility 
of the other person. Maintaining a partnership for the practice of law, 
accountancy, or other related professional service with a person who is 
under disbarment from practice before the Bureau or the

[[Page 114]]

Intenal Revenue Service is presumed to be a violation of this provision.
    (j) Contemptuous conduct in connection with practice before the 
Bureau, including the use of abusive language, making false accusations 
and statements knowing them to be false, or circulating or publishing 
malicious or libelous matter.
    (k) Willful violatin of any of the regulations contained in this 
part.

[42 FR 33026, June 29, 1977; 42 FR 36455, July 15, 1977]



Sec.  8.53  Initiation of disciplinary proceedings.

    (a) Receipt of information. If an officer or employee of the Bureau 
has reason to believe that an attorney, certified public accountant, or 
enrolled practitioner has violated any of the provisions of this part or 
engaged in any disreputable conduct as defined in Sec.  8.52, the 
employee shall promptly make a report thereof which will be forwarded to 
the Director of Practice. Any other person possessing information 
concerning violations or disreputable conduct may make a report thereof 
to the Director of Practice or to any officer or employee of the Bureau.
    (b) Institution of proceeding. When the Director of Practice has 
reason to believe that any attorney, certified public accountant, or 
enrolled practitioner has violated any provisions of the laws or 
regulations governing practice before the Bureau, he or she may 
reprimand the person or institute a proceeding for the disbarment or 
suspension of that person. The proceeding will be instituted by a 
complaint which names the respondent and is signed by the Director of 
Practice and filed in his or her office. Except in cases of willfulness, 
or when time, the nature of the proceeding, or the public interest does 
not permit, the Director of Practice may not institute a proceeding 
until he or she has called to the attention of the proposed respondent, 
in writing, facts or conduct which warrant institution of a proceeding, 
and has accorded the proposed respondent the opportuity to demonstrate 
or achieve compliance with all lawful requirements.



Sec.  8.54  Conferences.

    (a) General. The Director of Practice may confer with an attorney, 
certified public accountant, or enrolled practioner concerning 
allegations of misconduct whether or not a proceeding for disbarment or 
suspension has been instituted. If a conference results in a stipulation 
in connection with a proceeding in which that person is the respondent, 
the stipulation may be entered in the record at the instance of either 
party to the proceeding.
    (b) Resignation or voluntary suspension. An attorney, certified 
public accountant, or enrolled practitioner, in order to avoid the 
institution or conclusion of a disbarment or suspension proceeding, may 
offer his or her consent to suspension from practice before the Bureau. 
An enrolled practitioner may also offer a resignation. The Director of 
Practice, at his or her discretion, may accept the offered resignation 
of an enrolled practitioner and may suspend an attorney, certified 
public accountant, or enrolled practitioner in accordance with the 
consent offered.



Sec.  8.55  Contents of complaint.

    (a) Charges. A complaint will give a plain and concise description 
of the allegations which constitute the basis for the proceeding. A 
complaint will be deemed sufficient if it fairly informs the respondent 
of the charges to that he or she is able to prepare a defense.
    (b) Demand for answer. The complaint will give notification of the 
place and time prescribed for the filing of an answer by the respondent; 
that time will be not less than 15 days from the date of service of the 
complaint. Notice will be given that a decision by default may be 
rendered against the respondent if the complaint is not answered as 
required.



Sec.  8.56  Service of complaint and other papers.

    (a) Complaint. A copy of the complaint may be served upon the 
respondent by certified mail or by first-class mail. The copy of the 
complaint may be delivered to the respondent or the respondent's 
attorney or agent of record either in person or by leaving it at the 
office or place of business of the

[[Page 115]]

respondent, attorney or agent, or the complaint may be delivered in any 
manner which has been agreed to by the respondent. If the service is by 
certified mail, the post office receipt signed by or on behalf of the 
respondent will be proof of service. If the certified matter is not 
claimed or accepted by the respondent and is returned undelivered, 
complete service may be made upon the respondent by mailing the 
complaint to him or her by first-class mail, addressed to the respondent 
at the address under which he or she is enrolled or at the last address 
known to the Director of Practice. If service is made upon the 
respondent or the respondent's attorney or agent in person, or by 
leaving the complaint at the office or place of business of the 
respondent, attorney or agent, the verified return by the person making 
service, setting forth the manner of service, will be proof of service.
    (b) Service of other papers. Any paper other than the complaint may 
be served upon an attorney, certified public accountant, or enrolled 
practitioner 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 of Practice, or by mailing the paper by first-
class mail to the respondent's attorney or agent of record. This mailing 
will constitute complete service. Notices may be served upon the 
respondent or his attorney or agent by telegram.
    (c) Filing of papers. When the filing of a paper is required or 
permitted in connection with a disbarment or suspension proceeding, and 
the place of filing is not specified by this subpart or by rule or order 
of the Administrative Law Judge, the papers will be filed with the 
Director of Practice, Treasury Department, Washington, DC 20220. All 
papers will be filed in duplicate.



Sec.  8.57  Answer.

    (a) Filing. The respondent shall file the answer 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 
of Practice or the Administrative Law Judge. The respondent shall file 
the answer in duplicate with the director of Practice.
    (b) Contents. The respondent shall include in the answer a statement 
of facts which constitute the grounds of defense, and shall specifically 
admit or deny each allegation set forth in the complaint, except that 
the respondent shall not deny a material allegation in the complaint 
which he or she knows to be true, or state that he or she is without 
sufficient information to form a belief when in fact the respondent 
possesses that information. 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 is deemed 
to be admitted and may be considered as proven, and no further evidence 
in respect of that allegation need be adduced at a hearing. 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 of 
Practice or the Administrative Law Judge, will constitute an admission 
of the allegations of the complaint and a waiver of hearing, and the 
Administrative Law Judge may make a decision by default without a 
hearing or further procedure.
    (d) Reply by Director of Practice. No reply to the respondent's 
answer is required, and new matter in the answer will be deemed to be 
denied, but the Director of Practice may file a reply at his or her 
discretion or at the request of the Administrative Law Judge.



Sec.  8.58  Supplemental charges.

    If it appears that the respondent in his or her answer, falsely and 
in bad faith, denies a material allegation of fact in the complaint or 
states that the respondent has no knowledge sufficient to form a belief, 
when he or she in fact possesses that information, or if it appears that 
the respondent has knowingly introduced false testimony during 
proceedings for his or her disbarment or suspension, the Director of 
Practice may file supplemental charges against the respondent. These 
supplemental charges may be tried with other charges in the case, 
provided the respondent is given due notice and is afforded an 
opportunity to prepare to a defense to them.

[[Page 116]]



Sec.  8.59  Proof; variance; amendment of pleadings.

    In the case of a variance between the allegations in a pleading, the 
Administrative Law Judge may order or authorize amendment of the 
pleading to conform to the evidence. The party who would otherwise be 
prejudiced by the amendment will be given reasonable opportunty to meet 
the allegation of the pleading as amended, and the Administrative Law 
Judge shall make findings on an issue presented by the pleadings as so 
amended.



Sec.  8.60  Motions and requests.

    Motions and requests may be filed with the Director of Practice or 
with the Administrative Law Judge.



Sec.  8.61  Representation.

    A respondent or proposed respondent may appear in person or be 
represented by counsel or other representative who need not be enrolled 
to practice before the Bureau. The Director of Practice may be 
represented by an Attorney or other employee of the Treasury Department.



Sec.  8.62  Administrative Law Judge.

    (a) Appointment. An Administrative Law Judge, appointed as provided 
by 5 U.S.C. 3105, shall conduct proceedings upon complaints for the 
disbarment or suspension of attorneys, certified public accountants, or 
enrolled practitioners.
    (b) Responsibilities. The Administrative Law Judge in connection 
with any disbarment or suspension proceeding shall have authority to:
    (1) Administer oaths and affirmation;
    (2) Make rulings upon motions and requests; these rulings may not be 
appealed prior to the close of the hearing except at the discretion of 
the Administrative Law Judge in extraordinary circumstances;
    (3) Rule upon offers of proof, receive relevant evidence, and 
examine witnesses;
    (4) Take or authorize to the taking of depositions;
    (5) Determine the time and place of hearing and regulate its course 
and conduct;
    (6) Hold or provide for the holding of conferences to settle or 
simplify the issues by consent of the parties;
    (7) Receive and consider oral or written arguments on facts or law;
    (8) Make initial decisions;
    (9) Adopt rules of procedure and modify them from time to time as 
occasion requires for the orderly disposition of proceedings; and
    (10) Perform acts and take measures as necessary to promote the 
efficient conduct of any proceeding.



Sec.  8.63  Hearings.

    (a) Conduct. The Administrative Law Judge shall preside at the 
hearing on a complaint for the disbarment or suspension of an attorney, 
certified public accountant, or enrolled practitioner. Hearings will be 
stenographically recorded and transcribed and the testimony of witnesses 
will be received under oath or affirmation. The Administrative Law Judge 
shall conduct hearings pursuant to 5 U.S.C. 556.
    (b) Failure to appear. If either party to the proceedings fails to 
appear at the hearing, after due notice has been sent, the 
Administrative Law Judge may deem them to have waived the right to a 
hearing and may make a decision against the absent party by default.



Sec.  8.64  Evidence.

    (a) Rules of evidence. The rules of evidence prevailing in courts of 
law and equity are not controlling in hearings. However, the 
Administrative Law Judge shall exclude evidence which is irrelevant, 
immaterial, or unduly repetitious.
    (b) Depositions. Depositions of witnesses taken pursuant to Sec.  
8.65 may be admitted as evidence.
    (c) Government documents. Official documents, records, and papers of 
the Bureau of Alcohol, Tobacco and Firearms and the Office of the 
Director of Practice are admissible in evidence without the prouction of 
an officer or employee to authenticate them. These documents, records 
and papers may be evidenced by a copy attested or identified by an 
officer or employee of the Bureau or the Treasury Department.

[[Page 117]]

    (d) Exhibits. If any document, record, or other paper is introduced 
in evidence as an exhibit, the Administrative Law Judge may authorize 
the withdrawal of the exhibit subject to any conditions he or she deems 
proper.
    (e) Objections. Objections to evidence will be in short form, 
stating the grounds of objection and the record may not include 
arguments thereon, except as ordered by the Administrative Law Judge. 
Rulings on objections will be a part of the record. No exception to the 
ruling is necessary to preserve the rights of the parties.



Sec.  8.65  Depositions.

    Depositions for use at a hearing may, with the written approval of 
the Administrative Law Judge, be taken by either the Director of 
Practice or the respondent or their authorized representatives. 
Depositions may be taken upon oral or written questioning, upon not less 
than 10 days' written notice to the other party before any officer 
authorized to administer an oath for general purposes or before an 
officer or employee of the Bureau authorized to administer an oath 
pursuant to 27 CFR 70.35. The written notice will state the names of the 
witnesses and the time and place where the depositions are to be taken. 
The requirement of 10 days' notice may be waived by the parties in 
writing, and depositions may then be taken from the persons and at the 
times and places mutually agreed to by the parties. When a deposition is 
taken upon written questioning, any cross-examination will be upon 
written questioning. Copies of the written questioning will be served 
upon the other party with the notice, and copies of any written cross-
interrogation will 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. A party on whose behalf a deposition is taken 
must file it with the Administrative Law Judge and serve one copy upon 
the opposing party. Expenses in the reproduction of depositions will be 
borne by the party at whose instance the deposition is taken.



Sec.  8.66  Transcript.

    In cases in which the hearing is stenographically reported by a 
Government contract reporter, copies of the transcript may be obtained 
from the reporter at rates not to exceed the maximum rates fixed by 
contract between the Government and the reporter. If the hearing is 
stenographically reported by a regular employee of the Bureau, a copy of 
the hearing will be supplied to the respondent either without charge or 
upon the payment of a reasonable fee. Copies of exhibits introduced at 
the hearing or at the taking of depositions will be supplied to the 
parties upon the payment of a reasonable fee.

(Sec. 501, Pub. L. 82-137, 65 Stat. 290 (31 U.S.C. 483a))



Sec.  8.67  Proposed findings and conclusions.

    Except in cases when the respondent has failed to answer the 
complaint or when a party has failed to appear at the hearing, the 
Administrative Law Judge, prior to making his or her decision, shall 
afford the parties a reasonable opportunity to submit proposed findings 
and conclusions and their supporting reasons.



Sec.  8.68  Decision of Administrative Law Judge.

    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 Administrative Law Judge shall make the initial decision in 
the case. The decision will 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 
(b) an order of disbarment, suspension, or reprimand or an order of 
dismissal of the complaint. The Administrative Law Judge shall file the 
decision with the Director of Practice and shall transmit a copy to the 
respondent or the respondent's attorney of record. In the absence of an 
appeal to the Secretary, or review of the decision upon motion of the 
Secretary, the decision of the

[[Page 118]]

Administrative Law Judge will, without further proceedings, become the 
decision of the Secretary of the Treasury 30 days from the date of the 
Administrative Law Judge's decision.



Sec.  8.69  Appeal to the Secretary.

    Within 30 days from the date of the Administrative Law Judge's 
decision, either party may appeal to the Secretary. The appeal will be 
filed with the Director of Practice in duplicate and will include 
exceptions to the decision of the Administrative Law Judge and 
supporting reasons for those exceptions. If the Director of Practice 
files the appeal, he or she shall transmit a copy of it to the 
respondent. Within 30 days after receipt of an appeal or copy thereof, 
the other party may file a reply brief in duplicate with the Director of 
Practice. If the Director of Practice files the reply brief, he or she 
shall transmit a copy of it to the respondent. Upon the filing of an 
appeal and a reply brief, if any, the Director of Practice shall 
transmit the entire record to the Secretary.



Sec.  8.70  Decision of the Secretary.

    On appeal from or review of the intial decision of the 
Administrative Law Judge, the Secretary shall make the agency decision. 
In making this decision, the Secretary shall review the record or those 
portions of the records as may be cited by the parties in order to limit 
the issues. The Director of Prasctice shall transmit a copy of the 
Secretary's decision to the respondent.



Sec.  8.71  Effect of disbarment or suspension.

    (a) Disbarment. If the final order against the respondent is for 
disbarment, the respondent will not thereafter be permitted to practice 
before the Bureau unless authorized to do so by the Director of Practice 
pursuant to Sec.  8.72.
    (b) Suspension. If the final order against the respondent is for 
suspension, the respondent will not thereafter be permitted to practice 
before the Bureau during the period of suspension.
    (c) Surrender of enrollment card. If an enrolled practitioner is 
disbarred or suspended, he or she shall surrender the enrollment card to 
the Director of Practice for cancellation, in the case of disbarment, or 
for retention during the period of suspension.
    (d) Notice of disbarment or suspension. Upon the issuance of a final 
order for suspension or disbarment, the Director of Practice shall give 
notice of the order to appropriate officers and employees of the Bureau 
of Alcohol, Tobacco and Firearms and to interested departments and 
agencies of the Federal Government. The Director of Practice may also 
give notice as he or she may determine to the proper authorities of the 
State in which the disbarred or suspended person was licensed to 
practice as an attorney or certified public accountant.



Sec.  8.72  Petition for reinstatement.

    The Director of Practice may entertain a petition for reinstatement 
from any person disbarred from practice before the Bureau after the 
expiration of 5 years following disbarment. The director of Practice may 
not grant reinstatement unless he or she is satisfied that the 
petitioner is not likely to conduct himself or herself contrary to the 
regulations in this part, and that granting reinstatement would not be 
contrary to the public interest.



PART 9_EFFECTS OF IMPORTED ARTICLES ON THE NATIONAL SECURITY--Table of Contents



Sec.
9.2 Definitions.
9.3 General.
9.4 Criteria for determining effects of imports on national security.
9.5 Applications for investigation.
9.6 Confidential information.
9.7 Conduct of investigation.
9.8 Emergency action.
9.9 Report.

    Authority: Sec. 232, as amended, 76 Stat. 877, 80 Stat. 369 (19 
U.S.C. 1862); 5 U.S.C. 301; Reorg. Plan No. 1 of 1973; and E.O. 11725, 
June 27, 1973 (38 FR 17175).



Sec.  9.2  Definitions.

    As used herein, Secretary means the Secretary of the Treasury and 
Assistant Secretary means the Assistant Secretary of the Treasury 
(Enforcement, Operations, and Tariff Affairs).

[40 FR 50717, Oct. 31, 1975]

[[Page 119]]



Sec.  9.3  General.

    (a) Upon request of the head of any Government department or agency, 
upon application of an interested party, or upon his own motion, the 
Assistant Secretary shall set in motion an immediate investigation to 
determine the effects on the national security of imports of any 
article.
    (b) The Secretary shall report the findings of his investigation 
under paragraph (a) of this section with respect to the effect of the 
importation of such article in such quantities or under such 
circumstances upon the national security and, based on such findings, 
his recommendation for action or inaction to the President within one 
year after receiving an application from an interested party or 
otherwise beginning an investigation under this section.

[39 FR 10898, Mar. 22, 1974, as amended at 40 FR 50717, Oct. 31, 1975]



Sec.  9.4  Criteria for determining effects of imports on national 
security.

    (a) In determining the effect on the national security of imports of 
the article which is the subject of the investigation, the Secretary is 
required to take into consideration the following:
    (1) Domestic production needed for projected national defense 
requirements including restoration and rehabilitation.
    (2) The capacity of domestic industries to meet such projected 
requirements, including existing and anticipated availabilities of:
    (i) Human resources.
    (ii) Products.
    (iii) Raw materials.
    (iv) Production equipment and facilities.
    (v) Other supplies and services essential to the national defense.
    (3) The requirement of growth of such industries and such supplies 
and services including the investment, exploration and development 
necessary to assure capacity to meet projected defense requirements.
    (4) The effect which the quantities, availabilities, character and 
uses of imported goods have or will have on such industries and the 
capacity of the United States to meet national security requirements.
    (5) The economic welfare of the Nation as it is related to our 
national security, including the impact of foreign competition on the 
economic welfare of individual domestic industries. In determining 
whether such impact may impair the national security, any substantial 
unemployment, decrease in revenues of government, loss of skills or 
investment, or other serious effects shall be considered.
    (b) The Secretary shall also consider other relevant factors in 
determining whether the national security is affected by imports of the 
article.

[39 FR 10898, Mar. 22, 1974]



Sec.  9.5  Applications for investigation.

    (a) Applications shall be in writing. Twenty-five copies shall be 
filed by mail with the Assistant Secretary (Enforcement, Operations, and 
Tariff Affairs), Department of the Treasury, Washington, DC 20220.
    (b) Applications shall describe how the quantities or circumstances 
of imports of the particular article affect the national security and 
shall contain the following information:
    (1) Identification of the person, partnership, association, 
corporation, or other entity on whose behalf the application is filed.
    (2) A precise description of the article.
    (3) Description of the applicant and the domestic industry 
concerned, including pertinent information regarding companies and their 
plants, locations, capacity and current output of the domestic industry 
concerned with the article in question.
    (4) Pertinent statistics showing the quantities and values of both 
imports and production in the United States.
    (5) Nature, sources, and degree of the competition created by 
imports of the article in question.
    (6) The effect, if any, of imports of the article in question upon 
the restoration of domestic production capacity in an emergency.
    (7) Employment and special skills involved in the domestic 
production of the article.
    (8) Extent to which investment and specialized productive capacity 
is or will be adversely affected.

[[Page 120]]

    (9) Revenues of Federal, State, or local Governments which are or 
may be affected by the volume or circumstances of imports of the 
article.
    (10) Defense or defense supporting uses of the article including 
data on defense contracts or sub-contracts, both past and current.
    (c) Statistical material presented should be on a calendar-year 
basis for sufficient periods of time to indicate trends and afford the 
greatest possible assistance to the Assistant Secretary. Monthly or 
quarterly data for the latest complete years should be included as well 
as any other breakdowns which may be pertinent to show seasonal or 
short-term factors.

[39 FR 10898, Mar. 22, 1974, as amended at 40 FR 50717, Oct. 31, 1975]



Sec.  9.6  Confidential information.

    Information submitted in confidence which the Assistant Secretary 
determines would disclose trade secrets and commercial or financial 
information obtained from a person and privileged, within the meaning of 
5 U.S.C. 552 and 31 CFR part 1, will be accorded confidential treatment. 
All information submitted in confidence must be on separate pages marked 
``Business Confidential.''

[40 FR 50717, Oct. 31, 1975]



Sec.  9.7  Conduct of investigation.

    (a) The investigation by the Assistant Secretary or by such official 
or agency as he may designate, shall be such as to enable the Secretary 
to arrive at a fully informed opinion as to the effect on the national 
security of imports of the article in question.
    (b) If the Assistant Secretary determines that it is appropriate to 
hold public hearings or otherwise afford interested parties an 
opportunity to present information and advice relevant to an 
investigation, he shall issue a public notice which shall be published 
in the Federal Register. Such notice shall include a statement of the 
time, place and nature of any public hearing or shall solicit from any 
interested party written comments, opinions, or data relative to the 
investigation, to be submitted to the Assistant Secretary within the 
time period specified in the notice. Rebuttal to material so submitted 
may be filed with the Assistant Secretary within such time as is 
specified in the public notice. All data, comments and opinions shall be 
submitted with 25 copies.
    (c) All applications filed and all comments, opinions, and data 
submitted pursuant to paragraph (b) of this section, except information 
determined to be confidential as provided in Sec.  9.6, will be 
available for inspection and copying at the Office of the Assistant 
Secretary (Enforcement, Operations, and Tariff Affairs), Department of 
the Treasury, in Washington, DC. The Assistant Secretary will maintain a 
roster of persons who have submitted materials.
    (d) The Assistant Secretary or his designee may also request further 
data from other sources through the use of questionnaires, 
correspondence, or other means.
    (e) The Assistant Secretary or his delegate shall, in the course of 
the investigation, seek information or advice from, and consult with, 
the Secretary of Defense, the Secretary of Commerce, or their delegates, 
and any other appropriate officer of the United States as the Assistant 
Secretary shall determine.
    (f) In addition, the Assistant Secretary, or his designee, may, when 
he deems it appropriate, hold public hearings to elicit further 
information. If a hearing is held:
    (1) The time and place thereof will be published in the Federal 
Register.
    (2) It will be conducted by the Assistant Secretary or his designee, 
and the full record will be considered by the Secretary in arriving at 
his determination.
    (3) Interested parties may appear, either in person or by 
representation, and produce oral or written evidence relevant and 
material to the subject matter of the investigation.
    (4) After a witness has testified the Assistant Secretary or his 
designee may question the witness. Questions submitted to the Assistant 
Secretary or his designee in writing by any interested party may, at the 
discretion of the Assistant Secretary or his designee, be posed to the 
witness for reply

[[Page 121]]

for the purpose of assisting the Assistant Secretary in obtaining the 
material facts with respect to the subject matter of the investigation.
    (5) The hearing will be stenographically reported. The Assistant 
Secretary will not cause transcripts of the record of the hearing to be 
distributed to the interested parties, but a transcript may be inspected 
at the Office of the Assistant Secretary (Enforcement, Operations, and 
Tariff Affairs), Department of the Treasury, in Washington, DC, or 
purchased from the reporter.

[39 FR 10898, Mar. 22, 1974, as amended at 40 FR 50717, Oct. 31, 1975]



Sec.  9.8  Emergency action.

    In emergency situations or when in his judgment national security 
interests require it, the Secretary may vary or dispense with any of the 
procedures set forth above and may formulate his views without following 
such procedures.

[39 FR 10898, Mar. 22, 1974]



Sec.  9.9  Report.

    A report will be made and published in the Federal Register upon the 
disposition of each request, application or motion under Sec.  9.3. 
Copies of the report will be available at the Office of the Assistant 
Secretary (Enforcement, Operations, and Tariff Affairs), Department of 
the Treasury.

[40 FR 50718, Oct. 31, 1975]



PART 10_PRACTICE BEFORE THE INTERNAL REVENUE SERVICE--Table of Contents



Sec.
10.0 Scope of part.

             Subpart A_Rules Governing Authority to Practice

10.1 Offices.
10.2 Definitions.
10.3 Who may practice.
10.4 Eligibility to become an enrolled agent, enrolled retirement plan 
          agent, or registered tax return preparer.
10.5 Application to become an enrolled agent, enrolled retirement plan 
          agent, or registered tax return preparer.
10.6 Term and renewal of status as an enrolled agent, enrolled 
          retirement plan agent, or registered tax return preparer.
10.7 Representing oneself; participating in rulemaking; limited 
          practice; and special appearances.
10.8 Return preparation and application of rules to other individuals.
10.9 Continuing education providers and continuing education programs.

   Subpart B_Duties and Restrictions Relating to Practice Before the 
                        Internal Revenue Service

10.20 Information to be furnished.
10.21 Knowledge of client's omission.
10.22 Diligence as to accuracy.
10.23 Prompt disposition of pending matters.
10.24 Assistance from or to disbarred or suspended persons and former 
          Internal Revenue Service employees.
10.25 Practice by former government employees, their partners and their 
          associates.
10.26 Notaries.
10.27 Fees.
10.28 Return of client's records.
10.29 Conflicting interests.
10.30 Solicitation.
10.31 Negotiation of taxpayer checks.
10.32 Practice of law.
10.33 Best practices for tax advisors.
10.34 Standards with respect to tax returns and documents, affidavits 
          and other papers.
10.35 Competence.
10.36 Procedures to ensure compliance.
10.37 Requirements for written advice.
10.38 Establishment of advisory committees.

          Subpart C_Sanctions for Violation of the Regulations

10.50 Sanctions.
10.51 Incompetence and disreputable conduct.
10.52 Violations subject to sanction.
10.53 Receipt of information concerning practitioner.

         Subpart D_Rules Applicable to Disciplinary Proceedings

10.60 Institution of proceeding.
10.61 Conferences.
10.62 Contents of complaint.
10.63 Service of complaint; service of other papers; service of evidence 
          in support of complaint; filing of papers.
10.64 Answer; default.
10.65 Supplemental charges.
10.66 Reply to answer.
10.67 Proof; variance; amendment of pleadings.
10.68 Motions and requests.
10.69 Representation; ex parte communication.

[[Page 122]]

10.70 Administrative Law Judge.
10.71 Discovery.
10.72 Hearings.
10.73 Evidence.
10.74 Transcript.
10.75 Proposed findings and conclusions.
10.76 Decision of Administrative Law Judge.
10.77 Appeal of decision of Administrative Law Judge.
10.78 Decision on review.
10.79 Effect of disbarment, suspension, or censure.
10.80 Notice of disbarment, suspension, censure, or disqualification.
10.81 Petition for reinstatement.
10.82 Expedited suspension.

                      Subpart E_General Provisions

10.90 Records.
10.91 Saving provision.
10.92 Special orders.
10.93 Effective date.

    Authority: Sec. 3, 23 Stat. 258, secs. 2-12, 60 Stat. 237 et seq.; 5 
U.S.C. 301, 500, 551-559; 31 U.S.C. 321; 31 U.S.C. 330; Reorg. Plan No. 
26 of 1950, 15 FR 4935, 64 Stat. 1280, 3 CFR, 1949-1953 Comp., p. 1017.

    Source: Department Circular 230, Revised, 31 FR 10773, Aug. 13, 
1966, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 10 appear by T.D. 9359, 
72 FR 54544, Sept. 26, 2007.



Sec.  10.0  Scope of part.

    (a) This part contains rules governing the recognition of attorneys, 
certified public accountants, enrolled agents, enrolled retirement plan 
agents, registered tax return preparers, and other persons representing 
taxpayers before the Internal Revenue Service. Subpart A of this part 
sets forth rules relating to the authority to practice before the 
Internal Revenue Service; subpart B of this part prescribes the duties 
and restrictions relating to such practice; subpart C of this part 
prescribes the sanctions for violating the regulations; subpart D of 
this part contains the rules applicable to disciplinary proceedings; and 
subpart E of this part contains general provisions relating to the 
availability of official records.
    (b) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9527, 76 FR 32300, June 3, 2011]



             Subpart A_Rules Governing Authority to Practice

    Source: T.D. 9011, 67 FR 48765, July 26, 2002, unless otherwise 
noted.



Sec.  10.1  Offices.

    (a) Establishment of office(s). The Commissioner shall establish the 
Office of Professional Responsibility and any other office(s) within the 
Internal Revenue Service necessary to administer and enforce this part. 
The Commissioner shall appoint the Director of the Office of 
Professional Responsibility and any other Internal Revenue official(s) 
to manage and direct any office(s) established to administer or enforce 
this part. Offices established under this part include, but are not 
limited to:
    (1) The Office of Professional Responsibility, which shall generally 
have responsibility for matters related to practitioner conduct and 
shall have exclusive responsibility for discipline, including 
disciplinary proceedings and sanctions; and
    (2) An office with responsibility for matters related to authority 
to practice before the Internal Revenue Service, including acting on 
applications for enrollment to practice before the Internal Revenue 
Service and administering competency testing and continuing education.
    (b) Officers and employees within any office established under this 
part may perform acts necessary or appropriate to carry out the 
responsibilities of their office(s) under this part or as otherwise 
prescribed by the Commissioner.
    (c) Acting. The Commissioner will designate an officer or employee 
of the Internal Revenue Service to perform the duties of an individual 
appointed under paragraph (a) of this section in the absence of that 
officer or employee or during a vacancy in that office.
    (d) Effective/applicability date. This section is applicable 
beginning August 2, 2011, except that paragraph (a)(1) is applicable 
beginning June 12, 2014.

[T.D. 9527, 76 FR 32300, June 3, 2011, as amended by T.D. 9668, 79 FR 
33692, June 12, 2014]

[[Page 123]]



Sec.  10.2  Definitions.

    (a) As used in this part, except where the text provides otherwise--
    (1) Attorney means any person who is a member in good standing of 
the bar of the highest court of any state, territory, or possession of 
the United States, including a Commonwealth, or the District of 
Columbia.
    (2) Certified public accountant means any person who is duly 
qualified to practice as a certified public accountant in any state, 
territory, or possession of the United States, including a Commonwealth, 
or the District of Columbia.
    (3) Commissioner refers to the Commissioner of Internal Revenue.
    (4) Practice before the Internal Revenue Service comprehends all 
matters connected with a presentation to the Internal Revenue Service or 
any of its officers or employees relating to a taxpayer's rights, 
privileges, or liabilities under laws or regulations administered by the 
Internal Revenue Service. Such presentations include, but are not 
limited to, preparing documents; filing documents; corresponding and 
communicating with the Internal Revenue Service; rendering written 
advice with respect to any entity, transaction, plan or arrangement, or 
other plan or arrangement having a potential for tax avoidance or 
evasion; and representing a client at conferences, hearings, and 
meetings.
    (5) Practitioner means any individual described in paragraphs (a), 
(b), (c), (d), (e), or (f) of Sec.  10.3.
    (6) A tax return includes an amended tax return and a claim for 
refund.
    (7) Service means the Internal Revenue Service.
    (8) Tax return preparer means any individual within the meaning of 
section 7701(a)(36) and 26 CFR 301.7701-15.
    (b) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9359, 72 FR 54544, Sept. 26, 2007, as amended by T.D. 9527, 76 FR 
32300, June 3, 2011]



Sec.  10.3  Who may practice.

    (a) Attorneys. Any attorney who is not currently under suspension or 
disbarment from practice before the Internal Revenue Service may 
practice before the Internal Revenue Service by filing with the Internal 
Revenue Service a written declaration that the attorney is currently 
qualified as an attorney and is authorized to represent the party or 
parties. Notwithstanding the preceding sentence, attorneys who are not 
currently under suspension or disbarment from practice before the 
Internal Revenue Service are not required to file a written declaration 
with the IRS before rendering written advice covered under Sec.  10.37, 
but their rendering of this advice is practice before the Internal 
Revenue Service.
    (b) Certified public accountants. Any certified public accountant 
who is not currently under suspension or disbarment from practice before 
the Internal Revenue Service may practice before the Internal Revenue 
Service by filing with the Internal Revenue Service a written 
declaration that the certified public accountant is currently qualified 
as a certified public accountant and is authorized to represent the 
party or parties. Notwithstanding the preceding sentence, certified 
public accountants who are not currently under suspension or disbarment 
from practice before the Internal Revenue Service are not required to 
file a written declaration with the IRS before rendering written advice 
covered under Sec.  10.37, but their rendering of this advice is 
practice before the Internal Revenue Service.
    (c) Enrolled agents. Any individual enrolled as an agent pursuant to 
this part who is not currently under suspension or disbarment from 
practice before the Internal Revenue Service may practice before the 
Internal Revenue Service.
    (d) Enrolled actuaries. (1) Any individual who is enrolled as an 
actuary by the Joint Board for the Enrollment of Actuaries pursuant to 
29 U.S.C. 1242 who is not currently under suspension or disbarment from 
practice before the Internal Revenue Service may practice before the 
Internal Revenue Service by filing with the Internal Revenue Service a 
written declaration stating that he or she is currently qualified as an 
enrolled actuary and is authorized to represent the party or parties on 
whose behalf he or she acts.
    (2) Practice as an enrolled actuary is limited to representation 
with respect

[[Page 124]]

to issues involving the following statutory provisions in title 26 of 
the United States Code: sections 401 (relating to qualification of 
employee plans), 403(a) (relating to whether an annuity plan meets the 
requirements of section 404(a)(2)), 404 (relating to deductibility of 
employer contributions), 405 (relating to qualification of bond purchase 
plans), 412 (relating to funding requirements for certain employee 
plans), 413 (relating to application of qualification requirements to 
collectively bargained plans and to plans maintained by more than one 
employer), 414 (relating to definitions and special rules with respect 
to the employee plan area), 419 (relating to treatment of funded welfare 
benefits), 419A (relating to qualified asset accounts), 420 (relating to 
transfers of excess pension assets to retiree health accounts), 4971 
(relating to excise taxes payable as a result of an accumulated funding 
deficiency under section 412), 4972 (relating to tax on nondeductible 
contributions to qualified employer plans), 4976 (relating to taxes with 
respect to funded welfare benefit plans), 4980 (relating to tax on 
reversion of qualified plan assets to employer), 6057 (relating to 
annual registration of plans), 6058 (relating to information required in 
connection with certain plans of deferred compensation), 6059 (relating 
to periodic report of actuary), 6652(e) (relating to the failure to file 
annual registration and other notifications by pension plan), 6652(f) 
(relating to the failure to file information required in connection with 
certain plans of deferred compensation), 6692 (relating to the failure 
to file actuarial report), 7805(b) (relating to the extent to which an 
Internal Revenue Service ruling or determination letter coming under the 
statutory provisions listed here will be applied without retroactive 
effect); and 29 U.S.C. 1083 (relating to the waiver of funding for 
nonqualified plans).
    (3) An individual who practices before the Internal Revenue Service 
pursuant to paragraph (d)(1) of this section is subject to the 
provisions of this part in the same manner as attorneys, certified 
public accountants, enrolled agents, enrolled retirement plan agents, 
and registered tax return preparers.
    (e) Enrolled Retirement Plan Agents--(1) Any individual enrolled as 
a retirement plan agent pursuant to this part who is not currently under 
suspension or disbarment from practice before the Internal Revenue 
Service may practice before the Internal Revenue Service.
    (2) Practice as an enrolled retirement plan agent is limited to 
representation with respect to issues involving the following programs: 
Employee Plans Determination Letter program; Employee Plans Compliance 
Resolution System; and Employee Plans Master and Prototype and Volume 
Submitter program. In addition, enrolled retirement plan agents are 
generally permitted to represent taxpayers with respect to IRS forms 
under the 5300 and 5500 series which are filed by retirement plans and 
plan sponsors, but not with respect to actuarial forms or schedules.
    (3) An individual who practices before the Internal Revenue Service 
pursuant to paragraph (e)(1) of this section is subject to the 
provisions of this part in the same manner as attorneys, certified 
public accountants, enrolled agents, enrolled actuaries, and registered 
tax return preparers.
    (f) Registered tax return preparers. (1) Any individual who is 
designated as a registered tax return preparer pursuant to Sec.  10.4(c) 
of this part who is not currently under suspension or disbarment from 
practice before the Internal Revenue Service may practice before the 
Internal Revenue Service.
    (2) Practice as a registered tax return preparer is limited to 
preparing and signing tax returns and claims for refund, and other 
documents for submission to the Internal Revenue Service. A registered 
tax return preparer may prepare all or substantially all of a tax return 
or claim for refund of tax. The Internal Revenue Service will prescribe 
by forms, instructions, or other appropriate guidance the tax returns 
and claims for refund that a registered tax return preparer may prepare 
and sign.
    (3) A registered tax return preparer may represent taxpayers before 
revenue agents, customer service representatives, or similar officers 
and employees of the Internal Revenue Service (including the Taxpayer 
Advocate Service) during an examination if the registered tax return 
preparer

[[Page 125]]

signed the tax return or claim for refund for the taxable year or period 
under examination. Unless otherwise prescribed by regulation or notice, 
this right does not permit such individual to represent the taxpayer, 
regardless of the circumstances requiring representation, before appeals 
officers, revenue officers, Counsel or similar officers or employees of 
the Internal Revenue Service or the Treasury Department. A registered 
tax return preparer's authorization to practice under this part also 
does not include the authority to provide tax advice to a client or 
another person except as necessary to prepare a tax return, claim for 
refund, or other document intended to be submitted to the Internal 
Revenue Service.
    (4) An individual who practices before the Internal Revenue Service 
pursuant to paragraph (f)(1) of this section is subject to the 
provisions of this part in the same manner as attorneys, certified 
public accountants, enrolled agents, enrolled retirement plan agents, 
and enrolled actuaries.
    (g) Others. Any individual qualifying under Sec.  10.5(e) or Sec.  
10.7 is eligible to practice before the Internal Revenue Service to the 
extent provided in those sections.
    (h) Government officers and employees, and others. An individual, 
who is an officer or employee of the executive, legislative, or judicial 
branch of the United States Government; an officer or employee of the 
District of Columbia; a Member of Congress; or a Resident Commissioner 
may not practice before the Internal Revenue Service if such practice 
violates 18 U.S.C. 203 or 205.
    (i) State officers and employees. No officer or employee of any 
State, or subdivision of any State, whose duties require him or her to 
pass upon, investigate, or deal with tax matters for such State or 
subdivision, may practice before the Internal Revenue Service, if such 
employment may disclose facts or information applicable to Federal tax 
matters.
    (j) Effective/applicability date. Paragraphs (a), (b), and (g) of 
this section are applicable beginning June 12, 2014. Paragraphs (c) 
through (f), (h), and (i) of this section are applicable beginning 
August 2, 2011.

[T.D. 9011, 67 FR 48765, July 26, 2002, as amended by T.D. 9359, 72 FR 
54545, Sept. 26, 2007; T.D. 9527, 76 FR 32300, June 3, 2011; T.D. 9668, 
79 FR 33693, June 12, 2014]



Sec.  10.4  Eligibility to become an enrolled agent, enrolled retirement
plan agent, or registered tax return preparer.

    (a) Enrollment as an enrolled agent upon examination. The 
Commissioner, or delegate, will grant enrollment as an enrolled agent to 
an applicant eighteen years of age or older who demonstrates special 
competence in tax matters by written examination administered by, or 
administered under the oversight of, the Internal Revenue Service, who 
possesses a current or otherwise valid preparer tax identification 
number or other prescribed identifying number, and who has not engaged 
in any conduct that would justify the suspension or disbarment of any 
practitioner under the provisions of this part.
    (b) Enrollment as a retirement plan agent upon examination. The 
Commissioner, or delegate, will grant enrollment as an enrolled 
retirement plan agent to an applicant eighteen years of age or older who 
demonstrates special competence in qualified retirement plan matters by 
written examination administered by, or administered under the oversight 
of, the Internal Revenue Service, who possesses a current or otherwise 
valid preparer tax identification number or other prescribed identifying 
number, and who has not engaged in any conduct that would justify the 
suspension or disbarment of any practitioner under the provisions of 
this part.
    (c) Designation as a registered tax return preparer. The 
Commissioner, or delegate, may designate an individual eighteen years of 
age or older as a registered tax return preparer provided an applicant 
demonstrates competence in Federal tax return preparation matters by 
written examination administered by, or administered under the oversight 
of, the Internal Revenue Service, or otherwise meets the requisite 
standards prescribed by the Internal Revenue Service, possesses a 
current or

[[Page 126]]

otherwise valid preparer tax identification number or other prescribed 
identifying number, and has not engaged in any conduct that would 
justify the suspension or disbarment of any practitioner under the 
provisions of this part.
    (d) Enrollment of former Internal Revenue Service employees. The 
Commissioner, or delegate, may grant enrollment as an enrolled agent or 
enrolled retirement plan agent to an applicant who, by virtue of past 
service and technical experience in the Internal Revenue Service, has 
qualified for such enrollment and who has not engaged in any conduct 
that would justify the suspension or disbarment of any practitioner 
under the provisions of this part, under the following circumstances:
    (1) The former employee applies for enrollment on an Internal 
Revenue Service form and supplies the information requested on the form 
and such other information regarding the experience and training of the 
applicant as may be relevant.
    (2) The appropriate office of the Internal Revenue Service provides 
a detailed report of the nature and rating of the applicant's work while 
employed by the Internal Revenue Service and a recommendation whether 
such employment qualifies the applicant technically or otherwise for the 
desired authorization.
    (3) Enrollment as an enrolled agent based on an applicant's former 
employment with the Internal Revenue Service may be of unlimited scope 
or it may be limited to permit the presentation of matters only of the 
particular specialty or only before the particular unit or division of 
the Internal Revenue Service for which the applicant's former employment 
has qualified the applicant. Enrollment as an enrolled retirement plan 
agent based on an applicant's former employment with the Internal 
Revenue Service will be limited to permit the presentation of matters 
only with respect to qualified retirement plan matters.
    (4) Application for enrollment as an enrolled agent or enrolled 
retirement plan agent based on an applicant's former employment with the 
Internal Revenue Service must be made within three years from the date 
of separation from such employment.
    (5) An applicant for enrollment as an enrolled agent who is 
requesting such enrollment based on former employment with the Internal 
Revenue Service must have had a minimum of five years continuous 
employment with the Internal Revenue Service during which the applicant 
must have been regularly engaged in applying and interpreting the 
provisions of the Internal Revenue Code and the regulations relating to 
income, estate, gift, employment, or excise taxes.
    (6) An applicant for enrollment as an enrolled retirement plan agent 
who is requesting such enrollment based on former employment with the 
Internal Revenue Service must have had a minimum of five years 
continuous employment with the Internal Revenue Service during which the 
applicant must have been regularly engaged in applying and interpreting 
the provisions of the Internal Revenue Code and the regulations relating 
to qualified retirement plan matters.
    (7) For the purposes of paragraphs (d)(5) and (6) of this section, 
an aggregate of 10 or more years of employment in positions involving 
the application and interpretation of the provisions of the Internal 
Revenue Code, at least three of which occurred within the five years 
preceding the date of application, is the equivalent of five years 
continuous employment.
    (e) Natural persons. Enrollment or authorization to practice may be 
granted only to natural persons.
    (f) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9527, 76 FR 32301, June 3, 2011]



Sec.  10.5  Application to become an enrolled agent, enrolled retirement
plan agent, or registered tax return preparer.

    (a) Form; address. An applicant to become an enrolled agent, 
enrolled retirement plan agent, or registered tax return preparer must 
apply as required by forms or procedures established and published by 
the Internal Revenue Service, including proper execution of required 
forms under oath or affirmation. The address on the application

[[Page 127]]

will be the address under which a successful applicant is enrolled or 
registered and is the address to which all correspondence concerning 
enrollment or registration will be sent.
    (b) Fee. A reasonable nonrefundable fee may be charged for each 
application to become an enrolled agent, enrolled retirement plan agent, 
or registered tax return preparer. See 26 CFR part 300.
    (c) Additional information; examination. The Internal Revenue 
Service may require the applicant, as a condition to consideration of an 
application, to file additional information and to submit to any written 
or oral examination under oath or otherwise. Upon the applicant's 
written request, the Internal Revenue Service will afford the applicant 
the opportunity to be heard with respect to the application.
    (d) Compliance and suitability checks. (1) As a condition to 
consideration of an application, the Internal Revenue Service may 
conduct a Federal tax compliance check and suitability check. The tax 
compliance check will be limited to an inquiry regarding whether an 
applicant has filed all required individual or business tax returns and 
whether the applicant has failed to pay, or make proper arrangements 
with the Internal Revenue Service for payment of, any Federal tax debts. 
The suitability check will be limited to an inquiry regarding whether an 
applicant has engaged in any conduct that would justify suspension or 
disbarment of any practitioner under the provisions of this part on the 
date the application is submitted, including whether the applicant has 
engaged in disreputable conduct as defined in Sec.  10.51. The 
application will be denied only if the results of the compliance or 
suitability check are sufficient to establish that the practitioner 
engaged in conduct subject to sanctions under Sec. Sec.  10.51 and 
10.52.
    (2) If the applicant does not pass the tax compliance or suitability 
check, the applicant will not be issued an enrollment or registration 
card or certificate pursuant to Sec.  10.6(b) of this part. An applicant 
who is initially denied enrollment or registration for failure to pass a 
tax compliance check may reapply after the initial denial if the 
applicant becomes current with respect to the applicant's tax 
liabilities.
    (e) Temporary recognition. On receipt of a properly executed 
application, the Commissioner, or delegate, may grant the applicant 
temporary recognition to practice pending a determination as to whether 
status as an enrolled agent, enrolled retirement plan agent, or 
registered tax return preparer should be granted. Temporary recognition 
will be granted only in unusual circumstances and it will not be 
granted, in any circumstance, if the application is not regular on its 
face, if the information stated in the application, if true, is not 
sufficient to warrant granting the application to practice, or the 
Commissioner, or delegate, has information indicating that the 
statements in the application are untrue or that the applicant would not 
otherwise qualify to become an enrolled agent, enrolled retirement plan 
agent, or registered tax return preparer. Issuance of temporary 
recognition does not constitute either a designation or a finding of 
eligibility as an enrolled agent, enrolled retirement plan agent, or 
registered tax return preparer, and the temporary recognition may be 
withdrawn at any time.
    (f) Protest of application denial. The applicant will be informed in 
writing as to the reason(s) for any denial of an application. The 
applicant may, within 30 days after receipt of the notice of denial of 
the application, file a written protest of the denial as prescribed by 
the Internal Revenue Service in forms, guidance, or other appropriate 
guidance. A protest under this section is not governed by subpart D of 
this part.
    (g) Effective/applicability date. This section is applicable to 
applications received on or after August 2, 2011.

[T.D. 9527, 63 FR 32302, June 3, 2011, as amended at 76 FR 49650, Aug. 
11, 2011]



Sec.  10.6  Term and renewal of status as an enrolled agent, enrolled
retirement plan agent, or registered tax return preparer.

    (a) Term. Each individual authorized to practice before the Internal 
Revenue Service as an enrolled agent, enrolled retirement plan agent, or 
registered tax return preparer will be accorded active enrollment or 
registration status

[[Page 128]]

subject to renewal of enrollment or registration as provided in this 
part.
    (b) Enrollment or registration card or certificate. The Internal 
Revenue Service will issue an enrollment or registration card or 
certificate to each individual whose application to practice before the 
Internal Revenue Service is approved. Each card or certificate will be 
valid for the period stated on the card or certificate. An enrolled 
agent, enrolled retirement plan agent, or registered tax return preparer 
may not practice before the Internal Revenue Service if the card or 
certificate is not current or otherwise valid. The card or certificate 
is in addition to any notification that may be provided to each 
individual who obtains a preparer tax identification number.
    (c) Change of address. An enrolled agent, enrolled retirement plan 
agent, or registered tax return preparer must send notification of any 
change of address to the address specified by the Internal Revenue 
Service within 60 days of the change of address. This notification must 
include the enrolled agent's, enrolled retirement plan agent's, or 
registered tax return preparer's name, prior address, new address, tax 
identification number(s) (including preparer tax identification number), 
and the date the change of address is effective. Unless this 
notification is sent, the address for purposes of any correspondence 
from the appropriate Internal Revenue Service office responsible for 
administering this part shall be the address reflected on the 
practitioner's most recent application for enrollment or registration, 
or application for renewal of enrollment or registration. A 
practitioner's change of address notification under this part will not 
constitute a change of the practitioner's last known address for 
purposes of section 6212 of the Internal Revenue Code and regulations 
thereunder.
    (d) Renewal--(1) In general. Enrolled agents, enrolled retirement 
plan agents, and registered tax return preparers must renew their status 
with the Internal Revenue Service to maintain eligibility to practice 
before the Internal Revenue Service. Failure to receive notification 
from the Internal Revenue Service of the renewal requirement will not be 
justification for the individual's failure to satisfy this requirement.
    (2) Renewal period for enrolled agents. (i) All enrolled agents must 
renew their preparer tax identification number as prescribed by forms, 
instructions, or other appropriate guidance.
    (ii) Enrolled agents who have a Social Security number or tax 
identification number that ends with the numbers 0, 1, 2, or 3, except 
for those individuals who received their initial enrollment after 
November 1, 2003, must apply for renewal between November 1, 2003, and 
January 31, 2004. The renewal will be effective April 1, 2004.
    (iii) Enrolled agents who have a social security number or tax 
identification number that ends with the numbers 4, 5, or 6, except for 
those individuals who received their initial enrollment after November 
1, 2004, must apply for renewal between November 1, 2004, and January 
31, 2005. The renewal will be effective April 1, 2005.
    (iv) Enrolled agents who have a social security number or tax 
identification number that ends with the numbers 7, 8, or 9, except for 
those individuals who received their initial enrollment after November 
1, 2005, must apply for renewal between November 1, 2005, and January 
31, 2006. The renewal will be effective April 1, 2006.
    (v) Thereafter, applications for renewal as an enrolled agent will 
be required between November 1 and January 31 of every subsequent third 
year as specified in paragraph (d)(2)(i), (d)(2)(ii), or (d)(2)(iii) of 
this section according to the last number of the individual's Social 
Security number or tax identification number. Those individuals who 
receive initial enrollment as an enrolled agent after November 1 and 
before April 2 of the applicable renewal period will not be required to 
renew their enrollment before the first full renewal period following 
the receipt of their initial enrollment.
    (3) Renewal period for enrolled retirement plan agents. (i) All 
enrolled retirement plan agents must renew their preparer tax 
identification number as prescribed by the Internal Revenue Service in 
forms, instructions, or other appropriate guidance.
    (ii) Enrolled retirement plan agents will be required to renew their 
status

[[Page 129]]

as enrolled retirement plan agents between April 1 and June 30 of every 
third year subsequent to their initial enrollment.
    (4) Renewal period for registered tax return preparers. Registered 
tax return preparers must renew their preparer tax identification number 
and their status as a registered tax return preparer as prescribed by 
the Internal Revenue Service in forms, instructions, or other 
appropriate guidance.
    (5) Notification of renewal. After review and approval, the Internal 
Revenue Service will notify the individual of the renewal and will issue 
the individual a card or certificate evidencing current status as an 
enrolled agent, enrolled retirement plan agent, or registered tax return 
preparer.
    (6) Fee. A reasonable nonrefundable fee may be charged for each 
application for renewal filed. See 26 CFR part 300.
    (7) Forms. Forms required for renewal may be obtained by sending a 
written request to the address specified by the Internal Revenue Service 
or from such other source as the Internal Revenue Service will publish 
in the Internal Revenue Bulletin (see 26 CFR 601.601(d)(2)(ii)(b)) and 
on the Internal Revenue Service webpage (http://www.irs.gov).
    (e) Condition for renewal: continuing education. In order to qualify 
for renewal as an enrolled agent, enrolled retirement plan agent, or 
registered tax return preparer, an individual must certify, in the 
manner prescribed by the Internal Revenue Service, that the individual 
has satisfied the requisite number of continuing education hours.
    (1) Definitions. For purposes of this section--
    (i) Enrollment year means January 1 to December 31 of each year of 
an enrollment cycle.
    (ii) Enrollment cycle means the three successive enrollment years 
preceding the effective date of renewal.
    (iii) Registration year means each 12-month period the registered 
tax return preparer is authorized to practice before the Internal 
Revenue Service.
    (iv) The effective date of renewal is the first day of the fourth 
month following the close of the period for renewal described in 
paragraph (d) of this section.
    (2) For renewed enrollment as an enrolled agent or enrolled 
retirement plan agent--(i) Requirements for enrollment cycle. A minimum 
of 72 hours of continuing education credit, including six hours of 
ethics or professional conduct, must be completed during each enrollment 
cycle.
    (ii) Requirements for enrollment year. A minimum of 16 hours of 
continuing education credit, including two hours of ethics or 
professional conduct, must be completed during each enrollment year of 
an enrollment cycle.
    (iii) Enrollment during enrollment cycle--(A) In general. Subject to 
paragraph (e)(2)(iii)(B) of this section, an individual who receives 
initial enrollment during an enrollment cycle must complete two hours of 
qualifying continuing education credit for each month enrolled during 
the enrollment cycle. Enrollment for any part of a month is considered 
enrollment for the entire month.
    (B) Ethics. An individual who receives initial enrollment during an 
enrollment cycle must complete two hours of ethics or professional 
conduct for each enrollment year during the enrollment cycle. Enrollment 
for any part of an enrollment year is considered enrollment for the 
entire year.
    (3) Requirements for renewal as a registered tax return preparer. A 
minimum of 15 hours of continuing education credit, including two hours 
of ethics or professional conduct, three hours of Federal tax law 
updates, and 10 hours of Federal tax law topics, must be completed 
during each registration year.
    (f) Qualifying continuing education--(1) General--(i) Enrolled 
agents. To qualify for continuing education credit for an enrolled 
agent, a course of learning must--
    (A) Be a qualifying continuing education program designed to enhance 
professional knowledge in Federal taxation or Federal tax related 
matters (programs comprised of current subject matter in Federal 
taxation or Federal tax related matters, including accounting, tax 
return preparation software, taxation, or ethics); and
    (B) Be a qualifying continuing education program consistent with the 
Internal Revenue Code and effective tax administration.

[[Page 130]]

    (ii) Enrolled retirement plan agents. To qualify for continuing 
education credit for an enrolled retirement plan agent, a course of 
learning must--
    (A) Be a qualifying continuing education program designed to enhance 
professional knowledge in qualified retirement plan matters; and
    (B) Be a qualifying continuing education program consistent with the 
Internal Revenue Code and effective tax administration.
    (iii) Registered tax return preparers. To qualify for continuing 
education credit for a registered tax return preparer, a course of 
learning must--
    (A) Be a qualifying continuing education program designed to enhance 
professional knowledge in Federal taxation or Federal tax related 
matters (programs comprised of current subject matter in Federal 
taxation or Federal tax related matters, including accounting, tax 
return preparation software, taxation, or ethics); and
    (B) Be a qualifying continuing education program consistent with the 
Internal Revenue Code and effective tax administration.
    (2) Qualifying programs--(i) Formal programs. A formal program 
qualifies as a continuing education program if it--
    (A) Requires attendance and provides each attendee with a 
certificate of attendance;
    (B) Is conducted by a qualified instructor, discussion leader, or 
speaker (in other words, a person whose background, training, education, 
and experience is appropriate for instructing or leading a discussion on 
the subject matter of the particular program);
    (C) Provides or requires a written outline, textbook, or suitable 
electronic educational materials; and
    (D) Satisfies the requirements established for a qualified 
continuing education program pursuant to Sec.  10.9.
    (ii) Correspondence or individual study programs (including taped 
programs). Qualifying continuing education programs include 
correspondence or individual study programs that are conducted by 
continuing education providers and completed on an individual basis by 
the enrolled individual. The allowable credit hours for such programs 
will be measured on a basis comparable to the measurement of a seminar 
or course for credit in an accredited educational institution. Such 
programs qualify as continuing education programs only if they--
    (A) Require registration of the participants by the continuing 
education provider;
    (B) Provide a means for measuring successful completion by the 
participants (for example, a written examination), including the 
issuance of a certificate of completion by the continuing education 
provider;
    (C) Provide a written outline, textbook, or suitable electronic 
educational materials; and
    (D) Satisfy the requirements established for a qualified continuing 
education program pursuant to Sec.  10.9.
    (iii) Serving as an instructor, discussion leader or speaker. (A) 
One hour of continuing education credit will be awarded for each contact 
hour completed as an instructor, discussion leader, or speaker at an 
educational program that meets the continuing education requirements of 
paragraph (f) of this section.
    (B) A maximum of two hours of continuing education credit will be 
awarded for actual subject preparation time for each contact hour 
completed as an instructor, discussion leader, or speaker at such 
programs. It is the responsibility of the individual claiming such 
credit to maintain records to verify preparation time.
    (C) The maximum continuing education credit for instruction and 
preparation may not exceed four hours annually for registered tax return 
preparers and six hours annually for enrolled agents and enrolled 
retirement plan agents.
    (D) An instructor, discussion leader, or speaker who makes more than 
one presentation on the same subject matter during an enrollment cycle 
or registration year will receive continuing education credit for only 
one such presentation for the enrollment cycle or registration year.
    (3) Periodic examination. Enrolled Agents and Enrolled Retirement 
Plan Agents may establish eligibility for renewal of enrollment for any 
enrollment cycle by--

[[Page 131]]

    (i) Achieving a passing score on each part of the Special Enrollment 
Examination administered under this part during the three year period 
prior to renewal; and
    (ii) Completing a minimum of 16 hours of qualifying continuing 
education during the last year of an enrollment cycle.
    (g) Measurement of continuing education coursework. (1) All 
continuing education programs will be measured in terms of contact 
hours. The shortest recognized program will be one contact hour.
    (2) A contact hour is 50 minutes of continuous participation in a 
program. Credit is granted only for a full contact hour, which is 50 
minutes or multiples thereof. For example, a program lasting more than 
50 minutes but less than 100 minutes will count as only one contact 
hour.
    (3) Individual segments at continuous conferences, conventions and 
the like will be considered one total program. For example, two 90-
minute segments (180 minutes) at a continuous conference will count as 
three contact hours.
    (4) For university or college courses, each semester hour credit 
will equal 15 contact hours and a quarter hour credit will equal 10 
contact hours.
    (h) Recordkeeping requirements. (1) Each individual applying for 
renewal must retain for a period of four years following the date of 
renewal the information required with regard to qualifying continuing 
education credit hours. Such information includes--
    (i) The name of the sponsoring organization;
    (ii) The location of the program;
    (iii) The title of the program, qualified program number, and 
description of its content;
    (iv) Written outlines, course syllibi, textbook, and/or electronic 
materials provided or required for the course;
    (v) The dates attended;
    (vi) The credit hours claimed;
    (vii) The name(s) of the instructor(s), discussion leader(s), or 
speaker(s), if appropriate; and
    (viii) The certificate of completion and/or signed statement of the 
hours of attendance obtained from the continuing education provider.
    (2) To receive continuing education credit for service completed as 
an instructor, discussion leader, or speaker, the following information 
must be maintained for a period of four years following the date of 
renewal--
    (i) The name of the sponsoring organization;
    (ii) The location of the program;
    (iii) The title of the program and copy of its content;
    (iv) The dates of the program; and
    (v) The credit hours claimed.
    (i) Waivers. (1) Waiver from the continuing education requirements 
for a given period may be granted for the following reasons--
    (i) Health, which prevented compliance with the continuing education 
requirements;
    (ii) Extended active military duty;
    (iii) Absence from the United States for an extended period of time 
due to employment or other reasons, provided the individual does not 
practice before the Internal Revenue Service during such absence; and
    (iv) Other compelling reasons, which will be considered on a case-
by-case basis.
    (2) A request for waiver must be accompanied by appropriate 
documentation. The individual is required to furnish any additional 
documentation or explanation deemed necessary. Examples of appropriate 
documentation could be a medical certificate or military orders.
    (3) A request for waiver must be filed no later than the last day of 
the renewal application period.
    (4) If a request for waiver is not approved, the individual will be 
placed in inactive status. The individual will be notified that the 
waiver was not approved and that the individual has been placed on a 
roster of inactive enrolled agents, enrolled retirement plan agents, or 
registered tax return preparers.
    (5) If the request for waiver is not approved, the individual may 
file a protest as prescribed by the Internal Revenue Service in forms, 
instructions, or other appropriate guidance. A protest filed under this 
section is not governed by subpart D of this part.
    (6) If a request for waiver is approved, the individual will be 
notified and

[[Page 132]]

issued a card or certificate evidencing renewal.
    (7) Those who are granted waivers are required to file timely 
applications for renewal of enrollment or registration.
    (j) Failure to comply. (1) Compliance by an individual with the 
requirements of this part is determined by the Internal Revenue Service. 
The Internal Revenue Service will provide notice to any individual who 
fails to meet the continuing education and fee requirements of 
eligibility for renewal. The notice will state the basis for the 
determination of noncompliance and will provide the individual an 
opportunity to furnish the requested information in writing relating to 
the matter within 60 days of the date of the notice. Such information 
will be considered in making a final determination as to eligibility for 
renewal. The individual must be informed of the reason(s) for any denial 
of a renewal. The individual may, within 30 days after receipt of the 
notice of denial of renewal, file a written protest of the denial as 
prescribed by the Internal Revenue Service in forms, instructions, or 
other appropriate guidance. A protest under this section is not governed 
by subpart D of this part.
    (2) The continuing education records of an enrolled agent, enrolled 
retirement plan agent, or registered tax return preparer may be reviewed 
to determine compliance with the requirements and standards for renewal 
as provided in paragraph (f) of this section. As part of this review, 
the enrolled agent, enrolled retirement plan agent or registered tax 
return preparer may be required to provide the Internal Revenue Service 
with copies of any continuing education records required to be 
maintained under this part. If the enrolled agent, enrolled retirement 
plan agent or registered tax return preparer fails to comply with this 
requirement, any continuing education hours claimed may be disallowed.
    (3) An individual who has not filed a timely application for 
renewal, who has not made a timely response to the notice of 
noncompliance with the renewal requirements, or who has not satisfied 
the requirements of eligibility for renewal will be placed on a roster 
of inactive enrolled individuals or inactive registered individuals. 
During this time, the individual will be ineligible to practice before 
the Internal Revenue Service.
    (4) Individuals placed in inactive status and individuals ineligible 
to practice before the Internal Revenue Service may not state or imply 
that they are eligible to practice before the Internal Revenue Service, 
or use the terms enrolled agent, enrolled retirement plan agent, or 
registered tax return preparer, the designations ``EA'' or ``ERPA'' or 
other form of reference to eligibility to practice before the Internal 
Revenue Service.
    (5) An individual placed in inactive status may be reinstated to an 
active status by filing an application for renewal and providing 
evidence of the completion of all required continuing education hours 
for the enrollment cycle or registration year. Continuing education 
credit under this paragraph (j)(5) may not be used to satisfy the 
requirements of the enrollment cycle or registration year in which the 
individual has been placed back on the active roster.
    (6) An individual placed in inactive status must file an application 
for renewal and satisfy the requirements for renewal as set forth in 
this section within three years of being placed in inactive status. 
Otherwise, the name of such individual will be removed from the inactive 
status roster and the individual's status as an enrolled agent, enrolled 
retirement plan agent, or registered tax return preparer will terminate. 
Future eligibility for active status must then be reestablished by the 
individual as provided in this section.
    (7) Inactive status is not available to an individual who is the 
subject of a pending disciplinary matter before the Internal Revenue 
Service.
    (k) Inactive retirement status. An individual who no longer 
practices before the Internal Revenue Service may request to be placed 
in an inactive retirement status at any time and such individual will be 
placed in an inactive retirement status. The individual will be 
ineligible to practice before the Internal Revenue Service. An 
individual who is placed in an inactive retirement status may be 
reinstated to an active status by filing an application for renewal and 
providing evidence of the

[[Page 133]]

completion of the required continuing education hours for the enrollment 
cycle or registration year. Inactive retirement status is not available 
to an individual who is ineligible to practice before the Internal 
Revenue Service or an individual who is the subject of a pending 
disciplinary matter under this part.
    (l) Renewal while under suspension or disbarment. An individual who 
is ineligible to practice before the Internal Revenue Service by virtue 
of disciplinary action under this part is required to conform to the 
requirements for renewal of enrollment or registration before the 
individual's eligibility is restored.
    (m) Enrolled actuaries. The enrollment and renewal of enrollment of 
actuaries authorized to practice under paragraph (d) of Sec.  10.3 are 
governed by the regulations of the Joint Board for the Enrollment of 
Actuaries at 20 CFR 901.1 through 901.72.
    (n) Effective/applicability date. This section is applicable to 
enrollment or registration effective beginning August 2, 2011.

[T.D. 9527, 76 FR 32302, June 3, 2011]



Sec.  10.7  Representing oneself; participating in rulemaking; limited
practice; and special appearances.

    (a) Representing oneself. Individuals may appear on their own behalf 
before the Internal Revenue Service provided they present satisfactory 
identification.
    (b) Participating in rulemaking. Individuals may participate in 
rulemaking as provided by the Administrative Procedure Act. See 5 U.S.C. 
553.
    (c) Limited practice--(1) In general. Subject to the limitations in 
paragraph (c)(2) of this section, an individual who is not a 
practitioner may represent a taxpayer before the Internal Revenue 
Service in the circumstances described in this paragraph (c)(1), even if 
the taxpayer is not present, provided the individual presents 
satisfactory identification and proof of his or her authority to 
represent the taxpayer. The circumstances described in this paragraph 
(c)(1) are as follows:
    (i) An individual may represent a member of his or her immediate 
family.
    (ii) A regular full-time employee of an individual employer may 
represent the employer.
    (iii) A general partner or a regular full-time employee of a 
partnership may represent the partnership.
    (iv) A bona fide officer or a regular full-time employee of a 
corporation (including a parent, subsidiary, or other affiliated 
corporation), association, or organized group may represent the 
corporation, association, or organized group.
    (v) A regular full-time employee of a trust, receivership, 
guardianship, or estate may represent the trust, receivership, 
guardianship, or estate.
    (vi) An officer or a regular employee of a governmental unit, 
agency, or authority may represent the governmental unit, agency, or 
authority in the course of his or her official duties.
    (vii) An individual may represent any individual or entity, who is 
outside the United States, before personnel of the Internal Revenue 
Service when such representation takes place outside the United States.
    (2) Limitations. (i) An individual who is under suspension or 
disbarment from practice before the Internal Revenue Service may not 
engage in limited practice before the Internal Revenue Service under 
paragraph (c)(1) of this section.
    (ii) The Commissioner, or delegate, may, after notice and 
opportunity for a conference, deny eligibility to engage in limited 
practice before the Internal Revenue Service under paragraph (c)(1) of 
this section to any individual who has engaged in conduct that would 
justify a sanction under Sec.  10.50.
    (iii) An individual who represents a taxpayer under the authority of 
paragraph (c)(1) of this section is subject, to the extent of his or her 
authority, to such rules of general applicability regarding standards of 
conduct and other matters as prescribed by the Internal Revenue Service.
    (d) Special appearances. The Commissioner, or delegate, may, subject 
to conditions deemed appropriate, authorize an individual who is not 
otherwise eligible to practice before the Internal Revenue Service to 
represent another person in a particular matter.

[[Page 134]]

    (e) Fiduciaries. For purposes of this part, a fiduciary (for 
example, a trustee, receiver, guardian, personal representative, 
administrator, or executor) is considered to be the taxpayer and not a 
representative of the taxpayer.
    (f) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9011, 67 FR 48765, July 26, 2002, as amended by T.D. 9359, 72 FR 
54544, 54547, Sept. 26, 2007; T.D. 9527, 76 FR 32305, June 3, 2011]



Sec.  10.8  Return preparation and application of rules to other
individuals.

    (a) Preparing all or substantially all of a tax return. Any 
individual who for compensation prepares or assists with the preparation 
of all or substantially all of a tax return or claim for refund must 
have a preparer tax identification number. Except as otherwise 
prescribed in forms, instructions, or other appropriate guidance, an 
individual must be an attorney, certified public accountant, enrolled 
agent, or registered tax return preparer to obtain a preparer tax 
identification number. Any individual who for compensation prepares or 
assists with the preparation of all or substantially all of a tax return 
or claim for refund is subject to the duties and restrictions relating 
to practice in subpart B, as well as subject to the sanctions for 
violation of the regulations in subpart C.
    (b) Preparing a tax return and furnishing information. Any 
individual may for compensation prepare or assist with the preparation 
of a tax return or claim for refund (provided the individual prepares 
less than substantially all of the tax return or claim for refund), 
appear as a witness for the taxpayer before the Internal Revenue 
Service, or furnish information at the request of the Internal Revenue 
Service or any of its officers or employees.
    (c) Application of rules to other individuals. Any individual who 
for compensation prepares, or assists in the preparation of, all or a 
substantial portion of a document pertaining to any taxpayer's tax 
liability for submission to the Internal Revenue Service is subject to 
the duties and restrictions relating to practice in subpart B, as well 
as subject to the sanctions for violation of the regulations in subpart 
C. Unless otherwise a practitioner, however, an individual may not for 
compensation prepare, or assist in the preparation of, all or 
substantially all of a tax return or claim for refund, or sign tax 
returns and claims for refund. For purposes of this paragraph, an 
individual described in 26 CFR 301.7701-15(f) is not treated as having 
prepared all or a substantial portion of the document by reason of such 
assistance.
    (d) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9527, 76 FR 32306, June 3, 2011]



Sec.  10.9  Continuing education providers and continuing education
programs.

    (a) Continuing education providers--(1) In general. Continuing 
education providers are those responsible for presenting continuing 
education programs. A continuing education provider must--
    (i) Be an accredited educational institution;
    (ii) Be recognized for continuing education purposes by the 
licensing body of any State, territory, or possession of the United 
States, including a Commonwealth, or the District of Columbia;
    (iii) Be recognized and approved by a qualifying organization as a 
provider of continuing education on subject matters within Sec.  10.6(f) 
of this part. The Internal Revenue Service may, at its discretion, 
identify a professional organization, society or business entity that 
maintains minimum education standards comparable to those set forth in 
this part as a qualifying organization for purposes of this part in 
appropriate forms, instructions, and other appropriate guidance; or
    (iv) Be recognized by the Internal Revenue Service as a professional 
organization, society, or business whose programs include offering 
continuing professional education opportunities in subject matters 
within Sec.  10.6(f) of this part. The Internal Revenue Service, at its 
discretion, may require such professional organizations, societies, or 
businesses to file an agreement and/or obtain Internal Revenue Service 
approval

[[Page 135]]

of each program as a qualified continuing education program in 
appropriate forms, instructions or other appropriate guidance.
    (2) Continuing education provider numbers--(i) In general. A 
continuing education provider is required to obtain a continuing 
education provider number and pay any applicable user fee.
    (ii) Renewal. A continuing education provider maintains its status 
as a continuing education provider during the continuing education 
provider cycle by renewing its continuing education provider number as 
prescribed by forms, instructions or other appropriate guidance and 
paying any applicable user fee.
    (3) Requirements for qualified continuing education programs. A 
continuing education provider must ensure the qualified continuing 
education program complies with all the following requirements--
    (i) Programs must be developed by individual(s) qualified in the 
subject matter;
    (ii) Program subject matter must be current;
    (iii) Instructors, discussion leaders, and speakers must be 
qualified with respect to program content;
    (iv) Programs must include some means for evaluation of the 
technical content and presentation to be evaluated;
    (v) Certificates of completion bearing a current qualified 
continuing education program number issued by the Internal Revenue 
Service must be provided to the participants who successfully complete 
the program; and
    (vi) Records must be maintained by the continuing education provider 
to verify the participants who attended and completed the program for a 
period of four years following completion of the program. In the case of 
continuous conferences, conventions, and the like, records must be 
maintained to verify completion of the program and attendance by each 
participant at each segment of the program.
    (4) Program numbers--(i) In general. Every continuing education 
provider is required to obtain a continuing education provider program 
number and pay any applicable user fee for each program offered. Program 
numbers shall be obtained as prescribed by forms, instructions or other 
appropriate guidance. Although, at the discretion of the Internal 
Revenue Service, a continuing education provider may be required to 
demonstrate that the program is designed to enhance professional 
knowledge in Federal taxation or Federal tax related matters (programs 
comprised of current subject matter in Federal taxation or Federal tax 
related matters, including accounting, tax return preparation software, 
taxation, or ethics) and complies with the requirements in paragraph 
(a)(2)of this section before a program number is issued.
    (ii) Update programs. Update programs may use the same number as the 
program subject to update. An update program is a program that instructs 
on a change of existing law occurring within one year of the update 
program offering. The qualifying education program subject to update 
must have been offered within the two year time period prior to the 
change in existing law.
    (iii) Change in existing law. A change in existing law means the 
effective date of the statute or regulation, or date of entry of 
judicial decision, that is the subject of the update.
    (b) Failure to comply. Compliance by a continuing education provider 
with the requirements of this part is determined by the Internal Revenue 
Service. A continuing education provider who fails to meet the 
requirements of this part will be notified by the Internal Revenue 
Service. The notice will state the basis for the determination of 
noncompliance and will provide the continuing education provider an 
opportunity to furnish the requested information in writing relating to 
the matter within 60 days of the date of the notice. The continuing 
education provider may, within 30 days after receipt of the notice of 
denial, file a written protest as prescribed by the Internal Revenue 
Service in forms, instructions, or other appropriate guidance. A protest 
under this section is not governed by subpart D of this part.
    (c) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9527, 76 FR 32306, June 3, 2011]

[[Page 136]]



   Subpart B_Duties and Restrictions Relating to Practice Before the 
                        Internal Revenue Service

    Source: T.D. 9011, 67 FR 48771, July 26, 2002, unless otherwise 
noted.



Sec.  10.20  Information to be furnished.

    (a) To the Internal Revenue Service. (1) A practitioner must, on a 
proper and lawful request by a duly authorized officer or employee of 
the Internal Revenue Service, promptly submit records or information in 
any matter before the Internal Revenue Service unless the practitioner 
believes in good faith and on reasonable grounds that the records or 
information are privileged.
    (2) Where the requested records or information are not in the 
possession of, or subject to the control of, the practitioner or the 
practitioner's client, the practitioner must promptly notify the 
requesting Internal Revenue Service officer or employee and the 
practitioner must provide any information that the practitioner has 
regarding the identity of any person who the practitioner believes may 
have possession or control of the requested records or information. The 
practitioner must make reasonable inquiry of his or her client regarding 
the identity of any person who may have possession or control of the 
requested records or information, but the practitioner is not required 
to make inquiry of any other person or independently verify any 
information provided by the practitioner's client regarding the identity 
of such persons.
    (3) When a proper and lawful request is made by a duly authorized 
officer or employee of the Internal Revenue Service, concerning an 
inquiry into an alleged violation of the regulations in this part, a 
practitioner must provide any information the practitioner has 
concerning the alleged violation and testify regarding this information 
in any proceeding instituted under this part, unless the practitioner 
believes in good faith and on reasonable grounds that the information is 
privileged.
    (b) Interference with a proper and lawful request for records or 
information. A practitioner may not interfere, or attempt to interfere, 
with any proper and lawful effort by the Internal Revenue Service, its 
officers or employees, to obtain any record or information unless the 
practitioner believes in good faith and on reasonable grounds that the 
record or information is privileged.
    (c) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9011, 67 FR 48771, July 26, 2002, as amended by T.D. 9527, 76 FR 
32307, June 3, 2011]



Sec.  10.21  Knowledge of client's omission.

    A practitioner who, having been retained by a client with respect to 
a matter administered by the Internal Revenue Service, knows that the 
client has not complied with the revenue laws of the United States or 
has made an error in or omission from any return, document, affidavit, 
or other paper which the client submitted or executed under the revenue 
laws of the United States, must advise the client promptly of the fact 
of such noncompliance, error, or omission. The practitioner must advise 
the client of the consequences as provided under the Code and 
regulations of such noncompliance, error, or omission.



Sec.  10.22  Diligence as to accuracy.

    (a) In general. A practitioner must exercise due diligence--
    (1) In preparing or assisting in the preparation of, approving, and 
filing tax returns, documents, affidavits, and other papers relating to 
Internal Revenue Service matters;
    (2) In determining the correctness of oral or written 
representations made by the practitioner to the Department of the 
Treasury; and
    (3) In determining the correctness of oral or written 
representations made by the practitioner to clients with reference to 
any matter administered by the Internal Revenue Service.
    (b) Reliance on others. Except as modified by Sec. Sec.  10.34 and 
10.37, a practitioner will be presumed to have exercised due diligence 
for purposes of this section if the practitioner relies on the work 
product of another person and the practitioner used reasonable care in 
engaging, supervising, training, and evaluating the person, taking 
proper account of the nature of the relationship between the 
practitioner and the person.

[[Page 137]]

    (c) Effective/applicability date. Paragraph (a) of this section is 
applicable on September 26, 2007. Paragraph (b) of this section is 
applicable beginning June 12, 2014.

[T.D. 9011, 67 FR 48765, July 26, 2002, as amended by T.D. 9359, 72 FR 
54547, Sept. 26, 2007; T.D. 9668, 79 FR 33693, June 12, 2014]



Sec.  10.23  Prompt disposition of pending matters.

    A practitioner may not unreasonably delay the prompt disposition of 
any matter before the Internal Revenue Service.



Sec.  10.24  Assistance from or to disbarred or suspended persons and
former Internal Revenue Service employees.

    A practitioner may not, knowingly and directly or indirectly:
    (a) Accept assistance from or assist any person who is under 
disbarment or suspension from practice before the Internal Revenue 
Service if the assistance relates to a matter or matters constituting 
practice before the Internal Revenue Service.
    (b) Accept assistance from any former government employee where the 
provisions of Sec.  10.25 or any Federal law would be violated.



Sec.  10.25  Practice by former government employees, their partners and
their associates.

    (a) Definitions. For purposes of this section--
    (1) Assist means to act in such a way as to advise, furnish 
information to, or otherwise aid another person, directly, or 
indirectly.
    (2) Government employee is an officer or employee of the United 
States or any agency of the United States, including a special 
Government employee as defined in 18 U.S.C. 202(a), or of the District 
of Columbia, or of any State, or a member of Congress or of any State 
legislature.
    (3) Member of a firm is a sole practitioner or an employee or 
associate thereof, or a partner, stockholder, associate, affiliate or 
employee of a partnership, joint venture, corporation, professional 
association or other affiliation of two or more practitioners who 
represent nongovernmental parties.
    (4) Particular matter involving specific parties is defined at 5 CFR 
2637.201(c), or superseding post-employment regulations issued by the 
U.S. Office of Government Ethics.
    (5) Rule includes Treasury regulations, whether issued or under 
preparation for issuance as notices of proposed rulemaking or as 
Treasury decisions, revenue rulings, and revenue procedures published in 
the Internal Revenue Bulletin (see 26 CFR 601.601(d)(2)(ii)(b)).
    (b) General rules. (1) No former Government employee may, subsequent 
to Government employment, represent anyone in any matter administered by 
the Internal Revenue Service if the representation would violate 18 
U.S.C. 207 or any other laws of the United States.
    (2) No former Government employee who personally and substantially 
participated in a particular matter involving specific parties may, 
subsequent to Government employment, represent or knowingly assist, in 
that particular matter, any person who is or was a specific party to 
that particular matter.
    (3) A former Government employee who within a period of one year 
prior to the termination of Government employment had official 
responsibility for a particular matter involving specific parties may 
not, within two years after Government employment is ended, represent in 
that particular matter any person who is or was a specific party to that 
particular matter.
    (4) No former Government employee may, within one year after 
Government employment is ended, communicate with or appear before, with 
the intent to influence, any employee of the Treasury Department in 
connection with the publication, withdrawal, amendment, modification, or 
interpretation of a rule the development of which the former Government 
employee participated in, or for which, within a period of one year 
prior to the termination of Government employment, the former government 
employee had official responsibility. This paragraph (b)(4) does not, 
however, preclude any former employee from appearing on one's own behalf 
or from representing a taxpayer before the Internal Revenue Service in 
connection

[[Page 138]]

with a particular matter involving specific parties involving the 
application or interpretation of a rule with respect to that particular 
matter, provided that the representation is otherwise consistent with 
the other provisions of this section and the former employee does not 
utilize or disclose any confidential information acquired by the former 
employee in the development of the rule.
    (c) Firm representation. (1) No member of a firm of which a former 
Government employee is a member may represent or knowingly assist a 
person who was or is a specific party in any particular matter with 
respect to which the restrictions of paragraph (b)(2) of this section 
apply to the former Government employee, in that particular matter, 
unless the firm isolates the former Government employee in such a way to 
ensure that the former Government employee cannot assist in the 
representation.
    (2) When isolation of a former Government employee is required under 
paragraph (c)(1) of this section, a statement affirming the fact of such 
isolation must be executed under oath by the former Government employee 
and by another member of the firm acting on behalf of the firm. The 
statement must clearly identify the firm, the former Government 
employee, and the particular matter(s) requiring isolation. The 
statement must be retained by the firm and, upon request, provided to 
the office(s) of the Internal Revenue Service administering or enforcing 
this part.
    (d) Pending representation. The provisions of this regulation will 
govern practice by former Government employees, their partners and 
associates with respect to representation in particular matters 
involving specific parties where actual representation commenced before 
the effective date of this regulation.
    (e) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9359, 72 FR 54548, Sept. 26, 2007, as amended by T.D. 9527, 76 FR 
32307, June 3, 2011]



Sec.  10.26  Notaries.

    A practitioner may not take acknowledgments, administer oaths, 
certify papers, or perform any official act as a notary public with 
respect to any matter administered by the Internal Revenue Service and 
for which he or she is employed as counsel, attorney, or agent, or in 
which he or she may be in any way interested.



Sec.  10.27  Fees.

    (a) In general. A practitioner may not charge an unconscionable fee 
in connection with any matter before the Internal Revenue Service.
    (b) Contingent fees. (1) Except as provided in paragraphs (b)(2), 
(3), and (4) of this section, a practitioner may not charge a contingent 
fee for services rendered in connection with any matter before the 
Internal Revenue Service.
    (2) A practitioner may charge a contingent fee for services rendered 
in connection with the Service's examination of, or challenge to--
    (i) An original tax return; or
    (ii) An amended return or claim for refund or credit where the 
amended return or claim for refund or credit was filed within 120 days 
of the taxpayer receiving a written notice of the examination of, or a 
written challenge to the original tax return.
    (3) A practitioner may charge a contingent fee for services rendered 
in connection with a claim for credit or refund filed solely in 
connection with the determination of statutory interest or penalties 
assessed by the Internal Revenue Service.
    (4) A practitioner may charge a contingent fee for services rendered 
in connection with any judicial proceeding arising under the Internal 
Revenue Code.
    (c) Definitions. For purposes of this section--
    (1) Contingent fee is any fee that is based, in whole or in part, on 
whether or not a position taken on a tax return or other filing avoids 
challenge by the Internal Revenue Service or is sustained either by the 
Internal Revenue Service or in litigation. A contingent fee includes a 
fee that is based on a percentage of the refund reported on a return, 
that is based on a percentage of

[[Page 139]]

the taxes saved, or that otherwise depends on the specific result 
attained. A contingent fee also includes any fee arrangement in which 
the practitioner will reimburse the client for all or a portion of the 
client's fee in the event that a position taken on a tax return or other 
filing is challenged by the Internal Revenue Service or is not 
sustained, whether pursuant to an indemnity agreement, a guarantee, 
rescission rights, or any other arrangement with a similar effect.
    (2) Matter before the Internal Revenue Service includes tax planning 
and advice, preparing or filing or assisting in preparing or filing 
returns or claims for refund or credit, and all matters connected with a 
presentation to the Internal Revenue Service or any of its officers or 
employees relating to a taxpayer's rights, privileges, or liabilities 
under laws or regulations administered by the Internal Revenue Service. 
Such presentations include, but are not limited to, preparing and filing 
documents, corresponding and communicating with the Internal Revenue 
Service, rendering written advice with respect to any entity, 
transaction, plan or arrangement, and representing a client at 
conferences, hearings, and meetings.
    (d) Effective/applicability date. This section is applicable for fee 
arrangements entered into after March 26, 2008.

[T.D. 9359, 72 FR 54548, Sept. 26, 2007]



Sec.  10.28  Return of client's records.

    (a) In general, a practitioner must, at the request of a client, 
promptly return any and all records of the client that are necessary for 
the client to comply with his or her Federal tax obligations. The 
practitioner may retain copies of the records returned to a client. The 
existence of a dispute over fees generally does not relieve the 
practitioner of his or her responsibility under this section. 
Nevertheless, if applicable state law allows or permits the retention of 
a client's records by a practitioner in the case of a dispute over fees 
for services rendered, the practitioner need only return those records 
that must be attached to the taxpayer's return. The practitioner, 
however, must provide the client with reasonable access to review and 
copy any additional records of the client retained by the practitioner 
under state law that are necessary for the client to comply with his or 
her Federal tax obligations.
    (b) For purposes of this section, Records of the client include all 
documents or written or electronic materials provided to the 
practitioner, or obtained by the practitioner in the course of the 
practitioner's representation of the client, that preexisted the 
retention of the practitioner by the client. The term also includes 
materials that were prepared by the client or a third party (not 
including an employee or agent of the practitioner) at any time and 
provided to the practitioner with respect to the subject matter of the 
representation. The term also includes any return, claim for refund, 
schedule, affidavit, appraisal or any other document prepared by the 
practitioner, or his or her employee or agent, that was presented to the 
client with respect to a prior representation if such document is 
necessary for the taxpayer to comply with his or her current Federal tax 
obligations. The term does not include any return, claim for refund, 
schedule, affidavit, appraisal or any other document prepared by the 
practitioner or the practitioner's firm, employees or agents if the 
practitioner is withholding such document pending the client's 
performance of its contractual obligation to pay fees with respect to 
such document.



Sec.  10.29  Conflicting interests.

    (a) Except as provided by paragraph (b) of this section, a 
practitioner shall not represent a client before the Internal Revenue 
Service if the representation involves a conflict of interest. A 
conflict of interest exists if--
    (1) The representation of one client will be directly adverse to 
another client; or
    (2) There is a significant risk that the representation of one or 
more clients will be materially limited by the practitioner's 
responsibilities to another client, a former client or a third person, 
or by a personal interest of the practitioner.
    (b) Notwithstanding the existence of a conflict of interest under 
paragraph (a) of this section, the practitioner may represent a client 
if--

[[Page 140]]

    (1) The practitioner reasonably believes that the practitioner will 
be able to provide competent and diligent representation to each 
affected client;
    (2) The representation is not prohibited by law; and
    (3) Each affected client waives the conflict of interest and gives 
informed consent, confirmed in writing by each affected client, at the 
time the existence of the conflict of interest is known by the 
practitioner. The confirmation may be made within a reasonable period 
after the informed consent, but in no event later than 30 days.
    (c) Copies of the written consents must be retained by the 
practitioner for at least 36 months from the date of the conclusion of 
the representation of the affected clients, and the written consents 
must be provided to any officer or employee of the Internal Revenue 
Service on request.
    (d) Effective/applicability date. This section is applicable on 
September 26, 2007.

[T.D. 9359, 72 FR 54549, Sept. 26, 2007]



Sec.  10.30  Solicitation.

    (a) Advertising and solicitation restrictions. (1) A practitioner 
may not, with respect to any Internal Revenue Service matter, in any way 
use or participate in the use of any form of public communication or 
private solicitation containing a false, fraudulent, or coercive 
statement or claim; or a misleading or deceptive statement or claim. 
Enrolled agents, enrolled retirement plan agents, or registered tax 
return preparers, in describing their professional designation, may not 
utilize the term ``certified'' or imply an employer/employee 
relationship with the Internal Revenue Service. Examples of acceptable 
descriptions for enrolled agents are ``enrolled to represent taxpayers 
before the Internal Revenue Service,'' ``enrolled to practice before the 
Internal Revenue Service,'' and ``admitted to practice before the 
Internal Revenue Service.'' Similarly, examples of acceptable 
descriptions for enrolled retirement plan agents are ``enrolled to 
represent taxpayers before the Internal Revenue Service as a retirement 
plan agent'' and ``enrolled to practice before the Internal Revenue 
Service as a retirement plan agent.'' An example of an acceptable 
description for registered tax return preparers is ``designated as a 
registered tax return preparer by the Internal Revenue Service.''
    (2) A practitioner may not make, directly or indirectly, an 
uninvited written or oral solicitation of employment in matters related 
to the Internal Revenue Service if the solicitation violates Federal or 
State law or other applicable rule, e.g., attorneys are precluded from 
making a solicitation that is prohibited by conduct rules applicable to 
all attorneys in their State(s) of licensure. Any lawful solicitation 
made by or on behalf of a practitioner eligible to practice before the 
Internal Revenue Service must, nevertheless, clearly identify the 
solicitation as such and, if applicable, identify the source of the 
information used in choosing the recipient.
    (b) Fee information. (1)(i) A practitioner may publish the 
availability of a written schedule of fees and disseminate the following 
fee information--
    (A) Fixed fees for specific routine services.
    (B) Hourly rates.
    (C) Range of fees for particular services.
    (D) Fee charged for an initial consultation.
    (ii) Any statement of fee information concerning matters in which 
costs may be incurred must include a statement disclosing whether 
clients will be responsible for such costs.
    (2) A practitioner may charge no more than the rate(s) published 
under paragraph (b)(1) of this section for at least 30 calendar days 
after the last date on which the schedule of fees was published.
    (c) Communication of fee information. Fee information may be 
communicated in professional lists, telephone directories, print media, 
mailings, electronic mail, facsimile, hand delivered flyers, radio, 
television, and any other method. The method chosen, however, must not 
cause the communication to become untruthful, deceptive, or otherwise in 
violation of this part. A practitioner may not persist in attempting to 
contact a prospective client if the prospective client has made it known 
to the practitioner that he or she does

[[Page 141]]

not desire to be solicited. In the case of radio and television 
broadcasting, the broadcast must be recorded and the practitioner must 
retain a recording of the actual transmission. In the case of direct 
mail and e-commerce communications, the practitioner must retain a copy 
of the actual communication, along with a list or other description of 
persons to whom the communication was mailed or otherwise distributed. 
The copy must be retained by the practitioner for a period of at least 
36 months from the date of the last transmission or use.
    (d) Improper associations. A practitioner may not, in matters 
related to the Internal Revenue Service, assist, or accept assistance 
from, any person or entity who, to the knowledge of the practitioner, 
obtains clients or otherwise practices in a manner forbidden under this 
section.
    (e) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

(Approved by the Office of Management and Budget under Control No. 1545-
1726)

[T.D. 9011, 67 FR 48765, July 26, 2002, as amended by T.D. 9359, 72 FR 
54549, Sept. 26, 2007; T.D. 9527, 76 FR 32307, June 3, 2011]



Sec.  10.31  Negotiation of taxpayer checks.

    (a) A practitioner may not endorse or otherwise negotiate any check 
(including directing or accepting payment by any means, electronic or 
otherwise, into an account owned or controlled by the practitioner or 
any firm or other entity with whom the practitioner is associated) 
issued to a client by the government in respect of a Federal tax 
liability.
    (b) Effective/applicability date. This section is applicable 
beginning June 12, 2014.

[T.D. 9668, 79 FR 33693, June 12, 2014]



Sec.  10.32  Practice of law.

    Nothing in the regulations in this part may be construed as 
authorizing persons not members of the bar to practice law.



Sec.  10.33  Best practices for tax advisors.

    (a) Best practices. Tax advisors should provide clients with the 
highest quality representation concerning Federal tax issues by adhering 
to best practices in providing advice and in preparing or assisting in 
the preparation of a submission to the Internal Revenue Service. In 
addition to compliance with the standards of practice provided elsewhere 
in this part, best practices include the following:
    (1) Communicating clearly with the client regarding the terms of the 
engagement. For example, the advisor should determine the client's 
expected purpose for and use of the advice and should have a clear 
understanding with the client regarding the form and scope of the advice 
or assistance to be rendered.
    (2) Establishing the facts, determining which facts are relevant, 
evaluating the reasonableness of any assumptions or representations, 
relating the applicable law (including potentially applicable judicial 
doctrines) to the relevant facts, and arriving at a conclusion supported 
by the law and the facts.
    (3) Advising the client regarding the import of the conclusions 
reached, including, for example, whether a taxpayer may avoid accuracy-
related penalties under the Internal Revenue Code if a taxpayer acts in 
reliance on the advice.
    (4) Acting fairly and with integrity in practice before the Internal 
Revenue Service.
    (b) Procedures to ensure best practices for tax advisors. Tax 
advisors with responsibility for overseeing a firm's practice of 
providing advice concerning Federal tax issues or of preparing or 
assisting in the preparation of submissions to the Internal Revenue 
Service should take reasonable steps to ensure that the firm's 
procedures for all members, associates, and employees are consistent 
with the best practices set forth in paragraph (a) of this section.
    (c) Applicability date. This section is effective after June 20, 
2005.

[T.D. 9011, 67 FR 48771, July 26, 2002, as amended by T.D. 9165, 69 FR 
75841, Dec. 20, 2004]

[[Page 142]]



Sec.  10.34  Standards with respect to tax returns and documents, 
affidavits and other papers.

    (a) Tax returns. (1) A practitioner may not willfully, recklessly, 
or through gross incompetence--
    (i) Sign a tax return or claim for refund that the practitioner 
knows or reasonably should know contains a position that--
    (A) Lacks a reasonable basis;
    (B) Is an unreasonable position as described in section 6694(a)(2) 
of the Internal Revenue code (Code) (including the related regulations 
and other published guidance); or
    (C) Is a willful attempted by the practitioner to understate the 
liability for tax or a reckless or intentional disregard of rules or 
regulations by the practitioner as described in section 6694(b)(2) of 
the Code (including the related regulations and other published 
guidance).
    (ii) Advise a client to take a position on a tax return or claim for 
refund, or prepare a portion off a tax return or claim for refund 
containing a position, that--
    (A) Lacks a reasonable basis;
    (B) Is an unreasonable position as described in section 6694(a)(2) 
of the Code (including the related regulations and other published 
guidance); or
    (C) Is a willful attempt by the practitioner to understate the 
liability for tax or a reckless or intentional disregard of rules or 
regulations by the practitioner as described in section 6694(b)(2) of 
the Code (including the related regulations and other published 
guidance).
    (2) A pattern of conduct is a factor that will be taken into account 
in determining whether a practitioner acted willfully, recklessly, or 
through gross incompetence.
    (b) Documents, affidavits and other papers. (1) A practitioner may 
not advise a client to take a position on a document, affidavit or other 
paper submitted to the Internal Revenue Service unless the position is 
not frivolous.
    (2) A practitioner may not advise a client to submit a document, 
affidavit or other paper to the Internal Revenue Service--
    (i) The purpose of which is to delay or impede the administration of 
the Federal tax laws;
    (ii) That is frivolous; or
    (iii) That contains or omits information in a manner that 
demonstrates an intentional disregard of a rule or regulation unless the 
practitioner also advises the client to submit a document that evidences 
a good faith challenge to the rule or regulation.
    (c) Advising clients on potential penalties. (1) A practitioner must 
inform a client of any penalties that are reasonably likely to apply to 
the client with respect to--
    (i) A position taken on a tax return if--
    (A) The practitioner advised the client with respect to the 
position; or
    (B) The practitioner prepared or signed the tax return; and
    (ii) Any document, affidavit or other paper submitted to the 
Internal Revenue Service.
    (2) The practitioner also must inform the client of any opportunity 
to avoid any such penalties by disclosure, if relevant, and of the 
requirements for adequate disclosure.
    (3) This paragraph (c) applies even if the practitioner is not 
subject to a penalty under the Internal Revenue Code with respect to the 
position or with respect to the document, affidavit or other paper 
submitted.
    (d) Relying on information furnished by clients. A practitioner 
advising a client to take a position on a tax return, document, 
affidavit or other paper submitted to the Internal Revenue Service, or 
preparing or signing a tax return as a preparer, generally may rely in 
good faith without verification upon information furnished by the 
client. The practitioner may not, however, ignore the implications of 
information furnished to, or actually known by, the practitioner, and 
must make reasonable inquiries if the information as furnished appears 
to be incorrect, inconsistent with an important fact or another factual 
assumption, or incomplete.
    (e) Effective/applicability date. Paragraph (a) of this section is 
applicable for returns or claims for refund filed, or advice provided, 
beginning August 2, 2011. Paragraphs (b) through (d) of this

[[Page 143]]

section are applicable to tax returns, documents, affidavits, and other 
papers filed on or after September 26, 2007.

[T.D. 9359, 72 FR 54549, Sept. 26, 2007, as amended by T.D. 9527, 76 FR 
32307, June 3, 2011]



Sec.  10.35  Competence.

    (a) A practitioner must possess the necessary competence to engage 
in practice before the Internal Revenue Service. Competent practice 
requires the appropriate level of knowledge, skill, thoroughness, and 
preparation necessary for the matter for which the practitioner is 
engaged. A practitioner may become competent for the matter for which 
the practitioner has been engaged through various methods, such as 
consulting with experts in the relevant area or studying the relevant 
law.
    (b) Effective/applicability date. This section is applicable 
beginning June 12, 2014.

[T.D. 9668, 79 FR 33693, June 12, 2014]



Sec.  10.36  Procedures to ensure compliance.

    (a) Any individual subject to the provisions of this part who has 
(or individuals who have or share) principal authority and 
responsibility for overseeing a firm's practice governed by this part, 
including the provision of advice concerning Federal tax matters and 
preparation of tax returns, claims for refund, or other documents for 
submission to the Internal Revenue Service, must take reasonable steps 
to ensure that the firm has adequate procedures in effect for all 
members, associates, and employees for purposes of complying with 
subparts A, B, and C of this part, as applicable. In the absence of a 
person or persons identified by the firm as having the principal 
authority and responsibility described in this paragraph, the Internal 
Revenue Service may identify one or more individuals subject to the 
provisions of this part responsible for compliance with the requirements 
of this section.
    (b) Any such individual who has (or such individuals who have or 
share) principal authority as described in paragraph (a) of this section 
will be subject to discipline for failing to comply with the 
requirements of this section if--
    (1) The individual through willfulness, recklessness, or gross 
incompetence does not take reasonable steps to ensure that the firm has 
adequate procedures to comply with this part, as applicable, and one or 
more individuals who are members of, associated with, or employed by, 
the firm are, or have, engaged in a pattern or practice, in connection 
with their practice with the firm, of failing to comply with this part, 
as applicable;
    (2) The individual through willfulness, recklessness, or gross 
incompetence does not take reasonable steps to ensure that firm 
procedures in effect are properly followed, and one or more individuals 
who are members of, associated with, or employed by, the firm are, or 
have, engaged in a pattern or practice, in connection with their 
practice with the firm, of failing to comply with this part, as 
applicable; or
    (3) The individual knows or should know that one or more individuals 
who are members of, associated with, or employed by, the firm are, or 
have, engaged in a pattern or practice, in connection with their 
practice with the firm, that does not comply with this part, as 
applicable, and the individual, through willfulness, recklessness, or 
gross incompetence fails to take prompt action to correct the 
noncompliance.
    (c) Effective/applicability date. This section is applicable 
beginning June 12, 2014.

[T.D. 9668, 79 FR 33693, June 12, 2014]



Sec.  10.37  Requirements for written advice.

    (a) Requirements. (1) A practitioner may give written advice 
(including by means of electronic communication) concerning one or more 
Federal tax matters subject to the requirements in paragraph (a)(2) of 
this section. Government submissions on matters of general policy are 
not considered written advice on a Federal tax matter for purposes of 
this section. Continuing education presentations provided to an audience 
solely for the purpose of enhancing practitioners' professional 
knowledge on Federal tax matters are

[[Page 144]]

not considered written advice on a Federal tax matter for purposes of 
this section. The preceding sentence does not apply to presentations 
marketing or promoting transactions.
    (2) The practitioner must--
    (i) Base the written advice on reasonable factual and legal 
assumptions (including assumptions as to future events);
    (ii) Reasonably consider all relevant facts and circumstances that 
the practitioner knows or reasonably should know;
    (iii) Use reasonable efforts to identify and ascertain the facts 
relevant to written advice on each Federal tax matter;
    (iv) Not rely upon representations, statements, findings, or 
agreements (including projections, financial forecasts, or appraisals) 
of the taxpayer or any other person if reliance on them would be 
unreasonable;
    (v) Relate applicable law and authorities to facts; and
    (vi) Not, in evaluating a Federal tax matter, take into account the 
possibility that a tax return will not be audited or that a matter will 
not be raised on audit.
    (3) Reliance on representations, statements, findings, or agreements 
is unreasonable if the practitioner knows or reasonably should know that 
one or more representations or assumptions on which any representation 
is based are incorrect, incomplete, or inconsistent.
    (b) Reliance on advice of others. A practitioner may only rely on 
the advice of another person if the advice was reasonable and the 
reliance is in good faith considering all the facts and circumstances. 
Reliance is not reasonable when--
    (1) The practitioner knows or reasonably should know that the 
opinion of the other person should not be relied on;
    (2) The practitioner knows or reasonably should know that the other 
person is not competent or lacks the necessary qualifications to provide 
the advice; or
    (3) The practitioner knows or reasonably should know that the other 
person has a conflict of interest in violation of the rules described in 
this part.
    (c) Standard of review. (1) In evaluating whether a practitioner 
giving written advice concerning one or more Federal tax matters 
complied with the requirements of this section, the Commissioner, or 
delegate, will apply a reasonable practitioner standard, considering all 
facts and circumstances, including, but not limited to, the scope of the 
engagement and the type and specificity of the advice sought by the 
client.
    (2) In the case of an opinion the practitioner knows or has reason 
to know will be used or referred to by a person other than the 
practitioner (or a person who is a member of, associated with, or 
employed by the practitioner's firm) in promoting, marketing, or 
recommending to one or more taxpayers a partnership or other entity, 
investment plan or arrangement a significant purpose of which is the 
avoidance or evasion of any tax imposed by the Internal Revenue Code, 
the Commissioner, or delegate, will apply a reasonable practitioner 
standard, considering all facts and circumstances, with emphasis given 
to the additional risk caused by the practitioner's lack of knowledge of 
the taxpayer's particular circumstances, when determining whether a 
practitioner has failed to comply with this section.
    (d) Federal tax matter. A Federal tax matter, as used in this 
section, is any matter concerning the application or interpretation of--
    (1) A revenue provision as defined in section 6110(i)(1)(B) of the 
Internal Revenue Code;
    (2) Any provision of law impacting a person's obligations under the 
internal revenue laws and regulations, including but not limited to the 
person's liability to pay tax or obligation to file returns; or
    (3) Any other law or regulation administered by the Internal Revenue 
Service.
    (e) Effective/applicability date. This section is applicable to 
written advice rendered after June 12, 2014.

[T.D. 9668, 79 FR 33693, June 12, 2014]



Sec.  10.38  Establishment of advisory committees.

    (a) Advisory committees. To promote and maintain the public's 
confidence in

[[Page 145]]

tax advisors, the Internal Revenue Service is authorized to establish 
one or more advisory committees composed of at least six individuals 
authorized to practice before the Internal Revenue Service. Membership 
of an advisory committee must be balanced among those who practice as 
attorneys, accountants, enrolled agents, enrolled actuaries, enrolled 
retirement plan agents, and registered tax return preparers. Under 
procedures prescribed by the Internal Revenue Service, an advisory 
committee may review and make general recommendations regarding the 
practices, procedures, and policies of the offices described in Sec.  
10.1.
    (b) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9527, 76 FR 32308, June 3, 2011]



          Subpart C_Sanctions for Violation of the Regulations

    Source: T.D. 9011, 67 FR 48774, July 26, 2002, unless otherwise 
noted.



Sec.  10.50  Sanctions.

    (a) Authority to censure, suspend, or disbar. The Secretary of the 
Treasury, or delegate, after notice and an opportunity for a proceeding, 
may censure, suspend, or disbar any practitioner from practice before 
the Internal Revenue Service if the practitioner is shown to be 
incompetent or disreputable (within the meaning of Sec.  10.51), fails 
to comply with any regulation in this part (under the prohibited conduct 
standards of Sec.  10.52), or with intent to defraud, willfully and 
knowingly misleads or threatens a client or prospective client. Censure 
is a public reprimand.
    (b) Authority to disqualify. The Secretary of the Treasury, or 
delegate, after due notice and opportunity for hearing, may disqualify 
any appraiser for a violation of these rules as applicable to 
appraisers.
    (1) If any appraiser is disqualified pursuant to this subpart C, the 
appraiser is barred from presenting evidence or testimony in any 
administrative proceeding before the Department of Treasury or the 
Internal Revenue Service, unless and until authorized to do so by the 
Internal Revenue Service pursuant to Sec.  10.81, regardless of whether 
the evidence or testimony would pertain to an appraisal made prior to or 
after the effective date of disqualification.
    (2) Any appraisal made by a disqualified appraiser after the 
effective date of disqualification will not have any probative effect in 
any administrative proceeding before the Department of the Treasury or 
the Internal Revenue Service. An appraisal otherwise barred from 
admission into evidence pursuant to this section may be admitted into 
evidence solely for the purpose of determining the taxpayer's reliance 
in good faith on such appraisal.
    (c) Authority to impose monetary penalty--(1) In general. (i) The 
Secretary of the Treasury, or delegate, after notice and an opportunity 
for a proceeding, may impose a monetary penalty on any practitioner who 
engages in conduct subject to sanction under paragraph (a) of this 
section.
    (ii) If the practitioner described in paragraph (c)(1)(i) of this 
section was acting on behalf of an employer or any firm or other entity 
in connection with the conduct giving rise to the penalty, the Secretary 
of the Treasury, or delegate, may impose a monetary penalty on the 
employer, firm, or entity if it knew, or reasonably should have known, 
of such conduct.
    (2) Amount of penalty. The amount of the penalty shall not exceed 
the gross income derived (or to be derived) from the conduct giving rise 
to the penalty.
    (3) Coordination with other sanctions. Subject to paragraph (c)(2) 
of this section--
    (i) Any monetary penalty imposed on a practitioner under this 
paragraph (c) may be in addition to or in lieu of any suspension, 
disbarment or censure and may be in addition to a penalty imposed on an 
employer, firm or other entity under paragraph (c)(1)(ii) of this 
section.
    (ii) Any monetary penalty imposed on an employer, firm or other 
entity may be in addition to or in lieu of penalties imposed under 
paragraph (c)(1)(i) of this section.

[[Page 146]]

    (d) Authority to accept a practitioner's consent to sanction. The 
Internal Revenue Service may accept a practitioner's offer of consent to 
be sanctioned under Sec.  10.50 in lieu of instituting or continuing a 
proceeding under Sec.  10.60(a).
    (e) Sanctions to be imposed. The sanctions imposed by this section 
shall take into account all relevant facts and circumstances.
    (f) Effective/applicability date. This section is applicable to 
conduct occurring on or after August 2, 2011, except that paragraphs 
(a), (b)(2), and (e) apply to conduct occurring on or after September 
26, 2007, and paragraph (c) applies to prohibited conduct that occurs 
after October 22, 2004.

[T.D. 9359, 72 FR 54549, Sept. 26, 2007, as amended by T.D. 9527, 76 FR 
32308, June 3, 2011]



Sec.  10.51  Incompetence and disreputable conduct.

    (a) Incompetence and disreputable conduct. Incompetence and 
disreputable conduct for which a practitioner may be sanctioned under 
Sec.  10.50 includes, but is not limited to--
    (1) Conviction of any criminal offense under the Federal tax laws.
    (2) Conviction of any criminal offense involving dishonesty or 
breach of trust.
    (3) Conviction of any felony under Federal or State law for which 
the conduct involved renders the practitioner unfit to practice before 
the Internal Revenue Service.
    (4) Giving false or misleading information, or participating in any 
way in the giving of false or misleading information to the Department 
of the Treasury or any officer or employee thereof, or to any tribunal 
authorized to pass upon Federal tax matters, in connection with any 
matter pending or likely to be pending before them, knowing the 
information to be false or misleading. Facts or other matters contained 
in testimony, Federal tax returns, financial statements, applications 
for enrollment, affidavits, declarations, and any other document or 
statement, written or oral, are included in the term ``information.''
    (5) Solicitation of employment as prohibited under Sec.  10.30, the 
use of false or misleading representations with intent to deceive a 
client or prospective client in order to procure employment, or 
intimating that the practitioner is able improperly to obtain special 
consideration or action from the Internal Revenue Service or any officer 
or employee thereof.
    (6) Willfully failing to make a Federal tax return in violation of 
the Federal tax laws, or willfully evading, attempting to evade, or 
participating in any way in evading or attempting to evade any 
assessment or payment of any Federal tax.
    (7) Willfully assisting, counseling, encouraging a client or 
prospective client in violating, or suggesting to a client or 
prospective client to violate, any Federal tax law, or knowingly 
counseling or suggesting to a client or prospective client an illegal 
plan to evade Federal taxes or payment thereof.
    (8) Misappropriation of, or failure properly or promptly to remit, 
funds received from a client for the purpose of payment of taxes or 
other obligations due the United States.
    (9) Directly or indirectly attempting to influence, or offering or 
agreeing to attempt to influence, the official action of any officer or 
employee of the Internal Revenue Service by the use of threats, false 
accusations, duress or coercion, by the offer of any special inducement 
or promise of an advantage, or by the bestowing of any gift, favor or 
thing of value.
    (10) Disbarment or suspension from practice as an attorney, 
certified public accountant, public accountant or actuary by any duly 
constituted authority of any State, territory, or possession of the 
United States, including a Commonwealth, or the District of Columbia, 
any Federal court of record or any Federal agency, body or board.
    (11) Knowingly aiding and abetting another person to practice before 
the Internal Revenue Service during a period of suspension, disbarment 
or ineligibility of such other person.
    (12) Contemptuous conduct in connection with practice before the 
Internal Revenue Service, including the use of abusive language, making 
false accusations or statements, knowing them to be false or circulating 
or publishing malicious or libelous matter.

[[Page 147]]

    (13) Giving a false opinion, knowingly, recklessly, or through gross 
incompetence, including an opinion which is intentionally or recklessly 
misleading, or engaging in a pattern of providing incompetent opinions 
on questions arising under the Federal tax laws. False opinions 
described in this paragraph (a)(13) include those which reflect or 
result from a knowing misstatement of fact or law, from an assertion of 
a position known to be unwarranted under existing law, from counseling 
or assisting in conduct known to be illegal or fraudulent, from 
concealing matters required by law to be revealed, or from consciously 
disregarding information indicating that material facts expressed in the 
opinion or offering material are false or misleading. For purposes of 
this paragraph (a)(13), reckless conduct is a highly unreasonable 
omission or misrepresentation involving an extreme departure from the 
standards of ordinary care that a practitioner should observe under the 
circumstances. A pattern of conduct is a factor that will be taken into 
account in determining whether a practitioner acted knowingly, 
recklessly, or through gross incompetence. Gross incompetence includes 
conduct that reflects gross indifference, preparation which is grossly 
inadequate under the circumstances, and a consistent failure to perform 
obligations to the client.
    (14) Willfully failing to sign a tax return prepared by the 
practitioner when the practitioner's signature is required by the 
Federal tax laws unless the failure is due to reasonable cause and not 
due to willful neglect.
    (15) Willfully disclosing or otherwise using a tax return or tax 
return information in a manner not authorized by the Internal Revenue 
Code, contrary to the order of a court of competent jurisdiction, or 
contrary to the order of an administrative law judge in a proceeding 
instituted under Sec.  10.60.
    (16) Willfully failing to file on magnetic or other electronic media 
a tax return prepared by the practitioner when the practitioner is 
required to do so by the Federal tax laws unless the failure is due to 
reasonable cause and not due to willful neglect.
    (17) Willfully preparing all or substantially all of, or signing, a 
tax return or claim for refund when the practitioner does not possess a 
current or otherwise valid preparer tax identification number or other 
prescribed identifying number.
    (18) Willfully representing a taxpayer before an officer or employee 
of the Internal Revenue Service unless the practitioner is authorized to 
do so pursuant to this part.
    (b) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9359, 72 FR 54550, Sept. 26, 2007, as amended by T.D. 9527, 76 FR 
32308, June 3, 2011]



Sec.  10.52  Violations subject to sanction.

    (a) A practitioner may be sanctioned under Sec.  10.50 if the 
practitioner--
    (1) Willfully violates any of the regulations (other than Sec.  
10.33) contained in this part; or
    (2) Recklessly or through gross incompetence (within the meaning of 
Sec.  10.51(a)(13)) violates Sec.  10.34, Sec.  10.35, Sec.  10.36 or 
Sec.  10.37.
    (b) Effective/applicability date. This section is applicable to 
conduct occurring on or after September 26, 2007.

[T.D. 9359, 72 FR 54551, Sept. 26, 2007]



Sec.  10.53  Receipt of information concerning practitioner.

    (a) Officer or employee of the Internal Revenue Service. If an 
officer or employee of the Internal Revenue Service has reason to 
believe a practitioner has violated any provision of this part, the 
officer or employee will promptly make a written report of the suspected 
violation. The report will explain the facts and reasons upon which the 
officer's or employee's belief rests and must be submitted to the 
office(s) of the Internal Revenue Service responsible for administering 
or enforcing this part.
    (b) Other persons. Any person other than an officer or employee of 
the Internal Revenue Service having information of a violation of any 
provision of this part may make an oral or written report of the alleged 
violation to the office(s) of the Internal Revenue Service responsible 
for administering

[[Page 148]]

or enforcing this part or any officer or employee of the Internal 
Revenue Service. If the report is made to an officer or employee of the 
Internal Revenue Service, the officer or employee will make a written 
report of the suspected violation and submit the report to the office(s) 
of the Internal Revenue Service responsible for administering or 
enforcing this part.
    (c) Destruction of report. No report made under paragraph (a) or (b) 
of this section shall be maintained unless retention of the report is 
permissible under the applicable records control schedule as approved by 
the National Archives and Records Administration and designated in the 
Internal Revenue Manual. Reports must be destroyed as soon as 
permissible under the applicable records control schedule.
    (d) Effect on proceedings under subpart D. The destruction of any 
report will not bar any proceeding under subpart D of this part, but 
will preclude the use of a copy of the report in a proceeding under 
subpart D of this part.
    (e) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9527, 76 FR 32308, June 3, 2011]



         Subpart D_Rules Applicable to Disciplinary Proceedings

    Source: T.D. 9011, 67 FR 48774, July 26, 2002, unless otherwise 
noted.



Sec.  10.60  Institution of proceeding.

    (a) Whenever it is determined that a practitioner (or employer, firm 
or other entity, if applicable) violated any provision of the laws 
governing practice before the Internal Revenue Service or the 
regulations in this part, the practitioner may be reprimanded or, in 
accordance with Sec.  10.62, subject to a proceeding for sanctions 
described in Sec.  10.50.
    (b) Whenever a penalty has been assessed against an appraiser under 
the Internal Revenue Code and an appropriate officer or employee in an 
office established to enforce this part determines that the appraiser 
acted willfully, recklessly, or through gross incompetence with respect 
to the proscribed conduct, the appraiser may be reprimanded or, in 
accordance with Sec.  10.62, subject to a proceeding for 
disqualification. A proceeding for disqualification of an appraiser is 
instituted by the filing of a complaint, the contents of which are more 
fully described in Sec.  10.62.
    (c) Except as provided in Sec.  10.82, a proceeding will not be 
instituted under this section unless the proposed respondent previously 
has been advised in writing of the law, facts and conduct warranting 
such action and has been accorded an opportunity to dispute facts, 
assert additional facts, and make arguments (including an explanation or 
description of mitigating circumstances).
    (d) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9011, 67 FR 48765, July 26, 2002, as amended by T.D. 9359, 72 FR 
54544, 54551, Sept. 26, 2007; T.D. 9527, 76 FR 32309, June 3, 2011; 76 
FR 49650, Aug. 11, 2011]



Sec.  10.61  Conferences.

    (a) In general. The Commissioner, or delegate, may confer with a 
practitioner, employer, firm or other entity, or an appraiser concerning 
allegations of misconduct irrespective of whether a proceeding has been 
instituted. If the conference results in a stipulation in connection 
with an ongoing proceeding in which the practitioner, employer, firm or 
other entity, or appraiser is the respondent, the stipulation may be 
entered in the record by either party to the proceeding.
    (b) Voluntary sanction--(1) In general. In lieu of a proceeding 
being instituted or continued under Sec.  10.60(a), a practitioner or 
appraiser (or employer, firm or other entity, if applicable) may offer a 
consent to be sanctioned under Sec.  10.50.
    (2) Discretion; acceptance or declination. The Commissioner, or 
delegate, may accept or decline the offer described in paragraph (b)(1) 
of this section. When the decision is to decline the offer, the written 
notice of declination may state that the offer described in paragraph 
(b)(1) of this section would be accepted if it contained different 
terms. The Commissioner, or delegate, has the discretion to accept or 
reject a revised offer submitted in response to the declination or may

[[Page 149]]

counteroffer and act upon any accepted counteroffer.
    (c) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9359, 72 FR 54551, Sept. 26, 2007, as amended by T.D. 9527, 76 FR 
32309, June 3, 2011]



Sec.  10.62  Contents of complaint.

    (a) Charges. A complaint must name the respondent, provide a clear 
and concise description of the facts and law that constitute the basis 
for the proceeding, and be signed by an authorized representative of the 
Internal Revenue Service under Sec.  10.69(a)(1). A complaint is 
sufficient if it fairly informs the respondent of the charges brought so 
that the respondent is able to prepare a defense.
    (b) Specification of sanction. The complaint must specify the 
sanction sought against the practitioner or appraiser. If the sanction 
sought is a suspension, the duration of the suspension sought must be 
specified.
    (c) Demand for answer. The respondent must be notified in the 
complaint or in a separate paper attached to the complaint of the time 
for answering the complaint, which may not be less than 30 days from the 
date of service of the complaint, the name and address of the 
Administrative Law Judge with whom the answer must be filed, the name 
and address of the person representing the Internal Revenue Service to 
whom a copy of the answer must be served, and that a decision by default 
may be rendered against the respondent in the event an answer is not 
filed as required.
    (d) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9527, 76 FR 32309, June 3, 2011]



Sec.  10.63  Service of complaint; service of other papers; service of
evidence in support of complaint; filing of papers.

    (a) Service of complaint--(1) In general. The complaint or a copy of 
the complaint must be served on the respondent by any manner described 
in paragraphs (a)(2) or (3) of this section.
    (2) Service by certified or first class mail. (i) Service of the 
complaint may be made on the respondent by mailing the complaint by 
certified mail to the last known address (as determined under section 
6212 of the Internal Revenue Code and the regulations thereunder) of the 
respondent. Where service is by certified mail, the returned post office 
receipt duly signed by the respondent will be proof of service.
    (ii) If the certified mail is not claimed or accepted by the 
respondent, or is returned undelivered, service may be made on the 
respondent, by mailing the complaint to the respondent by first class 
mail. Service by this method will be considered complete upon mailing, 
provided the complaint is addressed to the respondent at the 
respondent's last known address as determined under section 6212 of the 
Internal Revenue Code and the regulations thereunder.
    (3) Service by other than certified or first class mail. (i) Service 
of the complaint may be made on the respondent by delivery by a private 
delivery service designated pursuant to section 7502(f) of the Internal 
Revenue Code to the last known address (as determined under section 6212 
of the Internal Revenue Code and the regulations thereunder) of the 
respondent. Service by this method will be considered complete, provided 
the complaint is addressed to the respondent at the respondent's last 
known address as determined under section 6212 of the Internal Revenue 
Code and the regulations thereunder.
    (ii) Service of the complaint may be made in person on, or by 
leaving the complaint at the office or place of business of, the 
respondent. Service by this method will be considered complete and proof 
of service will be a written statement, sworn or affirmed by the person 
who served the complaint, identifying the manner of service, including 
the recipient, relationship of recipient to respondent, place, date and 
time of service.
    (iii) Service may be made by any other means agreed to by the 
respondent. Proof of service will be a written statement, sworn or 
affirmed by the

[[Page 150]]

person who served the complaint, identifying the manner of service, 
including the recipient, relationship of recipient to respondent, place, 
date and time of service.
    (4) For purposes of this section, respondent means the practitioner, 
employer, firm or other entity, or appraiser named in the complaint or 
any other person having the authority to accept mail on behalf of the 
practitioner, employer, firm or other entity, or appraiser.
    (b) Service of papers other than complaint. Any paper other than the 
complaint may be served on the respondent, or his or her authorized 
representative under Sec.  10.69(a)(2) by:
    (1) Mailing the paper by first class mail to the last known address 
(as determined under section 6212 of the Internal Revenue Code and the 
regulations thereunder) of the respondent or the respondent's authorized 
representative,
    (2) Delivery by a private delivery service designated pursuant to 
section 7502(f) of the Internal Revenue Code to the last known address 
(as determined under section 6212 of the Internal Revenue Code and the 
regulations thereunder) of the respondent or the respondent's authorized 
representative, or
    (3) As provided in paragraphs (a)(3)(ii) and (a)(3)(iii) of this 
section.
    (c) Service of papers on the Internal Revenue Service. Whenever a 
paper is required or permitted to be served on the Internal Revenue 
Service in connection with a proceeding under this part, the paper will 
be served on the Internal Revenue Service's authorized representative 
under Sec.  10.69(a)(1) at the address designated in the complaint, or 
at an address provided in a notice of appearance. If no address is 
designated in the complaint or provided in a notice of appearance, 
service will be made on the office(s) established to enforce this part 
under the authority of Sec.  10.1, Internal Revenue Service, 1111 
Constitution Avenue, NW., Washington, DC 20224.
    (d) Service of evidence in support of complaint. Within 10 days of 
serving the complaint, copies of the evidence in support of the 
complaint must be served on the respondent in any manner described in 
paragraphs (a)(2) and (3) of this section.
    (e) Filing of papers. Whenever the filing of a paper is required or 
permitted in connection with a proceeding under this part, the original 
paper, plus one additional copy, must be filed with the Administrative 
Law Judge at the address specified in the complaint or at an address 
otherwise specified by the Administrative Law Judge. All papers filed in 
connection with a proceeding under this part must be served on the other 
party, unless the Administrative Law Judge directs otherwise. A 
certificate evidencing such must be attached to the original paper filed 
with the Administrative Law Judge.
    (f) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9011, 67 FR 48765, July 26, 2002, as amended by T.D. 9359, 72 FR 
54544, 54552, Sept. 26, 2007; T.D. 9527, 76 FR 32309, June 3, 2011]



Sec.  10.64  Answer; default.

    (a) Filing. The respondent's answer must be filed with the 
Administrative Law Judge, and served on the Internal Revenue Service, 
within the time specified in the complaint unless, on request or 
application of the respondent, the time is extended by the 
Administrative Law Judge.
    (b) Contents. The answer must be written and contain a statement of 
facts that constitute the respondent's grounds of defense. General 
denials are not permitted. The respondent must specifically admit or 
deny each allegation set forth in the complaint, except that the 
respondent may state that the respondent is without sufficient 
information to admit or deny a specific allegation. The respondent, 
nevertheless, may not deny a material allegation in the complaint that 
the respondent knows to be true, or state that the respondent is without 
sufficient information to form a belief, when the respondent possesses 
the required information. The respondent also must state affirmatively 
any special matters of defense on which he or she relies.
    (c) Failure to deny or answer allegations in the complaint. Every 
allegation in the complaint that is not denied in the answer is deemed 
admitted and will

[[Page 151]]

be considered proved; no further evidence in respect of such allegation 
need be adduced at a hearing.
    (d) Default. Failure to file an answer within the time prescribed 
(or within the time for answer as extended by the Administrative Law 
Judge), constitutes an admission of the allegations of the complaint and 
a waiver of hearing, and the Administrative Law Judge may make the 
decision by default without a hearing or further procedure. A decision 
by default constitutes a decision under Sec.  10.76.
    (e) Signature. The answer must be signed by the respondent or the 
respondent's authorized representative under Sec.  10.69(a)(2) and must 
include a statement directly above the signature acknowledging that the 
statements made in the answer are true and correct and that knowing and 
willful false statements may be punishable under 18 U.S.C. 1001.
    (f) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9011, 67 FR 48774, July 26, 2002, as amended by T.D. 9527, 76 FR 
32309, June 3, 2011]



Sec.  10.65  Supplemental charges.

    (a) In general. Supplemental charges may be filed against the 
respondent by amending the complaint with the permission of the 
Administrative Law Judge if, for example--
    (1) It appears that the respondent, in the answer, falsely and in 
bad faith, denies a material allegation of fact in the complaint or 
states that the respondent has insufficient knowledge to form a belief, 
when the respondent possesses such information; or
    (2) It appears that the respondent has knowingly introduced false 
testimony during the proceedings against the respondent.
    (b) Hearing. The supplemental charges may be heard with other 
charges in the case, provided the respondent is given due notice of the 
charges and is afforded a reasonable opportunity to prepare a defense to 
the supplemental charges.
    (c) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9359, 72 FR 54552, Sept. 26, 2007, as amended by T.D. 9527, 76 FR 
32309, June 3, 2011]



Sec.  10.66  Reply to answer.

    (a) The Internal Revenue Service may file a reply to the 
respondent's answer, but unless otherwise ordered by the Administrative 
Law Judge, no reply to the respondent's answer is required. If a reply 
is not filed, new matter in the answer is deemed denied.
    (b) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9527, 76 FR 32309, June 3, 2011]



Sec.  10.67  Proof; variance; amendment of pleadings.

    In the case of a variance between the allegations in pleadings and 
the evidence adduced in support of the pleadings, the Administrative Law 
Judge, at any time before decision, may order or authorize amendment of 
the pleadings to conform to the evidence. The party who would otherwise 
be prejudiced by the amendment must be given a reasonable opportunity to 
address the allegations of the pleadings as amended and the 
Administrative Law Judge must make findings on any issue presented by 
the pleadings as amended.



Sec.  10.68  Motions and requests.

    (a) Motions--(1) In general. At any time after the filing of the 
complaint, any party may file a motion with the Administrative Law 
Judge. Unless otherwise ordered by the Administrative Law Judge, motions 
must be in writing and must be served on the opposing party as provided 
in Sec.  10.63(b). A motion must concisely specify its grounds and the 
relief sought, and, if appropriate, must contain a memorandum of facts 
and law in support.
    (2) Summary adjudication. Either party may move for a summary 
adjudication upon all or any part of the legal issues in controversy. If 
the non-moving party opposes summary adjudication in the moving party's 
favor,

[[Page 152]]

the non-moving party must file a written response within 30 days unless 
ordered otherwise by the Administrative Law Judge.
    (3) Good Faith. A party filing a motion for extension of time, a 
motion for postponement of a hearing, or any other non-dispositive or 
procedural motion must first contact the other party to determine 
whether there is any objection to the motion, and must state in the 
motion whether the other party has an objection.
    (b) Response. Unless otherwise ordered by the Administrative Law 
Judge, the nonmoving party is not required to file a response to a 
motion. If the Administrative Law Judge does not order the nonmoving 
party to file a response, and the nonmoving party files no response, the 
nonmoving party is deemed to oppose the motion. If a nonmoving party 
does not respond within 30 days of the filing of a motion for decision 
by default for failure to file a timely answer or for failure to 
prosecute, the nonmoving party is deemed not to oppose the motion.
    (c) Oral motions; oral argument. (1) The Administrative Law Judge 
may, for good cause and with notice to the parties, permit oral motions 
and oral opposition to motions.
    (2) The Administrative Law Judge may, within his or her discretion, 
permit oral argument on any motion.
    (d) Orders. The Administrative Law Judge should issue written orders 
disposing of any motion or request and any response thereto.
    (e) Effective/applicability date. This section is applicable on 
September 26, 2007.

[T.D. 9359, 72 FR 54552, Sept. 26, 2007]



Sec.  10.69  Representation; ex parte communication.

    (a) Representation. (1) The Internal Revenue Service may be 
represented in proceedings under this part by an attorney or other 
employee of the Internal Revenue Service. An attorney or an employee of 
the Internal Revenue Service representing the Internal Revenue Service 
in a proceeding under this part may sign the complaint or any document 
required to be filed in the proceeding on behalf of the Internal Revenue 
Service.
    (2) A respondent may appear in person, be represented by a 
practitioner, or be represented by an attorney who has not filed a 
declaration with the Internal Revenue Service pursuant to Sec.  10.3. A 
practitioner or an attorney representing a respondent or proposed 
respondent may sign the answer or any document required to be filed in 
the proceeding on behalf of the respondent.
    (b) Ex parte communication. The Internal Revenue Service, the 
respondent, and any representatives of either party, may not attempt to 
initiate or participate in ex parte discussions concerning a proceeding 
or potential proceeding with the Administrative Law Judge (or any person 
who is likely to advise the Administrative Law Judge on a ruling or 
decision) in the proceeding before or during the pendency of the 
proceeding. Any memorandum, letter or other communication concerning the 
merits of the proceeding, addressed to the Administrative Law Judge, by 
or on behalf of any party shall be regarded as an argument in the 
proceeding and shall be served on the other party.
    (c) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9527, 76 FR 32310, June 3, 2011, as amended by 76 FR 49650, Aug. 
11, 2011]



Sec.  10.70  Administrative Law Judge.

    (a) Appointment. Proceedings on complaints for the sanction (as 
described in Sec.  10.50) of a practitioner, employer, firm or other 
entity, or appraiser will be conducted by an Administrative Law Judge 
appointed as provided by 5 U.S.C. 3105.
    (b) Powers of the Administrative Law Judge. The Administrative Law 
Judge, among other powers, has the authority, in connection with any 
proceeding under Sec.  10.60 assigned or referred to him or her, to do 
the following:
    (1) Administer oaths and affirmations;
    (2) Make rulings on motions and requests, which rulings may not be 
appealed prior to the close of a hearing except in extraordinary 
circumstances and at the discretion of the Administrative Law Judge;

[[Page 153]]

    (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 needed for the orderly disposition of proceedings;
    (5) Rule on offers of proof, receive relevant evidence, and examine 
witnesses;
    (6) Take or authorize the taking of depositions or answers to 
requests for admission;
    (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 with the 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 decisions.
    (c) Effective/applicability date. This section is applicable on 
September 26, 2007.

[T.D. 9011, 67 FR 48765, July 26, 2002, as amended by T.D. 9359, 72 FR 
54552, Sept. 26, 2007]



Sec.  10.71  Discovery.

    (a) In general. Discovery may be permitted, at the discretion of the 
Administrative Law Judge, only upon written motion demonstrating the 
relevance, materiality and reasonableness of the requested discovery and 
subject to the requirements of Sec.  10.72(d)(2) and (3). Within 10 days 
of receipt of the answer, the Administrative Law Judge will notify the 
parties of the right to request discovery and the timeframes for filing 
a request. A request for discovery, and objections, must be filed in 
accordance with Sec.  10.68. In response to a request for discovery, the 
Administrative Law Judge may order--
    (1) Depositions upon oral examination; or
    (2) Answers to requests for admission.
    (b) Depositions upon oral examination--(1) A deposition must be 
taken before an officer duly authorized to administer an oath for 
general purposes or before an officer or employee of the Internal 
Revenue Service who is authorized to administer an oath in Federal tax 
law matters.
    (2) In ordering a deposition, the Administrative Law Judge will 
require reasonable notice to the opposing party as to the time and place 
of the deposition. The opposing party, if attending, will be provided 
the opportunity for full examination and cross-examination of any 
witness.
    (3) Expenses in the reporting of depositions shall be borne by the 
party at whose instance the deposition is taken. Travel expenses of the 
deponent shall be borne by the party requesting the deposition, unless 
otherwise authorized by Federal law or regulation.
    (c) Requests for admission. Any party may serve on any other party a 
written request for admission of the truth of any matters which are not 
privileged and are relevant to the subject matter of this proceeding. 
Requests for admission shall not exceed a total of 30 (including any 
subparts within a specific request) without the approval from the 
Administrative Law Judge.
    (d) Limitations. Discovery shall not be authorized if--
    (1) The request fails to meet any requirement set forth in paragraph 
(a) of this section;
    (2) It will unduly delay the proceeding;
    (3) It will place an undue burden on the party required to produce 
the discovery sought;
    (4) It is frivolous or abusive;
    (5) It is cumulative or duplicative;
    (6) The material sought is privileged or otherwise protected from 
disclosure by law;
    (7) The material sought relates to mental impressions, conclusions, 
or legal theories of any party, attorney, or other representative, of a 
party prepared in anticipation of a proceeding; or
    (8) The material sought is available generally to the public, 
equally to the parties, or to the party seeking the discovery through 
another source.
    (e) Failure to comply. Where a party fails to comply with an order 
of the Administrative Law Judge under this section, the Administrative 
Law Judge may, among other things, infer that the information would be 
adverse to the party failing to provide it, exclude

[[Page 154]]

the information from evidence or issue a decision by default.
    (f) Other discovery. No discovery other than that specifically 
provided for in this section is permitted.
    (g) Effective/applicability date. This section is applicable to 
proceedings initiated on or after September 26, 2007.

[T.D. 9359, 72 FR 54552, Sept. 26, 2007]



Sec.  10.72  Hearings.

    (a) In general--(1) Presiding officer. An Administrative Law Judge 
will preside at the hearing on a complaint filed under Sec.  10.60 for 
the sanction of a practitioner, employer, firm or other entity, or 
appraiser.
    (2) Time for hearing. Absent a determination by the Administrative 
Law Judge that, in the interest of justice, a hearing must be held at a 
later time, the Administrative Law Judge should, on notice sufficient to 
allow proper preparation, schedule the hearing to occur no later than 
180 days after the time for filing the answer.
    (3) Procedural requirements. (i) Hearings will be stenographically 
recorded and transcribed and the testimony of witnesses will be taken 
under oath or affirmation.
    (ii) Hearings will be conducted pursuant to 5 U.S.C. 556.
    (iii) A hearing in a proceeding requested under Sec.  10.82(g) will 
be conducted de novo.
    (iv) An evidentiary hearing must be held in all proceedings prior to 
the issuance of a decision by the Administrative Law Judge unless--
    (A) The Internal Revenue Service withdraws the complaint;
    (B) A decision is issued by default pursuant to Sec.  10.64(d);
    (C) A decision is issued under Sec.  10.82(e);
    (D) The respondent requests a decision on the written record without 
a hearing; or
    (E) The Administrative Law Judge issues a decision under Sec.  
10.68(d) or rules on another motion that disposes of the case prior to 
the hearing.
    (b) Cross-examination. A party is entitled to present his or her 
case or defense by oral or documentary evidence, to submit rebuttal 
evidence, and to conduct cross-examination, in the presence of the 
Administrative Law Judge, as may be required for a full and true 
disclosure of the facts. This paragraph (b) does not limit a party from 
presenting evidence contained within a deposition when the 
Administrative Law Judge determines that the deposition has been 
obtained in compliance with the rules of this subpart D.
    (c) Prehearing memorandum. Unless otherwise ordered by the 
Administrative Law Judge, each party shall file, and serve on the 
opposing party or the opposing party's representative, prior to any 
hearing, a prehearing memorandum containing--
    (1) A list (together with a copy) of all proposed exhibits to be 
used in the party's case in chief;
    (2) A list of proposed witnesses, including a synopsis of their 
expected testimony, or a statement that no witnesses will be called;
    (3) Identification of any proposed expert witnesses, including a 
synopsis of their expected testimony and a copy of any report prepared 
by the expert or at his or her direction; and
    (4) A list of undisputed facts.
    (d) Publicity--(1) In general. All reports and decisions of the 
Secretary of the Treasury, or delegate, including any reports and 
decisions of the Administrative Law Judge, under this subpart D are, 
subject to the protective measures in paragraph (d)(4) of this section, 
public and open to inspection within 30 days after the agency's decision 
becomes final.
    (2) Request for additional publicity. The Administrative Law Judge 
may grant a request by a practitioner or appraiser that all the 
pleadings and evidence of the disciplinary proceeding be made available 
for inspection where the parties stipulate in advance to adopt the 
protective measures in paragraph (d)(4) of this section.
    (3) Returns and return information--(i) Disclosure to practitioner 
or appraiser. Pursuant to section 6103(l)(4) of the Internal Revenue 
Code, the Secretary of the Treasury, or delegate, may disclose returns 
and return information to any practitioner or appraiser, or to the 
authorized representative of the practitioner or appraiser, whose rights 
are or may be affected by an administrative action or proceeding under 
this subpart D, but solely for use in the action or

[[Page 155]]

proceeding and only to the extent that the Secretary of the Treasury, or 
delegate, determines that the returns or return information are or may 
be relevant and material to the action or proceeding.
    (ii) Disclosure to officers and employees of the Department of the 
Treasury. Pursuant to section 6103(l)(4)(B) of the Internal Revenue 
Code, the Secretary of the Treasury, or delegate, may disclose returns 
and return information to officers and employees of the Department of 
the Treasury for use in any action or proceeding under this subpart D, 
to the extent necessary to advance or protect the interests of the 
United States.
    (iii) Use of returns and return information. Recipients of returns 
and return information under this paragraph (d)(3) may use the returns 
or return information solely in the action or proceeding, or in 
preparation for the action or proceeding, with respect to which the 
disclosure was made.
    (iv) Procedures for disclosure of returns and return information. 
When providing returns or return information to the practitioner or 
appraiser, or authorized representative, the Secretary of the Treasury, 
or delegate, will--
    (A) Redact identifying information of any third party taxpayers and 
replace it with a code;
    (B) Provide a key to the coded information; and
    (C) Notify the practitioner or appraiser, or authorized 
representative, of the restrictions on the use and disclosure of the 
returns and return information, the applicable damages remedy under 
section 7431 of the Internal Revenue Code, and that unauthorized 
disclosure of information provided by the Internal Revenue Service under 
this paragraph (d)(3) is also a violation of this part.
    (4) Protective measures--(i) Mandatory protective order. If 
redaction of names, addresses, and other identifying information of 
third party taxpayers may still permit indirect identification of any 
third party taxpayer, the Administrative Law Judge will issue a 
protective order to ensure that the identifying information is available 
to the parties and the Administrative Law Judge for purposes of the 
proceeding, but is not disclosed to, or open to inspection by, the 
public.
    (ii) Authorized orders. (A) Upon motion by a party or any other 
affected person, and for good cause shown, the Administrative Law Judge 
may make any order which justice requires to protect any person in the 
event disclosure of information is prohibited by law, privileged, 
confidential, or sensitive in some other way, including, but not limited 
to, one or more of the following--
    (1) That disclosure of information be made only on specified terms 
and conditions, including a designation of the time or place;
    (2) That a trade secret or other information not be disclosed, or be 
disclosed only in a designated way.
    (iii) Denials. If a motion for a protective order is denied in whole 
or in part, the Administrative Law Judge may, on such terms or 
conditions as the Administrative Law Judge deems just, order any party 
or person to comply with, or respond in accordance with, the procedure 
involved.
    (iv) Public inspection of documents. The Secretary of the Treasury, 
or delegate, shall ensure that all names, addresses or other identifying 
details of third party taxpayers are redacted and replaced with the code 
assigned to the corresponding taxpayer in all documents prior to public 
inspection of such documents.
    (e) Location. The location of the hearing will be determined by the 
agreement of the parties with the approval of the Administrative Law 
Judge, but, in the absence of such agreement and approval, the hearing 
will be held in Washington, D.C.
    (f) Failure to appear. If either party to the proceeding fails to 
appear at the hearing, after notice of the proceeding has been sent to 
him or her, the party will be deemed to have waived the right to a 
hearing and the Administrative Law Judge may make his or her decision 
against the absent party by default.

[[Page 156]]

    (g) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9011, 67 FR 48765, July 26, 2002. Redesignated and amended by T.D. 
9359, 72 FR 54552, 54553, Sept. 26, 2007; T.D. 9527, 76 FR 32310, June 
3, 2011]



Sec.  10.73  Evidence.

    (a) In general. The rules of evidence prevailing in courts of law 
and equity are not controlling in hearings or proceedings conducted 
under this part. The Administrative Law Judge may, however, exclude 
evidence that is irrelevant, immaterial, or unduly repetitious,
    (b) Depositions. The deposition of any witness taken pursuant to 
Sec.  10.71 may be admitted into evidence in any proceeding instituted 
under Sec.  10.60.
    (c) Requests for admission. Any matter admitted in response to a 
request for admission under Sec.  10.71 is conclusively established 
unless the Administrative Law Judge on motion permits withdrawal or 
modification of the admission. Any admission made by a party is for the 
purposes of the pending action only and is not an admission by a party 
for any other purpose, nor may it be used against a party in any other 
proceeding.
    (d) Proof of documents. Official documents, records, and papers of 
the Internal Revenue Service and the Office of Professional 
Responsibility are admissible in evidence without the production of an 
officer or employee to authenticate them. Any documents, records, and 
papers may be evidenced by a copy attested to or identified by an 
officer or employee of the Internal Revenue Service or the Treasury 
Department, as the case may be.
    (e) Withdrawal of exhibits. If any document, record, or other paper 
is introduced in evidence as an exhibit, the Administrative Law Judge 
may authorize the withdrawal of the exhibit subject to any conditions 
that he or she deems proper.
    (f) Objections. Objections to evidence are to be made in short form, 
stating the grounds for the objection. Except as ordered by the 
Administrative Law Judge, argument on objections will not be recorded or 
transcribed. Rulings on objections are to be a part of the record, but 
no exception to a ruling is necessary to preserve the rights of the 
parties.
    (g) Effective/applicability date. This section is applicable on 
September 26, 2007.

[T.D. 9011, 67 FR 48765, July 26, 2002. Redesignated and amended by T.D. 
9359, 72 FR 54552, 54554, Sept. 26, 2007]



Sec.  10.74  Transcript.

    In cases where the hearing is stenographically reported by a 
Government contract reporter, copies of the transcript may be obtained 
from the reporter at rates not to exceed the maximum rates fixed by 
contract between the Government and the reporter. Where the hearing is 
stenographically reported by a regular employee of the Internal Revenue 
Service, a copy will be supplied to the respondent either without charge 
or upon the payment of a reasonable fee. Copies of exhibits introduced 
at the hearing or at the taking of depositions will be supplied to the 
parties upon the payment of a reasonable fee (Sec. 501, Public Law 82-
137)(65 Stat. 290)(31 U.S.C. 483a).



Sec.  10.75  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 
parties must be afforded a reasonable opportunity to submit proposed 
findings and conclusions and their supporting reasons to the 
Administrative Law Judge.



Sec.  10.76  Decision of Administrative Law Judge.

    (a) In general--(1) Hearings. Within 180 days after the conclusion 
of a hearing and the receipt of any proposed findings and conclusions 
timely submitted by the parties, the Administrative Law Judge should 
enter a decision in the case. The decision must include a statement of 
findings and conclusions, as well as the reasons or basis for making 
such findings and conclusions, and an order of censure, suspension, 
disbarment, monetary penalty, disqualification, or dismissal of the 
complaint.
    (2) Summary adjudication. In the event that a motion for summary 
adjudication is filed, the Administrative Law

[[Page 157]]

Judge should rule on the motion for summary adjudication within 60 days 
after the party in opposition files a written response, or if no written 
response is filed, within 90 days after the motion for summary 
adjudication is filed. A decision shall thereafter be rendered if the 
pleadings, depositions, admissions, and any other admissible evidence 
show that there is no genuine issue of material fact and that a decision 
may be rendered as a matter of law. The decision must include a 
statement of conclusions, as well as the reasons or basis for making 
such conclusions, and an order of censure, suspension, disbarment, 
monetary penalty, disqualification, or dismissal of the complaint.
    (3) Returns and return information. In the decision, the 
Administrative Law Judge should use the code assigned to third party 
taxpayers (described in Sec.  10.72(d)).
    (b) Standard of proof. If the sanction is censure or a suspension of 
less than six months' duration, the Administrative Law Judge, in 
rendering findings and conclusions, will consider an allegation of fact 
to be proven if it is established by the party who is alleging the fact 
by a preponderance of the evidence in the record. If the sanction is a 
monetary penalty, disbarment or a suspension of six months or longer 
duration, an allegation of fact that is necessary for a finding against 
the practitioner must be proven by clear and convincing evidence in the 
record. An allegation of fact that is necessary for a finding of 
disqualification against an appraiser must be proven by clear and 
convincing evidence in the record.
    (c) Copy of decision. The Administrative Law Judge will provide the 
decision to the Internal Revenue Service's authorized representative, 
and a copy of the decision to the respondent or the respondent's 
authorized representative.
    (d) When final. In the absence of an appeal to the Secretary of the 
Treasury or delegate, the decision of the Administrative Law Judge will, 
without further proceedings, become the decision of the agency 30 days 
after the date of the Administrative Law Judge's decision.
    (e) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9359, 72 FR 54554, Sept. 26, 2007, as amended by T.D. 9527, 76 FR 
32310, June 3, 2011]



Sec.  10.77  Appeal of decision of Administrative Law Judge.

    (a) Appeal. Any party to the proceeding under this subpart D may 
appeal the decision of the Administrative Law Judge by filing a notice 
of appeal with the Secretary of the Treasury, or delegate deciding 
appeals. The notice of appeal must include a brief that states 
exceptions to the decision of Administrative Law Judge and supporting 
reasons for such exceptions.
    (b) Time and place for filing of appeal. The notice of appeal and 
brief must be filed, in duplicate, with the Secretary of the Treasury, 
or delegate deciding appeals, at an address for appeals that is 
identified to the parties with the decision of the Administrative Law 
Judge. The notice of appeal and brief must be filed within 30 days of 
the date that the decision of the Administrative Law Judge is served on 
the parties. The appealing party must serve a copy of the notice of 
appeal and the brief to any non-appealing party or, if the party is 
represented, the non-appealing party's representative.
    (c) Response. Within 30 days of receiving the copy of the 
appellant's brief, the other party may file a response brief with the 
Secretary of the Treasury, or delegate deciding appeals, using the 
address identified for appeals. A copy of the response brief must be 
served at the same time on the opposing party or, if the party is 
represented, the opposing party's representative.
    (d) No other briefs, responses or motions as of right. Other than 
the appeal brief and response brief, the parties are not permitted to 
file any other briefs, responses or motions, except on a grant of leave 
to do so after a motion demonstrating sufficient cause, or unless 
otherwise ordered by the Secretary of the Treasury, or delegate deciding 
appeals.
    (e) Additional time for briefs and responses. Notwithstanding the 
time for filing briefs and responses provided in

[[Page 158]]

paragraphs (b) and (c) of this section, the Secretary of the Treasury, 
or delegate deciding appeals, may, for good cause, authorize additional 
time for filing briefs and responses upon a motion of a party or upon 
the initiative of the Secretary of the Treasury, or delegate deciding 
appeals.
    (f) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9527, 76 FR 32310, June 3, 2011]



Sec.  10.78  Decision on review.

    (a) Decision on review. On appeal from or review of the decision of 
the Administrative Law Judge, the Secretary of the Treasury, or 
delegate, will make the agency decision. The Secretary of the Treasury, 
or delegate, should make the agency decision within 180 days after 
receipt of the appeal.
    (b) Standard of review. The decision of the Administrative Law Judge 
will not be reversed unless the appellant establishes that the decision 
is clearly erroneous in light of the evidence in the record and 
applicable law. Issues that are exclusively matters of law will be 
reviewed de novo. In the event that the Secretary of the Treasury, or 
delegate, determines that there are unresolved issues raised by the 
record, the case may be remanded to the Administrative Law Judge to 
elicit additional testimony or evidence.
    (c) Copy of decision on review. The Secretary of the Treasury, or 
delegate, will provide copies of the agency decision to the authorized 
representative of the Internal Revenue Service and the respondent or the 
respondent's authorized representative.
    (d) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9359, 72 FR 54555, Sept. 26, 2007, as amended by T.D. 9527, 76 FR 
32310, June 3, 2011]



Sec.  10.79  Effect of disbarment, suspension, or censure.

    (a) Disbarment. When the final decision in a case is against the 
respondent (or the respondent has offered his or her consent and such 
consent has been accepted by the Internal Revenue Service) and such 
decision is for disbarment, the respondent will not be permitted to 
practice before the Internal Revenue Service unless and until authorized 
to do so by the Internal Revenue Service pursuant to Sec.  10.81.
    (b) Suspension. When the final decision in a case is against the 
respondent (or the respondent has offered his or her consent and such 
consent has been accepted by the Internal Revenue Service) and such 
decision is for suspension, the respondent will not be permitted to 
practice before the Internal Revenue Service during the period of 
suspension. For periods after the suspension, the practitioner's future 
representations may be subject to conditions as authorized by paragraph 
(d) of this section.
    (c) Censure. When the final decision in the case is against the 
respondent (or the Internal Revenue Service has accepted the 
respondent's offer to consent, if such offer was made) and such decision 
is for censure, the respondent will be permitted to practice before the 
Internal Revenue Service, but the respondent's future representations 
may be subject to conditions as authorized by paragraph (d) of this 
section.
    (d) Conditions. After being subject to the sanction of either 
suspension or censure, the future representations of a practitioner so 
sanctioned shall be subject to specified conditions designed to promote 
high standards of conduct. These conditions can be imposed for a 
reasonable period in light of the gravity of the practitioner's 
violations. For example, where a practitioner is censured because the 
practitioner failed to advise the practitioner's clients about a 
potential conflict of interest or failed to obtain the clients' written 
consents, the practitioner may be required to provide the Internal 
Revenue Service with a copy of all consents obtained by the practitioner 
for an appropriate period following censure, whether or not such 
consents are specifically requested.
    (e) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9527, 76 FR 32310, June 3, 2011]

[[Page 159]]



Sec.  10.80  Notice of disbarment, suspension, censure, or 
disqualification.

    (a) In general. On the issuance of a final order censuring, 
suspending, or disbarring a practitioner or a final order disqualifying 
an appraiser, notification of the censure, suspension, disbarment or 
disqualification will be given to appropriate officers and employees of 
the Internal Revenue Service and interested departments and agencies of 
the Federal government. The Internal Revenue Service may determine the 
manner of giving notice to the proper authorities of the State by which 
the censured, suspended, or disbarred person was licensed to practice.
    (b) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9527, 76 FR 32311, June 3, 2011]



Sec.  10.81  Petition for reinstatement.

    (a) In general. A practitioner disbarred or suspended under Sec.  
10.60, or suspended under Sec.  10.82, or a disqualified appraiser may 
petition for reinstatement before the Internal Revenue Service after the 
expiration of 5 years following such disbarment, suspension, or 
disqualification (or immediately following the expiration of the 
suspension or disqualification period, if shorter than 5 years). 
Reinstatement will not be granted unless the Internal Revenue Service is 
satisfied that the petitioner is not likely to engage thereafter in 
conduct contrary to the regulations in this part, and that granting such 
reinstatement would not be contrary to the public interest.
    (b) Effective/applicability date. This section is applicable 
beginning June 12, 2014.

[T.D. 9668, 79 FR 33694, June 12, 2014]



Sec.  10.82  Expedited suspension.

    (a) When applicable. Whenever the Commissioner, or delegate, 
determines that a practitioner is described in paragraph (b) of this 
section, the expedited procedures described in this section may be used 
to suspend the practitioner from practice before the Internal Revenue 
Service.
    (b) To whom applicable. This section applies to any practitioner 
who, within 5 years prior to the date that a show cause order under this 
section's expedited suspension procedures is served:
    (1) Has had a license to practice as an attorney, certified public 
accountant, or actuary suspended or revoked for cause (not including 
failure to pay a professional licensing fee) by any authority or court, 
agency, body, or board described in Sec.  10.51(a)(10).
    (2) Has, irrespective of whether an appeal has been taken, been 
convicted of any crime under title 26 of the United States Code, any 
crime involving dishonesty or breach of trust, or any felony for which 
the conduct involved renders the practitioner unfit to practice before 
the Internal Revenue Service.
    (3) Has violated conditions imposed on the practitioner pursuant to 
Sec.  10.79(d).
    (4) Has been sanctioned by a court of competent jurisdiction, 
whether in a civil or criminal proceeding (including suits for 
injunctive relief), relating to any taxpayer's tax liability or relating 
to the practitioner's own tax liability, for--
    (i) Instituting or maintaining proceedings primarily for delay;
    (ii) Advancing frivolous or groundless arguments; or
    (iii) Failing to pursue available administrative remedies.
    (5) Has demonstrated a pattern of willful disreputable conduct by--
    (i) Failing to make an annual Federal tax return, in violation of 
the Federal tax laws, during 4 of the 5 tax years immediately preceding 
the institution of a proceeding under paragraph (c) of this section and 
remains noncompliant with any of the practitioner's Federal tax filing 
obligations at the time the notice of suspension is issued under 
paragraph (f) of this section; or
    (ii) Failing to make a return required more frequently than 
annually, in violation of the Federal tax laws, during 5 of the 7 tax 
periods immediately preceding the institution of a proceeding under 
paragraph (c) of this section and remains noncompliant with any of the 
practitioner's Federal tax filing obligations at the time the notice of 
suspension is issued under paragraph (f) of this section.
    (c) Expedited suspension procedures. A suspension under this section 
will be

[[Page 160]]

proposed by a show cause order that names the respondent, is signed by 
an authorized representative of the Internal Revenue Service under Sec.  
10.69(a)(1), and served according to the rules set forth in Sec.  
10.63(a). The show cause order must give a plain and concise description 
of the allegations that constitute the basis for the proposed 
suspension. The show cause order must notify the respondent--
    (1) Of the place and due date for filing a response;
    (2) That an expedited suspension decision by default may be rendered 
if the respondent fails to file a response as required;
    (3) That the respondent may request a conference to address the 
merits of the show cause order and that any such request must be made in 
the response; and
    (4) That the respondent may be suspended either immediately 
following the expiration of the period within which a response must be 
filed or, if a conference is requested, immediately following the 
conference.
    (d) Response. The response to the show cause order described in this 
section must be filed no later than 30 calendar days following the date 
the show cause order is served, unless the time for filing is extended. 
The response must be filed in accordance with the rules set forth for 
answers to a complaint in Sec.  10.64, except as otherwise provided in 
this section. The response must include a request for a conference, if a 
conference is desired. The respondent is entitled to the conference only 
if the request is made in a timely filed response.
    (e) Conference. An authorized representative of the Internal Revenue 
Service will preside at a conference described in this section. The 
conference will be held at a place and time selected by the Internal 
Revenue Service, but no sooner than 14 calendar days after the date by 
which the response must be filed with the Internal Revenue Service, 
unless the respondent agrees to an earlier date. An authorized 
representative may represent the respondent at the conference.
    (f) Suspension--(1) In general. The Commissioner, or delegate, may 
suspend the respondent from practice before the Internal Revenue Service 
by a written notice of expedited suspension immediately following:
    (i) The expiration of the period within which a response to a show 
cause order must be filed if the respondent does not file a response as 
required by paragraph (d) of this section;
    (ii) The conference described in paragraph (e) of this section if 
the Internal Revenue Service finds that the respondent is described in 
paragraph (b) of this section; or
    (iii) The respondent's failure to appear, either personally or 
through an authorized representative, at a conference scheduled by the 
Internal Revenue Service under paragraph (e) of this section.
    (2) Duration of suspension. A suspension under this section will 
commence on the date that the written notice of expedited suspension is 
served on the practitioner, either personally or through an authorized 
representative. The suspension will remain effective until the earlier 
of:
    (i) The date the Internal Revenue Service lifts the suspension after 
determining that the practitioner is no longer described in paragraph 
(b) of this section or for any other reason; or
    (ii) The date the suspension is lifted or otherwise modified by an 
Administrative Law Judge or the Secretary of the Treasury, or delegate 
deciding appeals, in a proceeding referred to in paragraph (g) of this 
section and instituted under Sec.  10.60.
    (g) Practitioner demand for Sec.  10.60 proceeding. If the Internal 
Revenue Service suspends a practitioner under the expedited suspension 
procedures described in this section, the practitioner may demand that 
the Internal Revenue Service institute a proceeding under Sec.  10.60 
and issue the complaint described in Sec.  10.62. The demand must be in 
writing, specifically reference the suspension action under Sec.  10.82, 
and be made within 2 years from the date on which the practitioner's 
suspension commenced. The Internal Revenue Service must issue a 
complaint demanded under this paragraph (g) within 60 calendar days of 
receiving the demand. If the Internal Revenue Service does not issue 
such complaint within 60

[[Page 161]]

days of receiving the demand, the suspension is lifted automatically. 
The preceding sentence does not, however, preclude the Commissioner, or 
delegate, from instituting a regular proceeding under Sec.  10.60 of 
this part.
    (h) Effective/applicability date. This section is generally 
applicable beginning June 12, 2014, except that paragraphs (b)(1) 
through (4) of this section are applicable beginning August 2, 2011.

[T.D. 9011, 67 FR 48774, July 26, 2002, as amended by T.D. 9359, 72 FR 
54555, Sept. 26, 2007; T.D. 9527, 76 FR 32311, June 3, 2011; T.D. 9668, 
79 FR 33694, June 12, 2014]



                      Subpart E_General Provisions

    Source: T.D. 9011, 67 FR 48774, July 26, 2002, unless otherwise 
noted.



Sec.  10.90  Records.

    (a) Roster. The Internal Revenue Service will maintain and make 
available for public inspection in the time and manner prescribed by the 
Secretary, or delegate, the following rosters--
    (1) Individuals (and employers, firms, or other entities, if 
applicable) censured, suspended, or disbarred from practice before the 
Internal Revenue Service or upon whom a monetary penalty was imposed.
    (2) Enrolled agents, including individuals--
    (i) Granted active enrollment to practice;
    (ii) Whose enrollment has been placed in inactive status for failure 
to meet the requirements for renewal of enrollment;
    (iii) Whose enrollment has been placed in inactive retirement 
status; and
    (iv) Whose offer of consent to resign from enrollment has been 
accepted by the Internal Revenue Service under Sec.  10.61.
    (3) Enrolled retirement plan agents, including individuals--
    (i) Granted active enrollment to practice;
    (ii) Whose enrollment has been placed in inactive status for failure 
to meet the requirements for renewal of enrollment;
    (iii) Whose enrollment has been placed in inactive retirement 
status; and
    (iv) Whose offer of consent to resign from enrollment has been 
accepted under Sec.  10.61.
    (4) Registered tax return preparers, including individuals--
    (i) Authorized to prepare all or substantially all of a tax return 
or claim for refund;
    (ii) Who have been placed in inactive status for failure to meet the 
requirements for renewal;
    (iii) Who have been placed in inactive retirement status; and
    (iv) Whose offer of consent to resign from their status as a 
registered tax return preparer has been accepted by the Internal Revenue 
Service under Sec.  10.61.
    (5) Disqualified appraisers.
    (6) Qualified continuing education providers, including providers--
    (i) Who have obtained a qualifying continuing education provider 
number; and
    (ii) Whose qualifying continuing education number has been revoked 
for failure to comply with the requirements of this part.
    (b) Other records. Other records of the Director of the Office of 
Professional Responsibility may be disclosed upon specific request, in 
accordance with the applicable law.
    (c) Effective/applicability date. This section is applicable 
beginning August 2, 2011.

[T.D. 9359, 72 FR 54555, Sept. 26, 2007, as amended by T.D. 9527, 76 FR 
32311, June 3, 2011; 76 FR 49650, Aug. 11, 2011]



Sec.  10.91  Saving provision.

    Any proceeding instituted under this part prior to June 12, 2014, 
for which a final decision has not been reached or for which judicial 
review is still available is not affected by these revisions. Any 
proceeding under this part based on conduct engaged in prior to June 12, 
2014, which is instituted after that date, will apply subpart D and E of 
this part as revised, but the conduct engaged in prior to the effective 
date of these revisions will be judged by the regulations in effect at 
the time the conduct occurred.

[T.D. 9668, 79 FR 33695, June 12, 2014]

[[Page 162]]



Sec.  10.92  Special orders.

    The Secretary of the Treasury reserves the power to issue such 
special orders as he or she deems proper in any cases within the purview 
of this part.



Sec.  10.93  Effective date.

    Except as otherwise provided in each section and subject to Sec.  
10.91, Part 10 is applicable on July 26, 2002.

[T.D. 9011, 67 FR 48771, July 26, 2002, as amended by T.D. 9165, 69 FR 
75845, Dec. 20, 2004]



PART 11_OPERATION OF VENDING FACILITIES BY THE BLIND ON FEDERAL PROPERTY
UNDER THE CONTROL OF THE DEPARTMENT OF THE TREASURY--Table of Contents



Sec.
11.1 Purpose.
11.2 Policy.
11.3 Definitions.
11.4 Establishing vending facilities.
11.5 Application for permit.
11.6 Terms of permit.
11.7 Enforcement procedures.
11.8 Reports.

    Authority: 49 Stat. 1559, as amended by Act of Aug. 3, 1954, Pub. L. 
83-565, 68 Stat. 663, as further amended by Pub. L. 93-516, 88 Stat. 
1622, (20 U.S.C. 107).

    Source: 58 FR 57560, Oct. 26, 1993, unless otherwise noted.



Sec.  11.1  Purpose.

    This part contains policy and procedures to ensure the priority of 
blind vendors in operating vending facilities on property controlled by 
the Department of the Treasury. The provisions of this part apply to all 
bureaus, the Departmental Offices and the Office of Inspector General.



Sec.  11.2  Policy.

    Blind vendors licensed by State licensing agencies designated by the 
Secretary of Education under the provisions of the Randolph-Sheppard Act 
(20 U.S.C. 107 et seq.) shall be given priority in the location and 
operation of vending facilities, including vending machines, on property 
controlled by the Department of the Treasury, provided the location or 
operation of such facility would not adversely affect the interests of 
the United States. Treasury bureaus shall ensure that the collection and 
distribution of vending machine income from vending machines on 
Treasury-controlled property shall be in compliance with the regulations 
set forth in 34 CFR 395.32. Blind vendors shall also be given priority 
on Treasury-controlled property in the operation of cafeterias according 
to 34 CFR 395.33.



Sec.  11.3  Definitions.

    Terms used are defined in 34 CFR 395.1, except that as used in this 
part, the following terms shall have the following meanings:
    (a) Department of the Treasury controlled property means any Federal 
building, land, or other real property owned, leased, or occupied by a 
bureau or office of the Department of the Treasury, of which the 
maintenance, operation, and protection is under the control of the 
Department of the Treasury.
    (b) The term bureau means any bureau or office of the Department of 
the Treasury and such comparable administrative units as may hereafter 
be created or made a part of the Department, and includes the 
Departmental Offices and the Office of Inspector General. The ``head of 
the bureau'' for the Departmental Offices is the Deputy Assistant 
Secretary (Administration).



Sec.  11.4  Establishing vending facilities.

    (a) Treasury bureaus shall not acquire a building by ownership, 
rent, or lease, or occupy a building to be constructed, substantially 
altered, or renovated unless it is determined that such buildings 
contain or will contain a ``satisfactory site,'' as defined in 34 CFR 
395.1(q), for the location and operation of a blind vending facility.
    (b) In accordance with 34 CFR 395.31, Treasury bureaus shall provide 
the appropriate State licensing agency with written notice of the 
intention to acquire or otherwise occupy such building. Providing 
notification shall be the responsibility of the bureau on-site property 
management official.



Sec.  11.5  Application for permit.

    Applications for permits for the operation of vending facilities 
other than

[[Page 163]]

cafeterias shall be made in writing and submitted for the review and 
approval of the head of the appropriate Treasury bureau or that 
official's designee.



Sec.  11.6  Terms of permit.

    Every permit shall describe the location of the vending facility, 
including any vending machines located on other than facility premises, 
and shall be subject to the following provisions:
    (a) The permit shall be issued in the name of the applicant State 
licensing agency which shall perform the responsibilities set forth in 
34 CFR 395.35 (a);
    (b) The permit shall be issued for an indefinite period of time 
subject to suspension or termination on the basis of compliance or 
noncompliance with agreed upon terms.
    (c) The permit shall provide that:
    (1) No charge shall be made to the State licensing agency for normal 
cleaning, maintenance, and repair of the building structure in and 
adjacent to the vending facility areas;
    (2) Cleaning necessary for sanitation; the maintenance of vending 
facilities and vending machines in an orderly condition at all times; 
the installation, maintenance, repair, replacement, servicing, and 
removal of vending facility equipment shall be without cost to the 
Department of the Treasury; and
    (3) Articles sold at vending facilities operated by blind licensees 
may consist of newspapers, periodicals, publications, confections, 
tobacco products, foods, beverages, chances for any lottery authorized 
by State law and conducted by an agency of a State within such State, 
and other articles or services as are determined by the State licensing 
agency, in consultation with the appropriate Treasury bureau, to be 
suitable for a particular location. Such articles and services may be 
dispensed automatically or manually and may be prepared on or off the 
premises.
    (d) The permit shall further provide that vending facilities shall 
be operated in compliance with applicable health, sanitation, and 
building codes or ordinances.
    (e) The permit shall further provide that installation, 
modification, relocation, removal, and renovation of vending facilities 
shall be subject to the prior approval and supervision of the bureau on-
site property management officer of the appropriate Treasury bureau and 
the State licensing agency; that costs of relocations initiated by the 
State licensing agency shall be paid by the State licensing agency; that 
costs of relocations initiated by a Treasury bureau shall be paid by the 
Treasury bureau; and that all plumbing, electrical, and mechanical costs 
related to the renovation of existing facilities shall be paid by the 
appropriate Treasury bureau.
    (f) The operation of a cafeteria by a blind vendor shall be covered 
by a contractual agreement and not by a permit. The State licensing 
agency shall be expected to perform under the same contractual 
arrangement applicable to commercial cafeteria operators.



Sec.  11.7  Enforcement procedures.

    (a) The State licensing agency shall attempt to resolve day-to-day 
problems pertaining to the operation of the vending facility in an 
informal manner with the participation of the blind vendor and the on-
site property management officials of the respective Treasury bureaus 
who are responsible for the Treasury-controlled property.
    (b) Unresolved disagreements concerning the terms of the permit, the 
Act, or the regulations in this part and any other unresolved matters 
shall be reported in writing to the State licensing agency supervisory 
personnel by the bureau on-site supervisory property management official 
in an attempt to resolve the issue.



Sec.  11.8  Reports.

    This section establishes a Department of the Treasury reporting 
requirement to comply with 34 CFR 395.38. At the end of each fiscal 
year, each property managing bureau shall submit a report to the 
Director, Office of Management Support Systems, Departmental Offices, 
containing the elements set forth in 34 CFR 395.38. The Director, Office 
of Management Support Systems, shall submit a consolidated report to the 
Secretary of Education after the end of the fiscal year.

[[Page 164]]



PART 12_RESTRICTION OF SALE AND DISTRIBUTION OF TOBACCO PRODUCTS-
-Table of Contents



Sec.
12.1 Purpose.
12.2 Definitions.
12.3 Sale of tobacco products in vending machines prohibited.
12.4 Distribution of free samples of tobacco products prohibited.
12.5 Prohibitions not applicable in areas designated by the Secretary of 
          the Treasury.

    Authority: Sec. 636, Pub. L. 104-52, 109 Stat. 507.

    Source: 61 FR 25396, May 21, 1996, unless otherwise noted.



Sec.  12.1  Purpose.

    This part contains regulations implementing the ``Prohibition of 
Cigarette Sales to Minors in Federal Buildings Act,'' Public Law 104-52, 
Section 636, with respect to buildings under the jurisdiction of the 
Department of the Treasury.



Sec.  12.2  Definitions.

    As used in this part--
    (1) The term Federal building under the jurisdiction of the 
Secretary of the Treasury includes the real property on which such 
building is located;
    (2) The term minor means an individual under the age of 18 years; 
and
    (3) The term tobacco product means cigarettes, cigars, little 
cigars, pipe tobacco, smokeless tobacco, snuff, and chewing tobacco.



Sec.  12.3  Sale of tobacco products in vending machines prohibited.

    The sale of tobacco products in vending machines located in or 
around any Federal building under the jurisdiction of the Secretary of 
the Treasury is prohibited, except in areas designated pursuant to Sec.  
12.5 of this part.



Sec.  12.4  Distribution of free samples of tobacco products prohibited.

    The distribution of free samples of tobacco products in or around 
any Federal building under the jurisdiction of the Secretary of the 
Treasury is prohibited, except in areas designated pursuant to Sec.  
12.5 of this part.



Sec.  12.5  Prohibitions not applicable in areas designated by the 
Secretary of the Treasury.

    The prohibitions set forth in this part shall not apply in areas 
designated by the Secretary as exempt from the prohibitions, but all 
designated areas must prohibit the presence of minors.



PART 13_PROCEDURES FOR PROVIDING ASSISTANCE TO STATE AND LOCAL GOVERNMENTS
IN PROTECTING FOREIGN DIPLOMATIC MISSIONS--Table of Contents



Sec.
13.1 Purpose.
13.2 Definitions.
13.3 Eligibility to receive protection or reimbursement.
13.4 Requests for protection and advance notices of reimbursement 
          requests.
13.5 Utilization of the services, personnel, equipment, and facilities 
          of State and local governments.
13.6 Reimbursement of State and local governments.
13.7 Reimbursement when the Assistant Secretary makes no determination 
          to utilize State and local government services, personnel, 
          equipment and facilities.
13.8 Protection for motorcades and other places associated with a visit 
          qualifying under section 202(7) of Title 3, U.S. Code.

Appendix I(F) to Part 13--Estimated Overhead and Administrative Costs
Appendix II(F) to Part 13--Overhead and Administrative Costs
Appendix I to Part 13--Form of Request for Assistance
Appendix II to Part 13--Form of Bill for Reimbursement

    Authority: Secs. 202 and 208, Title 3, U.S. Code, as amended and 
added, respectively by Pub. L. 94-196 (89 Stat. 1109); 5 U.S.C. 301.

    Source: 41 FR 55179, Dec. 17, 1976, unless otherwise noted.



Sec.  13.1  Purpose.

    This part prescribes the procedures governing protective and 
financial assistance to State and local governments when an 
extraordinary protective need requires the protection of foreign 
diplomatic missions as authorized by sections 202 and 208 of Title 3, 
U.S. Code, as amended and added, respectively, by Pub. L. 94-196 (89 
Stat. 1109).

[[Page 165]]



Sec.  13.2  Definitions.

    As used in this part, these terms shall have the following meaning:
    (a) The term Assistant Secretary means the Assistant Secretary of 
the Treasury (Enforcement and Operations).
    (b) The term extraordinary protective need means a need for 
protection requiring measurable reinforcements of police personnel or 
equipment, or both, significantly beyond the ordinary deployment of the 
State or local government, arising out of actual or potential violence 
related to: (1) Confrontations between nationalist or other groups, (2) 
threats or acts of violence by terrorist or other groups, (3) a specific 
diplomatic event or visit, or (4) a specific international event.
    (c) The term foreign diplomatic mission means a mission (including 
foreign consular offices) of a foreign country located in the United 
States.
    (d) The term full time officers means permanent officers whose 
duties as foreign diplomatic officers occupy their full time.
    (e) The term international organization means those international 
organizations designated by Presidential Executive Order as being 
entitled to the privileges, immunities, and exemptions accorded under 
the International Organization Immunities Act of December 29, 1945 (22 
U.S.C. 288).
    (f) The term metropolitan area means a city in the United States 
(other than the District of Columbia) and those areas contiguous to it.
    (g) The term observer mission means a mission invited to participate 
in the work of an international organization by that organization. The 
invitation to participate shall be extended by the international 
organization pursuant to the same internal rules of the international 
organization as are applicable to any permanent mission.
    (h) The term permanent mission means a fixed continuing mission 
staffed by full time officers and maintained by a member state of an 
international organization.
    (i) The term temporary domicile means a domicile of limited duration 
of a visiting foreign dignitary or officer in connection with a visit to 
a permanent or observer mission to an international organization in a 
metropolitan area.

[41 FR 55179, Dec. 17, 1976, as amended at 45 FR 30621, May 9, 1980]



Sec.  13.3  Eligibility to receive protection or reimbursement.

    (a) Protection, as determined by the Assistant Secretary, will be 
provided by the United States Secret Service Uniformed Division, 
pursuant to section 202 of Title 3, U.S. Code, as amended by Pub. L. 94-
196, only to foreign diplomatic missions located in metropolitan areas 
(other than the District of Columbia) where there are located twenty or 
more such missions, as determined by the Secretary of State, which are 
headed by full time officers. According to present State Department 
figures, the following metropolitan areas have 20 or more such foreign 
diplomatic missions: Chicago, Houston, Los Angeles, Miami, New York 
City, New Orleans and San Francisco. The protection provided by State or 
local governments rather than the United States Secret Service Uniformed 
Division will be reimbursed pursuant to section 208(a) of Title 3, U.S. 
Code and Sec. Sec.  13.6, 13.7 and 13.8 of this part.
    (b) Protection or reimbursement will be provided for the 
metropolitan areas described in paragraph (a) of this section only if:
    (1) The affected metropolitan area requests such protection or 
reimbursement;
    (2) The Assistant Secretary determines that an extraordinary 
protective need exists; and
    (3) The extraordinary need arises in association with a visit to or 
occurs at or, pursuant to Sec.  13.6, in the vicinity of: (i) A 
permanent mission to an international organization of which the United 
States is a member, (ii) an observer mission invited to participate in 
the work of an international organization of which the United States is 
a member, or (iii) in the case of a visit by a foreign official or 
dignitary to participate in an activity of an international organization 
of which the United States is a member, a foreign diplomatic mission, 
including a consular office of the same country as the visitor.

[[Page 166]]

    (c) Protection (or reimbursement) may be extended at places of 
temporary domicile in connection with a visit under paragraph (b) of 
this section.
    (d) Where an extraordinary protective need exists, protection (or 
reimbursement) may be extended to missions as described in Sec. Sec.  
13.3(b)(3) (i) and (ii) whether or not associated with a visit by a 
foreign dignitary.

[45 FR 30621, May 9, 1980]



Sec.  13.4  Requests for protection and advance notices of reimbursement
requests.

    (a) In cases where they believe that an extraordinary protective 
need exists, the State or local governments may request that protection 
be provided by the United States Secret Service Uniformed Division; or 
they may give advance notice of their intention to provide, on a 
reimbursable basis, all or part of the protection themselves.
    (1) Requests for protection or advance notices of reimbursement 
requests shall be made to: Assistant Secretary (Enforcement and 
Operations), Department of the Treasury, Washington, DC 20220. Each 
government requesting the protection authorized pursuant to section 202 
of Title 3, U.S. Code, as amended by Pub. L. 94-196, or which intends to 
seek reimbursement pursuant to section 208(a) of Title 3, U.S. Code and 
Sec. Sec.  13.6 and 13.7 of this part, shall submit an application 
describing the extraordinary protective need. Applications made pursuant 
to this section shall be submitted to the Assistant Secretary 14 days 
before the extraordinary protective need arises. In association with a 
visit, the application shall include the name and title of the visiting 
foreign official or dignitary, the country he represents, and the name 
and location of the international organization or mission he will be 
visting. The application shall also include, if available, the temporary 
domicile of the visiting official or dignitary and his schedule, 
including dates and times of arrival and departure from the United 
States. If the extraordinary protective need occurs at a permanent 
mission to an international organization of which the United States is a 
member or an observer mission invited to participate in the work of such 
organization, or if another foreign diplomatic mission of the country 
qualifies under Sec.  13.3 (b) or (d), the application shall include the 
name and location of the mission.
    (b) State and local governments shall also indicate on the 
application whether they are requesting the use of the United States 
Secret Service Uniformed Division or whether they are giving advance 
notice of their intention to provide, on a reimbursable basis, all or 
part of the protection themselves. In order to assist the Assistant 
Secretary in determining whether to utilize the United States Secret 
Service Uniformed Division to meet all or part of the extraordinary 
protective need, or to utilize, with their consent, the services, 
personnel, equipment, and facilities of the State or local government, 
or both, the application must include an estimate of the approximate 
number of personnel by grade and rank, the services, equipment, and 
facilities required, along with an estimate of the cost of such 
personnel, services, equipment and facilities. This application must be 
submitted in a format consistent with that illustrated in aappendix I of 
this part.
    (1) Upon receipt of a request for protection pursuant to paragraph 
(a)(1) of this section and for the purposes of reimbursement pursuant to 
Sec. Sec.  13.6 and 13.7, the Assistant Secretary will determine whether 
an extraordinary protective need exists and whether the United States 
Secret Service Uniformed Division will be used for all, part or none of 
the protection. In making determinations, the Assistant Secretary may 
consult with appropriate Federal, State and local government agencies.

[45 FR 30621, May 9, 1980]



Sec.  13.5  Utilization of the services, personnel, equipment, and 
facilities of State and local governments.

    The Assistant Secretary may decide to utilize, on a reimbursable 
basis, the services, personnel, equipment, and facilities of State and 
local governments of the affected metropolitan area desiring to provide 
protection, or he may

[[Page 167]]

utilize the United States Secret Service Uniformed Division, or both. If 
the United States Secret Service Uniformed Division is utilized to meet 
all the extraordinary protective need, the governments of the affected 
metropolitan area will not be reimbursed. If the United States Secret 
Service Uniformed Division is utilized to meet part of the extraordinary 
protective needs, the governments of the affected metropolitan area will 
be reimbursed for that qualifying portion of the protection which is 
provided by State and local police authorities. If the Assistant 
Secretary decides to utilize, with their consent, the services, 
personnel, equipment, and facilities of such State and local governments 
to meet the extraordinary protective need, he will so notify the 
government as soon as possible after receipt of a request for protection 
or an advance notice of a reimbursement request made pursuant to Sec.  
13.4.

[45 FR 30622, May 9, 1980]



Sec.  13.6  Reimbursement of State and local governments.

    (a) State and local governments providing services, personnel, 
equipment, or facilities to the affected metropolitan area pursuant to 
Sec.  13.5 may forward to the Assistant Secretary a bill for 
reimbursement for the personnel, equipment, facilities, and services 
utilized in meeting the extraordinary protective need. The bill shall be 
in accordance with the format in appendix II of this part. The Assistant 
Secretary will reimburse only those costs directly related to the 
extraordinary protective need including personnel and equipment costs 
resulting from assignments made to assist in providing security at an 
otherwise qualified location in connection with the arrival, departure, 
or during the visit of a foreign dignitary. Reimbursable costs will also 
include the costs for establishing both fixed posts at a qualified 
location and protective perimeters outside of a qualified location when 
it is clearly established to the satisfaction of the Assistant Secretary 
that such assignments were necessary to assure the safety of the 
qualified location. Overhead and administrative costs associated with an 
extraordinary protective need are reimbursable as either a flat 18 
percent of the total extraordinary protective need costs, or, if such 
costs can be clearly segregated from routine police costs, on a dollar-
for-dollar basis. The jurisdiction seeking such reimbursement may select 
either method but may not use both. For the purposes of reimbursement 
the Assistant Secretary will, in all cases, determine when the 
extraordinary protective need began and terminated.

[45 FR 30622, May 9, 1980]



Sec.  13.7  Reimbursement when the Assistant Secretary makes no 
determination to utilize State and local government services, personnel,
equipment and facilities.

    (a) Where events require the State or local governments of the 
affected metropolitan area to provide protection to meet an 
extraordinary protective need otherwise qualifying for reimbursement, 
such reimbursement may be made even if the provisions of Sec. Sec.  13.4 
and 13.5 have not been complied with fully. In such circumstances the 
provisions of Sec.  13.6 shall apply.
    (b) In cases where State or local governments, or both, utilized 
their own services, personnel, equipment, and facilities to provide 
protection for an extraordinary protective need, and no request for 
protective assistance pursuant to Sec.  13.4 was made because the 
extraordinary protective need occurred prior to the promulgation of this 
part but after July 1, 1974, an application by such government to the 
Assistant Secretary for reimbursement otherwise conforming to the 
requirements of this part will be considered.

[41 FR 55179, Dec. 17, 1976, as amended at 45 FR 30622, May 9, 1980]



Sec.  13.8  Protection for motorcades and other places associated with
a visit qualifying under section 202(7) of Title 3, U.S. Code.

    (a) State and local governments furnishing services, personnel, 
equipment, and facilities to provide protection for motorcades and at 
other places associated with a visit qualifying under section 202(7) of 
Title 3, U.S. Code may forward to the Assistant Secretary a

[[Page 168]]

bill for reimbursement for the personnel, equipment, facilities, and 
services utilized in providing such protection.
    (b) Requests for payments under this section shall conform to the 
procedures established elsewhere in this part governing reimbursements 
arising out of an extraordinary protective need.

[45 FR 30622, May 9, 1980]



  Sec. Appendix I(F) to Part 13--Estimated Overhead and Administrative 
                                  Costs

Date:___________________________________________________________________

                         Select Only One Method

    ___ 1. Reimbursement for overhead and administrative costs will be 
requested as a flat 18 percent of the total extraordinary protective 
need cost as provided in section 13.6 of these regulations.
    ___ 2. Reimbursement for overhead and administrative costs will be 
requested on a dollar-for-dollar basis. Computation of these costs will 
be made using the below described method:

(Explain in detail how all of these costs can be directly and 
exclusively attributed to the extraordinary protective need.)

[45 FR 30622, May 9, 1980]



    Sec. Appendix II(F) to Part 13--Overhead and Administrative Costs

Date:___________________________________________________________________

                         Select Only One Method

    ___ 1. Reimbursement for overhead and administrative costs is 
requested as a flat 18 percent of the total extraordinary protective 
need costs as provided in section 13.6 of these regulations.
    ___ 2. Reimbursement for overhead and administrative costs is 
requested on a dollar-for-dollar basis. Computation of these costs has 
been made using the below described method:

(Explain and show in detail how all of these costs have been directly 
and exclusively attributed extraordinary protective need costs).

Dated:__________________________________________________________________

[45 FR 30622, May 9, 1980]



       Sec. Appendix I to Part 13--Form of Request for Assistance

    I hereby request assistance from the Department of the Treasury 
pursuant to Section 202 of Title 3, U.S. Code, as amended by Pub. L. 94-
196. This assistance is needed to enable the affected metropolitan area 
of ______ to meet an extraordinary protective need, which is expected to 
arise on ______ (date).
    The nature of the extraordinary protective need prompting this 
request is as follows:
    (If in association with a visit, include the name and title of the 
visiting foreign official or dignitary, the country represented and the 
name and location of the international organization involved and/or 
mission to be visited. The temporary domicile of the visiting official 
or dignitary and his schedule, including dates and times of arrival and 
departure from the United States, if available, must also be included. 
If the extraordinary protective need occurs at or, pursuant to Sec.  
13.6 of 31 CFR part 13, in the vicinity of, a permanent mission to an 
international organization of which the United States is a member or at 
an observer mission invited to participate in the work of the 
organization, the application shall include the name and location of the 
mission. If the extraordinary protective need occurs at a foreign 
diplomatic mission, including a consular office, in conjunction with a 
qualifying visit by a foreign official or dignitary of the same country 
as that mission, the application shall include the name and location of 
the mission or office. If, pursuant to Sec.  13.8, the visiting foreign 
official is to travel by motorcade and/or visit locations other than his 
foreign mission or temporary domicile, the application shall include a 
description of the anticipated motorcade routes and all stops on the 
routes as well as the name (or description) and location of any other 
places to be visited.
    The ______ (Government entity) ______ (is or is not) ______ prepared 
to provide ______ (all or a portion of) the protection required to meet 
this need. Attached is an estimate of the appropriate number of 
personnel, by grade and rank, and the specific services, equipment and 
facilities which will be required to meet this extraordinary protective 
need, along with an estimate of the cost of such personnel, services, 
equipment, and facilities.
(Date)__________________________________________________________________
________________________________________________________________________
(State or local government of the affected metropolitan area)
________________________________________________________________________
(Signature)
________________________________________________________________________
(Title)

[45 FR 30622, May 9, 1980]



       Sec. Appendix II to Part 13--Form of Bill for Reimbursement

    I hereby request that ______ (Governmental entity) be reimbursed by 
the Department of the Treasury pursuant to sections 202 and 208 of Title 
3, U.S. Code, as amended and added, respectively, by Public Law 94-196 
(89 Stat.

[[Page 169]]

1109) (and/or pursuant to Public Law 96-74) for expenses incurred while 
providing an adequate level of protection during the extraordinary 
protective need arising in association with a visit of ______ (Official 
or dignitary's name and title) of ______ (Country) to participate in the 
work of ______ (International Organization) or occurring at the _______ 
(Permanent or observer mission) to ______ (International organization) 
during the period ______ (Date) through ______ (Date).
    I certify that the level of protection provided was both reasonable 
and necessary; that the costs herein billed are only those direct costs 
associated with meeting the extraordinary protective need; and that the 
costs herein billed are not costs of an indirect nature such as 
administrative costs, overhead, and depreciation, except as provided in 
Sec.  13.6(a) of 31 CFR 13.
    Access to all records, accounts, receipts, etc., pertaining to the 
costs herein billed will be accorded to representatives of the Assistant 
Secretary (Enforcement and Operations) and the General Accounting Office 
at such reasonable times and places as may be mutually agreed upon by 
said representatives and ______ (Governmental entity).
Date:___________________________________________________________________
________________________________________________________________________
(Signature)
________________________________________________________________________
(Title)

[45 FR 30623, May 9, 1980]



PART 14_RIGHT TO FINANCIAL PRIVACY ACT--Table of Contents



Sec.
14.1 Definitions.
14.2 Purpose.
14.3 Authorization.
14.4 Contents of request.
14.5 Certification.

    Authority: Sec. 1108, Right to Financial Privacy Act of 1978, 92 
Stat. 3697 et seq., 12 U.S.C. 3401 et seq.; (5 U.S.C. 301); and 
Reorganization Plan No. 26 of 1950.

    Source: 44 FR 16909, Mar. 20, 1979, unless otherwise noted.



Sec.  14.1  Definitions.

    For purposes of this regulation, the term:
    (a) Financial institution means any office of a bank, savings bank, 
card issuer as defined in section 103 of the Consumer Credit Protection 
Act (15 U.S.C. 1602(n)), industrial loan company, trust company, savings 
and loan, building and loan, or homestead association (including 
cooperative bank), credit union, or consumer financial institution, 
located in any State or territory of the United States, the District of 
Columbia, Puerto Rico, Guam, American Samoa, or the Virgin Islands.
    (b) Financial record means an original of, a copy of, or information 
known to have been derived from, any record held by a financial 
institution pertaining to a customer's relationship with the financial 
institution.
    (c) Person means an individual or a partnership of five or fewer 
individuals.
    (d) Customer means any person or authorized representative of that 
person who utilized or is utilizing any service of a financial 
institution, or for whom a financial institution is acting or has acted 
as a fiduciary, in relation to an account maintained in the person's 
name.
    (e) Law enforcement inquiry means a lawful investigation or official 
proceeding inquiring into a violation of or failure to comply with any 
criminal or civil statute or any regulation, rule, or order issued 
pursuant thereto.
    (f) Departmental unit means those offices, divisions, bureaus, or 
other components of the Department of the treasury authorized to conduct 
law enforcement inquiries.
    (g) Act means the Right to Financial Privacy Act of 1978.



Sec.  14.2  Purpose.

    The purpose of these regulations is to authorize Departmental units 
to request financial records from a financial institution pursuant to 
the formal written request procedure authorized by section 1108 of the 
Act, and to set forth the conditions under which such requests may be 
made.



Sec.  14.3  Authorization.

    Departmental units are hereby authorized to request financial 
records of any customer from a financial institution pursuant to a 
formal written request under the Act only if:
    (a) No administrative summons or subpoena authority reasonably 
appears to be available to the Departmental unit to obtain financial 
records for the purpose for which the records are sought;

[[Page 170]]

    (b) There is reason to believe that the records sought are relevant 
to a legitimate law enforcement inquiry and will further that inquiry;
    (c) The request is issued by a supervisory official of a rank 
designated by the head of the requesting Departmental unit. Officials so 
designated shall not delegate this authority to others;
    (d) The request adheres to the requirements set forth in Sec.  14.4; 
and
    (e) The notice requirements set forth in section 1108(4) of the Act, 
or the requirements pertaining to delay of notice in section 1109 of the 
Act are satisfied, except in situations where no notice is required. 
(e.g., section 1113(g))



Sec.  14.4  Contents of request.

    The formal written request shall be in the form of a letter or 
memorandum to an appropriate official of the financial institution from 
which financial records are requested. The request shall be signed by an 
issuing official of the requesting Department unit. It shall set forth 
that official's name, title, business address and business phone number. 
The request shall also contain the following:
    (a) The identity of the customer or customers to whom the records 
pertain;
    (b) A reasonable description of the records sought;
    (c) Any other information that the issuing official deems 
appropriate, e.g., the date on which the requesting Departmental unit 
expects to present a certificate of compliance with the applicable 
provisions of the Act, the name and title of the individual to whom 
disclosure is to be made, etc.

In cases where customer notice is delayed by a court order, a copy of 
the court order shall be attached to the formal written request.



Sec.  14.5  Certification.

    Prior to obtaining the requested records pursuant to a formal 
written request, an official of a rank designated by the head of the 
requesting Departmental unit shall certify in writing to the financial 
institution that the Departmental unit has complied with the applicable 
provisions of the Act.



PART 15_POST EMPLOYMENT CONFLICT OF INTEREST--Table of Contents



                      Subpart A_General Provisions

Sec.
15.737-1 Scope.
15.737-2 Definitions.
15.737-3 Director of Practice.
15.737-4 Other discipline.
15.737-5 Records.

 Subpart B_Rules Applicable to Post Employment Practice by Officers and 
                       Employees of the Department

15.737-6 Interpretative standards.

            Subpart C_Administrative Enforcement Proceedings

15.737-7 Authority to prohibit practice.
15.737-8 Special orders.
15.737-9 Receipt of information concerning former Treasury employee.
15.737-10 Conferences.
15.737-11 Institution of proceeding.
15.737-12 Contents of complaint.
15.737-13 Service of complaint and other papers.
15.737-14 Answer.
15.737-15 Reply to answer.
15.737-16 Proof; variance; amendment of pleadings.
15.737-17 Motions and requests.
15.737-18 Representation.
15.737-19 Administrative Law Judge.
15.737-20 Hearings.
15.737-21 Evidence.
15.737-22 Depositions.
15.737-23 Transcript.
15.737-24 Proposed findings and conclusions.
15.737-25 Decision of the Administrative Law Judge.
15.737-26 Appeal to the General Counsel.
15.737-27 Decision of the General Counsel.
15.737-28 Notice of disciplinary action.

                Subpart D_Other Departmental Proceedings

15.737-29 Review by the General Counsel.

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

    Source: 45 FR 39842, June 12, 1980, unless otherwise noted.

[[Page 171]]



                      Subpart A_General Provisions



Sec.  15.737-1  Scope.

    This part contains rules governing discipline of a former officer or 
employee of the Department of the Treasury because of a post employment 
conflict of interest. Such discipline may include prohibition from 
practice before the Department or a separate statutory agency thereof as 
those terms are defined in this part.



Sec.  15.737-2  Definitions.

    For the purpose of this part--
    (a) The term Department means the Department of the Treasury and 
includes the separate statutory agencies thereof.
    (b) The term Director means the Director of Practice.
    (c) The term General Counsel means the General Counsel of the 
Department.
    (d) The term practice means any informal or formal appearance 
before, or, with the intent to influence, any oral or written 
communication to the Department or, where applicable, to a separate 
statutory agency thereof on a pending matter of business on behalf of 
any other person (except the United States).
    (e) The term separate statutory agency thereof means an agency or 
bureau within the Department designated by rule by the Director, Office 
of Government Ethics, as a separate agency or bureau. The Internal 
Revenue Service, Bureau of Alcohol, Tobacco and Firearms, United States 
Secret Service, Bureau of the Mint, United States Customs Service, 
Bureau of Engraving and Printing, and Comptroller of the Currency were 
so designated effective July 1, 1979.



Sec.  15.737-3  Director of Practice.

    There is, in the Office of the Secretary of the Treasury, the Office 
of Director of Practice. The Director 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.  15.737-4  Other discipline.

    For activity alleged to violate 18 U.S.C. 207 (a), (b) or (c), the 
Director may also bring a disciplinary proceeding pursuant to the 
regulations governing practice before the Bureau of Alcohol, Tobacco and 
Firearms or the Internal Revenue Service as found in 31 CFR part 8 and 
31 CFR part 10, respectively. Such proceeding may be consolidated with 
any proceeding brought pursuant to this part.



Sec.  15.737-5  Records.

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



 Subpart B_Rules Applicable to Post Employment Practice by Officers and 
                       Employees of the Department



Sec.  15.737-6  Interpretative standards.

    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 
by the Office of Government Ethics and published at 5 CFR part 737.



            Subpart C_Administrative Enforcement Proceedings



Sec.  15.737-7  Authority to prohibit practice.

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

[[Page 172]]



Sec.  15.737-8  Special orders.

    The General Counsel may issue special orders as he/she may consider 
proper in any case within the purview of this part.



Sec.  15.737-9  Receipt of information concerning former Treasury employee.

    If an officer or employee of the Department has reason to believe 
that a former officer or employee of the Department has violated 18 
U.S.C. 207 (a), (b) or (c), 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 
Inspector General, Department of the Treasury. If any other person has 
information of such violations, he/she may make a report thereof to the 
Inspector General or to any officer or employee of the Department. The 
Inspector General shall refer any information he/she deems warranted to 
the Director.



Sec.  15.737-10  Conferences.

    (a) In general. The Director may confer with a former officer or 
employee concerning allegations of misconduct irrespective of whether an 
administrative disciplinary proceeding has been instituted against him/
her. If such conference results in a stipulation in connection with a 
proceeding in which such person is the respondent, the stipulation may 
be entered in the record at the instance of either party to the 
proceeding.
    (b) Voluntary suspension. A former officer or employee, in order to 
avoid the institution or conclusion of a proceeding, may offer his/her 
consent to suspension from practice before the Department or a separate 
statutory agency thereof. The Director in his/her discretion, may 
suspend a former officer or employee in accordance with the consent 
offered.



Sec.  15.737-11  Institution of proceeding.

    (a) Whenever the Director has 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 reprimand such person or institute an 
administrative disciplinary proceeding for that person's suspension from 
practice before the Department or a separate statutory agency thereof. 
The proceeding shall be instituted by a complaint which names the 
respondent and is signed by the Director 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.
    (b) The Director shall coordinate proceedings under this part with 
the Department of Justice in cases where it initiates criminal 
prosecution.



Sec.  15.737-12  Contents of complaint.

    (a) Charges. A complaint shall give a plain and concise description 
of 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.
    (b) Demand for answer. In the complaint, or in a separate paper 
attached to the complaint, notification shall be given of the place and 
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, and 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 as required.



Sec.  15.737-13  Service of complaint and other papers.

    (a) Complaint. The complaint or a copy thereof may be served upon 
the respondent by certified mail, or first-class mail as hereinafter 
provided; 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; or in any other manner 
which has been agreed to by the respondent. Where the service is by 
certified mail, the return post office receipt duly signed by or on 
behalf of the respondent shall be proof of service. If

[[Page 173]]

the certified mail is not claimed or accepted by the respondent and is 
returned undelivered, complete service may be made upon the respondent 
by mailing the complaint to him/her by first-class mail, addressed to 
him/her at the last address known to the Director. If service is made 
upon the respondent or his/her attorney or agent of record in person or 
by leaving the complaint at the office or place of business of the 
respondent, attorney or agent, the verified return by the person making 
service, setting forth the manner of service, shall be proof of such 
service.
    (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, or by mailing the 
paper by first-class mail to the respondent's attorney or agent of 
record. Such mailing shall constitute complete service. Notices may be 
served upon the respondent or his/her attorney or agent of record by 
telegraph.
    (c) Filing of papers. 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 Administrative 
Law Judge, the paper shall be filed with the Director of Practice, 
Department of the Treasury, Washington, DC 20220. All papers shall be 
filed in duplicate.



Sec.  15.737-14  Answer.

    (a) Filing. The respondent's answer shall be filed in writing within 
the time specified in the complaint, unless on application the time is 
extended by the Director or the Administrative Law Judge. The answer 
shall be filed in duplicate with the Director.
    (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, except that the 
respondent shall not deny a material allegation in the complaint which 
he/she knows to be true, or state that he/she is without sufficient 
information to form a belief when in fact he/she possesses such 
information. 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, and no further 
evidence in respect of such allegation need be adduced at a hearing. 
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 or the Administrative Law Judge, shall constitute an admission 
of the allegations of the complaint and a waiver of hearing, and the 
Administrative Law Judge may make his/her decision by default without a 
hearing or further procedure.



Sec.  15.737-15  Reply to answer.

    No reply to the respondent's answer shall be required, and new 
matter in the answer shall be deemed to be denied, but the Director may 
file a reply in his/her discretion or at the request of the 
Administrative Law Judge.



Sec.  15.737-16  Proof; variance; amendment of pleadings.

    In the case of a variance between the allegations in a pleading and 
the evidence adduced in support of the pleading, the Administrative Law 
Judge may order or authorize amendment of the pleading to conform to the 
evidence: Provided, That the party who would otherwise be prejudiced by 
the amendment is given reasonable opportunity to meet the allegations of 
the pleading as amended; and the Administrative Law Judge shall make 
findings on any issue presented by the pleadings as so amended.



Sec.  15.737-17  Motions and requests.

    Motions and requests may be filed with the Director or with the 
Administrative Law Judge.



Sec.  15.737-18  Representation.

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

[[Page 174]]



Sec.  15.737-19  Administrative Law Judge.

    (a) Appointment. An Administrative Law Judge appointed as provided 
by 5 U.S.C. 3105 (1966), shall conduct proceedings upon complaints for 
the administrative disciplinary proceedings under this part.
    (b) Power of Administrative Law Judge. Among other powers, the 
Administrative Law Judge shall have authority, in connection with any 
proceeding assigned or referred to him/her, to do the following:
    (1) Administer oaths and affirmations;
    (2) Make rulings upon motions and requests, which rulings may not be 
appealed from prior to the close of a hearing except, at the discretion 
of the Administrative Law Judge, in extraordinary circumstances;
    (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) Assess the responsible party extraordinary costs attributable to 
the location of a hearing;
    (10) Perform such acts and take such measures as are necessary or 
appropriate to the efficient conduct of any proceeding; and
    (11) Make initial decisions.



Sec.  15.737-20  Hearings.

    (a) In general. The Administrative Law Judge shall preside at the 
hearing on a complaint for the suspension of a former officer or 
employee from practice before the Department. Hearings shall be 
stenographically recorded and transcribed and the testimony of witnesses 
shall be taken under oath or affirmation. Hearings will be conducted 
pursuant to 5 U.S.C. 556.
    (b) Public access to hearings. Hearings will be closed unless an 
open hearing is requested by the respondent, except that if classified 
information or protected information of third parties (such as tax 
information) is likely to be adduced at the hearing, it will remain 
closed. A request for an open hearing must be included in the answer to 
be considered.
    (c) Failure to appear. 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 Administrative Law Judge may make a decision against the absent 
party by default.



Sec.  15.737-21  Evidence.

    (a) In general. The rules of evidence prevailing in courts of law 
and equity are not controlling in hearings on complaints for the 
suspension of a former officer or employee from practice before the 
Department. However, the Administrative Law Judge shall exclude evidence 
which is irrelevant, immaterial, or unduly repetitious.
    (b) Depositions. The deposition of any witness taken pursuant to 
Sec.  15.737-22 of this part may be admitted.
    (c) Proof of documents. Official documents, records and papers of 
the Department shall be admissible in evidence without the production of 
an officer or employee to authenticate them. Any such documents, 
records, and papers may be evidenced by a copy attested or identified by 
an officer or employee of the Department.
    (d) Exhibits. If any document, record, or other paper is introduced 
in evidence as an exhibit, the Administrative Law Judge may authorize 
the withdrawal of the exhibit subject to any conditions which he/she 
deems proper.
    (e) Objections. Objections to evidence shall be in short form, 
stating the grounds of objection relied upon, and the record shall not 
include argument thereon, except as ordered by the Administrative Law 
Judge. Rulings on such objections shall be a part of the record. No 
exception to the ruling is necessary to preserve the rights of the 
parties.

[[Page 175]]



Sec.  15.737-22  Depositions.

    Depositions for use at a hearing may, with the consent of the 
parties in writing or the written approval of the Administrative Law 
Judge, be taken by either the Director or the respondent or their duly 
authorized representatives. Depositions may be taken upon oral or 
written interrogatories, upon not less than 10 days' written notice to 
the other party before any officer duly authorized to administer an oath 
for general purposes or before an officer or employee of the Department 
who is authorized to administer an oath. Such notice shall state the 
names of the witnesses and the time and place where the depositions are 
to be taken. The requirement of 10 days' notice may be waived by the 
parties in writing, and depositions may then be taken from the persons 
and at the times and places mutually agreed to by the parties. 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. A 
party upon whose behalf a deposition is taken must file it with the 
Administrative Law Judge and serve one copy upon the opposing party. 
Expenses in the reporting of depositions shall be borne by the party at 
whose instance the deposition is taken.



Sec.  15.737-23  Transcript.

    In cases where the hearing is stenographically reported by a 
Government contract reporter, copies of the transcript may be obtained 
from the reporter at rates not to exceed the maximum rates fixed by 
contract between the Government and the reporter or from the Department 
at actual cost of duplication. Where the hearing is stenographically 
reported by a regular employee of the Department, a copy thereof will be 
supplied to the respondent either without charge or upon payment of a 
reasonable fee. Copies of exhibits introducted at the hearing or at the 
taking of depositions will be supplied to the parties upon the payment 
of a reasonable fee (Sec. 501, Pub. L. 82-137, 65 Stat. 290 (31 U.S.C. 
483a)).



Sec.  15.737-24  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 
Administrative Law Judge prior to making his/her decision, shall afford 
the parties a reasonable opportunity to submit proposed findings and 
conclusions and supporting reasons therefor.



Sec.  15.737-25  Decision of the Administrative Law Judge.

    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 Administrative Law Judge shall make the initial decision in 
the case. 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 
(b) an order of suspension from practice before the Department or 
separate statutory agency thereof or other appropriate disciplinary 
action, or an order of dismissal of the complaint. The Administrative 
Law Judge shall file the decision with the Director and shall transmit a 
copy thereof to the respondent or his/her attorney of record. In the 
absence of an appeal to the General Counsel or review of the decision 
upon motion of the General Counsel, the decision of the Administrative 
Law Judge shall without further proceedings become the decision of the 
General Counsel 30 days from the date of the Administrative Law Judge's 
decision.



Sec.  15.737-26  Appeal to the General Counsel.

    Within 30 days from the date of the Administrative Law Judge's 
decision, either party may appeal to the General Counsel. The appeal 
shall be filed with the Director in duplicate and shall include 
exceptions to the decision of the Administrative Law Judge and 
supporting reasons for such exceptions. If an appeal is filed by the 
Director, he/she shall transmit a copy thereof to

[[Page 176]]

the respondent. Within 30 days after receipt of an appeal or copy 
thereof, the other party may file a reply brief in duplicate with the 
Director. If the reply brief is filed by the Director, he/she shall 
transmit a copy of it to the respondent. Upon the filing of an appeal 
and a reply brief, if any, the Director shall transmit the entire record 
to the General Counsel.



Sec.  15.737-27  Decision of the General Counsel.

    On appeal from or review of the initial decision of the 
Administrative Law Judge, the General Counsel will make the agency 
decision. In making his/her decision, the General Counsel will review 
the record or such portions thereof as may be cited by the parties to 
permit limiting of the issues. A copy of the General Counsel's decision 
shall be transmitted to the respondent by the Director.



Sec.  15.737-28  Notice of disciplinary action.

    (a) Upon the issuance of a final order suspending a former officer 
or employee from practice before the Department or a separate statutory 
agency thereof, the Director 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 or separate statutory agency 
thereof during the period of suspension.
    (b) The Director shall take other appropriate disciplinary action as 
may be required by the final order.



                Subpart D_Other Departmental Proceedings



Sec.  15.737-29  Review by the General Counsel.

    In my proceeding before the Department, if an initial decision is 
made with respect to the disqualification of a representative or 
attorney for a party on the grounds of 18 U.S.C. 207(a), (b) or (c), 
such decision may be appealed to the General Counsel, who will make the 
agency decision on the issue.



PART 16_REGULATIONS IMPLEMENTING THE PROGRAM FRAUD CIVIL REMEDIES ACT
OF 1986--Table of Contents



Sec.
16.1 Basis and purpose.
16.2 Definitions.
16.3 Basis for civil penalties and assessments.
16.4 Investigation.
16.5 Review by the reviewing official.
16.6 Prerequisites for issuing a complaint.
16.7 Complaint.
16.8 Service of complaint.
16.9 Answer.
16.10 Default upon failure to file an answer.
16.11 Referral of complaint and answer to the ALJ.
16.12 Notice of hearing.
16.13 Parties to the hearing.
16.14 Separation of functions.
16.15 Ex parte contacts.
16.16 Disqualification of reviewing official or ALJ.
16.17 Rights of parties.
16.18 Authority of the ALJ.
16.19 Prehearing conferences.
16.20 Disclosure of documents.
16.21 Discovery.
16.22 Exchange of witness lists, statements, and exhibits.
16.23 Subpoenas for attendance at hearing.
16.24 Protective order.
16.25 Fees.
16.26 Form, filing and service of papers.
16.27 Computation of time.
16.28 Motions.
16.29 Sanctions.
16.30 The hearing and burden of proof.
16.31 Determining the amount of penalties and assessments.
16.32 Location of hearing.
16.33 Witnesses.
16.34 Evidence.
16.35 The record.
16.36 Post-hearing briefs.
16.37 Initial decision.
16.38 Reconsideration of initial decision.
16.39 Appeal to authority head.
16.40 Stays ordered by the Department of Justice.
16.41 Stay pending appeal.
16.42 Judicial review.
16.43 Collection of civil penalties and assessments.
16.44 Right to administrative offset.
16.45 Deposit in Treasury of United States.
16.46 Compromise or settlement.
16.47 Limitations.

    Authority: 31 U.S.C. 3801-3812.

    Source: 52 FR 35071, Sept. 17, 1987, unless otherwise noted.

[[Page 177]]



Sec.  16.1  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 requires 
each authority head to promulgate regulations necessary to implement the 
provisions of the statute.
    (b) Purpose. This part
    (1) Establishes administrative procedures for imposing civil 
penalties and assessments against persons who make, submit, or present, 
or cause to be made, submitted, or presented, false, fictitious, or 
fraudulent claims or written statements to authorities or to their 
agents, and
    (2) Specifies the hearing and appeal rights of persons subject to 
allegations of liability for such penalties and assessments.



Sec.  16.2  Definitions.

    ALJ means an Administrative Law Judge in the authority appointed 
pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 
U.S.C. 3344.
    Authority means the Department of the Treasury.
    Authority head means the Assistant Secretary of the Treasury for 
Management.
    Benefit, when used in the context of false statements made with 
respect to a benefit, means anything of value including but not limited 
to any advantage, preference, privilege, license, permit, favorable 
decision, ruling, status, or loan guarantee. This definition should be 
distinguished from the limitations on coverage of these regulations with 
respect to beneficiaries of specific benefit programs which are found in 
Sec.  16.3(c) of this part.
    Claim means any request, demand, or submission--
    (a) Made to the authority for property, services, or money 
(including money representing grants, loans, insurance, or benefits);
    (b) Made to a recipient of property, services, or money from the 
authority or to a party to a contract with the authority--
    (1) For property or services if the United States--
    (i) Provided such property or services;
    (ii) Provided any portion of the funds for the purchase of such 
property or services; or
    (iii) Will reimburse such recipient or party for the purchase of 
such property or services; or
    (2) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States--
    (i) Provided any portion of the money requested or demanded; or
    (ii) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (c) Made to the authority which has the effect of decreasing an 
obligation to pay or account for property, services, or money, except 
that such term does not include any claim made in any return of tax 
imposed by the Internal Revenue Code of 1954.
    Complaint means the administrative complaint served by the reviewing 
official on the defendant under Sec.  16.7 of this part.
    Defendant means any person alleged in a complaint under Sec.  16.7 
to be liable for a civil penalty or assessment under Sec.  16.3.
    Department means the Department of the Treasury.
    Government means the United States Government.
    Individual means a natural person.
    Initial decision means the written decision of the ALJ required by 
Sec.  16.10 or Sec.  16.37, and includes a revised initial decision 
issued following a remand or a motion for reconsideration.
    Investigating official means any Inspector General, including any 
Special Inspector General, with investigatory authority over programs of 
the Department of the Treasury, as applicable.
    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.

[[Page 178]]

    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, 
private organization, State, political subdivision of a State, 
municipality, county, district, and Indian tribe, and includes the 
plural of that term.
    Presiding officer means an administrative law judge appointed in the 
authority pursuant to 5 U.S.C. 3105 or detailed to the authority 
pursuant to section 3344 of such title.
    Representative means an attorney designated in writing by a 
defendant to appear on his or her behalf in administrative hearings 
before the Department and to represent a defendant in all other legal 
matters regarding a complaint made pursuant to these regulations.
    Reviewing official means the General Counsel, or another individual 
in the Legal Division of the Department designated by the General 
Counsel, who is--
    (a) 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; and
    (b) Is not subject to supervision by, or required to report to, the 
investigating official; and
    (c) Is not employed in the organization unit of the authority in 
which the investigating official is employed.
    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, 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 of any portion of 
the money or property under such contract or for such grant, loan, or 
benefit, except that such term does not include any claim made in any 
return of tax imposed by the Internal Revenue Code of 1954.

[52 FR 35071, Sept. 17, 1987, as amended at 87 FR 10309, Feb. 24, 2022]



Sec.  16.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Except as provided in paragraph (c) of this section, 
any person who makes a claim that the person knows or has reason to 
know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed, shall be subject, in addition to 
any other remedy that may be prescribed by law, to a civil penalty of 
not more than $8,212 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 an 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 such authority, recipient, or party.
    (4) Each claim for property, services, or money is subject to a 
civil penalty under these regulations 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

[[Page 179]]

also be subject to an assessment of not more than twice the amount of 
such claim or that portion thereof that is determined to be in violation 
of paragraph (a)(1) of this section. Such assessment shall be in lieu of 
damages sustained by the Government because of such claim.
    (b) Statements. (1) Except as provided in paragraph (c) of this 
section, any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (ii) Includes or is accompanied by an express certification or 
affirmation of the truthfulness and accuracy of the content 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 $8,212 for each 
such statement.
    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (3) A statement shall be considered made to an 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 such authority.
    (c)(1) In the case of any claim or statement made by any individual 
relating to any of the benefits listed in paragraph (c)(2) of this 
section, received by such individual, such individual may be held liable 
for penalties and assessments under this section only if such claim or 
statement is made by such individual in making application for such 
benefits with respect to such individual's eligibility to receive such 
benefits.
    (2) For purposes of this paragraph, the term benefits means--
    (i) Benefits under the food stamp program (as defined in section 
3(h) of the Food Stamp Act of 1977);
    (ii) Benefits under Chapters 11, 13, 15, 17, and 21 of Title 38;
    (iii) Benefits under the Black Lung Benefits Act;
    (iv) Any authority or other benefit under the Railroad Retirement 
Act of 1974;
    (v) Benefits under the National School Lunch Act;
    (vi) Benefits under any housing assistance program for lower income 
families or elderly or handicapped persons which is administered by the 
Secretary of Housing and Urban Development or the Secretary of 
Agriculture;
    (vii) Benefits under the special supplemental food program for 
women, infants, and children established under section 17 of the Child 
Nutrition Act of 1966;
    (viii) Benefits under part A of the Energy Conservation in Existing 
Buildings Act of 1976;
    (ix) Benefits under the supplemental security income program under 
title XVI of the Social Security Act;
    (x) Old age, survivors, and disability insurance benefits under 
title II of the Social Security Act;
    (xi) Benefits under title XVIII of the Social Security Act;
    (xii) Aid to families with dependent children under a State plan 
approved under section 402(a) of the Social Security Act;
    (xiii) Medical assistance under a State plan approved under section 
1902(a) of the Social Security Act;
    (xiv) Benefits under title XX of the Social Security Act;
    (xv) Benefits under section 336 of the Older Americans Act; or
    (xvi) Benefits under the Low-Income Home Energy Assistance Act of 
1981, which are intended for the personal use of the individual who 
receives the benefits or for a member of the individual's family.
    (d) No proof of specific intent to defraud is required to establish 
liability under this section.
    (e) In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held liable for a civil penalty under this section.
    (f) In any case in which it is determined that more than one person 
is liable for making a claim under this section, and on which the 
Government has made payment (including transferred

[[Page 180]]

property or provided services), an assessment may be imposed against any 
such person or jointly and severally against any combination of such 
persons.

[52 FR 35071, Sept. 17, 1987, as amended at 86 FR 12539, Mar. 4, 2021]



Sec.  16.4  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 information, records, or documents sought;
    (2) The investigating official may designate a person to act on his 
behalf to receive the information, records, or documents sought; and
    (3) The person receiving such subpoena shall be required to tender 
to the investigating official or to the person designated to receive the 
information, records, or documents, a certification that the 
information, records, or documents sought have been produced, or that 
such information, records, or documents are not available and the 
reasons therefor, or that such information, records, or documents, 
suitably identified, have been withheld based upon the assertion of an 
identified legal privilege.
    (b) If the investigating official concludes that an action under the 
Program Fraud Civil Remedies Act may be warranted, the investigating 
official shall report the findings and conclusions of such investigation 
to the reviewing official.
    (c) Nothing in this section shall preclude or limit the 
investigating official's discretion to refer allegations directly to the 
Department of Justice for suit under the False Claims Act, 31 U.S.C. 
3729-3731, or for other civil relief, or to preclude or limit such 
official's discretion to defer or postpone a report or referral to avoid 
interference with an investigation into criminal misconduct or a 
criminal prosecution.
    (d) Nothing in this section modifies any responsibility of the 
investigating official to report violations of criminal law to the 
Attorney General.



Sec.  16.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec.  16.4(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec.  16.3 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.  16.7.
    (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, if any, of 
property, services, or other benefits requested or demanded in violation 
of Sec.  16.3 of this part; or, if no monetary value can be put on the 
property, service or benefit, a statement regarding the non-monetary 
consequences to the agency of a false statement.
    (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. Such a statement may be 
based upon information then known or an absence of any information 
indicating that the person may be unable to pay such an amount.



Sec.  16.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec.  16.7 
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)(l), and
    (2) In the case of allegations of liability under Sec.  16.3(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

[[Page 181]]

the value of property or services demanded or requested in violation of 
Sec.  16.3(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, as long as the total amount for each claim does 
not exceed $150,000.



Sec.  16.7  Complaint.

    (a) On or after the date the Attorney General or his designee 
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.  16.8.
    (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 an attorney;
    (4) That the defendant has a right to review and obtain certain 
information pursuant to Section 16.20 herein; and
    (5) 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.
    (c) At the same time the reviewing official serves the complaint on 
the defendant(s), he or she shall serve the defendant with a copy of 
these regulations.



Sec.  16.8  Service of complaint.

    (a) Service of a complaint must be made by a certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure.
    (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 making service;
    (2) An acknowledged United States Postal Service return receipt 
card; or
    (3) Written acknowledgement of the defendant or his representative.



Sec.  16.9  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 whether the defendant has authorized an attorney to 
act as defendant's representative, and shall state the name, address, 
and telephone number of the representative.



Sec.  16.10  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time 
prescribed in Sec.  16.9(a), the reviewing official may refer the 
complaint to the ALJ for initial decision.
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on defendant in the manner prescribed in Sec.  16.8, a notice that an 
initial decision will be issued under this section.
    (c) If the defendant fails to file a timely answer, the ALJ shall 
assume the facts alleged in the complaint to be

[[Page 182]]

true and, if such facts eatablish liability under Sec.  16.3, 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, and serves a copy on the agency, seeking to 
reopen on the grounds that extraordinary circumstances prevented the 
defendant from filing a timely answer, the initial decision shall be 
stayed pending the ALJ's decision on the motion. The ALJ shall permit 
the agency a reasonable amount of time, not less than 15 calendar days, 
to respond to the defendant's 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, if such a decision has been issued 
pursuant to paragraph (c) of this section, 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.  16.38.
    (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, and based solely 
on the record before the ALJ, whether extraordinary circumstances excuse 
the defendant's failure to file a timely answer.
    (k) If the authority head decides that extraordinary circumstances 
excuse 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 file an 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.  16.11  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.  16.12  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the defendant and the agency 
representative in the manner prescribed by Sec.  16.8.
    (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 names, addresses, and telephone numbers of the 
representatives of the Government and of the defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec.  16.13  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.  16.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the authority who takes part

[[Page 183]]

in investigating, preparing, or presenting a particular case may not, in 
such case or a factually related case--
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the authority head, except as a witness or a 
representative in public proceedings; or
    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to, or subject to the 
supervision or direction of the investigating official or the reviewing 
official.
    (c) Except as provided in paragraph (a) of this section, the 
representative for the Government may be an attorney employed anywhere 
in the Legal Division of the Department, or an attorney employed in the 
offices of either the investigating official or the reviewing official; 
however the representative of the Government may not participate or 
advise in the review of the initial decision by the authority head.



Sec.  16.15  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.  16.16  Disqualification of reviewing official or ALJ.

    (a) A reviewing official or ALJ in a particular case may disqualify 
himself or herself at any time.
    (b) A party may file with the ALJ a motion for disqualification of a 
reviewing official or an ALJ. Such motion shall be accompanied by an 
affidavit alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such 
objections shall be deemed waived.
    (d) Such affidavit shall state specific facts that support the 
party's assertion 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 paragrpah (f) of this section.
    (f)(1) If the ALJ determines that a reviewing official is 
disqualified, the ALJ shall dismiss the complaint without prejudice.
    (2) If the ALJ disqualifies himself or herself, the agency shall 
seek to have the case promptly reassigned to another ALJ.
    (3) If the ALJ denies a motion to disqualify, the authority head may 
determine the matter only as part of his or her review of the initial 
decision upon appeal, if any.



Sec.  16.17  Rights of parties.

    Except as otherwise limited by this part, all parties may--
    (a) Be accompanied, represented, and advised by an attorney;
    (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 beliefs and proposed findings of fact and 
conclusions of law after the hearing.



Sec.  16.18  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;

[[Page 184]]

    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.
    (c) The ALJ does not have the authority to make any determinations 
regarding the validity of Federal statutes or regulations, or 
Departmental orders, Directives, or other published rules.



Sec.  16.19  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, admissions of fact or the content 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.  16.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the defendant 
may review any relevant and material documents, transcripts, records, 
and other material that relate to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec.  16.4(b) are based unless such 
documents are subject to a privilege under Federal law. The Department 
shall schedule such review at a time and place convenient to it. 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 obtian 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.  16.5 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.  16.9.

[[Page 185]]



Sec.  16.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purposes of this section and Sec. Sec.  16.22 and 16.23, 
the term ``documents'' includes information, documents, reports, 
answers, records, accounts, papers, and other data, either paper or 
electronic, and other 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 if it is not made available by another party on an 
informal basis. 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, and a description of the efforts which 
have been made by the party to obtain discovery.
    (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.  
16.24.
    (3) The ALJ may grant a motion for discovery only if he or she finds 
that the discovery sought--
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec.  16.24.
    (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.  16.8.
    (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.  16.22  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.  16.33(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 and 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.  16.23  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.

[[Page 186]]

    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request therefor 
not less than 15 days before the date fixed for the hearing unless 
otherwise allowed by the ALJ for good cause shown. Such request shall 
specify any documents to be produced and shall designate the witnesses 
and describe the address and location thereof with sufficient 
particularity to permit such witnesses to be found.
    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to bring with him 
or her.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec.  16.8. A subpoena on a party or upon an individual 
under the control of a party may be served by first class mail.
    (f) A party or the individual to whom the subpoena is directed may 
file with the ALJ a motion to quash the subpoena within ten days after 
service or on or before the time specified in the subpoena for 
compliance if it is less than ten days after service.



Sec.  16.24  Protective order.

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



Sec.  16.25  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.  16.26  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 etablished by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.

[[Page 187]]

    (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 an attorney, 
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.  16.27  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. When the 
period of time allowed is more than seven days, all intervening calendar 
days are included in the computation.
    (c) Where a document has been served or issued by mail, an 
additional five days will be added to the time permitted for any 
response.



Sec.  16.28  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.  16.29  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 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.

[[Page 188]]



Sec.  16.30  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.  16.3 and, if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) The authority shall have the burden of proving defendant's 
liability and any aggravating factors by a preponderance of the 
evidence.
    (c) The defendant shall have the burden of proving 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.  16.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessements, the ALJ and upon appeal, the authority head, 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, double damages and a 
significant civil penalty ordinarily 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;
    (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.  16.32  Location of hearing.

    (a) The hearing may be held--

[[Page 189]]

    (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.  16.33  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.  
16.22(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 permited 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.  16.34  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, immaterial, or incompetent 
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.  16.24.



Sec.  16.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the

[[Page 190]]

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.  16.24.



Sec.  16.36  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. 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.  16.37  Initial decision.

    (a) The ALJ shall issue an initial decision, based solely on the 
record, which shall contain findings of fact, conclusion 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.  16.3;
    (2) If the person is liable for penalties of 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.  16.31.
    (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.  16.38  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) When a motion for reconsideration is made, the time periods for 
appeal to the authority head contained in Sec.  16.38, and for finality 
of the initial decision in Sec.  16.36(d), shall begin on the date the 
ALJ issues the denial of the motion for reconsideration or a revised 
initial decision, as appropriate.



Sec.  16.39  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.  16.38 has expired.

[[Page 191]]

    (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 filed within 30 days after the ALJ issues the initial 
decision.
    (4) The authority head may extend the initial 30 days period for an 
additional 30 days if the defendant files with the authority head a 
request for extension within the initial 30 days period and shows good 
cause.
    (c) If the defendant files a timely notice of appeal with the 
authority head, the ALJ shall forward the notice of appeal and 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 agency 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 right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the authority head shall not 
consider any objection that was not raised before the ALJ unless a 
demonstration is made of extraordinary circumstances causing the failure 
to raise the objection.
    (i) If any party demonstrates to the satisfaction of the authority 
head, prior to the issuance of the authority head's decision that 
additional evidence not presented at such hearing is material and that 
there were reasonable grounds for the failure to present such evidence 
at the 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 
to the ALJ with a copy of the decision of the authority head. At the 
same time the authority head shall serve the defendant with a statement 
describing the defendant's right to seek judicial review.
    (l) Unless a petition for judicial 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.  16.3 is final and 
is not subject to judicial review.



Sec.  16.40  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. In such a case, the authority head may order the 
process resumed only upon receipt of the written authorization of the 
Attorney General.



Sec.  16.41  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.  16.42  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.  16.43  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.

[[Page 192]]



Sec.  16.44  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.  16.42 or Sec.  16.43, 
or any amount agreed upon in a compromise or settlement under Sec.  
16.46, may be collected by administrative offset under 31 U.S.C. 3716, 
except that an administrative offset may not be made under this 
subsection against a refund of an overpayment of Federal taxes, then or 
later owing by the United States to the defendant.



Sec.  16.45  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.  16.46  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.  16.42 or during the pendency of any action to collect 
penalties and assessments under Sec.  16.43.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec.  16.42 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 and signed by 
all parties and their representatives.



Sec.  16.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec.  16.8 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.  16.10(b) shall be deemed a notice of hearing for 
purposes of this section.
    (c) The time limits of this statute of limitations may be extended 
by agreement of the parties.



PART 17_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 
PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF THE TREASURY-
-Table of Contents



Sec.
17.101 Purpose.
17.102 Application.
17.103 Definitions.
17.104-17.109 [Reserved]
17.110 Self-evaluation.
17.111 Notice.
17.112-17.129 [Reserved]
17.130 General prohibitions against discrimination.
17.131-17.139 [Reserved]
17.140 Employment.
17.141-17.148 [Reserved]
17.149 Program accessibility: Discrimination prohibited.
17.150 Program accessibility: Existing facilities.
17.151 Program accessibility: New construction and alterations.
17.152-17.159 [Reserved]
17.160 Communications.
17.161-17.169 [Reserved]
17.170 Compliance procedures.
17.171-17.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 56 FR 40788, Aug. 16, 1991, unless otherwise noted.



Sec.  17.101  Purpose.

    The purpose of this part is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 (``section 504'') to prohibit discrimination on the basis of 
handicap in programs or activities conducted by Executive agencies or 
the United States Postal Service.

[[Page 193]]



Sec.  17.102  Application.

    This part applies to all programs or activities conducted by the 
agency, except for programs or activities conducted outside the United 
States that do not involve individuals with handicaps in the United 
States.



Sec.  17.103  Definitions.

    For purposes of this part, the term--
    (a) Agency means the Department of the Treasury.
    (b) Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    (c) Auxiliary aids means services or devices that enable persons 
with impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings and other similar services and devices. Auxiliary aids 
useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunications 
devices for deaf persons (TDD's), interpreters, notetakers, written 
materials and other similar services and devices.
    (d) 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 of individuals with 
handicaps shall also identify (where possible) the alleged victims of 
discrimination.
    (e) Facility means all or any portion of a building, structure, 
equipment, road, walk, parking lot, rolling stock, or other conveyance, 
or other real or personal property.
    (f) Individual with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more of the 
individual's 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, drug addiction and alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more of the individual's 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 subparagraph (1) of 
this definition but is treated by the agency as having such an 
impairment.
    (g) Qualified individual with handicaps means--(1) With respect to 
an agency program or activity under which a person is required to 
perform services or to achieve a level of accomplishment, an individual 
with handicaps who

[[Page 194]]

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 the nature of the program; and
    (2) With respect to any other program or activity, an individual 
with handicaps who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (3) For purposes of employment, ``qualified handicapped person'' is 
defined in 29 CFR 1613.702(f), which is made applicable to this part by 
Sec.  17.140.
    (h) Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended. As used in 
this part, section 504 applies only to programs or activities conducted 
by Executive agencies and not to federally assisted programs.



Sec. Sec.  17.104-17.109  [Reserved]



Sec.  17.110  Self-evaluation.

    (a) The agency shall, by two years after the effective date of this 
part, evaluate its current policies and practices, and the effects 
thereof, to determine if they meet the requirements of this part. To the 
extent modification of any such policy and practice is required, the 
agency shall proceed to make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including individuals with handicaps or organizations representing 
individuals with handicaps, to participate in the self-evaluation 
process.
    (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; and
    (3) A list of participants in the self-evaluation process.



Sec.  17.111  Notice.

    The agency shall make available to all Treasury employees, and to 
all interested persons, as appropriate, 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 a manner as is necessary to apprise them of the 
protections against discrimination assured them by section 504 and this 
part.



Sec. Sec.  17.112-17.129  [Reserved]



Sec.  17.130  General prohibitions against discrimination.

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

[[Page 195]]

    (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 individuals with handicaps and for 
nonhandicapped persons, but must afford individuals with handicaps 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 individual's needs.
    (3) Even if the agency is permitted, under paragraph (b)(1)(iv) of 
this section, to operate a separate or different program for individuals 
with handicaps or for any class of individuals with handicaps, the 
agency must permit any qualified individual with handicaps who wishes to 
participate in the program that is not separate or different to do so.
    (4) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (5) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (6) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (7) The agency may not administer a licensing or certification 
program in a manner that subjects qualified individuals with handicaps 
to discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified individuals with handicaps to 
discrimination on the basis of handicap. However, the programs or 
activities of entities that are licensed or certified by the agency are 
not, themselves, covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with handicaps or the exclusion of a specific class of individuals with 
handicaps from a program limited by Federal statute or Executive order 
to a different class of individuals with handicaps is not prohibited by 
this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with handicaps.



Sec. Sec.  17.131-17.139  [Reserved]



Sec.  17.140  Employment.

    No qualified individual with handicaps shall, on the basis of 
handicap, be subjected to discrimination in employment under any program 
or activity conducted by the Department. 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 of federally 
conducted programs or activities.



Sec. Sec.  17.141-17.148  [Reserved]



Sec.  17.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec.  17.150, no qualified 
individual with handicaps shall, because the agency's facilities are 
inaccessible to or unusable by individuals with handicaps, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec.  17.150  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 196]]

usable by individuals with handicaps. This paragraph does not require 
the agency--
    (1) To make structural alterations in each of its existing 
facilities in order to make them accessible to and usable by individuals 
with handicaps where other methods are effective in achieving compliance 
with this section; or
    (2) 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 the Sec.  17.150(a) would result in such alteration or 
burdens. The decision that compliance would result in such alteration or 
burdens must be made by the agency head or his or her designee after 
considering all agency resources available for use in the funding and 
operation of the conducted program or activity and must be accompanied 
by a written statement of the reasons for reaching that conclusion. If 
an action would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that individuals with 
handicaps receive the benefits and services of the program or activity.
    (b) Methods. The agency may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
individuals with handicaps. The agency, in making alterations to 
existing buildings, shall meet accessibility requirements to the extent 
compelled by the Architectural Barriers Act of 1968, as amended (42 
U.S.C. 4151-4157), and any regulations implementing it. In choosing 
among available methods for meeting the requirements of this section, 
the agency shall give priority to those methods that offer programs and 
activities to qualified individuals with handicaps in the most 
integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section within sixty (60) days of the 
effective date of this part except that where structural changes in 
facilities are undertaken, such changes in facilities are undertaken, 
such changes shall be made within three years of the effective date of 
this part, but in any event as expeditiously as possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop within six months of the effective date of this 
part, a transition plan setting forth the steps necessary to complete 
such changes. The agency shall provide an opportunity to interested 
persons, including individuals with handicaps or organizations 
representing individuals with handicaps, to participate in the 
development of the transition plan by submitting comments (both 
telephonic 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 physical accessibility of its programs or activities to 
individuals with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec.  17.151  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

[[Page 197]]

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



Sec. Sec.  17.152-17.159  [Reserved]



Sec.  17.160  Communications.

    (a) The agency shall take appropriate steps to effectively 
communicate with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal nature 
to applicants or participants in programs.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, the agency shall use telecommunication devices for deaf 
persons (TDD's) or equally effective telecommunication systems to 
communicate with persons with impaired hearing.
    (b) The agency shall make available to interested persons, including 
persons with impaired vision or hearing, information as to the existence 
and location of accessible services, activities, and facilities.
    (c) The agency shall post notices at a primary entrance to each of 
its inaccessible facilities, directing users to an accessible facility, 
or 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.  17.160 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 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 maxium extent possible, 
individuals with handicaps receive the benefits and services of the 
program or activity.



Sec. Sec.  17.161-17.169  [Reserved]



Sec.  17.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs and activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) All other complaints alleging violations of section 504 may be 
sent to the Director, Office of Equal Opportunity Program, Department of 
the Treasury, 1500 Pennsylvania Avenue, NW., Washington, DC 20220. The 
Deputy Assistant Secretary for Departmental Finance and Management shall 
be responsible for coordinating implementation of this section.

[[Page 198]]

    (d)(1) Any person who believes that he or she has been subjected to 
discrimination prohibited by this part may by him or herself or by his 
or her authorized representative file a complaint. Any person who 
believes that any specific class of persons has been subjected to 
discrimination prohibited by this part and who is a member of that class 
or the authorized representative of a member of that class may file a 
complaint.
    (2) The agency shall accept and investigate all complete complaints 
over which it has jurisdiction.
    (3) 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 receive a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with handicaps.
    (g)(1) Within 180 days of the receipt of a complete complaint over 
which it has jurisdiction, the agency shall notify the complainant of 
the results of the investigation in a letter containing--
    (i) Findings of fact and conclusions of law;
    (ii) A description of a remedy for each violation found; and
    (iii) A notice of the right to appeal.
    (2) Agency employees are required to cooperate in the investigation 
and attempted resolution of complaints. Employees who are required to 
participate in any investigation under this section shall do so as part 
of their official duties and during the course of regular duty hours.
    (3) If a complaint is resolved informally, the terms of the 
agreement shall be reduced to writing and made part of the complaint 
file, with a copy of the agreement provided to the complainant. The 
written agreement shall describe the subject matter of the complaint and 
any corrective action to which the parties have agreed.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 60 days of receipt from 
the agency of the letter required by Sec.  17.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the Director, 
Human Resources Directorate, or his or her designee, who will issue the 
final agency decision which may include appropriate corrective action to 
be taken by the agency.
    (j) The agency shall notify the complainant of the results of the 
appeal within 30 days of the receipt of the appeal. If the agency 
determines that it needs additional information from the complainant, it 
shall have 30 days from the date it received the additional information 
to make its determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended for an individual case when the Assistant Secretary for 
Departmental Finance and Management determines that there is good cause, 
based on the particular circumstances of that case, for the extension.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies or may contract with a 
nongovernment investigator to perform the investigation, but the 
authority for making the final determination may not be delegated to 
another agency.



Sec. Sec.  17.171-17.999  [Reserved]



PART 18_OFFICIALS DESIGNATED TO PERFORM THE FUNCTIONS AND DUTIES OF 
CERTAIN OFFICES IN CASE OF ABSENCE, DISABILITY, OR VACANCY-
-Table of Contents



Sec.
18.1 Designation of First Assistants.
18.2 Exceptions.

    Authority: 5 U.S.C. 301; 31 U.S.C. 321.

    Source: 64 FR 62112, Nov. 16, 1999, unless otherwise noted.

[[Page 199]]



Sec.  18.1  Designation of First Assistants.

    Except as provided in Sec.  18.2, every office within the Department 
of the Treasury (including its bureaus) to which appointment is required 
to be made by the President with the advice and consent of the Senate 
(``PAS Office'') may have a First Assistant within the meaning of 5 
U.S.C. 3345-3349d.
    (a) Where there is a position of principal deputy to the PAS Office, 
the principal deputy shall be the First Assistant.
    (b) Where there is only one deputy position to the PAS Office, the 
official in that position shall be the First Assistant.
    (c) Where neither paragraph (a) nor (b) of this section is 
applicable to the PAS Office, the Secretary of the Treasury may 
designate in writing the First Assistant.



Sec.  18.2  Exceptions.

    (a) Section 18.1 shall not apply:
    (1) When a statute which meets the requirements of 5 U.S.C. 3347(a) 
prescribes another means for authorizing an officer or employee to 
perform the functions and duties of a PAS Office in the Department 
temporarily in an acting capacity; and
    (2) To the office of a member of the Internal Revenue Service 
Oversight Board.
    (b) The Inspector General of the Department of the Treasury shall 
determine any arrangements for the temporary performance of the 
functions and duties of the Inspector General of the Department of the 
Treasury when that office is vacant.
    (c) The Treasury Inspector General for Tax Administration shall 
determine any arrangements for the temporary performance of the 
functions and duties of the Treasury Inspector General for Tax 
Administration when that office is vacant.



PART 19_GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)-
-Table of Contents



Sec.
19.25 How is this part organized?
19.50 How is this part written?
19.75 Do terms in this part have special meanings?

                            Subpart A_General

19.100 What does this part do?
19.105 Does this part apply to me?
19.110 What is the purpose of the nonprocurement debarment and 
          suspension system?
19.115 How does an exclusion restrict a person's involvement in covered 
          transactions?
19.120 May we grant an exception to let an excluded person participate 
          in a covered transaction?
19.125 Does an exclusion under the nonprocurement system affect a 
          person's eligibility for Federal procurement contracts?
19.130 Does exclusion under the Federal procurement system affect a 
          person's eligibility to participate in nonprocurement 
          transactions?
19.135 May the Department of the Treasury exclude a person who is not 
          currently participating in a nonprocurement transaction?
19.140 How do I know if a person is excluded?
19.145 Does this part address persons who are disqualified, as well as 
          those who are excluded from nonprocurement transactions?

                     Subpart B_Covered Transactions

19.200 What is a covered transaction?
19.205 Why is it important to know if a particular transaction is a 
          covered transaction?
19.210 Which nonprocurement transactions are covered transactions?
19.215 Which nonprocurement transactions are not covered transactions?
19.220 Are any procurement contracts included as covered transactions?
19.225 How do I know if a transaction in which I may participate is a 
          covered transaction?

    Subpart C_Responsibilities of Participants Regarding Transactions

                    Doing Business With Other Persons

19.300 What must I do before I enter into a covered transaction with 
          another person at the next lower tier?
19.305 May I enter into a covered transaction with an excluded or 
          disqualified person?
19.310 What must I do if a Federal agency excludes a person with whom I 
          am already doing business in a covered transaction?
19.315 May I use the services of an excluded person as a principal under 
          a covered transaction?

[[Page 200]]

19.320 Must I verify that principals of my covered transactions are 
          eligible to participate?
19.325 What happens if I do business with an excluded person in a 
          covered transaction?
19.330 What requirements must I pass down to persons at lower tiers with 
          whom I intend to do business?

            Disclosing Information--Primary Tier Participants

19.335 What information must I provide before entering into a covered 
          transaction with the Department of the Treasury?
19.340 If I disclose unfavorable information required under Sec.  
          19.335, will I be prevented from participating in the 
          transaction?
19.345 What happens if I fail to disclose the information required under 
          Sec.  19.335?
19.350 What must I do if I learn of the information required under Sec.  
          19.335 after entering into a covered transaction with the 
          Department of the Treasury?

             Disclosing Information--Lower Tier Participants

19.355 What Information must I provide to a higher tier participant 
          before entering into a covered transaction with that 
          participant?
19.360 What happens if I fail to disclose the information required under 
          Sec.  19.355?
19.365 What must I do if I learn of information required under Sec.  
          19.355 after entering into a covered transaction with a higher 
          tier participant?

   Subpart D_Responsibilities of Department of the Treasury Officials 
                         Regarding Transactions

19.400 May I enter into a transaction with an excluded or disqualified 
          person?
19.405 May I enter into a covered transaction with a participant if a 
          principal of the transaction is excluded?
19.410 May I approve a participant's use of the services of an excluded 
          person?
19.415 What must I do if a Federal agency excludes the participant or a 
          principal after I enter into a covered transaction?
19.420 May I approve a transaction with an excluded or disqualified 
          person at a lower tier?
19.425 When do I check to see if a person is excluded or disqualified?
19.430 How do I check to see if a person is excluded or disqualified?
19.435 What must I require of a primary tier participant?
19.440 What method do I use to communicate those requirements to 
          participants?
19.445 What action may I take if a primary tier participant knowingly 
          does business with an excluded or disqualified person?
19.450 What action may I take if a primary tier participant fails to 
          disclose the information required under Sec.  19.335?
19.455 What may I do if a lower tier participant fails to disclose the 
          information required under Sec.  19.355 to the next higher 
          tier?

                 Subpart E_Excluded Parties List System

19.500 What is the purpose of the Excluded Parties List System (EPLS)?
19.505 Who uses the EPLS?
19.510 Who maintains the EPLS?
19.515 What specific information is in the EPLS?
19.520 Who places the information into the EPLS?
19.525 Whom do I ask if I have questions about a person in the EPLS?
19.530 Where can I find the EPLS?

   Subpart F_General Principles Relating to Suspension and Debarment 
                                 Actions

19.600 How do suspension and debarment actions start?
19.605 How does suspension differ from debarment?
19.610 What procedures does the Department of the Treasury use in 
          suspension and debarment actions?
19.615 How does the Department of the Treasury notify a person of a 
          suspension and debarment action?
19.620 Do Federal agencies coordinate suspension and debarment actions?
19.625 What is the scope of a suspension or debarment action?
19.630 May the Department of the Treasury impute the conduct of one 
          person to another?
19.635 May the Department of the Treasury settle a debarment or 
          suspension action?
19.640 May a settlement include a voluntary exclusion?
19.645 Do other Federal agencies know if the Department of the Treasury 
          agrees to a voluntary exclusion?

                          Subpart G_Suspension

19.700 When may the suspending official issue a suspension?
19.705 What does the suspending official consider in issuing a 
          suspension?
19.710 When does a suspension take effect?
19.715 What notice does the suspending official give me if I am 
          suspended?
19.720 How may I contest a suspension?
19.725 How much time do I have to contest a suspension?
19.730 What information must I provide to the suspending official if I 
          contest a suspension?

[[Page 201]]

19.735 Under what conditions do I get an additional opportunity to 
          challenge the facts on which the suspension is based?
19.740 Are suspension proceedings formal?
19.745 How is fact-finding conducted?
19.750 What does the suspending official consider in deciding whether to 
          continue or terminate my suspension?
19.755 When will I know whether the suspension is continued or 
          terminated?
19.760 How long may my suspension last?

                           Subpart H_Debarment

19.800 What are the causes for debarment?
19.805 What notice does the debarring official give me if I am proposed 
          for debarment?
19.810 When does a debarment take effect?
19.815 How may I contest a proposed debarment?
19.820 How much time do I have to contest a proposed debarment?
19.825 What information must I provide to the debarring official if I 
          contest a proposed debarment?
19.830 Under what conditions do I get an additional opportunity to 
          challenge the facts on which the proposed debarment is based?
19.835 Are debarment proceedings formal?
19.840 How is fact-finding conducted?
19.845 What does the debarring official consider in deciding whether to 
          debar me?
19.850 What is the standard of proof in a debarment action?
19.855 Who has the burden of proof in a debarment action?
19.860 What factors may influence the debarring official's decision?
19.865 How long may my debarment last?
19.870 When do I know if the debarring official debars me?
19.875 May I ask the debarring official to reconsider a decision to 
          debar me?
19.880 What factors may influence the debarring official during 
          reconsideration?
19.885 May the debarring official extend a debarment?

                          Subpart I_Definitions

19.900 Adequate evidence.
19.905 Affiliate.
19.910 Agency.
19.915 Agent or representative.
19.920 Civil judgment.
19.925 Conviction.
19.930 Debarment.
19.935 Debarring official.
19.940 Disqualified.
19.945 Excluded or exclusion.
19.950 Excluded Parties List System.
19.955 Indictment.
19.960 Ineligible or ineligibility.
19.965 Legal proceedings.
19.970 Nonprocurement transaction.
19.975 Notice.
19.980 Participant.
19.985 Person.
19.990 Preponderance of the evidence.
19.995 Principal.
19.1000 Respondent.
19.1005 State.
19.1010 Suspending official.
19.1015 Suspension.
19.1020 Voluntary exclusion or voluntarily excluded.

Subpart J [Reserved]

Appendix to Part 19--Covered Transactions

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 
6101 note); E.O. 11738 (3 CFR, 1973 Comp., p. 799); E.O. 12549 (3 CFR, 
1986 Comp., p. 189); E.O. 12689 (3 CFR, 1989 Comp., p. 235).

    Source: 68 FR 66544, 66605, 66607, Nov. 26, 2003, unless otherwise 
noted.



Sec.  19.25  How is this part organized?

    (a) This part is subdivided into ten subparts. Each subpart contains 
information related to a broad topic or specific audience with special 
responsibilities, as shown in the following table:

------------------------------------------------------------------------
       In subpart . . .        You will find provisions related to . . .
------------------------------------------------------------------------
A............................  general information about this rule.
B............................  the types of Department of the Treasury
                                transactions that are covered by the
                                Governmentwide nonprocurement suspension
                                and debarment system.
C............................  the responsibilities of persons who
                                participate in covered transactions.
D............................  the responsibilities of Department of the
                                Treasury officials who are authorized to
                                enter into covered transactions.
E............................  the responsibilities of Federal agencies
                                for the Excluded Parties List System
                                (Disseminated by the General Services
                                Administration).
F............................  the general principles governing
                                suspension, debarment, voluntary
                                exclusion and settlement.
G............................  suspension actions.
H............................  debarment actions.
I............................  definitions of terms used in this part.
J............................  [Reserved]
------------------------------------------------------------------------


[[Page 202]]

    (b) The following table shows which subparts may be of special 
interest to you, depending on who you are:

------------------------------------------------------------------------
             If you are . . .                   See subpart(s) . . .
------------------------------------------------------------------------
(1) a participant or principal in a         A, B, C, and I.
 nonprocurement transaction.
(2) a respondent in a suspension action...  A, B, F, G and I.
(3) a respondent in a debarment action....  A, B, F, H and I.
(4) a suspending official.................  A, B, D, E, F, G and I.
(5) a debarring official..................  A, B, D, E, F, H and I.
(6) a (n) Department of the Treasury        A, B, D, E and I.
 official authorized to enter into a
 covered transaction.
(7) Reserved..............................  J.
------------------------------------------------------------------------



Sec.  19.50  How is this part written?

    (a) This part uses a ``plain language'' format to make it easier for 
the general public and business community to use. The section headings 
and text, often in the form of questions and answers, must be read 
together.
    (b) Pronouns used within this part, such as ``I'' and ``you,'' 
change from subpart to subpart depending on the audience being 
addressed. The pronoun ``we'' always is the Department of the Treasury.
    (c) The ``Covered Transactions'' diagram in the appendix to this 
part shows the levels or ``tiers'' at which the Department of the 
Treasury enforces an exclusion under this part.



Sec.  19.75  Do terms in this part have special meanings?

    This part uses terms throughout the text that have special meaning. 
Those terms are defined in subpart I of this part. For example, three 
important terms are--
    (a) Exclusion or excluded, which refers only to discretionary 
actions taken by a suspending or debarring official under this part or 
the Federal Acquisition Regulation (48 CFR part 9, subpart 9.4);
    (b) Disqualification or disqualified, which refers to prohibitions 
under specific statutes, executive orders (other than Executive Order 
12549 and Executive Order 12689), or other authorities. 
Disqualifications frequently are not subject to the discretion of an 
agency official, may have a different scope than exclusions, or have 
special conditions that apply to the disqualification; and
    (c) Ineligibility or ineligible, which generally refers to a person 
who is either excluded or disqualified.



                            Subpart A_General



Sec.  19.100  What does this part do?

    This part adopts a governmentwide system of debarment and suspension 
for Department of the Treasury nonprocurement activities. It also 
provides for reciprocal exclusion of persons who have been excluded 
under the Federal Acquisition Regulation, and provides for the 
consolidated listing of all persons who are excluded, or disqualified by 
statute, executive order, or other legal authority. This part satisfies 
the requirements in section 3 of Executive Order 12549, ``Debarment and 
Suspension'' (3 CFR 1986 Comp., p. 189), Executive Order 12689, 
``Debarment and Suspension'' (3 CFR 1989 Comp., p. 235) and 31 U.S.C. 
6101 note (Section 2455, Public Law 103-355, 108 Stat. 3327).



Sec.  19.105  Does this part apply to me?

    Portions of this part (see table at Sec.  19.25(b)) apply to you if 
you are a(n)--
    (a) Person who has been, is, or may reasonably be expected to be, a 
participant or principal in a covered transaction;
    (b) Respondent (a person against whom the Department of the Treasury 
has initiated a debarment or suspension action);
    (c) Department of the Treasury debarring or suspending official; or
    (d) Department of the Treasury official who is authorized to enter 
into covered transactions with non-Federal parties.



Sec.  19.110  What is the purpose of the nonprocurement debarment and suspension system?

    (a) To protect the public interest, the Federal Government ensures 
the integrity of Federal programs by conducting business only with 
responsible persons.
    (b) A Federal agency uses the nonprocurement debarment and 
suspension system to exclude from Federal programs persons who are not 
presently responsible.
    (c) An exclusion is a serious action that a Federal agency may take 
only

[[Page 203]]

to protect the public interest. A Federal agency may not exclude a 
person or commodity for the purposes of punishment.



Sec.  19.115  How does an exclusion restrict a person's involvement in 
covered transactions?

    With the exceptions stated in Sec. Sec.  19.120, 19.315, and 19.420, 
a person who is excluded by the Department of the Treasury or any other 
Federal agency may not:
    (a) Be a participant in a(n) Department of the Treasury transaction 
that is a covered transaction under subpart B of this part;
    (b) Be a participant in a transaction of any other Federal agency 
that is a covered transaction under that agency's regulation for 
debarment and suspension; or
    (c) Act as a principal of a person participating in one of those 
covered transactions.



Sec.  19.120  May we grant an exception to let an excluded person participate
in a covered transaction?

    (a) The Secretary of the Treasury may grant an exception permitting 
an excluded person to participate in a particular covered transaction. 
If the Secretary of the Treasury grants an exception, the exception must 
be in writing and state the reason(s) for deviating from the 
governmentwide policy in Executive Order 12549.
    (b) An exception granted by one agency for an excluded person does 
not extend to the covered transactions of another agency.



Sec.  19.125  Does an exclusion under the nonprocurement system affect
a person's eligibility for Federal procurement contracts?

    If any Federal agency excludes a person under its nonprocurement 
common rule on or after August 25, 1995, the excluded person is also 
ineligible to participate in Federal procurement transactions under the 
FAR. Therefore, an exclusion under this part has reciprocal effect in 
Federal procurement transactions.



Sec.  19.130  Does exclusion under the Federal procurement system affect
a person's eligibility to participate in nonprocurement transactions?

    If any Federal agency excludes a person under the FAR on or after 
August 25, 1995, the excluded person is also ineligible to participate 
in nonprocurement covered transactions under this part. Therefore, an 
exclusion under the FAR has reciprocal effect in Federal nonprocurement 
transactions.



Sec.  19.135  May the Department of the Treasury exclude a person who is
not currently participating in a nonprocurement transaction?

    Given a cause that justifies an exclusion under this part, we may 
exclude any person who has been involved, is currently involved, or may 
reasonably be expected to be involved in a covered transaction.



Sec.  19.140  How do I know if a person is excluded?

    Check the Excluded Parties List System (EPLS) to determine whether a 
person is excluded. The General Services Administration (GSA) maintains 
the EPLS and makes it available, as detailed in subpart E of this part. 
When a Federal agency takes an action to exclude a person under the 
nonprocurement or procurement debarment and suspension system, the 
agency enters the information about the excluded person into the EPLS.



Sec.  19.145  Does this part address persons who are disqualified, as 
well as those who are excluded from nonprocurement transactions?

    Except if provided for in subpart J of this part, this part--
    (a) Addresses disqualified persons only to--
    (1) Provide for their inclusion in the EPLS; and
    (2) State responsibilities of Federal agencies and participants to 
check for disqualified persons before entering into covered 
transactions.
    (b) Does not specify the--
    (1) Department of the Treasury transactions for which a disqualified 
person is ineligible. Those transactions vary on a case-by-case basis, 
because

[[Page 204]]

they depend on the language of the specific statute, Executive order, or 
regulation that caused the disqualification;
    (2) Entities to which the disqualification applies; or
    (3) Process that the agency uses to disqualify a person. Unlike 
exclusion, disqualification is frequently not a discretionary action 
that a Federal agency takes.



                     Subpart B_Covered Transactions



Sec.  19.200  What is a covered transaction?

    A covered transaction is a nonprocurement or procurement transaction 
that is subject to the prohibitions of this part. It may be a 
transaction at--
    (a) The primary tier, between a Federal agency and a person (see 
appendix to this part); or
    (b) A lower tier, between a participant in a covered transaction and 
another person.



Sec.  19.205  Why is it important if a particular transaction is a covered
transaction?

    The importance of a covered transaction depends upon who you are.
    (a) As a participant in the transaction, you have the 
responsibilities laid out in subpart C of this part. Those include 
responsibilities to the person or Federal agency at the next higher tier 
from whom you received the transaction, if any. They also include 
responsibilities if you subsequently enter into other covered 
transactions with persons at the next lower tier.
    (b) As a Federal official who enters into a primary tier 
transaction, you have the responsibilities laid out in subpart D of this 
part.
    (c) As an excluded person, you may not be a participant or principal 
in the transaction unless--
    (1) The person who entered into the transaction with you allows you 
to continue your involvement in a transaction that predates your 
exclusion, as permitted under Sec.  19.310 or Sec.  19.415; or
    (2) A(n) Department of the Treasury official obtains an exception 
from the Secretary of the Treasury to allow you to be involved in the 
transaction, as permitted under Sec.  19.120.



Sec.  19.210  Which nonprocurement transactions are covered transactions?

    All nonprocurement transactions, as defined in Sec.  19.970, are 
covered transactions unless listed in Sec.  19.215. (See appendix to 
this part.)



Sec.  19.215  Which nonprocurement transactions are not covered 
transactions?

    The following types of nonprocurement transactions are not covered 
transactions:
    (a) A direct award to--
    (1) A foreign government or foreign governmental entity;
    (2) A public international organization;
    (3) An entity owned (in whole or in part) or controlled by a foreign 
government; or
    (4) Any other entity consisting wholly or partially of one or more 
foreign governments or foreign governmental entities.
    (b) A benefit to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted). For example, if 
a person receives social security benefits under the Supplemental 
Security Income provisions of the Social Security Act, 42 U.S.C. 1301 et 
seq., those benefits are not covered transactions and, therefore, are 
not affected if the person is excluded.
    (c) Federal employment.
    (d) A transaction that the Department of the Treasury needs to 
respond to a national or agency-recognized emergency or disaster.
    (e) A permit, license, certificate, or similar instrument issued as 
a means to regulate public health, safety, or the environment, unless 
the Department of the Treasury specifically designates it to be a 
covered transaction.
    (f) An incidental benefit that results from ordinary governmental 
operations.
    (g) Any other transaction if the application of an exclusion to the 
transaction is prohibited by law.

[[Page 205]]



Sec.  19.220  Are any procurement contracts included as covered
transactions?

    (a) Covered transactions under this part--
    (1) Do not include any procurement contracts awarded directly by a 
Federal agency; but
    (2) Do include some procurement contracts awarded by non-Federal 
participants in nonprocurement covered transactions (see appendix to 
this part).
    (b) Specifically, a contract for goods or services is a covered 
transaction if any of the following applies:
    (1) The contract is awarded by a participant in a nonprocurement 
transaction that is covered under Sec.  19.210, and the amount of the 
contract is expected to equal or exceed $25,000.
    (2) The contract requires the consent of a(n) Department of the 
Treasury official. In that case, the contract, regardless of the amount, 
always is a covered transaction, and it does not matter who awarded it. 
For example, it could be a subcontract awarded by a contractor at a tier 
below a nonprocurement transaction, as shown in the appendix to this 
part.
    (3) The contract is for federally-required audit services.



Sec.  19.225  How do I know if a transaction in which I may participate
is a covered transaction?

    As a participant in a transaction, you will know that it is a 
covered transaction because the agency regulations governing the 
transaction, the appropriate agency official, or participant at the next 
higher tier who enters into the transaction with you, will tell you that 
you must comply with applicable portions of this part.



    Subpart C_Responsibilities of Participants Regarding Transactions

                    Doing Business With Other Persons



Sec.  19.300  What must I do before I enter into a covered transaction with
another person at the next lower tier?

    When you enter into a covered transaction with another person at the 
next lower tier, you must verify that the person with whom you intend to 
do business is not excluded or disqualified. You do this by:
    (a) Checking the EPLS; or
    (b) Collecting a certification from that person if allowed by this 
rule; or
    (c) Adding a clause or condition to the covered transaction with 
that person.



Sec.  19.305  May I enter into a covered transaction with an excluded or
disqualified person?

    (a) You as a participant may not enter into a covered transaction 
with an excluded person, unless the Department of the Treasury grants an 
exception under Sec.  19.120.
    (b) You may not enter into any transaction with a person who is 
disqualified from that transaction, unless you have obtained an 
exception under the disqualifying statute, Executive order, or 
regulation.



Sec.  19.310  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?

    (a) You as a participant may continue covered transactions with an 
excluded person if the transactions were in existence when the agency 
excluded the person. However, you are not required to continue the 
transactions, and you may consider termination. You should make a 
decision about whether to terminate and the type of termination action, 
if any, only after a thorough review to ensure that the action is proper 
and appropriate.
    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, unless the Department of 
the Treasury grants an exception under Sec.  19.120.



Sec.  19.315  May I use the services of an excluded person as a principal
under a covered transaction?

    (a) You as a participant may continue to use the services of an 
excluded person as a principal under a covered transaction if you were 
using the services of that person in the transaction before the person 
was excluded. However, you are not required to continue using that 
person's services as a principal. You should make a decision

[[Page 206]]

about whether to discontinue that person's services only after a 
thorough review to ensure that the action is proper and appropriate.
    (b) You may not begin to use the services of an excluded person as a 
principal under a covered transaction unless the Department of the 
Treasury grants an exception under Sec.  19.120.



Sec.  19.320  Must I verify that principals of my covered transactions
are eligible to participate?

    Yes, you as a participant are responsible for determining whether 
any of your principals of your covered transactions is excluded or 
disqualified from participating in the transaction. You may decide the 
method and frequency by which you do so. You may, but you are not 
required to, check the EPLS.



Sec.  19.325  What happens if I do business with an excluded person in
a covered transaction?

    If as a participant you knowingly do business with an excluded 
person, we may disallow costs, annul or terminate the transaction, issue 
a stop work order, debar or suspend you, or take other remedies as 
appropriate.



Sec.  19.330  What requirements must I pass down to persons at lower
tiers with whom I intend to do business?

    Before entering into a covered transaction with a participant at the 
next lower tier, you must require that participant to--
    (a) Comply with this subpart as a condition of participation in the 
transaction. You may do so using any method(s), unless Sec.  19.440 
requires you to use specific methods.
    (b) Pass the requirement to comply with this subpart to each person 
with whom the participant enters into a covered transaction at the next 
lower tier.

            Disclosing Information--Primary Tier Participants



Sec.  19.335  What information must I provide before entering into a
covered transaction with the Department of the Treasury?

    Before you enter into a covered transaction at the primary tier, you 
as the participant must notify the Department of the Treasury office 
that is entering into the transaction with you, if you know that you or 
any of the principals for that covered transaction:
    (a) Are presently excluded or disqualified;
    (b) Have been convicted within the preceding three years of any of 
the offenses listed in Sec.  19.800(a) or had a civil judgment rendered 
against you for one of those offenses within that time period;
    (c) Are presently indicted for or otherwise criminally or civilly 
charged by a governmental entity (Federal, State or local) with 
commission of any of the offenses listed in Sec.  19.800(a); or
    (d) Have had one or more public transactions (Federal, State, or 
local) terminated within the preceding three years for cause or default.



Sec.  19.340  If I disclose unfavorable information required under
Sec.  19.335, will I be prevented from participating in the transaction?

    As a primary tier participant, your disclosure of unfavorable 
information about yourself or a principal under Sec.  19.335 will not 
necessarily cause us to deny your participation in the covered 
transaction. We will consider the information when we determine whether 
to enter into the covered transaction. We also will consider any 
additional information or explanation that you elect to submit with the 
disclosed information.



Sec.  19.345  What happens if I fail to disclose information required
under Sec.  19.335?

    If we later determine that you failed to disclose information under 
Sec.  19.335 that you knew at the time you entered into the covered 
transaction, we may--
    (a) Terminate the transaction for material failure to comply with 
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and 
debarment.

[[Page 207]]



Sec.  19.350  What must I do if I learn of information required under
Sec.  19.335 after entering into a covered transaction with the Department
of the Treasury?

    At any time after you enter into a covered transaction, you must 
give immediate written notice to the Department of the Treasury office 
with which you entered into the transaction if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec.  
19.335; or
    (b) Due to changed circumstances, you or any of the principals for 
the transaction now meet any of the criteria in Sec.  19.335.

             Disclosing Information--Lower Tier Participants



Sec.  19.355  What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?

    Before you enter into a covered transaction with a person at the 
next higher tier, you as a lower tier participant must notify that 
person if you know that you or any of the principals are presently 
excluded or disqualified.



Sec.  19.360  What happens if I fail to disclose the information required
under Sec.  19.355?

    If we later determine that you failed to tell the person at the 
higher tier that you were excluded or disqualified at the time you 
entered into the covered transaction with that person, we may pursue any 
available remedies, including suspension and debarment.



Sec.  19.365  What must I do if I learn of information required under
Sec.  19.355 after entering into a covered transaction with a higher
tier participant?

    At any time after you enter into a lower tier covered transaction 
with a person at a higher tier, you must provide immediate written 
notice to that person if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec.  
19.355; or
    (b) Due to changed circumstances, you or any of the principals for 
the transaction now meet any of the criteria in Sec.  19.355.



   Subpart D_Responsibilities of Department of the Treasury Officials 
                         Regarding Transactions



Sec.  19.400  May I enter into a transaction with an excluded or 
disqualified person?

    (a) You as an agency official may not enter into a covered 
transaction with an excluded person unless you obtain an exception under 
Sec.  19.120.
    (b) You may not enter into any transaction with a person who is 
disqualified from that transaction, unless you obtain a waiver or 
exception under the statute, Executive order, or regulation that is the 
basis for the person's disqualification.



Sec.  19.405  May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?

    As an agency official, you may not enter into a covered transaction 
with a participant if you know that a principal of the transaction is 
excluded, unless you obtain an exception under Sec.  19.120.



Sec.  19.410  May I approve a participant's use of the services of an
excluded person?

    After entering into a covered transaction with a participant, you as 
an agency official may not approve a participant's use of an excluded 
person as a principal under that transaction, unless you obtain an 
exception under Sec.  19.120.



Sec.  19.415  What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?

    (a) You as an agency official may continue covered transactions with 
an excluded person, or under which an excluded person is a principal, if 
the transactions were in existence when the person was excluded. You are 
not required to continue the transactions, however, and you may consider 
termination. You should make a decision about whether to terminate and 
the type of termination action, if any, only after a thorough review to 
ensure that the action is proper.

[[Page 208]]

    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, or under which an 
excluded person is a principal, unless you obtain an exception under 
Sec.  19.120.



Sec.  19.420  May I approve a transaction with an excluded or disqualified
person at a lower tier?

    If a transaction at a lower tier is subject to your approval, you as 
an agency official may not approve--
    (a) A covered transaction with a person who is currently excluded, 
unless you obtain an exception under Sec.  19.120; or
    (b) A transaction with a person who is disqualified from that 
transaction, unless you obtain a waiver or exception under the statute, 
Executive order, or regulation that is the basis for the person's 
disqualification.



Sec.  19.425  When do I check to see if a person is excluded or
disqualified?

    As an agency official, you must check to see if a person is excluded 
or disqualified before you--
    (a) Enter into a primary tier covered transaction;
    (b) Approve a principal in a primary tier covered transaction;
    (c) Approve a lower tier participant if agency approval of the lower 
tier participant is required; or
    (d) Approve a principal in connection with a lower tier transaction 
if agency approval of the principal is required.



Sec.  19.430  How do I check to see if a person is excluded or
disqualified?

    You check to see if a person is excluded or disqualified in two 
ways:
    (a) You as an agency official must check the EPLS when you take any 
action listed in Sec.  19.425.
    (b) You must review information that a participant gives you, as 
required by Sec.  19.335, about its status or the status of the 
principals of a transaction.



Sec.  19.435  What must I require of a primary tier participant?

    You as an agency official must require each participant in a primary 
tier covered transaction to--
    (a) Comply with subpart C of this part as a condition of 
participation in the transaction; and
    (b) Communicate the requirement to comply with Subpart C of this 
part to persons at the next lower tier with whom the primary tier 
participant enters into covered transactions.



Sec.  19.440  What method do I use to communicate those requirements
to participants?

    To communicate the requirements, you must include a term or 
condition in the transaction requiring the participants' compliance with 
subpart C of this part and requiring them to include a similar term or 
condition in lower-tier covered transactions.

[68 FR 66607, Nov. 26, 2003]



Sec.  19.445  What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?

    If a participant knowingly does business with an excluded or 
disqualified person, you as an agency official may refer the matter for 
suspension and debarment consideration. You may also disallow costs, 
annul or terminate the transaction, issue a stop work order, or take any 
other appropriate remedy.



Sec.  19.450  What action may I take if a primary tier participant fails
to disclose the information required under Sec.  19.335?

    If you as an agency official determine that a participant failed to 
disclose information, as required by Sec.  19.335, at the time it 
entered into a covered transaction with you, you may--
    (a) Terminate the transaction for material failure to comply with 
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and 
debarment.



Sec.  19.455  What may I do if a lower tier participant fails to disclose
the information required under Sec.  19.355 to the next higher tier?

    If you as an agency official determine that a lower tier participant 
failed to disclose information, as required by Sec.  19.355, at the time 
it entered

[[Page 209]]

into a covered transaction with a participant at the next higher tier, 
you may pursue any remedies available to you, including the initiation 
of a suspension or debarment action.



                 Subpart E_Excluded Parties List System



Sec.  19.500  What is the purpose of the Excluded Parties List System
(EPLS)?

    The EPLS is a widely available source of the most current 
information about persons who are excluded or disqualified from covered 
transactions.



Sec.  19.505  Who uses the EPLS?

    (a) Federal agency officials use the EPLS to determine whether to 
enter into a transaction with a person, as required under Sec.  19.430.
    (b) Participants also may, but are not required to, use the EPLS to 
determine if--
    (1) Principals of their transactions are excluded or disqualified, 
as required under Sec.  19.320; or
    (2) Persons with whom they are entering into covered transactions at 
the next lower tier are excluded or disqualified.
    (c) The EPLS is available to the general public.



Sec.  19.510  Who maintains the EPLS?

    In accordance with the OMB guidelines, the General Services 
Administration (GSA) maintains the EPLS. When a Federal agency takes an 
action to exclude a person under the nonprocurement or procurement 
debarment and suspension system, the agency enters the information about 
the excluded person into the EPLS.



Sec.  19.515  What specific information is in the EPLS?

    (a) At a minimum, the EPLS indicates--
    (1) The full name (where available) and address of each excluded or 
disqualified person, in alphabetical order, with cross references if 
more than one name is involved in a single action;
    (2) The type of action;
    (3) The cause for the action;
    (4) The scope of the action;
    (5) Any termination date for the action;
    (6) The agency and name and telephone number of the agency point of 
contact for the action; and
    (7) The Dun and Bradstreet Number (DUNS), or other similar code 
approved by the GSA, of the excluded or disqualified person, if 
available.
    (b)(1) The database for the EPLS includes a field for the Taxpayer 
Identification Number (TIN) (the social security number (SSN) for an 
individual) of an excluded or disqualified person.
    (2) Agencies disclose the SSN of an individual to verify the 
identity of an individual, only if permitted under the Privacy Act of 
1974 and, if appropriate, the Computer Matching and Privacy Protection 
Act of 1988, as codified in 5 U.S.C. 552(a).



Sec.  19.520  Who places the information into the EPLS?

    Federal officials who take actions to exclude persons under this 
part or officials who are responsible for identifying disqualified 
persons must enter the following information about those persons into 
the EPLS:
    (a) Information required by Sec.  19.515(a);
    (b) The Taxpayer Identification Number (TIN) of the excluded or 
disqualified person, including the social security number (SSN) for an 
individual, if the number is available and may be disclosed under law;
    (c) Information about an excluded or disqualified person, generally 
within five working days, after--
    (1) Taking an exclusion action;
    (2) Modifying or rescinding an exclusion action;
    (3) Finding that a person is disqualified; or
    (4) Finding that there has been a change in the status of a person 
who is listed as disqualified.



Sec.  19.525  Whom do I ask if I have questions about a person in
the EPLS?

    If you have questions about a person in the EPLS, ask the point of 
contact for the Federal agency that placed the person's name into the 
EPLS. You may find the agency point of contact from the EPLS.

[[Page 210]]



Sec.  19.530  Where can I find the EPLS?

    (a) You may access the EPLS through the Internet, currently at 
http://epls.arnet.gov.
    (b) As of November 26, 2003, you may also subscribe to a printed 
version. However, we anticipate discontinuing the printed version. Until 
it is discontinued, you may obtain the printed version by purchasing a 
yearly subscription from the Superintendent of Documents, U.S. 
Government Printing Office, Washington, DC 20402, or by calling the 
Government Printing Office Inquiry and Order Desk at (202) 783-3238.



   Subpart F_General Principles Relating to Suspension and Debarment 
                                 Actions



Sec.  19.600  How do suspension and debarment actions start?

    When we receive information from any source concerning a cause for 
suspension or debarment, we will promptly report and investigate it. We 
refer the question of whether to suspend or debar you to our suspending 
or debarring official for consideration, if appropriate.



Sec.  19.605  How does suspension differ from debarment?

    Suspension differs from debarment in that--

------------------------------------------------------------------------
      A suspending official . . .           A debarring official . . .
------------------------------------------------------------------------
(a) Imposes suspension as a temporary    Imposes debarment for a
 status of ineligibility for              specified period as a final
 procurement and nonprocurement           determination that a person is
 transactions, pending completion of an   not presently responsible.
 investigation or legal proceedings.
(b) Must--.............................  Must conclude, based on a
(1) Have adequate evidence that there     preponderance of the evidence,
 may be a cause for debarment of a        that the person has engaged in
 person; and.                             conduct that warrants
(2) Conclude that immediate action is     debarment.
 necessary to protect the Federal
 interest.
(c) Usually imposes the suspension       Imposes debarment after giving
 first, and then promptly notifies the    the respondent notice of the
 suspended person, giving the person an   action and an opportunity to
 opportunity to contest the suspension    contest the proposed
 and have it lifted.                      debarment.
------------------------------------------------------------------------



Sec.  19.610  What procedures does the Department of the Treasury use in
suspension and debarment actions?

    In deciding whether to suspend or debar you, we handle the actions 
as informally as practicable, consistent with principles of fundamental 
fairness.
    (a) For suspension actions, we use the procedures in this subpart 
and subpart G of this part.
    (b) For debarment actions, we use the procedures in this subpart and 
subpart H of this part.



Sec.  19.615  How does the Department of the Treasury notify a person of
a suspension or debarment action?

    (a) The suspending or debarring official sends a written notice to 
the last known street address, facsimile number, or e-mail address of--
    (1) You or your identified counsel; or
    (2) Your agent for service of process, or any of your partners, 
officers, directors, owners, or joint venturers.
    (b) The notice is effective if sent to any of these persons.



Sec.  19.620  Do Federal agencies coordinate suspension and debarment
actions?

    Yes, when more than one Federal agency has an interest in a 
suspension or debarment, the agencies may consider designating one 
agency as the lead agency for making the decision. Agencies are 
encouraged to establish methods and procedures for coordinating their 
suspension and debarment actions.



Sec.  19.625  What is the scope of a suspension or debarment?

    If you are suspended or debarred, the suspension or debarment is 
effective as follows:
    (a) Your suspension or debarment constitutes suspension or debarment 
of all of your divisions and other organizational elements from all 
covered

[[Page 211]]

transactions, unless the suspension or debarment decision is limited--
    (1) By its terms to one or more specifically identified individuals, 
divisions, or other organizational elements; or
    (2) To specific types of transactions.
    (b) Any affiliate of a participant may be included in a suspension 
or debarment action if the suspending or debarring official--
    (1) Officially names the affiliate in the notice; and
    (2) Gives the affiliate an opportunity to contest the action.



Sec.  19.630  May the Department of the Treasury impute conduct of one
person to another?

    For purposes of actions taken under this rule, we may impute conduct 
as follows:
    (a) Conduct imputed from an individual to an organization. We may 
impute the fraudulent, criminal, or other improper conduct of any 
officer, director, shareholder, partner, employee, or other individual 
associated with an organization, to that organization when the improper 
conduct occurred in connection with the individual's performance of 
duties for or on behalf of that organization, or with the organization's 
knowledge, approval or acquiescence. The organization's acceptance of 
the benefits derived from the conduct is evidence of knowledge, approval 
or acquiescence.
    (b) Conduct imputed from an organization to an individual, or 
between individuals. We may impute the fraudulent, criminal, or other 
improper conduct of any organization to an individual, or from one 
individual to another individual, if the individual to whom the improper 
conduct is imputed either participated in, had knowledge of, or reason 
to know of the improper conduct.
    (c) Conduct imputed from one organization to another organization. 
We may impute the fraudulent, criminal, or other improper conduct of one 
organization to another organization when the improper conduct occurred 
in connection with a partnership, joint venture, joint application, 
association or similar arrangement, or when the organization to whom the 
improper conduct is imputed has the power to direct, manage, control or 
influence the activities of the organization responsible for the 
improper conduct. Acceptance of the benefits derived from the conduct is 
evidence of knowledge, approval or acquiescence.



Sec.  19.635  May the Department of the Treasury settle a debarment or
suspension action?

    Yes, we may settle a debarment or suspension action at any time if 
it is in the best interest of the Federal Government.



Sec.  19.640  May a settlement include a voluntary exclusion?

    Yes, if we enter into a settlement with you in which you agree to be 
excluded, it is called a voluntary exclusion and has governmentwide 
effect.



Sec.  19.645  Do other Federal agencies know if the Department of the
Treasury agrees to a voluntary exclusion?

    (a) Yes, we enter information regarding a voluntary exclusion into 
the EPLS.
    (b) Also, any agency or person may contact us to find out the 
details of a voluntary exclusion.



                          Subpart G_Suspension



Sec.  19.700  When may the suspending official issue a suspension?

    Suspension is a serious action. Using the procedures of this subpart 
and subpart F of this part, the suspending official may impose 
suspension only when that official determines that--
    (a) There exists an indictment for, or other adequate evidence to 
suspect, an offense listed under Sec.  19.800(a), or
    (b) There exists adequate evidence to suspect any other cause for 
debarment listed under Sec.  19.800(b) through (d); and
    (c) Immediate action is necessary to protect the public interest.



Sec.  19.705  What does the suspending official consider in issuing a
suspension?

    (a) In determining the adequacy of the evidence to support the 
suspension, the suspending official considers how much information is 
available, how credible it is given the circumstances,

[[Page 212]]

whether or not important allegations are corroborated, and what 
inferences can reasonably be drawn as a result. During this assessment, 
the suspending official may examine the basic documents, including 
grants, cooperative agreements, loan authorizations, contracts, and 
other relevant documents.
    (b) An indictment, conviction, civil judgment, or other official 
findings by Federal, State, or local bodies that determine factual and/
or legal matters, constitutes adequate evidence for purposes of 
suspension actions.
    (c) In deciding whether immediate action is needed to protect the 
public interest, the suspending official has wide discretion. For 
example, the suspending official may infer the necessity for immediate 
action to protect the public interest either from the nature of the 
circumstances giving rise to a cause for suspension or from potential 
business relationships or involvement with a program of the Federal 
Government.



Sec.  19.710  When does a suspension take effect?

    A suspension is effective when the suspending official signs the 
decision to suspend.



Sec.  19.715  What notice does the suspending official give me if I
am suspended?

    After deciding to suspend you, the suspending official promptly 
sends you a Notice of Suspension advising you--
    (a) That you have been suspended;
    (b) That your suspension is based on--
    (1) An indictment;
    (2) A conviction;
    (3) Other adequate evidence that you have committed irregularities 
which seriously reflect on the propriety of further Federal Government 
dealings with you; or
    (4) Conduct of another person that has been imputed to you, or your 
affiliation with a suspended or debarred person;
    (c) Of any other irregularities in terms sufficient to put you on 
notice without disclosing the Federal Government's evidence;
    (d) Of the cause(s) upon which we relied under Sec.  19.700 for 
imposing suspension;
    (e) That your suspension is for a temporary period pending the 
completion of an investigation or resulting legal or debarment 
proceedings;
    (f) Of the applicable provisions of this subpart, subpart F of this 
part, and any other Department of the Treasury procedures governing 
suspension decision making; and
    (g) Of the governmentwide effect of your suspension from procurement 
and nonprocurement programs and activities.



Sec.  19.720  How may I contest a suspension?

    If you as a respondent wish to contest a suspension, you or your 
representative must provide the suspending official with information in 
opposition to the suspension. You may do this orally or in writing, but 
any information provided orally that you consider important must also be 
submitted in writing for the official record.



Sec.  19.725  How much time do I have to contest a suspension?

    (a) As a respondent you or your representative must either send, or 
make rrangements to appear and present, the information and argument to 
the suspending official within 30 days after you receive the Notice of 
Suspension.
    (b) We consider the notice to be received by you--
    (1) When delivered, if we mail the notice to the last known street 
address, or five days after we send it if the letter is undeliverable;
    (2) When sent, if we send the notice by facsimile or five days after 
we send it if the facsimile is undeliverable; or
    (3) When delivered, if we send the notice by e-mail or five days 
after we send it if the e-mail is undeliverable.



Sec.  19.730  What information must I provide to the suspending official
if I contest a suspension?

    (a) In addition to any information and argument in opposition, as a 
respondent your submission to the suspending official must identify--

[[Page 213]]

    (1) Specific facts that contradict the statements contained in the 
Notice of Suspension. A general denial is insufficient to raise a 
genuine dispute over facts material to the suspension;
    (2) All existing, proposed, or prior exclusions under regulations 
implementing E.O. 12549 and all similar actions taken by Federal, state, 
or local agencies, including administrative agreements that affect only 
those agencies;
    (3) All criminal and civil proceedings not included in the Notice of 
Suspension that grew out of facts relevant to the cause(s) stated in the 
notice; and
    (4) All of your affiliates.
    (b) If you fail to disclose this information, or provide false 
information, the Department of the Treasury may seek further criminal, 
civil or administrative action against you, as appropriate.



Sec.  19.735  Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?

    (a) You as a respondent will not have an additional opportunity to 
challenge the facts if the suspending official determines that--
    (1) Your suspension is based upon an indictment, conviction, civil 
judgment, or other finding by a Federal, State, or local body for which 
an opportunity to contest the facts was provided;
    (2) Your presentation in opposition contains only general denials to 
information contained in the Notice of Suspension;
    (3) The issues raised in your presentation in opposition to the 
suspension are not factual in nature, or are not material to the 
suspending official's initial decision to suspend, or the official's 
decision whether to continue the suspension; or
    (4) On the basis of advice from the Department of Justice, an office 
of the United States Attorney, a State attorney general's office, or a 
State or local prosecutor's office, that substantial interests of the 
government in pending or contemplated legal proceedings based on the 
same facts as the suspension would be prejudiced by conducting fact-
finding.
    (b) You will have an opportunity to challenge the facts if the 
suspending official determines that--
    (1) The conditions in paragraph (a) of this section do not exist; 
and
    (2) Your presentation in opposition raises a genuine dispute over 
facts material to the suspension.
    (c) If you have an opportunity to challenge disputed material facts 
under this section, the suspending official or designee must conduct 
additional proceedings to resolve those facts.



Sec.  19.740  Are suspension proceedings formal?

    (a) Suspension proceedings are conducted in a fair and informal 
manner. The suspending official may use flexible procedures to allow you 
to present matters in opposition. In so doing, the suspending official 
is not required to follow formal rules of evidence or procedure in 
creating an official record upon which the official will base a final 
suspension decision.
    (b) You as a respondent or your representative must submit any 
documentary evidence you want the suspending official to consider.



Sec.  19.745  How is fact-finding conducted?

    (a) If fact-finding is conducted--
    (1) You may present witnesses and other evidence, and confront any 
witness presented; and
    (2) The fact-finder must prepare written findings of fact for the 
record.
    (b) A transcribed record of fact-finding proceedings must be made, 
unless you as a respondent and the Department of the Treasury agree to 
waive it in advance. If you want a copy of the transcribed record, you 
may purchase it.



Sec.  19.750  What does the suspending official consider in deciding whether
to continue or terminate my suspension?

    (a) The suspending official bases the decision on all information 
contained in the official record. The record includes--
    (1) All information in support of the suspending official's initial 
decision to suspend you;

[[Page 214]]

    (2) Any further information and argument presented in support of, or 
opposition to, the suspension; and
    (3) Any transcribed record of fact-finding proceedings.
    (b) The suspending official may refer disputed material facts to 
another official for findings of fact. The suspending official may 
reject any resulting findings, in whole or in part, only after 
specifically determining them to be arbitrary, capricious, or clearly 
erroneous.



Sec.  19.755  When will I know whether the suspension is continued or
terminated?

    The suspending official must make a written decision whether to 
continue, modify, or terminate your suspension within 45 days of closing 
the official record. The official record closes upon the suspending 
official's receipt of final submissions, information and findings of 
fact, if any. The suspending official may extend that period for good 
cause.



Sec.  19.760  How long may my suspension last?

    (a) If legal or debarment proceedings are initiated at the time of, 
or during your suspension, the suspension may continue until the 
conclusion of those proceedings. However, if proceedings are not 
initiated, a suspension may not exceed 12 months.
    (b) The suspending official may extend the 12 month limit under 
paragraph (a) of this section for an additional 6 months if an office of 
a U.S. Assistant Attorney General, U.S. Attorney, or other responsible 
prosecuting official requests an extension in writing. In no event may a 
suspension exceed 18 months without initiating proceedings under 
paragraph (a) of this section.
    (c) The suspending official must notify the appropriate officials 
under paragraph (b) of this section of an impending termination of a 
suspension at least 30 days before the 12 month period expires to allow 
the officials an opportunity to request an extension.



                           Subpart H_Debarment



Sec.  19.800  What are the causes for debarment?

    We may debar a person for--
    (a) Conviction of or civil judgment for--
    (1) Commission of fraud or a criminal offense in connection with 
obtaining, attempting to obtain, or performing a public or private 
agreement or transaction;
    (2) Violation of Federal or State antitrust statutes, including 
those proscribing price fixing between competitors, allocation of 
customers between competitors, and bid rigging;
    (3) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, tax 
evasion, receiving stolen property, making false claims, or obstruction 
of justice; or
    (4) Commission of any other offense indicating a lack of business 
integrity or business honesty that seriously and directly affects your 
present responsibility;
    (b) Violation of the terms of a public agreement or transaction so 
serious as to affect the integrity of an agency program, such as--
    (1) A willful failure to perform in accordance with the terms of one 
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance 
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or 
requirement applicable to a public agreement or transaction;
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before 
October 1, 1988, or a procurement debarment by any Federal agency taken 
pursuant to 48 CFR part 9, subpart 9.4, before August 25, 1995;
    (2) Knowingly doing business with an ineligible person, except as 
permitted under Sec.  19.120;
    (3) Failure to pay a single substantial debt, or a number of 
outstanding debts (including disallowed costs and overpayments, but not 
including sums owed

[[Page 215]]

the Federal Government under the Internal Revenue Code) owed to any 
Federal agency or instrumentality, provided the debt is uncontested by 
the debtor or, if contested, provided that the debtor's legal and 
administrative remedies have been exhausted;
    (4) Violation of a material provision of a voluntary exclusion 
agreement entered into under Sec.  19.640 or of any settlement of a 
debarment or suspension action; or
    (5) Violation of the provisions of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701); or
    (d) Any other cause of so serious or compelling a nature that it 
affects your present responsibility.



Sec.  19.805  What notice does the debarring official give me if I am
proposed for debarment?

    After consideration of the causes in Sec.  19.800 of this subpart, 
if the debarring official proposes to debar you, the official sends you 
a Notice of Proposed Debarment, pursuant to Sec.  19.615, advising you--
    (a) That the debarring official is considering debarring you;
    (b) Of the reasons for proposing to debar you in terms sufficient to 
put you on notice of the conduct or transactions upon which the proposed 
debarment is based;
    (c) Of the cause(s) under Sec.  19.800 upon which the debarring 
official relied for proposing your debarment;
    (d) Of the applicable provisions of this subpart, Subpart F of this 
part, and any other Department of the Treasury procedures governing 
debarment; and
    (e) Of the governmentwide effect of a debarment from procurement and 
nonprocurement programs and activities.



Sec.  19.810  When does a debarment take effect?

    A debarment is not effective until the debarring official issues a 
decision. The debarring official does not issue a decision until the 
respondent has had an opportunity to contest the proposed debarment.



Sec.  19.815  How may I contest a proposed debarment?

    If you as a respondent wish to contest a proposed debarment, you or 
your representative must provide the debarring official with information 
in opposition to the proposed debarment. You may do this orally or in 
writing, but any information provided orally that you consider important 
must also be submitted in writing for the official record.



Sec.  19.820  How much time do I have to contest a proposed debarment?

    (a) As a respondent you or your representative must either send, or 
make arrangements to appear and present, the information and argument to 
the debarring official within 30 days after you receive the Notice of 
Proposed Debarment.
    (b) We consider the Notice of Proposed Debarment to be received by 
you--
    (1) When delivered, if we mail the notice to the last known street 
address, or five days after we send it if the letter is undeliverable;
    (2) When sent, if we send the notice by facsimile or five days after 
we send it if the facsimile is undeliverable; or
    (3) When delivered, if we send the notice by e-mail or five days 
after we send it if the e-mail is undeliverable.



Sec.  19.825  What information must I provide to the debarring official
if I contest a proposed debarment?

    (a) In addition to any information and argument in opposition, as a 
respondent your submission to the debarring official must identify--
    (1) Specific facts that contradict the statements contained in the 
Notice of Proposed Debarment. Include any information about any of the 
factors listed in Sec.  19.860. A general denial is insufficient to 
raise a genuine dispute over facts material to the debarment;
    (2) All existing, proposed, or prior exclusions under regulations 
implementing E.O. 12549 and all similar actions taken by Federal, State, 
or local agencies, including administrative agreements that affect only 
those agencies;
    (3) All criminal and civil proceedings not included in the Notice of 
Proposed

[[Page 216]]

Debarment that grew out of facts relevant to the cause(s) stated in the 
notice; and
    (4) All of your affiliates.
    (b) If you fail to disclose this information, or provide false 
information, the Department of the Treasury may seek further criminal, 
civil or administrative action against you, as appropriate.



Sec.  19.830  Under what conditions do I get an additional opportunity
to challenge the facts on which a proposed debarment is based?

    (a) You as a respondent will not have an additional opportunity to 
challenge the facts if the debarring official determines that--
    (1) Your debarment is based upon a conviction or civil judgment;
    (2) Your presentation in opposition contains only general denials to 
information contained in the Notice of Proposed Debarment; or
    (3) The issues raised in your presentation in opposition to the 
proposed debarment are not factual in nature, or are not material to the 
debarring official's decision whether to debar.
    (b) You will have an additional opportunity to challenge the facts 
if the debarring official determines that--
    (1) The conditions in paragraph (a) of this section do not exist; 
and
    (2) Your presentation in opposition raises a genuine dispute over 
facts material to the proposed debarment.
    (c) If you have an opportunity to challenge disputed material facts 
under this section, the debarring official or designee must conduct 
additional proceedings to resolve those facts.



Sec.  19.835  Are debarment proceedings formal?

    (a) Debarment proceedings are conducted in a fair and informal 
manner. The debarring official may use flexible procedures to allow you 
as a respondent to present matters in opposition. In so doing, the 
debarring official is not required to follow formal rules of evidence or 
procedure in creating an official record upon which the official will 
base the decision whether to debar.
    (b) You or your representative must submit any documentary evidence 
you want the debarring official to consider.



Sec.  19.840  How is fact-finding conducted?

    (a) If fact-finding is conducted--
    (1) You may present witnesses and other evidence, and confront any 
witness presented; and
    (2) The fact-finder must prepare written findings of fact for the 
record.
    (b) A transcribed record of fact-finding proceedings must be made, 
unless you as a respondent and the Department of the Treasury agree to 
waive it in advance. If you want a copy of the transcribed record, you 
may purchase it.



Sec.  19.845  What does the debarring official consider in deciding
whether to debar me?

    (a) The debarring official may debar you for any of the causes in 
Sec.  19.800. However, the official need not debar you even if a cause 
for debarment exists. The official may consider the seriousness of your 
acts or omissions and the mitigating or aggravating factors set forth at 
Sec.  19.860.
    (b) The debarring official bases the decision on all information 
contained in the official record. The record includes--
    (1) All information in support of the debarring official's proposed 
debarment;
    (2) Any further information and argument presented in support of, or 
in opposition to, the proposed debarment; and
    (3) Any transcribed record of fact-finding proceedings.
    (c) The debarring official may refer disputed material facts to 
another official for findings of fact. The debarring official may reject 
any resultant findings, in whole or in part, only after specifically 
determining them to be arbitrary, capricious, or clearly erroneous.



Sec.  19.850  What is the standard of proof in a debarment action?

    (a) In any debarment action, we must establish the cause for 
debarment by a preponderance of the evidence.
    (b) If the proposed debarment is based upon a conviction or civil 
judgment, the standard of proof is met.

[[Page 217]]



Sec.  19.855  Who has the burden of proof in a debarment action?

    (a) We have the burden to prove that a cause for debarment exists.
    (b) Once a cause for debarment is established, you as a respondent 
have the burden of demonstrating to the satisfaction of the debarring 
official that you are presently responsible and that debarment is not 
necessary.



Sec.  19.860  What factors may influence the debarring official's
decision?

    This section lists the mitigating and aggravating factors that the 
debarring official may consider in determining whether to debar you and 
the length of your debarment period. The debarring official may consider 
other factors if appropriate in light of the circumstances of a 
particular case. The existence or nonexistence of any factor, such as 
one of those set forth in this section, is not necessarily determinative 
of your present responsibility. In making a debarment decision, the 
debarring official may consider the following factors:
    (a) The actual or potential harm or impact that results or may 
result from the wrongdoing.
    (b) The frequency of incidents and/or duration of the wrongdoing.
    (c) Whether there is a pattern or prior history of wrongdoing. For 
example, if you have been found by another Federal agency or a State 
agency to have engaged in wrongdoing similar to that found in the 
debarment action, the existence of this fact may be used by the 
debarring official in determining that you have a pattern or prior 
history of wrongdoing.
    (d) Whether you are or have been excluded or disqualified by an 
agency of the Federal Government or have not been allowed to participate 
in State or local contracts or assistance agreements on a basis of 
conduct similar to one or more of the causes for debarment specified in 
this part.
    (e) Whether you have entered into an administrative agreement with a 
Federal agency or a State or local government that is not governmentwide 
but is based on conduct similar to one or more of the causes for 
debarment specified in this part.
    (f) Whether and to what extent you planned, initiated, or carried 
out the wrongdoing.
    (g) Whether you have accepted responsibility for the wrongdoing and 
recognize the seriousness of the misconduct that led to the cause for 
debarment.
    (h) Whether you have paid or agreed to pay all criminal, civil and 
administrative liabilities for the improper activity, including any 
investigative or administrative costs incurred by the government, and 
have made or agreed to make full restitution.
    (i) Whether you have cooperated fully with the government agencies 
during the investigation and any court or administrative action. In 
determining the extent of cooperation, the debarring official may 
consider when the cooperation began and whether you disclosed all 
pertinent information known to you.
    (j) Whether the wrongdoing was pervasive within your organization.
    (k) The kind of positions held by the individuals involved in the 
wrongdoing.
    (l) Whether your organization took appropriate corrective action or 
remedial measures, such as establishing ethics training and implementing 
programs to prevent recurrence.
    (m) Whether your principals tolerated the offense.
    (n) Whether you brought the activity cited as a basis for the 
debarment to the attention of the appropriate government agency in a 
timely manner.
    (o) Whether you have fully investigated the circumstances 
surrounding the cause for debarment and, if so, made the result of the 
investigation available to the debarring official.
    (p) Whether you had effective standards of conduct and internal 
control systems in place at the time the questioned conduct occurred.
    (q) Whether you have taken appropriate disciplinary action against 
the individuals responsible for the activity which constitutes the cause 
for debarment.
    (r) Whether you have had adequate time to eliminate the 
circumstances within your organization that led to the cause for the 
debarment.

[[Page 218]]

    (s) Other factors that are appropriate to the circumstances of a 
particular case.



Sec.  19.865  How long may my debarment last?

    (a) If the debarring official decides to debar you, your period of 
debarment will be based on the seriousness of the cause(s) upon which 
your debarment is based. Generally, debarment should not exceed three 
years. However, if circumstances warrant, the debarring official may 
impose a longer period of debarment.
    (b) In determining the period of debarment, the debarring official 
may consider the factors in Sec.  19.860. If a suspension has preceded 
your debarment, the debarring official must consider the time you were 
suspended.
    (c) If the debarment is for a violation of the provisions of the 
Drug-Free Workplace Act of 1988, your period of debarment may not exceed 
five years.



Sec.  19.870  When do I know if the debarring official debars me?

    (a) The debarring official must make a written decision whether to 
debar within 45 days of closing the official record. The official record 
closes upon the debarring official's receipt of final submissions, 
information and findings of fact, if any. The debarring official may 
extend that period for good cause.
    (b) The debarring official sends you written notice, pursuant to 
Sec.  19.615 that the official decided, either--
    (1) Not to debar you; or
    (2) To debar you. In this event, the notice:
    (i) Refers to the Notice of Proposed Debarment;
    (ii) Specifies the reasons for your debarment;
    (iii) States the period of your debarment, including the effective 
dates; and
    (iv) Advises you that your debarment is effective for covered 
transactions and contracts that are subject to the Federal Acquisition 
Regulation (48 CFR chapter 1), throughout the executive branch of the 
Federal Government unless an agency head or an authorized designee 
grants an exception.



Sec.  19.875  May I ask the debarring official to reconsider a decision
to debar me?

    Yes, as a debarred person you may ask the debarring official to 
reconsider the debarment decision or to reduce the time period or scope 
of the debarment. However, you must put your request in writing and 
support it with documentation.



Sec.  19.880  What factors may influence the debarring official during
reconsideration?

    The debarring official may reduce or terminate your debarment based 
on--
    (a) Newly discovered material evidence;
    (b) A reversal of the conviction or civil judgment upon which your 
debarment was based;
    (c) A bona fide change in ownership or management;
    (d) Elimination of other causes for which the debarment was imposed; 
or
    (e) Other reasons the debarring official finds appropriate.



Sec.  19.885  May the debarring official extend a debarment?

    (a) Yes, the debarring official may extend a debarment for an 
additional period, if that official determines that an extension is 
necessary to protect the public interest.
    (b) However, the debarring official may not extend a debarment 
solely on the basis of the facts and circumstances upon which the 
initial debarment action was based.
    (c) If the debarring official decides that a debarment for an 
additional period is necessary, the debarring official must follow the 
applicable procedures in this subpart, and subpart F of this part, to 
extend the debarment.



                          Subpart I_Definitions



Sec.  19.900  Adequate evidence.

    Adequate evidence means information sufficient to support the 
reasonable belief that a particular act or omission has occurred.



Sec.  19.905  Affiliate.

    Persons are affiliates of each other if, directly or indirectly, 
either one controls or has the power to control the

[[Page 219]]

other or a third person controls or has the power to control both. The 
ways we use to determine control include, but are not limited to--
    (a) Interlocking management or ownership;
    (b) Identity of interests among family members;
    (c) Shared facilities and equipment;
    (d) Common use of employees; or
    (e) A business entity which has been organized following the 
exclusion of a person which has the same or similar management, 
ownership, or principal employees as the excluded person.



Sec.  19.910  Agency.

    Agency means any United States executive department, military 
department, defense agency, or any other agency of the executive branch. 
Other agencies of the Federal government are not considered ``agencies'' 
for the purposes of this part unless they issue regulations adopting the 
governmentwide Debarment and Suspension system under Executive orders 
12549 and 12689.



Sec.  19.915  Agent or representative.

    Agent or representative means any person who acts on behalf of, or 
who is authorized to commit, a participant in a covered transaction.



Sec.  19.920  Civil judgment.

    Civil judgment means the disposition of a civil action by any court 
of competent jurisdiction, whether by verdict, decision, settlement, 
stipulation, other disposition which creates a civil liability for the 
complained of wrongful acts, or a final determination of liability under 
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-3812).



Sec.  19.925  Conviction.

    Conviction means--
    (a) A judgment or any other determination of guilt of a criminal 
offense by any court of competent jurisdiction, whether entered upon a 
verdict or plea, including a plea of nolo contendere; or
    (b) Any other resolution that is the functional equivalent of a 
judgment, including probation before judgment and deferred prosecution. 
A disposition without the participation of the court is the functional 
equivalent of a judgment only if it includes an admission of guilt.



Sec.  19.930  Debarment.

    Debarment means an action taken by a debarring official under 
subpart H of this part to exclude a person from participating in covered 
transactions and transactions covered under the Federal Acquisition 
Regulation (48 CFR chapter 1). A person so excluded is debarred.



Sec.  19.935  Debarring official.

    (a) Debarring official means an agency official who is authorized to 
impose debarment. A debarring official is either--
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]



Sec.  19.940  Disqualified.

    Disqualified means that a person is prohibited from participating in 
specified Federal procurement or nonprocurement transactions as required 
under a statute, Executive order (other than Executive Orders 12549 and 
12689) or other authority. Examples of disqualifications include persons 
prohibited under--
    (a) The Davis-Bacon Act (40 U.S.C. 276(a));
    (b) The equal employment opportunity acts and Executive orders; or
    (c) The Clean Air Act (42 U.S.C. 7606), Clean Water Act (33 U.S.C. 
1368) and Executive Order 11738 (3 CFR, 1973 Comp., p. 799).



Sec.  19.945  Excluded or exclusion.

    Excluded or exclusion means--
    (a) That a person or commodity is prohibited from being a 
participant in covered transactions, whether the person has been 
suspended; debarred; proposed for debarment under 48 CFR part 9, subpart 
9.4; voluntarily excluded; or
    (b) The act of excluding a person.



Sec.  19.950  Excluded Parties List System.

    Excluded Parties List System (EPLS) means the list maintained and 
disseminated by the General Services Administration (GSA) containing the 
names and other information about persons who are ineligible. The EPLS 
system includes the printed version entitled,

[[Page 220]]

``List of Parties Excluded or Disqualified from Federal Procurement and 
Nonprocurement Programs,'' so long as published.



Sec.  19.955  Indictment.

    Indictment means an indictment for a criminal offense. A 
presentment, information, or other filing by a competent authority 
charging a criminal offense shall be given the same effect as an 
indictment.



Sec.  19.960  Ineligible or ineligibility.

    Ineligible or ineligibility means that a person or commodity is 
prohibited from covered transactions because of an exclusion or 
disqualification.



Sec.  19.965  Legal proceedings.

    Legal proceedings means any criminal proceeding or any civil 
judicial proceeding, including a proceeding under the Program Fraud 
Civil Remedies Act (31 U.S.C. 3801-3812), to which the Federal 
Government or a State or local government or quasi-governmental 
authority is a party. The term also includes appeals from those 
proceedings.



Sec.  19.970  Nonprocurement transaction.

    (a) Nonprocurement transaction means any transaction, regardless of 
type (except procurement contracts), including, but not limited to the 
following:
    (1) Grants.
    (2) Cooperative agreements.
    (3) Scholarships.
    (4) Fellowships.
    (5) Contracts of assistance.
    (6) Loans.
    (7) Loan guarantees.
    (8) Subsidies.
    (9) Insurances.
    (10) Payments for specified uses.
    (11) Donation agreements.
    (b) A nonprocurement transaction at any tier does not require the 
transfer of Federal funds.



Sec.  19.975  Notice.

    Notice means a written communication served in person, sent by 
certified mail or its equivalent, or sent electronically by e-mail or 
facsimile. (See Sec.  19.615.)



Sec.  19.980  Participant.

    Participant means any person who submits a proposal for or who 
enters into a covered transaction, including an agent or representative 
of a participant.



Sec.  19.985  Person.

    Person means any individual, corporation, partnership, association, 
unit of government, or legal entity, however organized.



Sec.  19.990  Preponderance of the evidence.

    Preponderance of the evidence means proof by information that, 
compared with information opposing it, leads to the conclusion that the 
fact at issue is more probably true than not.



Sec.  19.995  Principal.

    Principal means--
    (a) An officer, director, owner, partner, principal investigator, or 
other person within a participant with management or supervisory 
responsibilities related to a covered transaction; or
    (b) A consultant or other person, whether or not employed by the 
participant or paid with Federal funds, who--
    (1) Is in a position to handle Federal funds;
    (2) Is in a position to influence or control the use of those funds; 
or,
    (3) Occupies a technical or professional position capable of 
substantially influencing the development or outcome of an activity 
required to perform the covered transaction.



Sec.  19.1000  Respondent.

    Respondent means a person against whom an agency has initiated a 
debarment or suspension action.



Sec.  19.1005  State.

    (a) State means--
    (1) Any of the states of the United States;
    (2) The District of Columbia;
    (3) The Commonwealth of Puerto Rico;
    (4) Any territory or possession of the United States; or
    (5) Any agency or instrumentality of a state.

[[Page 221]]

    (b) For purposes of this part, State does not include institutions 
of higher education, hospitals, or units of local government.



Sec.  19.1010  Suspending official.

    (a) Suspending official means an agency official who is authorized 
to impose suspension. The suspending official is either:
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]



Sec.  19.1015  Suspension.

    Suspension is an action taken by a suspending official under subpart 
G of this part that immediately prohibits a person from participating in 
covered transactions and transactions covered under the Federal 
Acquisition Regulation (48 CFR chapter 1) for a temporary period, 
pending completion of an agency investigation and any judicial or 
administrative proceedings that may ensue. A person so excluded is 
suspended.



Sec.  19.1020  Voluntary exclusion or voluntarily excluded.

    (a) Voluntary exclusion means a person's agreement to be excluded 
under the terms of a settlement between the person and one or more 
agencies. Voluntary exclusion must have governmentwide effect.
    (b) Voluntarily excluded means the status of a person who has agreed 
to a voluntary exclusion.

Subpart J [Reserved]

[[Page 222]]



             Sec. Appendix to Part 19--Covered Transactions
[GRAPHIC] [TIFF OMITTED] TR26NO03.000



PART 20_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)--Table of Contents



                     Subpart A_Purpose and Coverage

Sec.
20.100 What does this part do?
20.105 Does this part apply to me?
20.110 Are any of my Federal assistance awards exempt from this part?
20.115 Does this part affect the Federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

20.200 What must I do to comply with this part?
20.205 What must I include in my drug-free workplace statement?
20.210 To whom must I distribute my drug-free workplace statement?
20.215 What must I include in my drug-free awareness program?
20.220 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
20.225 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
20.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

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

[[Page 223]]

   Subpart D_Responsibilities of Department of the Treasury Awarding 
                                Officials

20.400 What are my responsibilities as an Department of the Treasury 
          awarding official?

           Subpart E_Violations of This Part and Consequences

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

                          Subpart F_Definitions

20.605 Award.
20.610 Controlled substance.
20.615 Conviction.
20.620 Cooperative agreement.
20.625 Criminal drug statute.
20.630 Debarment.
20.635 Drug-free workplace.
20.640 Employee.
20.645 Federal agency or agency.
20.650 Grant.
20.655 Individual.
20.660 Recipient.
20.665 State.
20.670 Suspension.

    Authority: 41 U.S.C. 701, et seq.

    Source: 68 FR 66557, 66607, Nov. 26, 2003, unless otherwise noted.



                     Subpart A_Purpose and Coverage



Sec.  20.100  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.  20.105  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 the 
Treasury; or
    (2) A(n) Department of the Treasury awarding official. (See 
definitions of award and recipient in Sec. Sec.  20.605 and 20.660, 
respectively.)
    (b) The following table shows the subparts that apply to you:

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



Sec.  20.110  Are any of my Federal assistance awards exempt from
this part?

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



Sec.  20.115  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.  20.510(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.  20.200  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

[[Page 224]]

awareness program for your employees (see Sec. Sec.  20.205 through 
20.220); and
    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace (see Sec.  20.225).
    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec.  20.230).



Sec.  20.205  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.  20.210  To whom must I distribute my drug-free workplace statement?

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



Sec.  20.215  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.  20.220  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.  20.205 and an ongoing awareness program 
as described in Sec.  20.215, you must publish the statement and 
establish the program by the time given in the following table:

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



Sec.  20.225  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.  20.205(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

[[Page 225]]

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.  20.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each Department of 
the Treasury 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 the Treasury 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 the Treasury 
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 the Treasury 
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 the Treasury awarding official.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec.  20.300  What must I do to comply with this part if I am an individual
recipient?

    As a condition of receiving a(n) Department of the Treasury award, 
if you are an individual recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any award activity, you will 
report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the Department of the Treasury awarding official or other 
designee for each award that you currently have, unless Sec.  20.301 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.  20.301  [Reserved]



   Subpart D_Responsibilities of Department of the Treasury Awarding 
                                Officials



Sec.  20.400  What are my responsibilities as a(n) Department of the
Treasury awarding official?

    As a(n) Department of the Treasury 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.

[[Page 226]]



           Subpart E_Violations of this Part and Consequences



Sec.  20.500  How are violations of this part determined for recipients
other than individuals?

    A recipient other than an individual is in violation of the 
requirements of this part if the Secretary of the Treasury 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.  20.505  How are violations of this part determined for recipients
who are individuals?

    An individual recipient is in violation of the requirements of this 
part if the Secretary of the Treasury 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.  20.510  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.  20.500 or Sec.  20.505, the Department of the 
Treasury may take one or more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under 22 CFR part 19, 
for a period not to exceed five years.



Sec.  20.515  Are there any exceptions to those actions?

    The Secretary of the Treasury may waive with respect to a particular 
award, in writing, a suspension of payments under an award, suspension 
or termination of an award, or suspension or debarment of a recipient if 
the Secretary of the Treasury 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.  20.605  Award.

    Award means an award of financial assistance by the Department of 
the Treasury 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) [Reserved]
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.
    (7) Veterans' benefits to individuals (i.e., any benefit to 
veterans, their families, or survivors by virtue of the service of a 
veteran in the Armed Forces of the United States).



Sec.  20.610  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.  20.615  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.  20.620  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.  20.650), 
except that substantial involvement is expected between the Federal 
agency and the recipient when carrying out the activity contemplated

[[Page 227]]

by the award. The term does not include cooperative research and 
development agreements as defined in 15 U.S.C. 3710a.



Sec.  20.625  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.  20.630  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.  20.635  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.  20.640  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.  20.645  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.  20.650  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C. 6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the Federal Government's direct benefit or use; 
and
    (b) In which substantial involvement is not expected between the 
Federal agency and the recipient when carrying out the activity 
contemplated by the award.



Sec.  20.655  Individual.

    Individual means a natural person.



Sec.  20.660  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.  20.665  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.  20.670  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

[[Page 228]]

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 21_NEW RESTRICTIONS ON LOBBYING--Table of Contents



                            Subpart A_General

Sec.
21.100 Conditions on use of funds.
21.105 Definitions.
21.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

21.200 Agency and legislative liaison.
21.205 Professional and technical services.
21.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

21.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

21.400 Penalties.
21.405 Penalty procedures.
21.410 Enforcement.

                          Subpart E_Exemptions

21.500 Secretary of Defense.

                        Subpart F_Agency Reports

21.600 Semi-annual compilation.
21.605 Inspector General report.

Appendix A to Part 21--Certification Regarding Lobbying
Appendix B to Part 21--Disclosure Form to Report Lobbying

    Authority: Sec. 319, Pub. L. 101-121 (31 U.S.C. 1352); 31 U.S.C. 
321.

    Source: 55 FR 6737, 6751, Feb. 26, 1990, unless otherwise noted.

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



                            Subpart A_General



Sec.  21.100  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

[[Page 229]]

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.  21.105  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;
    (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

[[Page 230]]

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.  21.110  Certification and disclosure.

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

[[Page 231]]

    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement, shall file a certification, and a 
disclosure form, if required, to the next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraph 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (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.  21.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec.  
21.100 (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 Pub. L. 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.

[[Page 232]]



Sec.  21.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
21.100 (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.  21.210  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.  21.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
21.100 (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.  21.110 (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.

[[Page 233]]

    (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.  21.400  Penalties.

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

[[Page 234]]



Sec.  21.405  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.  21.410  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.  21.500  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.  21.600  Semi-annual compilation.

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



Sec.  21.605  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

[[Page 235]]

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 21--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 236]]



     Sec. Appendix B to Part 21--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC21OC91.002


[[Page 237]]


[GRAPHIC] [TIFF OMITTED] TC21OC91.003


[[Page 238]]


[GRAPHIC] [TIFF OMITTED] TC21OC91.004


[[Page 239]]





 PART 22_NONDISCRIMINATION ON THE BASIS OF RACE, COLOR, OR NATIONAL 
 ORIGIN IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
 FROM THE DEPARTMENT OF THE TREASURY--Table of Contents



Sec.
22.1 Purpose.
22.2 Application.
22.3 Definitions.
22.4 Discrimination prohibited.
22.5 Assurances required.
22.6 Compliance information.
22.7 Conduct of investigations.
22.8 Procedure for effecting compliance.
22.9 Hearings.
22.10 Decisions and notices.
22.11 Judicial review.
22.12 Effect on other regulations, forms, and instructions.

Appendix A to Part 22--Activities to Which This Part Applies

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

    Source: 81 FR 89855, Dec. 13, 2016, unless otherwise noted.



Sec.  22.1  Purpose.

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



Sec.  22.2  Application.

    (a) This part applies to any program for which federal financial 
assistance is authorized under a law administered by the Department, 
including the types of federal financial assistance listed in appendix A 
to this part. It also applies to money paid, property transferred, or 
other federal financial assistance extended after the effective date of 
this part pursuant to an application approved before that effective 
date. This part does not apply to:
    (1) Any federal financial assistance by way of insurance or guaranty 
contracts;
    (2) Any assistance to any individual who is the ultimate 
beneficiary; or
    (3) Any employment practice, under any such program, of any 
employer, employment agency, or labor organization, except to the extent 
described in Sec.  22.4(c). The fact that a type of federal financial 
assistance is not listed in appendix A to this part shall not mean, if 
Title VI is otherwise applicable, that a program is not covered. Other 
types of federal financial assistance under statutes now in force or 
hereinafter enacted may be added to appendix A to this part.
    (b) In any program receiving federal financial assistance in the 
form, or for the acquisition, of real property or an interest in real 
property, to the extent that rights to space on, over, or under any such 
property are included as part of the program receiving that assistance, 
the nondiscrimination requirement of this part shall extend to any 
facility located wholly or in part in that space.



Sec.  22.3  Definitions.

    As used in this part:
    Applicant means a person who submits an application, request, or 
plan required to be approved by an official of the Department of the 
Treasury, or designee thereof, or by a primary recipient, as a condition 
to eligibility for federal financial assistance, and application means 
such an application, request, or plan.
    Designated agency official means the Assistant Secretary for 
Management and his or her designee.
    Facility includes all or any part of structures, equipment, or other 
real or personal property or interests therein, and the provision of 
facilities includes the construction, expansion, renovation, remodeling, 
alteration, or acquisition of facilities.
    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

[[Page 240]]

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.
    Primary recipient means any recipient that is authorized or required 
to extend federal financial assistance to another recipient.
    Program or activity and program mean all of the operations of any 
entity described in the following paragraphs (1) through (4) of this 
definition, any part of which is extended federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such state or local government that distributes 
such assistance and each such department or agency 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 the preceding paragraph (1), (2), or (3) of this 
definition.
    Recipient may mean any State, territory, possession, the District of 
Columbia, or Puerto Rico, or any political subdivision thereof, or 
instrumentality thereof, any public or private agency, institution, or 
organization, or other entity, or any individual, in any State, 
territory, possession, the District of Columbia, or Puerto Rico, to whom 
federal financial assistance is extended, directly or through another 
recipient, including any successor, assignee, or transferee thereof, but 
such term does not include any ultimate beneficiary.



Sec.  22.4  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 otherwise subjected to discrimination 
under, any program to which this part applies.
    (b) Specific discriminatory actions prohibited. (1) A recipient to 
which this part applies may not, directly or through contractual or 
other arrangements, on the grounds of race, color, or national origin:
    (i) Deny a person any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to a 
person which is different, or is provided in a different manner, from 
that provided to others under the program;
    (iii) Subject a person to segregation or separate treatment in any 
matter related to his receipt of any service, financial aid, or other 
benefit under the program;
    (iv) Restrict a person in any way in the enjoyment of any advantage 
or privilege enjoyed by others receiving any service, financial aid, or 
other benefit under the program;
    (v) Treat a person differently from others in determining whether he 
satisfies any admission, enrollment, quota, eligibility, membership, or 
other requirement or condition which persons must meet in order to be 
provided any service, financial aid, or other benefit provided under the 
program;
    (vi) Deny a person an opportunity to participate in the program 
through the

[[Page 241]]

provision of services or otherwise to 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 a volunteer 
or as an employee, but only to the extent set forth in paragraph (c) of 
this section); or
    (vii) Deny a person the opportunity to participate as a member of a 
planning, advisory, or similar body which is an integral part of the 
program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of persons to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program, or the class of persons to be 
afforded an opportunity to participate in any such program, may not, 
directly or through contractual or other arrangements, use criteria or 
methods of administration which have the effect of subjecting persons to 
discrimination because of their race, color, or national origin or have 
the effect of defeating or substantially impairing accomplishment of the 
objectives of the program with respect to individuals of a particular 
race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding persons from, denying them the benefits of, or subjecting them 
to discrimination under any program to which this regulation applies, on 
the grounds of race, color, or national origin; or with the purpose or 
effect of defeating or substantially impairing the accomplishment of the 
objectives of Title VI or this part.
    (4) As used in this section the services, financial aid, or other 
benefits provided under a program receiving federal financial assistance 
include any service, financial aid, or other benefit provided in or 
through a facility provided with the aid of federal financial 
assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph does not limit the generality of the prohibition in 
paragraph (a) of this section.
    (6) This part does not prohibit the consideration of race, color, or 
national origin if the purpose and effect are to remove or overcome the 
consequences of practices or impediments which have restricted the 
availability of, or participation in, the program or activity receiving 
federal financial assistance, on the grounds of race, color, or national 
origin. Where prior discriminatory practice or usage tends, on the 
grounds of race, color, or national origin to exclude individuals from 
participation in, to deny them the benefits of, or to subject them to 
discrimination under any program or activity to which this part applies, 
the applicant or recipient must take affirmative action to remove or 
overcome the effects of the prior discriminatory practice or usage. Even 
in the absence of prior discriminatory practice or usage, a recipient in 
administering a program or activity to which this part applies, may take 
affirmative action to assure that no person is excluded from 
participation in or denied the benefits of the program or activity on 
the grounds of race, color, or national origin.
    (c) Employment practices. (1) Where a primary objective of the 
federal financial assistance to a program to which this part applies is 
to provide employment, a recipient subject to this part shall not, 
directly or through contractual or other arrangements, subject a person 
to discrimination on the ground of race, color, or national origin in 
its employment practices under such program (including recruitment or 
recruitment advertising, hiring, firing, upgrading, promotion, demotion, 
transfer, layoff, termination, rates of pay or other forms of 
compensation or benefits, selection for training or apprenticeship, and 
use of facilities). Such recipient shall take affirmative action to 
insure that applicants are employed, and employees are treated during 
employment, without regard to their race, color, or national origin. The 
requirements applicable to construction employment under any such 
program shall be those specified in or pursuant to Part III of Executive 
Order 11246 or any Executive Order which supersedes it.
    (2) Where a primary objective of the federal financial assistance is 
not to

[[Page 242]]

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, deny 
them the benefits of, or subject them to discrimination under any 
program to which this regulation applies, the provisions of paragraph 
(c)(1) of this section shall apply to the employment practices of the 
recipient or other persons subject to the regulation, to the extent 
necessary to assure equality of opportunity to, and nondiscriminatory 
treatment of, beneficiaries.



Sec.  22.5  Assurances 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 program or activity operated by the applicant or 
recipient and to which these Title VI regulations apply will be operated 
in compliance with these Title VI regulations.
    (b) Duration of obligation. (1) In the case where the federal 
financial assistance is to provide or is in the form of personal 
property, or real property or interest therein or structures thereon, 
the assurance shall obligate the recipient, or, in the case of a 
subsequent transfer, the transferee, for the period during which the 
property is used for a purpose for which the federal financial 
assistance is extended or for another purpose involving the provision of 
similar services or benefits, or for as long as the recipient retains 
ownership or possession of the property, whichever is longer. In all 
other cases the assurance shall obligate the recipient for the period 
during which federal financial assistance is extended to the program.
    (2) In the case where federal financial assistance is provided in 
the form of a transfer of real property, structures, or improvements 
thereon, or interest therein, from the federal Government, the 
instrument effecting or recording the transfer shall contain a covenant 
running with the land assuring nondiscrimination for the period during 
which the real property is used for a purpose for which the federal 
financial assistance is extended or for another purpose involving the 
provision of similar services or benefits. Where no transfer of property 
or interest therein from the federal government is involved, but 
property is acquired or improved with federal financial assistance, the 
recipient shall agree to include such covenant in any subsequent 
transfer of such property. When the property is obtained from the 
federal government, such covenant may also include a condition coupled 
with a right to be reserved by the Department to revert title to the 
property in the event of a breach of the covenant where, in the 
discretion of the designated 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 proposes to mortgage or otherwise 
encumber the real property as security for financing construction of 
new, or improvement of existing, facilities on such property for the 
purposes for which the property was transferred, the designated agency 
official may agree, upon request of the transferee and if necessary to 
accomplish such financing, and upon such conditions as the designated 
agency official deems appropriate, to subordinate such right of 
reversion to the lien of such mortgage or other encumbrance.
    (c) Continuing federal financial assistance. Every application by a 
State or a State agency for continuing federal financial assistance to 
which this part applies (including the types of federal financial 
assistance listed in appendix A to this part) shall as a condition to 
its approval and the extension of any federal financial assistance 
pursuant to the application:
    (1) Contain, be accompanied by, or be covered by a statement that 
the program is (or, in the case of a new program, will be) conducted in 
compliance with all requirements imposed by or pursuant to this part; 
and

[[Page 243]]

    (2) Provide, be accompanied by, or be covered by provision for such 
methods of administration for the program as are found by the designated 
agency official to give reasonable guarantee that the applicant and all 
recipients of federal financial assistance under such program will 
comply with all requirements imposed by or pursuant to this part.
    (d) Assurance 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 special 
training projects, 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, hospital, 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, patients, 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.
    (e) 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. This includes but is not limited to Title VI of the 
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d, et seq.
    (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. Any such assurance shall include provisions which give the 
United States a right to seek its judicial enforcement.



Sec.  22.6  Compliance information.

    (a) Cooperation and assistance. The designated Agency official 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 designated Agency official timely, complete, and accurate 
compliance reports at such times, and in such form and containing such 
information, as the designated Agency official may determine to be 
necessary to enable the designated Agency official to ascertain whether 
the recipient has complied or is complying with this part. In the case 
in which a primary recipient extends federal financial assistance to any 
other recipient, such other recipient shall also submit such compliance 
reports to the primary recipient as may be necessary to enable the 
primary recipient to carry out its obligations under this part. In 
general recipients should have available for the designated Agency 
official racial and ethnic data showing the extent to which members of 
minority groups are beneficiaries of programs receiving Federal 
financial assistance.
    (c) Access to sources of information. Each recipient shall permit 
access by the designated Agency official 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 fails or refuses to furnish this information, the 
recipient shall so certify in its report and shall set forth what 
efforts it has made to obtain the information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
part and its applicability to the program for which the recipient 
receives federal financial assistance, and make such information 
available to them in such manner, as the designated Agency official 
finds necessary to apprise such persons of the protections against 
discrimination assured them by Title VI and this part.

[[Page 244]]



Sec.  22.7  Conduct of investigations.

    (a) Periodic compliance reviews. The designated Agency official 
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 that he or she, or any 
specific class of persons, has been subjected to discrimination 
prohibited by this part may by himself or herself, or by a 
representative, file with the designated Agency official a written 
complaint. A complaint must be filed not later than 180 days after the 
date of the alleged discrimination, unless the time for filing is 
extended by the designated Agency official.
    (c) Investigations. The designated Agency official will make a 
prompt investigation whenever a compliance review, report, complaint, or 
any other information indicates a possible failure to comply with this 
part. The investigation will include, where appropriate, a review of the 
pertinent practices and policies of the recipient, the circumstances 
under which the possible noncompliance with this part occurred, and 
other factors relevant to a determination as to whether the recipient 
has failed to comply with this part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
part, the designated Agency official 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.  22.8.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section the designated Agency official 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 Title VI or this part, or because 
the individual 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.



Sec.  22.8  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 referral to the Department of Justice with a recommendation 
that appropriate proceedings be brought to enforce any rights of the 
United States under any law of the United States (including other titles 
of the Civil Rights Act of 1964), or any assurance or other contractual 
undertaking; and
    (2) Any applicable proceeding under State or local law.
    (b) Noncompliance with Sec.  22.5. If an applicant fails or refuses 
to furnish an assurance required under Sec.  22.5 or otherwise fails or 
refuses to comply with a requirement imposed by or pursuant to that 
section, federal financial assistance may be suspended, terminated, or 
refused in accordance with the procedures of paragraph (c) of this 
section. The Agency shall not be required to provide assistance in such 
a case during the pendency of the administrative proceedings under such 
paragraph. However, subject to Sec.  22.12, the Agency shall continue 
assistance during the pendency of such proceedings where such assistance 
is due and payable pursuant to an application approved prior to the 
effective date of this part.
    (c) Termination of or refusal to grant or to continue federal 
financial assistance. (1) No order suspending, terminating, or refusing 
to grant or continue federal financial assistance shall become effective 
until:
    (i) The designated Agency official has advised the applicant or 
recipient of

[[Page 245]]

the applicant's or recipient's failure to comply and has determined that 
compliance cannot be secured by voluntary means;
    (ii) 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;
    (iii) The action has been approved by the designated Agency official 
pursuant to Sec.  22.10(e); and
    (iv) The expiration of 30 days after the designated Agency official 
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.
    (2) Any action to suspend or terminate or to refuse to grant or to 
continue federal financial assistance shall be limited to the particular 
political entity, or part thereof, or other applicant or recipient as to 
whom such a finding has been made and shall be limited in its effect to 
the particular program, or part thereof, in which such noncompliance has 
been so found.
    (d) Other means authorized by law. No action to effect compliance 
with Title VI by any other means authorized by law shall be taken by the 
Department of the Treasury until:
    (1) The designated Agency official has determined that compliance 
cannot be secured by voluntary means;
    (2) The recipient or other person has been notified of its failure 
to comply and of the action to be taken to effect compliance; and
    (3) The expiration of at least 10 days from the mailing of such 
notice to the recipient or other person. During this period of at least 
10 days, additional efforts shall be made to persuade the recipient or 
other person to comply with the regulation and to take such corrective 
action as may be appropriate.



Sec.  22.9  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec.  22.8(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 designated 
agency official that the matter be scheduled for hearing; or
    (2) Advise the applicant or recipient that the matter in question 
has been set 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 Title VI and 
Sec.  22.8(c) and consent to the making of a decision on the basis of 
such information as is available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the Department of the Treasury component administering the program, 
at a time fixed by the designated Agency official unless the designated 
Agency official 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 designated Agency official, or at 
designated Agency official's discretion, before a hearing examiner 
appointed in accordance with section 3105 of title 5, United States 
Code, or detailed under section 3344 of title 5, United States Code.
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Agency shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
sections 554 through 557 of title 5, United States Code, and in 
accordance with such rules of procedure as are proper (and

[[Page 246]]

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 
designated Agency official and the applicant or recipient shall be 
entitled to introduce all relevant evidence on the issues as stated in 
the notice for hearing or as determined by the officer conducting the 
hearing at the outset of or during the hearing.
    (2) Technical rules of evidence do not apply to hearings conducted 
pursuant to this part, but rules or principles designed to assure 
production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where determined 
reasonably necessary by the officer conducting the hearing. The hearing 
officer may exclude irrelevant, immaterial, or unduly repetitious 
evidence. All documents and other evidence offered or taken for the 
record shall be open to examination by the parties and opportunity shall 
be given to refute facts and arguments advanced on either side of the 
issues. A transcript shall be made of the oral evidence except to the 
extent the substance thereof is stipulated for the record. All decisions 
shall be based upon the hearing record and written findings shall be 
made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more federal statutes, authorities, or other 
means by which federal financial assistance is extended and to which 
this part applies, or noncompliance with this part and the regulations 
of one or more other federal departments or agencies issued under Title 
VI, the designated Agency official may, by agreement with such other 
departments or agencies, where applicable, provide for the conduct of 
consolidated or joint hearings, and for the application to such hearings 
of rules or procedures not inconsistent with this part. Final decisions 
in such cases, insofar as this regulation is concerned, shall be made in 
accordance with Sec.  22.10.



Sec.  22.10  Decisions and notices.

    (a) Procedure on decisions by hearing examiner. If the hearing is 
held by a hearing examiner, the hearing examiner shall either make an 
initial decision, if so authorized, or certify the entire record 
including his recommended findings and proposed decision to the 
designated agency official for a final decision, and a copy of such 
initial decision or certification shall be mailed to the applicant or 
recipient. Where the initial decision is made by the hearing examiner 
the applicant or recipient may, within 30 days after the mailing of such 
notice of initial decision, file with the designated Agency official the 
applicant's or recipient's exceptions to the initial decision, with the 
reasons therefor. In the absence of exceptions, the designated Agency 
official may, on his or her own motion, within 45 days after the initial 
decision, serve on the applicant or recipient a notice that the 
designated Agency official will review the decision. Upon the filing of 
such exceptions or of notice of review, the designated Agency official 
shall review the initial decision and issue his or her own decision 
thereon including the reasons therefor. In the absence of either 
exceptions or a notice of review the initial decision shall, subject to 
paragraph (e) of this section, constitute the final decision of the 
designated Agency official.
    (b) Decisions on record or review by the designated Agency official. 
Whenever a record is certified to the designated Agency official for 
decision or he or she reviews the decision of a hearing examiner 
pursuant to paragraph (a) of this section, or whenever the designated 
Agency official conducts the hearing, the applicant or recipient shall 
be given reasonable opportunity to file with the designated Agency 
official briefs or other written statements of its contentions, and a 
written copy of the final decision of the designated Agency official 
shall be sent to the applicant or recipient and to the complainant, if 
any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec.  22.9, a decision shall be made by 
the designated Agency official on the record and a written copy of

[[Page 247]]

such decision shall be sent to the applicant or recipient, and to the 
complainant, if any.
    (d) Rulings required. Each decision of a hearing examiner or the 
designated Agency official shall set forth his or her ruling on each 
finding, conclusion, or exception presented, and shall identify the 
requirement or requirements imposed by or pursuant to this part with 
which it is found that the applicant or recipient has failed to comply.
    (e) Approval by designated Agency official. Any final decision by an 
official of the Agency, other than the designated Agency official 
personally, which provides for the suspension or termination of, or the 
refusal to grant or continue federal financial assistance, or the 
imposition of any other sanction available under this part or Title VI, 
shall promptly be transmitted to the designated Agency official 
personally, who may approve such decision, may vacate it, or remit or 
mitigate any sanction imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue federal financial 
assistance, in whole or in part, to which this regulation applies, and 
may contain such terms, conditions, and other provisions as are 
consistent with and will effectuate the purposes of Title VI 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 designated Agency 
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 part and provides reasonable assurance that it will fully comply 
with this part.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the designated 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 (g)(1) of this section. If the designated 
Agency official determines that those requirements have been satisfied, 
he or she shall restore such eligibility.
    (3) If the designated 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 or procedures issued by the designated 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 (g)(1) of this section. While proceedings 
under this paragraph are pending, the sanctions imposed by the order 
issued under paragraph (f) of this section shall remain in effect.



Sec.  22.11  Judicial review.

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



Sec.  22.12  Effect on other regulations, forms, and instructions.

    (a) Effect on other regulations. All regulations, orders, or like 
directions issued before the effective date of this part by any officer 
of the Department of the Treasury which impose requirements designed to 
prohibit any discrimination against individuals on the grounds of race, 
color, or national origin under any program to which this part applies, 
and which authorize the suspension or termination of or refusal to grant 
or to continue federal financial assistance to any applicant for a 
recipient of such assistance for failure to comply with such 
requirements, are hereby superseded to the extent that such 
discrimination is prohibited by this part, except that nothing in this

[[Page 248]]

part may be considered to relieve any person of any obligation assumed 
or imposed under any such superseded regulation, order, instruction, or 
like direction before the effective date of this part. Nothing in this 
part, however, supersedes any of the following (including future 
amendments thereof):
    (1) Executive Order 11246 (3 CFR, 1965 Supp., p. 167) and 
regulations issued thereunder; or
    (2) Any other orders, regulations, or instructions, insofar as such 
orders, regulations, or instructions prohibit discrimination on the 
ground of race, color, or national origin in any program or situation to 
which this part is inapplicable, or prohibit discrimination on any other 
ground.
    (b) Forms and instructions. The designated Agency official shall 
issue and promptly make available to all interested persons forms and 
detailed instructions and procedures for effectuating this part as 
applied to programs to which this part applies and for which the 
designated Agency official is responsible.
    (c) Supervision and coordination. The designated Agency official may 
from time to time assign to officials of the Agency, or to officials of 
other departments or agencies of the Government with the consent of such 
departments or agencies, responsibilities in connection with the 
effectuation of the purposes of Title VI and this part (other than 
responsibility for final decision as provided in Sec.  22.10), including 
the achievement of effective coordination and maximum uniformity within 
the Agency and within the Executive Branch of the Government in the 
application of Title VI and this part to similar programs and in similar 
situations. Any action taken, determination made or requirement imposed 
by an official of another department or agency acting pursuant to an 
assignment of responsibility under this paragraph shall have the same 
effect as though such action had been taken by the designated Agency 
official of the Department.



    Sec. Appendix A to Part 22--Activities to Which This Part Applies

    Note: Failure to list a type of federal assistance in this appendix 
A shall not mean, if Title VI is otherwise applicable, that a program is 
not covered.

------------------------------------------------------------------------
          Component            Program or activity        Authority
------------------------------------------------------------------------
Departmental Offices, Office  Community             Riegle Community
 of Domestic Finance, Office   Development           Development and
 of Financial Institutions.    Financial             Regulatory
                               Institutions Fund--   Improvement Act of
                               Financial Component.  1994, 12 U.S.C.
                                                     4701 et seq.
Departmental Offices, Office  Community             Riegle Community
 of Domestic Finance, Office   Development           Development and
 of Financial Institutions.    Financial             Regulatory
                               Institutions Fund--   Improvement Act of
                               Technical             1994, 12 U.S.C.
                               Assistance            4701 et seq.
                               Component.
Departmental Offices, Office  Bank Enterprise       Riegle Community
 of Domestic Finance, Office   Award Program.        Development and
 of Financial Institutions.                          Regulatory
                                                     Improvement Act of
                                                     1994 sec. 114, 12
                                                     U.S.C. 4713.
Departmental Offices, Office  Native American       Riegle Community
 of Domestic Finance, Office   Community             Development Banking
 of Financial Institutions.    Development           and Financial
                               Financial             Institutions Act of
                               Institutions          1994, 12 U.S.C.
                               Assistance Program,   4701 et seq.
                               Financial
                               Assistance (FA)
                               Awards.
Departmental Offices, Office  Native American       Riegle Community
 of Domestic Finance, Office   Community             Development Banking
 of Financial Institutions.    Development           and Financial
                               Financial             Institutions Act of
                               Institutions          1994, 12 U.S.C.
                               Assistance (NACA)     4701 et seq.
                               Program, Technical
                               Assistance Grants.
Departmental Offices, Office  Community             Housing and Economic
 of Domestic Finance, Office   Development           Recovery Act of
 of Financial Institutions.    Financial             2008 sec. 1339, 12
                               Institutions Fund,    U.S.C. 4569.
                               Capital Magnet Fund.
Departmental Offices, Office  State Small Business  Small Business Jobs
 of Domestic Finance, Office   Credit Initiative.    Act of 2010, 12
 of Small Business,                                  U.S.C. 5701 et seq.
 Community Development, and
 Housing Policy.
Internal Revenue Service....  Tax Counseling for    Revenue Act of 1978
                               the Elderly Grant     sec. 163, Public
                               Program.              Law 95-600, 92 Stat
                                                     2763, 2810-2811.
Internal Revenue Service....  Volunteer Income Tax  Tax Reform Act of
                               Assistance Program.   1969, Public Law 91-
                                                     172, 83 Stat. 487.
Internal Revenue Service....  Volunteer Income Tax  Consolidated
                               Assistance Grant      Appropriations Act,
                               Program.              Public Law 110-161,
                                                     121 Stat. 1844,
                                                     1975-76 (2007).
Internal Revenue Service....  Low Income Taxpayer   Internal Revenue
                               Clinic Grant          Service
                               Program.              Restructuring and
                                                     Reform Act of 1998
                                                     sec. 3601, 26
                                                     U.S.C. 7526.

[[Page 249]]

 
United States Mint..........  U.S. Commemorative    Specific acts of
                               Coin Programs.        Congress that
                                                     authorize United
                                                     States
                                                     commemorative coin
                                                     and medal programs
                                                     provide assistance.
                                                     See, e.g., the
                                                     Louis Braille
                                                     Bicentennial--Brail
                                                     le Literacy
                                                     Commemorative Coin
                                                     Act, Public Law 109-
                                                     247 (2006); the Boy
                                                     Scouts of America
                                                     Centennial
                                                     Commemorative Coin
                                                     Act, Public Law 110-
                                                     363 (2008); the
                                                     American Veterans
                                                     Disabled for Life
                                                     Commemorative Coin
                                                     Act, Public Law 110-
                                                     277 (2008); and the
                                                     National September
                                                     11 Memorial &
                                                     Museum
                                                     Commemorative Medal
                                                     Act of 2010, Public
                                                     Law 111-221 (2010).
Departmental Offices,         Equitable sharing     18 U.S.C. 981(e)(2);
 Treasury Executive Office     program (transfer     21 U.S.C.
 for Asset Forfeiture.         of forfeited          881(e)(1)(A); 31
                               property to state     U.S.C. 9703.
                               and local law
                               enforcement
                               agencies).
Various Treasury Bureaus and  Unreimbursed detail   5 U.S.C. 3371
 Offices (including the        of Federal            through 3376.
 Internal Revenue Service).    Employees through
                               the
                               Intergovernmental
                               Personnel Act.
Departmental Offices, Office  Grants under the      Resources and
 of the Fiscal Assistant       RESTORE Act's         Ecosystems
 Secretary.                    Direct Component      Sustainability,
                               and Centers of        Tourist
                               Excellence program    Opportunities, and
                               and supplemental      Revived Economies
                               compliance            of the Gulf Coast
                               responsibilities      States Act of 2012,
                               for its               Public Law 112-141.
                               Comprehensive Plan
                               and Spill Impact
                               Components.
------------------------------------------------------------------------



PART 23_NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS AND ACTIVITIES
RECEIVING FEDERAL FINANCIAL ASSISTANCE FROM THE DEPARTMENT OF THE TREASURY-
-Table of Contents



                            Subpart A_General

Sec.
23.1 What is the purpose of the Age Discrimination Act of 1975?
23.2 What is the purpose of Treasury's age discrimination regulations?
23.3 To what programs does this part apply?
23.4 Definitions of terms used in this part.

         Subpart B_Standards for Determining Age Discrimination

23.11 Rules against age discrimination.
23.12 Definitions of ``normal operation'' and ``statutory objective.''
23.13 Exceptions to the rules against age discrimination: Normal 
          operation or statutory objective of any program or activity.
23.14 Exceptions to the rules against age discrimination: Reasonable 
          factors other than age.
23.15 Burden of proof.
23.16 Affirmative action by recipient.
23.17 Special benefits for children and the elderly.
23.18 Age distinctions contained in Treasury regulations.

                 Subpart C_Duties of Treasury Recipients

23.31 General responsibilities.
23.32 Notice to subrecipients and beneficiaries.
23.33 Assurance of compliance and recipient assessment of age 
          distinctions.
23.34 Information requirements.

   Subpart D_Investigations, Conciliation, and Enforcement Procedures

23.41 Compliance reviews.
23.42 Complaints.
23.43 Mediation.
23.44 Investigation.
23.45 Prohibition against intimidation or retaliation.
23.46 Compliance procedures.
23.47 Hearings, decisions, post-termination proceedings.
23.48 Remedial action by recipient.
23.49 Alternate funds disbursal procedure.
23.50 Exhaustion of administrative remedies.

    Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 
6101 et seq. (45 CFR part 90)

    Source: 82 FR 47108, Oct. 11, 2017, unless otherwise noted.

[[Page 250]]



                            Subpart A_General



Sec.  23.1  What is the purpose of the Age Discrimination Act
of 1975?

    The Age Discrimination Act of 1975, as amended, is designed to 
prohibit discrimination on the basis of age in programs or activities 
receiving Federal financial assistance. The Act also permits federally 
assisted programs and activities, and recipients of Federal funds, to 
continue to use certain age distinctions and factors other than age that 
meet the requirements of the Act and these regulations.



Sec.  23.2  What is the purpose of Treasury's age discrimination
regulations?

    The purpose of these regulations is to set out Treasury's policies 
and procedures under the Age Discrimination Act of 1975 and the general 
age discrimination regulations at 45 CFR part 90. The Act and the 
general regulations prohibit discrimination on the basis of age in 
programs or activities receiving Federal financial assistance. The Act 
and the general regulations permit federally assisted programs and 
activities, and recipients of Federal funds, to continue to use age 
distinctions and factors other than age that meet the requirements of 
the Act and its implementing regulations. These regulations do not apply 
to actions arising under the Age Discrimination in Employment Act of 
1967, Public Law 90-202, 29 U.S.C. 621 through 634 (ADEA), and do not in 
any way affect the Equal Employment Opportunity Commission's regulations 
implementing the ADEA at 29 CFR 1625, 1626, and 1627.



Sec.  23.3  To what programs does this part apply?

    (a) This part applies to any program or activity receiving Federal 
financial assistance from Treasury.
    (b) The regulations in this part do not apply to:
    (1) An age distinction contained in that part of a Federal, State, 
or local statute or ordinance adopted by an elected, general purpose 
legislative body that:
    (i) Provides any benefits or assistance to persons based on age; or
    (ii) Establishes criteria for participation in age-related terms; or
    (iii) Describes intended beneficiaries to target groups in age-
related terms; or
    (2) Any employment practice of any employer, employment agency, 
labor organization, or any labor-management joint apprenticeship 
training program.



Sec.  23.4  Definition of terms used in this part.

    As used in these regulations, the term:
    Act means the Age Discrimination Act of 1975, as amended, 42 U.S.C. 
6101-6107.
    Action means any act, activity, policy, rule, standard, or method of 
administration; or the use of any policy, rule, standard, or method of 
administration.
    ADEA means the Age Discrimination in Employment Act of 1967, which 
forbids employment discrimination against anyone 40 years of age or 
older.
    Age means how old a person is, or the number of years from the date 
of a person's birth.
    Age distinction means any action using age or an age-related term.
    Age-related term means a word or words that necessarily imply a 
particular age or range of ages (for example, ``children,'' ``adult,'' 
``older persons,'' but not ``student'').
    Federal financial assistance means any grant, entitlement, loan, 
cooperative agreement, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by which 
Treasury provides assistance in the form of:
    (1) Funds; or
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use or 
property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of property if the 
federal share of its fair market value is not returned to the Federal 
Government.
    Program or activity means all of the operations of any entity 
described in

[[Page 251]]

paragraphs (1) through (4) of this definition, any part of which is 
extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) That 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 that is established by two or more of the 
entities described in paragraph (1), (2), or (3) of this definition.
    Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended, directly or 
through another recipient. Recipient includes any successor, assignee, 
or transferee, but excludes the ultimate beneficiary of the assistance.
    Secretary means the Secretary of the Treasury, or his or her 
designee.
    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.
    Treasury means the United States Department of the Treasury.
    United States means the fifty states, the District of Columbia, 
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the 
Trust Territory of the Pacific Islands, the Northern Marianas, and the 
territories and possessions of the United States.



         Subpart B_Standards for Determining Age Discrimination



Sec.  23.11  Rules against age discrimination.

    The rules stated in this section are limited by the exceptions 
contained in Sec. Sec.  23.13 and 23.14.
    (a) General rule. No person in the United States shall, on the basis 
of age, be excluded from participation in, be denied the benefits of, or 
be subjected to discrimination under, any program or activity receiving 
Federal financial assistance.
    (b) Specific rules. A recipient may not, in any program or activity 
receiving Federal financial assistance, directly or through contractual 
licensing, or other arrangements, use age distinctions or take any other 
actions that have the effect, on the basis of age, of:
    (1) Excluding individuals from, denying them the benefits of, or 
subjecting them to discrimination under, a program or activity receiving 
Federal financial assistance; or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving Federal financial 
assistance.
    (c) Non-exhaustive list. The specific forms of age discrimination 
listed in paragraph (b) of this section do not necessarily constitute a 
complete list.



Sec.  23.12  Definitions of ``normal operation'' and
``statutory objective.''

    For purposes of Sec. Sec.  23.13 and 23.14, the terms ``normal 
operation'' and ``statutory objective'' shall have the following 
meaning:
    (a) Normal operation means the operation of a program or activity 
without

[[Page 252]]

significant changes that would impair its ability to meet its 
objectives.
    (b) Statutory objective means any purpose of a program or activity 
expressly stated in any Federal statute, State statute, or local statute 
or ordinance adopted by an elected, general purpose legislative body.



Sec.  23.13  Exceptions to the rules against age discrimination: 
Normal operation or statutory objective of any program or activity.

    A recipient is permitted to take an action, otherwise prohibited by 
Sec.  23.11, if the action reasonably takes into account age as a factor 
necessary to the normal operation or the achievement of any statutory 
objective of a program or activity. An action reasonably takes into 
account age as a factor necessary to the normal operation or the 
achievement of any statutory objective of a program or activity, if:
    (a) Age is used as a measure or approximation of one or more other 
characteristics; and
    (b) The other characteristic(s) must be measured or approximated for 
the normal operation of the program or activity to continue, or to 
achieve any statutory objective of the program or activity; and
    (c) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (d) The other characteristic(s) are impractical to measure directly 
on an individual basis.



Sec.  23.14  Exceptions to the rules against age discrimination:
Reasonable factors other than age.

    A recipient is permitted to take an action otherwise prohibited by 
Sec.  23.11 that is based on a factor other than age, even though that 
action may have a disproportionate effect on persons of different ages. 
An action may be based on a factor other than age only if the factor 
bears a direct and substantial relationship to the normal operation of 
the program or activity or to the achievement of a statutory objective.



Sec.  23.15  Burden of proof.

    The burden of proving that an age distinction or other action falls 
within the exceptions outlined in Sec. Sec.  23.13 and 23.14 is on the 
recipient of Federal financial assistance.



Sec.  23.16  Affirmative action by recipient.

    Even in the absence of a finding of discrimination, a recipient may 
take affirmative action to overcome the effects of conditions that 
resulted in limited participation in the recipient's program or activity 
on the basis of age.



Sec.  23.17  Special benefits for children and the elderly.

    If a recipient's operation of a program or activity provides special 
benefits to the elderly or to children, such use of age distinctions 
shall be presumed to be necessary to the normal operation of the program 
or activity, notwithstanding the provisions of Sec.  23.13.



Sec.  23.18  Age distinctions contained in Treasury regulations.

    Any age distinctions contained in a rule or regulation issued by 
Treasury shall be presumed to be necessary to the achievement of a 
statutory objective of the program or activity to which the rule or 
regulation applies, notwithstanding the provisions of Sec.  23.13.



                 Subpart C_Duties of Treasury Recipients



Sec.  23.31  General responsibilities.

    Each Treasury recipient has primary responsibility to ensure that 
its programs and activities are in compliance with the Act and these 
regulations, and shall take steps to eliminate violations of the Act. A 
recipient also has responsibility to maintain records, provide 
information, and afford Treasury access to its records to the extent 
Treasury finds necessary to determine whether the recipient is in 
compliance with the Act and these regulations.



Sec.  23.32  Notice to subrecipients and beneficiaries.

    (a) Where a recipient passes on Federal financial assistance from 
Treasury to subrecipients, the recipient shall provide the subrecipients 
written notice of their obligations under the Act and these regulations.

[[Page 253]]

    (b) Each recipient shall make necessary information about the Act 
and these regulations available to its program beneficiaries to inform 
them about the protections against discrimination provided by the Act 
and these regulations.



Sec.  23.33  Assurance of compliance and recipient assessment of age 
distinctions.

    (a) Written assurance. Each recipient of Federal financial 
assistance from Treasury shall sign a written assurance as specified by 
Treasury that it will comply with the Act and these regulations.
    (b) Recipient assessment of age distinctions. (1) As part of a 
compliance review under Sec.  23.41 or a complaint investigation under 
Sec.  23.44, Treasury may require a recipient employing the equivalent 
of 15 or more employees to complete a written self-evaluation, in a 
manner specified by the responsible Department official, of any age 
distinction imposed in its program or activity receiving Federal 
financial assistance from Treasury to assess the recipient's compliance 
with the Act.
    (2) Whenever an assessment indicates a violation of the Act or the 
Treasury regulations, the recipient shall take corrective action.



Sec.  23.34  Information requirements.

    Each recipient shall:
    (a) Keep records in a form and containing information that Treasury 
determines may be necessary to ascertain whether the recipient is 
complying with the Act and these regulations.
    (b) Provide to Treasury, upon request, information and reports that 
Treasury determines are necessary to ascertain whether the recipient is 
complying with the Act and these regulations.
    (c) Permit reasonable access by Treasury to the books, records, 
accounts, and other recipient facilities and sources of information to 
the extent Treasury determines is necessary to ascertain whether the 
recipient is complying with the Act and these regulations.



    Subpart D_Investigation, Conciliation, and Enforcement Procedures



Sec.  23.41  Compliance reviews.

    (a) Treasury may conduct compliance reviews and pre-award reviews or 
use other similar procedures that will permit it to investigate and 
correct violations of the Act and these regulations. Treasury may 
conduct these reviews even in the absence of a complaint against a 
recipient. The reviews may be as comprehensive as necessary to determine 
whether a violation of the Act or these regulations has occurred.
    (b) If a compliance review or pre-award review indicates a violation 
of the Act or these regulations, Treasury will attempt to achieve 
voluntary compliance. If voluntary compliance cannot be achieved, 
Treasury will arrange for enforcement as described in Sec.  23.46.



Sec.  23.42  Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with Treasury, alleging discrimination 
prohibited by the Act or 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, Treasury 
may extend this time limit.
    (b) Treasury will consider the date a complaint is filed to be the 
date upon which the complaint is sufficient to be processed.
    (c) Treasury will attempt to facilitate the filing of complaints 
wherever possible, including taking the following measures:
    (1) Accepting as a sufficient complaint any written statement that 
identifies the parties involved and the date the complainant first had 
knowledge of the alleged violation, 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.

[[Page 254]]

    (3) Notifying the complainant and the recipient of their rights and 
obligations under the complaint procedure, including the right to have a 
representative at all stages of the complaint resolution process.
    (4) Notifying the complainant and the recipient (or their 
representatives) of their right to contact Treasury for information and 
assistance regarding the complaint resolution process.
    (d) Treasury will notify the complainant when the complaint falls 
outside the jurisdiction of these regulations, and will state the 
reason(s) why it is outside the jurisdiction of these regulations.



Sec.  23.43  Mediation.

    (a) Treasury will promptly refer to a mediation agency designated by 
the Secretary of the Department of Health and Human Services (HHS) all 
sufficient complaints that:
    (1) Fall within the jurisdiction of the Act and these regulations, 
unless the age distinction complained of is clearly within an exception; 
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.
    (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 the recipient sign it. The mediator shall send a copy of 
the agreement to Treasury. Treasury will 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 confidentially 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)(1) The mediation will proceed for a maximum of 60 days after a 
complaint is filed with Treasury. Mediation ends if:
    (i) 60 days elapse from the time the complaint is filed; or
    (ii) Prior to the end of that 60-day period, an agreement is 
reached; or
    (iii) Prior to the end of that 60-day period, the mediator 
determines that an agreement cannot be reached.
    (2) This 60-day period may be extended by the mediator, with the 
concurrence of Treasury, for not more than 30 days if the mediator 
determines that agreement likely will be reached during such extended 
period.
    (f) The mediator shall notify Treasury when mediation is not 
successful and Treasury will continue processing the complaint.



Sec.  23.44  Investigation.

    (a) Informal investigation. (1) Treasury 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, Treasury 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 to the 
parties. Treasury may seek the assistance of any involved State agency.
    (3) Any settlement agreement will be put in writing and the parties 
will sign it.
    (4) The settlement shall not affect the operation of any other 
enforcement effort of Treasury, including compliance reviews and 
investigation of other complaints that may involve the recipient.
    (5) The settlement is not a finding of discrimination against a 
recipient.
    (b) Formal investigation. If Treasury 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, Treasury will attempt to 
obtain voluntary compliance. If Treasury cannot obtain voluntary 
compliance, it will begin enforcement as described in Sec.  23.46

[[Page 255]]



Sec.  23.45  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who:
    (a) Attempts to assert a right protected by the Act or these 
regulations; or
    (b) Cooperates in any mediation, investigation, hearing, or other 
part of Treasury's investigation, conciliation, and enforcement process.



Sec.  23.46  Compliance procedures.

    (a) Treasury may enforce the Act and these regulations through:
    (1) Termination of a recipient's Federal financial assistance from 
Treasury under the program or activity involved where the recipient has 
violated the Act or 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.
    (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 of the recipient created 
by the Act or these regulations;
    (ii) Referral to the Equal Employment Opportunity Commission, 
Department of Labor, the Department of Health and Human Services, or the 
Department of Education, as applicable; and
    (iii) Use of any requirement of or referral to any Federal, State, 
or local government agency that will have the effect of correcting a 
violation of the Act or these regulations.
    (b) Treasury will limit any termination under paragraph (a)(1) of 
this section to the particular recipient and particular program or 
activity or part of such program or activity Treasury finds in violation 
of these regulations. Treasury will not base any part of a termination 
on a finding with respect to any program or activity of the recipient 
that does not receive Federal financial assistance from Treasury.
    (c) Treasury will take no action under paragraph (a) of this section 
until:
    (1) The Secretary has advised the recipient of its failure to comply 
with theAct and these regulations and has determined that voluntary 
compliance cannot be obtained.
    (2) Thirty days have elapsed after the Secretary has sent a written 
report of the circumstances and grounds of the action to the committees 
of Congress having legislative jurisdiction over the Federal program or 
activity involved. The Secretary will file a report whenever any action 
is taken under paragraph (a) of this section.
    (d) Treasury also may defer granting new Federal financial 
assistance to a recipient when a hearing under paragraph (a)(1) of this 
section is initiated.
    (1) New Federal financial assistance from Treasury includes all 
assistance for which Treasury requires an application or approval, 
including renewal or continuation of existing activities, or 
authorization of new activities, during the deferral period. New Federal 
financial assistance from Treasury 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 paragraph (a)(1) of 
this section.
    (2) Treasury will not begin a deferral until the recipient has 
received a notice of an opportunity for a hearing under paragraph (a)(1) 
of this section. Treasury 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 Secretary. Treasury will not continue a deferral for 
more than 30 days after the close of the hearing, unless the hearing 
results in a finding against the recipient.
    (3) Treasury will limit any deferral to the particular recipient and 
particular program or activity or part of such program or activity 
Treasury finds in violation of these regulations. Treasury will not base 
any part of a deferral on a finding with respect to any program or 
activity of the recipient that does not, and would not in connection 
with the new funds, receive Federal financial assistance from Treasury.

[[Page 256]]



Sec.  23.47  Hearings, decisions, post-termination proceedings.

    Treasury procedural provisions for hearings, decisions, and post-
termination proceedings applicable to Title VI of the Civil Rights Act 
of 1964 and its implementing regulations within Title 31 of the CFR 
shall apply to Treasury enforcement of these regulations.



Sec.  23.48  Remedial action by recipient.

    Where Treasury finds a recipient has discriminated on the basis of 
age in violation of the Act or this part, the recipient shall take any 
remedial action that Treasury may require to overcome the effects of the 
discrimination.



Sec.  23.49  Alternate funds disbursal procedure.

    (a) When Treasury withholds funds from a recipient under these 
regulations, the Secretary may disburse the withheld funds directly to 
an alternate recipient, where appropriate: Any public or non-profit 
private organization or agency, or State or political subdivision of the 
State.
    (b) The Secretary will require any alternate recipient to 
demonstrate:
    (1) The ability to comply with these regulations; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the Federal financial assistance.



Sec.  23.50  Exhaustion of administrative remedies.

    (a) A complainant may file a civil action following the exhaustion 
of administrative remedies under the Act. Administrative remedies are 
exhausted if:
    (1) 180 days have elapsed since the complainant filed the complaint 
and Treasury has made no finding with regard to the complainant; or
    (2) Treasury issues any finding in favor of the recipient.
    (b) If Treasury fails to make a finding within 180 days or issues a 
finding in favor of the recipient, Treasury shall:
    (1) Promptly advise the complainant of this fact; and
    (2) Advise the complainant of his or her right to bring a civil 
action for injunctive relief; and
    (3) Inform the complainant:
    (i) That the complainant may bring a civil action only in a United 
States district court for the district in which the recipient is found 
or transacts business;
    (ii) That a complainant prevailing in a civil action has the right 
to be awarded the costs of the action, including reasonable attorney's 
fee, but that the complainant must demand these costs in the complaint.
    (iii) That before commencing the action the complainant shall give 
30 days notice by registered mail to the Secretary, the Secretary of 
HHS, the Attorney General of the United States, and the recipient.
    (iv) That the notice must state: The alleged violation of the Act; 
the relief requested; the court in which the complainant is bringing the 
action; and whether or not attorney's fees are demanded in the event the 
complainant prevails; and
    (v) That the complainant may not bring an action if the same alleged 
violation of the Act by the same recipient is the subject of a pending 
action in any court of the United States.



PART 25_PREPAYMENT OF FOREIGN MILITARY SALES LOANS MADE BY THE DEFENSE
SECURITY ASSISTANCE AGENCY AND FOREIGN MILITARY SALES LOANS MADE BY 
THE FEDERAL FINANCING BANK AND GUARANTEED BY THE DEFENSE SECURITY ASSISTANCE
AGENCY--Table of Contents



                            Subpart A_General

Sec.
25.100 Definitions.
25.101 OMB control number.

                 Subpart B_Qualifications for Prepayment

25.200 General rules.

                          Subpart C_Procedures

25.300 Application procedure.
25.301 Approval procedure.
25.302 Application withdrawal; effect of approval.
25.303 Closing procedure.

[[Page 257]]

                     Subpart D_Form of Private Loan

25.400 Loan provisions.
25.401 Fees.
25.402 Transferability.
25.403 Registration.
25.404 Non-separability.
25.405 Form of guaranty.
25.406 Savings clause.

    Authority: Title III, Pub. L. 100-202; 31 U.S.C. 321.

    Source: 53 FR 25426, July 6, 1988, unless otherwise noted.



                            Subpart A_General



Sec.  25.100  Definitions.

    In this part, unless the context indicates otherwise:
    (a) Act means the provisions entitled ``Foreign Military Sales Debt 
Reform,'' of Title III, entitled ``Military Assistance,'' of an act 
entitled ``Foreign Operations, Export Financing and Related Programs 
Appropriations Act, 1988'' (Pub. L. 100-202), enacted December 22, 1987.
    (b) AECA means the Arms Export Control Act, as amended (22 U.S.C. 
2751 et seq.).
    (c) Borrower means the obligor on an FMS Advance.
    (d) Closing date means:
    (1) With respect to the prepayment of the amounts permitted by this 
part to be prepaid of FMS Loans held by DSAA, the date designated by the 
mutual agreement of both the Borrower and DSAA on which the Guaranty 
will be attached to the Private Loan Note or the Private Loan Portion 
Notes, as the case may be, the Private Loan will be funded, and the 
Total Permitted Prepayment Amount, or the portion thereof which the 
Borrower has selected to prepay, will be prepaid; and
    (2) With respect to the prepayment of the amounts permitted by this 
part to be prepaid of FMS Loans held by the FFB and guaranteed by DSAA, 
the date designated by the mutual agreement of the Borrower, the FFB, 
and DSAA on which the Guaranty will be attached to the Private Loan Note 
or the Private Loan Portion Notes, as the case may be, the Private Loan 
will be funded, and the Total Permitted Prepayment Amount, or Portion 
thereof which the Borrower has selected to prepay, will be prepaid.
    (e) Derivative means any right, interest, instrument or security 
issued or traded on the credit of the Private Loan or any Private Loan 
Portion, including but not limited to:
    (1) Any participation share of, or undivided ownership or other 
equity interest in, the Private Loan or any Private Loan Portion;
    (2) Any note, bond or other debt instrument or obligation which is 
collateralized or otherwise secured by a pledge of, or secruity interest 
in, the Private Loan or any Private Loan Portion; or
    (3) Any such interest in such an interest or any such instrument 
secured by such an instrument.
    (f) DSAA means the Defense Security Assistance Agency, an agency 
within the Department of Defense.
    (g) Eligible FMS advance means any FMS Advance which:
    (1) Was outstanding on December 22, 1987;
    (2) Has principal amounts becoming due and payable after September 
30, 1989; and
    (3) Bears interest at a rate equal to or greater than 10 percentum 
per annum.


Eligible FMS Advance may include FMS Advances meeting the criteria of 
Eligible FMS Advance which are made on account of FMS Loans even when 
such FMS Loans do not, in themselves, meet the criteria of Eligible FMS 
Loan.
    (h) Eligible FMS loan means any FMS Loan which:
    (1) Was outstanding on December 22, 1987;
    (2) Has principal amounts becoming due and payable after September 
30, 1989; and
    (3) Bears interest pursuant to the terms of the loan agreement 
relating thereto at a consolidated rate equal to or greater than 10 
percentum per annum.

Eligible FMS Loans may include FMS Advances which are made on account of 
FMS Loans meeting the criteria of Eligible FMS Loan even when such FMS 
Advances do not, in themselves, meet the criteria of Eligible FMS 
Advance.
    (i) Eligible private lender means either:
    (1) Any of the following entities:

[[Page 258]]

    (i) Any banking, savings, or lending institution, or any subsidiary 
or affiliate thereof, chartered or otherwise lawfully organized under 
the laws of any State, the District of Columbia, the United States or 
any territory or possession of the United States, including, but not 
limited to, any bank, trust company, industrial bank, investment banking 
company, savings association, savings and loan association, building and 
loan association, savings bank, credit union, or finance company, which 
is doing business in the United States;
    (ii) Any broker or dealer registered with the Securities and 
Exchange Commission pursuant to the Securities Exchange Act of 1934;
    (iii) Any company lawfully organized as an insurance company, and 
which is subject to supervision by the insurance commissioner or a 
similar official or agency of a State; or
    (iv) Any United States pension fund; or
    (2) Any trust or other special purpose financing entity which is 
funded initially by an entity or entities of the type described in 
paragraph (i)(1) of this section.
    (j) FFB means the Federal Financing Bank, and instrumentality and 
wholly-owned corporation of the United States.
    (k) FMS means Foreign Military Sales.
    (l) FMA advance means:
    (1) A disbursement of funds made pursuant to a loan agreement 
between the Borrower and DSAA, which loan agreement provides for making 
of an FMS Loan; or
    (2) A disbursement of funds made pursuant to a loan agreement 
between the Borrower and the FFB, which loan agreement provides for the 
making of an FMS Loan.
    (m) FMS loan means either:
    (1) A loan made directly by the Secretary of Defense pursuant to 
section 23 of AECA; or
    (2) A loan made by the FFB and guaranteed by the Secretary of 
Defense pursuant to section 24 of AECA; and ``FMS Loans'' mean the 
aggregate of such loans made to or for the account of a Borrower.
    (n) Guaranteed-amount debt derivative means any note, bond or other 
debt instrument or obligation which is collateralized or otherwise 
secured by a pledge of, or security interest in, the Private Loan Note 
or any Private Loan Portion Note or any Derivative, as the case may be, 
which has an exclusive or preferred claim to the Guaranteed Loan Amount 
or the respective Guaranteed Loan Portion Amount or the respective 
Guaranteed-Amount Equivalent, as the case may be.
    (o) Guaranteed-amount equity derivative means any participation 
share of, or undivided ownership or other equity interest in, the 
Private Loan or any Private Loan Portion or any Derivative, as the case 
may be, which has an exclusive or preferred claim to the Guaranteed Loan 
Amount or the respective Guaranteed Loan Portion Amount or the 
respective Guaranteed-Amount Equivalent, as the case may be.
    (p) Guaranteed-amount equivalent means:
    (1) With respect to any Derivative which is equal in principal 
amount to the Private Loan or any Private Loan Portion, that amount of 
payment on account of such Derivative which is equal to the Guaranteed 
Loan Amount or the respective Guaranteed Loan Portion Amount, as the 
case may be; or
    (2) With respect to any Derivatives which in the aggregate are equal 
in principal amount to the Private Loan or any Private Loan Portion, 
that amount of payment on account of such derivatives which is equal to 
the Guaranteed Loan Amount or the respective Guaranteed Loan Portion 
Amount, as the case may be.
    (q) Guaranteed loan amount means that amount of payment on account 
of the Private Loan which is guaranteed under the terms of the Guaranty.
    (r) Guaranteed loan portion amount means that amount of payment on 
account of any Private Loan Portion which is guaranteed under the terms 
of the Guaranty.
    (s) Guaranty means either a new guaranty of the United States issued 
by DSAA or an existing guaranty of the United States transferred by 
DSAA, in the form of guaranty set forth in Sec.  25.405, which guaranty 
will be

[[Page 259]]

attached to a Private Loan Note or Private Loan Portion Note.
    (t) Interest rate difference means the difference between:
    (1) The cost of funds to the Borrower for the Private Loan 
(expressed in terms of the true rate of interest applicable to the 
Private Loan) if paragraph (a) of Sec.  25.404 applies to the Private 
Loan; and
    (2) The cost of funds to the Borrower for the Private Loan 
(expressed in terms of the true rate of interest applicable to the 
Private Loan) if paragraph (a) of Sec.  25.404 does not apply to the 
Private Loan.
    (u) Non-registered obligation means a bearer obligation which does 
not comply with all of the registration requirements of the Internal 
Revenue Code.
    (v) Permitted arrears prepayment amount means the sum of all 
arrears, if any, on all FMS Loans, which arrears are outstanding on the 
Closing Date.
    (w) Permitted guaranty holder means:
    (1) An individual domiciled in the United States;
    (2) A corporation incorporated, chartered or otherwise organized in 
the United States; or
    (3) A partnership or other juridical entity doing business in the 
United States.
    (x) Permitted P&I prepayment amount means, with respect to each 
Eligible FMS Loan or Eligible FMS Advance, as the case may be, the sum 
of:
    (1) All principal amounts which become due and payable after 
September 30, 1989, on the respective Eligible FMS Loan or Eligible FMS 
Advance; and
    (2) All unpaid interest, if any, on the respective Eligible FMS Loan 
or Eligible FMS Advance accrued as of the Closing Date.
    (y) Private loan means, collectively, the loan or loans that is or 
are obtained by the Borrower from an Eligible Private Lender to prepay 
the Total Permitted Prepayment Amount, or the portion thereof which the 
Borrower has selected to prepay.
    (z) Private loan note means, collectively, the note or notes 
executed and delivered by the Borrower to evidence the Private Loan.
    (aa) Private loan portion means any portion of the Private Loan.
    (bb) Private loan portion note means any note executed and delivered 
by the Borrower to evidence a Private Loan Portion.
    (cc) Total permitted prepayment amount means the sum of:
    (1) The aggregate of the respective Permitted P&I Prepayment amount 
for all Eligible FMS Loans and all Eligible FMS Advances on account of 
FMS Loans which FMS Loans do not, in themselves, meet the criteria of 
Eligible FMS Loans; and
    (2) The Permitted Arrears Prepayment Amount.
    (dd) Unguaranteed-amount equivalent means all amounts of payment on 
account of any Derivative other than the respective Guaranteed-Amount 
Equivalent.
    (ee) Unguaranteed loan amount means all amounts of payment on 
account of the Private Loan other than the Guaranteed Amount.
    (ff) Unguaranteed loan portion amount means all amounts of payment 
on account of any Private Loan Portion other than the respective 
Guaranteed Loan Portion Amount.



Sec.  25.101  OMB control number.

    The reporting requirements in this part have been approved under the 
Office of Management and Budget control number 1505-0109.



                 Subpart B_Qualifications for Prepayment



Sec.  25.200  General rules.

    (a) To qualify for a loan prepayment at par pursuant to subsection 
(a) of the Act, a Borrower must have an Eligible FMS Loan or an Eligible 
FMS Advance.
    (b) A Borrower may prepay the Total Permitted Prepayment Amount in 
portions using more than one closing; however, all prepayments of the 
Total Permitted Prepayment Amount must have a Closing Date that is not 
later than September 30, 1991.
    (c) A Borrower may prepay all or a portion of the Total Permitted 
Prepayment Amount; however, if a Borrower selects to prepay any 
Permitted P&I Prepayment Amount of an FMS Advance, the Borrower must 
prepay the

[[Page 260]]

entire Permitted P&I Prepayment Amount of such FMS Advance.
    (d) If the payment billings of an FMS Loan have been consolidated in 
accordance with the terms of the respective loan agreement, and if any 
principal payments have been made on account of the FMS Loan, then the 
outstanding principal balances of any Eligible FMS Advances shall be 
determined in accordance with the principal of ``first disbursed, first 
repaid,'' that is, advances on account of the FMS Loan shall be deemed 
to have been repaid in the chronological order in which they were 
disbursed.



                          Subpart C_Procedures



Sec.  25.300  Application procedure.

    (a) Each Borrower that wishes to prepay at par the Total Permitted 
Prepayment Amount, or any portion thereof, must submit a written 
prepayment application. To be considered complete, a prepayment 
application must contain the following information and materials:
    (1) Part I of the prepayment application shall be the identification 
of each Eligible FMS Loan or Eligible FMS Advance, as the case may be, 
with respect to which the Borrower has selected to prepay the amount 
thereof permitted by this part to be prepaid, setting forth with respect 
to each such Eligible FMS Loan or Eligible FMS Advance:
    (i) The date on which the Eligible FMS Advance was made or the date 
on which the Eligible FMS Loan was signed;
    (ii) The original amount of the Eligible FMS Loan or Eligible FMS 
Advance;
    (iii) The principal and interest payment schedule of the Eligible 
FMS Loan or Eligible FMS Advance; and
    (iv) The maturity of the Eligible FMS Loan or Eligible FMS Advance.
    (2) Part II of the prepayment application shall be the Borrower's 
estimate of the Permitted Arrears Prepayment Amount calculated as of the 
date of the application;
    (3) Part III of the prepayment application shall be a description of 
each Private Loan, 90 percent of which the Borrower seeks to have 
guaranteed, setting forth with respect to each Private Loan:
    (i) The total amount of the Private Loan,
    (ii) The proposed principal and interest payment schedule of the 
Private Loan,
    (iii) The proposed maturity of the Private Loan, and
    (iv) The identity of each Eligible FMS Loan or Eligible FMS Advance 
with respect to which amount thereof permitted by this part to be 
prepaid is to be prepaid with the proceeds of the Private Loan;
    (4) Part IV of the prepayment application shall be all material 
transaction documents, in substantially final form, relating to the 
prepayment of the Total Permitted Prepayment Amount, or the portion 
thereof which the Borrower has selected to prepay, with the proceeds of 
the Private Loan; and
    (5) Part V of the prepayment application shall be the name, address, 
and telephone number of the Borrower's contact person with whom the FFB 
or DSAA will communicate to arrange for prepayment and closing.
    (b) Each prepayment application shall be submitted in triplicate to 
DSAA at the following address: Defense Security Assistance Agency, The 
Pentagon, Washington, DC 20301-2800, Attention: Deputy Comptroller.
    (c) A Borrower wishing to obtain preliminary, nonbinding review of a 
plan to prepay at par the Total Permitted Prepayment Amount, or any 
portion thereof, may, at the Borrower's option, prior to submitting a 
prepayment application in accordance with paragraph (a) of this section, 
submit to DSAA, at the address set forth in paragraph (b) of this 
section, a written plan of prepayment. To qualify for review, a plan of 
prepayment must include a detailed description of the proposed financing 
structure clearly addressing the terms and conditions of the proposed 
Private Loan. DSAA will review each plan of prepayment submitted by 
Borrowers and may engage in informal, non-binding discussions with each 
Borrower that submitted a plan of prepayment to assist such Borrower in 
preparing a prepayment application.

[[Page 261]]



Sec.  25.301  Approval procedure.

    (a) Distribution, Review, and Processing by DSAA. (1) Upon receipt 
of three copies of a completed prepayment application from a Borrower, 
DSAA will promptly deliver one copy of Parts I and II of the prepayment 
application to the State Department and one copy of Parts I, II, and V 
of the prepayment application to the Treasury Department.
    (2) DSAA will review each completed prepayment application to ensure 
that the Private Loan complies with the requirements of this part, 
including without limitation the requirements of Sec.  25.400. DSAA will 
also review each completed prepayment application to ensure that the 
provisions of subsection (d) of the Act (Purposes and Reports) are 
considered. DSAA will process each completed prepayment application 
within 16 days after receipt by DSAA of the respective completed 
application from a Borrower.
    (3) After DSAA has processed a completed prepayment application, 
DSAA will either:
    (i) Return the application to the Borrower; or
    (ii) Deliver to the State Department written evidence of the 
approval of the prepayment application by DSAA.
    (b) Review and Processing by the State Department. (1) The State 
Department will review Parts I and II of each prepayment application 
received by the State Department from DSAA to ensure that the provisions 
of subsection (d) of the Act (Purposes and Reports) are considered. The 
State Department will process Parts I and II of each prepayment 
application within 7 days after receipt by the State Department of 
written evidence of the approval of the prepayment application by DSAA.
    (2) After the State Department has processed Parts I and II of a 
prepayment application, the State Department will either:
    (i) Return the parts of the application to DSAA for return to the 
Borrower; or
    (ii) Deliver to the Treasury Department written evidence of the 
approvals of the prepayment application by DSAA and the State 
Department.
    (c) Processing by the Treasury Department--(1) FMS Loans held by 
DSAA. (i) The Treasury Department will process Parts I and II of each 
prepayment application regarding an Eligible FMS Loan made by DSAA or an 
Eligible FMS Advance on account of an FMS Loan made by DSAA, as the case 
may be, within 7 days after receipt by the Treasury Department of 
written evidence of the approvals of the prepayment application by DSAA 
and the State Department;
    (ii) After the Treasury Department has processed Parts I and II of a 
prepayment application, the Treasury Department will return the parts of 
the application to DSAA, and thereupon DSAA will commence the Closing 
Procedures described in Sec.  25.303(a) with respect to the application.
    (2) FMS Loans held by the FFB. (i) The Treasury Department will 
process Parts I and II of each prepayment application regarding an 
Eligible FMS Loan made by the FFB and guaranteed by DSAA or an Eligible 
FMS Advance on account of an FMS Loan made by the FFB and guaranteed by 
DSAA, as the case may be, within 7 days after receipt by the Treasury 
Department from the State Department of written evidence of the 
approvals of the prepayment application by DSAA and the State 
Department; and
    (ii) After the Treasury Department has processed Parts I and II of a 
prepayment application, the Treasury Department will commence the 
Closing Procedures described in Sec.  25.303(b) with respect to the 
application.



Sec.  25.302  Application withdrawal; effect of approval.

    A Borrower that submits a prepayment application may withdraw the 
prepayment application at any time prior to its approval. Even after a 
Borrower's prepayment application has been approved, the Borrower is not 
obligated to prepay its Eligible FMS Loans or Eligible FMS Advances.



Sec.  25.303  Closing procedure.

    (a) FMS loans held by DSAA. (1) After the Treasury has processed 
Parts I and II of a prepayment application regarding an Eligible FMS 
Loan made by DSAA or an Eligible FMS Advance on account of an FMS Loan 
made by DSAA, as the case may be, DSAA will

[[Page 262]]

communicate with the Borrower's contact person identified in Part V of 
the prepayment application to establish a Closing Date mutually 
agreeable to the Borrower and DSAA. DSAA will inform the Borrower of the 
final amount of the Total Permitted Prepayment Amount, or the portion 
thereof which the Borrower has selected to prepay, as of the Closing 
Date established. The determination by DSAA of the final amount of the 
Total Permitted Prepayment Amount, or the portion thereof which the 
Borrower has selected to prepay, shall be conclusive.
    (2) On the Closing Date, the Guaranty will be attached to the 
Private Loan Note or the Private Loan Portion Notes, as the case may be, 
the Private Loan shall be funded, and the Total Permitted Prepayment 
Amount, or the portion thereof which the Borrower has selected to 
prepay, will be prepaid.
    (3) The attachment of the Guaranty to the Private Loan Note or the 
Private Loan Portion Notes, as the case may be, will take place at such 
location as may be designated by the mutual agreement of the Borrower 
and DSAA.
    (4) Prior to 1:00 p.m. prevailing local time in New York, New York, 
on the Closing Date, immediately available funds in amounts sufficient 
to prepay the Total Permitted Prepayment Amount, or the portion thereof 
which the Borrower has selected to prepay, shall be transferred by 
electronic funds transfer to DSAA at the Treasury Department account at 
the Federal Reserve Bank of New York. The funds transfer message must 
include the following credit information:

United States Treasury, New York, New York, 021030004, TREAS NYC/ 
(5037).
For credit to the Defense Security Assistance Agency, The Pentagon, 
Washington, DC 20301-2800.


This information must be exactly in this form (including spacing between 
words and numbers) to insure timely receipt by the DSAA. Checks, drafts, 
and other orders for payment will not be accepted.
    (b) FMS Loans held by the FFB. (1) After the Treasury Department has 
processed Parts I and II of a prepayment application regarding an 
Eligible FMS Loan made by the FFB and guaranteed by DSAA or an Eligible 
FMS Advance on account of an FMS Loan made by the FFB and guaranteed by 
DSAA, as the case may be, the FFB will communicate with the Borrower's 
contact person identified in Part V of the prepayment application to 
establish a Closing Date mutually agreeable to the Borrower, the FFB, 
and DSAA. The FFB will inform the Borrower of the final amount of the 
Total Permitted Prepayment Amount, or the portion thereof which the 
Borrower has selected to prepay, as of the Closing Date established. The 
determination by the FFB of the final amount of the Total Permitted 
Prepayment Amount, or the portion thereof which the Borrower has 
selected to prepay, shall be conclusive.
    (2) On the Closing Date, the Guaranty will be attached to the 
Private Loan Note or the Private Loan Portion Notes, as the case may be, 
the Private Loan will be funded, and the Total Permitted Prepayment 
Amount, or the portion thereof which the Borrower has selected to 
prepay, will be prepaid.
    (3) The attachment of the Guaranty to the Private Loan Note or the 
Private Loan Portion Notes, as the case may be, will take place at such 
location as may be designated by the mutual agreement of the Borrower 
and DSAA.
    (4) Prior to 1:00 p.m. prevailing local time in New York, New York, 
on the Closing Date, immediately available funds in amounts sufficient 
to prepay at par the Permitted Prepayment Amount, or the portion thereof 
which the Borrower has selected to prepay, shall be transferred by 
electronic funds transfer to the Treasury Department account at the 
Federal Reserve Bank of New York. The funds transfer message must 
include the following credit information:

United States Treasury, New York, New York, 021030004, TREAS NYC/ 
(20180006).
For credit to the Federal Financing Bank, Room 143, Liberty Center 
Building, 401 14th Street SW., Washington, DC 20227.


This information must be exactly in this form (including spacing between 
words and numbers) to insure timely receipt by the FFB. Checks, drafts, 
and others for payment will not be accepted.

[[Page 263]]

    (c) Changes in the closing date. If a Borrower does not prepay the 
Total Permitted Prepayment Amount or the portion thereof which the 
Borrower has selected to prepay, on the mutually agreed upon Closing 
Date, the Borrower may prepay the Total Permitted Prepayment Amount, or 
the portion thereof which the Borrower has selected to prepay, on a new 
Closing Date, provided that the new Closing Date is mutually agreeable 
to all interested parties, and provided, further, that the Borrower 
prepays such amount in accordance with the approved prepayment 
application, adjusted for changes in accrued interest.



                     Subpart D_Form of Private Loan



Sec.  25.400  Loan provisions.

    (a) Subject to the provisions of paragraph (b) of this section, the 
principal and interest payment schedule and maturity of the Private Loan 
must be the same as the payment schedules and maturities of the Eligible 
FMS Loans or Eligible FMS Advances, as the case may be, which the 
Borrower has selected to prepay with the proceeds of the Private Loan.
    (b) Notwithstanding the preceding paragraph, an Eligible Private 
Lender that proposes to make a Private Loan, the proceeds of which will 
be used to prepay Eligible FMS Loans or Eligible FMS Advances, as the 
case may be, having differing payment structures and maturities, may:
    (1) Consolidate the differing payment structures of the Eligible FMS 
Loans or the Eligible FMS Advances, as the case may be, into a single 
payment structure which complies with the following criteria:
    (i) The Private Loan shall have one set of semi-annual payment 
dates;
    (ii) Interest on and principal of the Private Loan shall be payable 
semi-annually; and
    (iii) The amount of principal to be paid each year on account of the 
Private Loan shall be equal (rounded to the nearest $1,000.00 if 
desired, except for the final payment) to the aggregate amount of 
principal that is scheduled to be paid in such year on account of the 
respective Eligible FMS Loans or Eligible FMS Advances; or
    (2) Consolidate the differing payment structures and maturities of 
the Eligible FMS Loans or the Eligible FMS Advances, as the case may be, 
into a single payment structure and maturity complying with the 
following criteria:
    (i) The final maturity date of the Private Loan shall be the 
approximate weighted average of the final maturity dates of the Eligible 
FMS Loans or the Eligible FMS Advances with respect to which the 
Borrower has selected to prepay amounts thereof permitted by this part 
to be prepaid;
    (ii) The initial principal payment date of the Private Loan shall 
occur no later than the earliest scheduled principal payment date of the 
Eligible FMS Loans or the Eligible FMS Advances with respect to which 
the Borrower has selected to prepay amounts thereof permitted by this 
part to be prepaid;
    (iii) The Private Loan shall have one set of semi-annual payment 
dates;
    (iv) Interest on the Private Loan shall be payable semi-annually; 
and
    (v) The principal of the Private Loan shall be payable in equal 
installments (rounded to the nearest $1,000.00 if desired, except for 
the final payment) and shall be payable either semi-annually or 
annually.



Sec.  25.401  Fees.

    The interest rate on the Private Loan may include compensation for 
costs at prevailing market rates with the agreement of the Borrower and 
the Eligible Private Lender selected by the Borrower.



Sec.  25.402  Transferability.

    Each Private Loan Note, with the Guaranty attached, shall be fully 
and freely transferable to any Permitted Guaranty Holder.



Sec.  25.403  Registration.

    The Guaranty shall cease to be effective with respect to the Private 
Loan or any Private Loan Portion or any Derivative to the extent that 
the Private Loan or the respective Private Loan Portion or the 
respective Derivative, as the case may be, is used to provide 
significant support for a Non-Registered Obligation.

[[Page 264]]



Sec.  25.404  Non-separability.

    (a) The Guaranty shall cease to be effective with respect to any 
Guaranteed Loan Amount or any Guaranteed Loan Portion Amount or any 
Guaranteed-Amount Equivalent to the extent that:
    (1) The Guaranteed Amount or the respective Guaranteed Loan Portion 
Amount or the respective Guaranteed-Amount Equivalent, as the case may 
be, is separated at any time from the Unguaranteed Loan Amount or the 
respective Unguaranteed Loan Portion Amount or the respective 
Unguaranteed-Amount Equivalent, as the case may be, in any way, directly 
or through the issuance of any Guaranteed-Amount Equity Derivative or 
any Guaranteed-Amount Debt Derivative; or
    (2) Any holder of the Private Loan Note or any Private Loan Portion 
Note or any Derivative, as the case may be, having a claim to payments 
on the Private Loan receives more than 90 percent of any payment due to 
such holder from payments made under the Guaranty at any time during the 
term of the Private Loan.
    (b) Notwithstanding the preceding paragraph, if any Guaranteed-
Amount Debt Derivative is issued, the Guaranty shall not cease to be 
effective with respect to any Guaranteed Loan Amount or any Guaranteed 
Loan Portion Amount or any Guaranteed-Amount Equivalent, as the case may 
be, if both of the circumstances described in paragraphs (b)(1) and 
(b)(2) of this section.
    (1) A Borrower shall have delivered to the Secretary of the treasury 
evidence, in form and substance satisfactory to the Secretary of the 
Treasury, that the Interest Rate Difference will be substantial.
    (i) To be considered, the evidence must meet the following 
requirements:
    (A) The Borrower must show that the Interest Rate Difference is 
directly attributable to paragraph (a) of this section being applied to 
the Private Loan, that is, that the Interest Rate Difference will exist 
even when all other financing terms of the Private Loan, including any 
collateralization of the Unguaranteed Loan Amount or the respective 
Unguaranteed Loan Portion Amount or the respective Unguaranteed-Amount 
Equivalent, as the case may be, are identical;
    (B) When calculating the Interest Rate Difference, the Borrower must 
assume that the Unguaranteed Loan Amount or the respective Unguaranteed 
Loan Portion Amount or the respective Unguaranteed-Amount Equivalent, as 
the case may be, will be collateralized by securities backed by the full 
faith and credit of the United States, unless the Borrower is legally 
prohibited from so collateralizing the Unguaranteed Loan Amount or the 
respective Unguaranteed Loan Portion Amount or the respective 
Unguaranteed-Amount Equivalent, as the case may be, or the Borrower has 
demonstrated to the satisfaction of the Secretary of the Treasury that 
the Borrower is unable to so collateralize the Unguaranteed Loan Amount 
or the respective Unguaranteed Loan Portion Amount or the respective 
Unguaranteed-Amount Equivalent;
    (C) If the Borrower is legally prohibited from collateralizing the 
Unguaranteed Loan Amount or the respective Loan Guaranteed Portion 
Amount or the respective Unguaranteed-Amount Equivalent, as the case may 
be, with securities backed by the full faith and credit of the United 
States or has demonstrated to the satisfaction of the Secretary of the 
Treasury that the Borrower is unable to so collateralize the 
Unguaranteed Loan Amount or the respective Unguaranteed Loan Portion 
Amount or the respective Unguaranteed-Amount Equivalent, as the case may 
be, then the Borrower may calculate the Interest Rate Difference using 
whatever collateralization assumptions the Borrower elects;
    (D) If the Borrower delivers evidence to the Secretary of the 
Treasury respecting the Interest Rate Difference, which evidence assumes 
either that the Unguaranteed Loan Amount or the respective Unguaranteed 
Loan Portion Amount or the respective Unguaranteed-Amount Equivalent, as 
the case may be, will not be collateralized at all or that the 
Unguaranteed Loan Amount or the respective Unguaranteed Loan Portion 
Amount or the respective Unguaranteed-Amount Equivalent, as

[[Page 265]]

the case may be, will be collateralized, but not by securities backed by 
the full faith and credit of the United States, then the Borrower must 
also deliver to the Secretary of the Treasury the written agreement of 
the Borrower, which agreement shall be in form and substance 
satisfactory to the Secretary of the Treasury, that the Borrower will 
not collateralize the Unguaranteed Loan Amount or the respective 
Unguaranteed Loan Portion Amount or the respective Unguaranteed-Amount 
Equivalent, as the case may be, at any time during the term of the 
Private Loan in any way different from the assumptions used in 
calculating the Interest Rate Difference; and
    (E) The Borrower must deliver to the Secretary of the Treasury the 
evidence pertaining to the Interest Rate Difference at the time that the 
Borrower submits to DSAA its plan for prepayment, if any, if no plan of 
prepayment is submitted, then no later than 10 days prior to the time 
that the Borrower submits to DSAA its prepayment application.
    (ii) If the Secretary of the Treasury determines that the evidence 
submitted by the Borrower pertaining to the Interest Rate Difference is 
satisfactory in form and in substance, and that the Interest Rate 
Difference is substantial, a modified version of the Guaranty (deleting 
therefrom the provision that the Guaranty shall cease to be effective if 
any Guaranteed-Amount Debt Derivative is issued) will be attached to the 
Private Loan Note or the Private Loan Portion Notes, as the case may be.
    (2) The Secretary of the Treasury shall have determined, in the sole 
discretion of the Secretary of the Treasury, that the respective 
Borrower's loan prepayment at par pursuant to subsection (a) of the Act 
through the issuance of any Guaranteed-Amount Debt Derivative is 
necessary to achieve the international economic policy interests of the 
United States.



Sec.  25.405  Form of guaranty.

    (a) The Guaranty that will be attached to the Private Loan Note on 
the Closing Date shall be in the following form (except that the 
bracketed words shall be deleted if the conditions specified in Sec.  
25.404(b) shall have occurred):

    For Value Received, the Defense Security Assistance Agency of the 
Department of Defense (``DSAA''), hereby guarantees to (Name of Lender) 
(``Lender''), incorporated under the laws of (U.S. State or other U.S. 
jurisdiction) or if not so incorporated or organized, then the principal 
place of doing business is (U.S. location, address, and zip code), under 
the authority of Section 24 of the Arms Export Control Act, as amended 
(``Act''), the due and punctual payment of ninety percent (90%) of 
amounts due: (1) on the promissory note (``Note'') in the principal 
amount of up to $___ dated ___ issued to the Lender by the Government of 
(Name of Borrower) (``Borrower'') pursuant to the Loan Agreement between 
the Lender and the Borrower dated the __th day of ___ (``Agreement''); 
and (2) the Lender from the Borrower pursuant to the Agreement.
    This Guaranty is a guaranty of payment covering all political and 
credit risks of nonpayment, including any nonpayment arising out of any 
claim which the Borrower may now or hereafter have against any person, 
corporation, or other entity (including without limitation, the United 
States, the Lender, and any supplier of defense items) in connection 
with any transaction, for any reason whatsoever. This Guaranty shall 
inure to the benefit of and shall be enforceable by the Lender and any 
Permitted Guaranty Holder (as hereinafter defined). This Guaranty shall 
not be impaired by any law, regulation or decree of the Borrower now or 
hereafter in effect which might in any manner change any of the terms of 
the Note or Agreement. The obligation of DSAA hereunder shall be binding 
irrespective of the irregularity, invalidity or unenforceability under 
any laws, regulations or decrees of the Borrower of the Note, the 
Agreement or other instruments related thereto.
    DSAA hereby waives diligence, demand, protest, presentment and any 
requirement that the Lender exhaust any right or power to take any 
action against the Borrower and any notice of any kind whatsoever other 
than the demand for payment required to be given to DSAA hereunder in 
the event of default on a payment due under the Note.
    In the event of failure of the Borrower to make payment, when and as 
due, of any installment of principal or interest under the Note, the 
DSAA shall make payment immediately to the Lender upon demand to the 
DSAA after the Borrower's failure to pay has continued for 10 calendar 
days. The amount payable under this Guaranty shall be ninety percent 
(90%) of the amount of the overdue installment of principal and 
interest, plus ninety percent (90%) of any and all late charges and 
interest thereon as provided in the Agreement. Upon payment by DSAA to

[[Page 266]]

the Lender, the Lender will assign to DSAA, without recourse or 
warranty, ninety percent (90%) of all of its rights in the Note and the 
Agreement with respect to such payment.
    In the event of a default under the Agreement or the Note by the 
Borrower and so long as this Guaranty is in effect and the DSAA is not 
in default hereunder:
    (i) The Lender or other Permitted Guaranty Holder shall not 
accelerate or reschedule payment of the principal or interest on the 
Note or any other note of the Borrower guaranteed by DSAA except with 
the written approval of DSAA; and
    (ii) The Lender or other Permitted Guaranty Holder shall, if so 
directed by DSAA, invoke the default provisions of the Agreement.
    Subject to the limitations set forth below, the Lender's rights 
under this Guaranty may be assigned to any ``Permitted Guaranty 
Holder,'' that is: (1) An individual domiciled in the United States; (2) 
a corporation incorporated, chartered or otherwise organized in the 
United States; or (3) a partnership or other juridical entity doing 
business in the United States. In the event of such assignment DSAA 
shall be promptly notified. The Lender will not agree to any material 
amendment of the Agreement or Note or consent to any material deviation 
from the provisions thereof without the prior written consent of DSAA.
    Permitted Guaranty Holders shall be severally bound by, and shall be 
severally entitled to, the rights and obligations of the Lender under 
the Note, the Agreement, and this Guaranty. The Lender shall maintain a 
current, accurate written record of the names, addresses, amount of 
financial interest in the Note and Agreement, and date of acquisition of 
such interest of each Permitted Guaranty Holder and shall furnish DSAA a 
copy of such record on its demand without charge. No assignment by the 
Lender or by any Permitted Guaranty Holder shall be effective for 
purposes of this Guaranty unless and until so recorded by the Lender.
    The total amount of this Guaranty shall not at any time exceed 
ninety percent (90%) of the outstanding principal, unpaid accrued 
interest and arrearages, if any, under the Agreement and the Note, 
including any portion of the Note, or any derivative of the Note or any 
portion of the Note.
    This Guaranty shall cease to be effective with respect to the 
guaranteed amount of the total amount of the Note (the ``Guaranteed Loan 
Amount'') or with respect to the guaranteed amount of any portion of the 
Note (the ``Guaranteed Loan Portion Amount'') [or with respect to the 
amount of any derivative or derivatives of the Note or any portion of 
the Note equal, or in the aggregate equal, in principal amount to the 
total amount of the Note or such portion of the Note, as the case may 
be, which amount of such derivative or derivatives is equal to the 
respective Guaranteed Loan Amount or Guaranteed Loan Portion Amount, as 
the case may be (the ``Guaranteed-Amount Equivalent'')] to the extent 
that (1) the Guaranteed Loan Amount or the respective Guaranteed Loan 
Portion Amount [or the respective Guaranteed-Amount Equivalent], as the 
case may be, is at any time separated from the unguaranteed amount of 
the total amount of the Note or the unguaranteed amount of the 
respective portion of the Note [or the amount of such derivative or 
derivatives of the Note which is not the amount which is equal to the 
Guaranteed Loan Amount or Guaranteed Loan Portion Amount, as the case 
may be], in any way, (a) directly, or (b) through the issuance of 
participation shares of, or undivided ownership or other equity 
interests in, the Note, or any portion of the Note, or any derivative of 
the Note or any portion of the Note, which have an exclusive or 
preferred claim to the Guaranteed Loan Amount or the respective 
Guaranteed Loan Portion Amount [or the respective Guaranteed-Amount 
Equivalent], as the case may be [or (c) through the issuance of notes, 
bonds or other debt instruments or obligations which are collateralized 
or otherwise secured by a pledge of, or security interest in, the Note, 
or any portion of the Note or any derivative of the Note or any portion 
of the Note, which has an exclusive or preferred claim to the Guaranteed 
Loan Amount or the respective Guaranteed Loan Portion Amount or the 
respective Guaranteed-Amount Equivalent, as the case may be]; or (2) any 
holder of the Note, or any portion of the Note, or any derivative of the 
Note or any portion of the Note, as the case may be, having claim to 
payment made on the Note, receives more than ninety percent of any 
payment due to such holder from payments made under this Guaranty at any 
time during the term of the Note or the Agreement.
    This Guaranty is fully and freely transferable to any Permitted 
Guaranty Holder, except that it shall cease to be effective with respect 
to the Agreement or the Note, or any portion of the Note, or any 
derivative of the Note or any portion of the Note, to the extent that 
the Agreement or the Note, or the respective portion of the Note, or the 
respective derivative of the Note or any portion of the Note, as the 
case may be, is used to provide significant support for any non-
registered obligation.
    The full faith and credit of the United States is pledged to the 
performance of this Guaranty. No claim which the United States may now 
or hereafter have against the Lender or any Permitted Guaranty Holder 
for any reason whatsoever shall affect in any way the right of the 
Lender or any Permitted

[[Page 267]]

Guaranty Holder to receive full and prompt payment of any amount 
otherwise due under this Guaranty. The United States represents and 
warrants that (a) it has full power, authority and legal right to 
execute, deliver and perform this Guaranty, (b) this Guaranty has been 
executed in accordance with and pursuant to the terms and provisions of 
section 24 of the Act, the provisions of the Foreign Operations, Export 
Financing, and Related Programs Appropriations Act, 1988, under the 
hearing ``Foreign Military Sales Debt Reform,'' and title 31, part 25, 
of the Code of Federal Regulations, (c) this Guaranty has been duly 
executed and delivered by a duly authorized representative of DSAA, and 
(d) this Guaranty constitutes the valid and legally binding obligations 
of the United States, enforceable in accordance with the terms hereof.
    Any notice, demand, or other communication hereunder shall be deemed 
to have been given if in writing and actually delivered to the 
Comptroller, DSAA, the Pentagon, Washington, DC 20301-2800, or the 
successor, or such other place as may be designated in writing by the 
Comptroller, DSAA or the successor thereof.
    By acceptance of the Note, the Lender agrees to the terms and 
conditions of this Guaranty.

Dated:__________________________________________________________________

By:_____________________________________________________________________
    Director, DSAA.

    (b) The obligations of DSAA under the Guaranty are expressly limited 
to those obligations contained in the form of Guaranty set forth in 
paragraph (a) of this section. Any provisions of any agreement relating 
to the Private Loan purporting to create obligations on the part of DSAA 
which are inconsistent with the terms of the Guaranty or any other 
provision of this part be unenforceable against DSAA.



Sec.  25.406  Savings clause.

    Nothing in this rule is intended to authorize any person or entity 
to engage in any activity not otherwise authorized or permitted for such 
person or entity under any applicable laws of the United States, any 
territory or possession of the United States, any State, or the District 
of Columbia.



PART 26_ENVIRONMENTAL REVIEW OF ACTIONS BY MULTILATERAL DEVELOPMENT BANDS
(MDBs)--Table of Contents



Sec.
26.1 Purpose.
26.2 Availability of project listings.
26.3 Availability of Environmental Impact Assessment Summaries (EIA 
          Summaries) and Environmental Impact Assessments (EIAs).
26.4 Comments on MDB projects.
26.5 Upgrades and additional environmental information.

    Authority: 22 U.S.C. 262m-7, 31 U.S.C. 321.

    Source: 57 FR 24545, June 10, 1992, unless otherwise noted.



Sec.  26.1  Purpose.

    This part prescribes procedures for the environmental review of, and 
comment by Federal agencies and the public on, proposed projects of 
multilateral development banks (MDBs).



Sec.  26.2  Availability of project listings.

    (a) The Office of Multilateral Development Banks of the Department 
of the Treasury (hereinafter ``MDB Office'') will ensure that the 
Environmental Protection Agency (EPA), the Council on Environmental 
Quality (CEQ), the Department of State, the Agency for International 
Development (AID), the National Oceanic and Atmospheric Administration 
(NOAA), and the Bank Information Center (BIC) (which is a private, 
nongovernmental organization located in Washington, DC), receive copies 
from each multilateral development bank (MDB) of project listings 
describing future MDB projects and assigning environmental categories 
based on the environmental impact of each project. If an MDB has not 
provided a project listing to one of these entities, these entities may 
obtain the project listing by contacting the MDB Office, 1500 
Pennsylvania Avenue NW., Washington, DC 20220, (202) 622-0765.
    (b)(1) Members of the public may obtain copies of project listings 
from the BIC, 2025 Eye Street NW., suite 522, Washington, DC 20006 
((202) 466-8191, not a toll-free call).
    (2) If a copy is not available from the BIC, members of the public 
may arrange to review and/or copy a project listing by contacting the 
MDB Office which will make a copy available at the Department of the 
Treasury Library, 1500 Pennsylvania Avenue NW., Washington, DC ((202) 
622-0990, not a toll-free call). Members of the public

[[Page 268]]

are advised that they must make an appointment with the Treasury Library 
before they visit and that a charge (currently 15 cents per page) is 
imposed for the use of the library photocopier.



Sec.  26.3  Availability of Environmental Impact Assessment Summaries
(EIA Summaries) and Environmental Impact Assessments (EIAs).

    (a) EIA summaries. (1) The MDB Office will provide for the 
distribution of EIA Summaries to the entities identified in section 
26.2(a).
    (2) (i) Members of the public may obtain copies of EIA Summaries 
from the BIC, 2025 Eye Street, NW., suite 522, Washington, DC 20006 
((202) 466-8191, not a toll-free call).
    (ii) If a copy of an EIA Summary is not available from the BIC, 
members of the public may arrange to review and/or copy an EIA Summary 
by contacting the MDB Office at (202) 622-0765 (not a toll-free call), 
which will make a copy available at the Department of the Treasury 
Library, 1500 Pennsylvania Avenue NW., Washingon, DC. Members of the 
public are advised that they must make an appointment with the Treasury 
Library (202) 622-0990) before they visit, and that a charge (currently 
15 cents per page) is imposed for the use of the library photocopier. To 
the extent possible, EIA Summaries will be available for review and 
copying at least 120 days before scheduled consideration of a project by 
the MDB Executive Directors.
    (b) EIAs--(1) The African Development Bank, the European Bank for 
Reconstruction and Development, and the Asian Development Bank. 
Arrangements to review an EIA may be made by contacting the MDB Office 
((202) 622-0765 (not a toll-free call)), which will obtain a copy of the 
EIA through the Office of the United States Executive Director of the 
appropriate MDB and make it available for review and copying in the 
Department of the Treasury Library. Members of the public are advised 
that they must make an appointment with the Treasury Library, ((202) 
622-0900 (not a toll-free call), before they visit, and that a charge 
(currently 15 cents per page) is imposed for the use of the library 
photocopier.
    (2) The International Bank for Reconstruction and Development, the 
International Development Association, and the Inter-American 
Development Bank. (i) Members of the public may review EIAs at the 
public reading room of the concerned MDB.
    (ii) If a particular MDB does not have a public reading room, 
members of the public may arrange to review and/or copy an EIA by 
contacting the MDB Office ((202) 622-0765 (not a toll-free call)), which 
will obtain a copy through the Office of the United States Executive 
Director of the concerned MDB and make it available in the Department of 
the Treasury Library, 1500 Pennsylvania Avenue NW., Washington, DC. 
Members of the public are advised that they must make an appointment 
with the Treasury Library ((202) 622-0990 not a toll-free call) before 
they visit, and that a charge (currently 15 cents per page) is imposed 
for the use of the library photocopier.



Sec.  26.4  Comments on MDB projects.

    (a) Public comments--(1) Written comments (i) A member of the public 
wishing to provide written comments on a MDB project must provide 2 
copies of the comments to the Office of Multilateral Development Banks, 
U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW., room 
5400, Washington, DC 20220. Written comments should be submitted not 
later than two weeks after the member of the public has access to the 
particular document on which it wishes to offer comments--either the 
project listing, the EIA Summary, or the EIA for a particular project. 
Written public comments will be provided by the MDB Office to the U.S. 
Government agencies participating in meetings of the Working Group for 
Multilateral Assistance (WGMA), which meetings are described in Sec.  
26.4(c). The WGMA is an intergovernmental subcommittee of the 
Development Coordination Committee whose functions are set forth in the 
Presidential announcement of May 19, 1978, Vol. 14, No. 20, p. 932 of 
the Weekly Compilation of Presidential Documents. The WGMA meets to 
discuss the U.S. position on upcoming MDB projects.

[[Page 269]]

    (ii) All written comments will be available for inspection and 
copying in their entirety in the Department of the Treasury Library, 
1500 Pennsylvania Avenue NW., Washington, DC ((202) 622-0990). Members 
of the public are advised that they must make an appointment with the 
Treasury Library before they visit, and that a charge (currently 15 
cents per page) is imposed for the use of the library photocopier.
    (2) Oral comments. Oral comments from a member of the public may be 
made in periodic meetings convened by the BIC. Information concerning 
these meetings may be obtained by contacting the BIC or the MDB Office. 
The MDB Office will summarize and present such comments in the WGMA 
meetings described in Sec.  26.4(c).
    (b) U.S. agency comments. Comments from U.S. agencies shall be 
provided through the WGMA.
    (c) Consideration of comments. The WGMA will consider all comments 
made by the public and U.S. agencies. The WGMA may review a project up 
to three times. The first review will consider whether the project has 
been assigned the appropriate environmental category by the MDB. This 
review will take place as far in advance as possible of Board 
consideration of the project. The second review will consider the EIA 
Summary or the EIA (or information discussed in Sec.  26.5(b)(1)), and 
comments received from the public on such documentation. The third WGMA 
review, which will take place shortly before Board consideration of the 
project, will consider the position of the U.S. Government on the 
project.



Sec.  26.5  Upgrades and additional environmental information.

    (a) Environmental category upgrades. If the WGMA and the Department 
of the Treasury determine that a project would have a significant impact 
on the human environment, but that the level of environmental analysis 
planned by the MDB is insufficient, the Department of the Treasury will 
instruct the United States Executive Director of the concerned MDB to 
request that the MDB upgrade the project to an environmental category 
requiring additional environmental analysis. Members of the public may 
call the MDB Office to inquire about upgrade requests for specific 
projects.
    (b) Additional environmental information. (1) If the WGMA and the 
Department of the Treasury determine on the basis of the first WGMA 
review that:
    (i) A MDB project would have a significant impact on the human 
environment, and
    (ii) The MDB appears to have made an appropriate decision that such 
project merits environmental analysis, but less than a full-fledged 
environmental impact assessment as defined by that MDB's own procedures, 
the Department of the Treasury will obtain, through the United States 
Executive Director of the concerned MDB, such environmental information 
from the MDB (e.g., environmental chapters from project feasibility 
studies or environmental data sheets) which contains this environmental 
analysis. The MDB Office will provide this environmental information to 
the entities described in Sec.  26.2(a).
    (2) If such environmental information is insufficient to provide an 
adequate basis for analyzing the environmental impact of the proposed 
project and alternatives to the proposed project, the Department of the 
Treasury will instruct the United States Executive Director of the 
concerned MDB not to vote in favor of the project.



PART 27_CIVIL PENALTY ASSESSMENT FOR MISUSE OF DEPARTMENT OF 
THE TREASURY NAMES, SYMBOLS, ETC.--Table of Contents



Sec.
27.1 Purpose.
27.2 Definitions.
27.3 Assessment of civil penalties.
27.4 Factors to be considered.
27.5 Initial Notice of Assessment.
27.6 Written response.
27.7 Final Notice of Assessment.
27.8 Judicial review.

    Authority: 31 U.S.C. 321, 333.

    Source: 62 FR 42213, Aug. 6, 1997, unless otherwise noted.



Sec.  27.1  Purpose.

    (a) The regulations in this part implement the provisions of 31 
U.S.C. 333(c), which authorizes the Secretary

[[Page 270]]

of the Treasury to assess a civil penalty against any person who has 
misused the words, titles, abbreviations, initials, symbols, emblems, 
seals, or badges of the Department of the Treasury or any subdivision 
thereof in violation of 31 U.S.C. 333(a), in accordance with that 
section and this part.
    (b) The regulations in this part do not apply to the extent that the 
Secretary or his/her designee has specifically authorized the person to 
manufacture, produce, sell, possess, or use the words, titles, 
abbreviations, initials, symbols, emblems, seals, or badges by written 
contract, agreement, or letter.



Sec.  27.2  Definitions.

    (a) The term ``assessing official'' means:
    (1) The head of a bureau or other subdivision of the Department of 
the Treasury who has been delegated the authority to assess civil 
penalties under 31 U.S.C. 333(c); or
    (2) An officer or employee of a bureau or subdivision at the grade 
of GS-15 or above to whom such authority has been redelegated by the 
head of such bureau or subdivision.
    (b) The term ``broadcast'' or ``telecast'' mean widespread 
dissemination by electronic transmission or method, whether audio and/or 
visual.
    (c) The term ``civil penalty'' means:
    (1) A civil monetary penalty; and
    (2) Any other civil or equitable remedy deemed necessary to rectify 
the potential for a continued misuse or harm from an activity found to 
have been in violation of 31 U.S.C. 333 or this part.
    (d) The term ``date of offense'' means the later of--
    (1) The date that the misuse occurred;
    (2) The date that the misuse had the effect of conveying the false 
impression that the activity was associated with or approved, endorsed, 
sponsored or authorized by the Department or any of its subdivisions or 
officers or employees; or
    (3) If the violation is a continuing one, the date on which the 
misuse of the words, titles, abbreviations, initials, symbols, emblems, 
seals, or badges protected by this part last occurred.
    (e) The term ``days'' means calendar days, unless otherwise stated.
    (f) The term ``person'' means an individual, partnership, 
association, corporation, company, business, firm, manufacturer, or any 
other organization or institution.



Sec.  27.3  Assessment of civil penalties.

    (a) General rule. An assessing official may impose a civil penalty 
on any person--
    (1) Who uses in connection with, or as a part of, any advertisement, 
solicitation, business activity, or product, whether alone or with other 
words, letters, symbols, or emblems;
    (i) The words ``Department of the Treasury,'' ``Internal Revenue 
Service,'' ``Bureau of the Fiscal Service,'' ``Bureau of Engraving and 
Printing,'' ``Comptroller of the Currency,'' ``Financial Crimes 
Enforcement Network,'' ``United States Mint,'' ``Alcohol and Tobacco Tax 
and Trade Bureau,'' or the name of any other service, bureau, office, or 
subdivision of the Department of the Treasury;
    (ii) The titles ``Secretary of the Treasury,'' ``Treasurer of the 
United States,'' ``Commissioner of Internal Revenue,'' ``Commissioner of 
the Bureau of the Fiscal Service,'' ``Director of the Bureau of 
Engraving and Printing,'' ``Comptroller of the Currency,'' ``Director of 
the Financial Crimes Enforcement Network,'' ``Director of the United 
States Mint,'' ``Administrator of the Alcohol and Tobacco Tax and Trade 
Bureau,'' or the title of any other officer or employee of the 
Department of the Treasury or subdivision thereof;
    (iii) The abbreviations or initials of any entity or title referred 
to in paragraph (a)(1)(i) or (ii) of this section, including but not 
limited to ``IRS,'' ``BFS,'' ``TTB,'' and ``FINCEN'' or ``FinCEN'';
    (iv) The words ``United States Savings Bond,'' including any 
variation thereof, or the name of any other security, obligation, or 
financial instrument issued by the Department of the Treasury or any 
subdivision thereof;
    (v) Any symbol, emblem, seal, or badge of an entity referred to in 
paragraph (a)(1)(i) of this section (including the design of any 
envelope, stationery,

[[Page 271]]

or identification card used by such an entity); or
    (vi) Any colorable imitation of any such words, titles, 
abbreviations, initials, symbol, emblem, seal, or badge; and
    (2) Where such use is in a manner that could reasonably be 
interpreted or construed as conveying the false impression that such 
advertisement, solicitation, business activity, or product is in any 
manner approved, endorsed, sponsored, or authorized by, or associated 
with the Department of the Treasury or any entity referred to in 
paragraph (a)(1)(i) of this section, or any officer, or employee 
thereof.
    (b) Disclaimers. Any determination of whether a person has violated 
the provisions of paragraph (a) of this section shall be made without 
regard to any use of a disclaimer of affiliation with the United States 
Government or any particular agency or instrumentality thereof.
    (c) Civil penalty. An assessing official may impose a civil penalty 
on any person who violates the provisions of paragraph (a) of this 
section. The amount of a civil monetary penalty shall not exceed $8,212 
for each and every use of any material in violation of paragraph (a), 
except that such penalty shall not exceed $41,056 for each and every use 
if such use is in a broadcast or telecast.
    (d) Time limitations. (1) Civil penalties imposed under this part 
must be assessed before the end of the three year period beginning on 
the date of offense charged.
    (2) An assessing official may commence a civil action to recover or 
enforce any civil penalty imposed in a Final Notice of Assessment issued 
pursuant to Sec.  27.7 at any time before the end of the two year period 
beginning on the date of the Final Notice of Assessment. If judicial 
review of the Final Notice of Assessment is sought, the two year period 
begins to run from the date that a final and unappealable court order is 
issued.
    (e) Criminal proceeding. No civil penalty may be imposed under this 
part with respect to any violation of paragraph (a) of this section 
after a criminal proceeding on the same violation has been commenced by 
indictment or information under 31 U.S.C. 333(d).

[62 FR 42213, Aug. 6, 1997, as amended at 84 FR 3106, Feb. 11, 2019; 84 
FR 15956, Apr. 17, 2019; 85 FR 10064, Feb. 21, 2020; 86 FR 12539, Mar. 
4, 2021]



Sec.  27.4  Factors to be considered.

    The assessing official will consider relevant factors when 
determining whether to assess or impose a civil penalty under this part, 
and the amount of a civil monetary penalty. Those factors may include, 
but are not limited to, the following:
    (a) The scope of the misuse;
    (b) The purpose and/or nature of the misuse;
    (c) The extent of the harm caused by the misuse;
    (d) The circumstances of the misuse; and
    (e) The benefit intended to be derived from the misuse.



Sec.  27.5  Initial Notice of Assessment.

    The assessing official shall serve an Initial Notice of Assessment 
by United States mail or other means upon any person believed to be in 
violation of Sec.  27.3 and otherwise subject to a civil penalty. The 
notice shall provide the name and telephone number of an agency officer 
or employee who can provide information concerning the notice and the 
provisions of this part, and shall include the following:
    (a) A specific reference to the provisions of Sec.  27.3 violated;
    (b) A concise statement of the facts that support the conclusion 
that such a violation occurred;
    (c) The amount of the penalty proposed, and/or any other proposed 
civil or equitable remedy;
    (d) A notice informing the person alleged to be in violation of 
Sec.  27.3 that he/she:
    (1) May, within 30 days of the date of the notice, pay the proposed 
civil monetary penalty and consent to each proposed civil or equitable 
remedy, thereby waiving the right to make a written response under Sec.  
27.6 and to seek judicial review under Sec.  27.8:
    (i) By electronic funds transfer (EFT) in accordance with 
instructions provided in the notice, or

[[Page 272]]

    (ii) By means other than EFT only with the written approval of the 
assessing official;
    (2) May make a written response within 30 days of the date of the 
notice asserting, as appropriate:
    (i) Why a civil monetary penalty and/or other civil or equitable 
remedy should not be imposed;
    (ii) Why a civil monetary penalty should be in a lesser amount than 
proposed; and
    (iii) Why the terms of a proposed civil or equitable remedy should 
be modified;
    (3) May be represented by an attorney or other representative, 
provided that a designation of representative signed by the person 
alleged to be in violation is received by the assessing official; and
    (4) May request, within 20 days of the date of the notice, a copy of 
or opportunity to review any documents and/or other evidence compiled 
and relied on by the agency in determining to issue the notice (the 
assessing official reserves the right to assert privileges available 
under law and may decline to disclose certain documents and/or other 
evidence); and
    (e) The Initial Notice of Assessment shall also inform the person 
that:
    (1) If no written response is received within the time allowed in 
Sec.  27.6(b), a Final Notice of Assessment may be issued without a 
presentation by the person;
    (2) If a written response has been made and it is deemed necessary, 
the assessing official may request, orally or in writing, additional 
information from the respondent;
    (3) A Final Notice of Assessment may be issued in accordance with 
Sec.  27.7 requiring that the civil monetary penalty be paid and 
compliance with the terms of any other civil or equitable remedy;
    (4) A Final Notice of Assessment is subject to judicial review in 
accordance with 5 U.S.C. 701 et seq.; and
    (5) All submissions sent in response to the Initial
    Notice of Assessment must be transmitted to the address specified in 
the notice and include the name, address, and telephone number of the 
respondent.



Sec.  27.6  Written response.

    (a)(1) A person served with an Initial Notice of Assessment may make 
a written response explaining why the civil penalty should not be 
imposed, explaining why a civil monetary penalty should be in a lesser 
amount than proposed and/or explaining why the terms of a proposed civil 
or equitable remedy should be modified. The written response must 
provide:
    (i) A reference to and specifically identify the Initial Notice of 
Assessment involved;
    (ii) The full name of the person charged;
    (iii) If not a natural person, the name and title of the head of the 
organization charged; and
    (iv) If a representative of the person charged is filing the written 
response, a copy of the duly executed designation as representative.
    (2) The written response must admit or deny each violation of Sec.  
27.3 charged in the Initial Notice of Assessment. Any charge not 
specifically denied will be presumed to be admitted. Where a charge is 
denied, the respondent shall specifically set forth the legal or factual 
basis upon which the charge is denied. If the basis of the written 
response is that the person charged is not the person responsible for 
the misuse(s) charged, the written response must set forth sufficient 
information to allow the agency to determine the truth of such an 
assertion. The written response should include any and all documents 
and/or other information that the respondent believes should be a part 
of the administrative record on the matter.
    (b) Time. (1) Except as provided in paragraph (b)(2) of this 
section, any written response made under this paragraph must be received 
not later than 30 days after the date of the Initial Notice of 
Assessment.
    (2) If a request for documents or other evidence is made pursuant to 
Sec.  27.5(d)(4), the written response must be received not later than 
20 days after the date of the Department's response to the request.
    (3)(i) In computing the number of days allowed for filing a written 
response under this paragraph, the first day counted is the day after 
the date of

[[Page 273]]

the Initial Notice of Assessment. If the last date on which the response 
is required to be filed by this paragraph is a Saturday, Sunday or 
Federal holiday, the response will be due on the next weekday after that 
date.
    (ii) If a response is transmitted by United States mail, it will be 
deemed timely filed if postmarked on or before the due date.
    (4) The assessing official may extend the period for making a 
written response under paragraphs (b)(1) and (b)(2) for good cause 
shown. Generally, failure to obtain representation in a timely manner 
will not be considered good cause.
    (c) Filing. A written response will be considered filed on the date 
received at the address specified in the Initial Notice of Assessment. 
The response may be sent by personal delivery, United States mail or 
commercial delivery. At the discretion of the assessing official, filing 
may be accomplished by facsimile or any other method deemed appropriate.
    (d) The assessing official will fully consider the facts and 
arguments submitted by the respondent in the written response and any 
other documents filed pursuant to this paragraph in determining whether 
to issue a Final Notice of Assessment under Sec.  27.7, the appropriate 
amount of the civil monetary penalty imposed and the terms of any other 
appropriate civil or equitable remedy.



Sec.  27.7  Final Notice of Assessment.

    (a) In making a final determination whether to impose a penalty, the 
assessing official shall take into consideration all available 
information in the administrative record on the matter, including all 
information provided in or with a written response timely filed by the 
respondent and any additional information provided pursuant to Sec.  
27.5(e)(2). The assessing official will determine whether:
    (1) The facts warrant a conclusion that no violation has occurred; 
or
    (2) The facts warrant a conclusion that one or more violations have 
occurred; and
    (3) The facts and violations found justify the conclusion that a 
civil penalty should be imposed.
    (b) If the assessing official determines that no violation has 
occurred, the official shall promptly send a letter indicating that 
determination to the person served with an Initial Notice of Assessment 
and to any designated representative of such person.
    (c)(1) If it has been determined that a violation has occurred, the 
assessing official shall issue a Final Notice of Assessment to the 
person served with an Initial Notice of Assessment and to any designated 
representative of such person.
    (2) The assessing official may, in his/her discretion:
    (i) Impose a civil monetary penalty and/or any civil or equitable 
remedy deemed necessary to rectify the potential for a continued misuse 
or harm from the violation(s);
    (ii) Not impose a civil monetary penalty and/or civil or equitable 
remedy; or
    (iii) Impose a civil monetary penalty and/or civil or equitable 
remedy and condition payment of the civil monetary penalty on the 
violator's future compliance with 31 U.S.C. 333, this part and any civil 
or equitable remedy contained in the Final Notice of Assessment. If a 
civil monetary penalty is imposed, the assessing official shall 
determine the appropriate amount of the penalty in accordance with 31 
U.S.C. 333(c)(2).
    (3) The Final Notice of Assessment shall:
    (i) Include:
    (A) A specific reference to the provisions of Sec.  27.3 found to 
have been violated;
    (B) A concise statement of the facts warranting a conclusion that a 
violations has occurred;
    (C) An analysis of how the facts and violation(s) justify the 
conclusion that a civil monetary penalty and/or civil or equitable 
remedy should be imposed; and
    (D) The amount of each civil monetary penalty imposed, a statement 
as to how the amount of each penalty was determined, and the terms of 
any civil or equitable remedy deemed necessary to rectify the potential 
for a continued misuse or harm from the violation(s); and
    (ii) Inform the person that:

[[Page 274]]

    (A) Payment of a civil monetary penalty imposed by the Final Notice 
of Assessment must be made within 30 days of the date of the notice, and 
that any civil or equitable remedy imposed must be complied with as 
provided in the Final Notice of Assessment;
    (B) Payment of a civil monetary penalty imposed by the Final Notice 
of Assessment shall be by EFT in accordance with instructions provided 
in the notice, unless the assessing official has given written approval 
to have payment made by other means;
    (C) payment of a civil monetary penalty imposed by the Final Notice 
of Assessment constitutes consent by the person to comply with the terms 
of any civil or equitable remedy contained in the notice;
    (D) If payment of a civil monetary penalty imposed by the Final 
Notice of Assessment has been waived on the condition that the person 
comply with the terms of any civil or equitable remedy contained in the 
notice or comply in the future with 31 U.S.C. 333 and this part, failure 
by the person to so comply will make the civil monetary penalty payable 
on demand;
    (E) If a civil monetary penalty is not paid within 30 days of the 
date of the Final Notice of Assessment (or on demand under paragraph 
(C)(3)(ii)(D) of this sectiion), or if a civil or equitable remedy is 
not complied with in accordance with the terms of the notice, a civil 
action to collect the penalty or enforce compliance may be commenced at 
any time within two years of the date of the Final Notice of Assessment; 
and
    (F) Any civil monetary penalty and civil or equitable remedy imposed 
by the Final Notice of Assessment may be subject to judicial review in 
accordance with 5 U.S.C. 701 et seq.

[62 FR 42213, Aug. 6, 1997; 62 FR 44036, Aug. 18, 1997]



Sec.  27.8  Judicial review.

    A final Notice of Assessment issued under this party may be subject 
to judicial review pursuant to 5 U.S.C. 701 et seq.



PART 28_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                         Subpart A_Introduction

Sec.
28.100 Purpose and effective date.
28.105 Definitions.
28.110 Remedial and affirmative action and self-evaluation.
28.115 Assurance required.
28.120 Transfers of property.
28.125 Effect of other requirements.
28.130 Effect of employment opportunities.
28.135 Designation of responsible employee and adoption of grievance 
          procedures.
28.140 Dissemination of policy.

                           Subpart B_Coverage

28.200 Application.
28.205 Educational institutions and other entities controlled by 
          religious organizations.
28.210 Military and merchant marine educational institutions.
28.215 Membership practices of certain organizations.
28.220 Admissions.
28.225 Educational institutions eligible to submit transition plans.
28.230 Transition plans.
28.235 Statutory amendments.

     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

28.300 Admission.
28.305 Preference in admission.
28.310 Recruitment.

 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

28.400 Education programs or activities.
28.405 Housing.
28.410 Comparable facilities.
28.415 Access to course offerings.
28.420 Access to schools operated by LEAs.
28.425 Counseling and use of appraisal and counseling materials.
28.430 Financial assistance.
28.435 Employment assistance to students.
28.440 Health and insurance benefits and services.
28.445 Marital or parental status.
28.450 Athletics.

[[Page 275]]

28.455 Textbooks and curricular material.

Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

28.500 Employment.
28.505 Employment criteria.
28.510 Recruitment.
28.515 Compensation.
28.520 Job classification and structure.
28.525 Fringe benefits.
28.530 Marital or parental status.
28.535 Effect of state or local law or other requirements.
28.540 Advertising.
28.545 Pre-employment inquiries.
28.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

28.600 Notice of covered programs.
28.605 Compliance information.
28.610 Conduct of investigations.
28.615 Procedure for effecting compliance.
28.620 Hearings.
28.625 Decisions and notices.
28.630 Judicial review.
28.635 Forms and instructions; coordination.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 65 FR 52865, 52881, Aug. 30, 2000, unless otherwise noted.



                         Subpart A_Introduction



Sec.  28.100  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.  28.105  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.
    Department means Department of the Treasury.
    Designated agency official means Assistant Secretary for Management 
and Chief Financial Officer.
    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.

[[Page 276]]

    (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.
    Reviewing authority means that component of the Department delegated 
authority to review the decisions of hearing officers in cases arising 
under these Title IX regulations.
    Secretary means Secretary of the Treasury.
    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.  
28.100 through 28.635.
    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

[[Page 277]]

admits students of both sexes without discrimination.

[65 FR 52865, 52881, 52882, Aug. 30, 2000]



Sec.  28.110  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.  28.115  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.  28.110(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.

[[Page 278]]

    (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.  28.120  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.  28.205 through 28.235(a).



Sec.  28.125  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.  28.130  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.  28.135  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.  28.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and

[[Page 279]]

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.  28.300 through 28.310 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.  28.135, 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.  28.200  Application.

    Except as provided in Sec. Sec.  28.205 through 28.235(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.  28.205  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.  28.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training

[[Page 280]]

of individuals for a military service of the United States or for the 
merchant marine.



Sec.  28.215  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.  28.220  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.  28.225 and 28.230, and Sec. Sec.  28.300 through 
28.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Sec. Sec.  28.300 through .310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec.  28.300 
through 28.310 apply to each recipient. A recipient to which Sec. Sec.  
28.300 through 28.310 apply shall not discriminate on the basis of sex 
in admission or recruitment in violation of Sec. Sec.  28.300 through 
28.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec.  28.300 through 28.310 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.  28.300 through 28.310 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.  28.225  Educational institutions eligible to submit transition
plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec.  28.300 through 28.310 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.  28.300 through 
28.310.



Sec.  28.230  Transition plans.

    (a) Submission of plans. An institution to which Sec.  28.225 
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.

[[Page 281]]

    (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.  28.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec.  28.300 through 
28.310 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.  28.225 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.  28.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided to students of the 
other sex;
    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (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--

[[Page 282]]

    (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.  28.300  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.  28.300 through 28.310 apply, except as 
provided in Sec. Sec.  28.225 and 28.230.
    (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.  28.300 through 28.310 
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.  28.300 through 28.310 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;

[[Page 283]]

    (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.  28.235(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.  28.305  Preference in admission.

    A recipient to which Sec. Sec.  28.300 through 28.310 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.  28.300 through 28.310.



Sec.  28.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.  
28.300 through 28.310 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.  28.110(a), and may choose to undertake 
such efforts as affirmative action pursuant to Sec.  28.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec.  28.300 through 28.310 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.  28.300 through 28.310.



 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec.  28.400  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 
28.400 through 28.455 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.  28.300 through 28.310 do not 
apply, or an entity, not a recipient, to which Sec. Sec.  28.300 through 
28.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec.  28.400 
through 28.455, 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;

[[Page 284]]

    (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.  28.405  Housing.

    (a) Generally. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing, except as 
provided in this section (including housing provided only to married 
students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.
    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such housing 
as is provided to students of one sex, when compared to that provided to 
students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization, or person that provides all or part of such housing to 
students of only one sex.



Sec.  28.410  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.  28.415  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

[[Page 285]]

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.  28.420  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.  28.425  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.  28.430  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

[[Page 286]]

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.  28.450.



Sec.  28.435  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.  
28.500 through 28.550.



Sec.  28.440  Health and insurance benefits and services.

    Subject to Sec.  28.235(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.  28.500 through 28.550 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.  28.445  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

[[Page 287]]

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.  28.235(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.  28.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (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.

[[Page 288]]

    (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.  28.455  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.  28.500  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.  28.500 
through 28.550, 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.  28.500 through 28.550 
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;

[[Page 289]]

    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec.  28.505  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.  28.510  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.  28.500 through 28.550.



Sec.  28.515  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.  28.520  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.  28.550.



Sec.  28.525  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.  28.515.
    (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.  28.530  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

[[Page 290]]

    (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.  28.235(d), 
a recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy, recovery therefrom, and any temporary 
disability resulting therefrom as any other temporary disability for all 
job-related purposes, including commencement, duration, and extensions 
of leave, payment of disability income, accrual of seniority and any 
other benefit or service, and reinstatement, and under any fringe 
benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec.  28.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec.  28.500 through 28.550 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.  28.540  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.  28.545  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.  28.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec.  
28.500 through 28.550 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.  28.600  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

[[Page 291]]

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.  28.605  Compliance information.

    (a) Cooperation and assistance. The designated agency official shall 
to the fullest extent practicable seek the cooperation of recipients in 
obtaining compliance with these Title IX regulations and shall provide 
assistance and guidance to recipients to help them comply voluntarily 
with these Title IX regulations.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the designated agency official (or designee) timely, complete, 
and accurate compliance reports at such times, and in such form and 
containing such information, as the designated agency official (or 
designee) may determine to be necessary to enable the official to 
ascertain whether the recipient has complied or is complying with these 
Title IX regulations. In the case of any program under 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 these Title IX regulations.
    (c) Access to sources of information. Each recipient shall permit 
access by the designated agency official (or 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 these Title IX regulations. Where any 
information required of a recipient is in the exclusive possession of 
any other agency, institution or person and this agency, institution or 
person shall fail or refuse to furnish this information the recipient 
shall so certify in its report and shall set forth what efforts it has 
made to obtain the information. Asserted considerations of privacy or 
confidentiality may not operate to bar the Department from evaluating or 
seeking to enforce compliance with these Title IX regulations. 
Information of a confidential nature obtained in connection with 
compliance evaluation or enforcement shall not be disclosed except where 
necessary in formal enforcement proceedings or where otherwise required 
by law.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of these 
Title IX regulations and their applicability to the program for which 
the recipient receives Federal financial assistance, and make such 
information available to them 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.

[65 FR 52882, Aug. 30, 2000]



Sec.  28.610  Conduct of investigations.

    (a) Periodic compliance reviews. The designated agency official (or 
designee) shall from time to time review the practices of recipients to 
determine whether they are complying with these Title IX regulations.
    (b) Complaints. Any person who believes himself or herself or any 
specific class of individuals to be subjected to discrimination 
prohibited by these Title IX regulations may by himself or herself or by 
a representative file with the designated agency official (or designee) 
a written complaint. A complaint must be filed not later than 180 days 
from the date of the alleged discrimination, unless the time for filing 
is extended by the designated agency official (or designee).
    (c) Investigations. The designated agency official (or designee) 
will make a prompt investigation whenever a compliance review, report, 
complaint, or any other information indicates a possible failure to 
comply with these Title IX regulations. 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 these Title IX regulations occurred, and other 
factors relevant to a determination as to

[[Page 292]]

whether the recipient has failed to comply with these Title IX 
regulations.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with these 
Title IX regulations, the designated agency official (or 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.  28.615.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section the designated agency official (or 
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 Title IX or these Title IX regulations, or because 
he or she has made a complaint, testified, assisted, or participated in 
any manner in an investigation, proceeding or hearing under these Title 
IX regulations. The identity of complainants shall be kept confidential 
except to the extent necessary to carry out the purposes of these Title 
IX regulations, including the conduct of any investigation, hearing, or 
judicial proceeding arising under these Title IX regulations.

[65 FR 52882, Aug. 30, 2000]



Sec.  28.615  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with these Title IX regulations, and if the noncompliance or 
threatened noncompliance cannot be corrected by informal means, 
compliance with these Title IX regulations 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, or any assurance or 
other contractual undertaking; and
    (2) Any applicable proceeding under State or local law.
    (b) Noncompliance with Sec.  28.115. If an applicant fails or 
refuses to furnish an assurance or otherwise fails or refuses to comply 
with a requirement imposed by or pursuant to Sec.  28.115, 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 paragraph (c) of this section 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 September 29, 2000.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. (1) No order suspending, terminating or refusing 
to grant or continue Federal financial assistance shall become effective 
until:
    (i) The designated agency official has advised the applicant or 
recipient of its failure to comply and has determined that compliance 
cannot be secured by voluntary means;
    (ii) 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 these Title IX 
regulations; and
    (iii) 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.
    (2) 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.

[[Page 293]]

    (d) Other means authorized by law. (1) No action to effect 
compliance by any other means authorized by law shall be taken until:
    (i) The designated agency official has determined that compliance 
cannot be secured by voluntary means;
    (ii) The recipient has been notified of its failure to comply and of 
the action to be taken to effect compliance; and
    (iii) The expiration of at least 10 days from the mailing of such 
notice to the recipient.
    (2) During this period of at least 10 days additional efforts shall 
be made to persuade the recipient to comply with these Title IX 
regulations and to take such corrective action as may be appropriate.

[65 FR 52883, Aug. 30, 2000]



Sec.  28.620  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec.  28.615(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 designated 
agency 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 for which a date has been 
set shall be deemed to be a waiver of the right to a hearing under 20 
U.S.C. 1682 and Sec.  28.615(c) and consent to the making of a decision 
on the basis of such information as may be filed as the record.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the Department in Washington, DC, at a time fixed by the designated 
agency official unless the official determines that the convenience of 
the applicant or recipient or of the Department requires that another 
place be selected. Hearings shall be held before a hearing officer 
designated in accordance with 5 U.S.C. 556(b).
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Department shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
5 U.S.C. 554-557 (sections 5-8 of the Administrative Procedure Act), and 
in accordance with such rules of procedure as are proper (and not 
inconsistent with this section) relating to the conduct of the hearing, 
giving of notices subsequent to those provided for in paragraph (a) of 
this section, taking of testimony, exhibits, arguments and briefs, 
requests for findings, and other related matters. Both the Department 
and the applicant or recipient shall be entitled to introduce all 
relevant evidence on the issues as stated in the notice for hearing or 
as determined by the hearing officer at the outset of or during the 
hearing. Any person (other than a Government employee considered to be 
on official business) who, having been invited or requested to appear 
and testify as a witness on the Government's behalf, attends at a time 
and place scheduled for a hearing provided for by these Title IX 
regulations, may be reimbursed for his or her travel and actual expenses 
of attendance in an amount not to exceed the amount payable under the 
standardized travel regulations to a Government employee traveling on 
official business.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to these Title IX regulations, but rules or 
principles designed to assure production of the most credible evidence 
available and to subject testimony to test by cross-examination

[[Page 294]]

shall be applied where reasonably necessary by the hearing officer. 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 these Title 
IX regulations with respect to two or more programs to which these Title 
IX regulations apply, or noncompliance with these Title IX regulations 
and the regulations of one or more other Federal departments or agencies 
issued under Title IX, the designated agency official 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 these 
Title IX regulations. Final decisions in such cases, insofar as these 
Title IX regulations are concerned, shall be made in accordance with 
Sec.  28.625.

[65 FR 52883, Aug. 30, 2000]



Sec.  28.625  Decisions and notices.

    (a) Decisions by hearing officers. After a hearing is held by a 
hearing officer such hearing officer shall either make an initial 
decision, if so authorized, or certify the entire record including 
recommended findings and proposed decision to the reviewing authority 
for a final decision, and a copy of such initial decision or 
certification shall be mailed to the applicant or recipient and to the 
complainant, if any. Where the initial decision referred to in this 
paragraph or in paragraph (c) of this section is made by the hearing 
officer, the applicant or recipient or the counsel for the Department 
may, within the period provided for in the rules of procedure issued by 
the designated agency official, file with the reviewing authority 
exceptions to the initial decision, with the reasons therefor. Upon the 
filing of such exceptions the reviewing authority shall review the 
initial decision and issue its own decision thereof including the 
reasons therefor. In the absence of exceptions the initial decision 
shall constitute the final decision, subject to the provisions of 
paragraph (e) of this section.
    (b) Decisions on record or review by the reviewing authority. 
Whenever a record is certified to the reviewing authority for decision 
or it reviews the decision of a hearing officer pursuant to paragraph 
(a) or (c) of this section, the applicant or recipient shall be given 
reasonable opportunity to file with it briefs or other written 
statements of its contentions, and a copy of the final decision of the 
reviewing authority shall be given in writing to the applicant or 
recipient and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec.  28.620, the reviewing authority 
shall make its final decision on the record or refer the matter to a 
hearing officer for an initial decision to be made on the record. 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 
reviewing authority shall set forth a ruling on each finding, 
conclusion, or exception presented, and shall identify the requirement 
or requirements imposed by or pursuant to these Title IX regulations 
with which it is found that the applicant or recipient has failed to 
comply.
    (e) Review in certain cases by the Secretary of the Treasury. If the 
Secretary has not personally made the final decision referred to in 
paragraph (a), (b), or (c) of this section, a recipient or applicant or 
the counsel for the Department may request the Secretary to review a 
decision of the reviewing authority in accordance with rules of 
procedure issued by the designated agency official. Such review is not a 
matter of right and shall be granted only where the Secretary determines 
there are special and important reasons therefor. The Secretary may 
grant or deny such

[[Page 295]]

request, in whole or in part. The Secretary also may review such a 
decision upon his own motion in accordance with rules of procedure 
issued by the designated agency official. In the absence of a review 
under this paragraph (e), a final decision referred to in paragraph (a), 
(b), or (c) of this section shall become the final decision of the 
Department when the Secretary transmits it as such to congressional 
committees with the report required under 20 U.S.C. 1682. Failure of an 
applicant or recipient to file an exception with the reviewing authority 
or to request review under this paragraph (e) shall not be deemed a 
failure to exhaust administrative remedies for the purpose of obtaining 
judicial review.
    (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 these Title IX regulations 
apply, and may contain such terms, conditions, and other provisions as 
are consistent with and will effectuate the purposes of Title IX and 
these Title IX regulations, including provisions designed to assure that 
no Federal financial assistance to which these Title IX regulations 
apply will thereafter be extended under such law or laws to the 
applicant or recipient determined by such decision to be in default in 
its performance of an assurance given by it pursuant to these Title IX 
regulations, or to have otherwise failed to comply with these Title IX 
regulations unless and until it corrects its noncompliance and satisfies 
the designated agency official that it will fully comply with these 
Title IX regulations.
    (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 
these Title IX regulations and provides reasonable assurance that it 
will fully comply with these Title IX regulations. An elementary or 
secondary school or school system that is unable to file an assurance of 
compliance shall be restored to full eligibility to receive Federal 
financial assistance if it files a court order or a plan for 
desegregation that meets the applicable requirements and provides 
reasonable assurance that it will comply with the court order or plan.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the designated 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 (g)(1) of this section. If the designated 
agency official determines that those requirements have been satisfied, 
the official shall restore such eligibility.
    (3) If the designated 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 designated 
agency official. The applicant or recipient will be restored to such 
eligibility if it proves at such hearing that it satisfied the 
requirements of paragraph (g)(1) of this section. While proceedings 
under this paragraph (g) are pending, the sanctions imposed by the order 
issued under paragraph (f) of this section shall remain in effect.

[65 FR 52884, Aug. 30, 2000]



Sec.  28.630  Judicial review.

    Action taken pursuant to 20 U.S.C. 1682 is subject to judicial 
review as provided in 20 U.S.C. 1683.

[65 FR 52885, Aug. 30, 2000]



Sec.  28.635  Forms and instructions; coordination.

    (a) Forms and instructions. The designated agency official shall 
issue and promptly make available to interested persons forms and 
detailed instructions and procedures for effectuating these Title IX 
regulations.
    (b) Supervision and coordination. The designated agency official may 
from time to time assign to officials of the

[[Page 296]]

Department, or to officials of other departments or agencies of the 
Government with the consent of such departments or agencies, 
responsibilities in connection with the effectuation of the purposes of 
Title IX and these Title IX regulations (other than responsibility for 
review as provided in Sec.  28.625(e)), including the achievements of 
effective coordination and maximum uniformity within the Department and 
within the Executive Branch of the Government in the application of 
Title IX and these Title IX regulations 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 section shall have the 
same effect as though such action had been taken by the designated 
official of this Department.

[65 FR 52885, Aug. 30, 2000]



PART 29_FEDERAL BENEFIT PAYMENTS UNDER CERTAIN DISTRICT OF COLUMBIA 
RETIREMENT PROGRAMS--Table of Contents



                      Subpart A_General Provisions

Sec.
29.101 Purpose and scope.
29.102 Related regulations.
29.103 Definitions.
29.104 Schedule for Federal Benefit Payments.
29.105 Computation of time.
29.106 Representative payees.

           Subpart B_Coordination With the District Government

29.201 Purpose and scope.
29.202 Definitions. [Reserved]
29.203 Service of Process.

Appendix A to Subpart B of Part 29--Addresses for Service of Process 
          Under Sec.  29.203

                        Subpart C_Split Benefits

29.301 Purpose and scope.
29.302 Definitions.

 General Principles for Determining Service Credit To Calculate Federal 
                            Benefit Payments

29.311 Credit only for service performed on or before June 30, 1997.
29.312 All requirements for credit must be satisfied by June 30, 1997.
29.313 Federal Benefit Payments are computed based on retirement 
          eligibility as of the separation date and service creditable 
          as of June 30, 1997.

                  Service Performed After June 30, 1997

29.321 General principle.
29.322 Disability benefits.

     All Requirements for Credit Must Be Satisfied by June 30, 1997

29.331 General principle.
29.332 Unused sick leave.
29.333 Military service.
29.334 Deposit service.
29.335 Refunded service.

          Calculation of the Amount of Federal Benefit Payments

29.341 General principle.
29.342 Computed annuity exceeds the statutory maximum.
29.343 Disability benefits.
29.344 Survivor benefits.
29.345 Cost-of-living adjustments.
29.346 Reduction for survivor benefits.

   Calculation of the Split of Refunds of Employee Contributions and 
                                Deposits

29.351 General principle.
29.352 Refunded contributions.
29.353 Refunded deposits.

Appendix A to Subpart C of Part 29--Examples

                 Subpart D_Claims and Appeals Procedures

29.401 Purpose.
29.402 Definitions.
29.403 Applications filed with the Benefits Administrator.
29.404 Initial benefit determinations and reconsideration by the 
          Benefits Administrator.
29.405 Appeals to the Department.
29.406 Judicial review.
29.407 Competing claimants.

           Subpart E_Debt Collection and Waivers of Collection

29.501 Purpose; incorporation by reference; scope.
29.502 Definitions.
29.503 Prohibition against collection of debts.
29.504 Status of debts.
29.505 Compromise of claims; termination and suspension of collection 
          actions.
29.506 Recovery of other debts owed to the United States.

[[Page 297]]

                       Collection of Overpayments

29.511 Demand letters.
29.512 Reconsideration by the Benefits Administrator.
29.513 Appeals to the Department.
29.514 Requests for waiver and/or compromise.
29.515 Judicial review.
29.516 Collection of overpayments.
29.517 Collection by offset.
29.518 Reporting delinquent debts to credit bureaus.
29.519 Referral to a collection agency.
29.520 Referral for litigation.

                  Standards for Waiver of Overpayments

29.521 Conditions for waiver and other adjustments.
29.522 Fault.
29.523 Equity and good conscience.
29.524 Financial hardship.
29.525 Ordinary and necessary living expenses.
29.526 Waiver precluded.

    Authority: Subtitle A and Chapter 3 of Subtitle H, of Pub. L. 105-
33, 111 Stat. 712-731 and 786-787; as amended.

    Source: 65 FR 77501, Dec. 12, 2000, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  29.101  Purpose and scope.

    (a) This part contains the Department's regulations implementing 
Subtitle A, Subchapter B of Chapter 4 of Subtitle C, and Chapter 3 of 
Subtitle H, of Title XI of the Balanced Budget Act of 1997, Public Law 
105-33, 111 Stat. 251, 712-731, 756-759, enacted August 5, 1997, as 
amended.
    (b) This subpart contains general information to assist in the use 
of this part including--
    (1) Information about related regulations (Sec.  29.102),
    (2) Definitions of terms used in more than one subpart of this part 
(Sec.  29.103), and
    (3) The Department's general rules and procedures, applicable to the 
retirement plans for District of Columbia teachers, police and fire 
fighters, and judges that concern the administration of Federal Benefit 
Payments (Sec. Sec.  29.104-29.106).
    (c) This part applies to Federal Benefit Payments.
    (d) This part does not apply to the program of annuities, other 
retirement benefits, or medical benefits for members and officers, 
retired members and officers, and survivors thereof, of the United 
States Park Police force, the United States Secret Service, or the 
United States Secret Service Uniformed Division.
    (e) This part does not apply to the District of Columbia replacement 
plan, which covers payments based on service accrued after June 30, 
1997, pursuant to section 11042 of the Act.

[65 FR 77501, Dec. 12, 2000, as amended at 70 FR 60004, Oct. 14, 2005]



Sec.  29.102  Related regulations.

    (a) This part contains the following subparts:
    (1) General Provisions (Subpart A);
    (2) Coordination with the District Government (Subpart B);
    (3) Split Benefits (Subpart C); \1\
---------------------------------------------------------------------------

    \1\ The effective date for section 29.102(a)(3) and Subpart C, 
originally scheduled for March 31, 2001, has been postponed 
indefinitely.
---------------------------------------------------------------------------

    (4) Claims and Appeals Procedures (Subpart D); and
    (5) Debt Collection and Waivers of Collection (Subpart E).
    (b) Part 581 of Title 5, Code of Federal Regulations, contains 
information about garnishment of certain Federal payments to enforce 
awards of alimony or child support.
    (c) Part 831 of Title 5, Code of Federal Regulations, contains 
information about benefits under the Civil Service Retirement System.
    (d) Part 870 of Title 5, Code of Federal Regulations, contains 
information about benefits under the Federal Employees Group Life 
Insurance Program.
    (e) Part 890 of Title 5, Code of Federal Regulations, contains 
information about benefits under the Federal Employees Health Benefits 
Program.
    (f) Parts 835 and 845 and subparts M, N, and R of part 831 of title 
5, Code of Federal Regulations, contain information about debt 
collection and waiver of collection under the Civil Service Retirement 
System and the Federal Employees Retirement System.

[65 FR 77501, Dec. 12, 2000, as amended at 65 FR 80753, Dec. 22, 2000; 
66 FR 36705, July 13, 2001]

[[Page 298]]



Sec.  29.103  Definitions.

    (a) In this part--
    Act means Subtitle A, Subchapter B of Chapter 4 of Subtitle C, and 
Chapter 3 of Subtitle H, of Title XI of the Balanced Budget Act of 1997, 
Public Law 105-33, 111 Stat. 251, 712-731, 756-759, as amended.
    Benefits Administrator means:
    (1) For the Teachers Plan and the Police and Firefighters Plan under 
section 11041(a) of the Act:
    (i) During the interim benefits administration period, the District 
of Columbia government; or
    (ii) After the end of the interim benefits administration period:
    (A) The Trustee selected by the Department under sections 11035(a) 
or 11085(a) of the Act;
    (B) The Department, if a determination is made under sections 
11035(d) or 11085(d) of the Act that, in the interest of economy and 
efficiency, the function of the Trustee shall be performed by the 
Department rather than the Trustee; or
    (C) Any other agent of the Department designated to make initial 
benefit determinations and/or to recover or recoup or waive recovery or 
recoupment of overpayments of Federal Benefit Payments, or to recover or 
recoup debts owed to the Federal Government by annuitants; or
    (2) For the Judges Plan under section 11252(b) of the Act:
    (i) During the interim benefits administration period, the District 
of Columbia government; or
    (ii) After the end of the interim benefits administration period for 
the Judges Plan:
    (A) The Trustee selected by the Department under section 11251(a) of 
the Act;
    (B) The Department, if a determination is made under section 
11251(a) of the Act that, in the interest of economy and efficiency, the 
function of the Trustee shall be performed by the Department rather than 
the Trustee; or
    (C) Any other agent of the Department designated to make initial 
benefit determinations and/or to recover or recoup or waive recovery or 
recoupment of overpayments of Federal Benefit Payments, or to recover or 
recoup debts owed to the Federal Government by annuitants.
    District government means the government of the District of 
Columbia.
    Department means the United States Department of the Treasury.
    Federal Benefit Payment means a payment for which the Department is 
responsible under the Act, to which an individual is entitled under the 
Judges Plan, the Police and Firefighters Plan, or the Teachers Plan, in 
such amount and under such terms and conditions as may apply under such 
plans, including payments made under these plans before, on, or after 
the October 1, 1997, effective date of the Act. Service after June 30, 
1997, shall not be credited for purposes of determining the amount of 
any Federal Benefit Payment under the Teachers Plan and the Police and 
Firefighters Plan.
    Freeze date means June 30, 1997.
    Judges Plan means the retirement program (under subchapter III of 
chapter 15 of title 11 of the D.C. Code) for judges of the District of 
Columbia Court of Appeals or Superior Court or with judicial service 
with the former Juvenile Court of the District of Columbia, District of 
Columbia Tax Court, police court, municipal court, Municipal Court of 
Appeals, or District of Columbia Court of General Sessions.
    OPM means the United States Office of Personnel Management.
    Police and Firefighters Plan means any of the retirement programs 
(under chapter 6 of title 4 of the D.C. Code) for members of the 
Metropolitan Police Force and Fire Department in effect on June 29, 
1997.
    Reconsideration means the process of reexamining an individual's 
entitlement to benefits or liability for a debt to determine whether--
    (1) The law and regulations were properly applied; and/or
    (2) The mathematical computation of the benefit or liability is 
correct.
    Retirement Funds means the District of Columbia Teachers, Police 
Officers, and Firefighters Federal Pension Fund established under 
section 11081 of the Act, the District of Columbia Judicial Retirement 
and Survivors Annuity Fund established under section 11252 of the Act, 
and their predecessor funds.

[[Page 299]]

    Secretary means the Secretary of the United States Department of the 
Treasury or his or her designee.
    Teachers Plan means any of the retirement programs for teachers 
(under chapter 12 of title 31 of the D.C. Code) in effect on June 29, 
1997.
    (b) In this subpart--
    Legal process means--
    (1) Any document that qualifies as legal process as defined in Sec.  
581.103 of Title 5, Code of Federal Regulations; or
    (2) Any court order that Federal or District of Columbia law permits 
to cause all or any portion of a payment under the Judges Plan, the 
Police and Firefighters Plan, or the Teachers Plan to be made to a 
former spouse under chapter 30 of title 1 of the D.C. Code (1997).
    Representative payee means a fiduciary to whom a payment under the 
Judges Plan, the Police and Firefighters Plan, or the Teachers Plan is 
made for the benefit of a plan participant or a survivor.

[65 FR 77501, Dec. 12, 2000, as amended at 66 FR 36705, July 13, 2001; 
70 FR 60004, Oct. 14, 2005]



Sec.  29.104  Schedule for Federal Benefit Payments.

    Federal Benefit Payments are payable on the first business day of 
the month following the month in which the benefit accrues. (See Sec.  
29.105(b).)



Sec.  29.105  Computation of time.

    (a) For filing documents. In computing the number of days allowed 
for filing a document, the first day counted is the day after the action 
or event from which the period begins to run. If the date that 
ordinarily would be the last day for filing falls on a Saturday, a 
Sunday, a Federal holiday, or a District holiday, the period runs until 
the end of the next day that is not a Saturday, a Sunday, or a Federal 
or a District holiday.
    (b) For benefit accrual. (1) Annuity accrues on a daily basis; one-
thirtieth of the monthly rate constitutes the daily rate.
    (2) Annuity does not accrue on the 31st day of any month except that 
annuity accrues on the 31st day of the initial month if the employee's 
annuity commences on the 31st day of a 31-day month.
    (3) For accrual purposes the last day of a 28-day month counts as 3 
days and the last day of a 29-day month counts as 2 days.
    (c) For counting unused sick leave. (1) For annuity computation 
purposes--
    (i) The service of a participant under the Police and Firefighters 
Plan who retires on an immediate annuity is increased by the number of 
days of unused sick leave to the participant's credit under a formal 
leave system; and
    (ii) The service of a participant under the Teachers Plan who 
retires on an immediate annuity or dies leaving a survivor entitled to 
an annuity is increased by the number of days of unused sick leave to 
the participant's credit under a formal leave system.
    (2) In general, 8 hours of unused sick leave increases total service 
by 1 day. In cases where more or less than 8 hours of sick leave would 
be charged for a day's absence, total service is increased by the number 
of days in the period between the date of separation and the date that 
the unused sick leave would have expired had the employee used it 
(except that holidays falling within the period are treated as work 
days, and no additional leave credit is earned for that period).
    (3) If an employee's tour of duty changes from part time to full 
time or full time to part time within 180 days before retirement, the 
credit for unused sick leave is computed as though no change had 
occurred.
    (d) For counting leave without pay (LWOP) that is creditable 
service. (1) Under the Police and Firefighters Plan, credit is allowed 
for no more than 6 months of LWOP in each calendar year.
    (2)(i) Under the Teachers Plan, credit is allowed for no more than 6 
months of LWOP in each fiscal year.
    (ii)(A) For years prior to fiscal year 1976, each fiscal year 
started on July 1 and ended on the following June 30.
    (B) Fiscal year 1976 started on July 1, 1975, and ended on September 
30, 1976.
    (C) For years starting in fiscal year 1977, each fiscal year starts 
on October 1 and ends on the following September 30.

[[Page 300]]



Sec.  29.106  Representative payees.

    For Federal Benefit Payments, representative payees will be 
authorized to the same extent and under the same circumstances as each 
plan permits for non-Federal Benefit Payments under the plan. (See e.g., 
section 4-629(b) of the D.C. Code (1997) (applicable to the Police and 
Firefighters Plan).)



           Subpart B_Coordination With the District Government



Sec.  29.201  Purpose and scope.

    This subpart contains information concerning the relationship 
between the Department and the District government in the administration 
of the Act and the functions of each in the administration of that Act.

[70 FR 60005, Oct. 14, 2005]



Sec.  29.202  Definitions. [Reserved]



Sec.  29.203  Service of Process.

    To affect Federal Benefit Payments--
    (a) Service must be made upon the Department at the address provided 
in appendix A to this subpart for--
    (1) Legal process under section 659 of title 42, United States Code, 
and part 581 of Title 5, Code of Federal Regulations, or
    (2) Any request for or notice of appointment of a custodian, 
guardian, or other fiduciary to receive Federal Benefit Payments as 
representative payees under Sec.  29.106;
    (b) All other process regarding Federal Benefit Payments (including 
requests for judicial review under Sec.  29.406) must be served upon the 
United States in accordance with applicable law.
    (c) All other process regarding Federal Benefit Payments must be 
served upon the United States in accordance with applicable law.



  Sec. Appendix A to Subpart B of Part 29--Addresses for Service Under 
                              Sec.  29.203

    1. The mailing address for delivery of documents described in Sec.  
29.203(a) by the United States Postal Service is: Office of DC Pensions, 
Department of the Treasury, Metropolitan Square Building, Room 6250, 
1500 Pennsylvania Avenue, NW., Washington, DC 20220.
    2. The address for delivery of documents described in Sec.  
29.203(a) by process servers, express carriers, or other forms of 
handcarried delivery is: Office of DC Pensions, Department of the 
Treasury, Metropolitan Square Building, Room 6250, 655 15th Street (F 
Street side), NW., Washington, DC.

[65 FR 77501, Dec. 12, 2000, as amended at 65 FR 80753, Dec. 22, 2000]



                        Subpart C_Split Benefits

    Source: 77 FR 64225, Oct. 19, 2012, unless otherwise noted.



Sec.  29.301  Purpose and scope.

    (a) The purpose of this subpart is to addresses the legal and policy 
issues that affect the calculation of the Federal and District of 
Columbia portions of benefits under subtitle A of Title XI of the 
Balanced Budget Act of 1997, Public Law 105-33, 111 Stat. 251, 712-731, 
and 786-787 enacted August 5, 1997, as amended.
    (1) This subpart states general principles for the calculation of 
Federal Benefit Payments in cases in which the Department and the 
District government are both responsible for paying a portion of an 
employee's total retirement benefits under the Police and Firefighters 
Plan or the Teachers Plan.
    (2) This subpart provides illustrative examples of sample 
computations to show the application of the general principles to 
specific problems.
    (b)(1) This subpart applies only to benefits under the Police and 
Firefighters Plan or the Teachers Plan for individuals who have 
performed service creditable under these programs on or before June 30, 
1997.
    (2) This subpart addresses only those issues that affect the split 
of fiscal responsibility for retirement benefits (that is, the 
calculation of Federal Benefit Payments).
    (3) Issues relating to determination and review of eligibility and 
payments, and financial management, are beyond the scope of this 
subpart.
    (c) This subpart does not apply to benefit calculations under the 
Judges Plan.



Sec.  29.302  Definitions.

    In this subpart (including appendix A of this subpart)--
    Deferred retirement means retirement under section 4-623 of the D.C. 
Code

[[Page 301]]

(1997) (under the Police and Firefighters Plan) or section 31-1231(a) of 
the D.C. Code (1997) (under the Teachers Plan).
    Deferred retirement age means the age at which a deferred annuity 
begins to accrue, that is, age 55 under the Police and Firefighters Plan 
and age 62 under the Teachers Plan.
    Department service or departmental service means any period of 
employment in a position covered by the Police and Firefighters Plan or 
Teachers Plan. Department service or departmental service may include 
certain periods of military service that interrupt a period of 
employment under the Police and Firefighters Plan or the Teachers Plan.
    Disability retirement means retirement under section 4-615 or 
section 4-616 of the D.C. Code (1997) (under the Police and Firefighters 
Plan) or section 31-1225 of the D.C. Code (1997) (under the Teachers 
Plan), regardless of whether the disability was incurred in the line of 
duty.
    Enter on duty means commencement of employment in a position covered 
by the Police and Firefighters Plan or the Teachers Plan.
    Excess leave without pay or excess LWOP means a period of time in a 
non-pay status that in any year is greater than the amount creditable as 
service under Sec.  29.105(d).
    Hire date means the date the employee entered on duty.
    Military service means-
    (1) For the Police and Firefighters Plan, military service as 
defined in section 4-607 of the D.C. Code (1997) that is creditable as 
other service under section 4-602 or section 4-610 of the D.C. Code 
(1997); and
    (2) For the Teachers Plan, military service as described in section 
31-1230(a)(4) of the D.C. Code (1997).
    Optional retirement means regular longevity retirement under section 
4-618 of the D.C. Code (1997) (under the Police and Firefighters Plan) 
or section 31-1224(a) of the D.C. Code (1997) (under the Teachers Plan).
    Other service means any period of creditable service other than 
departmental service or unused sick leave. Other service includes 
service that becomes creditable upon payment of a deposit, such as 
service in another school system (under section 31-1208 of the D.C. Code 
(1997)) (under the Teachers Plan) or prior governmental service (under 
the Teachers Plan and the Police and Firefighters Plan); and service 
that is creditable without payment of a deposit, such as military 
service occurring prior to employment (under the Teachers Plan and the 
Police and Firefighters Plan).
    Pre-80 hire means an individual whose annuity is computed using the 
formula under the Police and Firefighters Plan applicable to individuals 
hired before February 15, 1980.
    Pre-96 hire means an individual whose annuity is computed using the 
formula under the Teachers Plan applicable to individuals hired before 
November 1, 1996.
    Sick leave means unused sick leave, which is creditable in a 
retirement computation, as calculated under Sec.  29.105(c).

 General Principles for Determining Service Credit To Calculate Federal 
                            Benefit Payments



Sec.  29.311  Credit only for service performed on or before June 30, 1997.

    Only service performed on or before June 30, 1997, is credited 
toward Federal Benefit Payments.



Sec.  29.312  All requirements for credit must be satisfied by June 30, 1997.

    Service is counted toward Federal Benefit Payments only if all 
requirements for the service to be creditable are satisfied as of June 
30, 1997.



Sec.  29.313  Federal Benefit Payments are computed based on retirement
eligibility as of the separation date and service creditable as of
June 30, 1997.

    Except as otherwise provided in this subpart, the amount of Federal 
Benefit Payments is computed based on retirement eligibility as of the 
separation date and service creditable as of June 30, 1997.

[[Page 302]]

                  Service Performed After June 30, 1997



Sec.  29.321  General principle.

    Any service performed after June 30, 1997, may never be credited 
toward Federal Benefit Payments.



Sec.  29.322  Disability benefits.

    If an employee separates for disability retirement after June 30, 
1997, and, on the date of separation, the employee--
    (a) Satisfies the age and service requirements for optional 
retirement, the Federal Benefit Payment commences immediately, that is, 
the Federal Benefit Payment is calculated as though the employee retired 
under optional retirement rules using only service through June 30, 1997 
(See examples 7A and 7B of appendix A of this subpart); or
    (b) Does not satisfy the age and service requirements for optional 
retirement, the Federal Benefit Payment begins when the disability 
retiree reaches deferred retirement age. (See Sec.  29.343.)

     All Requirements for Credit Must Be Satisfied by June 30, 1997



Sec.  29.331  General principle.

    To determine whether service is creditable for the computation of 
Federal Benefit Payments under this subpart, the controlling factor is 
whether all requirements for the service to be creditable under the 
Police and Firefighters Plan or the Teachers Plan were satisfied as of 
June 30, 1997.



Sec.  29.332  Unused sick leave.

    (a) For employees separated for retirement as of June 30, 1997, 
Federal Benefit Payments include credit for any unused sick leave that 
is creditable under the applicable plan.
    (b) For employees separated for retirement after June 30, 1997, no 
unused sick leave is creditable toward Federal Benefit Payments.



Sec.  29.333  Military service.

    (a) For employees who entered on duty on or before June 30, 1997, 
and whose military service was performed prior to that date, credit for 
military service is included in Federal Benefit Payments under the terms 
and conditions applicable to each plan.
    (b) For employees who enter on duty after June 30, 1997, military 
service is not creditable toward Federal Benefit Payments, even if 
performed as of June 30, 1997.
    (c) For employees who entered on duty on or before June 30, 1997, 
but who perform military service after that date, the credit for 
military service is not included in Federal Benefit Payments.



Sec.  29.334  Deposit service.

    (a) Teachers Plan. (1) Periods of civilian service that were not 
subject to retirement deductions at the time they were performed are 
creditable for Federal Benefit Payments under the Teachers Plan if the 
deposit for the service was paid in full to the Teachers Plan as of June 
30, 1997.
    (2) No credit is allowed for Federal Benefit Payments under the 
Teachers Plan for any period of civilian service that was not subject to 
retirement deductions at the time it was performed if the deposit for 
the service was not paid in full as of June 30, 1997.
    (3) If the deposit for the service was paid in installments, but was 
not paid in full as of June 30, 1997, Treasury shall transfer to the 
District an amount equal to the portion of the deposit completed prior 
to June 30, 1997.
    (b) Police and Firefighters Plan. No credit is allowed for Federal 
Benefit Payments under the Police and Firefighters Plan for any period 
of civilian service that was not subject to retirement deductions at the 
time that the service was performed. (See definition of ``governmental 
service'' at D.C. Code section 4-607(15) (1997).)



Sec.  29.335  Refunded service.

    (a) Periods of civilian service that were subject to retirement 
deductions but for which the deductions were refunded to the employee 
are creditable for Federal Benefit Payments if the redeposit for the 
service was paid in full to the District government as of June 30, 1997.
    (b) No credit is allowed for Federal Benefit Payments for any period 
of civilian service that was subject to retirement deductions but for 
which the

[[Page 303]]

deductions were refunded to the employee if the redeposit for the 
service was not paid in full to the District government as of June 30, 
1997.
    (c) If the redeposit for the service was paid in installments, but 
was not paid in full as of June 30, 1997, Treasury shall transfer to the 
District an amount equal to the portion of the redeposit completed prior 
to June 30, 1997.

          Calculation of the Amount of Federal Benefit Payments



Sec.  29.341  General principle.

    (a) Where service is creditable both before and after June 30, 1997, 
Federal Benefit Payments are computed under the rules of the applicable 
plan as though--
    (1) The employee were eligible to retire effective July 1, 1997, 
under the same conditions as the actual retirement (that is, using the 
annuity computation formula that applies under the plan in effect on 
June 29, 1997, and the retirement age, including any applicable age 
reduction, based on the age at actual retirement);
    (2) The service that became creditable after June 30, 1997, did not 
exist; and
    (3) The average salary is the average salary at separation.
    (b) Exceptions to the general principle apply where:
    (1) Congress amends the terms of the District Retirement Program in 
effect on June 29, 1997. For example, see section 11012(e) & (f) of the 
Balanced Budget Act of 1997, as amended by Public Laws 106-554, 107-290, 
and 108-133 (codified at D.C. Code section 1-803.02(e) and (f));
    (2) The retirement is based on disability after June 30, 1997 (see 
29.343); or
    (3) The benefit is based on the death of an employee after June 30, 
1997 and the survivor benefit is not based on years of service (see 
29.344).

    Note to Sec.  29.341: See examples 7B, 9, and 13 of appendix A of 
this subpart.



Sec.  29.342  Computed annuity exceeds the statutory maximum.

    (a) In cases in which the total computed annuity exceeds the 
statutory maximum:
    (1) Federal Benefit Payments may equal total benefits even if the 
employee had service after June 30, 1997.
    (2) If the employee had sufficient service as of June 30, 1997, to 
qualify for the maximum annuity under the plan, the Federal Benefit 
Payment is the maximum annuity under the plan. This will be the entire 
benefit except for any amount in excess of the normal maximum due to 
unused sick leave, which is the responsibility of the District. (See 
example 3, of appendix A of this subpart.)
    (b) If the employee did not perform sufficient service as of June 
30, 1997, to reach the statutory maximum benefit, but has sufficient 
service at actual retirement to exceed the statutory maximum, the 
Federal Benefit Payment is the amount earned through June 30, 1997. The 
District benefit payment is the amount by which the total benefit 
payable exceeds the Federal Benefit Payment.



Sec.  29.343  Disability benefits.

    (a) The general rule that Federal Benefit Payments are calculated 
under the applicable retirement plan as though the employee were 
eligible for optional retirement and separated on June 30, 1997, does 
not apply to disability benefits prior to optional retirement age.
    (b) In cases involving disability benefits prior to optional 
retirement age, no Federal Benefit Payment is payable until the retiree 
reaches the age of eligibility to receive a deferred annuity (age 55 
under the Police and Firefighters Plan and age 62 under the Teachers 
Plan). When the age for deferred annuity is reached, the Federal Benefit 
Payment is paid using creditable service accrued as of June 30, 1997, 
and average salary (computed under the rules for the applicable plan) as 
of the date of separation. (See examples 6 and 7 of appendix A of this 
subpart.)
    (c) In no case will the amount of the Federal Benefit Payment exceed 
the amount of the total disability annuity.

[[Page 304]]



Sec.  29.344  Survivor benefits.

    (a) The general rule that Federal Benefit Payments are calculated 
under the applicable retirement plan as though the employee were 
eligible for optional retirement and separated on June 30, 1997, applies 
to death benefits that are determined by length of service. In these 
cases, the survivor's Federal Benefit Payment is calculated by 
multiplying the survivor's total benefit by the ratio of the deceased 
retiree or employee's Federal Benefit Payment to the deceased retiree or 
employee's total annuity. (See examples 13A and B of appendix A of this 
subpart.)
    (b) The general rule that Federal Benefit Payments are calculated 
under the applicable retirement plan as though the employee were 
eligible for optional retirement and separated on June 30, 1997, does 
not apply to death benefits that are not determined by length of 
service. In these cases, the survivor's Federal Benefit Payment is 
calculated by multiplying the survivor's total benefit by the deceased 
retiree or employee's number of full months of service through June 30, 
1997, and then dividing by the retiree or employee's number of months of 
total service at retirement. (See examples 13C-F of appendix A of this 
subpart.)
    (c) In cases involving a disability or early voluntary retiree who 
dies before reaching the age at which a Federal Benefit Payment is 
payable, the survivor's Federal Benefit Payment is calculated as though 
the employee had not retired from service, but had separated from 
service with eligibility to receive a deferred annuity. (See examples 
13G and 13H of appendix A of this subpart.)



Sec.  29.345  Annuity adjustments.

    (a) In cases in which the total annuity and the Federal Benefit 
Payment are equally impacted by a cost-of-living adjustment, the new 
Federal Benefit Payment is determined by applying the federal percentage 
of the total annuity to the new total annuity. (See examples 14A-G of 
appendix A of this subpart.)
    (b) In cases in which the total annuity and the Federal Benefit 
Payment are not equally impacted by a change, such as a new plan 
provision or service-based adjustment, the Federal Benefit Payment is 
recalculated where applicable, and the federal percentage of the total 
annuity used to determine subsequent Federal Benefit Payments is 
recalculated. (See example 14H of appendix A of this subpart.)



Sec.  29.346  Reduction for survivor benefits.

    If a retiree elects a reduction for a survivor annuity, the ratio of 
the unreduced Federal Benefit Payment to the unreduced total annuity is 
multiplied by the reduced total annuity to determine the reduced Federal 
Benefit Payment. (See example 10 of appendix A of this subpart.)

   Calculation of the Split of Refunds of Employee Contributions and 
                                Deposits



Sec.  29.351  General principle.

    Treasury will fund refunds of employee contributions and purchase of 
service deposits paid by or on behalf of a covered employee to the 
District of Columbia Police Officers' and Firefighters' Retirement Fund 
or District of Columbia Teachers' Retirement Fund on or before June 30, 
1997.



Sec.  29.352  Refunded contributions.

    For any given pay period, employee contributions are considered to 
have been made before the freeze date if the pay date was on or before 
June 30, 1997. As a result, for calendar year 1997, Treasury will fund 
refunds of employee contributions made by teachers through pay period 12 
and fund refunds of employee contributions made by police officers and 
firefighters through pay period 13. If pay period records are 
unavailable for calendar year 1997, and the participant separated on or 
before June 30, 1997, Treasury will fund 100 percent of the refund of 
retirement contributions. If pay period records are unavailable for 
calendar year 1997, and the participant was hired before January 1, 
1997, and separated after December 31, 1997, Treasury will fund 50 
percent of the refund of retirement contributions made to teachers in 
calendar year 1997, and 48 percent of the retirement contributions made 
to police officers or firefighters in calendar year

[[Page 305]]

1997. Otherwise, if the participant separated after June 30, 1997, the 
percent of contributions made in calendar year 1997 funded by Treasury 
is assumed to be the ratio where the numerator is the number of days 
before July 1 the participant was employed in calendar year 1997 and the 
denominator is the number of days the participant was employed in 
calendar year 1997.



Sec.  29.353  Refunded deposits.

    Treasury will fund refunds of purchase of service deposits made by 
employees by lump sum payment or by installment payments on or before 
June 30, 1997.



            Sec. Appendix A to Subpart C of Part 29--Examples

    This appendix contains sample calculations of Federal Benefit 
Payments in a variety of situations.

                      Optional Retirement Examples

                     Example 1: No Unused Sick Leave

    A. In this example, an individual covered by the Police and 
Firefighters Plan hired before 1980 retires in October 1997. At 
retirement, he is age 51 with 20 years and 3 days of departmental 
service plus 3 years, 4 months, and 21 days of military service that 
preceded the departmental service. The Federal Benefit Payment begins at 
retirement. It is based on the 19 years, 8 months, and 22 days of 
departmental service and 3 years, 4 months, and 21 days of military 
service performed as of June 30, 1997. Thus, the Federal Benefit Payment 
is based on 23 years and 1 month of service, all at the 2.5 percent 
accrual rate. The total annuity is based on 23 years and 4 months of 
service, all at the 2.5 percent accrual rate.

                       Example 1A--Police Optional
                              [Pre-80 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 09/10/46
Hire date: 10/09/77
Separation date: 10/11/97
Department service: 20/00/03
Other service: 03/04/21
Sick leave:
.025 service: 23.333333
.03 service:
Average salary: $45,680.80
Total: $26,647.12
Total/month: $2,221.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 9/10/46
Hire date: 10/09/77
Freeze date: 06/30/97
Department service: 19/08/22
Other service: 03/04/21
Sick leave:
.025 service: 23.083333
.03 service:
Average salary: $45,680.80
Total: $26,361.61
Total/month: $2,197.00
Total federal/month / total/month: 0.989194
------------------------------------------------------------------------

    B. In this example, the individual covered by the Police and 
Firefighters Plan was hired earlier than in example 1A and thus 
performed more service as of both June 30, 1997, and retirement in 
October 1997. At retirement, he is age 51 with 21 years, 11 months and 
29 days of departmental service plus 3 years, 4 months, and 21 days of 
military service that preceded the departmental service. The Federal 
Benefit Payment begins at retirement. It is based on the 21 years, 8 
months, and 18 days of departmental service and 3 years, 4 months, and 
21 days of military service performed as of June 30, 1997. Thus, the 
Federal Benefit Payment is based on 25 years and 1 month of service, 1 
year and 8 months at the 3.0 percent accrual rate and 23 years and 5 
months at the 2.5 percent accrual rate (including 1 month consisting of 
18 days of departmental service and 21 days of other service). The total 
annuity is based on 25 years and 4 months of service, 1 year and 11 
months at the 3.0 percent accrual rate and 23 years and 5 months at the 
2.5 percent accrual rate (including 1 month consisting of 29 days of 
departmental service and 21 days of other service).

                       Example 1B--Police Optional
                              [Pre-80 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 09/10/46
Hire date: 10/13/75
Separation date: 10/11/97
Department service: 21/11/29
Other service: 03/04/21
Sick leave:
.025 service: 23.416667
.03 service: 1.916667
Average salary: $45,680.80

[[Page 306]]

 
Total: $29,368.96
Total/month $2,447.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 09/10/46
Hire date: 10/13/75
Freeze date: 06/30/97
Department service: 21/08/18
Other service: 03/04/21
Sick leave:
.025 service: 23.416667
.03 service: 1.666667
Average salary: $45,680.80
Total: $29,026.36
Total/month: $2,419.00
Total federal/month / total/month: 0.988557
------------------------------------------------------------------------

                   Example 2: Unused Sick Leave Credit

    In this example, an individual covered by the Police and 
Firefighters Plan and hired before 1980 retires in March 1998. At 
retirement, she is age 48 with 24 years, 8 months, and 6 days of 
departmental service plus 6 months and 4 days of other service (deposit 
paid before June 30, 1997) and 11 months and 11 days of unused sick 
leave. For a police officer (or a non-firefighting division firefighter) 
such an amount of sick leave would be 1968 hours (246 days, based on a 
260-day year, times 8 hours per day). For a firefighting division 
firefighter, such an amount would be 2,069 hours (341 days divided by 
360 days per year times 2,184 hours per year). The Federal Benefit 
Payment begins at retirement. It is based on the 23 years, 11 months, 
and 23 days of departmental service performed as of June 30, 1997, and 6 
months and 4 days of other service. Thus, the Federal Benefit Payment is 
based on 20 years departmental and 6 months of other service at the 2.5 
percent accrual rate and 3 years and 11 months of service at the 3.0 
percent accrual rate. The total annuity is based on 20 years and 6 
months of service at the 2.5 percent accrual rate and 5 years and 7 
months of service at the 3 percent accrual rate.

                       Example 2--Police Optional
                              [Pre-80 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 05/01/49
Hire date: 07/08/73
Separation date: 03/13/98
Department service: 24/08/06
Other service: 00/06/04
Sick leave: 00/11/11
.025 service: 20.5
.03 service: 5.583333
Average salary: $61,264.24
Total: $41,659.68
Total/month: $3,472.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 05/01/49
Hire date: 07/08/73
Freeze date: 06/30/97
Department service: 23/11/23
Other service: 00/06/04
Sick leave:
.025 service: 20.5
.03 service: 3.916667
Average salary: $61,264.24
Total: $38,596.47
Total/month: $3,216.00
Total federal/month / total/month: 0.926267
------------------------------------------------------------------------

         Example 3: Calculated Benefit Exceeds Statutory Maximum

    A. In this example, an individual covered by the Police and 
Firefighters Plan hired before 1980 retires in March 1998. At 
retirement, he is age 55 with 32 years and 17 days of departmental 
service. The Federal Benefit Payment begins at retirement. It is based 
on the 31 years, 3 months, and 17 days of departmental service performed 
as of June 30, 1997. Thus, the Federal Benefit Payment is based on 20 
years of service at the 2.5 percent accrual rate and 11 years and 3 
months of service at the 3.0 percent accrual rate. However, the annuity 
is limited to 80 percent of the average salary at time of retirement. 
(This limitation does not apply to the unused sick leave credit.) The 
annuity computed as of June 30, 1997, equals the full benefit payable; 
therefore, the Federal Benefit Payment is the total benefit.

                       Example 3A--Police Optional
                              [Pre-80 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 06/12/42
Hire date: 03/14/66
Separation date: 03/30/98
Department service: 32/00/17
Other service:
Sick leave:
.025 service: 20
.03 service: 12
Average salary: $75,328.30
Total: $64,782.34

[[Page 307]]

 
Total/month: $5,399.00
Maximum: $60,262.64
Maximum/month: $5,022.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 06/12/42
Hire date: 03/14/66
Freeze date: 03/30/97
Department service: 31/03/17
Other service:
Sick leave:
.025 service: 20
.03 service: 11.25
Average salary: $75,328.30
Total: $63,087.45
Total/month: $5,257.00
Maximum: $60,262.64
Maximum/month: $5,022.00
Total federal/month / total/month: 1.0
------------------------------------------------------------------------

    B. In this example, the individual in example 3A also has 6 months 
of unused sick leave at retirement. The sick leave credit is not subject 
to the 80% limitation and does not become creditable service until the 
date of separation. For a police officer (or a non-firefighting division 
firefighter) such an amount of sick leave would be 1040 hours (130 days, 
based on a 260-day year, times 8 hours per day). For a firefighting 
division firefighter, such an amount would be 1092 hours (180 days 
divided by 360 days per year times 2184 hours per year). Six months of 
unused sick leave increases the annual total benefit by 1.5 percent of 
the average salary, or in the example by $94 per month. The District is 
responsible for the portion of the annuity attributable to the unused 
sick leave because it became creditable at retirement, that is, after 
June 30, 1997.

                       Example 3B--Police Optional
                              [Pre-80 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 06/12/42
Hire date: 03/14/66
Separation date: 03/30/98
Department service: 32/00/17
Other service:
Sick leave: 00/06/00
.025 service: 20
.03 service: 12
Average salary: $75,328.30
Total wo/sl credit: $64,782.34
Total/month: $5,399.00
Max wo/sl credit: $60,262.64
Max w/sl credit: $61,392.57
Monthly benefit: $5,116.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 06/12/42
Hire date: 03/14/66
Freeze date: 06/30/97
Department service: 31/03/17
Other service:
Sick leave: none
.025 service: 20
.03 service: 11.25
Average salary: $75,328.30
Total: $63,087.45
Total/month: $5,257.00
Maximum: $60,262.64
Monthly benefit: $5,022.00
Total federal/month / total/month: 0.981626
------------------------------------------------------------------------

                   Example 4: Excess Leave Without Pay

    In this example, an individual covered by the Teachers Plan hired 
before 1996 retires in February 1998. At retirement, she is age 64 with 
27 years of departmental service and 6 years, 7 months, and 28 days of 
other service (creditable before June 30, 1997). However, only 6 months 
of leave in a fiscal year without pay may be credited toward retirement 
under the Teachers Plan. She had 3 months and 18 days of excess leave 
without pay as of June 30, 1997. Since the excess leave without pay 
occurred before June 30, 1997, the time attributable to the excess leave 
without pay is subtracted from the service used in both the Federal 
Benefit Payment and the total benefit computations. The Federal Benefit 
Payment begins at retirement. It is based on the 32 years and 8 months 
of service (32 years, 11 months, and 28 days minus 3 months and 18 days 
and the partial month dropped); 5 years of service at the 1.5 percent 
accrual rate, 5 years of service at the 1.75 percent accrual rate, and 
22 years and 8 months of service at the 2 percent accrual rate. The 
total annuity is based on 33 years and 4 months of service (33 years, 7 
months and 28 days minus 3 months and 18 days and the partial month 
dropped) 5 years of service at the 1.5 percent accrual rate, 5 years of 
service at the 1.75 percent accrual rate and 23 years and 4 months of 
service at the 2 percent accrual rate.

    Note: For the Teachers Plan, section 1230(a) of title 31 of the D.C. 
Code (1997) allows for 6 months leave without pay in any fiscal year. 
For the Police and Firefighters Plan, section 610(d) of title 4 of the 
D.C. Code

[[Page 308]]

(1997) allows for 6 months leave without pay in any calendar year.

                      Example 4--Teachers Optional
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 11/04/33
Hire date: 03/01/71
Separation date: 02/28/98
Department service: 27/00/00
Other service: 06/07/28
Excess LWOP: 00/03/18
.015 service: 5
.0175 service: 5
.02 service: 23.333333
Average salary: $53,121.00
Total: $33,421.98
Total/month: $2,785.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 11/04/33
Hire date: 03/01/71
Freeze date: 06/30/97
Department service: 26/04/00
Other service: 06/07/28
Excess LWOP: 00/03/18
.015 service: 5
.0175 service: 5
.02 service: 22.666667
Average salary: $53,121.00
Total: $32,713.66
Total/month: $2,726.00
Total federal/month / total/month: 0.978815
------------------------------------------------------------------------

                   Example 5: Service Credit Deposits

    A. An individual covered by the Teachers Plan hired before 1996 
retires in October 1997. At retirement, he is age 61 with 30 years and 3 
days of departmental service plus 3 years, 4 months, and 21 days of 
other service that preceded the departmental service for which the 
deposit was fully paid on or before June 30, 1997. The Federal Benefit 
Payment begins at retirement. It is based on the 29 years, 8 months, and 
22 days of departmental service and 3 years, 4 months, and 21 days of 
service performed as of June 30, 1997. Thus, the Federal Benefit Payment 
is based on 33 years and 1 month of service; 5 years of service at the 
1.5 percent accrual rate, 5 years of service at the 1.75 percent accrual 
rate, and 23 years and 1 month of service at the 2 percent accrual rate. 
The total annuity is based on 33 years and 4 months of service; 5 years 
of service at the 1.5 percent accrual rate, 5 years of service at the 
1.75 percent accrual rate and 23 years and 4 months of service at the 2 
percent accrual rate.

                      Example 5A--Teachers Optional
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 09/10/36
Hire date: 10/09/67
Separation date: 10/11/97
Department Service: 30/00/03
Other service: 03/04/21
Deposit paid before freeze date:
Other service credit allowed:
Sick leave:
.015 service: 5
.0175 service: 5
.02 service: 23.333333
Average salary: $45,680.80
Total: $28,740.85
Total/month: $2,395.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 09/10/36
Hire date: 10/09/67
Freeze date: 06/30/97
Department service: 29/08/22
Other service: 03/04/21
Deposit paid before freeze date:
Other service credit allowed:
Sick Leave:
.015 service: 5
.0175 service: 5
.02 service: 23.08333; 13 days
dropped
Average salary: $45,680.80
Total: $28,512.45
Total/month: $2,376.00
Total federal/month / total/month: 0.992067
------------------------------------------------------------------------

    B. In this example, the employee in example 5A did not pay any of 
the deposit to obtain credit for the 3 years, 4 months, and 21 days of 
other service as of June 30, 1997. Thus, none of the other service is 
used in the computation of the Federal Benefit Payment. An individual 
covered by the Teachers Plan hired before 1996 retires in October 1997. 
At retirement, he is age 61 with 30 years and 3 days of departmental 
service plus 3 years, 4 months, and 21 days of other service that 
preceded the departmental service for which the deposit was paid in full 
in October 1997 (at retirement). The Federal Benefit Payment begins at 
retirement. It is based on only the 29 years, 8 months, and 22 days of 
departmental service performed as of June 30, 1997; 5 years of service 
at the 1.5 percent accrual rate, 5 years of service at the 1.75 percent 
accrual rate, and 19 years and 8 months of service at the 2 percent 
accrual rate. The total annuity is based on 33 years

[[Page 309]]

and 4 months of service; 5 years of service at the 1.5 percent accrual 
rate, 5 years of service at the 1.75 percent accrual rate and 23 years 
and 4 months of service at the 2 percent accrual rate.

                      Example 5B--Teachers Optional
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 09/10/36
Hire date: 10/09/67
Separation date: 10/11/97
$0.00
Department service: 30/00/03
Other service: 03/04/21
Total deposit paid after 6/30/97:
Sick leave:
.015 service: 5
.0175 service: 5
.02 service: 23.333333
Average salary: $45,680.80
Total: $28,740.85
Total/month: $2,395.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 09/10/36
Hire date: 10/09/67
Freeze date: 06/30/97
Department service: 29/08/22
Other service: none
Total deposit paid after 6/30/97:
Sick leave:
.015 service: 5
.0175 service: 5
.02 service: 19.666667; 22 days dropped
Average salary: $45,680.80
Total: $25,390.90
Total/month: $2,116.00
Total federal/month / total/month: 0.883507
------------------------------------------------------------------------

    C. In this example, the employee in examples 5A and B began 
installment payments on the deposit to obtain credit for the 3 years, 4 
months, and 21 days of other service as of June 30, 1997, but did not 
complete the deposit until October 1997 (at retirement). The other 
service is not used in the computation of the Federal Benefit Payment 
because the payment was not completed as of June 30, 1997. Thus, the 
result is the same as in example 5B.

                      Example 5C--Teachers Optional
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 09/10/36
Hire date: 10/09/67
Separation date: 10/11/97
Department service: 30/00/03
Other service: 03/04/21
Partial deposit paid as of 6/30/97:
Deposit completed after 6/30/97:
Sick leave:
.015 service: 5
.0175 service: 5
.02 service: 23.333333
Average salary: $45,680.80
Total: $28,740.85
Total/month: $2,395.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 09/10/36
Hire date: 10/09/67
Freeze date: 06/30/97
Department service: 29/08/22
Other service: none
Partial deposit paid as of 6/30/97:
Deposit completed after 6/30/97:
Sick leave:
.015 service: 5
.0175 service: 5
.02 service: 19.666667; 22 days dropped
Average salary: $45,680.80
Total: $25,390.90
Total/month: $2,116.00
Total federal/month / total/month: 0.883507
------------------------------------------------------------------------

                     Disability Retirement Examples

 Example 6: Disability Occurs Before Eligibility for Optional Retirement

    A. In this example, an individual covered by the Police and 
Firefighters Plan hired before 1980 retires based on a disability in the 
line of duty in October 1997. At retirement, he is age 45 with 18 years, 
5 months, and 11 days of departmental service. Since he had performed 
less than 20 years of service and had not reached the age of eligibility 
for an optional retirement, the Federal Benefit Payment does not begin 
at retirement. When the disability annuitant reaches age 55, he 
satisfies the age and service requirements for deferred retirement. At 
that time (August 20, 2007), the Federal Benefit Payment begins. It is 
based on the 18 years, 1 month, and 17 days of departmental service 
performed as of June 30, 1997, all at the 2.5 percent accrual rate.

[[Page 310]]



          Example 6A--Police Disability in Line of Duty, Age 45
                              [Pre-80 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 08/20/52
Hire date: 05/14/79
Separation date: 10/24/97
Department service: 18/05/11
Other service:
Sick leave:
.025 service: 18.416667
.03 service:
Average salary: $47,788.64
Final salary: $50,938.00
Total: $22,002.70
Total/month: $1,834.00
2/3 of average pay: $31,859.11
Monthly: $2,655.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 08/20/52
Hire date: 05/14/79
Freeze date: 06/30/97
Department service: 18/01/17
Other service:
Sick leave:
.025 service: 18.083333
.03 service:
Average salary: $47,788.64
Final salary: $50,938.00
Total: $21,604.43
Total/month: $1,800.00; deferred
Total federal/month / total/month: 0.0 (at time of retirement)
------------------------------------------------------------------------

    B. In this example, an individual covered by the Teachers Plan hired 
before 1996 retires based on a disability in December 1997. At 
retirement, she is age 49 with 27 years and 4 months of departmental 
service which includes 3 years, 3 months and 14 days of excess leave 
without pay (prior to June 30, 1997). Since she does not qualify for 
optional retirement at separation, the Federal Benefit Payment does not 
begin at separation. When the disability annuitant reaches age 62, she 
will satisfy the age and service requirements for deferred retirement. 
At that time (March 9, 2010), the Federal Benefit Payment begins. The 
time attributable to the excess leave without pay is subtracted from the 
service used to compute the Federal Benefit Payment. Since the excess 
leave without pay occurred before June 30, 1997, the deferred Federal 
Benefit Payment is based on the 23 years and 6 months of service; 5 
years of service at the 1.5 percent accrual rate, 5 years of service at 
the 1.75 percent accrual rate, and 13 and 6 months of service at the 2 
percent accrual rate.

                 Example 6B--Teachers Disability Age 49
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 03/09/48
Hire date: 09/01/70
Separation date: 12/31/97
Department service: 27/04/00
Other service:
Excess LWOP: 03/03/14
.015 service: 5
.0175 service: 5
.02 service: 14
Average salary: $53,121.00
Total: $23,506.04
Total/month: $1,959.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 03/09/48
Hire date: 09/01/70
Freeze date: 06/30/97
Department service: 26/10/00
Other service:
Excess LWOP: 03/03/14
.015 service: 5
.0175 service: 5
.02 service: 13.5
Average salary: $53,121.00
Total: $22,974.83
Total/month: $1,915.00; deferred
Total federal/month / total/month: 0.0 (at time of retirement)
------------------------------------------------------------------------

 Example 7: Disability Occurs After Eligibility for Optional Retirement

    A. In this example, an individual covered by the Police and 
Firefighters Plan hired before 1980 retires based on a disability in the 
line of duty in October 1997. At retirement, she is age 55 with 24 
years, 5 months, and 11 days of departmental service. Since she was also 
eligible for optional retirement at the time of separation, the Federal 
Benefit Payment commences at retirement. It is based on the 24 years, 1 
month, and 17 days of departmental service performed as of June 30, 
1997. Thus, the Federal Benefit Payment is based on 20 years of service 
at the 2.5 percent accrual rate and 4 years and 1 month of service at 
the 3 percent accrual rate. The total annuity is based on the disability 
formula and is equal to two-thirds of average pay because that amount is 
higher than the 63.25 percent payable based on total service.

[[Page 311]]



          Example 7A--Police Disability in Line of Duty Age 55
                              [Pre-80 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 10/01/42
Hire date: 05/14/73
Separation date: 10/24/97
Department service: 24/05/11
Other service:
Sick leave:
.025 service: 20
.03 service: 4.416667
Average salary: $47,788.64
Final salary: $50,938.00
Total: $30,226.31
Total/month: $2,519.00
2/3 of average pay: $31,859.11
Monthly: $2,655.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 10/01/42
Hire date: 05/14/73
Freeze date: 06/30/97
Department service: 24/01/17
Other service:
Sick leave:
.025 service: 20
.03 service: 4.083333
Average salary: $47,788.64
Final salary: $50,938.00
Total: $29,748.43
Total/month: $2,479.00
Total federal/month / total/month: 0.984121
------------------------------------------------------------------------

    B. In this example, an individual covered by the Teachers Plan hired 
before 1996 retires based on a disability in December 1997. At 
retirement, he is age 60 with 27 years and 4 months of departmental 
service which includes 3 years, 3 months and 14 days of excess leave 
without pay (prior to June 30, 1997). Since he qualifies for optional 
retirement at separation, the Federal Benefit Payment begins at 
retirement. Since the excess leave without pay occurred before June 30, 
1997, and the total annuity is based on actual service (that is, exceeds 
the guaranteed disability minimum), the time attributable to the excess 
leave without pay is subtracted from the service used to compute the 
Federal Benefit Payment and total benefit. The Federal Benefit Payment 
is based on 23 years and 6 months of service; 5 years of service at the 
1.5 percent accrual rate, 5 years of service at the 1.75 percent accrual 
rate, and 13 years and 6 months of service at the 2 percent accrual 
rate. The total annuity payable is based on 24 years of service; 5 years 
of service at the 1.5 percent accrual rate, 5 years of service at the 
1.75 percent accrual rate, and 14 years of service at the 2 percent 
accrual rate.

                 Example 7B--Teachers Disability Age 60
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 03/09/37
Hire date: 09/01/70
Separation date: 12/31/97
Department service: 27/04/00
Other service:
Excess LWOP: 03/03/14
.015 service: 5
.0175 service: 5
.02 service: 14
Average salary: $53,121.00
Total: $23,506.04
Total/month: $1,959.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 03/09/37
Hire date: 09/01/70
Freeze date: 06/30/97
Department service: 26/10/00
Other service:
Excess LWOP: 03/03/14
.015 service: 5
.0175 service: 5
.02 service: 13.5
Average salary: $53,121.00
Total: $22,974.83
Total/month: $1,915.00
Total federal/month / total/month: 0.977540
------------------------------------------------------------------------

                      Deferred Retirement Examples

               Example 8: All Service Before June 30, 1997

    In this example, an individual covered by the Police and 
Firefighters Plan hired before 1980 separated in March 1986 with title 
to a deferred annuity. In November 1997, he reaches age 55 and becomes 
eligible for the deferred annuity based on his 15 years, 9 months, and 8 
days of departmental service, all at the 2.5 percent accrual rate. The 
total annuity is based on the same 15 years, 9 months, and 8 days of 
service all at the 2.5 percent accrual rate. Since all the service is 
creditable as of June 30, 1997, the Federal Benefit Payment equals the 
total annuity.

[[Page 312]]



                       Example 8--Police Deferred
                              [Pre-80 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 11/20/42
Hire date: 06/01/70
Separation date: 03/08/86
Department service: 15/09/08
Other service:
Sick leave:
.025 service: 15.75
.03 service: 0
Average salary: $30,427.14
Final salary: $45,415.00
Total: $11,980.69; deferred
Total/month: $998.00; deferred
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 11/20/42
Hire date: 06/01/70
Freeze date: 03/08/86
Department service: 15/09/08
Other service:
Sick leave:
.025 service: 15.75
.03 service: 0
Average salary: $30,427.14
Final salary: $45,415.00
Total: $11,980.69; deferred
Total/month: $998.00; deferred
Total federal/month / total/month: 1.0; deferred
------------------------------------------------------------------------

               Example 9: Service Straddles June 30, 1997

    In this example, an individual covered by the Police and 
Firefighters Plan hired before 1980 separated in December 1997 with 
title to a deferred annuity. In November 2007, he will reach age 55 and 
becomes eligible to receive a deferred annuity. At that time, the 
Federal Benefit Payment begins. It is based on the 18 years and 1 month 
of departmental service performed as of June 30, 1997, all at the 2.5 
percent accrual rate. The total annuity begins at the same time, based 
on his 18 years, 6 months, and 8 days of departmental service, all at 
the 2.5 percent accrual rate.

                       Example 9--Police Deferred
                              [Pre-80 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 11/20/52
Hire date: 06/01/79
Separation date: 12/08/97
Department service: 18/06/08
Other service:
Sick leave:
.025 service: 18.5
.03 service: 0
Average salary: $30,427.14
Final salary: $45,415.00
Total: $14,072.55; deferred
Total/month: $1,173.00; deferred
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 11/20/52
Hire date: 06/01/79
Freeze date: 06/30/97
Department service: 18/01/00
Other service:
Sick leave:
.025 service: 18.083333
.03 service: 0
Average salary: $30,427.14
Final salary: $45,415.00
Total: $13,755.60; deferred
Total/month: $1,146.00; deferred
Total federal/month / total/month: 0.976982; deferred
------------------------------------------------------------------------

            Reduction To Provide a Survivor Annuity Examples

               Example 10: Survivor Reduction Calculations

    Both of the following examples involve a former teacher who elected 
a reduced annuity to provide a survivor benefit:
    A. In this example, the employee elects to provide full survivor 
benefits of 55% of the employee's unreduced annuity. The total annuity 
is reduced by 2\1/2\ percent of the first $3600 and 10 percent of the 
balance. The reduced Federal Benefit Payment is determined by 
multiplying the reduced total annuity (rounded) by the ratio of the 
unreduced Federal Benefit Payment to the unreduced total annuity. 
Military service occurred prior to June 30, 1997 and purchase of other 
service was completed prior to June 30, 1997.

           Example 10A--Teachers Optional W/Survivor Reduction
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 11/01/42
Hire date: 11/01/68
Separation date: 12/31/97
Department service: 29/02/00
Other service: 03/09/18

[[Page 313]]

 
Military: 00/09/11
.015 service: 5
.0175 service: 5
.02 service: 23.666667
Average salary: $66,785.00
Total unreduced: $42,464.13
Total unreduced/month: $3,539.00
Reduction: $3,976.41
Total: $38,487.72
Total/month: $3,207.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 11/01/42
Hire date: 11/01/68
Freeze date: 06/30/97
Department service: 28/08/00
Other service: 03/09/18
Military: 00/09/11
.015 service: 5
.0175 service: 5
.02 service: 23.166667
Average salary: $66,785.00
Total federal unreduced: $41,796.28
Total federal unreduced/month: $3,483.00
Total federal unreduced/month / total unreduced/month: 0.984176
Total federal/month: $3,156.00
------------------------------------------------------------------------

    B. In this example, the employee elects to provide a partial 
survivor annuity of 26% of the employee's unreduced annuity. The total 
annuity is reduced by 2\1/2\ percent of the first $3,600 of $20,073.95 
and 10 percent of the balance. The reduced Federal Benefit Payment is 
determined by multiplying the reduced total annuity (rounded) by the 
ratio of the unreduced Federal Benefit Payment to the unreduced total 
annuity.

           Example 10B--Teachers Optional W/Survivor Reduction
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 11/01/42
Hire date: 11/01/68
Separation date: 12/31/97
Department service: 29/02/00
Other service: 03/09/18
Military: 00/09/11
.015 service: 5
.0175 service: 5
.02 service: 23.666667
Average salary: $66,785.00
Total unreduced: $42,464.13
Total unreduced/month: $3,539.00
Reduction: $1,737.40
Total reduced: $40,726.73
Total reduced/month: $3,394.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 11/01/42
Hire Date: 11/01/68
Freeze date: 06/30/97
Department service: 28/08/00
Other service: 03/09/18
Military: 00/09/11
.015 service: 5
.0175 service: 5
.02 service: 23.166667
Average salary: $66,785.00
Total federal unreduced: $41,796.28
Total federal unreduced/month: $3,483.00
Total federal unreduced/month / total unreduced/month: 0.984176
Total federal reduced/month: $3,340.00
------------------------------------------------------------------------

            Early Optional or Involuntary Retirement Examples

              Example 11: Early Optional With Age Reduction

    In this example, an individual covered by the Teachers Plan hired 
before 1996 retires voluntarily in February 1998, under a special 
program that allows early retirement with at least 20 years of service 
at age 50 older, or at least 25 years of service at any age. At 
retirement, she is 6 full months short of age 55. She has 25 years and 5 
months of departmental service; 6 years, 2 months, and 19 days of other 
service (creditable before June 30, 1997); and 2 months and 9 days of 
unused sick leave. Since she is not eligible for optional retirement and 
she is eligible to retire voluntarily only because of the District-
approved special program, the Federal Benefit Payment is calculated 
similar to a disability retirement. It does not begin until she becomes 
eligible for a deferred annuity at age 62. When it commences the Federal 
Benefit Payment will be based on the service creditable as of June 30, 
1997: 30 years and 11 months of service; 5 years of service at the 1.5 
percent accrual rate, 5 years of service at the 1.75 percent accrual 
rate, and 20 years and 11 months of service at the 2 percent accrual 
rate. The total annuity is based on 5 years of service at the 1.5 
percent accrual rate, 5 years of service at the 1.75 percent accrual 
rate and 21 years and 9 months of service at the 2 percent accrual rate 
(including

[[Page 314]]

the unused sick leave). Because the Federal Benefit Payment is based on 
the deferred annuity, rather than the early voluntary retirement, it is 
not reduced by the age reduction factor used to compute the total 
benefit.

             Example 11--Teachers Early Out W/Age Reduction
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 09/20/43
Hire date: 10/01/72
Separation date: 02/28/98
Department service: 25/05/00
Other service: 06/02/19
Sick leave: 00/02/09
.015 service: 5
.0175 service: 5
.02 service: 21.75
Average salary: $69,281.14
Total unreduced: $41,395.48
Age reduction factor: 0.990000
Total reduced: $40,981.53
Total/month: $3,415.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 09/20/43
Hire date: 10/01/72
Freeze date: 06/30/97
Department service: 24/09/00
Other service: 06/02/19
.015 service: 5
.0175 service: 5
.02 service: 20.916667
Average salary: $69,281.14
Total unreduced: $40,240.80; deferred
Reduction factor: 1.000000 no reduction
Total reduced: $40,240.80; deferred
Total/month: $3,353.00 deferred
Total federal unreduced/month / Total unreduced/month: 0.0 (at time of
 retirement)
------------------------------------------------------------------------

               Example 12: Involuntary With Age Reduction

    In this example, an individual covered by the Teachers Plan hired 
before 1996 retires involuntarily in February 1998. At retirement, she 
is 6 full months short of age 55. She has 25 years and 5 months of 
departmental service; 6 years, 2 months, and 19 days of other service 
(creditable before June 30, 1997); and 2 months and 9 days of unused 
sick leave. The Federal Benefit Payment begins at retirement. It is 
based on the 30 years and 11 months of service; 5 years of service at 
the 1.5 percent accrual rate, 5 years of service at the 1.75 percent 
accrual rate, and 20 years and 11 months of service at the 2 percent 
accrual rate. The total annuity is based on 5 years of service at the 
1.5 percent accrual rate, 5 years of service at the 1.75 percent accrual 
rate and 21 years and 9 months of service at the 2 percent accrual rate 
(including the unused sick leave). Both the Federal Benefit Payment and 
the total benefit are reduced by the age reduction factor.

            Example 12--Teachers Involuntary W/Age Reduction
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 09/20/43
Hire date: 10/01/72
Separation date: 02/28/98
Department service: 25/05/00
Other service: 06/02/19
Sick leave: 00/02/09
.015 service: 5
.0175 service: 5
.02 service: 21.75
Average salary: $69,281.14
Total unreduced: $41,395.48
Age reduction factor: 0.990000
Total reduced: $40,981.53
Total/month: $3,415.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 09/20/43
Hire date: 10/01/72
Freeze date: 06/30/97
Department service: 24/09/00
Other service: 06/02/19
.015 service: 5
.0175 service: 5
.02 service: 20.916667
Average salary: $69,281.14
Total unreduced: $40,240.80
Age reduction factor: 0.990000
Total reduced: $39,838.39
Total/month: $3,320.00
Total federal/month / total/month: 0.972182
------------------------------------------------------------------------

                         Death Benefits Example

                 Example 13: Death Benefits Calculation

    Examples A and B involve service-based death benefits calculations. 
Examples C-F involve non-service-based death benefits calculations. 
Examples G and H involve disability death benefit calculations.
    A. In this example, an individual covered by the Teachers Plan 
retires in December 1997 and elects to provide a full survivor annuity. 
He dies in June 1998. The survivor's

[[Page 315]]

Federal Benefit Payment is 98.4 percent ($3,483 / $3,539) of the total 
survivor benefit.

                  Example 13A--Teachers Death Benefits
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 11/01/42
Hire date: 11/01/68
Separation date: 12/31/97
Death date: 06/24/98
Department service: 29/02/00
Other service: 03/09/18
Military: 00/09/11
Average salary: $66,785.00
Total unreduced/month (retiree): $3,539.00
Total/month (survivor): $1,946.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 11/01/42
Hire date: 11/01/68
Freeze date: 06/30/97
Death date: 06/24/98
Department service: 28/08/00
Other service: 03/09/18
Military: 00/09/11
Average salary: $66,785.00
Total federal unreduced/month (retiree): $3,483.00
Total federal unreduced/month (retiree) / total unreduced/month
 (retiree): 0.984176
Total federal/month (survivor): $1,915.00
------------------------------------------------------------------------

    B. In this example, a teacher dies in service on June 30, 1998 after 
31 years of departmental service. Since the survivor annuity is based on 
actual service, the Federal Benefit Payment is 96.5 percent ($1,818 / 
$1,883) of the total survivor benefit.

                  Example 13B--Teachers Death Benefits
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 07/01/39
Hire date: 07/01/67
Separation date: 06/30/98
Death date: 06/30/98
Department service: 31/00/00
Average salary: $38,787.88
Total (retiree): $22,593.94
Total/month (retiree): $1,883.00
Total/month (survivor): $1,036.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 07/01/39
Hire date: 07/01/67
Freeze date: 06/30/97
Death date: 06/30/98
Department service: 30/00/00
Average salary: $38,787.88
Total federal (retiree): $21,818.18
Total federal/month (retiree): $1,818.00
Total federal/month (retiree) / total/month (retiree): 0.965481
Total federal/month (survivor): $1,000.00
------------------------------------------------------------------------

    C. In this example, as in Example A, an individual covered by the 
Teachers Plan retires in December 1997 but elects to provide a survivor 
annuity of $12,000. He dies in June 1998. Because the amount of the 
survivor annuity is not service-based, the Federal Benefit Payment is a 
prorated portion of the total benefit. Since the teacher had 398 months 
of service as of the freeze date and 404 months of service, at 
retirement, the Federal Benefit Payment equals 398/404ths of the total 
benefit.

                  Example 13C--Teachers Death Benefits
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 11/01/42
Hire date: 11/01/68
Separation date: 12/31/97
Death date: 06/24/98
Department service: 29/02/00
Other service: 03/09/18
Military: 00/09/11
Months of service: 404
Total: $12,000.00
Total/month: $1,000.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 11/01/42
Hire date: 11/01/68
Freeze date: 06/30/97
Death date: 06/24/98
Department service: 28/08/00
Other service: 03/09/18
Military: 00/09/11
Months of service: 398
Federal service / total service: 0.985149
Total: $11,820.00
Total/month: $985.00
------------------------------------------------------------------------

    D. In this example, a teacher dies in service on April 1, 1998 after 
14 years and 6 months of departmental service. Because the

[[Page 316]]

survivor annuity is based on the guaranteed minimum, the Federal Benefit 
Payment is a prorated portion of the total benefit. Since the teacher 
had 165 months of service as of the freeze date and 180 months of 
service, including unused sick leave, at death, the Federal Benefit 
Payment equals 165/180ths of the total benefit.

                  Example 13D--Teachers Death Benefits
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 04/01/61
------------------------------------------------------------------------
Hire date: 10/01/83
Separation date: 04/01/98
Death date: 04/01/98
Department service: 14/06/01
Unused Sick Leave: 00/06/00
Average salary: $36,000.00
Months of service: 180
Total: $7,920.00
Total/month: $660.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 04/01/61
Hire date: 04/01/83
Freeze date: 06/30/97
Death date: 04/01/98
Department Service: 13/09/00
Average salary: $36,000.00
Months of service: 165
Federal service / total service: 0.916667
Total: $7,260.00
Total/month: $605.00
------------------------------------------------------------------------

    E. In this example, as in the prior example, a teacher dies in 
service on April 1, 1998 after 15 years of departmental service. 
However, in this example, the teacher was age 40 on the hire date. The 
amount of service used in the survivor annuity calculation equals the 
amount of service that the teacher would have had if the teacher 
continued covered employment until age 60. Because the survivor annuity 
is based on projected service, a form of the guaranteed minimum, the 
Federal Benefit Payment is a prorated portion of the total benefit. 
Since the teacher had 171 months of service as of the freeze date and 
180 months of service at death, the Federal Benefit Payment equals 171/
180ths of the total benefit.

                  Example 13E--Teachers Death Benefits
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 04/01/43
Hire date: 04/01/83
Separation date: 04/01/98
Death date: 04/01/98
Department service: 15/00/01
Departmental Service projected to age 60: 20/00/01
.015 service: 5
.0175 service: 5
.02 service: 10
Average salary: $36,000.00
Months of service: 180
Total: $7,177.50
Total/month: $598.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 04/01/43
Hire date: 04/01/83
Freeze date: 06/30/97
Death date: 04/01/98
Department service: 14/03/00
Average salary: $36,000.00
Months of service: 171
Federal service / total service: 0.950000
Total: $6,818.63
Total/month: $568.00
------------------------------------------------------------------------

    F. In this example, a police officer dies in the line of duty on 
July 31, 2001 after 18 years of departmental service. The survivor 
annuity is equal to 100 percent of the officer's pay at the time of 
death, as provided by District legislation effective October 1, 2000. 
However, the Federal Benefit Payment is calculated based on plan 
provisions in effect on June 29, 1997, which provided for a survivor 
annuity equal to 40 percent of the officer's pay at the time of death. 
Because the Federal Benefit Payment is not service-based and the officer 
had 167 months of service as of the freeze date and 216 months of 
service, including unused sick leave, at death, the Federal Benefit 
Payment equals 167/216ths of the total benefit calculated according to 
plan provisions in effect on July 1, 1997. The difference between the 
total benefit paid and the Federal Benefit Payment calculated according 
to plan provisions in effect on June 29, 1997 is the responsibility of 
the District government.

[[Page 317]]



                   Example 13F--Police Death Benefits
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 07/13/62
Hire date: 08/01/83
Death date: 07/31/2001
Department service: 18/00/00
Average salary: $54,000.00
Final salary: $56,000.00
Months of service: 216
Total: $56,004.00
Total/month: $4,667.00
Total based on July 1, 1997 provisions: $21,600.00
Total/month based on July 1, 1997 provisions: $1,800.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 07/13/62
Hire date: 08/01/83
Freeze date: 06/30/97
Death date: 07/31/2001
Department service: 13/11/00
Months of service: 167
Federal service / total service: 0.773148
Total: $16,704.00
Total/month: $1,392.00
------------------------------------------------------------------------

    G. In this example, a firefighter dies on July 1, 1999 at age 47 
after retiring based on a disability in the line of duty in November 
1997. At separation, the firefighter was not eligible for optional 
retirement but was eligible to receive a deferred retirement annuity at 
age 55. Therefore, the survivor's Federal Benefit Payment is calculated 
based on the plan rules for deferred retirees. Under the Police and 
Firefighters Plan, if a separated police officer or firefighter eligible 
for deferred retirement dies before reaching age 55, the survivor is 
eligible to receive an annuity. The survivor annuity is based on the 
firefighter's adjusted average pay. Therefore, the survivor's Federal 
Benefit Payment is a prorated portion of the survivor annuity. Since the 
firefighter had 217 months of service as of the freeze date and 222 
months of service at retirement, the survivor's Federal Benefit Payment 
equals 217/222nds of the total survivor benefit.

   Example 13G--Firefighters Disability/Early Voluntary Death Benefits
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 08/20/52
Hire date: 05/14/79
Separation date: 11/28/97
Death date: 07/01/99
Department service: 18/06/15
Adjusted average salary: $45,987.00
Months of service: 222
Total: $18,396.00
Total/month: $1,533.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 08/20/52
Hire date: 05/14/79
Freeze date: 06/30/97
Death date: 07/01/99
Department service: 18/01/17
Adjusted average salary: $45,987.00
Months of service: 217
Federal service / total service: .977477
Total: $17,976.00
Total/month: $1,498.00
------------------------------------------------------------------------

    H. In this example, a teacher dies on August 3, 1999 at age 58 after 
retiring based on a disability in April 1998. At separation, the teacher 
was not eligible for optional retirement but was eligible to receive a 
deferred retirement annuity at age 62. Therefore, the survivor's Federal 
Benefit Payment is calculated based on the plan rules for deferred 
retirees. Under the Teachers Plan, if a separated teacher eligible for 
deferred retirement dies before reaching age 62, the survivor is not 
eligible to receive an annuity. Therefore, the survivor's Federal 
Benefit Payment is zero and the survivor annuity is the full 
responsibility of the District.

     Example 13H--Teachers Disability/Early Voluntary Death Benefits
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 08/01/41
Hire date: 07/01/76
Separation date: 04/30/98
Death date: 08/03/99
Total: $21,888.00
Total/month: $1,824.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 08/01/41
Hire date: 07/01/76
Separation date: 04/30/98
Death date: 08/03/99
Total: $0.00
Total/month: $0.00
Total federal/month / total/month: 0.0
------------------------------------------------------------------------


[[Page 318]]

                Cost of Living Adjustment (COLA) Examples

          Example 14: Application of Cost of Living Adjustments

    In cases in which the District plan applies the same cost of living 
adjustment that is provided for the Federal Benefit Payment, the federal 
percentage is applied to the new total benefit after the adjustment to 
determine the new Federal Benefit Payment after the adjustment.
    A. In this example, a teacher retiree receives a cost of living 
adjustment that is the same for the federal and District portions of the 
total benefit. The federal percentage for the retiree is applied to the 
new total benefit after the adjustment to determine the new Federal 
Benefit Payment after the adjustment.

        Example 14A--Teachers COLA--Retiree W/Survivor Reduction
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                   Benefit Computation (at retirement)
------------------------------------------------------------------------
Total unreduced: $42,464.13
Total unreduced/month: $3,539.00
Total/month: $3,207.00
Federal unreduced: $41,796.28
Federal unreduced/month: $3,483.00
Federal percentage = federal unreduced/month / total unreduced/month:
 0.984176
------------------------------------------------------------------------
                            COLA Computation
------------------------------------------------------------------------
District and Federal COLA rate 5%:
Total COLA: $160.00
New total/month: $3,367.00
New federal benefit/month = new total benefit/month x federal percentage
 = $3,314.00
------------------------------------------------------------------------

    B. In this example, a survivor of a deceased teacher retiree 
receives a cost of living adjustment that is the same for the federal 
and District portions of the total benefit. Since the survivor benefit 
is service related, the federal percentage for the retiree is applied to 
the new total benefit of the survivor after the adjustment to determine 
the new Federal Benefit Payment after the adjustment.

             Example 14B--Teachers COLA--Survivor of Retiree
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
   Benefit Computation (at death of retiree whose annuity was based on
                 service--percentage survivor election)
------------------------------------------------------------------------
Total/month: $2,043.00
Federal percentage (retiree): 0.984176
Federal/month: $2,011.00
------------------------------------------------------------------------
                            COLA Computation
------------------------------------------------------------------------
District and Federal COLA rate 4.5%:
Total COLA: $92.00
New total/month: $2,135.00
New federal benefit/month = new total benefit/month x federal percentage
 = $2,101.00
------------------------------------------------------------------------

    C. In this example, a survivor of a deceased teacher retiree 
receives a cost of living adjustment that is the same for the federal 
and District portions of the total benefit. Since the survivor annuity 
is non-service related, the federal percentage for the survivor is 
applied to the new total benefit of the survivor after the adjustment to 
determine the new Federal Benefit Payment after the adjustment.

             Example 14C--Teachers COLA--Survivor of Retiree
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Benefit Computation (at death of retiree--flat amount survivor election)
------------------------------------------------------------------------
Total months of service: 404
Federal months of service: 398
Total/month: $1,000.00
Federal percentage = federal service / total service: 0.985149
Federal/month: $985.00
------------------------------------------------------------------------
                            COLA Computation
------------------------------------------------------------------------
District and Federal COLA rate 4.5%:
Total COLA: $45.00
New total/month: $1,045.00
New federal benefit/month = new total benefit/month x federal percentage
 = $1,029.00
------------------------------------------------------------------------
Note: This method also applies to a percentage survivor election by a
  retiree whose annuity was based on a guaranteed minimum.

    D. In this example, a survivor of a deceased teacher receives a cost 
of living adjustment that is the same for the federal and District

[[Page 319]]

portions of the total benefit. Since the survivor annuity is service 
related, the federal percentage based on the deceased teacher's service 
is applied to the new total benefit of the survivor after the adjustment 
to determine the new Federal Benefit Payment after the adjustment.

            Example 14D--Teachers COLA--Survivor of Employee
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
            Benefit Computation (at death--based on service)
------------------------------------------------------------------------
Total/month: $1,036.00
Federal/month: $1,000.00
Federal percentage = federal/month / total/month: 0.965251
------------------------------------------------------------------------
                            COLA Computation
------------------------------------------------------------------------
District and Federal COLA rate: 5%
Total COLA: $52.00
New total benefit/month: $1,088.00
New federal benefit/month = new total benefit/month x federal percentage
 = $1,050.00
------------------------------------------------------------------------

    E. In this example, a survivor of a deceased teacher receives a cost 
of living adjustment that is the same for the federal and District 
portions of the total benefit. Since the survivor annuity is non-service 
related, the federal percentage for the survivor is applied to the new 
total benefit of the survivor after the adjustment to determine the new 
Federal Benefit Payment after the adjustment.

            Example 14E--Teachers COLA--Survivor of Employee
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
           Benefit Computation (at death--guaranteed minimum)
------------------------------------------------------------------------
Total months of service: 180
Federal months of service: 171
Total/month: $598.00
Federal percentage = federal service / total service: 0.950000
Federal/month: $568.00
------------------------------------------------------------------------
                            COLA Computation
------------------------------------------------------------------------
District and Federal COLA rate 5%:
Total COLA: $30.00
New total/month: $628.00
New federal benefit/month: = new total benefit/month x federal
 percentage = $597.00
------------------------------------------------------------------------

    F. In this example, a survivor of a deceased retired police officer 
receives a cost of living adjustment that is the same for the federal 
and District portions of the total benefit. Since the survivor annuity 
is non-service related, the federal percentage for the survivor is 
applied to the new total benefit of the survivor after the adjustment to 
determine the new Federal Benefit Payment after the adjustment.

              Example 14F--Police COLA--Survivor of Retiree
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                Benefit Computation (at death of retiree)
------------------------------------------------------------------------
Total months of service: 240
Federal months of service: 236
Total/month: $1,614.00
Federal percentage = federal service / total service: 0.983333
Federal/month: $1,587.00
------------------------------------------------------------------------
                            COLA Computation
------------------------------------------------------------------------
District and Federal COLA rate 5%:
Total COLA: $81.00
New total/month: $1,695.00
New federal benefit/month = new total benefit/month x federal percentage
 = $1,667.00
------------------------------------------------------------------------

    G. In this example, a survivor of a deceased firefighter receives a 
cost of living adjustment that is the same for the federal and District 
portions of the total benefit. Since the survivor annuity is non-service 
related, the federal percentage for the survivor is applied to the new 
total benefit of the survivor after the adjustment to determine the new 
Federal Benefit Payment after the adjustment.

           Example 14G--Firefighter COLA--Survivor of Employee
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
     Benefit Computation (at death of employee in the line of duty)
------------------------------------------------------------------------
Total/month: $4,667.00
Federal/month: $1,867.00
Federal percentage = federal/month
 / Total/month: 0.400043
------------------------------------------------------------------------
                            COLA Computation
------------------------------------------------------------------------
District and Federal COLA rate 4.5%:
Total COLA: $210.00
New total benefit/month: $4,877.00

[[Page 320]]

 
New federal benefit/month = New total benefit/month x federal percentage
 = $1,951.00
------------------------------------------------------------------------

    H. In this example, a new District plan provision applies a 
different cost of living adjustment than is provided for the Federal 
Benefit Payment. In Variation 1, the federal cost of living adjustment 
is applied to the Federal Benefit Payment and the District cost of 
living adjustment is applied to the total benefit. In Variation 2, the 
federal cost of living adjustment is applied to the Federal Benefit 
Payment and the District cost of living adjustment is applied to the 
District benefit payment. A new federal percentage equal to the ratio of 
the Federal Benefit Payment to the total benefit is established after 
the adjustments.

                       Example 14H--Teachers COLA
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                   Benefit Computation (at retirement)
------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 11/04/48
Hire date: 03/01/86
Separation date: 02/28/2013
Department service: 27/00/00
Other service paid in 1995: 06/07/28
Excess LWOP in 1990: 00/03/18
.015 service: 5
.0175 service: 5
.02 service: 23.333333
Average salary: $53,121.00
Total: $33,421.96
Total/month: $2,785.00
------------------------------------------------------------------------
                   Benefit Computation (at retirement)
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 11/04/48
Hire date: 03/01/86
Freeze date: 06/30/1997
Department service: 11/04/00
Other service paid in 1995: 06/07/28
Excess LWOP in 1990: 00/03/18
.015 service: 5
.0175 service: 5
.02 service: 7.666667
Average salary: $53,121.00
Total: $16,777.38
Total/month: $1,398.00
Federal percentage: 0.501975
------------------------------------------------------------------------
                 COLA Computation Variations Variation 1
------------------------------------------------------------------------
District COLA rate 5% applied to total benefit:
Total COLA: $139.00
New total benefit/month: $2,924.00
Federal COLA rate 4%
Federal COLA: $56.00
New federal benefit/month: $1,454.00
New federal percentage: 0.497264
------------------------------------------------------------------------
                               Variation 2
------------------------------------------------------------------------
District COLA rate 5% applied to District benefit:
Old District benefit/month: $1,387.00
District COLA: $69.00
New District benefit/month: $1,456.00
Federal COLA rate 4%:
Federal COLA: $56.00
New federal benefit/month: $1,454.00
New total benefit/month: $2,910.00
New federal percentage: 0.499656
------------------------------------------------------------------------

             Retroactive Payment of Accrued Annuity Example

             Example 15: Accrual of Federal Benefit Payment

    The Federal Benefit Payment begins to accrue on the annuity 
commencing date, regardless of whether the employee is added to the 
annuity roll in time for the regular payment cycle. If the employee is 
due a retroactive payment of accrued annuity, the portion of the 
retroactive payment that would have been a Federal Benefit Payment (if 
it were made in the regular payment cycle) is still a Federal Benefit 
Payment. In this example, a teacher retired effective September 11, 
1998. She was added to the retirement rolls on the pay date November 1, 
1998 (October 1 to October 31 accrual cycle). Her Federal Benefit 
Payment is $3000 per month and her total benefit payment is $3120 per 
month. Her initial check is $5200 because it includes a prorated payment 
for 20 days (September 11 to September 30). The Federal Benefit Payment 
is $5000 of the initial check ($3000 for the October cycle and $2000 for 
the September cycle).

                  Example 15--Teachers Accrued Benefit
                              [Pre-96 hire]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                        Total Annuity Computation
------------------------------------------------------------------------
Birth date: 11/01/42
Hire date: 09/01/66

[[Page 321]]

 
Separation date: 09/10/98
Department service: 32/00/10
.015 service: 5
.0175 service: 5
.02 service: 22
Average salary: $62,150.00
Total: $37,445.38
Total/month: $3,120.00
Sept 11-30: $2,080.00
Oct 1-31: $3,120.00
Nov 1-30: $3,120.00
------------------------------------------------------------------------
                   Federal Benefit Payment Computation
------------------------------------------------------------------------
Birth date: 11/01/42
Hire date: 09/01/66
Freeze date: 06/30/97
Department service: 30/10/00
.15 service: 5
.0175 service: 5
.02 service: 20.833333
Average salary: $62,150.00
Total: $35,995.21
Total/month: $3,000.00
Sept 11-30: $2,000.00
Oct 1-31: $3,000.00
Nov 1-30: $3,000.00
------------------------------------------------------------------------



                 Subpart D_Claims and Appeals Procedures

    Source: 65 FR 80753, Dec. 22, 2000, unless otherwise noted.



Sec.  29.401  Purpose.

    (a) This subpart explains--
    (1) The procedures that participants and beneficiaries in the Judges 
Plan, Police and Firefighters Plan, and the Teachers Plan must follow in 
applying for Federal Benefit Payments;
    (2) The procedures for determining an individual's eligibility for a 
Federal Benefit Payment and the amount and form of an individual's 
Federal Benefit Payment as required by sections 11021 and 11251(a) 
(codified at DC Official Code section 11-1570(c)(2)(a)) of the Act;
    (3) The appeal rights available under section 11022(a) of the Act 
and section 3 of the 2004 Act (codified at DC Official Code section 11-
1570(c)(3)) to claimants whose claim for Federal Benefit Payments is 
denied in whole or in part; and
    (4) The special rules for processing competing claimant cases.
    (b) This subpart does not apply to processing collection of debts 
due to the United States.
    (c) This part does not apply to claims and appeals filed before 
October 1, 1997. Such claims must be pursued with the District of 
Columbia.

[65 FR 80753, Dec. 22, 2000, as amended at 70 FR 60005, Oct. 14, 2005]



Sec.  29.402  Definitions.

    In this subpart--
    Beneficiary means an individual designated by a participant, or by 
the terms of the Judges Plan, Police and Firefighters Plan, or Teachers 
Plan, who is or may become entitled to a benefit under those plans.
    Claimant means any person seeking a benefit for themselves or 
another under the Judges Plan, Police and Firefighters Plan, or Teachers 
Plan.
    Department means the Secretary of the Treasury or a designee 
authorized to exercise the Secretary's authority with respect to Federal 
Benefit Payments under the Act.
    Participant means an individual who is or may become eligible to 
receive a benefit under the Police and Firefighters Plan or the Teachers 
Plan based on credit for service accrued as of June 30, 1997, or under 
the Judges Plan, or whose beneficiaries may be eligible to receive any 
such benefit.

[65 FR 80753, Dec. 22, 2000, as amended at 70 FR 60005, Oct. 14, 2005]



Sec.  29.403  Applications filed with the Benefits Administrator.

    All claimants for Federal Benefit Payments must file applications 
for benefits (including applications for retirement, refunds of 
contributions, and death benefits) with the Benefits Administrator.



Sec.  29.404  Initial benefit determinations and reconsideration by the
Benefits Administrator.

    (a) Initial benefit determinations. The Benefits Administrator will 
process applications for Federal Benefit Payments and determine the 
eligibility for and the amount and form of Federal Benefit Payments. All 
initial benefit determination decisions which may

[[Page 322]]

reasonably be construed as a denial (in whole or part) of a claim for 
Federal Benefit Payments must be in writing, must advise claimants of 
their right to request reconsideration under paragraph (b), of this 
section and must state the time limits applicable to such a request.
    (b) Claimant's right to reconsideration of benefit denials. (1) 
Except as provided in paragraph (b)(2) of this section, claimants who 
disagree with the amount or form of a Federal Benefit Payment 
determination and wish to contest the determination must first request 
the Benefits Administrator to reconsider its determination.
    (2) A decision to collect a debt is not a denial of a benefit claim 
under this section.
    (c) Form and timing of requests for reconsideration. (1) A request 
for reconsideration must be in writing, must include the claimant's 
name, address, date of birth and claim number, if applicable, and must 
state the basis for the request.
    (2) A request for reconsideration must be received by the Benefits 
Administrator within 30 calendar days from the date of the written 
notice of the initial benefit determination.
    (d) Reconsideration decisions. A reconsideration decision by the 
Benefits Administrator denying (in whole or part) a claim for a Federal 
Benefit Payment must--
    (1) Be in writing;
    (2) Provide adequate notice of such denial, setting forth the 
specific reason for the denial in a manner calculated to be understood 
by the average participant; and
    (3) Provide notice of the right to appeal the Benefit 
Administrator's decision to the Department, the address to which such an 
appeal must be submitted, and the time limits applicable to such an 
appeal.
    (e) Appeal of reconsideration decisions. The Department will review 
an appeal of a reconsideration decision under Sec.  29.405.



Sec.  29.405  Appeals to the Department.

    (a) Who may file. Any claimant whose claim for a Federal Benefit 
Payment has been denied (in whole or part) by the Benefits Administrator 
in a reconsideration decision under Sec.  29.404(d) may appeal that 
decision to the Department.
    (b) Form of appeal. An appeal must be in writing, must include the 
claimant's name, address, date of birth and claim number, if applicable, 
and must state the basis for the appeal.
    (c) Time limits on Appeals. (1) An appeal must be received by the 
Department within 30 calendar days from the date of the reconsideration 
decision under Sec.  29.404(d).
    (2) The Department may extend the time limit for filing when the 
claimant shows that he or she was not notified of the time limit and was 
not otherwise aware of it, or that he or she was prevented by 
circumstances beyond his or her control from making the request within 
the time limit, or for other good and sufficient reason.
    (d) Final decision. After consideration of the appeal, the 
Department will issue a final decision. The Department's decision must 
be in writing, must fully set forth the Department's findings and 
conclusions on the appeal, and must contain notice of the right to 
judicial review provided in Sec.  29.406. Copies of the final decision 
must be sent to the claimant seeking appeal, to any competing claimants 
(see Sec.  29.407) and to the Benefits Administrator.



Sec.  29.406  Judicial review.

    An individual whose claim for a Federal Benefit Payment has been 
denied (in whole or part) in a final decision by the Department under 
Sec.  29.405 may, within 180 days of the date of the final decision, 
file a civil action in the United States District Court for the District 
of Columbia. Any such civil action must be filed in accordance with the 
rules of that court.



Sec.  29.407  Competing claimants.

    (a) Competing claimants are applicants for survivor benefits based 
on the service of a participant when--
    (1) A benefit is payable based on the service of the participant;
    (2) Two or more claimants have applied for benefits based on the 
service of the participant; and
    (3) A decision in favor of one claimant will adversely affect 
another claimant(s).

[[Page 323]]

    (b)(1) When a competing claimant files a request for reconsideration 
under this section, the other competing claimants shall be notified of 
the request and given an opportunity to submit written substantiation of 
their claim.
    (2) When the Benefits Administrator receives an application from a 
competing claimant(s) before any payments are made based upon the 
service of the participant, and an initial determination of benefits in 
favor of one claimant adversely affects another claimant, all known 
claimants concerned will be notified in writing of that decision and 
those adversely affected will be given an opportunity to request 
reconsideration under the procedures and time limitations set forth in 
Sec.  29.404(c). The Benefits Administrator must not execute its 
decision until the time limit for filing a request for reconsideration 
has expired, or, if a reconsideration decision is made, until the time 
limit for filing an appeal to the Department has expired or the 
Department has issued a final decision on a timely appeal, whichever is 
later.
    (3) When the Benefits Administrator does not receive an application 
from a competing claimant(s) until after another person has begun to 
receive payments based upon the service of the participant, the payments 
will continue until the time limit for filing a request for 
reconsideration has expired, or, if a reconsideration decision is made, 
until the time limit for filing an appeal to the Department has expired 
or the Department has issued a final decision on a timely appeal, 
whichever is later.



           Subpart E_Debt Collection and Waivers of Collection

    Source: 66 FR 36705, July 13, 2001, unless otherwise noted.



Sec.  29.501  Purpose; incorporation by reference; scope.

    (a) This subpart regulates--
    (1) The recovery of overpayments of Federal Benefit Payments;
    (2) The standards for waiver of recovery of overpayments of Federal 
Benefit Payments; and
    (3) The use of Federal Benefit Payments to recover certain other 
debts due the United States.
    (b) The regulations of this subpart incorporate by this reference 
all provisions of the Federal Claims Collection Standards (FCCS) (parts 
900-904 of Title 31, Code of Federal Regulations), and supplement those 
regulations by the prescription of procedures and directives necessary 
and appropriate for the operation and administration of the Retirement 
Funds. To the extent they are not inconsistent with the regulations 
contained in this subpart, the regulations in part 5 of title 31, Code 
of Federal Regulations, also apply to the collection of debts under this 
subpart.
    (c)(1) Debts based on fraud, misrepresentation, or the presentation 
of a false claim. This subpart does not apply to any overpayments of 
Federal Benefit Payments which arose, in whole or in part, due to fraud, 
misrepresentation, or the presentation of a false claim by the debtor or 
any party having an interest in the claim. Such debts should be referred 
by the Benefits Administrator immediately to the U.S. Justice Department 
for action pursuant to 31 CFR 900.3.
    (2) Tax debts. This subpart does not apply to tax debts.
    (d)(1) Sections 29.501 through 29.506 state the rules of general 
applicability to this subpart.
    (2) Sections 29.511 through 29.520 prescribe procedures to be 
followed by the Benefits Administrator which are consistent with the 
FCCS in the collection of debts owed to the Retirement Funds.
    (3) Sections 29.521 through 29.526 prescribe the standards that the 
Department will apply in decisions to waive recoupment or recovery of 
overpayments from the Retirement Funds under sections 11021(3) and 
11251(c)(2)(B) of the Act.
    (e) This part does not apply to debt collection claims asserted and 
requests for waivers of collection initiated before October 1, 1997. 
Such debt collection claims must be pursued by the District of Columbia 
and such requests for waivers of collection must be pursued with the 
District of Columbia.

[66 FR 36705, July 13, 2001, as amended at 70 FR 60005, Oct. 14, 2005]

[[Page 324]]



Sec.  29.502  Definitions.

    For purposes of this subpart--
    Additional charges means interest, penalties, and/or administrative 
costs owed on a debt.
    Administrative offset, as defined in 31 U.S.C. 3701(a)(1), means 
withholding funds payable by the United States to, or held by the United 
States for, a person to satisfy a debt the person owes the United 
States.
    Agency means:
    (1) An Executive agency as defined in section 105 of title 5, United 
States Code, including the U.S. Postal Service and the U.S. Postal Rate 
Commission;
    (2) A military department, as defined in section 102 of title 5, 
United States Code;
    (3) An agency or court in the judicial branch, including a court as 
defined in section 610 of title 28, United States Code, the District 
Court for the Northern Mariana Islands, and the Judicial Panel on 
Multidistrict Litigation;
    (4) An agency of the legislative branch, including the U.S. Senate 
and the U.S. House of Representatives; and
    (5) Other independent establishments that are entities of the 
Federal Government.
    Annuitant means a retired participant, former spouse, spouse, 
widow(er), child or other beneficiary receiving recurring Federal 
Benefit Payments.
    Annuity means the monthly benefit (including a retirement salary 
under the Judges Plan) of indefinite duration payable to an annuitant.
    Anticipated expenses means expenditures which are expected to occur 
and for which the debtor can provide documentation of the estimated 
cost.
    Beneficiary means an individual designated by a participant, or by 
the terms of the Judges Plan, Police Officers and Firefighters Plan, or 
Teachers Plan, who is or may become entitled to a benefit under those 
plans.
    Change of position for the worse means an individual would be left 
in a worse financial position after recovery of the overpayment than 
prior to the receipt of the overpayment because the individual 
reasonably relied on the amount of the overpayment to his or her 
detriment. For example, an individual has ``changed position for the 
worse'' if he or she made expenditures or assumed new liabilities that 
he or she would not have otherwise done, and he or she is unable to 
withdraw from the commitment without incurring significant financial 
loss.
    Compromise means accepting less than payment in full in satisfaction 
of a debt.
    Consent means the debtor has agreed in writing to administrative 
offset of one or more Federal Benefit Payments after receiving notice of 
the available rights under 31 U.S.C. 3716 and this subpart; to Federal 
salary offset after receiving notice of the available rights under 5 
U.S.C. 5514 and 31 CFR part 5; and to judgment offset under section 124 
of Public Law 97-276, 96 Stat. 1195-1196.
    Credit bureau has the same meaning as the definition of ``consumer 
reporting agency'' provided in 31 U.S.C. 3701(a)(3).
    Creditor agency means the agency to which a debt is owed.
    Debt has the same meaning as the definition of ``debt'' provided in 
31 U.S.C. 3701(b)(1), and includes an overpayment of Federal Benefit 
Payments.
    Debtor means a person who owes a debt or from whom a debt is to be 
recovered, including an annuitant.
    Delinquent means delinquent as defined in 31 CFR 900.2(b).
    Department means the Secretary of the Treasury or a designee 
authorized to exercise the Secretary's authority with respect to Federal 
Benefit Payments under the Act.
    FCCS means the Federal Claims Collection Standards (parts 900-904 of 
Title 31, Code of Federal Regulations).
    Liquid asset means cash or other property readily convertible into 
cash with little or no loss of value.
    Lump-sum credit means:
    (1) Under the Judges Plan, the Police Officers and Firefighters 
Plan, and the Teachers Plan, the unrefunded amount consisting of--
    (i) Retirement contributions from the basic salary of a participant;
    (ii) Amounts deposited covering earlier creditable service; and
    (iii) Such interest as authorized by statute to be included in the 
payment of refunds of retirement contributions; and

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    (2) Under the Judges Plan, ``lump-sum credit for survivor annuity'' 
is defined in section 11-1561(10) of the D.C. Code.
    Offset means to withhold the amount of a debt, or a portion of that 
amount, from one or more payments due the debtor. Offset also means the 
amount withheld in this manner.
    Ordinary and necessary living expenses means such expenses as rent, 
mortgage payments, utilities, maintenance, food (including expenses for 
dining out), clothing, insurance (life, health, and accident), taxes, 
installment payments, medical expenses, reasonable expenses for 
recreation and vacations, expenses for support of a dependent when the 
debtor holds primary or joint legal responsibility for such support, and 
other miscellaneous expenses that the debtor can establish as being 
ordinary and necessary.
    Overpayment or overpayment debt means a payment of one or more 
Federal Benefit Payments to an individual in the absence of entitlement 
or in excess of the amount to which an individual is properly entitled.
    Participant means an individual who is or may become eligible to 
receive a benefit under the Police Officers and Firefighters Plan or 
Teachers Plan based on credit for service accrued as of June 30, 1997, 
or under the Judges Plan, or whose beneficiaries may be eligible to 
receive any such benefit.
    Refund means the payment of a lump-sum credit to an individual who 
meets all requirements for payment and files an application for it.
    Relinquish a valuable right means the individual has relinquished a 
valuable privilege, claim, entitlement, or benefit having monetary worth 
because of the overpayment or because of notice that such a payment 
would be made.
    Repayment schedule means the amount of each payment and the number 
of payments to be made to liquidate the debt as determined by the 
Department or the Benefits Administrator.
    Salary offset means any offset authorized by 5 U.S.C. 5514 and 31 
U.S.C. 3716.
    Substantially all, as used in Sec.  29.524, means that a debtor's 
income is less than or equal to his or her ordinary and necessary 
expenses plus a reasonable monthly allowance for unexpected or emergency 
expenses and does not allow for the deduction of a reasonable monthly 
installment payment to recover the debt.
    Voluntary repayment agreement means an agreement wherein the debtor 
makes installment payments to repay an overpayment debt in accordance 
with a repayment schedule agreed to by the Benefits Administrator or the 
Department.
    Waiver means a decision not to recover all or part of an overpayment 
debt owed to the Retirement Funds under authority of sections 11021(3) 
or 11251(c)(2)(B) of the Act.



Sec.  29.503  Prohibition against collection of debts.

    (a) Debts may be collected from Federal Benefit Payments only to the 
extent expressly authorized by Federal debt collection statutes and any 
other applicable Federal law.
    (b) When collection of a debt from Federal Benefit Payments is 
authorized under paragraph (a) of this section, the collection will be 
made in accordance with this subpart and other applicable federal law.



Sec.  29.504  Status of debts.

    A payment of a Federal Benefit Payment to a debtor because of an 
error on the part of the Department or Benefits Administrator, or the 
failure of the creditor agency to properly and/or timely submit a debt 
claim, does not erase the debt or affect the validity of the claim by 
the creditor agency.



Sec.  29.505  Compromise of debts; termination and suspension of
collection actions.

    The procedures for compromise of a claim for an overpayment or the 
termination or suspension of a collection action seeking to recover an 
overpayment, other than waiver of an overpayment under Sec. Sec.  29.521 
through 29.526, are controlled exclusively by the FCCS and 31 CFR part 
5.



Sec.  29.506  Recovery of other debts owed to the United States.

    (a) Procedures for Creditor Agencies. Agencies seeking to recover a 
debt by offset of Federal Benefit Payments

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payable to the debtor must comply with the offset procedures set forth 
in 31 U.S.C. 3716 and the FCCS. A creditor agency may seek to collect a 
debt through offset of Federal Benefit Payments pursuant to the 
Department's procedures for administrative offset set forth in 31 CFR 
part 5.
    (b) Offset by the Benefits Administrator. As required by 31 U.S.C. 
3716(c), the Benefits Administrator must compare payment records of the 
Retirement Funds with records of debts submitted to the Financial 
Management Service for collection by administrative offset, and must 
offset payments to satisfy, in whole or in part, debts owed by any 
annuitant.

                       Collection of Overpayments



Sec.  29.511  Demand letters.

    Except as provided in Sec.  29.516(e), before starting collection 
action to recover an overpayment, the Benefits Administrator must send a 
demand letter that informs the debtor in writing--
    (a) That an overpayment has occurred, the amount of the overpayment, 
and the facts giving rise to the overpayment;
    (b) The date by which payment of the debt should be made to avoid 
additional charges (i.e., interest, penalties and administrative costs) 
permitted by the FCCS and enforced collection;
    (c) The requirement that any overpayment debt delinquent for more 
than 180 days be transferred to the Department of the Treasury's 
Financial Management Service for collection;
    (d) The name, address, and phone number of the appropriate person or 
office the debtor may contact about the debt;
    (e) The remedies which may be used to enforce payment of the debt, 
including assessment of interest, administrative costs and penalties; 
administrative wage garnishment; the use of collection agencies; Federal 
salary offset; tax refund offset; administrative offset; and litigation.
    (f) Whether offset is available and, if so, the types of payment(s) 
to be offset or eligible for offset, the repayment schedule (if any), 
the right to request an adjustment in the repayment schedule, and the 
right to request a voluntary repayment agreement in lieu of offset;
    (g) An explanation of the Department's policy on interest, 
penalties, and administrative costs as set forth in 31 CFR part 5, the 
FCCS, and 31 U.S.C. 3717, including a statement that such assessments 
must be made unless excused in accordance with the FCCS;
    (h) The debtor's opportunity to request repayment in installments if 
the debtor can show an inability to repay the debt in one lump sum;
    (i) The debtor's opportunity to inspect and/or receive a copy of the 
records relating to the overpayment;
    (j) The method and time period (60 calendar days) for requesting 
reconsideration, waiver, and/or compromise of the overpayment;
    (k) That all requests for waiver or compromise must be accompanied 
by a disclosure of the debtor's financial condition and ability to pay 
the debt;
    (l) The standards used by the Department in deciding requests for 
waiver (set forth in Sec. Sec.  29.521 through 29.526) and compromise 
(set forth in 31 CFR 902.2); and
    (m) The fact that a timely filing of a request for reconsideration, 
waiver and/or compromise, or a subsequent timely appeal of a 
reconsideration decision, will stop collection proceedings, unless--
    (1) Failure to take the offset would substantially prejudice the 
Federal Government's ability to collect the debt; and
    (2) The time before the payment is to be made does not reasonably 
permit the completion of these procedures.



Sec.  29.512  Reconsideration by the Benefits Administrator.

    (a) Right to reconsideration of overpayment determinations. 
Individuals who receive a demand letter and who wish to contest the 
existence or amount of the overpayment may ask the Benefits 
Administrator to reconsider the determination.
    (b) Requests for waiver or compromise. Individuals who wish to seek 
waiver or compromise of the overpayment may file such requests with the 
Department under Sec.  29.514. An individual may file a request for 
reconsideration in addition to a request for waiver or compromise.

[[Page 327]]

    (c) Form and timing of requests for reconsideration. (1) A request 
for reconsideration must be in writing and must state the basis for the 
request. Individuals requesting reconsideration will be given a full 
opportunity to present any pertinent information and documentation 
supporting their position and should, to the extent possible, include 
such information and documentation in their request.
    (2) A request for reconsideration must be received by the Benefits 
Administrator within 60 calendar days of the date of the demand letter. 
The Department may extend the time limit for filing when the individual 
shows that he or she was not notified of the time limit and was not 
otherwise aware of it, or that he or she was prevented by circumstances 
beyond his or her control from making the request within the time limit, 
or for other good and sufficient reason.
    (3) When a request for reconsideration covered by this subpart is 
properly filed before the death of the debtor, it will be processed to 
completion unless the relief sought is nullified by the debtor's death.
    (d) Reconsideration decisions. (1) The Benefits Administrator's 
decision on a request for reconsideration will be based upon the 
individual's written submissions, evidence of record, and other 
pertinent available information.
    (2) A reconsideration decision by the Benefits Administrator must--
    (i) Be in writing;
    (ii) Provide notice of the extent of the individual's liability for 
the overpayment, if any;
    (iii) If the individual is determined to be liable for all or a 
portion of the overpayment, reaffirm or modify the conditions for the 
collection of the overpayment previously proposed in the demand letter;
    (iv) Provide notice of the right to appeal the Benefits 
Administrator's decision to the Department, the address to which such an 
appeal must be submitted, and the time limits applicable to such an 
appeal; and
    (v) State that a timely appeal of the Benefits Administrator's 
decision to the Department will suspend action to collect the debt.
    (e) Appeal of reconsideration decisions. The Department will review 
an appeal of a reconsideration decision under Sec.  29.513.



Sec.  29.513  Appeals to the Department.

    (a) Form of appeal. An appeal of a reconsideration decision under 
Sec.  29.512 must be in writing and must state the basis for the appeal.
    (b) Time limits on appeals. (1) An appeal must be received by the 
Department within 60 calendar days from the date of the reconsideration 
decision.
    (2) The Department may extend the time limit for filing when the 
individual shows that he or she was not notified of the time limit and 
was not otherwise aware of it, or that he or she was prevented by 
circumstances beyond his or her control from making the request within 
the time limit, or for other good and sufficient reason.
    (c) Final decision. After consideration of the appeal, the 
Department will issue a final decision. The Department's decision will 
be in writing, will fully set forth the Department's findings and 
conclusions on the appeal, and will contain notice of the right to 
judicial review provided in Sec.  29.515. If the Department determines 
that the individual is liable for all or a portion of the overpayment, 
the decision also will contain the conditions for the collection of the 
overpayment. Copies of the final decision will be sent to the individual 
seeking appeal and to the Benefits Administrator.



Sec.  29.514  Requests for waiver and/or compromise.

    (a) Right to request waiver and/or compromise. Individuals who 
receive a demand letter regarding an overpayment may ask the Department 
to waive and/or compromise, in whole or part, the amount of the 
overpayment.
    (b) Requests for reconsideration. Individuals who have filed a 
request for reconsideration under Sec.  29.512 may also request a waiver 
and/or compromise under this section.
    (c) Form and timing of requests for waiver and/or compromise. (1) A 
request for waiver and/or compromise must be in writing and must state 
the basis for the request. Individuals making such

[[Page 328]]

requests will be given a full opportunity to present any pertinent 
information and documentation supporting their position and should, to 
the extent possible, include such information and documentation in their 
request. Individuals seeking waiver or compromise of an overpayment must 
also submit required financial information identified in the demand 
letter.
    (2) A request for waiver or compromise must be filed with the 
Department. If the request is sent by mail, it must be postmarked within 
60 calendar days of the date of the demand letter. If the request is 
hand delivered or delivered electronically, it must be received within 
60 calendar days of the date of the demand letter. The Department may 
extend the time limit for filing when the individual shows that he or 
she was not notified of the time limit and was not otherwise aware of 
it, or that he or she was prevented by circumstances beyond his or her 
control from making the request within the time limit, or for other good 
and sufficient reason.
    (3) When a request for waiver and/or compromise under this section 
is properly filed before the death of the debtor, it will be processed 
to completion unless the relief sought is nullified by the debtor's 
death.
    (d) Waiver and/or compromise decisions. (1) The Department's 
decision on a request for waiver and/or compromise will be based upon 
the individual's written submissions, evidence of record, and other 
pertinent available information. An individual's request for waiver will 
be evaluated by the standards set forth in Sec. Sec.  29.521 through 
29.526. An individual's request for compromise will be evaluated by the 
standards set forth in the FCCS in 31 CFR part 902.
    (2) A waiver or compromise decision by the Department will--
    (i) Be in writing;
    (ii) Provide notice of whether the overpayment will be waived or 
compromised, and the extent to which the individual is still liable for 
the overpayment, if at all;
    (iii) If the individual is determined to be liable for all or a 
portion of the overpayment, reaffirm or modify the conditions for the 
collection of the overpayment previously proposed in the demand letter; 
and
    (iv) Be issued within 120 calendar days from the Department's 
receipt of a timely request for waiver and/or compromise. This time 
limit does not apply to requests for compromise that are referred to the 
Department of Justice for consideration pursuant to 31 CFR 902.1(b).



Sec.  29.515  Judicial review.

    An individual whose request for reconsideration has been denied (in 
whole or part) in a final decision by the Department under Sec.  29.513 
may, within 180 days of the date of the final decision, file a civil 
action in the United States District Court for the District of Columbia. 
Any such civil action must be filed in accordance with the rules of that 
court.



Sec.  29.516  Collection of overpayments.

    (a) Means of collection. Collection of an overpayment may be made by 
means of offset under Sec.  29.517, or under any statutory provision 
providing for offset of money due the debtor from the Federal Government 
including, but not limited to, Federal Benefit Payments. Collection may 
also be effected by referral to the Justice Department for litigation, 
as provided in Sec.  29.520, or referral to a collection agency as 
provided in Sec.  29.519, or by other means authorized by federal law.
    (b) Additional charges. Interest, penalties, and administrative 
costs will be assessed on the overpayment in accordance with standards 
established in 31 U.S.C. 3717 and 31 CFR 901.9. Additional charges will 
be waived when required by the FCCS. The Department will waive the 
collection of interest on the overpayment pending the Benefits 
Administrator's consideration of a request for reconsideration and the 
Department's consideration of a request for waiver and/or compromise or 
the appeal of a reconsideration decision. In addition, such charges may 
be waived when the Department determines--
    (1) Collection of those charges would be against equity and good 
conscience under the standards prescribed in Sec. Sec.  29.523 through 
29.525; or

[[Page 329]]

    (2) Waiver of those charges would be in the best interest of the 
United States.
    (c) Collection in installments. (1) Whenever feasible, overpayments 
will be collected in one lump sum.
    (2) However, installment payments may be effected when--
    (i) The debtor establishes that he or she is financially unable to 
pay in one lump sum; or
    (ii)(A) The benefit payable is insufficient to make collection in 
one lump sum;
    (B) The debtor fails to respond to a demand for full payment; and
    (C) Offset is available.
    (d) Offset Amount. (1) The amount offset from a monthly Federal 
Benefit Payment will be the lesser of:
    (i) The amount of the debt, including any interest, penalties and 
administrative costs;
    (ii) An amount equal to 15 percent of the monthly Federal Benefit 
Payment; or
    (iii) The amount, if any, by which the monthly Federal Benefit 
Payment exceeds $750.
    (2) For purposes of this subsection, the ``monthly Federal Benefit 
Payment'' is the amount of the gross monthly benefit after any 
reductions or deductions required under law, including reductions made 
to recover overpayments of Federal Benefit Payments.
    (e) Commencement of collection. (1) Except as provided in paragraph 
(e)(2) of this section, collection will begin after the time limits for 
requesting further rights stated in Sec. Sec.  29.512 through 29.514 
expire and no such requests have been made, or after the Benefits 
Administrator and/or the Department have issued decisions on all timely 
requests for or appeals of those rights, unless failure to make an 
offset would substantially prejudice the Department's ability to collect 
the overpayment and the time before the payment is to be made does not 
reasonably permit the completion of the proceedings in Sec. Sec.  29.511 
through 29.514 or litigation. When offset begins without completion of 
the administrative review process, these procedures will be completed 
promptly, and amounts recovered by offset but later found not owed will 
be refunded promptly.
    (2) The procedures identified in Sec. Sec.  29.511 through 29.514 
will not be applied when the overpayment is caused by--
    (i) A retroactive adjustment in the periodic rate of annuity or any 
deduction taken from annuity when the adjustment is a result of the 
annuitant's election of different entitlements under law, if the 
adjustment is made within 120 days of the effective date of the 
election; or
    (ii) interim estimated payments made before the formal determination 
of entitlement to annuity, if the amount is recouped from the total 
annuity payable on the first day of the month following the later of--
    (A) The last interim payment or
    (B) The date the formal determination is made.
    (f) Collection of delinquent debts--(1) Debts delinquent over 180 
days. The Benefits Administrator must refer all overpayment debts that 
are over 180 days delinquent to the Secretary for collection pursuant to 
31 U.S.C. 3711(g) and 3716, and 31 CFR part 901.
    (2) Debts delinquent less than 180 days. Once an overpayment debt 
becomes delinquent, the Benefits Administrator should refer it to the 
Secretary for collection by centralized administrative offset pursuant 
to 31 CFR 901.3, unless collection of the debt by some other means is 
likely to occur in a more timely and efficient manner.
    (3) Once a debt is referred under this subsection, the Benefits 
Administrator has no further obligation to collect the debt.



Sec.  29.517  Collection by offset.

    (a) Offset from retirement payments. An overpayment may be collected 
in whole or in part from any refund payment or recurring Federal Benefit 
Payments.
    (b) Offset from other payments--(1) Administrative offset. When 
offset under subsection (a) is not available, an overpayment may be 
offset from other Federal payments due the debtor from other agencies 
under the procedures set forth in 31 CFR part 5 and 31 CFR 901.3(c).

[[Page 330]]

    (2) Salary offset. When the debtor is an employee of the Federal 
Government, the Department may effect collection of an overpayment by 
offset of the debtor's pay in accordance with regulations published to 
implement such offsets under 5 U.S.C. 5514 (see 5 CFR part 550, subpart 
K; 31 CFR 285.7; and 31 CFR part 5). Due process described in the 
federal salary offset regulations of 31 CFR part 5 will apply. When the 
debtor did not receive a hearing under those regulations and requests 
such a hearing, one will be conducted in accordance with 5 CFR part 550, 
subpart K and 31 CFR part 5.
    (3) Tax refund offset. The Department may effect collection of an 
overpayment by offset of the debtor's tax refund in accordance with the 
Department's tax refund offset regulations found at 31 CFR part 5.



Sec.  29.518  Reporting delinquent debts to credit bureaus.

    (a) Notice. If a debtor's response to the demand letter does not 
result in payment in full, payment by offset, or payment in accordance 
with a voluntary repayment agreement or other repayment schedule 
acceptable to the Benefits Administrator, and the debtor's rights under 
Sec. Sec.  29.512 through 29.514 have been exhausted, the Benefits 
Administrator must report the debtor to a credit bureau. In addition, a 
debtor's failure to make subsequent payments in accordance with a 
repayment schedule must result in a report to a credit bureau. Before 
making a report to a credit bureau, the Benefits Administrator must 
notify the debtor in writing that--
    (1) The payment is overdue;
    (2) The Benefits Administrator intends, after 60 days, to make a 
report as described in paragraph (b) of this section to a credit bureau;
    (3) The debtor's right to dispute the liability has been exhausted 
under Sec. Sec.  29.512 through 29.514; and
    (4) The debtor may avoid having the Benefits Administrator report 
the debtor to a credit bureau by paying the debt in one lump sum or 
making payments current under a repayment schedule.
    (b) Report. If, after being sent the notice described in paragraph 
(a) of this section, the debtor does not pay the overpayment debt or 
make payments current under a repayment schedule or fails to respond to 
the notice, and 60 days have elapsed since the notice was mailed, the 
Benefits Administrator will report to a credit bureau that the debtor is 
responsible for an unpaid debt and provide the following information:
    (1) The debtor's name, address, taxpayer identification number, and 
any other information necessary to establish the identity of the 
individual;
    (2) The amount, status, and history of the debt; and
    (3) The fact that the debt arose in connection with the 
administration of Federal Benefit Payments under a District Retirement 
Fund.
    (c) Subsequent reports. The Benefits Administrator must update its 
report to the credit bureau whenever it has knowledge of events that 
substantially change the status or the amount of the liability.
    (d) Other reporting of delinquent debts. Pursuant to 31 CFR 901.4, 
delinquent overpayment debts should be reported to the Department of 
Housing and Urban Development's Credit Alert Interactive Voice Response 
System (CAIVRS).
    (e) Privacy Act considerations. A delinquent debt may not be 
reported under this section unless a notice issued pursuant to the 
Privacy Act, 5 U.S.C. 552a(e)(4), authorizes the disclosure of 
information about the debtor to a credit bureau or CAIVRS.



Sec.  29.519  Referral to a collection agency.

    (a) The Department retains the responsibility for resolving 
disputes, compromising debts, referring overpayment debts for 
litigation, and suspending or terminating collection action.
    (b) The Department may not refer overpayment debts to commercial 
collection agencies until all procedures required by or requested under 
Sec. Sec.  29.511 through 29.514 have been completed.

[[Page 331]]



Sec.  29.520  Referral for litigation.

    The Department may refer to the Justice Department for litigation 
overpayment debts which cannot be compromised or waived, or on which 
collection activity cannot be suspended or terminated, and which the 
Department has been unable to recover pursuant to the collection 
activity described in Sec. Sec.  29.511 through 29.519. (See 31 CFR part 
904.) Such debts should be referred to the Justice Department as early 
as possible, but at least within 1 year of the date such debts last 
became delinquent. In the case of overpayments arising from fraud, 
misrepresentation, or the presentation of a false claim, referral should 
be made to the Justice Department immediately. (See 31 CFR 900.3(a).) 
Referral of a debt to the Justice Department will suspend processing 
under Sec. Sec.  29.511 through 29.519 of this subpart.

                  Standards for Waiver of Overpayments



Sec.  29.521  Conditions for waiver and other adjustments.

    (a) General. Overpayments made from the Retirement Funds will be 
recovered unless there is substantial evidence that the individual from 
whom recovery is to be made is eligible for waiver.
    (b) Waiver. The Department may waive an overpayment from the 
Retirement Funds (provided there is no indication of fraud, 
misrepresentation, or lack of good faith on the part of the debtor) 
under sections 11021(3) or 11251(c)(2)(B) of the Act when it is 
established by substantial evidence that the individual from whom 
recovery is to be made--
    (1) Is not at fault in causing or contributing to the overpayment, 
and
    (2) Recovery would be against equity and good conscience.
    (c) Adjustment in the installment schedule. (1)(i) An overpayment 
will not be waived because of financial hardship if a reasonable 
installment schedule can be established for repayment of the debt by 
adjusting the installment schedule originally established.
    (ii) For example, if the Department finds that the original 
installment schedule--24 installments at $125 each--causes the debtor 
financial hardship, but that repayment in 60 installments at $50 each 
does not, it may adjust the installments and recover the debt in full.
    (2) Where it has been determined that an individual is ineligible 
for a waiver, but the individual has shown that collection action 
pursuant to the original installment schedule would cause him or her 
financial hardship, the Department may--
    (i) Adjust the installment schedule if the individual shows that it 
would cause him or her financial hardship to make payments at the rate 
initially scheduled by the Department; or
    (ii) Terminate the collection action under 31 CFR 903.3 if the costs 
of collecting the debt are anticipated to exceed the amount recoverable.



Sec.  29.522  Fault.

    (a) General rule. A debtor is considered to be at fault if he or 
she, or any other person having an interest in obtaining a waiver of the 
claim, caused or contributed to the accrual of the overpayment. The 
Department considers a debtor or any other person having an interest in 
obtaining a waiver of the claim to have caused or contributed to the 
accrual of an overpayment if--
    (1) Payment resulted from the individual's incorrect but not 
fraudulent statement, which the individual knew or should have known to 
be incorrect; or
    (2) Payment resulted from the individual's failure to disclose facts 
in his or her possession which the individual knew or should have known 
were material, when the Department has identified that the individual 
has a duty to report and has clearly notified the individual of this 
reporting requirement.
    (3) The following factors may affect the decision as to whether the 
debtor is or is not at fault where the debtor submitted an incorrect 
statement, or the debtor failed to disclose material facts in his or her 
possession--
    (i) The debtor's age;
    (ii) The debtor's physical and/or mental condition; and
    (iii) The availability and nature of the information provided to the 
debtor by the Department.
    (b) Knowledge of an overpayment. (1) Individuals who are aware that 
they

[[Page 332]]

are not entitled to a payment or are aware that a payment is higher than 
the payment to which they are entitled are not considered to have 
contributed to the overpayment if they promptly contact the Benefits 
Administrator and question the correctness of the payment and take no 
further action in reliance of the overpayment.
    (2) Any contact made with the Benefits Administrator concerning the 
overpayment within 60 days of receipt (if the overpayment is a recurring 
payment, contact must be made within 60 days of the initial payment) 
will satisfy the prompt notification requirement.
    (c) Reasonable person standard. The Department will use a reasonable 
person standard to determine whether an individual should have known 
that a statement was incorrect or that material facts in the 
individual's possession should have been disclosed. The reasonable 
person standard will take into account the objective factors set forth 
is paragraph (a)(3) of this section.



Sec.  29.523  Equity and good conscience.

    Recovery is against equity and good conscience when there is 
substantial evidence that--
    (a) It would cause financial hardship to the person from whom it is 
sought no matter what the amount and length of the proposed installment;
    (b) 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 he or she either has 
relinquished a valuable right or has changed positions for the worse; or
    (c) Recovery would be unconscionable under the circumstances.



Sec.  29.524  Financial hardship.

    Financial hardship may be deemed to exist when the debtor needs 
substantially all of his or her current and anticipated income and 
liquid assets to meet current and anticipated ordinary and necessary 
living expenses during the projected period of collection. Financial 
hardship will not be found to exist when the debtor merely establishes 
that the repayment causes a financial burden, i.e., when it is 
inconvenient to repay the debt. If there are anticipated changes in 
income or expenses that would allow for the recovery of the overpayment 
at a later date, the Department may suspend collection action until a 
future date.
    (a) Considerations. Pertinent considerations in determining whether 
recovery would cause financial hardship include the following:
    (1) The debtor's financial ability to pay at the time collection is 
scheduled to be made, and
    (2) Income to other family member(s), if such member's ordinary and 
necessary living expenses are included in expenses reported by the 
debtor.



Sec.  29.525  Ordinary and necessary living expenses.

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



Sec.  29.526  Waiver precluded.

    Waivers will not be offered or granted when--
    (1) The overpayment was obtained by fraud, misrepresentation, or by 
improper negotiation of checks or withdrawal of electronic fund transfer 
payments after the death of the payee; or
    (2) The overpayment was made to an estate and a timely demand for 
repayment is made prior to the final disbursement by the administrator 
or executor of the estate.



PART 30_TARP STANDARDS FOR COMPENSATION AND CORPORATE GOVERNANCE-
-Table of Contents



Sec.
30.0 Executive compensation and corporate governance.
30.1 Q-1: What definitions apply in this part?
30.2 Q-2: To what entities does this part apply?
30.3 Q-3: How are the SEOs and the most highly compensated employees 
          identified

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          for purposes of compliance with this part?
30.4 Q-4: What actions are necessary for a TARP recipient to comply with 
          the standards established under sections 111(b)(3)(A), 
          111(b)(3)(E), 111(b)(3)(F) and 111(c) of EESA (evaluation of 
          employee plans and potential to encourage excessive risk or 
          manipulation of earnings)?
30.5 Q-5: How does a TARP recipient comply with the requirements under 
          Sec.  30.4 (Q-4) of this part that the compensation committee 
          discuss, evaluate, and review the SEO compensation plans and 
          other employee compensation plans to ensure that the SEO 
          compensation plans do not encourage the SEOs to take 
          unnecessary and excessive risks that threaten the value of the 
          TARP recipient, or that the employee compensation plans pose 
          unnecessary risks to the TARP recipient?
30.6 Q-6: How does a TARP recipient comply with the requirement under 
          Sec.  30.4 (Q-4) of this part that the compensation committee 
          discuss, evaluate, and review the employee compensation plans 
          to ensure that these plans do not encourage the manipulation 
          of reported earnings of the TARP recipient to enhance the 
          compensation of any of the TARP recipient's employees?
30.7 Q-7: How does a TARP recipient comply with the certification and 
          disclosure requirements under Sec.  30.4 (Q-4) of this part?
30.8 Q-8: What actions are necessary for a TARP recipient to comply with 
          the standards established under section 111(b)(3)(B) of EESA 
          (the ``clawback'' provision requirement)?
30.9 Q-9: What actions are necessary for a TARP recipient to comply with 
          the standards established under section 111(b)(3)(C) of EESA 
          (the prohibition on golden parachute payments)?
30.10 Q-10: What actions are necessary for a TARP recipient to comply 
          with section 111(b)(3)(D) of EESA (the limitation on bonus 
          payments)?
30.11 Q-11: Are TARP recipients required to meet any other standards 
          under the executive compensation and corporate governance 
          standards in section 111 of EESA?
30.12 Q-12: What actions are necessary for a TARP recipient to comply 
          with section 111(d) of EESA (the excessive or luxury 
          expenditures policy requirement)?
30.13 Q-13: What actions are necessary for a TARP recipient to comply 
          with section 111(e) of EESA (the shareholder resolution on 
          executive compensation requirement)?
30.14 Q-14: How does section 111 of EESA operate in connection with an 
          acquisition, merger, or reorganization?
30.15 Q-15: What actions are necessary for a TARP recipient to comply 
          with the certification requirements of section 111(b)(4) of 
          EESA?
30.16 Q-16: What is the Office of the Special Master for TARP Executive 
          Compensation, and what are its powers, duties and 
          responsibilities?
30.17 Q-17: How do the effective date provisions apply with respect to 
          the requirements under section 111 of EESA?

    Authority: 12 U.S.C. 5221; 31 U.S.C. 321.

    Source: 74 FR 28405, June 15, 2009, unless otherwise noted.



Sec.  30.0  Executive compensation and corporate governance.

    The following questions and answers reflect the executive 
compensation and corporate governance requirements of section 111 of the 
Emergency Economic Stabilization Act of 2008, as amended (12 U.S.C. 
5221) (EESA), with respect to participation in the Troubled Assets 
Relief Program (TARP) established by the Department of the Treasury 
(Treasury) thereunder.



Sec.  30.1  Q-1: What definitions apply in this part?

    Affiliate. The term ``affiliate'' means an ``affiliate'' as that 
term is defined in Rule 405 of the Securities Act of 1933 (17 CFR 
230.405).
    Annual compensation. (1) General rule. The term ``annual 
compensation'' means, except as otherwise explicitly provided in this 
part, the dollar value for total compensation for the applicable fiscal 
year as determined pursuant to Item 402(a) of Regulation S-K under the 
Federal securities laws (17 CFR 229.402(a)). Accordingly, for this 
purpose the amounts required to be disclosed pursuant to paragraph 
(c)(2)(viii) of Item 402(a) of Regulation S-K (actuarial increases in 
pension plans and above market earnings on deferred compensation) are 
not required to be included in annual compensation.
    (2) Application to private TARP recipients. For purposes of 
determining annual compensation, a TARP recipient that does not have 
securities registered with the SEC pursuant to the Federal securities 
laws must follow the requirements set forth in paragraph (1) of this 
definition.
    ARRA. The term ``ARRA'' means the American Recovery and Reinvestment 
Act of 2009 (Pub. L. 111-5).

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    Benefit plan. The term ``benefit plan'' means any plan, contract, 
agreement or other arrangement that is an ``employee welfare benefit 
plan'' as that term is defined in section 3(1) of the Employee 
Retirement Income Security Act of 1974, as amended (29 U.S.C. 1002(1)), 
or other usual and customary plans such as dependent care, tuition 
reimbursement, group legal services or cafeteria plans; provided, 
however, that this term does not include:
    (1) Any plan that is a deferred compensation plan; or
    (2) Any severance pay plan, whether or not nondiscriminatory, or any 
other arrangement that provides for payment of severance benefits to 
eligible employees upon voluntary termination for good reason, 
involuntary termination, or termination under a window program as 
defined in 26 CFR 1.409A-1(b)(9)(vi).
    Bonus. The term ``bonus'' means any payment in addition to any 
amount payable to an employee for services performed by the employee at 
a regular hourly, daily, weekly, monthly, or similar periodic rate. Such 
term generally does not include payments to or on behalf of an employee 
as contributions to any qualified retirement plan (as defined in section 
4974(c) of the Internal Revenue Code (26 U.S.C. 4974(c)), benefits under 
a broad-based benefit plan, bona fide overtime pay, or bona fide and 
routine expense reimbursements. In addition, provided that the rate of 
commission is pre-established and reasonable, and is applied 
consistently to the sale of substantially similar goods or services, 
commission compensation will not be treated as a bonus. For this 
purpose, a bonus may include a contribution to, or other increase in 
benefits under, a nonqualified deferred compensation plan, regardless of 
when the actual payment will be made under the plan. A bonus may also 
qualify as a retention award or as incentive compensation.
    Bonus payment. For purposes of this part, except where otherwise 
noted, the term ``bonus payment'' includes a payment that is, or is in 
the nature of, a bonus, incentive compensation, or retention award. 
Whether a payment is a bonus payment, or whether the right to a payment 
is a right to a bonus payment, is determined based upon all the facts 
and circumstances, and a payment may be a bonus payment regardless of 
the characterization of such payment by the TARP recipient or the 
employee. For purposes of this part, a bonus payment may include the 
forgiveness of a loan or other amount that otherwise may be required to 
be paid by the employee to the employer.
    Commission compensation. (1) Definition. The term ``commission 
compensation'' means:
    (i) Compensation or portions of compensation earned by an employee 
consistent with a program in existence for that type of employee as of 
February 17, 2009, if a substantial portion of the services provided by 
this employee consists of the direct sale of a product or service to an 
unrelated customer, these sales occur frequently and in the ordinary 
course of business of the TARP recipient (but not a specified 
transaction, such as an initial public offering or sale or acquisition 
of a specified entity or entities), the compensation paid by the TARP 
recipient to the employee consists of either a portion of the purchase 
price for the product or service sold to the unrelated customer or an 
amount substantially all of which is calculated by reference to the 
volume of sales to the unrelated customers, and payment of the 
compensation is either contingent upon the TARP recipient receiving 
payment from the unrelated customer for the product or service or, if 
applied consistently to all similarly situated employees, is contingent 
upon the closing of the sales transaction and such other requirements as 
may be specified by the TARP recipient before the closing of the sales 
transaction with the unrelated customer;
    (ii) Compensation or portions of compensation earned by an employee 
that meet the requirements of paragraph (1)(i) of this definition except 
that the transaction occurs with a related customer, provided that 
substantial sales from which commission compensation arises are made, or 
substantial services from which commission compensation arises are 
provided, to unrelated customers by the service recipient, the sales and 
service arrangement and the commission arrangement with respect

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to the related customer are bona fide, arise from the service 
recipient's ordinary course of business, and are substantially the same, 
both in term and in practice, as the terms and practices applicable to 
unrelated customers to which individually or in the aggregate 
substantial sales are made or substantial services provided by the 
service recipient; or
    (iii) Compensation or portions of compensation earned by an employee 
consistent with a program in existence for that type of employee as of 
February 17, 2009, if a substantial portion of the services provided by 
this employee to the TARP recipient consists of sales of financial 
products or other direct customer services with respect to unrelated 
customer assets or unrelated customer asset accounts that are generally 
intended to be held indefinitely (and not customer assets intended to be 
used for a specific transaction, such as an initial public offering, or 
sale or acquisition of a specified entity or entities), the unrelated 
customer retains the right to terminate the customer relationship and 
may move or liquidate the assets or asset accounts without undue delay 
(which may be subject to a reasonable notice period), the compensation 
consists of a portion of the value of the unrelated customer's overall 
assets or asset account balance, an amount substantially all of which is 
calculated by reference to the increase in the value of the overall 
assets or account balance during a specified period, or both, or is 
calculated by reference to a contractual benchmark (such as a securities 
index or peer results), and the value of the overall assets or account 
balance and commission compensation is determined at least annually. For 
purposes of this definition, a customer is treated as an unrelated 
customer if the person would not be treated as related to the TARP 
recipient under 26 CFR 1.409A-1(f)(2)(ii) and the person would not be 
treated as providing management services to the TARP recipient under 26 
CFR 1.409A-1(f)(2)(iv).
    (2) Examples. The following examples illustrate the provisions of 
paragraph (1) of this definition:

    Example 1. Employee A is an employee of TARP recipient. Among TARP 
recipient's businesses is the sale of life insurance policies, and TARP 
recipient buys and sells such policies frequently as part of its 
ordinary course of business. Employee A's primary duties consist of 
selling life insurance policies to customers unrelated to the TARP 
recipient. Under a commission program existing for all TARP Recipient 
employees selling life insurance policies as of February 17, 2009, 
Employee A is entitled to receive an amount equal to 75% of the total 
first year's premium paid by an unrelated customer to whom Employee A 
has sold a life insurance policy. The payments to Employee A under the 
program constitute commission compensation.
    Example 2. The same facts as Example 1, except that under the 
program, the rate of commission increases to 80% of the total first 
year's premium paid by a customer once Employee A has sold $10 million 
in policies in a year. Provided that 80% is a reasonable commission, the 
payments to Employee A under the program constitute commission 
compensation.
    Example 3. Employee B is an employee of TARP recipient. Among TARP 
recipient's businesses is the investment management of unrelated 
customer asset accounts, and TARP recipient provides such services 
routinely and in the ordinary course of business. Employee B's primary 
duties as an employee consist of managing the investments of the asset 
accounts of specified unrelated customers who have deposited amounts 
with the TARP recipient. Under a program in existence on February 17, 
2009, Employee B is entitled to receive an amount equal to 1% of the 
aggregate account balances of the assets under management, as determined 
each December 31. The payments to Employee B constitute commission 
compensation.
    Example 4. TARP recipient employs Employee C. As part of Employee 
C's duties, Employee C is responsible for specified aspects of any 
acquisition of an unrelated entity by TARP Recipient. As part of an 
acquisition in 2009, Employee C is entitled to 1% of the purchase price 
if and when the transaction closes. Regardless of whether such an 
arrangement was customary or established under a specific program as of 
February 17, 2009, the amount is not commission compensation because the 
compensation relates to a specified transaction, in this case the 
purchase of the entity. Accordingly, the compensation is incentive 
compensation.
    Example 5. TARP recipient employs Employee D. As part of Employee 
D's duties, Employee D is responsible for managing the initial public 
offerings of securities of unrelated customers of TARP recipient. As 
part of an initial public offering in 2009, Employee D is entitled to 1% 
of the purchase price if and when the initial public offering closes. 
Regardless of whether such an arrangement

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was customary or established under a specific program as of February 17, 
2009, the amount is not commission compensation because the compensation 
relates to a specified transaction, in this case the initial public 
offering. Accordingly, the compensation is incentive compensation.

    Compensation means all remuneration for employment, including but 
not limited to salary, commissions, tips, welfare benefits, retirement 
benefits, fringe benefits and perquisites.
    Compensation committee. (1) General rule. The term ``compensation 
committee'' means a committee of independent directors, whose 
independence is determined pursuant to Item 407(a) of Regulation S-K 
under the Federal securities laws (17 CFR 229.407(a)).
    (2) Application to private TARP recipients. For purposes of 
determining director independence, a TARP recipient that does not have 
securities registered with the SEC pursuant to the Federal securities 
laws must follow the requirements set forth in Item 407(a)(1)(ii) of 
Regulation S-K under the Federal securities laws (17 CFR 
229.407(a)(1)(ii)).
    Compensation structure. The term ``compensation structure'' means 
the characteristics of the various forms of total compensation that an 
employee receives or may receive, including the amounts of such 
compensation or potential compensation relative to the amounts of other 
types of compensation or potential compensation, the amounts of such 
compensation or potential compensation relative to the total 
compensation over the relevant period, and how such various forms of 
compensation interrelate to provide the employee his or her ultimate 
total compensation. These characteristics include, but are not limited 
to, whether the compensation is provided as salary, short-term incentive 
compensation, or long-term incentive compensation, whether the 
compensation is provided as cash compensation, equity-based 
compensation, or other types of compensation (such as executive 
pensions, other benefits or perquisites), and whether the compensation 
is provided as current compensation or deferred compensation.
    Deferred compensation plan. The term ``deferred compensation plan'' 
means
    (1) Any plan, contract, agreement, or other arrangement under which 
an employee voluntarily elects to defer all or a portion of the 
reasonable compensation, wages, or fees paid for services rendered which 
otherwise would have been paid to the employee at the time the services 
were rendered (including a plan that provides for the crediting of a 
reasonable investment return on such elective deferrals), provided that 
the TARP recipient either:
    (i) Recognizes a compensation expense and accrues a liability for 
the benefit payments according to GAAP; or
    (ii) Segregates or otherwise sets aside assets in a trust which may 
only be used to pay plan and other benefits, except that the assets of 
this trust may be available to satisfy claims of the TARP recipient's 
creditors in the case of insolvency; or
    (2) A nonqualified deferred compensation or supplemental retirement 
plan, other than an elective deferral plan established by a TARP 
recipient:
    (i) Primarily for the purpose of providing benefits for a select 
group of directors, management, or highly compensated employees in 
excess of the limitations on contributions and benefits imposed by 
sections 415, 401(a)(17), 402(g) or any other applicable provision of 
the Internal Revenue Code (26 U.S.C. 415, 401(a)(17), 402(g)); or
    (ii) Primarily for the purpose for providing supplemental retirement 
benefits or other deferred compensation for a select group of directors, 
management or highly compensated employees (excluding severance 
payments).
    EESA. The term ``EESA'' means the Emergency Economic Stabilization 
Act of 2008, as amended.
    Employee. The term ``employee'' means an individual serving as a 
servant in the conventional master-servant relationship as understood by 
the common-law agency doctrine. In general, a partner of a partnership, 
a member of a limited liability company, or other similar owner in a 
similar type of entity, will not be treated as an employee for this 
purpose. However, to the extent that the primary purpose for the 
creation or utilization of such partnership, limited liability company, 
or other similar type of entity is to avoid or evade any or all of the 
requirements

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of section 111 of EESA or these regulations with respect to a partner, 
member or other similar owner, the partner, member or other similar 
owner will be treated as an employee. In addition, a personal service 
corporation or similar intermediary between the TARP recipient and an 
individual providing services to the TARP recipient will be disregarded 
for purposes of determining whether such individual is an employee of 
the TARP recipient.
    Employee compensation plan. The term ``employee compensation plan'' 
means ``plan'' as that term is defined in Item 402(a)(6)(ii) of 
Regulation S-K under the Federal securities laws (17 CFR 
229.402(a)(6)(ii)), but only any employee compensation plan in which two 
or more employees participate and without regard to whether an executive 
officer participates in the employee compensation plan.
    Exceptional financial assistance. The term ``exceptional financial 
assistance'' means any financial assistance provided under the Programs 
for Systemically Significant Failing Institutions, the Targeted 
Investment Program, the Automotive Industry Financing Program, and any 
new program designated by the Secretary as providing exceptional 
financial assistance.
    Excessive or luxury expenditures. The term ``excessive or luxury 
expenditures'' means excessive expenditures on any of the following to 
the extent such expenditures are not reasonable expenditures for staff 
development, reasonable performance incentives, or other similar 
reasonable measures conducted in the normal course of the TARP 
recipient's business operations:
    (1) Entertainment or events;
    (2) Office and facility renovations;
    (3) Aviation or other transportation services; and
    (4) Other similar items, activities, or events for which the TARP 
recipient may reasonably anticipate incurring expenses, or reimbursing 
an employee for incurring expenses.
    Excessive or luxury expenditures policy. The term ``excessive or 
luxury expenditures policy'' means written standards applicable to the 
TARP recipient and its employees that address the four categories of 
expenses set forth in the definition of ``excessive or luxury 
expenditures'' (entertainment or events, office and facility 
renovations, aviation or other transportation services, and other 
similar items, activities or events), and that are reasonably designed 
to eliminate excessive and luxury expenditures. Such written standards 
must:
    (1) Identify the types or categories of expenditures which are 
prohibited (which may include a threshold expenditure amount per item, 
activity, or event or a threshold expenditure amount per employee 
receiving the item or participating in the activity or event);
    (2) Identify the types or categories of expenditures for which prior 
approval is required (which may include a threshold expenditure amount 
per item, activity, or event or a threshold expenditure amount per 
employee receiving the item or participating in the activity or event);
    (3) Provide reasonable approval procedures under which an 
expenditure requiring prior approval may be approved;
    (4) Require PEO and PFO certification that the approval of any 
expenditure requiring the prior approval of any SEO, any executive 
officer of a substantially similar level of responsibility, or the TARP 
recipient's board of directors (or a committee of such board of 
directors), was properly obtained with respect to each such expenditure;
    (5) Require the prompt internal reporting of violations to an 
appropriate person or persons identified in this policy; and
    (6) Mandate accountability for adherence to this policy.
    Executive officer. The term ``executive officer'' means an 
``executive officer'' as that term is defined in Rule 3b-7 of the 
Securities Exchange Act of 1934 (Exchange Act) (17 CFR 240.3b-7).
    Financial assistance. (1) Definition. The term ``financial 
assistance'' means any funds or fund commitment provided through the 
purchase of troubled assets under the authority granted to Treasury 
under section 101 of EESA or the insurance of troubled assets under the 
authority granted to Treasury under section 102 of EESA, provided that 
the term ``financial assistance''

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does not include any loan modification under sections 101 and 109 of 
EESA. A change in the form of previously received financial assistance, 
such as a conversion of convertible preferred stock to common stock, is 
not treated as new or additional financial assistance.
    (2) Examples. The following examples illustrate the provisions of 
paragraph (1) of this definition:

    Example 1. Company A sells $500,000,000 of preferred stock to 
Treasury through the Capital Purchase Program. Company A has received 
financial assistance.
    Example 2. Company B posts collateral to and receives a loan from 
the Federal Reserve special purpose vehicle under the Term Asset-Backed 
Security Loan Facility program. Company B has neither sold troubled 
assets to Treasury, nor insured troubled assets through Treasury, and 
therefore has not received financial assistance.
    Example 3. LP C is a limited partnership established for the purpose 
of participating in the Public Private Investment Program. LP C has a 
general partner (GP) that makes management decisions on behalf of LP C. 
A limited liability company controlled by an affiliate of GP (LLC 
partner) raises $55,000,000 from twenty investors, with each investing 
equal shares, joins LP C as a limited partner, and invests those funds 
for a 55% equity interest in LP C. LP C sells a $45,000,000 equity 
interest to Treasury. LP C, at the direction of the GP, will buy and 
sell securities as investments and manage those investments. LP C will 
contract for investment advice from an investment advisor that is an 
affiliate of GP. LP C has received financial assistance. LLC partner has 
received financial assistance because it is treated as the same employer 
as LP C according to the standards set forth in paragraph (1)(ii) of the 
definition of ``TARP recipient''. The investors in the LLC partner have 
not received financial assistance because they are not treated as the 
same employer as LP C according to the standards set forth in paragraph 
(1)(ii) of the definition of ``TARP recipient''. GP is not an employee 
of LP C pursuant to the definition of ``employee'' in this rule, and is 
not treated as the same employer as LP C according to the standards set 
forth in paragraph (1)(ii) of the definition of ``TARP recipient''. The 
investment advisor-contractor to LP C has not received financial 
assistance. Entities that sell securities to or buy securities from LP C 
have neither sold troubled assets to Treasury nor insured troubled 
assets through Treasury, and therefore have not received financial 
assistance.
    Example 4. Company D, a servicer of mortgage loans or mortgaged-
backed securities, issues a financial instrument to Treasury's financial 
agent in which Company D commits to modify mortgages it is servicing 
consistent with guidelines established by Treasury under the Home 
Affordable Modification Program. Treasury, through its financial agent, 
commits to pay up to $800,000,000 in incentive payments and credit 
enhancements for Company E's commitment to modify mortgages. Company E 
has not received financial assistance.

    GAAP. The term ``GAAP'' means U.S. generally accepted accounting 
principles.
    Golden parachute payment. (1) General rule. The term ``golden 
parachute payment'' means any payment for the departure from a TARP 
recipient for any reason, or any payment due to a change in control of 
the TARP recipient or any entity that is included in a group of entities 
treated as one TARP recipient, except for payments for services 
performed or benefits accrued. For this purpose, a change in control 
includes any event that would qualify as a change in control event as 
defined in 26 CFR 1.280G-1, Q&A-27 through Q&A-29 or as a change in 
control event as defined in 26 CFR 1.409A-3(i)(5)(i). For this purpose, 
a golden parachute payment includes the acceleration of vesting due to 
the departure or the change in control event, as applicable. A golden 
parachute payment is treated as paid at the time of departure or change 
in control event, and is equal to the aggregate present value of all 
payments made for a departure or a change in control event (including 
the entire aggregate present value of the payment if the vesting period 
was not otherwise completed but was accelerated due to departure, 
regardless of whatever portion of the required vesting period the 
employee had completed). Thus, a golden parachute payment may include a 
right to amounts actually payable after the TARP period.
    (2) Exclusions. For purposes of this part, a golden parachute 
payment does not include any of the following:
    (i) Any payment made pursuant to a pension or retirement plan which 
is qualified (or is intended within a reasonable period of time to be 
qualified) under section 401 of the Internal Revenue Code (26 U.S.C. 
401) or pursuant to a pension or other retirement plan which is governed 
by the laws of any foreign country;

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    (ii) Any payment made by reason of the departure of the employee due 
to the employee's death or disability; or
    (iii) Any severance or similar payment which is required to be made 
pursuant to a State statute or foreign law (independent of any terms of 
a contract or other agreement) which is applicable to all employers 
within the appropriate jurisdiction (with the exception of employers 
that may be exempt due to their small number of employees or other 
similar criteria).
    (3) Payments for services performed or benefits accrued--(i) General 
rules. Except as otherwise provided for payments made under a deferred 
compensation plan or a benefit plan in paragraph (4) of this definition, 
a payment made, or a right to a payment arising under a plan, contract, 
agreement, or other arrangement (including the acceleration of any 
vesting conditions) is for services performed or benefits accrued only 
if the payment was made, or the right to the payment arose, for current 
or prior services to the TARP recipient (except that an appropriate 
allowance may be made for services for a predecessor employer). Whether 
a payment is for services performed or benefits accrued is determined 
based on all the facts and circumstances. However, a payment, or a right 
to a payment, generally will be treated as a payment for services 
performed or benefits accrued only if the payment would be made 
regardless of whether the employee departs or the change in control 
event occurs, or if the payment is due upon the departure of the 
employee, regardless of whether the departure is voluntary or 
involuntary (other than reasonable restrictions, such as the forfeiture 
of the right to a payment for an involuntary departure for cause, but 
not restrictions relating to whether the departure was a voluntary 
departure for good reason or subsequent to a change in control).
    (ii) Examples. The following examples illustrate the general rules 
in paragraph (3)(i) of this definition:

    Example 1. Employee A is a SEO of Entity B at all relevant times. On 
September 1, 2007, Employee A received a stock appreciation right 
granting him the right to appreciation on the underlying shares that 
would vest 25% for every twelve months of continued services. Under the 
terms of the grant, the stock appreciation right would be immediately 
exercised and payable upon termination of employment. Entity B becomes a 
TARP recipient in December 2008. On September 1, 2009, Entity B 
involuntarily terminates Employee A, at which time Employee A receives a 
payment equal to the post-September 1, 2007 appreciation on 50% of the 
shares under the stock appreciation right (the portion of the shares 
that had vested before the termination of employment). The payment is 
treated as a payment for services performed and does not constitute a 
golden parachute payment.
    Example 2. The facts are the same as the facts in Example 1, except 
that under Employee A's employment agreement, Employee A is entitled to 
accelerate vesting if Employee A is terminated involuntarily other than 
for cause. If Entity B pays Employee A the post-September 1, 2007 
appreciation on 100% of the shares under the stock appreciation right, 
the portion of the payment representing the additional 50% accelerated 
vesting due to the termination of employment would not be for services 
performed and would be a golden parachute payment.

    (4) Payments from benefit plans and deferred compensation plans. A 
payment from a benefit plan or a deferred compensation plan is treated 
as a payment for services performed or benefits accrued only if the 
following conditions are met:
    (i) The plan was in effect at least one year prior to the employee's 
departure;
    (ii) The payment is made pursuant to the plan and is made in 
accordance with the terms of the plan as in effect no later than one 
year before the departure and in accordance with any amendments to the 
plan during this one year period that do not increase the benefits 
payable hereunder;
    (iii) The employee has a vested right, as defined under the 
applicable plan document, at the time of the departure or the change in 
control event (but not due to the departure or the change in control 
event) to the payments under the plan;
    (iv) Benefits under the plan are accrued each period only for 
current or prior service rendered to the TARP recipient (except that an 
appropriate allowance may be made for service for a predecessor 
employer);

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    (v) Any payment made pursuant to the plan is not based on any 
discretionary acceleration of vesting or accrual of benefits which 
occurs at any time later than one year before the departure or the 
change in control event; and
    (vi) With respect to payments under a deferred compensation plan, 
the TARP recipient has previously recognized compensation expense and 
accrued a liability for the benefit payments according to GAAP or 
segregated or otherwise set aside assets in a trust which may only be 
used to pay plan benefits, except that the assets of this trust may be 
available to satisfy claims of the TARP recipient's creditors in the 
case of insolvency and payments pursuant to the plan are not in excess 
of the accrued liability computed in accordance with GAAP.
    Gross-up. The term ``gross-up'' means any reimbursement of taxes 
owed with respect to any compensation, provided that a gross-up does not 
include a payment under a tax equalization agreement, which is an 
agreement, method, program, or other arrangement that provides payments 
intended to compensate an employee for some or all of the excess of the 
taxes actually imposed by a foreign jurisdiction on the compensation 
paid by the TARP recipient to the employee over the taxes that would be 
imposed if the compensation were subject solely to U.S. Federal, State, 
and local income tax, or some or all of the excess of the U.S. Federal, 
State, and local income tax actually imposed on the compensation paid by 
the TARP recipient to the employee over the taxes that would be imposed 
if the compensation were subject solely to taxes in the applicable 
foreign jurisdiction, provided that the payment made under such 
agreement, method, program, or other arrangement may not exceed such 
excess and the amount necessary to compensate for the additional taxes 
on the amount paid under the agreement, method, program, or other 
arrangement.
    Incentive compensation. The term ``incentive compensation'' means 
compensation provided under an incentive plan.
    Incentive plan. (1) Definition. The term ``incentive plan'' means an 
``incentive plan'' as that term is defined in Item 402(a)(6)(iii) of 
Regulation S-K under the Federal securities laws (17 CFR 
229.402(a)(6)(iii)), and any plan providing stock or options as defined 
in Item 402(a)(6)(i) of Regulation S-K under the Federal securities laws 
(17 CFR 229.402(a)(6)(i)) or other equity-based compensation such as 
restricted stock units or stock appreciation rights, except for the 
payment of salary or other permissible payments in stock, stock units, 
or other property as described in paragraph (2) of this definition. An 
incentive plan does not include the payment of salary, but does include 
an arrangement under which an employee would earn compensation in the 
nature of a commission, unless such compensation qualifies as commission 
compensation (as defined above). Accordingly, an incentive plan includes 
an arrangement under which an employee receives compensation only upon 
the completion of a specified transaction, such as an initial public 
offering or sale or acquisition of a specified entity or entities, 
regardless of how such compensation is measured. For examples, see the 
definition of ``commission compensation,'' above. An incentive plan, or 
a grant under an incentive plan, may also qualify as a bonus or a 
retention award.
    (2) Salary or other permissible payments paid in property. The term 
``incentive plan'' does not include an arrangement under which an 
employee receives salary or another permissible payment in property, 
such as TARP recipient stock, provided that such property is not subject 
to a substantial risk of forfeiture (as defined in 26 CFR 1.83-3(c)) or 
other future period of required services, the amount of the payment is 
determinable as a dollar amount through the date such compensation is 
earned (for example, an agreement that salary payments will be made in 
stock equal to the value of the cash payment that would otherwise be 
due), and the amount of stock or other property accrues at the same time 
or times as the salary or other permissible payments would otherwise be 
paid in cash. The term ``incentive plan'' also does not include an 
arrangement under which an employee receives a restricted stock

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unit that is analogous to TARP recipient stock, that otherwise meets the 
requirements of the previous sentence. For this purpose, a unit is 
analogous to stock if the unit is based upon stock of the TARP 
recipient, or is applied as if the applicable entity, division, or other 
unit were a corporation with one class of stock and the number of units 
of stock granted is determined based on a fixed percentage of the 
overall value of this corporation, and the term ``TARP recipient stock'' 
with respect to a particular employee recipient means the stock of a 
corporation (or the entity, division, or other unit the value of which 
forms the basis for the unit) that is an ``eligible issuer of service 
recipient stock'' under 26 CFR 1.409A-1(b)(5)(iii)(E) (applied by 
analogy to non-corporate entities).
    (3) Examples. The following examples illustrate the provisions of 
paragraph (2) of this definition.

    Example 1. Employee is an employee of TARP recipient. For 2010, TARP 
recipient agrees to pay a salary of $15,000, payable monthly. At each 
salary payment date Employee will receive a $10,000 payment in cash, and 
be transferred a number of shares of common stock of TARP recipient 
equal to $5,000 divided by the fair market value of a share of common 
stock on the salary payment date. The arrangement is for the payment of 
salary, and is not an incentive plan.
    Example 2. Same facts as Example 1, except that pursuant to a valid 
elective deferral election, Employee elects to defer 20% of each salary 
payment into a nonqualified deferred compensation plan. At each salary 
payment date Employee will receive an $8,000 payment in cash, be 
transferred a number of shares of common stock of TARP recipient equal 
to $4,000 divided by the fair market value of a share of common stock on 
the salary payment date, and a $3,000 contribution to an account under a 
nonqualified deferred compensation plan. The arrangement is for the 
payment of salary, and is not an incentive plan.
    Example 3. Employee is an employee of TARP recipient. For 2010, TARP 
recipient agrees to pay a salary of $15,000, payable monthly. At each 
salary payment date, Employee will receive a $10,000 payment in cash, 
and accrue a right to a number of shares of common stock of TARP 
recipient equal to $5,000 divided by the fair market value of a share of 
common stock on the salary payment date. At the end of the year, TARP 
recipient will transfer the total number of accrued shares to Employee, 
subject to a multi-year holding period (a restriction that the shares 
may not be transferred or otherwise disposed of by Employee for a 
specified number of years). If Employee's employment with the TARP 
recipient terminates during the holding period, the termination will not 
affect the duration or application of the holding period or Employee's 
right to retain the shares and to transfer or otherwise dispose of them 
at the end of the holding period. The arrangement is for the payment of 
salary, and is not an incentive plan. The arrangement would also be for 
the payment of salary, and not an incentive plan, if the arrangement 
provided that the holding period was to last until the later of a 
specified time period or a specified time following Employee's 
retirement or other termination of employment.
    Example 4. Employee is an employee of TARP recipient. For 2010, TARP 
recipient agrees to pay a salary of $15,000, payable monthly. At each 
salary payment date, Employee will receive a $10,000 payment in cash, 
and accrue a right to a contribution to an account equal to $5,000 
divided by the fair market value of a share on the salary payment date. 
The account balance will be subject to notional gains and losses based 
on the investment return on TARP recipient common stock. The amount will 
be payable upon the last day of the second year immediately following 
the year the services are performed. The arrangement is for the payment 
of salary, and is not an incentive plan. However, the arrangement 
generally will provide deferred compensation for purposes of section 
409A of the Internal Revenue Code.

    Internal Revenue Code. The term ``Internal Revenue Code'' means the 
Internal Revenue Code of 1986, as amended.
    Long-term restricted stock. The term ``long-term restricted stock'' 
means restricted stock or restricted stock units that include the 
following features:
    (1) The restricted stock or restricted stock units are issued with 
respect to common stock of the TARP recipient. For this purpose, a 
restricted stock unit includes a unit that is payable, or may be 
payable, in cash or stock, provided that the value of the payment is 
equal to the value of the underlying stock. With respect to a specified 
division or other unit within a TARP recipient or a TARP recipient that 
is not a stock corporation, a unit analogous to common stock may be 
used. For this purpose, a unit is analogous to common stock if applied 
as if the entity, division, or other unit were a corporation with one 
class of common stock and the number of units of common stock granted is 
determined based on a

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fixed percentage of the overall value of this corporation. 
Notwithstanding the foregoing, with respect to a particular employee 
recipient, the corporation the stock of which is utilized (or the 
entity, division, or other unit the value of which forms the basis for 
the unit) must be an ``eligible issuer of service recipient stock'' 
under 26 CFR 1.409A-1(b)(5)(iii)(E) (applied by analogy to non-corporate 
entities).
    (2) The restricted stock or restricted stock unit may not become 
transferable (as defined in 26 CFR 1.83-3(d)), or payable as applied to 
a restricted stock unit, at any time earlier than permitted under the 
following schedule (except as necessary to reflect a merger or 
acquisition of the TARP recipient):
    (i) 25% of the shares or units granted at the time of repayment of 
25% of the aggregate financial assistance received.
    (ii) An additional 25% of the shares or units granted (for an 
aggregate total of 50% of the shares or units granted) at the time of 
repayment of 50% of the aggregate financial assistance received.
    (iii) An additional 25% of the shares or units granted (for an 
aggregate total of 75% of the shares or units granted) at the time of 
repayment of 75% of the aggregate financial assistance received.
    (iv) The remainder of the shares or units granted at the time of 
repayment of 100% of the aggregate financial assistance received.
    (3) Notwithstanding the foregoing, in the case of restricted stock 
for which the employee does not make an election under section 83(b) of 
the Internal Revenue Code (26 U.S.C. 83(b)), at any time beginning with 
the date upon which the stock becomes substantially vested (as defined 
in 26 CFR 1.83-3(b)) and ending on December 31 of the calendar year 
including that date, a portion of the restricted stock may be made 
transferable as may reasonably be required to pay the Federal, State, 
local, or foreign taxes that are anticipated to apply to the income 
recognized due to this vesting, and the amounts made transferable for 
this purpose shall not count toward the percentages in the schedule 
above.
    (4) The employee must be required to forfeit the restricted stock or 
restricted stock unit if the employee does not continue performing 
substantial services for the TARP recipient for at least two years from 
the date of grant, other than due to the employee's death or disability, 
or a change in control event (as defined in 26 CFR 1.280G-1, Q&A-27 
through Q&A-29 or as defined in 26 CFR 1.409A-3(i)(5)(i)) with respect 
to the TARP recipient before the second anniversary of the date of 
grant.
    (5) Nothing in paragraphs (1), (2), (3), and (4) of this definition 
is intended to prevent the placement on such restricted stock or 
restricted stock unit of any additional restrictions, conditions, or 
limitations that are not inconsistent with the requirements of these 
paragraphs.
    Most highly compensated employee. (1) In general. The terms ``most 
highly compensated employee'' or ``most highly compensated employees'' 
mean the employee or employees of the TARP recipient whose annual 
compensation is determined to be the highest among all employees of the 
TARP recipient, provided that, solely for purposes of identifying the 
employees who are subject to any rule applicable to both the SEOs and 
one or more of the most highly compensated employees of the TARP 
recipient, SEOs of the TARP recipient are excluded when identifying the 
most highly compensated employee(s). For this purpose, a former employee 
who is no longer employed as of the first date of the relevant fiscal 
year of the TARP recipient is not a most highly compensated employee 
unless it is reasonably anticipated that such employee will return to 
employment with the TARP recipient during such fiscal year.
    (2) Application to new entities. For an entity that is created or 
organized in the same year that the entity becomes a TARP recipient, a 
most highly compensated employee for the first year includes the person 
that the TARP recipient determines will be the most highly compensated 
employee for the next year based upon a reasonable, good faith 
determination of the projected annual compensation of such person earned 
during that year. This

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determination must be made as of the later of the date the entity is 
created or organized or the date the entity becomes a TARP recipient, 
and must be made only once. However, a person need not yet be an 
employee to be treated as a most highly compensated employee, if it is 
reasonably anticipated that the person will become an employee of the 
TARP recipient during the first year.
    Obligation. (1) Definition. The term ``obligation'' means a 
requirement for, or an ability of, a TARP recipient to repay financial 
assistance received from Treasury, as provided in the terms of the 
applicable financial instrument and related agreements, through the 
repayment of a debt obligation or the redemption or repurchase of an 
equity security, but not including warrants to purchase common stock of 
the TARP recipient.
    (2) Examples. The following examples illustrate the provisions of 
paragraph (1) of this definition.

    Example 1. TARP recipient sells $500 million of preferred stock to 
Treasury, and provides warrants to Treasury for the purchase of $75 
million of common stock. The TARP recipient has an ability to redeem the 
preferred stock and thus maintains an outstanding obligation to 
Treasury.
    Example 2. Same facts as Example 1, except that TARP recipient 
redeems the $500 million of preferred stock, so that Treasury holds only 
the $75 million of warrants to purchase common stock outstanding. TARP 
recipient does not maintain an outstanding obligation to Treasury.
    Example 3. TARP recipient sells $120 million of securities backed by 
Small Business Administration-guaranteed loans to Treasury through the 
Consumer and Business Lending initiative, and provides warrants to 
Treasury for the purchase of $10 million of common stock. Because the 
TARP recipient does not as a result of this transaction owe a debt 
obligation or have a requirement or right to redeem or repurchase an 
equity security (other than the warrants to purchase common stock 
provided to the Treasury), the TARP recipient does not have an 
outstanding obligation to Treasury as a result of this transaction.

    PEO. The term ``PEO'' means the principal executive officer or an 
employee acting in a similar capacity.
    Perquisite. The term ``perquisite'' means a ``perquisite or other 
personal benefit'' the amount of which is required to be included in the 
amount reported under Item 402(c)(2)(ix)(A) of Regulation S-K under the 
Federal securities laws (17 CFR 229.402(c)(2)(ix)(A)) (Column (i) of the 
Summary Compensation Table (All Other Compensation)), modified to also 
include any such perquisite or other personal benefit provided to a most 
highly compensated employee subject to Sec.  30.11(b) (Q-11).
    PFO. The term ``PFO'' means the principal financial officer or an 
employee acting in a similar capacity.
    Primary regulatory agency. The term ``primary regulatory agency'' 
means the Federal regulatory agency that has primary supervisory 
authority over the TARP recipient. For a TARP recipient that is a State-
chartered bank that does not have securities registered with the SEC 
pursuant to the Federal securities laws, the primary regulatory agency 
is the TARP recipient's primary Federal banking regulator. If a TARP 
recipient is not subject to the supervision of a Federal regulatory 
agency, the term ``primary regulatory agency'' means the Treasury.
    Repayment. The term ``repayment'' means satisfaction of an 
obligation.
    Retention award. (1) General definition. The term ``retention 
award'' means any payment to an employee, other than a payment of 
commission compensation, a payment made pursuant to a pension or 
retirement plan which is qualified (or is intended within a reasonable 
period of time to be qualified) under section 401 of the Internal 
Revenue Code (26 U.S.C. 401), a payment made pursuant to a benefit plan, 
or a payment of a fringe benefit, overtime pay, or reasonable expense 
reimbursement that:
    (i) Is not payable periodically to an employee for services 
performed by the employee at a regular hourly, daily, weekly, monthly, 
or similar periodic rate (or would not be payable in such manner absent 
an elective deferral election);
    (ii) Is contingent on the completion of a period of future service 
with the TARP recipient or the completion of a specific project or other 
activity of the TARP recipient; and

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    (iii) Is not based on the performance of the employee (other than a 
requirement that the employee not be separated from employment for 
cause) or the business activities or value of the TARP recipient.
    (2) New hires. With respect to newly hired employees, a payment that 
will be made only if the new hire continues providing services for a 
specified period generally constitutes a retention award. For example, a 
signing bonus that must be repaid unless the newly hired employee 
completes a certain period of service is a retention award. Similarly, a 
``make-whole'' agreement under which a newly hired employee is provided 
benefits intended to make up for benefits foregone at his former 
employer, where these new benefits are subject to a continued service 
period vesting requirement (such as a continuation of the vesting period 
at the former employer), is a retention award.
    (3) Deferred compensation plans. Whether a benefit under a deferred 
compensation plan that is subject to a service vesting period is a 
retention award depends on all the facts and circumstances. However, to 
the extent an employee continues to accrue, or becomes eligible to 
accrue, a benefit under a plan the benefits under which have not been 
materially enhanced for a significant period of time prior to the 
employee becoming an SEO or most highly compensated employee (including 
through expansion of the eligibility for such plan), the benefits 
accrued generally will not be a retention award. However, to the extent 
the plan is amended to materially enhance the benefits provided under 
the plan or to make such employee eligible to participate in such plan, 
and such benefits are subject to a requirement of a continued period of 
service, such an amendment generally will be a retention award.
    SEC. The term ``SEC'' means the U.S. Securities and Exchange 
Commission.
    Senior executive officer or SEO. (1) General definition. The term 
``senior executive officer'' or ``SEO'' means a ``named executive 
officer'' as that term is determined pursuant to Instruction 1 to Item 
402(a)(3) of Regulation S-K under the Federal securities laws (17 CFR 
229.402(a)) who is an employee of the TARP recipient.
    (2) Application to smaller reporting company. A TARP recipient that 
is a smaller reporting company must identify SEOs pursuant to paragraph 
(1) of this definition. Such a TARP recipient must identify at least 
five SEOs, even if only three named executive officers are provided in 
the disclosure pursuant to Item 402(m)(2) of Regulation S-K under the 
Federal securities laws (17 CFR 229.402(m)(2)), provided that no 
employee must be identified as a SEO if the employee's total annual 
compensation does not exceed $100,000 as defined in Item 402(a)(3)(1) of 
Regulation S-K under the Federal securities laws (17 CFR 
229.402(a)(3)(1)).
    (3) Application to private TARP recipients. A TARP recipient that 
does not have securities registered with the SEC pursuant to the Federal 
securities laws must identify SEOs in accordance with rules analogous to 
the rules in paragraph (1) of this definition.
    SEO compensation plan. The term ``SEO compensation plan'' means 
``plan'' as that term is defined in Item 402(a)(6)(ii) of Regulation S-K 
under the Federal securities laws (17 CFR 229.402(a)(6)(ii)), but only 
with regard to a SEO compensation plan in which a SEO participates.
    Senior risk officer. The term ``senior risk officer'' means a senior 
risk executive officer or employee acting in a similar capacity.
    Smaller reporting company. The term ``smaller reporting company'' 
means a ``smaller reporting company'' as that term is defined in Item 
10(f) of Regulation S-K under the Federal securities laws (17 CFR 
229.10(f)).
    Sunset date. The term ``sunset date'' means the date on which the 
authorities provided under EESA section 101 and 102 terminate, pursuant 
to EESA section 120, taking into account any extensions pursuant to EESA 
section 120(b).
    TARP. The term ``TARP'' means the Troubled Asset Relief Program, 
established pursuant to EESA.
    TARP fiscal year. The term ``TARP fiscal year'' means a fiscal year 
of a TARP recipient, or the portion of a fiscal year of a TARP 
recipient, that is also a TARP period.
    TARP period. The term ``TARP period'' means the period beginning 
with

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the TARP recipient's receipt of any financial assistance and ending on 
the last date upon which any obligation arising from financial 
assistance remains outstanding (disregarding any warrants to purchase 
common stock of the TARP recipient that the Treasury may hold).
    TARP recipient. (1) General definition. The term ``TARP recipient'' 
means
    (i) Any entity that has received or holds a commitment to receive 
financial assistance; and
    (ii) Any entity that would be treated as the same employer as an 
entity receiving financial assistance based on the rules in sections 
414(b) and 414(c) of the Internal Revenue Code (26 U.S.C. 414(b) or 
(c)), but modified by substituting ``50%'' for ``80%'' in each place it 
appears in section 414(b) or 414(c) and the accompanying regulations. 
However, for purposes of applying the aggregation rules to determine the 
applicable employer, the rules for brother-sister controlled groups and 
combined groups are disregarded (including disregarding the rules in 
section 1563(a)(2) and (a)(3) of the Internal Revenue Code (26 U.S.C. 
1563(a)(2) and (a)(3)) with respect to corporations and the parallel 
rules that are in 26 CFR 1.414(c)-2(c) with respect to other 
organizations conducting trades or businesses).
    (2) Certain excluded entities. Neither any entity receiving funds 
under TARP pursuant to section 109 of EESA nor any Federal Reserve bank 
as that term is used in the Federal Reserve Act (12 U.S.C. 221 et seq.) 
will be treated as a TARP recipient subject to section 111 of EESA and 
any rules and regulations promulgated thereunder.
    (3) Anti-abuse rule. Notwithstanding paragraph (1) of this 
definition, the term ``TARP recipient'' means any entity that has 
received, or holds a commitment to receive, financial assistance; and 
any entity related to such TARP recipient to the extent that the primary 
purpose for the creation or utilization of such entity is to avoid or 
evade any or all of the requirements of section 111 of EESA or these 
regulations.
    Treasury. The term ``Treasury'' means the U.S. Department of the 
Treasury.
    Valid employment contract. The term ``valid employment contract'' 
means a written employment contract that is:
    (1)(i) A material contract as determined pursuant to Item 
601(b)(10)(iii)(A) of Regulation S-K under the Federal securities laws 
(17 CFR 229.601(b)(10)(iii)(A)); or
    (ii) A contract that would be deemed a material contract as 
determined pursuant to Item 601(b)(10)(iii) of Regulation S-K under the 
Federal securities laws (17 CFR 229.601(b)(10)(iii)), but for the fact 
that the material contract relates to one or more employee who is not an 
executive officer; and
    (2) Is enforceable under the law of the applicable jurisdiction.

[74 FR 28405, June 15, 2009, as amended at 74 FR 63992, Dec. 7, 2009]



Sec.  30.2  Q-2: To what entities does this part apply?

    This part applies to any TARP recipient, provided that the 
requirements of sections 111(b) (portions of Sec.  30.4 (Q-4), Sec.  
30.5 (Q-5) and Sec.  30.7 (Q-7), as applicable, Sec.  30.6 (Q-6), and 
Sec.  30.8 (Q-8) through Sec.  30.11 (Q-11), and Sec.  30.15 (Q-15)), 
and section 111(e) (Sec.  30.13 (Q-13)) apply only during the period 
during which any obligation to the Federal government arising from 
financial assistance provided under the TARP remains outstanding. For a 
TARP recipient that has had an obligation to the Federal government 
arising from financial assistance provided under the TARP, and no 
further financial assistance under the TARP, the requirements of section 
111(c) (including portions of Sec.  30.4 (Q-4), Sec.  30.5 (Q-5) and 
Sec.  30.7 (Q-7), as applicable) and section 111(d) (Sec.  30.12 (Q-12)) 
apply through the last day of the period during which that obligation 
remains outstanding; for a TARP recipient that has never had an 
obligation to the Federal government arising from financial assistance 
provided under the TARP, the requirements of section 111(c) (including 
portions of Sec.  30.4 (Q-4), Sec.  30.5 (Q-5) and Sec.  30.7 (Q-7), as 
applicable) and section 111(d) (Sec.  30.12 (Q-12)) apply through the 
last day of the TARP recipient's fiscal year including the sunset date. 
For this purpose, an obligation includes the ownership by

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the Federal government of common stock of a TARP recipient.

[74 FR 28405, June 15, 2009, as amended at 74 FR 63992, Dec. 7, 2009]



Sec.  30.3  Q-3: How are the SEOs and most highly compensated employees
identified for purposes of compliance with this part?

    (a) Identification. The SEOs for a year are the ``named executive 
officers'' who are employees and are identified in the TARP recipient's 
annual report on Form 10-K or annual meeting proxy statement for that 
year (reporting the SEOs' compensation for the immediately preceding 
year). These employees are considered the SEOs throughout that entire 
year. For purposes of the standards in this part applicable to the most 
highly compensated employees, the determination of whether an employee 
is a most highly compensated employee in a current fiscal year looks 
back to the annual compensation for the last completed fiscal year 
without regard to whether the compensation is includible in the 
employee's gross income for Federal income tax purposes.
    (b) Compliance. Regardless of when during the current fiscal year 
the TARP recipient determines the SEOs or the most highly compensated 
employees, the TARP recipient must ensure that any of the SEOs or 
employees potentially subject to the requirements in this part for the 
current fiscal year complies with the requirements in this part as 
applicable.



Sec.  30.4  Q-4: What actions are necessary for a TARP recipient to
comply with the standards established under sections 111(b)(3)(A),
111(b)(3)(E), 
          111(b)(3)(F) and 111(c) of EESA (evaluation of employee plans 
          and potential to encourage excessive risk or manipulation of 
          earnings)?

    (a) General rule. To comply with the standards established under 
sections 111(b)(3)(A), 111(b)(3)(E), 111(b)(3)(F) and 111(c) of EESA, a 
TARP recipient must establish a compensation committee by the later of 
ninety days after the closing date of the agreement between the TARP 
recipient and Treasury or September 14, 2009, and maintain a 
compensation committee during the remainder of the TARP period. If a 
compensation committee is already established before the later of the 
closing date or September 14, 2009, the TARP recipient must maintain its 
compensation committee. During the remainder of the TARP period after 
the later of ninety days after the closing date of the agreement between 
the TARP recipient and Treasury or September 14, 2009, the compensation 
committee must:
    (1) Discuss, evaluate, and review at least every six months with the 
TARP recipient's senior risk officers the SEO compensation plans to 
ensure that the SEO compensation plans do not encourage SEOs to take 
unnecessary and excessive risks that threaten the value of the TARP 
recipient;
    (2) Discuss, evaluate, and review with senior risk officers at least 
every six months employee compensation plans in light of the risks posed 
to the TARP recipient by such plans and how to limit such risks;
    (3) Discuss, evaluate, and review at least every six months the 
employee compensation plans of the TARP recipient to ensure that these 
plans do not encourage the manipulation of reported earnings of the TARP 
recipient to enhance the compensation of any of the TARP recipient's 
employees;
    (4) At least once per TARP recipient fiscal year, provide a 
narrative description of how the SEO compensation plans do not encourage 
the SEOs to take unnecessary and excessive risks that threaten the value 
of the TARP recipient, including how these SEO compensation plans do not 
encourage behavior focused on short-term results rather than long-term 
value creation, the risks posed by employee compensation plans and how 
these risks were limited, including how these employee compensation 
plans do not encourage behavior focused on short-term results rather 
than long-term value creation, and how the TARP recipient has ensured 
that the employee compensation plans do not encourage the manipulation 
of reported earnings of the TARP recipient to enhance the compensation 
of any of the TARP recipient's employees; and
    (5) Certify the completion of the reviews of the SEO compensation 
plans

[[Page 347]]

and employee compensation plans required under paragraphs (a)(1), (2), 
and (3) of this section.
    (b) Exclusion of TARP recipients with no employees or no affected 
employees. For any period during which a TARP recipient has no 
employees, or has no SEO or compensation plan subject to the review 
process, the TARP recipient is not subject to the requirements of 
paragraph (a) of this section.
    (c) Application to private TARP recipients. The rules provided in 
paragraph (a) of this section are also applicable to TARP recipients 
that do not have securities registered with the SEC pursuant to the 
Federal securities laws. A TARP recipient that does not have securities 
registered with the SEC pursuant to the Federal securities laws and has 
received $25,000,000 or less in financial assistance is subject to 
paragraph (a) of this section, except that, in lieu of establishing and 
maintaining a compensation committee, such a TARP recipient is permitted 
to ensure that all the members of the board of directors carry out the 
duties of the compensation committee as described in paragraph (a) of 
this section. However, such a TARP recipient will be required to 
establish and maintain a compensation committee satisfying the 
requirements of paragraph (a) of this section for the first fiscal year 
following a fiscal year during which the TARP recipient either registers 
securities with the SEC pursuant to the Federal securities laws or has 
received more than $25,000,000 in financial assistance, and during 
subsequent years of the TARP period.
    (d) Application to TARP recipients that have never had an 
outstanding obligation. For TARP recipients that have never had an 
outstanding obligation, only paragraphs (a)(2), (a)(4), (a)(5) (but for 
the narrative and certification requirements of (a)(4) and (a)(5), 
applied only to the requirements of paragraph (a)(2)), (b) and (c) of 
this Sec.  30.4 (Q-4) shall apply.



Sec.  30.5  Q-5: How does a TARP recipient comply with the requirements
under Sec.  30.4 (Q-4) of this part that the compensation committee
discuss, evaluate, 
          and review the SEO compensation plans and employee 
          compensation plans to ensure that the SEO compensation plans 
          do not encourage the SEOs to take unnecessary and excessive 
          risks that threaten the value of the TARP recipient, or that 
          the employee compensation plans do not pose unnecessary risks 
          to the TARP recipient?

    At least every six months, the compensation committee must discuss, 
evaluate, and review with the TARP recipient's senior risk officers any 
risks (including long-term as well as short-term risks) that the TARP 
recipient faces that could threaten the value of the TARP recipient. The 
compensation committee must identify the features in the TARP 
recipient's SEO compensation plans that could lead SEOs to take these 
risks and the features in the employee compensation plans that pose 
risks to the TARP recipient, including any features in the SEO 
compensation plans and the employee compensation plans that would 
encourage behavior focused on short-term results and not on long-term 
value creation. The compensation committed is required to limit these 
features to ensure that the SEOs are not encouraged to take risks that 
are unnecessary or excessive and that the TARP recipient is not 
unnecessarily exposed to risks.



Sec.  30.6  Q-6: How does a TARP recipient comply with the requirement
under Sec.  30.4 (Q-4) of this part that the compensation committee discuss,
evaluate, 
          and review the employee compensation plans to ensure that 
          these plans do not encourage the manipulation of reported 
          earnings of the TARP recipient to enhance the compensation of 
          any of the TARP recipient's employees?

    The compensation committee must discuss, evaluate, and review at 
least every six months the terms of each employee compensation plan and 
identify and eliminate the features in these plans that could encourage 
the manipulation of reported earnings of the TARP recipient to enhance 
the compensation of any employee.

[[Page 348]]



Sec.  30.7  Q-7: How does a TARP recipient comply with the certification
and disclosure requirements under Sec.  30.4 (Q-4) of this part?

    (a) Certification. The compensation committee must provide the 
certifications required by Sec.  30.4 (Q-4) of this part stating that it 
has reviewed, with the TARP recipient's senior risk officers, the SEO 
compensation plans to ensure that these plans do not encourage SEOs to 
take unnecessary and excessive risks, the employee compensation plans to 
limit any unnecessary risks these plans pose to the TARP recipient, and 
the employee compensation plans to eliminate any features of these plans 
that would encourage the manipulation of reported earnings of the TARP 
recipient to enhance the compensation of any employee. For any period 
during which no obligation arising from financial assistance provided 
under the TARP remains outstanding, the requirements under this 
paragraph shall be modified to be consistent with Sec.  30.4(d) (Q-
4(d)). Providing a statement similar to the following and in the manner 
provided in paragraphs (c) and (d) of this section, as applicable, would 
satisfy this standard: ``The compensation committee certifies that:
    (1) It has reviewed with senior risk officers the senior executive 
officer (SEO) compensation plans and has made all reasonable efforts to 
ensure that these plans do not encourage SEOs to take unnecessary and 
excessive risks that threaten the value of [identify TARP recipient];
    (2) It has reviewed with senior risk officers the employee 
compensation plans and has made all reasonable efforts to limit any 
unnecessary risks these plans pose to the [identify TARP recipient]; and
    (3) It has reviewed the employee compensation plans to eliminate any 
features of these plans that would encourage the manipulation of 
reported earnings of [identify TARP recipient] to enhance the 
compensation of any employee.''
    (b) Disclosure. At least once per TARP recipient fiscal year, the 
compensation committee must provide a narrative description identifying 
each SEO compensation plan and explaining how the SEO compensation plan 
does not encourage the SEOs to take unnecessary and excessive risks that 
threaten the value of the TARP recipient. The compensation committee 
must also identify each employee compensation plan, explain how any 
unnecessary risks posed by the employee compensation plan have been 
limited, and further explain how the employee compensation plan does not 
encourage the manipulation of reported earnings to enhance the 
compensation of any employee.
    (c) Location. For TARP recipients with securities registered with 
the SEC pursuant to the Federal securities law, the compensation 
committee must provide these certifications and disclosures in the 
Compensation Committee Report required pursuant to Item 407(e) of 
Regulation S-K under the Federal securities laws (17 CFR 229.407(e)) and 
to Treasury. These disclosures must be provided in the Compensation 
Committee Report for any disclosure pertaining to any fiscal year any 
portion of which is a TARP period (for a TARP recipient with an 
obligation), or for any disclosure pertaining to any fiscal year 
including a date on or before the sunset date (for a TARP recipient that 
has never had an obligation). Within 120 days of the completion of a 
fiscal year during any part of which is a TARP period (for a TARP 
recipient with an obligation), or the completion of a fiscal year 
including a date on or before the sunset date (for a TARP recipient that 
has never had an obligation), a TARP recipient that is a smaller 
reporting company must provide the certifications of the compensation 
committee to its primary regulatory agency and to Treasury.
    (d) Application to private TARP recipients. The rules provided in 
paragraphs (a), (b), and (c) of this section are also applicable to TARP 
recipients that do not have securities registered with the SEC pursuant 
to the Federal securities laws. Within 120 days of the completion of the 
fiscal year during any part of which is a TARP period (for a TARP 
recipient with an obligation), or the completion of a fiscal year 
including a date on or before the sunset date (for a TARP recipient that 
has never had an obligation), a private TARP recipient

[[Page 349]]

must provide the certification of the compensation committee (or board 
of directors, as applicable under Sec.  30.4 (Q-4)) to its primary 
regulatory agency and to Treasury.



Sec.  30.8  Q-8: What actions are necessary for a TARP recipient to comply
with the standards established under section 111(b)(3)(B) of EESA
(the ``clawback'' provision requirement)?

    To comply with the standards established under section 111(b)(3)(B) 
of EESA, a TARP recipient must ensure that any bonus payment made to a 
SEO or the next twenty most highly compensated employees during the TARP 
period is subject to a provision for recovery or ``clawback'' by the 
TARP recipient if the bonus payment was based on materially inaccurate 
financial statements (which includes, but is not limited to, statements 
of earnings, revenues, or gains) or any other materially inaccurate 
performance metric criteria. Whether a financial statement or 
performance metric criteria is materially inaccurate depends on all the 
facts and circumstances. However, for this purpose, a financial 
statement or performance metric criteria shall be treated as materially 
inaccurate with respect to any employee who knowingly engaged in 
providing inaccurate information (including knowingly failing to timely 
correct inaccurate information) relating to those financial statements 
or performance metrics. Otherwise, with respect to a performance 
criteria, whether the inaccurate measurement of the performance or 
inaccurate application of the performance to the performance criteria is 
material depends on whether the actual performance or accurate 
application of the actual performance to the performance criteria is 
materially different from the performance required under the performance 
criteria or the inaccurate application of the actual performance to the 
performance criteria. The TARP recipient must exercise its clawback 
rights except to the extent it demonstrates that it is unreasonable to 
do so, such as, for example, if the expense of enforcing the rights 
would exceed the amount recovered. For the purpose of this section, a 
bonus payment is deemed to be made to an individual when the individual 
obtains a legally binding right to that payment.



Sec.  30.9  Q-9: What actions are necessary for a TARP recipient to comply
with the standards established under section 111(b)(3)(C) of EESA 
(the prohibition on golden parachute payments)?

    (a) Prohibition on golden parachute payments. To comply with the 
standards established under section 111(b)(3)(C) of EESA, a TARP 
recipient must prohibit any golden parachute payment to a SEO and any of 
the next five most highly compensated employees during the TARP period. 
A golden parachute payment is treated as paid at the time of departure 
and is equal to the aggregate present value of all payments made for a 
departure. Thus, a golden parachute payment during the TARP period may 
include a right to amounts actually payable after the TARP period.
    (b) Examples. The following examples illustrate the provisions of 
paragraph (a) of this section:

    Example 1. Employee A is a SEO of a TARP recipient. Employee A is 
entitled to a payment of three times his annual compensation upon an 
involuntary termination of employment or voluntary termination of 
employment for good reason, but such amount is not payable unless and 
until the TARP period expires with respect to TARP recipient. Employee A 
terminates employment during the TARP period. Because, for purposes of 
the prohibition on golden parachute payments, the payment is made at the 
time of departure, Employee A may not obtain the right to the payment 
upon the termination of employment.
    Example 2. Employee B involuntarily terminated employment on July 1, 
2008, at which time Employee B was a SEO of a financial institution. 
Employee B's employment agreement provided that if Employee B were 
involuntarily terminated or voluntarily terminated employment for good 
reason, Employee B would be entitled to a series of five equal annual 
payments. After the first payment, but before any subsequent payment, 
the entity became a TARP recipient. Because, for purposes of the 
prohibition on golden parachute payments, all of the five payments are 
deemed to have occurred at termination of employment and because, in 
this case, termination of employment occurred before the beginning of 
the applicable TARP period, the payment of the four remaining payments 
due under the agreement

[[Page 350]]

will not violate the requirements of this section.



Sec.  30.10  Q-10: What actions are necessary for a TARP recipient to
comply with section 111(b)(3)(D) of EESA (the limitations on bonus
payments)?

    (a) General rule. To comply with section 111(b)(3)(D) of EESA, 
pursuant to the schedule under paragraph (b) of this section and subject 
to the exclusions under paragraph (e) of this section, a TARP recipient 
must prohibit the payment or accrual of any bonus payment during the 
TARP period to or by the employees identified pursuant to paragraph (b) 
of this section.
    (b)(1) Schedule. The prohibition required under paragraph (a) of 
this section applies as follows to:
    (i) The most highly compensated employee of any TARP recipient 
receiving less than $25,000,000 in financial assistance;
    (ii) At least the five most highly compensated employees of any TARP 
recipient receiving $25,000,000 but less than $250,000,000 in financial 
assistance;
    (iii) The SEOs and at least the ten next most highly compensated 
employees of any TARP recipient receiving $250,000,000 but less than 
$500,000,000 in financial assistance; and
    (iv) The SEOs and at least the twenty next most highly compensated 
employees of any TARP recipient receiving $500,000,000 or more in 
financial assistance.
    (2) Changes in level of financial assistance. The determination of 
which schedule in paragraph (b) of this section is applicable to a TARP 
recipient during the TARP period is determined by the gross amount of 
all financial assistance provided to the TARP recipient, valued at the 
time the financial assistance was received. Whether a TARP recipient's 
financial assistance has increased during a fiscal year to the point in 
the schedule under paragraph (b) of this section that the SEOs or a 
greater number of the most highly compensated employees will be subject 
to the requirements under paragraph (a) of this section is determined as 
of the last day of the TARP recipient's fiscal year, and the increase in 
coverage is effective for the subsequent fiscal year.
    (3) Application to first year of financial assistance. For employers 
who become TARP recipients after June 15, 2009, the bonus payment 
limitation provision under this paragraph (b) does not apply to bonus 
payments paid or accrued by TARP recipients or their employees before 
the first date of the TARP period. Certain bonus payments may relate to 
a service period beginning before and ending after the first date of the 
TARP period. In these circumstances, the employee will not be treated as 
having accrued the bonus payment on or after the first date of the TARP 
period if the bonus payment is reduced to reflect at least the portion 
of the service period that occurs on or after the first date of the TARP 
period. However, if the employee is a SEO or most highly compensated 
employee at the time the amount would otherwise be paid, the bonus 
payment amount as reduced in accordance with the previous sentence still 
may not be paid until such time as bonus payments to that employee are 
permitted.
    (c) Accrual--(1) General rule. Whether an employee has accrued a 
bonus payment is determined based on the facts and circumstances. An 
accrual may include the granting of service credit (whether toward the 
calculation of the benefit or any vesting requirement) or credit for the 
compensation received (or that otherwise would have been received) 
during the period the employee was subject to the restriction under 
paragraph (a) of this section. For application of this rule to the 
fiscal year including June 15, 2009, see Sec.  30.17 (Q-17).
    (2) Payments or accruals after the employee is no longer a SEO or 
most highly compensated employee. If after the employee is no longer a 
SEO or most highly compensated employee, the employee is paid a bonus 
payment or provided a legally binding right to a bonus payment that is 
based upon services performed or compensation received during the period 
the employee was a SEO or most highly compensated employee, the employee 
will be treated as having accrued such bonus payment during the period 
the employee was a SEO or most highly compensated employee. For example, 
if the employee is retroactively granted service credit under an 
incentive plan (whether for

[[Page 351]]

vesting or benefit calculation purposes) for the period in which the 
employee was a SEO or most highly compensated employee, the employee 
will be treated as having accrued that benefit during the period the 
employee was a SEO or most highly compensated employee.
    (3) Multi-year service periods. Certain bonus payments may relate to 
a multi-year service period, during some portion of which the employee 
is a SEO or most highly compensated employee subject to paragraph (a) of 
this section, and during some portion of which the employee is not. In 
these circumstances, the employee will not be treated as having accrued 
the bonus payment during the period the employee was a SEO or most 
highly compensated employee if the bonus payment is at least reduced to 
reflect the portion of the service period that the employee was a SEO or 
most highly compensated employee. If the employee is a SEO or most 
highly compensated employee at the time the net bonus payment amount 
after such reduction would otherwise be paid, the amount still may not 
be paid until such time as bonus payments to that employee are 
permitted.
    (d) Examples. The following examples illustrate the rules of 
paragraphs (a) through (c) of this section:

    Example 1. Employee A is a SEO of a TARP recipient in 2010, but not 
in 2011. The TARP recipient maintains an annual bonus program, generally 
paying bonus payments in March of the following year. Employee A may not 
be paid a bonus payment in 2010 (for services performed in 2009 or any 
other year). In addition, Employee A may not be paid a bonus payment in 
2011 to the extent such bonus payment is based on services performed in 
2010.
    Example 2. Same facts as in Example 1, provided further that 
Employee A receives a salary increase for 2011. The salary increase 
equals the same percentage as similarly situated executive officers, 
with an additional percentage increase which, over the course of twelve 
months, equals the bonus that would have been payable to Employee A in 
2011 (for services performed in 2010), except for application of 
paragraph (a) of this section. Under these facts and circumstances, the 
additional percentage increase will be treated as a bonus payment 
accrued in 2010 and Employee A may not be paid this bonus payment.
    Example 3. Same facts as in Example 1, provided further that on 
March 1, 2011, Employee A is granted a stock option under the TARP 
recipient stock incentive plan with a value approximately equal to the 
bonus that would have been payable to Employee A in 2011 (for services 
performed in 2010), except for application of paragraph (a) of this 
section. Other similarly situated employee not covered by the bonus 
limitation for 2010 do not receive such a grant. Under these facts and 
circumstances, the stock option grant will be treated as a bonus payment 
accrued in 2010 and will not be permitted to be paid to Employee A.
    Example 4. Employee B is not a SEO or a most highly compensated 
employee of a TARP recipient during 2009. On July 1, 2009, Employee B is 
granted the right to a bonus payment of $50,000 if Employee B is 
employed by the TARP recipient through July 1, 2011 (two years). 
Employee B is a SEO of a TARP recipient during 2010, but is not a SEO or 
a most highly compensated employee of the TARP recipient during 2011. 
Employee B is employed by the TARP recipient on July 1, 2011. Thus, 
Employee B was a SEO or most highly compensated employee during one-half 
of the two-year required service period. Provided that Employee B is 
paid not more than half of the otherwise payable bonus payment, or 
$25,000, Employee B will not be treated as having accrued a bonus 
payment while Employee B was a SEO or a most highly compensated 
employee.

    (e) Exclusions--(1) Long-term restricted stock--(i) General rule. 
The TARP recipient is permitted to award long-term restricted stock to 
the employees whose compensation is limited according to the schedule 
under paragraph (b) of this section, provided that the value of this 
grant may not exceed one third of the employee's annual compensation as 
determined for that fiscal year (that is, not using the look-back method 
for the prior year). For purposes of this paragraph, in determining an 
employee's annual compensation, all equity-based compensation granted in 
fiscal years ending after June 15, 2009 will only be included in the 
calculation in the year in which it is granted at its total fair market 
value on the grant date, and all equity-based compensation granted in 
fiscal years ending prior to June 15, 2009 will not be included in the 
calculation of annual compensation for any subsequent fiscal year. For 
purposes of this paragraph, in determining the value of the long-term 
restricted stock grant, the long-term restricted stock granted in 
accordance with this paragraph will only be included in the calculation 
in the year in

[[Page 352]]

which the restricted stock is granted at its total fair market value on 
the grant date.

    (ii) Example. During 2008, Employee A receives compensation of $1 
million salary and a $1,200,000 long-term restricted stock grant subject 
to a three-year vesting period. During 2009, Employee A received 
compensation of $1 million salary and no grant of long-term restricted 
stock. During 2010, Employee A receives compensation of $600,000 salary 
and a $300,000 long-term restricted stock grant subject to a three-year 
vesting period. Under the general SEC compensation disclosure rules used 
to define annual compensation in Sec.  30.1 (Q-1) of this part, the 
compensation related to the long-term restricted stock grants would be 
allocated over the vesting period. Assume for this purpose, that for 
2010, $400,000 of the 2008 long-term restricted stock grant is allocated 
as compensation, and $100,000 of the 2010 long-term restricted stock 
grant is allocated as compensation, so that the total annual 
compensation is $1,100,000 ($600,000 salary + $400,000 + $100,000). 
However, for purposes of determining Employee A's annual compensation to 
apply the limit on the value of the long-term restricted stock that may 
be granted to Employee A in 2010, the entire $300,000 value of the 2010 
grant is included but the $400,000 value attributed to the 2008 grant is 
excluded. Accordingly, Employee A's adjusted annual compensation is 
$900,000 ($1,100,000 - $100,000 + $300,000 - $400,000). In addition, the 
entire fair market value of the 2010 long-term restricted stock grant is 
included for purposes of determining whether the limit has been 
exceeded. Because the $300,000 adjusted value of the long-term 
restricted stock grant does not exceed one-third of the $900,000 
adjusted annual compensation, the grant complies with paragraph 
(e)(1)(i).
    (2) Legally binding right under valid employment contracts--(i) 
General rule. The prohibition under paragraph (a) of this section does 
not apply to bonus payments required to be paid under a valid employment 
contract if the employee had a legally binding right under the contract 
to a bonus payment as of February 11, 2009. For purposes of determining 
whether an employee had a legally binding right to a bonus payment, see 
26 CFR 1.409A-1(b)(i). In addition, the bonus payment must be made in 
accordance with the terms of the contract as of February 11, 2009 (which 
may include application of an elective deferral election under a 
qualified retirement plan or a nonqualified deferred compensation plan), 
such that any subsequent amendment to the contract to increase the 
amount payable, accelerate any vesting conditions, or otherwise 
materially enhance the benefit available to the employee under the 
contract will result in the bonus payment being treated as not made 
under the employment contract executed on or before February 11, 2009. 
However, amendment of a valid employment contract executed on or before 
February 11, 2009 under which an employee has a legally binding right to 
a bonus payment to reduce the amount of the bonus payment or to enhance 
or include service-based or performance-based vesting requirements or 
holding period requirements will not result in this treatment. The 
amended employment contract would still be deemed a valid employment 
contract and the employee would still be treated as having a legally 
binding right to the bonus payment under the original employment 
contract. The TARP recipient and the employees of the TARP recipient 
should be cognizant of the restrictions under section 409A of the 
Internal Revenue Code (26 U.S.C. 409A) in the case of an amendment 
described in the preceding sentence.
    (ii) Examples. The following examples illustrate the provisions of 
this paragraph (2).

    Example 1. TARP recipient sponsors a written restricted stock unit 
plan. Under the plan, restricted stock units are traditionally granted 
each July 1, and are subject to a three-year vesting requirement. 
Employee A, a SEO of TARP recipient, received grants on July 1, 2007, 
July 1, 2008, and July 1, 2009. The July 1, 2007 and July 1, 2008 grants 
are excluded from the limitation on payments, because although the 
awards were subject to a continuing service vesting requirement, 
Employee A retained a legally binding right to the restricted stock 
units as of February 11, 2009. However, regardless of the fact that the 
restricted stock unit program was in existence on February 11, 2009, 
Employee A did not retain a legally binding right to a restricted stock 
unit for 2009 as of February 11,

[[Page 353]]

2009, but rather obtained the legally binding right only when the 
restricted stock unit was granted on July 1, 2009. Accordingly, the July 
1, 2009 grant is subject to the limitation and is not permitted to be 
accrued or paid (unless such grant complies with the exception for 
certain grants of long-term restricted stock).
    Example 2. TARP recipient sponsors an annual bonus program 
documented in a written plan. Under the bonus program, the board of 
directors retains the discretion to eliminate or reduce the bonus of any 
employee in the bonus pool. Employees B and C, both SEOs, are in the 
bonus pool for 2008. On January 15, 2009, the compensation committee 
determines the bonuses to which the employees of the division in which 
Employee B works are entitled, and awards Employee B a $10,000 bonus 
payable on June 1. Employee B has a legally binding right to the bonus 
as of February 11, 2009 and payment of the bonus is not subject to the 
limitation. However, as of February 11, 2009, the board of directors has 
not met to determine which employees of the division in which Employee C 
works will be entitled to a bonus or the amount of such bonus. 
Accordingly, Employee C did not have a legally binding right to a bonus 
as of February 11, 2009 and may be subject to the bonus payment 
limitation.
    Example 3. TARP recipient sponsors a written stock option plan under 
which stock options may be granted to SEOs designated by the 
compensation committee. Designations and grants typically occur at a 
meeting in August of every year, and no meeting occurred in 2009 before 
August. Regardless of the existence of the general plan, no SEO had a 
legally binding right to a stock option grant for 2009 as of February 
11, 2009 because no grants had been made under the plan. Accordingly, 
any 2009 grant will be subject to the limitation and is not permitted to 
be made.
    Example 4. Employee D is an SEO of a TARP recipient. Under Employee 
D's written employment agreement executed before February 11, 2009, 
Employee D is entitled to the total of whatever bonuses are made 
available to Employee E and Employee F. As of February 11, 2009, 
Employee E had a legally binding right to a $100,000 bonus. Employees E 
and F are never at any time SEOs or highly compensated employees subject 
to the limitation. As of February 11, 2009, Employee F had no legally 
binding right to a bonus, but was eligible to participate in a bonus 
pool and was ultimately awarded a bonus of $50,000. As of February 11, 
2009, Employee D had a legally binding right to a $100,000 bonus, so 
that bonus is not subject to the limitation. However, as of February 11, 
2009, Employee D did not have a legally binding right to the additional 
$50,000 bonus, so that bonus is subject to the bonus payment limitation 
and, if not paid before June 15, 2009 is not permitted to be paid.

    (f) Application to private TARP recipients. The rules set forth in 
this section are also applicable to TARP recipients that do not have 
securities registered with the SEC pursuant to the Federal securities 
laws.



Sec.  30.11  Q-11: Are TARP recipients required to meet any other
standards under the executive compensation and corporate governance 
standards in section 111 of EESA?

    (a) Approval of compensation payments to, and compensation 
structures for, certain employees of TARP recipients receiving 
exceptional financial assistance. For any period during which a TARP 
recipient is designated as a TARP recipient that has received 
exceptional financial assistance, the TARP recipient must obtain the 
approval by the Special Master of all compensation payments to, and 
compensation structures for, SEOs and most highly compensated employees 
subject to paragraph (b) of Sec.  30.10 (Q-10). TARP recipients that 
receive exceptional financial assistance must also receive approval by 
the Special Master for all compensation structures for other employees 
who are executive officers (as defined under the Securities and Exchange 
Act, Rule 3b-7) or one of the 100 most highly compensated employees of a 
TARP recipient receiving exceptional assistance (or both), who are not 
subject to the bonus limitations under Sec.  30.10 (Q-10). For this 
purpose, compensation payments and compensation structures may include 
awards or other rights to compensation which an employee has already 
received but not yet been paid or, in some instances, fully accrued. 
Accordingly, the Special Master has the authority to require that such 
compensation payments or compensation structures be altered to meet the 
standards set forth in Sec.  30.16 (Q-16). However, this approval 
requirement is not applicable to payments that are not subject to 
paragraph (a) of Sec.  30.10 (Q-10) due to the application of paragraph 
(e)(2) of Sec.  30.10 (Q-10) or the effective date provisions of Sec.  
30.17 (Q-17), though the Special Master will take such payments into 
account in reviewing the compensation structure and

[[Page 354]]

amounts payable, as applicable, that are subject to review. 
Notwithstanding any of the foregoing, approval is not required with 
respect to an employee not subject to the bonus payment limitations to 
the extent that the employee's annual compensation, as modified in Sec.  
30.16 (Q-16) to include certain deferred compensation and pension 
accruals but to disregard any grant of long-term restricted stock, is 
limited to $500,000 or less, and any further compensation is provided in 
the form of long-term restricted stock. For details, see Sec.  30.16 (Q-
16).
    (b) Perquisite disclosure--(1) General rule. TARP recipients must 
annually disclose during the TARP period any perquisite whose total 
value for the TARP recipient's fiscal year exceeds $25,000 for each of 
the SEOs and most highly compensated employees that are subject to 
paragraph (a) of Sec.  30.10 (Q-10). TARP recipients must provide a 
narrative description of the amount and nature of these perquisites, the 
recipient of these perquisites, and a justification for offering these 
perquisites (including a justification for offering the perquisite, and 
not only for offering the perquisite with a value that exceeds $25,000). 
Such disclosure must be provided within 120 days of the completion of a 
fiscal year any part of which is a TARP period.
    (2) Location. A TARP recipient must provide this disclosure to 
Treasury and to its primary regulatory agency.
    (c) Compensation consultant disclosure--(1) General rule. The 
compensation committee of the TARP recipient must provide annually a 
narrative description of whether the TARP recipient, the board of 
directors of the TARP recipient, or the compensation committee has 
engaged a compensation consultant; and all types of services, including 
non-compensation related services, the compensation consultant or any of 
its affiliates has provided to the TARP recipient, the board, or the 
compensation committee during the past three years, including any 
``benchmarking'' or comparisons employed to identify certain percentile 
levels of compensation (for example, entities used for benchmarking and 
a justification for using these entities and the lowest percentile level 
proposed for compensation). Such disclosure must be provided within 120 
days of the completion of a fiscal year any part of which is a TARP 
period.
    (2) Application to TARP recipients not required to maintain 
compensation committees. For those TARP recipients not required to 
establish and maintain compensation committees under Sec.  30.4(c) (Q-
4), the board of directors must provide the disclosure under Sec.  
30.4(c)(1).
    (3) Location. A TARP recipient must provide this disclosure to 
Treasury and to its primary regulatory agency.
    (d) Prohibition on gross-ups. Except as explicitly permitted under 
this part, TARP recipients are prohibited from providing (formally or 
informally) gross-ups to any of the SEOs and next twenty most highly 
compensated employees during the TARP period. For this purpose, 
providing a gross-up includes providing a right to a payment of such a 
gross-up at a future date, for example a date after the TARP period.



Sec.  30.12  Q-12: What actions are necessary for a TARP recipient to
comply with section 111(d) of EESA (the excessive or luxury expenditures
policy requirement)?

    To comply with section 111(d) of EESA, by the later of ninety days 
after the closing date of the agreement between the TARP recipient and 
Treasury or September 14, 2009, the board of directors of the TARP 
recipient must adopt an excessive or luxury expenditures policy, provide 
this policy to Treasury and its primary regulatory agency, and post the 
text of this policy on its Internet Web site, if the TARP recipient 
maintains a company Web site. After adoption of the policy, the TARP 
recipient must maintain the policy during the remaining TARP period (if 
the TARP recipient has an obligation), or through the last day of the 
TARP recipient's fiscal year including the sunset date (if the TARP 
recipient has never had an obligation). If, after adopting an excessive 
or luxury expenditures policy, the board of directors of the TARP 
recipient makes any material amendments to this policy, within ninety 
days of the adoption of the amended policy, the board of directors must 
provide the amended policy to Treasury and its primary regulatory

[[Page 355]]

agency and post the amended policy on its Internet Web site, if the TARP 
recipient maintains a company Web site. This disclosure must continue 
through the TARP period (if the TARP recipient has an obligation), or 
through the last day of the TARP recipient's fiscal year that includes 
the sunset date (if the TARP recipient has never had an obligation).



Sec.  30.13  Q-13: What actions are necessary for a TARP recipient to
comply with section 111(e) of EESA (the shareholder resolution on executive
compensation requirement)?

    As provided in section 111(e) of EESA, any proxy or consent or 
authorization for an annual or other meeting of the shareholders of any 
TARP recipient that occurs during the TARP period must permit a separate 
shareholder vote to approve the compensation of executives, as required 
to be disclosed pursuant to the Federal securities laws (including the 
compensation discussion and analysis, the compensation tables, and any 
related material). To meet this standard, a TARP recipient must comply 
with any rules, regulations, or guidance promulgated by the SEC that are 
applicable to the TARP recipient.

[74 FR 63992, Dec. 7, 2009]



Sec.  30.14  Q-14: How does section 111 of EESA operate in connection with
an acquisition, merger, or reorganization?

    (a) Special rules for acquisitions, mergers, or reorganizations. In 
the event that a TARP recipient (target) is acquired by an entity that 
is not an affiliate of the target (acquirer) in an acquisition of any 
form, including a purchase of substantially all of the assets of the 
target, such that the acquirer after the transaction would have been 
treated as a TARP recipient if the target had received the TARP funds 
immediately after the transaction, acquirer will not become subject to 
section 111 of EESA merely as a result of the acquisition. If the 
acquirer is not subject to section 111 of EESA immediately after the 
transaction, then any employees of the acquirer immediately after the 
transaction (including target employees who were SEOs or most highly 
compensated employees immediately prior to the transaction and became 
acquirer employees as a result of the transaction) will not be subject 
to section 111 of EESA.
    (b) Anti-abuse rule. Notwithstanding the provisions of paragraph (a) 
of this section, if the primary purpose of a transaction involving the 
acquisition, in any form, of a TARP recipient is to avoid or evade the 
application of any of the requirements of section 111 of EESA, the 
acquirer will be treated as a TARP recipient immediately upon such 
acquisition. In such a case, the SEOs and the most highly compensated 
employees to whom any of the requirements of section 111 of EESA and 
this Interim Final Rule apply shall be redetermined as of the date of 
the acquisition. The redetermined SEOs and most highly compensated 
employees of the post-acquisition acquirer shall consist of the PEO and 
PFO of the post-acquisition acquirer, plus the applicable number of next 
most highly compensated employees determined by aggregating the post-
acquisition employees of the acquirer (to include the pre-acquisition 
employees of the target employed by the acquirer, or anticipated to be 
employed by the acquirer), and ranking such employees in order of 
compensation for the immediately preceding fiscal year of the pre-
acquisition target or pre-acquisition acquirer, as appropriate. In the 
case of an asset acquisition, the entity or entities to whom the 
target's assets are transferred shall be treated as the direct recipient 
of the financial assistance for purposes of determining which other 
related entities are treated, in the aggregate, as the TARP recipient 
under the definition of ``TARP recipient'' in Sec.  30.1 (Q-1).



Sec.  30.15  Q-15: What actions are necessary for a TARP recipient to
comply with certification requirements of section 111(b)(4) of EESA?

    (a) Certification Requirements--(1) General. To comply with section 
111(b)(4) of EESA, the PEO and the PFO of the TARP recipient must 
provide the following certifications with respect to the compliance of 
the TARP recipient with section 111 of EESA as implemented under this 
part:

[[Page 356]]

    (2) First Fiscal Year Certification. (i) Within ninety days of the 
completion of the first annual fiscal year of the TARP recipient any 
portion of which is a TARP period, the PEO and the PFO of the TARP 
recipient must provide certifications similar to the model provided in 
appendix A to this section.
    (ii) If the first annual fiscal year of a TARP recipient any portion 
of which is a TARP period ends within thirty days after the closing date 
of the applicable agreement between the TARP recipient and Treasury, the 
TARP recipient shall have an additional sixty days beginning on the day 
after the end of the fiscal year during which it can establish the 
compensation committee, if not already established, and during which the 
compensation committee shall meet with senior risk officers to discuss, 
review, and evaluate the SEO compensation plans and employee 
compensation plans in accordance with Sec.  30.4 (Q-4) of this part. The 
certifications of the PEO and the PFO of the TARP recipient must be 
amended to reflect the timing of the establishment and reviews of the 
compensation committee.
    (3) Years Following First Fiscal Year Certification. Within ninety 
days of the completion of each TARP fiscal year of the TARP recipient 
after the first TARP fiscal year, the PEO and the PFO of the TARP 
recipient must provide a certification similar to the model provided in 
appendix B to this section.
    (4) Location. A TARP recipient with securities registered with the 
SEC pursuant to the Federal securities law must provide these 
certifications as an exhibit (pursuant to Item 601(b)(99)(i) of 
Regulation S-K under the Federal securities laws (17 CFR 
229.601(b)(99)(i)) to the TARP recipient's annual report on Form 10-K 
and to Treasury. To the extent that the PEO or the PFO of the TARP 
recipient is unable to provide any of these certifications in a timely 
manner, the PEO or the PFO must provide Treasury an explanation of the 
reason such certification has not been provided. These certifications 
are in addition to the compensation committee certifications required by 
Sec.  30.5 (Q-5) of this part.
    (5) Application to private TARP recipients. The rules provided in 
this section are also applicable to TARP recipients that do not have 
securities registered with the SEC pursuant to the Federal securities 
laws, except that the certifications under appendix A, paragraph (x) and 
appendix B, paragraph (x) of this section are not required for such TARP 
recipients. A private TARP recipient must provide these certifications 
to its primary regulatory agency and to Treasury.
    (6) Application to TARP recipients that have never had an 
obligation. For those TARP recipients that have never had an obligation, 
the PEO and PFO must provide the certifications pursuant to this 
paragraph (a) only with respect to the requirements applicable to a TARP 
recipient that has never had an obligation (generally certain 
compensation committee reviews of employee compensation plans and the 
issuance of, and compliance with, an excessive or luxury expenses 
policy).
    (b) Recordkeeping requirements. The TARP recipient must preserve 
appropriate documentation and records to substantiate each certification 
required under paragraph (a) of this section for a period of not less 
than six years after the date of the certification, the first two years 
in an easily accessible place. The TARP recipient must furnish promptly 
to Treasury legible, true, complete, and current copies of the 
documentation and records that are required to be preserved under 
paragraph (b) of this section that are requested by any representative 
of Treasury.
    (c) Penalties for making or providing false or fraudulent 
Statements. Any individual or entity that provides information or makes 
a certification to Treasury pursuant to the Interim Final Rule or as 
required pursuant to 31 CFR part 30 may be subject to 18 U.S.C. 1001, 
which generally prohibits the making of any false or fraudulent 
statement in a matter within the jurisdiction of the Federal government. 
Upon receipt of information indicating that any individual or entity has 
violated any provision of title 18 of the U.S. Code or other provision 
of Federal law, Treasury

[[Page 357]]

shall refer such information to the Department of Justice and the 
Special Inspector General for the Troubled Asset Relief Program.

  Appendix A to Sec.  30.15--Model Certification for First Fiscal Year 
                              Certification

    ``I, [identify certifying individual], certify, based on my 
knowledge, that:
    (i) The compensation committee of [identify TARP recipient] has 
discussed, reviewed, and evaluated with senior risk officers at least 
every six months during the period beginning on the later of September 
14, 2009, or ninety days after the closing date of the agreement between 
the TARP recipient and Treasury and ending with the last day of the TARP 
recipient's fiscal year containing that date (the applicable period), 
the senior executive officer (SEO) compensation plans and the employee 
compensation plans and the risks these plans pose to [identify TARP 
recipient];
    (ii) The compensation committee of [identify TARP recipient] has 
identified and limited during the applicable period any features of the 
SEO compensation plans that could lead SEOs to take unnecessary and 
excessive risks that could threaten the value of [identify TARP 
recipient], and during that same applicable period has identified any 
features of the employee compensation plans that pose risks to [identify 
TARP recipient] and has limited those features to ensure that [identify 
TARP recipient] is not unnecessarily exposed to risks;
    (iii) The compensation committee has reviewed, at least every six 
months during the applicable period, the terms of each employee 
compensation plan and identified any features of the plan that could 
encourage the manipulation of reported earnings of [identify TARP 
recipient] to enhance the compensation of an employee, and has limited 
any such features;
    (iv) The compensation committee of [identify TARP recipient] will 
certify to the reviews of the SEO compensation plans and employee 
compensation plans required under (i) and (iii) above;
    (v) The compensation committee of [identify TARP recipient] will 
provide a narrative description of how it limited during any part of the 
most recently completed fiscal year that included a TARP period the 
features in
    (A) SEO compensation plans that could lead SEOs to take unnecessary 
and excessive risks that could threaten the value of [identify TARP 
recipient];
    (B) Employee compensation plans that unnecessarily expose [identify 
TARP recipient] to risks; and
    (C) Employee compensation plans that could encourage the 
manipulation of reported earnings of [identify TARP recipient] to 
enhance the compensation of an employee;
    (vi) [Identify TARP recipient] has required that bonus payments, as 
defined in the regulations and guidance established under section 111 of 
EESA (bonus payments), of the SEOs and twenty next most highly 
compensated employees be subject to a recovery or ``clawback'' provision 
during any part of the most recently completed fiscal year that was a 
TARP period if the bonus payments were based on materially inaccurate 
financial statements or any other materially inaccurate performance 
metric criteria;
    (vii) [Identify TARP recipient] has prohibited any golden parachute 
payment, as defined in the regulations and guidance established under 
section 111 of EESA, to an SEO or any of the next five most highly 
compensated employees during the period beginning on the later of the 
closing date of the agreement between the TARP recipient and Treasury or 
June 15, 2009 and ending with the last day of the TARP recipient's 
fiscal year containing that date;
    (viii) [Identify TARP recipient] has limited bonus payments to its 
applicable employees in accordance with section 111 of EESA and the 
regulations and guidance established thereunder during the period 
beginning on the later of the closing date of the agreement between the 
TARP recipient and Treasury or June 15, 2009 and ending with the last 
day of the TARP recipient's fiscal year containing that date, [for 
recipients of exceptional assistance: and has received or is in the 
process of receiving approvals from the Office of the Special Master for 
TARP Executive Compensation for compensation payments and structures as 
required under the regulations and guidance established under section 
111 of EESA, and has not made any payments inconsistent with those 
approved payments and structures];
    (ix) The board of directors of [identify TARP recipient] has 
established an excessive or luxury expenditures policy, as defined in 
the regulations and guidance established under section 111 of EESA, by 
the later of September 14, 2009, or ninety days after the closing date 
of the agreement between the TARP recipient and Treasury; this policy 
has been provided to Treasury and its primary regulatory agency; 
[identify TARP recipient] and its employees have complied with this 
policy during the applicable period; and any expenses that, pursuant to 
this policy, required approval of the board of directors, a committee of 
the board of directors, an SEO, or an executive officer with a similar 
level of responsibility were properly approved;
    (x) [Identify TARP recipient] will permit a non-binding shareholder 
resolution in compliance with any applicable Federal securities rules 
and regulations on the disclosures provided under the Federal securities 
laws

[[Page 358]]

related to SEO compensation paid or accrued during the period beginning 
on the later of the closing date of the agreement between the TARP 
recipient and Treasury or June 15, 2009 and ending with the last day of 
the TARP recipient's fiscal year containing that date;
    (xi) [Identify TARP recipient] will disclose the amount, nature, and 
justification for the offering during the period beginning on the later 
of the closing date of the agreement between the TARP recipient and 
Treasury or June 15, 2009 and ending with the last day of the TARP 
recipient's fiscal year containing that date of any perquisites, as 
defined in the regulations and guidance established under section 111 of 
EESA, whose total value exceeds $25,000 for any employee who is subject 
to the bonus payment limitations identified in paragraph (viii);
    (xii) [Identify TARP recipient] will disclose whether [identify TARP 
recipient], the board of directors of [identify TARP recipient], or the 
compensation committee of [TARP recipient] has engaged during the period 
beginning on the later of the closing date of the agreement between the 
TARP recipient and Treasury or June 15, 2009 and ending with the last 
day of the TARP recipient's fiscal year containing that date, a 
compensation consultant; and the services the compensation consultant or 
any affiliate of the compensation consultant provided during this 
period;
    (xiii) [Identify TARP recipient] has prohibited the payment of any 
gross-ups, as defined in the regulations and guidance established under 
section 111 of EESA, to the SEOs and the next twenty most highly 
compensated employees during the period beginning on the later of the 
closing date of the agreement between the TARP recipient and Treasury or 
June 15, 2009 and ending with the last day of the TARP recipient's 
fiscal year containing that date;
    (xiv) [Identify TARP recipient] has substantially complied with all 
other requirements related to employee compensation that are provided in 
the agreement between [identify TARP recipient] and Treasury, including 
any amendments;
    (xv) [Identify TARP recipient] has submitted to Treasury a complete 
and accurate list of the SEOs and the twenty next most highly 
compensated employees for the current fiscal year and the most recently 
completed fiscal year, with the non-SEOs ranked in descending order of 
level of annual compensation, and with the name, title, and employer of 
each SEO and most highly compensated employee identified; and[.]
    (xvi) I understand that a knowing and willful false or fraudulent 
statement made in connection with this certification may be punished by 
fine, imprisonment, or both. (See, for example, 18 U.S.C. 1001.)''

Appendix B to Sec.  30.15--Model Certification for Years Following First 
                        Fiscal Year Certification

    ``I, [identify certifying individual], certify, based on my 
knowledge, that:
    (i) The compensation committee of [identify TARP recipient] has 
discussed, reviewed, and evaluated with senior risk officers at least 
every six months during any part of the most recently completed fiscal 
year that was a TARP period, senior executive officer (SEO) compensation 
plans and employee compensation plans and the risks these plans pose to 
[identify TARP recipient];
    (ii) The compensation committee of [identify TARP recipient] has 
identified and limited during any part of the most recently completed 
fiscal year that was a TARP period any features of the SEO compensation 
plans that could lead SEOs to take unnecessary and excessive risks that 
could threaten the value of [identify TARP recipient] and has identified 
any features of the employee compensation plans that pose risks to 
[identify TARP recipient] and has limited those features to ensure that 
[identify TARP recipient] is not unnecessarily exposed to risks;
    (iii) The compensation committee has reviewed, at least every six 
months during any part of the most recently completed fiscal year that 
was a TARP period, the terms of each employee compensation plan and 
identified any features of the plan that could encourage the 
manipulation of reported earnings of [identify TARP recipient] to 
enhance the compensation of an employee, and has limited any such 
features;
    (iv) The compensation committee of [identify TARP recipient] will 
certify to the reviews of the SEO compensation plans and employee 
compensation plans required under (i) and (iii) above;
    (v) The compensation committee of [identify TARP recipient] will 
provide a narrative description of how it limited during any part of the 
most recently completed fiscal year that was a TARP period the features 
in
    (A) SEO compensation plans that could lead SEOs to take unnecessary 
and excessive risks that could threaten the value of [identify TARP 
recipient];
    (B) Employee compensation plans that unnecessarily expose [identify 
TARP recipient] to risks; and
    (C) Employee compensation plans that could encourage the 
manipulation of reported earnings of [identify TARP recipient] to 
enhance the compensation of an employee;
    (vi) [Identify TARP recipient] has required that bonus payments to 
SEOs or any of the next twenty most highly compensated employees, as 
defined in the regulations and guidance established under section 111 of

[[Page 359]]

EESA (bonus payments), be subject to a recovery or ``clawback'' 
provision during any part of the most recently completed fiscal year 
that was a TARP period if the bonus payments were based on materially 
inaccurate financial statements or any other materially inaccurate 
performance metric criteria;
    (vii) [Identify TARP recipient] has prohibited any golden parachute 
payment, as defined in the regulations and guidance established under 
section 111 of EESA, to a SEO or any of the next five most highly 
compensated employees during any part of the most recently completed 
fiscal year that was a TARP period;
    (viii) [Identify TARP recipient] has limited bonus payments to its 
applicable employees in accordance with section 111 of EESA and the 
regulations and guidance established thereunder during any part of the 
most recently completed fiscal year that was a TARP period [for 
recipients of exceptional assistance] and has received or is in the 
process of receiving approvals from the Office of the Special Master for 
TARP Executive Compensation for compensation payments and structures as 
required under the regulations and guidance established under section 
111 of EESA, and has not made any payments inconsistent with those 
approved payments and structures;
    (ix) [Identify TARP recipient] and its employees have complied with 
the excessive or luxury expenditures policy, as defined in the 
regulations and guidance established under section 111 of EESA, during 
any part of the most recently completed fiscal year that was a TARP 
period; and any expenses that, pursuant to the policy, required approval 
of the board of directors, a committee of the board of directors, an 
SEO, or an executive officer with a similar level of responsibility were 
properly approved;
    (x) [Identify TARP recipient] will permit a non-binding shareholder 
resolution in compliance with any applicable Federal securities rules 
and regulations on the disclosures provided under the Federal securities 
laws related to SEO compensation paid or accrued during any part of the 
most recently completed fiscal year that was a TARP period;
    (xi) [Identify TARP recipient] will disclose the amount, nature, and 
justification for the offering, during any part of the most recently 
completed fiscal year that was a TARP period, of any perquisites, as 
defined in the regulations and guidance established under section 111 of 
EESA, whose total value exceeds $25,000 for any employee who is subject 
to the bonus payment limitations identified in paragraph (viii);
    (xii) [Identify TARP recipient] will disclose whether [identify TARP 
recipient], the board of directors of [identify TARP recipient], or the 
compensation committee of [identify TARP recipient] has engaged during 
any part of the most recently completed fiscal year that was a TARP 
period a compensation consultant; and the services the compensation 
consultant or any affiliate of the compensation consultant provided 
during this period;
    (xiii) [Identify TARP recipient] has prohibited the payment of any 
gross-ups, as defined in the regulations and guidance established under 
section 111 of EESA, to the SEOs and the next twenty most highly 
compensated employees during any part of the most recently completed 
fiscal year that was a TARP period;
    (xiv) [Identify TARP recipient] has substantially complied with all 
other requirements related to employee compensation that are provided in 
the agreement between [identify TARP recipient] and Treasury, including 
any amendments;
    (xv) [Identify TARP recipient] has submitted to Treasury a complete 
and accurate list of the SEOs and the twenty next most highly 
compensated employees for the current fiscal year, with the non-SEOs 
ranked in descending order of level of annual compensation, and with the 
name, title, and employer of each SEO and most highly compensated 
employee identified; and''.
    (xvi) I understand that a knowing and willful false or fraudulent 
statement made in connection with this certification may be punished by 
fine, imprisonment, or both. (See, for example 18 U.S.C. 1001.)''

[74 FR 28405, June 15, 2009, as amended at 74 FR 63992, Dec. 7, 2009]



Sec.  30.16  Q-16: What is the Office of the Special Master for
TARP Executive Compensation, and what are its powers, duties and 
responsibilities?

    (a) The Office of the Special Master for TARP Executive 
Compensation. The Secretary of the Treasury shall establish the Office 
of the Special Master for TARP Executive Compensation (Special Master). 
The Special Master shall serve at the pleasure of the Secretary, and may 
be removed by the Secretary without notice, without cause, and prior to 
the naming of any successor Special Master. The Special Master shall 
have the following powers, duties and responsibilities:
    (1) Interpretative authority. The Special Master shall have 
responsibility for interpreting section 111 of EESA, these regulations, 
and any other applicable guidance, to determine how the requirements 
under section 111 of EESA, these regulations, and any other

[[Page 360]]

applicable guidance, apply to particular facts and circumstances. 
Accordingly, the Special Master shall make all determinations, as 
required, as to the meaning of such guidance and whether such 
requirements have been met in any particular circumstances. In addition, 
a TARP recipient or a TARP recipient employee may submit a request, in 
accordance with paragraph (c)(3) of this section, for an advisory 
opinion with respect to the requirements under section 111 of EESA, 
these regulations and any other applicable guidance.
    (2) Review of prior payments to employees. Section 111(f) of EESA 
provides that the Secretary shall review bonuses, retention awards, and 
other compensation paid before February 17, 2009, to employees of each 
entity receiving TARP assistance before February 17, 2009, to determine 
whether any such payments were inconsistent with the purposes of section 
111 of EESA or TARP, or otherwise contrary to the public interest. 
Section 111(f) of EESA provides that, if the Secretary makes such a 
determination, the Secretary shall seek to negotiate with the TARP 
recipient and the subject employee for appropriate reimbursements to the 
Federal Government with respect to compensation or bonuses. The Special 
Master shall have the responsibility for administering these provisions, 
including the identification of the payments that are inconsistent with 
the purposes of EESA or TARP, or otherwise contrary to the public 
interest, and the Special Master shall have responsibility for the 
negotiation with the TARP recipient and the subject employee for 
appropriate reimbursements to the Federal Government with respect to 
compensation or bonuses. The Special Master shall make this 
determination by application of the principles outlined in paragraph (b) 
of this section. The Special Master's administration of these provisions 
may provide for the scope of review by the Special Master of a payment, 
including a limited review or no review, depending on the payment 
amount, the type of payment, the overall compensation earned by the 
employee during the relevant period, a combination thereof, or such 
other factors as the Special Master may determine, where the Special 
Master determines that such factors demonstrate that such payments are 
not, or are highly unlikely to be, inconsistent with the purposes of 
section 111 of EESA or TARP, or otherwise contrary to the public 
interest, or that renegotiation of such payments is not in the public 
interest. The Special Master may request in writing any information from 
TARP recipients necessary to carry out the review of prior compensation 
required under section 111(f) of EESA. TARP recipients must submit any 
requested information to the Special Master within 30 days of the 
request.
    (3) Approval of certain payments to employees of TARP recipients 
receiving exceptional financial assistance--(i) SEOs and most highly 
compensated employees. The Special Master shall determine whether the 
compensation structure for each SEO or most highly compensated employee 
of a TARP recipient receiving exceptional assistance, including the 
amounts payable or potentially payable under such compensation 
structure, will or may result in payments that are inconsistent with the 
purposes of section 111 of EESA or TARP, or are otherwise contrary to 
the public interest. The Special Master shall make such determinations 
by applying the principles outlined in paragraph (b) of this section, 
subject to the requirement that the compensation structure and payments 
satisfy the applicable limitations under Sec.  30.10 (Q-10). This 
requirement shall apply to any compensation accrued or paid during any 
period the SEO or most highly compensated employee is subject to the 
limitations under Sec.  30.10 (Q-10). Initial requests for such approval 
must be submitted no later than August 14, 2009. The Special Master's 
administration of these provisions may provide for the Special Master's 
scope of review, including a limited review or no review, of a portion 
of a compensation structure or payment depending on the amount of such 
payments, the type of such payments, the overall compensation earned by 
the employee during the relevant period, a combination thereof, or such 
other factors as the Special Master determines, if the Special Master 
has determined that such factors

[[Page 361]]

demonstrate that such payments are not, or are highly unlikely to be, 
inconsistent with the purposes of section 111 of EESA or TARP, or 
otherwise contrary to the public interest. The Special Master shall 
issue a determination within 60 days of the receipt of a substantially 
complete submission. The TARP recipient must make a further request for 
approval to the extent the compensation structure for any SEO or most 
highly compensated employee, including the amounts that are or may be 
payable, for any SEO or highly compensated employee is materially 
modified. In reviewing compensation structures and compensation payments 
for any period subject to Special Master review, the Special Master may 
take into account other compensation structures and other compensation 
earned, accrued or paid, including such compensation and compensation 
structures that are not subject to the restrictions of Section 111 of 
EESA pursuant to section 111(b)(3)(D)(iii) (see Sec.  30.10(e)(2) (Q-
30.10(e)(2) (certain legally binding rights under valid written 
employment contracts)), and amounts that were accrued or paid prior to 
June 15, 2009 and are therefore not subject to review by the Special 
Master.
    (ii) Other executive officers and most highly compensated employees. 
With respect to any employee who is either an executive officer (as 
defined under the Securities and Exchange Act Rule 3b-7) or one of the 
100 most highly compensated employees of a TARP recipient receiving 
exceptional assistance (or both), who is not subject to the bonus 
limitations under Sec.  30.10 (Q-10), the Special Master shall determine 
whether the compensation structure for such employees will or may result 
in payments that are inconsistent with the purposes of section 111 of 
EESA or TARP, or are otherwise contrary to the public interest. The 
Special Master shall make such determination through application of the 
principles outlined in paragraph (b) of this section. With respect to 
the scope of the required review, the Special Master shall determine 
only whether the compensation arrangements are adequately structured, 
and is not required to rule with respect to the amounts that are or may 
be payable thereunder. However, the TARP recipient may also request an 
advisory opinion with respect to the amounts that are or may be payable, 
which the Special Master may provide in his sole discretion. 
Notwithstanding the foregoing, if the total annual compensation to an 
employee complies with the rules applicable to an SEO under Sec.  30.10 
(Q-10) applied without any limits on the grant of long-term restricted 
stock, and the annual compensation other than long-term restricted stock 
does not exceed $500,000 (or for 2009, $500,000 prorated to reflect the 
remaining portion of 2009 after June 15, 2009), the compensation 
structure will automatically be deemed to meet the requirements and no 
prior approval by the Special Master will be required. For purposes of 
the $500,000 limit, in determining annual compensation, all equity-based 
compensation granted in fiscal years ending after June 15, 2009 will be 
included in the calculation only in the year in which they are granted 
at their total fair market value on the grant date and all equity-based 
compensation granted in fiscal years ending prior to June 15, 2009 will 
not be included in the calculation of annual compensation. In addition, 
solely for purposes of applying the limit (and not for purposes of 
identifying the most highly compensated employees), the term annual 
compensation includes amounts required to be disclosed under paragraph 
(viii) of Item 402(a) of Regulation S-K of the Federal securities laws 
(change in the actuarial present value of benefits under a pension plan 
and above-market earnings on deferred compensation). The Special 
Master's administration of these provisions may provide for limited or 
no review of a portion of a compensation structure by the Special Master 
depending on the amount of potential payments, the type of such 
payments, the overall compensation earned by the employee during the 
relevant period, a combination thereof, or such other factors as the 
Special Master determines, where the Special Master has determined that 
such factors demonstrate that such payments are not, or are highly 
unlikely to be, inconsistent with the purposes of section 111 of EESA or 
TARP, or otherwise

[[Page 362]]

contrary to the public interest. Initial requests for such approval must 
be submitted no later than 120 days after publication of the final rule. 
Separate requests need not be submitted for each individual covered 
employee, but should be submitted for identified groups of employees 
subject to the same compensation structures to the extent possible as 
long as sufficient detail regarding individual compensation awards are 
provided as necessary to evaluate such employee's compensation 
structure. The Special Master shall issue a determination within 60 days 
of the receipt of a substantially complete submission. The TARP 
recipient must make a further request for approval to the extent the 
compensation structure, including the amounts that are or may be 
payable, for any executive officer is materially amended. In reviewing 
compensation structures for any period subject to Special Master review, 
the Special Master may take into account other compensation structures 
and other compensation earned, accrued or paid, including such 
compensation and compensation structures that are not subject to the 
restrictions of Section 111 of EESA pursuant to section 
111(b)(3)(D)(iii) (see Sec.  30.10(e)(2) (Q-30.10(e)(2) (certain legally 
binding rights under valid written employment contracts)), and amounts 
that were accrued or paid prior to June 15, 2009 and are therefore not 
subject to review by the Special Master.
    (iii) Period from June 15, 2009 through final determination. For the 
period from June 15, 2009 through the date of the Special Master's final 
determination, the TARP recipient will be treated as complying with this 
section if, with respect to employees covered by paragraph (a)(3)(i) of 
this section, the TARP recipient continues to pay compensation to such 
employees in accordance with the terms of employment as of June 14, 2009 
to the extent otherwise permissible under this Interim Final Rule (for 
example, continued salary payments but not any bonus payments) and if, 
with respect to employees covered by paragraph (a)(3)(ii) of this 
section, the TARP recipient continues to pay compensation to such 
employees under the compensation structure established as of June 14, 
2009, and if in addition the TARP recipient promptly complies with any 
modifications that may be required by the Special Master's final 
determination. However, the Special Master may take into account the 
amounts paid to an employee during such period in determining the 
appropriate compensation amounts and compensation structures, as 
applicable, for the remainder of the year.
    (4) Advisory opinions on compensation structures or compensation 
payments to employees of TARP recipients. A TARP recipient or TARP 
recipient employee may request an advisory opinion from the Special 
Master as to whether a compensation structure is, or will or may result 
in payments that are, inconsistent with the purposes of EESA or TARP, or 
otherwise contrary to the public interest. In addition, the Special 
Master may become aware of compensation structures or payments at any 
TARP recipient for which it may be useful to provide an advisory opinion 
as to whether such structure or payments meets this standard. 
Accordingly, the Special Master shall have the authority to render 
advisory opinions upon request or at the Special Master's initiative, as 
to whether a compensation structure is, or will or may result in 
payments to an employee that are inconsistent with the purposes of 
section 111 of EESA or TARP, or otherwise contrary to the public 
interest, or whether a compensation payment made, or to be made, was or 
will be inconsistent with the purposes of section 111 of EESA or TARP, 
or otherwise contrary to the public interest. If the Special Master 
renders an adverse opinion, the Special Master shall have the authority 
to seek to negotiate with the TARP recipient and the subject employee 
for appropriate reimbursements to the TARP recipient or the Federal 
government. Any advisory opinion shall reflect the Special Master's 
application of the principles outlined in paragraph (b) of this section. 
The Special Master shall not be required to render an advisory opinion 
in every instance, but may do so only where the Special Master deems 
appropriate and feasible in the context of the Special Master's other 
responsibilities. In any case, the Special Master shall

[[Page 363]]

render an opinion, or affirmatively decline to render an advisory 
opinion, within 60 days of the receipt of a substantially complete 
submission. The Special Master shall not be required to explain any 
decision to decline to render an advisory opinion.
    (5) Other designated duties and powers. The Special Master shall 
have such other duties and powers related to the application of 
compensation issues arising in the administration of EESA or TARP as the 
Secretary or the Secretary's designate may delegate to the Special 
Master, including, but not limited to, the interpretation or application 
of contractual provisions between the Federal government and a TARP 
recipient as those provisions relate to the compensation paid to, or 
accrued by, an employee of such TARP recipient.
    (b) Determination of whether compensation is inconsistent with the 
purposes of section 111 of EESA or TARP or is otherwise contrary to the 
public interest--(1) Principles. In reviewing a compensation structure 
or a compensation payment to determine whether it is inconsistent with 
the purposes of section 111 of EESA or TARP or is otherwise contrary to 
the public interest, the Special Master shall apply the principles 
enumerated below. The principles are intended to be consistent with 
sound compensation practices appropriate for TARP recipients, and to 
advance the purposes and considerations described in EESA sections 2 and 
103, including the maximization of overall returns to the taxpayers of 
the United States and providing stability and preventing disruptions to 
financial markets. The Special Master has discretion to determine the 
appropriate weight or relevance of a particular principle depending on 
the facts and circumstances surrounding the compensation structure or 
payment under consideration, such as whether a payment occurred in the 
past or is proposed for the future, the role of the employee within the 
TARP recipient, the situation of the TARP recipient within the 
marketplace and the amount and type of financial assistance provided. To 
the extent that two or more principles may appear inconsistent in a 
particular situation, the Special Master will determine the relative 
weight to be accorded each principle. In the case of any review of 
payments already made under paragraph (c)(2) of this section, or of any 
rights to bonuses, awards, or other compensation already granted, the 
Special Master shall apply these principles by considering the facts and 
circumstances at the time the compensation was granted, earned, or paid, 
as appropriate.
    (i) Risk. The compensation structure should avoid incentives to take 
unnecessary or excessive risks that could threaten the value of the TARP 
recipient, including incentives that reward employees for short-term or 
temporary increases in value, performance, or similar measure that may 
not ultimately be reflected by an increase in the long-term value of the 
TARP recipient. Accordingly, incentive payments or similar rewards 
should be structured to be paid over a time horizon that takes into 
account the risk horizon so that the payment or reward reflects whether 
the employee's performance over the particular service period has 
actually contributed to the long-term value of the TARP recipient.
    (ii) Taxpayer return. The compensation structure, and amount payable 
where applicable, should reflect the need for the TARP recipient to 
remain a competitive enterprise, to retain and recruit talented 
employees who will contribute to the TARP recipient's future success, 
and ultimately to be able to repay TARP obligations.
    (iii) Appropriate allocation. The compensation structure should 
appropriately allocate the components of compensation such as salary, 
short-term and long-term incentives, as well as the extent to which 
compensation is provided in cash, equity or other types of compensation 
such as executive pensions, other benefits, or perquisites, based on the 
specific role of the employee and other relevant circumstances, 
including the nature and amount of current compensation, deferred 
compensation, or other compensation and benefits previously paid or 
awarded. The appropriate allocation may be different for different 
positions and for different employees, but generally, in the case of an 
executive or other senior level position a significant

[[Page 364]]

portion of the overall compensation should be long-term compensation 
that aligns the interest of the employee with the interests of 
shareholders and taxpayers.
    (iv) Performance-based compensation. An appropriate portion of the 
compensation should be performance-based over a relevant performance 
period. Performance-based compensation should be determined through 
tailored metrics that encompass individual performance and/or the 
performance of the TARP recipient or a relevant business unit taking 
into consideration specific business objectives. Performance metrics may 
relate to employee compliance with relevant corporate policies. In 
addition, the likelihood of meeting the performance metrics should not 
be so great that the arrangement fails to provide an adequate incentive 
for the employee to perform, and performance metrics should be 
measurable, enforceable, and actually enforced if not met. The 
appropriate allocation and the appropriate performance metrics may be 
different for different positions and for different employees, but 
generally a significant portion of total compensation should be 
performance-based compensation, and generally that portion should be 
greater for positions that exercise higher levels of responsibility.
    (v) Comparable structures and payments. The compensation structure, 
and amount payable where applicable, should be consistent with, and not 
excessive, taking into account compensation structures and amounts for 
persons in similar positions or roles at similar entities that are 
similarly situated, including, as applicable, entities competing in the 
same markets and similarly situated entities that are financially 
distressed or that are contemplating or undergoing reorganization.
    (vi) Employee contribution to TARP recipient value. The compensation 
structure, and amount payable where applicable, should reflect the 
current or prospective contributions of an employee to the value of the 
TARP recipient, taking into account multiple factors such as revenue 
production, specific expertise, compliance with company policy and 
regulation (including risk management), and corporate leadership, as 
well as the role the employee may have had with respect to any change in 
the financial health or competitive position of the TARP recipient.
    (2) Further guidance. The Secretary reserves the discretion to 
modify or amend the foregoing principles through notice, announcement or 
other generally applicable guidance, provided that such guidance shall 
apply only prospectively from its date of publication and shall not 
provide a basis for reconsideration of a determination of the Special 
Master, except as the Special Master deems appropriate in light of such 
modification or amendment.
    (c) Special Master determinations--(1) Initial determinations. The 
Special Master shall provide an initial determination in writing, within 
60 days of the receipt of a substantially complete submission, setting 
forth the facts and analysis that formed the basis for the 
determination. The TARP recipient shall have 30 days to request in 
writing that the Special Master reconsider the initial determination. 
The request for reconsideration must specify a factual error or relevant 
new information not previously considered, and must demonstrate that 
such error or lack of information resulted in a material error in the 
initial determination. The Special Master must provide a final 
determination in writing within 30 days, setting forth the facts and 
analysis that formed the basis for the determination. If a TARP 
recipient does not request reconsideration within 30 days, the initial 
determination shall be treated as a final determination.
    (2) Final determinations. In the case of any final determination 
that the TARP recipient is required to receive, the final determination 
of the Special Master shall be final and binding and treated as the 
determination of the Treasury.
    (3) Advisory Opinions. An advisory opinion of the Special Master 
shall not be binding upon any TARP recipient or employee, but may be 
relied upon by a TARP recipient or employee if the advisory opinion 
applies to the TARP recipient and the employee and the TARP recipient 
and employee comply in all respects with the advisory opinion.

[[Page 365]]

    (d) Submissions to the Special Master--(1) Submission procedures. 
Submissions to the Special Master may be made under such procedures as 
the Special Master shall determine. The Special Master may reserve the 
right to request further information at any time and a submission shall 
not be treated as substantially complete unless the Special Master has 
so designated.
    (2) Disclosure procedures. Materials submitted to the Special Master 
and the initial and final determinations of the Special Master are 
subject to disclosure under the standards provided in the Freedom of 
Information Act (FOIA, (5 U.S.C. 552 et seq.)). In addition, the final 
determinations of the Special Master shall be disclosed to the public. 
The Special Master shall promulgate procedures for ensuring that 
disclosed materials have been subject to appropriate redaction to 
protect personal privacy, privileged or confidential commercial or 
financial information or other appropriate redactions permissible under 
the FOIA, which may include a procedure for the person or entity making 
the submission to request redactions and to review and request 
reconsideration of any proposed redactions before such redacted 
materials are released.



Sec.  30.17  Q-17: How do the effective date provisions apply with
respect to the requirements under section 111 of EESA?

    (a) General rule. The requirements under this part with respect to 
sections 111(b), 111(c), 111(d) and 111(f) are effective upon June 15, 
2009. The guidance under this part with respect to those sections 
supersedes any previous guidance applicable to a TARP recipient to the 
extent that guidance is inconsistent with those requirements, but 
supersedes that guidance only as of June 15, 2009. To the extent 
previous contractual provisions are not inconsistent with ARRA or the 
guidance under this part, those contractual provisions remain in effect 
and continue to apply in accordance with their terms.
    (b) Bonus payment limitation. The bonus payment limitation provision 
under Sec.  30.10 (Q-10) of this part does not apply to bonus payments 
paid or accrued by TARP recipients or their employees before June 15, 
2009. Certain bonus payments may relate to a service period beginning 
before and ending after June 15, 2009. In these circumstances, the 
employee will not be treated as having accrued the bonus payment on or 
after June 15, 2009 if the bonus payment is at least reduced to reflect 
the portion of the service period that occurs after June 15, 2009. If 
the employee is an SEO or most highly compensated employee at the time 
the net bonus payment after such reduction would otherwise be paid, the 
amount still may not be paid until such time as bonus payments to that 
employee are permitted.



PART 31_TROUBLED ASSET RELIEF PROGRAM--Table of Contents



Sec.
31.1 General.

Subpart A [Reserved]

                     Subpart B_Conflicts of Interest

31.200 Purpose and scope.
31.201 Definitions.
31.211 Organizational conflicts of interest.
31.212 Personal conflicts of interest.
31.213 General standards.
31.214 Limitations on concurrent activities.
31.215 Grant of waivers.
31.216 Communications with Treasury employees.
31.217 Confidentiality of information.
31.218 Enforcement.

    Authority: 31 U.S.C. 321; Pub. L. 110-343; 122 Stat. 3765.

    Source: 76 FR 61049, Oct. 3, 2011, unless otherwise noted.



Sec.  31.1  General.

    This part sets forth regulations to implement and administer the 
Emergency Economic Stabilization Act of 2008 (Pub. L. 110-343; 122 Stat. 
3765).

Subpart A [Reserved]



                     Subpart B_Conflicts of Interest



Sec.  31.200  Purpose and scope.

    (a) Purpose. This regulation sets forth standards to address and 
manage or to prohibit conflicts of interest that may

[[Page 366]]

arise in connection with the administration and execution of the 
authorities under the Troubled Asset Relief Program (TARP), established 
under sections 101 and 102 of the Emergency Economic Stabilization Act 
of 2008 (EESA).
    (b) Scope. This regulation addresses actual and potential conflicts 
of interest, or circumstances that give rise to the appearance of a 
conflict of interest, that may arise from contracts and financial agency 
agreements between private sector entities and the Treasury for services 
under the TARP, other than administrative services identified by the 
TARP Chief Compliance Officer.



Sec.  31.201  Definitions.

    As used in this part:
    Arrangement means a contract or financial agency agreement between a 
private sector entity and the Treasury for services under the TARP, 
other than administrative services identified by the TARP Chief 
Compliance Officer.
    Dependent child means a son, daughter, stepson or stepdaughter who 
is either (a) Unmarried, under age 21, and living in the individual's 
house, or (b) considered a ``dependent'' of the individual under the 
U.S. tax code.
    EESA means the Emergency Economic Stabilization Act of 2008, as 
amended.
    Key individual means an individual providing services to a private 
sector entity who participates personally and substantially, through, 
for example, decision, approval, disapproval, recommendation, or the 
rendering of advice, in the negotiation or performance of, or monitoring 
for compliance under, the arrangement with the Treasury. For purposes of 
the definition of key individual, the words ``personally and 
substantially'' shall have the same meaning and interpretation as such 
words have in 5 CFR 2635.402(b)(4).
    Organizational conflict of interest means a situation in which the 
retained entity has an interest or relationship that could cause a 
reasonable person with knowledge of the relevant facts to question the 
retained entity's objectivity or judgment to perform under the 
arrangement, or its ability to represent the Treasury. Without limiting 
the scope of this definition, organizational conflicts of interest may 
include the following situations:
    (1) A prior or current arrangement between the Treasury and the 
retained entity that may give the retained entity an unfair competitive 
advantage in obtaining a new arrangement with Treasury.
    (2) The retained entity is, or represents, a party in litigation 
against the Treasury relating to activities under the EESA.
    (3) The retained entity provides services for Treasury relating to 
the acquisition, valuation, disposition, or management of troubled 
assets at the same time it provides those services for itself or others.
    (4) The retained entity gains, or stands to gain, an unfair 
competitive advantage in private business arrangements or investments by 
using information provided under an arrangement or obtained or developed 
pursuant to an arrangement with Treasury.
    (5) The retained entity is a potential candidate for relief under 
EESA, is currently participating in an EESA program, or has a financial 
interest that could be affected by its performance of the arrangement.
    (6) The retained entity maintains a business or financial 
relationship with institutions that have received funds from Treasury 
pursuant to the EESA.
    Personal conflict of interest means a personal, business, or 
financial interest of an individual, his or her spouse or any dependent 
child that could adversely affect the individual's ability to perform 
under the arrangement, his or her objectivity or judgment in such 
performance, or his or her ability to represent the interests of the 
Treasury.
    Related entity means the parent company and subsidiaries of a 
retained entity, any entity holding a controlling interest in the 
retained entity, and any entity in which the retained entity holds a 
controlling interest.
    Retained entity means the individual or entity seeking an 
arrangement with the Treasury or having such an arrangement with the 
Treasury, but does not include special government employees. A 
``retained entity'' includes the subcontractors and consultants it hires 
to perform services under the arrangement.

[[Page 367]]

    Special government employee means an officer or employee serving the 
Treasury, serving with or without compensation, for a period not to 
exceed 130 days during any 365-day period on a full-time or intermittent 
basis.
    Treasury means the United States Department of the Treasury.
    Treasury employee means an officer or employee of the Treasury, 
including a special government employee, or an employee of any other 
government agency who is properly acting on behalf of the Treasury.
    Troubled assets, for purposes of this rule, shall have the same 
meaning as set forth in 12 U.S.C. 5202(9).



Sec.  31.211  Organizational conflicts of interest.

    (a) Retained entity's responsibility. A retained entity working 
under an arrangement shall not permit an actual or potential 
organizational conflict of interest (including a situation in which the 
retained entity has an interest or relationship that could cause a 
reasonable person with knowledge of the relevant facts to question the 
retained entity's objectivity or judgment to perform under the 
arrangement or its ability to represent the Treasury), unless the 
conflict has been disclosed to Treasury under this Section and mitigated 
under a plan approved by Treasury, or Treasury has waived the conflict. 
With respect to arrangements for the acquisition, valuation, management, 
or disposition of troubled assets, the retained entity shall maintain a 
compliance program reasonably designed to detect and prevent violations 
of federal securities laws and organizational conflicts of interest.
    (b) Information required about the retained entity. As early as 
possible before entering an arrangement to perform services for Treasury 
under the EESA, a retained entity shall provide Treasury with sufficient 
information to evaluate any organizational conflicts of interest. The 
information shall include the following:
    (1) The retained entity's relationship to any related entities.
    (2) The categories of troubled assets owned or controlled by the 
retained entity and its related entities, if the arrangement relates to 
the acquisition, valuation, disposition, or management of troubled 
assets.
    (3) Information concerning all other business or financial interests 
of the retained entity, its proposed subcontractors, or its related 
entities, which could conflict with the retained entity's obligations 
under the arrangement with Treasury.
    (4) A description of all organizational conflicts of interest and 
potential conflicts of interest.
    (5) A written detailed plan to mitigate all organizational conflicts 
of interest, along with supporting documents.
    (6) Any other information or documentation about the retained 
entity, its proposed subcontractors, or its related entities that 
Treasury may request.
    (c) Plans to mitigate organizational conflicts of interest. The 
steps necessary to mitigate a conflict may depend on a variety of 
factors, including the type of conflict, the scope of work under the 
arrangement, and the organizational structure of the retained entity. 
Some conflicts may be so substantial and pervasive that they cannot be 
mitigated. Retained entities should consider the following measures when 
designing a mitigation plan:
    (1) Adopting, implementing, and enforcing appropriate information 
barriers to prevent unauthorized people from learning nonpublic 
information relating to the arrangement and isolate key individuals from 
learning how their performance under the arrangement could affect the 
financial interests of the retained entity, its clients, and related 
entities.
    (2) Divesting assets that give rise to conflicts of interest.
    (3) Terminating or refraining from business relationships that give 
rise to conflicts of interest.
    (4) If consistent with the terms of the arrangement and permitted by 
Treasury, refraining from performing specific types of work under the 
arrangement.
    (5) Any other steps appropriate under the circumstances.
    (d) Certification required. When the retained entity provides the 
information required by paragraph (b) of this section, the retained 
entity shall certify

[[Page 368]]

that the information is complete and accurate in all material respects.
    (e) Determination required. Prior to entering into any arrangement, 
the Treasury must conclude that no organizational conflict of interest 
exists that has not been adequately mitigated, or if a conflict cannot 
be adequately mitigated, that Treasury has expressly waived it. Once 
Treasury has approved a conflicts mitigation plan, the plan becomes an 
enforceable term under the arrangement.
    (f) Subsequent notification. The retained entity has a continuing 
obligation to search for, report, and mitigate any and all potential 
organizational conflicts of interest that have not already been 
disclosed to Treasury under a plan approved by Treasury or previously 
waived by Treasury. The retained entity shall search regularly for 
conflicts and shall, within five (5) business days after learning of a 
potential organizational conflict of interest, disclose the potential 
conflict of interest in writing to the TARP Chief Compliance Officer. 
The disclosure shall describe the steps it has taken or proposes to take 
to mitigate the potential conflict or request a waiver from Treasury.
    (g) Periodic Certification. No later than one year after the 
arrangement's effective date, and at least annually thereafter, the 
retained entity shall certify in writing that it has no organizational 
conflicts of interest, or explain in detail the extent to which it can 
certify, and describe the actions it has taken and plans to take to 
mitigate any conflicts. Treasury may require more frequent 
certifications, depending on the arrangement.
    (h) Retention of information. A retained entity shall retain the 
information needed to comply with this section and to support the 
certifications required by this section for three (3) years following 
termination or expiration of the arrangement, and shall make that 
information available to Treasury upon request. Such retained 
information shall include, but is not limited to, written documentation 
regarding the factors the retained entity considered in its mitigation 
plan as well as written documentation addressing the results of the 
retained entities' periodic review of the mitigation plan.



Sec.  31.212  Personal conflicts of interest.

    (a) Retained entity's responsibility. A retained entity shall ensure 
that all key individuals have no personal conflicts of interest 
(including a situation that would cause a reasonable person with 
knowledge of the relevant facts to question the individual's ability to 
perform, his or her objectivity or judgment in such performance, or his 
or her ability to represent the interests of the Treasury), unless 
mitigation measures have neutralized the conflict, or Treasury has 
waived the conflict.
    (b) Information required. Before key individuals begin work under an 
arrangement, a retained entity shall obtain information from each of 
them in writing about their personal, business, and financial 
relationships, as well as those of their spouses and dependent children 
that would cause a reasonable person with knowledge of the relevant 
facts to question the individual's ability to perform, his or her 
objectivity or judgment in such performance, or his or her ability to 
represent the interests of the Treasury. When the arrangement concerns 
the acquisition, valuation, management, or disposition of troubled 
assets, the information shall be no less extensive than that required of 
certain new federal employees under Office of Government Ethics Form 
450. Treasury may extend the time necessary to meet these requirements 
in urgent and compelling circumstances.
    (c) Disqualification. The retained entity shall disqualify key 
individuals with personal conflicts of interest from performing work 
pursuant to the arrangement unless mitigation measures have neutralized 
the conflict to the satisfaction of the TARP Chief Compliance Officer. 
The retained entity may seek a waiver from the TARP Chief Compliance 
Officer to allow a key individual with a personal conflict of interest 
to work under the arrangement.
    (d) Initial certification. No later than ten business days after the 
effective date of the arrangement, the retained entity shall certify to 
the Treasury that all key individuals performing services under the 
arrangement have no personal conflicts of interest, or are

[[Page 369]]

subject to a mitigation plan or waiver approved by Treasury. In making 
this certification, the retained entity may rely on the information 
obtained pursuant to paragraph (b) of this section, unless the retained 
entity knows or should have known that the information provided is false 
or inaccurate. Treasury may extend the time necessary to meet these 
requirements where the retained entity has a large number of key 
individuals, or in other appropriate circumstances.
    (e) Periodic certification. No later than one year after the 
arrangement's effective date, and at least annually thereafter, the 
retained entity shall renew the certification required by paragraph (d) 
of this section. The retained entity shall provide more frequent 
certifications to Treasury when requested.
    (f) Retained entities' responsibilities. The retained entity shall 
adopt and implement procedures designed to search for, report, and 
mitigate personal conflicts of interest on a continuous basis.
    (g) Subsequent notification. Within five business days after 
learning of a personal conflict of interest, the retained entity shall 
notify Treasury of the conflict and describe the steps it has taken and 
will take in the future to neutralize the conflict.
    (h) Retention of information. A retained entity shall retain the 
information needed to comply with this section and to support the 
certifications required by this section for three years following 
termination or expiration of the arrangement, and shall make that 
information available to Treasury upon request.



Sec.  31.213  General standards.

    (a) During the time period in which a retained entity is seeking an 
arrangement and during the term of any arrangement:
    (1) The retained entity's officers, partners, or employees 
performing work under the arrangement shall not accept or solicit 
favors, gifts, or other items of monetary value above $20 from any 
individual or entity whom the retained entity, officer, partner, or 
employee knows is seeking official action from the Treasury in 
connection with the arrangement or has interests which may be 
substantially affected by the performance or nonperformance of duties to 
the Treasury under the arrangement, provided that the total value of 
gifts from the same person or entity does not exceed $50 in any calendar 
year.
    (2) The retained entity and its officers and partners, and its 
employees shall not improperly use or allow the improper use of Treasury 
property for the personal benefit of any individual or entity other than 
the Treasury.
    (3) The retained entity and its officers and partners, and its 
employees shall not make any unauthorized promise or commitment on 
behalf of the Treasury.
    (b) Any individual who acts for or on behalf of the Treasury 
pursuant to an arrangement shall comply with 18 U.S.C. 201, which 
generally prohibits the direct or indirect acceptance by a public 
official of anything of value in return for being influenced in, or 
because of, an official act. Violators are subject to criminal 
penalties.
    (c) Any individual or entity that provides information or makes a 
certification to the Treasury that is relating to services under EESA or 
required pursuant to 31 CFR part 31 is subject to 18 U.S.C. 1001, which 
generally prohibits the making of any false or fraudulent statement to a 
federal officer. Upon receipt of information indicating that any 
individual or entity has violated any provision of title 18 of the U.S. 
Code or other provision of criminal law, Treasury shall refer such 
information to the Department of Justice and the Special Inspector 
General for the Troubled Asset Relief Program (SIGTARP).
    (d) A retained entity shall disclose to the SIGTARP, any credible 
evidence, in connection with the designation, services, or closeout of 
the arrangement, that an employee, or contractor of the retained entity 
has committed a violation of Federal criminal law involving fraud, 
conflict of interest, bribery, or gratuity violations found in Title 18 
of the United States Code, or a violation of the civil False Claims Act 
(31 U.S.C. 3729-3733).

[[Page 370]]



Sec.  31.214  Limitations on concurrent activities.

    Treasury has determined that certain market activities by a retained 
entity during the arrangement are likely to cause impermissible 
conflicts of interest. Accordingly, the following restrictions shall 
apply unless waived pursuant to section 31.215, or Treasury agrees in 
writing to specific mitigation measures.
    (a) If the retained entity assists Treasury in the acquisition, 
valuation, management, or disposition of specific troubled assets, the 
retained entity and key individuals shall not purchase or offer to 
purchase such assets from Treasury, or assist anyone else in purchasing 
or offering to purchase such troubled assets from the Treasury, during 
the term of its arrangement.
    (b) If the retained entity advises Treasury with respect to a 
program for the purchase of troubled assets, the retained entity and key 
individuals shall not, during the term of the arrangement, sell or offer 
to sell, or act on behalf of anyone with respect to a sale or offer to 
sell, any asset to Treasury under the terms of that program.



Sec.  31.215  Grant of waivers.

    The TARP Chief Compliance Officer may waive a requirement under this 
part that is not otherwise imposed by law when it is clear from the 
totality of the circumstances that a waiver is in the government's 
interest.



Sec.  31.216  Communications with Treasury employees.

    (a) Prohibitions. During the course of any process for selecting a 
retained entity (including any process using non-competitive 
procedures), a retained entity participating in the process and its 
representatives shall not:
    (1) Directly or indirectly make any offer or promise of future 
employment or business opportunity to, or engage directly or indirectly 
in any discussion of future employment or business opportunity with, any 
Treasury employee with personal or direct responsibility for that 
procurement.
    (2) Offer, give, or promise to offer or give, directly or 
indirectly, any money, gratuity, or other thing of value to any Treasury 
employee, except as permitted by the Standards of Conduct for Employees 
of the Executive Branch, 5 CFR part 2635.
    (3) Solicit or obtain from any Treasury employee, directly or 
indirectly, any information that is not public and was prepared for use 
by Treasury for the purpose of evaluating an offer, quotation, or 
response to enter into an arrangement.
    (b) Certification. Before a retained entity enters a new 
arrangement, the retained entity must certify to the following:
    (1) The retained entity is aware of the prohibitions of paragraph 
(a) of this section and, to the best of its knowledge after making 
reasonable inquiry, the retained entity has no information concerning a 
violation or possible violation of paragraph (a) of this section.
    (2) Each officer, employee, and representative of the retained 
entity who participated personally and substantially in preparing and 
submitting a bid, offer, proposal, or request for modification of the 
arrangement has certified that he or she:
    (i) Is familiar with and will comply with the requirements of 
paragraph (a) of this section; and
    (ii) Has no information of any violations or possible violations of 
paragraph (a) of this section, and will report immediately to the 
retained entity any subsequently gained information concerning a 
violation or possible violation of paragraph (a) of this section.



Sec.  31.217  Confidentiality of information.

    (a) Nonpublic information defined. Any information that Treasury 
provides to a retained entity under an arrangement, or that the retained 
entity obtains or develops pursuant to the arrangement, shall be deemed 
nonpublic until the Treasury determines otherwise in writing, or the 
information becomes part of the body of public information from a source 
other than the retained entity.
    (b) Prohibitions. The retained entity shall not:
    (1) Disclose nonpublic information to anyone except as required to 
perform the retained entity's obligations pursuant to the arrangement, 
or pursuant to

[[Page 371]]

a lawful court order or valid subpoena after giving prior notice to 
Treasury.
    (2) Use or allow the use of any nonpublic information to further any 
private interest other than as contemplated by the arrangement.
    (c) Retained entity's responsibility. A retained entity shall take 
appropriate measures to ensure the confidentiality of nonpublic 
information and to prevent its inappropriate use. The retained entity 
shall document these measures in sufficient detail to demonstrate 
compliance, and shall maintain this documentation for three years after 
the arrangement has terminated. The retained entity shall notify the 
TARP Chief Compliance Officer in writing within five business days of 
detecting a violation of the prohibitions in paragraph (b), above. The 
security measures required by this paragraph shall include:
    (1) Security measures to prevent unauthorized access to facilities 
and storage containers where nonpublic information is stored.
    (2) Security measures to detect and prevent unauthorized access to 
computer equipment and data storage devices that store or transmit 
nonpublic information.
    (3) Periodic training to ensure that persons receiving nonpublic 
information know their obligation to maintain its confidentiality and to 
use it only for purposes contemplated by the arrangement.
    (4) Programs to ensure compliance with federal securities laws, 
including laws relating to insider trading, when the arrangement relates 
to the acquisition, valuation, management, or disposition of troubled 
assets.
    (5) A certification from each key individual stating that he or she 
will comply with the requirements in section 31.217(b). The retained 
entity shall obtain this certification, in the form of a nondisclosure 
agreement, before a key individual performs work under the arrangement, 
and then annually thereafter.
    (d) Certification. No later than ten business days after the 
effective date of the arrangement, the retained entity shall certify to 
the Treasury that it has received a certification form from each key 
individual stating that he or she will comply with the requirements in 
Sec.  31.217(b). In making this certification, the retained entity may 
rely on the information obtained pursuant to paragraph (b) of this 
section, unless the retained entity knows or should have known that the 
information provided is false or inaccurate.



Sec.  31.218  Enforcement.

    (a) Compliance with these rules concerning conflicts of interest is 
of the utmost importance. In the event a retained entity or any 
individual or entity providing information pursuant to 31 U.S.C. part 31 
violates any of these rules, Treasury may impose or pursue one or more 
of the following sanctions:
    (1) Rejection of work tainted by an organizational conflict of 
interest or a personal conflict of interest and denial of payment for 
that work.
    (2) Termination of the arrangement for default.
    (3) Debarment of the retained entity for Federal government 
contracting and/or disqualification of the retained entity from future 
financial agency agreements.
    (4) Imposition of any other remedy available under the terms of the 
arrangement or at law.
    (5) In the event of violation of a criminal statute, referral to the 
Department of Justice for prosecution of the retained entity and/or its 
officers or employees. In such cases, the Department of Justice may make 
direct and derivative use of any statements and information provided by 
any entity, its representatives and employees or any individual, to the 
extent permitted by law.
    (b) To the extent Treasury has discretion in selecting or imposing a 
remedy, it will give significant consideration to a retained entity's 
prompt disclosure of any violation of these rules.



PART 32_PAYMENTS IN LIEU OF LOW INCOME HOUSING TAX CREDITS--Table of Contents



    Authority: Public Law 111-5.

[[Page 372]]



Sec.  32.1  Timing of disbursements.

    (a) State housing credit agencies that receive funds under section 
1602 of Division B of the American Recovery and Reinvestment Tax Act of 
2009 must make subawards to subawardees to finance the construction or 
acquisition and rehabilitation of low-income housing no later than 
December 31, 2010. Any funds that are not used to make subawards by 
December 31, 2010, must be returned to the Treasury by January 1, 2011.
    (b) The requirement in subsection (a) above does not prevent State 
housing credit agencies from continuing to disburse funds to subawardees 
after December 31, 2010 provided:
    (1) A subaward has been made to the subawardee on or before December 
31, 2010;
    (2) The subawardee has, by the close of 2010, paid or incurred at 
least 30 percent of the subawardee's total adjusted basis in land and 
depreciable property that is reasonably expected to be part of the low-
income housing project; and
    (3) Any funds not disbursed to the subawardee by December 31, 2011, 
must be returned to the Treasury by January 1, 2012.

[74 FR 44752, Aug. 31, 2009]



PART 33_WAIVERS FOR STATE INNOVATION--Table of Contents



Sec.
33.100 Basis and purpose.
33.102 Coordinated waiver process.
33.104 Definitions.
33.108 Application procedures.
33.112 State public notice requirements.
33.116 Federal public notice and approval process.
33.118 Modification from the normal public notice requirements during an 
          emergent situation.
33.120 Monitoring and compliance.
33.122 Pass-through funding for approved waivers.
33.124 State reporting requirements.
33.128 Periodic evaluation requirements.
33.130 Waiver amendment.
33.132 Waiver extension.

    Authority: Sec. 1332, Pub. L. 111-148, 124 Stat. 119.

    Source: 77 FR 11715, Feb. 27, 2012, unless otherwise noted.



Sec.  33.100  Basis and purpose.

    (a) Statutory basis. This part implements provisions of section 1332 
of the Patient Protection and Affordable Care Act (Affordable Care Act), 
Public Law 111-148, relating to Waivers for State Innovation, which the 
Secretary may authorize for plan years beginning on or after January 1, 
2017. Section 1332 of the Affordable Care Act requires the Secretary to 
issue regulations that provide for all of the following:
    (1) A process for public notice and comment at the State level, 
including public hearings, sufficient to ensure a meaningful level of 
public input.
    (2) A process for the submission of an application that ensures the 
disclosure of all of the following:
    (i) The provisions of law that the State involved seeks to waive.
    (ii) The specific plans of the State to ensure that the waiver will 
meet all requirements specified in section 1332 of the Affordable Care 
Act.
    (3) A process for the provision of public notice and comment after a 
waiver application is received by the Secretary of Health and Human 
Services, that is sufficient to ensure a meaningful level of public 
input and that does not impose requirements that are in addition to, or 
duplicative of, requirements imposed under the Administrative Procedures 
Act, or requirements that are unreasonable or unnecessarily burdensome 
with respect to State compliance.
    (4) A process for the submission of reports to the Secretary by a 
State relating to the implementation of a waiver.
    (5) A process for the periodic evaluation by the Secretary of 
programs under waivers.
    (b) Purpose. This part sets forth certain procedural requirements 
for Waivers for State Innovation under section 1332 of the Affordable 
Care Act.



Sec.  33.102  Coordinated waiver process.

    (a) Coordination with applications for waivers under other Federal 
laws. A State may submit a single application to the Secretary of Health 
and Human Services for a waiver under section 1332 of the Affordable 
Care Act and a waiver under one or more of the existing waiver processes 
applicable under titles

[[Page 373]]

XVIII, XIX, and XXI of the Social Security Act, or under any other 
Federal law relating to the provision of health care items or services, 
provided that such application is consistent with the procedures 
described in this part, the procedures for demonstrations under section 
1115 of the Social Security Act, if applicable, and the procedures under 
any other applicable Federal law under which the State seeks a waiver.
    (b) Coordinated process for section 1332 waivers. A State seeking a 
section 1332 waiver must submit a waiver application to the Secretary of 
Health and Human Services. Any application submitted to the Secretary of 
Health and Human Services that requests to waive sections 36B, 4980H, or 
5000A of the Internal Revenue Code, in accordance with section 
1332(a)(2)(D) of the Affordable Care Act, shall upon receipt be 
transmitted by the Secretary of Health and Human Services to the 
Secretary to be reviewed in accordance with this part.



Sec.  33.104  Definitions.

    For the purposes of this part:
    Complete application means an application that has been submitted 
and for which the Secretary and the Secretary of Health and Human 
Services have made a preliminary determination that it includes all 
required information and satisfies all requirements that are described 
in Sec.  33.108(f).
    Public notice means a notice issued by a government agency or 
legislative body that contains sufficient detail to notify the public at 
large of a proposed action consistent with Sec.  33.112.
    Section 1332 waiver means a Waiver for State Innovation under 
section 1332 of the Affordable Care Act.



Sec.  33.108  Application procedures.

    (a) Acceptable formats for applications. Applications for initial 
approval of a section 1332 waiver shall be submitted in electronic 
format to the Secretary of Health and Human Services.
    (b) Application timing. Applications for initial approval of a 
section 1332 waiver must be submitted sufficiently in advance of the 
requested effective date to allow for an appropriate implementation 
timeline.
    (c) Preliminary review. Each application for a section 1332 waiver 
will be subject to a preliminary review by the Secretary and the 
Secretary of Health and Human Services, who will make a preliminary 
determination that the application is complete. A submitted application 
will not be deemed received until the Secretary and the Secretary of 
Health and Human Services have made the preliminary determination that 
the application is complete.
    (1) The Secretary and the Secretary of Health and Human Services 
will complete the preliminary review of the application within 45 days 
after it is submitted.
    (2) If the Secretary and the Secretary of Health and Human Services 
determine that the application is not complete, the Secretary of Health 
and Human Services will send the State a written notice of the elements 
missing from the application.
    (3) The preliminary determination that an application is complete 
does not preclude a finding during the 180-day Federal decision-making 
period that a necessary element of the application is missing or 
insufficient.
    (d) Notification of preliminary determination. Upon making the 
preliminary determination that an application is complete, as defined in 
this part, the Secretary of Health and Human Services will send the 
State a written notice informing the State that the Secretary and the 
Secretary of Health and Human Services have made such a preliminary 
determination. That date will also mark the beginning of the Federal 
public notice process and the 180-day Federal decision-making period.
    (e) Public notice of completed application. Upon receipt of a 
complete application for an initial section 1332 waiver, the Secretary 
of Health and Human Services will--
    (1) Make available to the public the application, and all related 
State submissions, including all supplemental information received from 
the State following the receipt of a complete application for a section 
1332 waiver.
    (2) Indicate the status of the application.
    (f) Criteria for a complete application. An application for initial 
approval of a

[[Page 374]]

section 1332 waiver will not be considered complete unless the 
application meets all of the following conditions:
    (1) Complies with paragraphs (a) through (f) of this section.
    (2) Provides written evidence of the State's compliance with the 
public notice requirements set forth in Sec.  33.112, including a 
description of the key issues raised during the State public notice and 
comment period.
    (3) Provides all of the following:
    (i) A comprehensive description of the State legislation and program 
to implement a plan meeting the requirements for a waiver under section 
1332 of PPACA. In analyzing whether the State has satisfied the 
requirement under section 1332(b)(2)(A) of PPACA that the State enact a 
law authorizing a waiver under section 1332 of PPACA, the Secretary and 
the Secretary of Health and Human Services, as applicable, may consider 
existing State legislation combined with duly-enacted State regulation 
or an executive order so long as the State legislation provides 
statutory authority to enforce PPACA provisions or the State plan;
    (ii) A copy of the enacted State legislation that provides the State 
with authority to implement the proposed waiver, as required under 
section 1332(a)(1)(C) of the Affordable Care Act;
    (iii) A list of the provisions of law that the State seeks to waive, 
including a description of the reason for the specific requests; and
    (iv) The analyses, actuarial certifications, data, assumptions, 
targets, and other information set forth in paragraph (f)(4) of this 
section sufficient to provide the Secretary and the Secretary of Health 
and Human Services, as applicable, with the necessary data to determine 
that the State's proposed waiver satisfies the general requirements for 
approval under section 1332(b)(1) of the Affordable Care Act consistent 
with the provisions of this paragraph (f)(3)(iv):
    (A) As required under section 1332(b)(1)(A) of the Affordable Care 
Act (the comprehensive coverage requirement), will provide coverage that 
is at least as comprehensive as the coverage defined in section 1302(b) 
of the Affordable Care Act and offered through Exchanges established 
under the Affordable Care Act as certified by the Office of the Actuary 
of the Centers for Medicare & Medicaid Services based on sufficient data 
from the State and from comparable States about their experience with 
programs created by the Affordable Care Act and the provisions of the 
Affordable Care Act that the State seeks to waive. To satisfy the 
comprehensive coverage requirement, the Secretary and the Secretary of 
Health and Human Services, as applicable, must determine that the 
coverage under the State plan is forecasted to be at least as 
comprehensive overall for residents of the State as coverage absent the 
waiver;
    (B) As required under section 1332(b)(1)(B) of the Affordable Care 
Act (the affordability requirement), will provide coverage and cost 
sharing protections against excessive out-of-pocket spending that are at 
least as affordable as the provisions of Title I of the Affordable Care 
Act would provide. To satisfy the affordability requirement, the 
Secretary and the Secretary of Health and Human Services, as applicable, 
must determine that the coverage under the State plan is forecasted to 
be as affordable overall for State residents as coverage absent the 
waiver;
    (C) As required under section 1332(b)(1)(C) of the Affordable Care 
Act (the scope of coverage requirement), will provide coverage to at 
least a comparable number of its residents as the provisions of Title I 
of the Affordable Care Act would provide. To satisfy the scope of 
coverage requirement, the Secretary and the Secretary of the Health and 
Human Services, as applicable, must determine that the State plan will 
provide coverage to a comparable number of State residents under the 
waiver as would have coverage absent the waiver; and
    (D) As prohibited under section 1332(b)(1)(D) of the Affordable Care 
Act (the Federal deficit requirement), will not increase the Federal 
deficit.
    (4) Contains the following supporting information:
    (i) Actuarial analyses and actuarial certifications. Actuarial 
analyses and actuarial certifications to support the State's estimates 
that the proposed waiver will comply with the comprehensive coverage 
requirement, the

[[Page 375]]

affordability requirement, and the scope of coverage requirement.
    (ii) Economic analyses. Economic analyses to support the State's 
estimates that the proposed waiver will comply with the comprehensive 
coverage requirement, the affordability requirement, the scope of 
coverage requirement and the Federal deficit requirement, including:
    (A) A detailed 10-year budget plan that is deficit neutral to the 
Federal government, as prescribed by section 1332(a)(1)(B)(ii) of the 
Affordable Care Act, and includes all costs under the waiver, including 
administrative costs and other costs to the Federal government, if 
applicable; and
    (B) A detailed analysis regarding the estimated impact of the waiver 
on health insurance coverage in the State.
    (iii) Data and assumptions. The data and assumptions used to 
demonstrate that the State's proposed waiver is in compliance with the 
comprehensive coverage requirement, the affordability requirement, the 
scope of coverage requirement and the Federal deficit requirement, 
including:
    (A) Information on the age, income, health expenses and current 
health insurance status of the relevant State population; the number of 
employers by number of employees and whether the employer offers 
insurance; cross-tabulations of these variables; and an explanation of 
data sources and quality; and
    (B) An explanation of the key assumptions used to develop the 
estimates of the effect of the waiver on coverage and the Federal 
budget, such as individual and employer participation rates, behavioral 
changes, premium and price effects, and other relevant factors.
    (iv) Implementation timeline. A detailed draft timeline for the 
State's implementation of the proposed waiver.
    (v) Additional information. Additional information supporting the 
State's proposed waiver, including:
    (A) An explanation as to whether the waiver increases or decreases 
the administrative burden on individuals, insurers, and employers, and 
if so, how and why;
    (B) An explanation of how the waiver will affect the implementation 
of the provisions of the Affordable Care Act which the State is not 
requesting to waive in the State and at the Federal level;
    (C) An explanation of how the waiver will affect residents who need 
to obtain health care services out-of-State, as well as the States in 
which such residents may seek such services;
    (D) If applicable, an explanation as to how the State will provide 
the Federal government with all information necessary to administer the 
waiver at the Federal level; and
    (E) An explanation of how the State's proposal will address 
potential individual, employer, insurer, or provider compliance, waste, 
fraud and abuse within the State or in other States.
    (vi) Reporting targets. Quarterly, annual, and cumulative targets 
for the comprehensive coverage requirement, the affordability 
requirement, the scope of coverage requirement, and the Federal deficit 
requirement.
    (vii) Other information. Other information consistent with guidance 
provided by the Secretary and the Secretary of Health and Human 
Services.
    (g) Additional supporting information. (1) During the Federal review 
process, the Secretary may request additional supporting information 
from the State via the Secretary of Health and Human Services as needed 
to address public comments or to address issues that arise in reviewing 
the application.
    (2) Requests for additional information, and responses to such 
requests, will be made available to the public in the same manner as 
information described in Sec.  33.116(b).

[77 FR 11715, Feb. 27, 2012, as amended at 86 FR 6176, Jan. 19, 2021; 86 
FR 53501, Sept. 27, 2021]



Sec.  33.112  State public notice requirements.

    (a) General. (1) Prior to submitting an application for a new 
section 1332 waiver to the Secretary of Health and Human Services for 
review and consideration, a State must provide a public notice and 
comment period sufficient to ensure a meaningful level of public input 
for the application for a section 1332 waiver.
    (2) Such public notice and comment period shall include, for a State 
with

[[Page 376]]

one or more Federally-recognized Indian tribes within its borders, a 
separate process for meaningful consultation with such tribes.
    (b) Public notice and comment period. The State shall make available 
at the beginning of the public notice and comment period, through its 
Web site or other effective means of communication, and shall update as 
appropriate, a public notice that includes all of the following:
    (1) A comprehensive description of the application for a section 
1332 waiver to be submitted to the Secretary of Health and Human 
Services including information and assurances related to all statutory 
requirements and other information consistent with guidance provided by 
the Secretary and the Secretary of Health and Human Services.
    (2) Information relating to where copies of the application for a 
section 1332 waiver are available for public review and comment.
    (3) Information relating to how and where written comments may be 
submitted and reviewed by the public, and the timeframe during which 
comments will be accepted.
    (4) The location, date, and time of public hearings that will be 
convened by the State to seek public input on the application for a 
section 1332 waiver.
    (c) Public hearings. (1) After issuing the public notice and prior 
to submitting an application for a new section 1332 waiver, a State must 
conduct public hearings regarding the State's application.
    (2) Such public hearings shall provide an interested party the 
opportunity to learn about and comment on the contents of the 
application for a section 1332 waiver.
    (d) Submission of initial application. After the State public notice 
and comment period has concluded, the State may submit an application to 
the Secretary of Health and Human Services for an initial waiver in 
accordance with the requirements set forth in Sec.  33.108.



Sec.  33.116  Federal public notice and approval process.

    (a) General. The Federal public notice and approval process begins 
on the first business day after the Secretary and the Secretary of 
Health and Human Services determine that all elements for a complete 
application were documented and submitted to the Secretary of Health and 
Human Services.
    (b) Public notice and comment period. (1) Following a determination 
that a State's application for a section 1332 waiver is complete, the 
Secretary and the Secretary of Health and Human Services will provide 
for a public notice and comment period that is sufficient to ensure a 
meaningful level of public input and that does not impose requirements 
that are in addition to, or duplicative of, requirements imposed under 
the Administrative Procedures Act, or requirements that are unreasonable 
or unnecessarily burdensome with respect to State compliance.
    (2) At the beginning of the Federal notice and comment period, the 
Secretary of Health and Human Services will make available through its 
Web site and otherwise, and shall update as appropriate, public notice 
that includes all of the following:
    (i) The complete application for a section 1332 waiver, updates for 
the status of the State's application, and any supplemental materials 
received from the State prior to and during the Federal public notice 
and comment period.
    (ii) Information relating to where copies of the application for a 
section 1332 waiver are available for public review and comment.
    (iii) Information relating to how and where written comments may be 
submitted and reviewed by the public, and the timeframe during which 
comments will be accepted.
    (iv) Any public comments received during the Federal public notice 
and comment period.
    (c) Approval of a section 1332 waiver application. The final 
decision of the Secretary and the Secretary of Health and Human Services 
on a State application for a section 1332 waiver will be issued by the 
Secretary of Health and Human Services no later than 180 days after the 
determination by the Secretary and the Secretary of Health and Human 
Services that a complete application was received in accordance with 
Sec.  33.108.

[[Page 377]]



Sec.  33.118  Modification from the normal public notice requirements
during an emergent situation.

    (a) The Secretary and the Secretary of Health and Human Services may 
modify, in part, the State public notice requirements under Sec.  
33.112(a)(1), (b), (c), and (d) and the Federal public notice procedures 
under Sec.  33.116(b) to expedite a decision on a proposed section 1332 
waiver request during an emergent situation, when a delay would 
undermine or compromise the purpose of the proposed waiver request and 
be contrary to the interests of consumers. These flexibilities are 
limited to emergent situations, including natural disasters; public 
health emergencies; or other emergent situations that threaten 
consumers' access to comprehensive coverage, consumers' access to health 
care, or human life.
    (b) A State must meet all of the following criteria to request a 
modification under paragraph (a) of this section:
    (1) The State must request a modification under paragraph (a) of 
this section, in the form and manner specified by the Secretaries.
    (2) The State must have acted in good faith, and in a diligent, 
timely, and prudent manner in the preparation of the request for a 
modification under paragraph (a) of this section, and the waiver 
application request, as applicable.
    (3) The State must, as applicable, detail in its request for a 
modification from State-level notice procedures under paragraph (a) of 
this section the justification for the request as it relates to the 
emergent situation and the alternative public notice procedures it 
proposes to implement at the State level, including public hearings, 
that are designed to provide the greatest opportunity and level of 
meaningful public input from impacted stakeholders that is practicable 
given the emergency circumstances underlying the State's request for a 
modification.
    (4) The State must, as applicable, detail in its request for a 
modification from Federal-level notice procedures under paragraph (a) of 
this section the justification for the request as it relates to the 
public health emergency and the alternative public notice procedures it 
requests to be implemented at the Federal level.
    (5) The State must explain in its request for a modification from 
State-level notice procedures under paragraph (a) of this section how 
the emergent circumstances underlying its request results from a natural 
disaster; public health emergency; or other emergent situations that 
threaten consumers' access to comprehensive coverage, consumers' access 
to health care, or human life could not reasonably have been foreseen 
and how a delay would undermine or compromise the purpose of the waiver 
and be contrary to the interests of consumers.
    (c) The Secretary and the Secretary of Health and Human Services 
will evaluate a State's request for a modification under paragraph (a) 
of this section and issue their exemption determination within 
approximately 15 calendar days after the request is received.
    (d) The Secretary of Health and Human Services will publish on the 
Centers for Medicare and Medicaid Services (CMS) website any 
modification determinations within 15 calendar days of the Secretary and 
the Secretary of Health and Human Services making such a determination, 
as well as the approved revised timeline for public comment under the 
approved alternative State or Federal public notice procedures, as 
applicable.
    (e) The State must publish on its website any modification requests 
and determinations within 15 calendar days of receipt of the 
determination, as well as the approved revised timeline for public 
comment under the alternative State or Federal public notice procedures, 
as applicable.
    (f) The State must, as applicable, implement the alternative public 
notice procedures at the State level if the State's exemption request is 
approved and, if required, amend the waiver application request.
    (g) The Departments will consider circumstances to be emergent when 
they could not have been reasonably foreseen. The Departments will 
assess ``reasonable foreseeability'' based on the specific issues that a 
section 1332 waiver proposes to address and other relevant factors, and 
will not make

[[Page 378]]

this assessment based solely on the number of days a State may have been 
aware of such issues.

[85 FR 71196, Nov. 6, 2020, as amended at 86 FR 53501, Sept. 27, 2021]



Sec.  33.120  Monitoring and compliance.

    (a) General. (1) Following the issuance of a final decision to 
approve a section 1332 waiver by the Secretary and the Secretary of 
Health and Human Services, as applicable, a State must comply with all 
applicable Federal laws and regulations, unless expressly waived. A 
State must, within the timeframes specified in law and regulation come 
into compliance with any changes in Federal law and regulation affecting 
section 1332 waivers, unless the provision being changed is expressly 
waived.
    (2) The Secretary and the Secretary of Health and Human Services 
will examine compliance with Federal and regulatory requirements 
consistent with Sec.  155.1308(f)(3)(iv) when conducting implementation 
reviews under paragraph (b) of this section.
    (b) Implementation reviews. (1) The terms and conditions of an 
approved section 1332 waiver will provide that the State will perform 
periodic reviews of the implementation of the section 1332 waiver.
    (2) The Secretary and the Secretary of Health and Human Services 
will review documented complaints that a State is failing to comply with 
requirements specified in the terms and conditions of any approved 
section 1332 waiver.
    (3) The Secretary and the Secretary of Health and Human Services 
will promptly share with a State any complaint that the Secretary and 
the Secretary of Health and Human Services has received and will also 
provide notification of any applicable monitoring and compliance issues.
    (c) Post award. Within 6 months after the implementation date of a 
section 1332 waiver and annually thereafter, a State must hold a public 
forum to solicit comments on the progress of a section 1332 waiver. The 
State must hold the public forum at which members of the public have an 
opportunity to provide comments and must provide a summary of the forum 
to the Secretary of Health and Human Services as part of the quarterly 
report specified in Sec.  33.124(a) that is associated with the quarter 
in which the forum was held, as well as in the annual report specified 
in Sec.  33.124(b) that is associated with the year in which the forum 
was held.
    (1) Notification requirements for public forum. The State must 
publish the date, time, and location of the public forum in a prominent 
location on the State's public Web site, at least 30 days prior to the 
date of the planned public forum.
    (2) Modification from the normal post-award requirements during the 
public health emergency. (i) The Secretary and the Secretary of Health 
and Human Services may modify, in part, State post award requirements 
under this paragraph (c)(2) for an approved section 1332 waiver request 
during an emergent situation, when the application of the post award 
public notice requirements would be contrary to the interests of 
consumers. These flexibilities are limited to emergent situations, 
including natural disasters; public health emergencies; or other 
emergent situations that threaten consumers' access to comprehensive 
coverage, consumers' access to health care, or human life.
    (ii) A State must meet all of the following criteria to request a 
modification under paragraph (c) of this section:
    (A) The State must request a modification under this paragraph 
(c)(2), in the form and manner specified by the Secretaries.
    (B) The State must have acted in good faith, and in a diligent, 
timely, and prudent manner to comply with the monitoring and compliance 
requirement under the waiver and the terms and conditions of the 
agreement between the Secretary and the Secretary of Health and Human 
Services, as applicable, and the State to implement a section 1332 
waiver and to submit and prepare the request for a modification under 
this paragraph (c)(2).
    (C) The State must detail in its request for a modification under 
this paragraph (c)(2) the alternative post award public notice 
procedures it proposes to implement at the State level,

[[Page 379]]

including public hearings, that are designed to provide the greatest 
opportunity and level of meaningful public input from impacted 
stakeholders that is practicable given the emergency circumstances 
underlying the State's request for a modification.
    (D) The Secretary and the Secretary of Health and Human Services 
will evaluate a State's request for a modification under this paragraph 
(c)(2) and issue their modification determination within approximately 
15 calendar days after the request is received.
    (E) The State must publish on its website any modification requests 
and determinations within 15 calendar days of the receipt of the 
determination as well as information on the approved revised timeline 
for the state's post award public notice procedures, as applicable.
    (F) The State must explain in its request for modification under 
this paragraph (c)(2) how the emergent circumstances underlying its 
request results from a natural disaster; public health emergency; or 
other emergent situations that threaten consumers' access to 
comprehensive coverage, consumers' access to health care, or human life 
and could not reasonably have been foreseen and how the application of 
the post-award public notice requirements would be contrary to the 
interests of consumers.
    (iii) The Secretary and the Secretary of Health and Human Services 
will consider circumstances to be emergent when they could not have been 
reasonably foreseen. The Secretary and the Secretary of Health and Human 
Services will assess ``reasonable foreseeability'' based on the specific 
issues that a section 1332 waiver proposes to address and other relevant 
factors, and will not make this assessment based solely on the number of 
days a State may have been aware of such issues.
    (d) Terminations and suspensions. The Secretary and the Secretary of 
Health and Human Services reserve the right to suspend or terminate a 
section 1332 waiver in whole or in part, at any time before the date of 
expiration, whenever the Secretaries determine that a State has 
materially failed to comply with the terms of a section 1332 waiver.
    (e) Closeout costs. If all or part of a section 1332 waiver is 
terminated or suspended, or if a portion of a section 1332 waiver is 
withdrawn, Federal funding is limited to normal closeout costs 
associated with an orderly termination, suspension, or withdrawal, 
including service costs during any approved transition period, and 
administrative costs of disenrolling participants.
    (f) Federal evaluators. (1) A State must fully cooperate with the 
Secretary, the Secretary of Health and Human Services, or an independent 
evaluator selected by the Secretary or the Secretary of Health and Human 
Services to undertake an independent evaluation of any component of a 
section 1332 waiver.
    (2) As part of this required cooperation, a State must submit all 
requested data and information to the Secretary, the Secretary of Health 
and Human Services, or the independent evaluator.

[77 FR 11715, Feb. 27, 2012, as amended at 85 FR 71196, Nov. 6, 2020; 86 
FR 53502, Sept. 27, 2021]



Sec.  33.122  Pass-through funding for approved waivers.

    (a) Pass-through funding. With respect to a State's approved section 
1332 waiver, under which, due to the structure of the approved State 
waiver plan, individuals and small employers in the State would not 
qualify for or would qualify for a reduced amount of premium tax credit 
under section 36B of the Internal Revenue Code, small business tax 
credit under section 45R of the Internal Revenue Code, or cost-sharing 
reductions under ACA part I of subtitle E for which they would otherwise 
be eligible, the Secretary and the Secretary of the Health and Human 
Services shall provide for an alternative means by which the aggregate 
amount of such credits or reductions that would have been paid on behalf 
of participants in the Exchanges had the State not received such waiver 
shall be paid to the State for purposes of implementing the approved 
State waiver plan. Such amount shall be determined annually by the 
Secretary and the Secretary of Health and Human Services, taking into 
consideration the experience of

[[Page 380]]

other States with respect to participation in an Exchange and credits 
and reductions provided under such provisions to residents of the other 
States. This amount can be updated to reflect applicable changes in 
Federal or State law.
    (b) [Reserved]

[86 FR 53502, Sept. 27, 2021]



Sec.  33.124  State reporting requirements.

    (a) Quarterly reports. A State must submit quarterly reports to the 
Secretary of Health and Human Services in accordance with the terms and 
conditions of the State's section 1332 waiver. These quarterly reports 
must include, but are not limited to, reports of any ongoing operational 
challenges and plans for and results of associated corrective actions.
    (b) Annual reports. A State must submit an annual report to the 
Secretary of Health and Human Services documenting all of the following:
    (1) The progress of the section 1332 waiver.
    (2) Data on compliance with section 1332(b)(1)(A) through (D) of the 
Affordable Care Act.
    (3) A summary of the annual post-award public forum, held in 
accordance with Sec.  33.120(c), including all public comments received 
at such forum regarding the progress of the section 1332 waiver and 
action taken in response to such concerns or comments.
    (4) Other information consistent with the State's approved terms and 
conditions.
    (c) Submitting and publishing annual reports. A State must submit a 
draft annual report to the Secretary of Health and Human Services no 
later than 90 days after the end of each waiver year, or as specified in 
the waiver's terms and conditions.
    (1) Within 60 days of receipt of comments from the Secretary of 
Health and Human Services, a State must submit to the Secretary of 
Health and Human Services a final annual report for the waiver year.
    (2) The draft and final annual reports are to be published on a 
State's public Web site within 30 days of submission to and approval by 
the Secretary of Health and Human Services, respectively.



Sec.  33.128  Periodic evaluation requirements.

    (a) The Secretary and the Secretary of Health and Human Services, as 
applicable, shall periodically evaluate the implementation of a program 
under a section 1332 waiver consistent with Sec.  33.108(f)(3)(iv) and 
any terms and conditions governing the section 1332 waiver.
    (b) Each periodic evaluation must include a review of the annual 
report or reports submitted by the State in accordance with Sec.  33.124 
that relate to the period of time covered by the evaluation.

[77 FR 11715, Feb. 27, 2012, as amended at 86 FR 53502, Sept. 27, 2021]



Sec.  33.130  Waiver amendment.

    (a) Amendment to an approved section 1332 waiver. A State may 
request an amendment to an approved section 1332 waiver from the 
Secretary and the Secretary of Health and Human Services. A section 1332 
waiver amendment is considered a change to an approved section 1332 
waiver plan that is not otherwise allowable under the terms and 
conditions of an approved waiver, a change that could impact any of the 
section 1332 statutory guardrails or a change to the program design for 
an approved waiver. A State is not authorized to implement any aspect of 
the proposed amendment without prior approval by the Secretary and the 
Secretary of Health and Human Services.
    (b) [Reserved]

[86 FR 53502, Sept. 27, 2021]



Sec.  33.132  Waiver extension.

    (a) Extension. A State may request continuation of an approved 
section 1332 waiver, and such request shall be deemed granted unless the 
Secretary and the Secretary of Health and Human Services, within 90 days 
after the date of submission of a complete waiver extension request to 
the Secretary and the Secretary of Health and Human Services, either 
denies such request in writing or informs the State in writing with 
respect to any additional information that is needed in order to make a 
final determination with respect to the request.

[[Page 381]]

    (b) [Reserved]

[86 FR 53502, Sept. 27, 2021]



PART 34_RESOURCES AND ECOSYSTEMS SUSTAINABILITY, TOURIST OPPORTUNITIES,
AND REVIVED ECONOMIES OF THE GULF COAST STATES--Table of Contents



                      Subpart A_General Provisions

Sec.
34.1 Purpose.
34.2 Definitions.

                          Subpart B_Trust Fund

34.100 The Trust Fund.
34.101 Investments.
34.102 Interest earned.
34.103 Allocation of funds.
34.104 Expenditures.
34.105 Waiver.

   Subpart C_Eligible Activities for the Section 311(t) Gulf RESTORE 
                           Program Components

34.200 General.
34.201 Eligible activities for the Direct Component.
34.202 Eligible activities for the Comprehensive Plan Component.
34.203 Eligible activities for the Spill Impact Component.
34.204 Limitations on administrative costs and administrative expenses.
34.205 Council's audited financial statements and audits.

             Subpart D_Gulf RESTORE Program_Direct Component

34.300 General.
34.301 Responsibility for administration--Direct Component.
34.302 Allocation of funds--Direct Component.
34.303 Application procedure--Direct Component.
34.304 Grant award process--Direct Component.
34.305 Use of funds--Direct Component.
34.306 Reports--Direct Component.
34.307 Recordkeeping--Direct Component.
34.308 Audits--Direct Component.

       Subpart E_Gulf RESTORE Program_Comprehensive Plan Component

34.400 General.
34.401 Responsibility for administration--Comprehensive Plan Component.
34.402 Grant administration--Comprehensive Plan Component.
34.403 Use of funds--Comprehensive Plan Component.
34.404 Reports--Comprehensive Plan Component.
34.405 Recordkeeping--Comprehensive Plan Component.
34.406 Audits--Comprehensive Plan Component.

          Subpart F_Gulf RESTORE Program_Spill Impact Component

34.500 General.
34.501 Responsibility for administration--Spill Impact Component.
34.502 Allocation of funds--Spill Impact Component.
34.503 State Expenditure Plans--Spill Impact Component.
34.504 Grant administration--Spill Impact Component.
34.505 Use of funds--Spill Impact Component.
34.506 Reports--Spill Impact Component.
34.507 Recordkeeping--Spill Impact Component.
34.508 Audits--Spill Impact Component.

               Subpart G_NOAA RESTORE Act Science Program

34.600 General.
34.601 Responsibility for administration--NOAA RESTORE Act Science 
          Program.
34.602 Use of funds and eligible activities--NOAA RESTORE Act Science 
          Program.
34.603 Limitations on activities--NOAA RESTORE Act Science Program.
34.604 Limitations on administrative expenses--NOAA RESTORE Act Science 
          Program.
34.605 Reports--NOAA RESTORE Act Science Program.
34.606 Recordkeeping--NOAA RESTORE Act Science Program.
34.607 Audits--NOAA RESTORE Act Science Program.

         Subpart H_Centers of Excellence Research Grants Program

34.700 General.
34.701 Responsibility for administration--Centers of Excellence Research 
          Grants Program.
34.702 Allocation of funds--Centers of Excellence Research Grants 
          Program.
34.703 Application procedure--Centers of Excellence Research Grants 
          Program.
34.704 Use of funds and eligible activities--Centers of Excellence 
          Research Grants Program.
34.705 Ineligible activities--Centers of Excellence Research Grants 
          Program.
34.706 Reports--Centers of Excellence Research Grants Program.

[[Page 382]]

34.707 Recordkeeping--Centers of Excellence Research Grants Program.
34.708 Audits--Centers of Excellence Research Grants Program.

                          Subpart I_Agreements

34.800 General.
34.801 Grant agreements.
34.802 Certifications.
34.803 Conditions.
34.804 Noncompliance.
34.805 Treasury Inspector General.

    Authority: 31 U.S.C. 301; 31 U.S.C. 321; 33 U.S.C. 1251 et seq.

    Source: 80 FR 77243, Dec. 14, 2015, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  34.1  Purpose.

    This part describes policies and procedures applicable to the 
following programs authorized under the Resources and Ecosystems 
Sustainability, Tourist Opportunities, and Revived Economies of the Gulf 
Coast States Act of 2012 (RESTORE Act).
    (a) The Gulf RESTORE Program is authorized under section 311(t) of 
the Federal Water Pollution Control Act (33 U.S.C. 1321(t)), as amended 
by the RESTORE Act, and includes the following components:
    (1) Direct Component (subpart D of this part), administered by the 
Department of the Treasury.
    (2) Comprehensive Plan Component (subpart E of this part), 
administered by the Gulf Coast Ecosystem Restoration Council.
    (3) Spill Impact Component (subpart F of this part), administered by 
the Gulf Coast Ecosystem Restoration Council.
    (b) NOAA RESTORE Act Science Program (subpart G of this part) is 
administered by the National Oceanic and Atmospheric Administration, and 
authorized by the RESTORE Act, section 1604, 33 U.S.C. 1321 note.
    (c) Centers of Excellence Research Grants Program (subpart H of this 
part) is administered by the Department of the Treasury, and authorized 
by the RESTORE Act, section 1605, 33 U.S.C. 1321 note.



Sec.  34.2  Definitions.

    As used in this part:
    Act or RESTORE Act means the Resources and Ecosystems 
Sustainability, Tourist Opportunities, and Revived Economies of the Gulf 
Coast States Act of 2012.
    Activity means an activity, project, or program, including research 
and monitoring, eligible for funding under the Act.
    Administrative costs means those indirect costs for administration 
incurred by the Gulf Coast States, coastal political subdivisions, and 
coastal zone parishes that are allocable to activities authorized under 
the Act. Administrative costs do not include indirect costs that are 
identified specifically with, or readily assignable to, facilities as 
defined in 2 CFR 200.414.
    Administrative expenses means those expenses incurred for 
administration by the Council or NOAA, including expenses for general 
management functions, general ledger accounting, budgeting, human 
resource services, general procurement services, and general legal 
services. Administrative expenses do not include expenses that are 
identified specifically with, or readily assignable to:
    (1) Facilities;
    (2) Eligible projects, programs, or planning activities;
    (3) Activities related to grant applications, awards, audit 
requirements, or post-award management, including payments and 
collections;
    (4) The Council's development, publication, and implementation of 
the Comprehensive Plan and any subsequent amendments;
    (5) The Council's development and publication of regulations and 
procedures for implementing the Spill Impact Component, and the review 
of State Expenditure Plans submitted under the Spill Impact Component;
    (6) Preparation of reports required by the Act;
    (7) Establishment and operation of advisory committees; or
    (8) Collection and consideration of scientific and other research 
associated with restoration of the Gulf Coast ecosystem.
    Alabama Gulf Coast Recovery Council means the entity identified in 
section

[[Page 383]]

311(t)(1)(F)(i) of the Federal Water Pollution Control Act, as amended 
by the RESTORE Act.
    Assignee means a member of the Gulf Coast Ecosystem Restoration 
Council who has been assigned primary authority and responsibility for a 
project or program included in the Comprehensive Plan through a grant or 
interagency agreement.
    Best available science means science that maximizes the quality, 
objectivity, and integrity of information, including statistical 
information; uses peer-reviewed and publicly available data; and clearly 
documents and communicates risks and uncertainties in the scientific 
basis for such projects.
    Centers of Excellence Research Grants Program means the program 
authorized by section 1605 of the Act.
    Coastal political subdivision means any local political jurisdiction 
that is immediately below the state level of government, including a 
county, parish, or borough, with a coastline that is contiguous with any 
portion of the United States Gulf of Mexico. The term includes any of 
the disproportionately affected counties and nondisproportionately 
impacted counties in Florida, as defined below.
    Coastal zone parishes means the parishes of Ascension, Assumption, 
Calcasieu, Cameron, Iberia, Jefferson, Lafourche, Livingston, Orleans, 
Plaquemines, St. Bernard, St. Charles, St. James, St. John the Baptist, 
St. Martin, St. Mary, St. Tammany, Tangipahoa, Terrebonne, and Vermilion 
in the State of Louisiana.
    Comprehensive Plan Component means the component of the Gulf RESTORE 
Program authorized by section 311(t)(2) of the Federal Water Pollution 
Control Act, as added by section 1603 of the Act, in which funds are 
provided through the Council, in accordance with a plan developed by the 
Council, to entities to carry out the purposes of the Act.
    Council means the Gulf Coast Ecosystem Restoration Council, an 
independent entity in the Federal Government whose members are the 
Governors of the Gulf Coast States; the Secretaries of Agriculture, the 
Army, Commerce, and the Interior; the head of the department in which 
the Coast Guard is operating, and the Administrator of the Environmental 
Protection Agency (or their designees at the level of Assistant 
Secretary or the equivalent).
    Deepwater Horizon oil spill means the blowout and explosion of the 
mobile offshore drilling unit Deepwater Horizon that occurred on April 
20, 2010, and resulting hydrocarbon releases into the environment.
    Direct Component means the component of the Gulf RESTORE Program 
authorized by section 311(t)(1) of the Federal Water Pollution Control 
Act, as added by section 1603 of the Act, in which Gulf Coast States, 
coastal zone parishes, disproportionately affected counties, and 
nondisproportionately impacted counties are provided funds directly by 
Treasury through grants to carry out the purposes of the Act.
    Disproportionately affected counties means the counties of Bay, 
Escambia, Franklin, Gulf, Okaloosa, Santa Rosa, Wakulla, and Walton in 
the State of Florida.
    Federal Water Pollution Control Act means 33 U.S.C. 1251 et seq.
    Gulf Coast Region means:
    (1) In the Gulf Coast States, the coastal zones defined under 
section 304 of the Coastal Zone Management Act of 1972 that border the 
Gulf of Mexico;
    (2) Land within the coastal zones described in paragraph (1) of this 
definition that is held in trust by, or the use of which is by law 
subject solely to the discretion of, the Federal Government or officers 
or agents of the Federal Government;
    (3) Any adjacent land, water, and watersheds, that are within 25 
miles of the coastal zone described in paragraphs (1) and (2) of this 
definition; and
    (4) All Federal waters in the Gulf of Mexico.
    Gulf Coast State means any of the States of Alabama, Florida, 
Louisiana, Mississippi, and Texas.
    Gulf Coast State entity means a party that carries out the duties of 
a state for the Centers of Excellence Research Grants Program under 
Sec.  34.702.
    Infrastructure means the public facilities or systems needed to 
support commerce and economic development. These installations and 
facilities span

[[Page 384]]

a wide range, including highways, airports, roads, buildings, transit 
systems, port facilities, railways, telecommunications, water and sewer 
systems, public electric and gas utilities, levees, seawalls, 
breakwaters, major pumping stations, and flood gates. Infrastructure 
encompasses new construction, upgrades and repairs to existing 
facilities or systems, and associated land acquisition and planning.
    Multiyear Implementation Plan means the plan submitted by entities 
eligible for funding directly from Treasury under the Direct Component, 
and described at Sec.  34.303.
    NOAA means the National Oceanic and Atmospheric Administration.
    NOAA RESTORE Act Science Program means the program authorized by 
section 1604 of the Act.
    Nondisproportionately impacted counties means the counties of 
Charlotte, Citrus, Collier, Dixie, Hernando, Hillsborough, Jefferson, 
Lee, Levy, Manatee, Monroe, Pasco, Pinellas, Sarasota, and Taylor in the 
State of Florida.
    Pass-through entity means a non-Federal entity that provides a 
subaward to a subrecipient to carry out part of a program under the Act.
    Planning assistance means data gathering, studies, modeling, 
analysis and other tasks required to prepare plans for eligible 
activities under Sec.  34.201(a) through (i), including environmental 
review and compliance tasks and architectural and engineering studies. 
Planning assistance also means one-time preparations that will allow the 
recipient to establish systems and processes needed to review grant 
applications, award grants, monitor grants after award, and audit 
compliance with respect to eligible activities under Sec.  34.201 in a 
Multiyear Implementation Plan or State Expenditure Plan.
    Recipient means a non-Federal entity that receives a Federal award 
directly from a Federal awarding agency to carry out an activity under 
the Act. As used in these regulations, a recipient also includes a pass-
through entity. The term recipient does not include subrecipients.
    Spill Impact Component means the component of the Gulf RESTORE 
Program authorized by section 311(t)(3) of the Federal Water Pollution 
Control Act, as added by section 1603 of the Act, in which Gulf Coast 
States are provided funds by the Council according to a formula that the 
Council establishes by regulation, using criteria listed in the Act.
    State Expenditure Plan means the plan that each Gulf Coast State 
must submit to the Council for the expenditure of amounts disbursed 
under the Spill Impact Component, and described at Sec.  34.503.
    Subrecipient means a non-Federal entity that receives a subaward 
from a recipient to carry out an activity under the Act.
    Treasury means the U.S. Department of the Treasury, the Secretary of 
the Treasury, or his/her designee.
    Trust Fund means the Gulf Coast Restoration Trust Fund.



                          Subpart B_Trust Fund



Sec.  34.100  The Trust Fund.

    Treasury will deposit into the Trust Fund an amount equal to 80 
percent of all administrative and civil penalties paid after July 6, 
2012 by responsible parties in connection with the explosion on, and 
sinking of, the mobile offshore drilling unit Deepwater Horizon pursuant 
to a court order, negotiated settlement, or other instrument under 
section 311 of the Federal Water Pollution Control Act. After these 
administrative and civil penalties have been deposited into the Trust 
Fund, the Trust Fund will terminate on the date all amounts owed to the 
Trust Fund have been returned to the Trust Fund, and all amounts in the 
Trust Fund have been expended.



Sec.  34.101  Investments.

    The Secretary of the Treasury will invest such amounts in the Trust 
Fund that are not, in the judgment of the Secretary, required to meet 
needs for current withdrawals. The Secretary may invest in interest-
bearing obligations of the United States, having maturities suitable to 
the needs of the Trust Fund as determined by the Secretary. These 
obligations will bear interest at rates described in 31 U.S.C. 9702, 
unless the Secretary determines

[[Page 385]]

that such rates are unavailable for obligations with suitable 
maturities. In that event, the Secretary will select obligations of the 
United States bearing interest at rates determined by the Secretary, 
taking into consideration current market yields on outstanding 
marketable obligations of the United States of comparable maturities.



Sec.  34.102  Interest earned.

    Interest earned on Trust Fund investments will be available as 
described in Sec.  34.103(b).



Sec.  34.103  Allocation of funds.

    The amounts in the Trust Fund are allocated among the programs in 
Sec.  34.1.
    (a) Available funds in the Trust Fund, other than interest, are 
allocated as follows:
    (1) Thirty-five percent in equal shares for the Gulf Coast States to 
be used for the Direct Component of the Gulf RESTORE Program. Section 
34.302 describes the allocation for each Gulf Coast State.
    (2) Thirty percent for the Council to be used for the Comprehensive 
Plan Component of the Gulf RESTORE Program.
    (3) Thirty percent for formula distribution to Gulf Coast States to 
be used for the Spill Impact Component of the Gulf RESTORE Program.
    (4) Two and one-half percent to be used for the NOAA RESTORE Act 
Science Program.
    (5) Two and one-half percent in equal shares for the Gulf Coast 
States to be used for the Centers of Excellence Research Grants Program.
    (b) Within ten days of the close of a Federal fiscal year, available 
funds equal to the interest earned on the Trust Fund investments will be 
allocated, as follows:
    (1) Twenty-five percent to be used for the NOAA RESTORE Act Science 
Program.
    (2) Twenty-five percent for the Centers of Excellence Research 
Grants Program.
    (3) Fifty percent for the Comprehensive Plan Component of the Gulf 
RESTORE Program.



Sec.  34.104  Expenditures.

    Subject to limitations in the Act and these regulations, amounts in 
the Trust Fund will be available for the direct and indirect expenses of 
eligible activities without fiscal year limitation.



Sec.  34.105  Waiver.

    To the extent not inconsistent with applicable law, Treasury may 
waive or modify a requirement in the regulations in this part in a 
single case or class of cases if the Secretary determines, in his or her 
sole discretion, that the requirement is not necessary for the deposit 
of amounts into, or the expenditure of amounts from, the Trust Fund. 
Treasury will provide public notice of any waivers or modifications 
granted that materially change a regulatory requirement.



   Subpart C_Eligible Activities for the Section 311(t) Gulf RESTORE 
                           Program Components



Sec.  34.200  General.

    This subpart describes policies and procedures regarding eligible 
activities applicable to the Direct Component, Comprehensive Plan 
Component, and Spill Impact Component of the Gulf RESTORE Program. 
Subparts D, E, F, and I of this part describe additional requirements 
that must be met before an activity can receive funding.
    (a) Trust Fund amounts may be used to carry out an activity in whole 
or in part only if the following requirements are met:
    (1) Costs must comply with administrative requirements and cost 
principles in applicable Federal laws and policies on grants.
    (2) The activity must meet the eligibility requirements of the Gulf 
RESTORE Program as defined in Sec.  34.201, Sec.  34.202, or Sec.  
34.203, according to component.
    (3) Activities funded through the Direct Component, Comprehensive 
Plan Component, and Spill Impact Component must not be included in any 
claim for compensation presented after July 6, 2012, to the Oil Spill 
Liability Trust Fund authorized by 26 U.S.C. 9509.

[[Page 386]]

    (b) A Gulf Coast State, coastal political subdivision, and coastal 
zone parish may use funds available under the Direct Component or Spill 
Impact Component to satisfy the non-Federal cost-share of an activity 
that is eligible under Sec. Sec.  34.201 and 34.203 and authorized by 
Federal law.



Sec.  34.201  Eligible activities for the Direct Component.

    The following activities are eligible for funding under the Direct 
Component. Activities in paragraphs (a) through (g) of this section are 
eligible for funding to the extent they are carried out in the Gulf 
Coast Region. Direct Component activities are carried out in the Gulf 
Coast Region when, in the reasonable judgment of the entity applying to 
Treasury for a grant, each severable part of the activity is primarily 
designed to restore or protect that geographic area. Applicants must 
demonstrate that the activity will be carried out in the Gulf Coast 
Region when they apply for a grant. Activities designed to protect or 
restore natural resources must be based on the best available science. 
All Direct Component activities must be included in and conform to the 
description in the Multiyear Implementation Plan required by Sec.  
34.303.
    (a) Restoration and protection of the natural resources, ecosystems, 
fisheries, marine and wildlife habitats, beaches, and coastal wetlands 
of the Gulf Coast Region.
    (b) Mitigation of damage to fish, wildlife, and natural resources.
    (c) Implementation of a Federally-approved marine, coastal, or 
comprehensive conservation management plan, including fisheries 
monitoring.
    (d) Workforce development and job creation.
    (e) Improvements to or on state parks located in coastal areas 
affected by the Deepwater Horizon oil spill.
    (f) Infrastructure projects benefitting the economy or ecological 
resources, including port infrastructure.
    (g) Coastal flood protection and related infrastructure.
    (h) Promotion of tourism in the Gulf Coast Region, including 
promotion of recreational fishing.
    (i) Promotion of the consumption of seafood harvested from the Gulf 
Coast Region.
    (j) Planning assistance. Eligible entities under Sec.  34.302 may 
apply for planning assistance grants to fund preparation and amendment 
of the Multiyear Implementation Plan.
    (k) Administrative costs.



Sec.  34.202  Eligible activities for the Comprehensive Plan Component.

    The Council may expend funds that are available under the 
Comprehensive Plan Component for eligible activities under 33 U.S.C. 
1321(t)(2) and (3), including the following:
    (a) The Council may expend funds to carry out activities in the Gulf 
Coast Region that are included in the Comprehensive Plan, as described 
in 33 U.S.C. 1321(t)(2). An activity selected by the Council is carried 
out in the Gulf Coast Region when, in the reasonable judgment of the 
Council, each severable part of the activity is primarily designed to 
restore or protect that geographic area. The Council must document the 
basis for its judgment when it selects the activity.
    (b) The Council may expend funds to develop and publish the proposed 
and initial Comprehensive Plans, and to implement, amend, and update the 
Comprehensive Plan as required by the Act or as necessary.
    (c) The Council may expend funds to prepare annual reports to 
Congress, and other reports and audits required by the Act, these 
regulations, and other Federal law.
    (d) The Council may expend funds to establish and operate one or 
more advisory committees as may be necessary to assist the Council.
    (e) The Council may expend funds to collect and consider scientific 
and other research associated with restoration of the Gulf Coast 
ecosystem, including research, observation, and monitoring.
    (f) Administrative expenses.



Sec.  34.203  Eligible activities for the Spill Impact Component.

    Activities eligible for funding under the Spill Impact Component 
must meet the eligibility criteria in Sec.  34.201(a) through (k), as 
well as the following:

[[Page 387]]

    (a) The activities must be included in and conform to the 
description in a State Expenditure Plan required in Sec.  34.503 and 
approved by the Council. State entities may apply for a grant from the 
total amount allocated to that state under the Spill Impact Component 
before the Council has approved the State Expenditure Plan to fund 
eligible activities that are necessary to develop and submit that plan.
    (b) The activities included in the State Expenditure Plan must 
contribute to the overall economic and ecological recovery of the Gulf 
Coast.
    (c) Activities listed in Sec.  34.201(a) through (g) are eligible 
for funding from the Spill Impact Component to the extent they are 
carried out in the Gulf Coast Region. For purposes of this component, an 
activity is carried out in the Gulf Coast Region when, in the reasonable 
judgment of the entity developing the State Expenditure Plan under Sec.  
34.503, each severable part of the activity is primarily designed to 
restore or protect that geographic area. State Expenditure Plans must 
include a demonstration that activities in the plan will be carried out 
in the Gulf Coast Region.



Sec.  34.204  Limitations on administrative costs and administrative
expenses.

    (a)(1) Of the amounts received by a Gulf Coast State, coastal 
political subdivision, or coastal zone parish from Treasury under the 
Direct Component, or from the Council under the Comprehensive Plan 
Component or Spill Impact Component, not more than three percent may be 
used for administrative costs. The three percent limit on administrative 
costs may be applied to the total amount of funds received by a 
recipient under each of the three components either on a grant-by-grant 
basis or on an aggregate basis. For the latter method, amounts used for 
administrative costs under each of the three components may not at any 
time exceed three percent of the aggregate of:
    (i) The amounts received under a component by a recipient, beginning 
with the first grant through the most recent grant, and
    (ii) The amounts in the Trust Fund that are allocated to, but not 
yet received under such component by a Gulf Coast State, coastal 
political subdivision, or coastal zone parish under Sec.  34.103, 
consistent with the definition of administrative costs in Sec.  34.2.
    (2) The three percent limit does not apply to the administrative 
costs of subrecipients. All recipient and subrecipient costs are subject 
to the cost principles in Federal laws and policies on grants.
    (3) Treasury will conduct a retrospective analysis of this provision 
no later than seven years after the date it becomes effective. This 
review will consider whether the revision ensures that the Gulf Coast 
States, coastal political subdivisions, and coastal zone parishes have 
the necessary funding to efficiently and effectively oversee and manage 
projects and programs for ecological and economic restoration of the 
Gulf Coast Region while ensuring compliance with the statutory three 
percent administrative cost cap.
    (b) Of the amounts received by the Council under the Comprehensive 
Plan Component, not more than three percent may be used for 
administrative expenses. The three percent limit is applied to the 
amounts it receives under the Comprehensive Plan Component before 
termination of the Trust Fund. Amounts used for administrative expenses 
may not at any time exceed three percent of the total of the amounts 
received by the Council and the amounts in the Trust Fund that are 
allocated to, but not yet received by, the Council under Sec.  34.103.

[80 FR 77243, Dec. 14, 2015, as amended at 81 FR 66530, Sept. 28, 2016; 
84 FR 12932, Apr. 3, 2019]



Sec.  34.205  Council's audited financial statements and audits.

    (a) Not later than December 1, 2014, and each year thereafter, the 
Council must prepare and submit to the Secretary of the Treasury an 
audited financial statement for the preceding Federal fiscal year, 
covering all accounts and associated activities of the Council.
    (b) Each audited financial statement under this section must 
reflect:
    (1) The overall financial position of the accounts and activities 
covered by

[[Page 388]]

the statement, including assets and liabilities thereof.
    (2) Results of operations of the Council.
    (c) The financial statements must be prepared in accordance with the 
form and content of the financial statements prescribed by the Director 
of the Office of Management and Budget for executive agencies pursuant 
to 31 U.S.C. 3515, consistent with applicable accounting and financial 
reporting principles, standards, and requirements.
    (d) The Treasury Inspector General may conduct audits and reviews of 
the Council's accounts and activities as the Inspector General deems 
appropriate.



             Subpart D_Gulf RESTORE Program_Direct Component



Sec.  34.300  General.

    This subpart describes the policies and procedures applicable to the 
Direct Component of the Gulf RESTORE Program. The funds made available 
under this subpart will be in the form of a grant.



Sec.  34.301  Responsibility for administration--Direct Component.

    Treasury is responsible for awarding and administering grants and 
grant agreements under this subpart. Treasury will develop and apply 
policies and procedures consistent with the Act and Federal laws and 
policies on grants. Treasury also will establish and implement a program 
to monitor compliance with its grant agreements.



Sec.  34.302  Allocation of funds--Direct Component.

    The amounts made available in any fiscal year from the Trust Fund 
and allocated to this component will be available in equal shares for 
the Gulf Coast States for expenditure on eligible activities. The 
following entities are eligible to receive Direct Component grants.
    (a) The amounts available to Alabama will be provided directly to 
the Alabama Gulf Coast Recovery Council, or such administrative agent as 
it may designate. All administrative duties of the Alabama Gulf Coast 
Recovery Council must be performed by public officials and employees 
that are subject to the ethics laws of the State of Alabama.
    (b) Of the amounts available to Florida, 75 percent of funding will 
be provided directly to the eight disproportionately affected counties. 
Each disproportionately affected county's share is as follows: Bay 
County, 15.101453044%; Escambia County, 25.334760043%; Franklin County, 
8.441253238%; Gulf County, 6.743202296%; Okaloosa County, 15.226456794%; 
Santa Rosa County, 10.497314919%; Wakulla County, 4.943148294%; and 
Walton County, 13.712411372%.
    (c) Of the amounts available to Florida, 25 percent of funding will 
be provided directly to the nondisproportionately impacted counties. 
Each nondisproportionately impacted county's share is as follows: 
Charlotte County, 5.162%; Citrus County, 4.692%; Collier County, 7.019%; 
Dixie County, 3.484%; Hernando County, 4.982%; Hillsborough County, 
13.339%; Jefferson County, 3.834%; Lee County, 8.776%; Levy County, 
3.894%; Manatee County, 6.809%; Monroe County, 8.297%; Pasco County, 
7.079%; Pinellas County, 11.002%; Sarasota County, 7.248%; and Taylor 
County, 4.383%.
    (d) Of the amounts available to Louisiana, 70 percent will be 
provided directly to the Coastal Protection and Restoration Authority 
Board of Louisiana, through the Coastal Protection and Restoration 
Authority of Louisiana.
    (e) Of the amounts available to Louisiana, 30 percent will be 
provided directly to the coastal zone parishes. Each coastal zone 
parish's share is as follows: Ascension, 2.42612%; Assumption, 0.93028%; 
Calcasieu, 5.07063%; Cameron, 2.10096%; Iberia, 2.55018%; Jefferson, 
11.95309%; Lafourche, 7.86746%; Livingston, 3.32725%; Orleans, 7.12875%; 
Plaquemines, 17.99998%; St. Bernard, 9.66743%; St. Charles, 1.35717%; 
St. James, 0.75600%; St. John the Baptist, 1.11915%; St. Martin, 
2.06890%; St. Mary, 1.80223%; St. Tammany, 5.53058%; Tangipahoa, 
3.40337%; Terrebonne, 9.91281%; and Vermilion, 3.02766%.
    (f) No parish will receive funds until the parish chief executive 
has certified to the Governor of Louisiana, in a form satisfactory to 
the Governor or the

[[Page 389]]

Governor's designee, that the parish has completed a comprehensive land 
use plan that is consistent with, or complementary to, the most recent 
version of the state's Coastal Master Plan approved by the Louisiana 
legislature.
    (g) The amounts available to Mississippi will be provided directly 
to the Mississippi Department of Environmental Quality.
    (h) The amounts available to Texas will be provided directly to the 
Office of the Governor or to an appointee of the Office of the Governor.



Sec.  34.303  Application procedure--Direct Component.

    The entities identified in Sec.  34.302 are eligible to apply for 
their allocation as a grant. Treasury has developed an application 
process for grants available under this subpart that is consistent with 
the Act and Federal laws and policies on grants. The application process 
includes the following requirements:
    (a) Before an eligible entity may receive a Direct Component 
activity grant, the grant applicant must submit a Multiyear 
Implementation Plan describing each activity for which it seeks funding 
under the Direct Component. Applications to fund preparation and 
amendment of the Multiyear Implementation Plan are exempt from this 
requirement.
    (b) For each activity, the Multiyear Implementation Plan must 
include a narrative description demonstrating:
    (1) The need for, purpose, and objectives of the activity;
    (2) How the activity is eligible for funding and meets all 
requirements;
    (3) Location of the activity;
    (4) Budget for the activity;
    (5) Milestones for the activity;
    (6) Projected completion dates for the activity;
    (7) Criteria the applicant will use to evaluate the success of each 
activity in helping to restore and protect the Gulf Coast Region 
impacted by the Deepwater Horizon oil spill;
    (8) The plan was made available for public review and comment for a 
minimum of 45 days in a manner calculated to obtain broad-based 
participation from individuals, businesses, Indian tribes, and non-
profit organizations; and
    (9) Each activity in the plan was approved after consideration of 
meaningful input from the public. Treasury may require a standard format 
and additional information in the plans. Plans can be phased and 
incremental and may be modified later by the applicant. If the applicant 
has requested or anticipates requesting funding for any part of the 
activity from other sources, including other components in the Act, the 
applicant must identify the source, state the amount of funding, and 
provide the current status of the request. For the State of Louisiana 
parishes, the applicant must submit information demonstrating compliance 
with Sec.  34.302(f).
    (c) Material modifications to a Multiyear Implementation Plan are 
subject to all applicable requirements in paragraph (b) of this section.
    (d) The applicant must include supporting information in each grant 
application that:
    (1) Proposed activities meet the statutory requirements for 
eligibility; and
    (2) Each activity designed to protect or restore natural resources 
is based on best available science.
    (e) An applicant may satisfy some or all of the requirements in this 
section and Sec.  34.802(a) through (e) if it can demonstrate in its 
application to Treasury that before July 6, 2012:
    (1) The applicant established conditions to carry out activities 
that are substantively the same as the requirements in this section and 
Sec.  34.802(a) through (e).
    (2) The applicable activity qualified as one or more of the eligible 
activities in Sec.  34.201.



Sec.  34.304  Grant award process--Direct Component.

    Upon determining that the Multiyear Implementation Plan and the 
grant application meet the requirements of these regulations and the 
Act, Treasury will execute a grant agreement with the recipient that 
complies with subpart I of this part, the Act, and other Federal laws 
and policies on grants.

[[Page 390]]



Sec.  34.305  Use of funds--Direct Component.

    (a) An activity may be funded in whole or in part if the applicable 
requirements of subparts C and D of this part are met.
    (b) When awarding contracts to carry out an activity under the 
Direct Component, a Gulf Coast State, coastal political subdivision, or 
coastal zone parish may give preference to individuals and companies 
that reside in, are headquartered in, or are principally engaged in 
business in the state of project execution consistent with Federal laws 
and policies on grants.
    (c) A Gulf Coast State, coastal political subdivision, or coastal 
zone parish may propose to issue subawards for eligible activities. 
Recipients that propose to issue subawards must demonstrate their 
ability to conduct subrecipient monitoring and management, as required 
by Federal laws and policies on grants.



Sec.  34.306  Reports--Direct Component.

    Recipients must submit reports as prescribed by Treasury.



Sec.  34.307  Recordkeeping--Direct Component.

    Recipients must maintain records as prescribed by Treasury, and make 
the records available to Treasury, including the Treasury Inspector 
General.



Sec.  34.308  Audits--Direct Component.

    Treasury, including the Treasury Inspector General, may conduct 
audits and reviews of recipient's accounts and activities relating to 
the Act as deemed appropriate by Treasury.



       Subpart E_Gulf RESTORE Program_Comprehensive Plan Component



Sec.  34.400  General.

    This subpart describes the policies and procedures applicable to the 
Comprehensive Plan Component. The Comprehensive Plan is developed by the 
Council in accordance with 33 U.S.C. 1321(t)(2) and will include 
activities the Council intends to carry out, subject to available 
funding. When selecting activities to carry out in the first three 
years, except for certain projects and programs that were authorized 
prior to July 6, 2012, the Council will give highest priority to 
projects meeting one or more of the criteria in 33 U.S.C. 
1321(t)(2)(D)(iii).



Sec.  34.401  Responsibility for administration--Comprehensive Plan Component.

    (a) After selecting Comprehensive Plan projects and programs to be 
funded, the Council must assign primary authority and responsibility for 
overseeing and implementing projects and programs to a Gulf Coast State 
or Federal agency represented on the Council, which are called assignees 
in these regulations. In assigning responsibility, the Council must 
enter into a grant agreement with the Gulf Coast State or an interagency 
agreement with the Federal agency. Any grant agreement must be 
consistent with applicable Federal laws and policies on grants. The 
Council must specify whether any part of an assignee's responsibility 
may be further assigned to another entity and under what terms.
    (b) When an assignee's grant or subaward to, or cooperative 
agreement with, a nongovernmental entity would equal or exceed ten 
percent of the total amount provided to the assignee for that activity, 
the Council must publish in the Federal Register and deliver to the 
following Congressional Committees at least 30 days prior to the 
assignee entering into an agreement the name of the recipient or 
subrecipient; a brief description of the activity, including its 
purpose; and the amount of the award.
    (1) House of Representatives committees: Committee on Science, 
Space, and Technology; Committee on Natural Resources; Committee on 
Transportation and Infrastructure; Committee on Appropriations.
    (2) Senate committees: Committee on Environment and Public Works; 
Committee on Commerce, Science, and Transportation; Committee on Energy 
and Natural Resources; Committee on Appropriations.
    (c) The Council must establish and implement a program to monitor 
compliance with its grant agreements and interagency agreements.

[[Page 391]]



Sec.  34.402  Grant administration--Comprehensive Plan Component.

    The Council must publish policies and procedures for administration 
of Comprehensive Plan Component grants that are consistent with 
applicable Federal laws and policies on grants. These grant policies and 
procedures must include uniform guidelines for assignees to use when 
selecting subrecipients, awarding grants and subawards, and monitoring 
compliance. The Council must also establish and implement a program to 
monitor compliance with its grant agreements.



Sec.  34.403  Use of funds--Comprehensive Plan Component.

    An activity may be funded in whole or in part if the applicable 
requirements of subparts C and E of this part are met.



Sec.  34.404  Reports--Comprehensive Plan Component.

    Assignees must submit reports as prescribed by the Council or 
Treasury. In addition, the Council must submit reports as prescribed by 
Treasury.



Sec.  34.405  Recordkeeping--Comprehensive Plan Component.

    Assignees must maintain records as prescribed by the Council and 
Treasury, and make the records available to the Council and Treasury, 
including the Treasury Inspector General. In addition, the Council must 
make its records concerning the activities of assignees available to 
Treasury, including the Treasury Inspector General.



Sec.  34.406  Audits--Comprehensive Plan Component.

    The Council and Treasury, including the Treasury Inspector General, 
may conduct audits and reviews of assignee's accounts and activities 
relating to the Act as any of them deems appropriate.



          Subpart F_Gulf RESTORE Program_Spill Impact Component



Sec.  34.500  General.

    This subpart describes the policies and procedures applicable to the 
Spill Impact Component of the Gulf RESTORE Program. The funds made 
available under this subpart will be in the form of grants.



Sec.  34.501  Responsibility for administration--Spill Impact Component.

    The Council is responsible for awarding and administering grants 
under this subpart.



Sec.  34.502  Allocation of funds--Spill Impact Component.

    The Council will allocate amounts to the Gulf Coast States based on 
the Act and regulations promulgated by the Council. The Council will 
make allocated funds available through grants for activities described 
in a State Expenditure Plan approved by the Council.



Sec.  34.503  State Expenditure Plans--Spill Impact Component.

    Each Gulf Coast State, through its Governor or the Governor's 
designee, must submit a State Expenditure Plan to the Council for its 
approval that describes each activity for which the state seeks funding. 
The Council must develop requirements for these plans, including the 
requirements below.
    (a) The State Expenditure Plan must be developed by:
    (1) In Alabama, the Alabama Gulf Coast Recovery Council.
    (2) In Florida, a consortium of local political subdivisions that 
includes, at a minimum, one representative of each county affected by 
the Deepwater Horizon oil spill.
    (3) In Louisiana, the Coastal Protection and Restoration Authority 
of Louisiana, as approved by the Board.
    (4) In Mississippi, the Office of the Governor or an appointee of 
the Office of the Governor.
    (5) In Texas, the Office of the Governor or an appointee of the 
Office of the Governor.
    (b) The State Expenditure Plan must describe how it takes into 
consideration the Comprehensive Plan and is consistent with the goals 
and objectives of the Comprehensive Plan. In addition, the State 
Expenditure Plan must describe the processes used:
    (1) To evaluate and select activities included in the plan;

[[Page 392]]

    (2) To assess the capability of third party entities that will 
implement activities in the plan;
    (3) To prevent conflicts of interest in the development and 
implementation of the plan;
    (4) To obtain public review and comment in accordance with paragraph 
(g) of this section; and
    (5) To verify compliance with the requirements of Sec.  34.203 and 
this subpart.
    (c) For each activity in the State Expenditure Plan, the plan must 
include a narrative description demonstrating:
    (1) The need for, purpose, and objectives of the activity;
    (2) How the activity is eligible for funding and meets all 
requirements of Sec.  34.203 and this subpart;
    (3) Location of the activity;
    (4) Budget for the activity;
    (5) Milestones for the activity;
    (6) Projected completion dates for the activity; and
    (7) Criteria the applicant will use to evaluate the success of each 
activity in helping to restore and protect the Gulf Coast Region. Plans 
can be phased or incremental and may be modified with the Council's 
approval. If funding has been requested from other sources, including 
other components of the Act, the plan must identify the source, state 
how much funding was requested, and provide the current status of the 
request.
    (d) The State Expenditure Plan must demonstrate how the activities 
in the plan will contribute to the overall economic and ecological 
recovery of the Gulf Coast, and how each activity that would restore and 
protect natural resources, ecosystems, fisheries, marine and wildlife 
habitats, beaches, coastal wetlands or the economy of the Gulf Coast is 
based on the best available science.
    (e) The State Expenditure Plan must demonstrate that activities 
described in Sec.  34.201(a) through (g) will be carried out in the Gulf 
Coast Region, as described in Sec.  34.203(c).
    (f) No more than 25 percent of funding under the Spill Impact 
Component is available to a Gulf Coast State under this subpart to pay 
for infrastructure, unless the Governor or the Governor's representative 
on the Council certifies that:
    (1) The ecosystem restoration needs in the state will be addressed 
by the activities in the proposed plan; and
    (2) Additional investment in infrastructure is required to mitigate 
the impacts of the Deepwater Horizon Oil Spill to the ecosystem or 
economy.
    (g) Before being submitted to the Council for approval, a State 
Expenditure Plan must be available for public review and comment for a 
minimum of 45 days, in a manner calculated to obtain broad-based 
participation from individuals, businesses, Indian tribes, and non-
profit organizations.
    (h) If the Council disapproves a State Expenditure Plan, the Council 
must notify the impacted state in writing and consult with the state to 
address any identified deficiencies with the plan. If the Council fails 
to approve or take action within 60 days after the date on which the 
Council receives the plan, the state may obtain expedited judicial 
review within 90 days in a United States district court located in the 
state seeking the review.
    (i) The Council must publish guidelines explaining when 
modifications to a State Expenditure Plan require the Council's 
approval. Material modifications to a State Expenditure Plan are subject 
to the requirements of paragraphs (b) through (g) of this section.



Sec.  34.504  Grant administration--Spill Impact Component.

    The Council must publish policies and procedures for administration 
of the Spill Impact Component grants that are consistent with applicable 
Federal laws and policies on grants. The Council must also establish and 
implement a program to monitor compliance with its grant agreements.



Sec.  34.505  Use of funds--Spill Impact Component.

    An activity may be funded in whole or in part if the applicable 
requirements of subparts C and F of this part are met.



Sec.  34.506  Reports--Spill Impact Component.

    Recipients must submit reports as prescribed by the Council or 
Treasury. In addition, the Council must submit reports as prescribed by 
Treasury.

[[Page 393]]



Sec.  34.507  Recordkeeping--Spill Impact Component.

    Recipients must maintain records as prescribed by the Council and 
make the records available to the Council, and Treasury, including the 
Treasury Inspector General. In addition, the Council must make its 
records concerning the activities of recipients available to Treasury, 
including the Treasury Inspector General.



Sec.  34.508  Audits--Spill Impact Component.

    The Council and Treasury, including the Treasury Inspector General, 
may conduct audits and reviews of a recipient's accounts and activities 
relating to the Act as any of them deem appropriate.



               Subpart G_NOAA RESTORE Act Science Program



Sec.  34.600  General.

    This subpart describes policies and procedures applicable to the 
NOAA RESTORE Act Science Program. The program's purpose is to carry out 
research, observation, and monitoring to support, to the maximum extent 
practicable, the long-term sustainability of the ecosystem, fish stocks, 
fish habitat, and the recreational, commercial, and charter fishing 
industries in the Gulf of Mexico.



Sec.  34.601  Responsibility for administration--NOAA RESTORE Act Science Program.

    NOAA is responsible for establishing and administering this program, 
in consultation with the United States Fish and Wildlife Service. NOAA 
must develop, publish, and apply policies and procedures for the NOAA 
RESTORE Act Science Program consistent with the Act, this subpart, and 
Federal laws and policies on grants. NOAA must monitor compliance with 
its grant agreements, cooperative agreements, contracts, and agreements 
funded through the Trust Fund. NOAA and the United States Fish and 
Wildlife Service will consult with the Regional Gulf of Mexico Fishery 
Management Council and the Gulf States Marine Fisheries Commission in 
carrying out the program.



Sec.  34.602  Use of funds and eligible activities--NOAA RESTORE Act
Science Program.

    (a) Amounts made available to NOAA may be expended to carry out a 
program comprised of activities described in section 1604 of the Act. 
These activities include coordination of science and technology programs 
and stakeholder engagement, in accordance with section 1604(f) of the 
Act, as well as the following activities with respect to the Gulf of 
Mexico:
    (1) Marine and estuarine research.
    (2) Marine and estuarine ecosystem monitoring and ocean observation.
    (3) Data collection and stock assessments.
    (4) Pilot programs for fishery independent data and reduction of 
exploitation of spawning aggregations.
    (5) Cooperative research.
    (b) NOAA may also expend amounts made available from the Trust Fund 
for administrative expenses connected with the program. All funds must 
be expended in compliance with the Act, these regulations, and other 
applicable law.



Sec.  34.603  Limitations on activities--NOAA RESTORE Act Science Program.

    None of the Trust Fund amounts may be used for the following 
activities:
    (a) For any existing or planned research led by NOAA, unless agreed 
to in writing by the grant recipient.
    (b) To implement existing regulations or initiate new regulations 
promulgated or proposed by NOAA.
    (c) To develop or approve a new limited access privilege program (as 
that term is used in section 303A of the Magnuson-Stevens Fishery 
Conservation and Management Act [16 U.S.C. 1853(a)]) for any fishery 
under the jurisdiction of the South Atlantic, Mid-Atlantic, New England, 
or Gulf of Mexico Fishery Management Councils.



Sec.  34.604  Limitations on administrative expenses--NOAA RESTORE Act
Science Program.

    (a) Of the amounts received by NOAA under the NOAA RESTORE Act 
Science Program, not more than three percent may be used for 
administrative expenses.

[[Page 394]]

    (b) The three percent limit is applied to the total amount of funds 
received by NOAA, beginning with the first fiscal year it receives funds 
through the end of the fourth, or most recent fiscal year, whichever is 
later.
    (c) NOAA may seek reimbursement of administrative expenses incurred 
after the first deposit into the Trust Fund, to the extent permitted by 
Federal law. Administrative expenses incurred prior to the first deposit 
into the Trust Fund are not reimbursable.



Sec.  34.605  Reports--NOAA RESTORE Act Science Program.

    NOAA must submit reports as prescribed by Treasury.



Sec.  34.606  Recordkeeping--NOAA RESTORE Act Science Program.

    Recipients and other entities receiving funds under the NOAA RESTORE 
Act Science Program must maintain records as prescribed by NOAA and make 
the records available to NOAA.



Sec.  34.607  Audits--NOAA RESTORE Act Science Program.

    NOAA and the Treasury Inspector General may conduct audits and 
reviews of recipient's accounts and activities relating to the Act as 
either of them deems appropriate.



         Subpart H_Centers of Excellence Research Grants Program



Sec.  34.700  General.

    This subpart describes the policies and procedures applicable to the 
Centers of Excellence Research Grants Program. The program's purpose is 
to establish centers of excellence to conduct research only on the Gulf 
Coast Region. The funds made available to the Gulf Coast States under 
this subpart will be in the form of a grant.



Sec.  34.701  Responsibility for administration--Centers of Excellence
Research Grants Program.

    Treasury is responsible for awarding grants to the Gulf Coast 
States, which will use the amounts made available to award grants to 
nongovernmental entities and consortia in the Gulf Coast Region for the 
establishment of Centers of Excellence. Treasury will develop and apply 
policies and procedures consistent with this Act and Federal laws and 
policies on grants. Each Gulf Coast State entity issuing grants must 
establish and implement a program to monitor compliance with its 
subaward agreements.



Sec.  34.702  Allocation of funds--Centers of Excellence Research Grants
Program.

    An equal share of funds will be available to each Gulf Coast State 
to carry out eligible activities. The duties of a Gulf Coast State will 
be carried out by the following entities:
    (a) In Alabama, the Alabama Gulf Coast Recovery Council, or such 
administrative agent as it may designate.
    (b) In Florida, the Florida Institute of Oceanography.
    (c) In Louisiana, the Coastal Protection and Restoration Authority 
Board of Louisiana, through the Coastal Protection and Restoration 
Authority of Louisiana.
    (d) In Mississippi, the Mississippi Department of Environmental 
Quality.
    (e) In Texas, the Office of the Governor or an appointee of the 
Office of the Governor.



Sec.  34.703  Application procedure--Centers of Excellence Research Grants
Program.

    Treasury has developed an application process for grants available 
to the Gulf Coast States under this subpart that is consistent with the 
Act and Federal laws and policies on grants. The process includes the 
following requirements:
    (a) Each Gulf Coast State must describe the competitive process that 
the state will use to select one or more Centers of Excellence. The 
competitive process must allow nongovernmental entities and consortia in 
the Gulf Coast Region, including public and private institutions of 
higher education, to compete. The process must give priority to entities 
and consortia that demonstrate the ability to establish the broadest 
cross-section of participants in the grant with interest and expertise 
in science, technology, and monitoring in the discipline(s) on which the 
proposal is focused. The

[[Page 395]]

process must also guard against conflicts of interest.
    (b) Each Gulf Coast State must describe in its application the state 
rules and policies applying to subawards it will issue under this 
subpart. At a minimum, these state rules and policies must include the 
competitive selection process and measures to guard against conflicts of 
interest.
    (c) Each Gulf Coast State must demonstrate in its application that 
the state rules and policies applying to subawards it will issue under 
this subpart were published and available for public review and comment 
for a minimum of 45 days, and that they were approved after 
consideration of meaningful input from the public, including broad-based 
participation from individuals, businesses, Indian tribes, and non-
profit organizations. These requirements do not apply to state statutes 
and regulations, or to policies that were in effect prior to August 15, 
2014.
    (d) Each application must state the amount of funding requested and 
the purposes for which the funds will be used.



Sec.  34.704  Use of funds and eligible activities--Centers of Excellence
Research Grants Program.

    (a) A Gulf Coast State receiving funds under this subpart must 
establish a grant program that complies with the Act and Federal laws 
and policies on grants.
    (b) Gulf Coast States may use funds available under this subpart to 
award competitive subawards for the establishment of Centers of 
Excellence that focus on science, technology, and monitoring in at least 
one of the following disciplines:
    (1) Coastal and deltaic sustainability, restoration, and protection, 
including solutions and technology that allow citizens to live in a safe 
and sustainable manner in a coastal delta in the Gulf Coast Region.
    (2) Coastal fisheries and wildlife ecosystem research and monitoring 
in the Gulf Coast Region.
    (3) Offshore energy development, including research and technology 
to improve the sustainable and safe development of energy resources in 
the Gulf of Mexico.
    (4) Sustainable and resilient growth and economic and commercial 
development in the Gulf Coast Region.
    (5) Comprehensive observation, monitoring, and mapping of the Gulf 
of Mexico.



Sec.  34.705  Ineligible activities--Centers of Excellence Research
Grants Program.

    Any activity that is not authorized under the provisions of Sec.  
34.704 is ineligible for funding under this subpart.



Sec.  34.706  Reports--Centers of Excellence Research Grants Program.

    Each Gulf Coast State entity must submit the following reports:
    (a) An annual report to the Council in a form prescribed by the 
Council that includes information on subrecipients, subaward amounts, 
disciplines addressed, and any other information required by the 
Council. When the subrecipient is a consortium, the annual report must 
also identify the consortium members. This information will be included 
in the Council's annual report to Congress.
    (b) Reports as prescribed by Treasury.



Sec.  34.707  Recordkeeping--Centers of Excellence Research Grants
Program.

    Recipients must maintain records as prescribed by Treasury and make 
the records available to Treasury, including the Treasury Inspector 
General.



Sec.  34.708  Audits--Centers of Excellence Research Grants Program.

    Treasury, including the Treasury Inspector General, may conduct 
audits and reviews of each recipient's accounts and activities relating 
to the Act as deemed appropriate by Treasury.



                          Subpart I_Agreements



Sec.  34.800  General.

    This subpart describes procedures applicable to grant agreements 
used by Treasury, the Council (including Federal agencies carrying out 
responsibilities for the Council), NOAA, Gulf

[[Page 396]]

Coast States, coastal political subdivisions, and coastal zone parishes 
in making awards under subparts D, E, F, G, and H of this part. It also 
describes Treasury's authority to inspect records and the Treasury 
Inspector General's authority under the Act.



Sec.  34.801  Grant agreements.

    The grant agreements used must conform to the Act and Federal laws 
and policies on grants, including audit requirements.



Sec.  34.802  Certifications.

    At a minimum, grant applications and agreements for the Direct 
Component, Comprehensive Plan Component, and Spill Impact Component must 
contain the following certifications. The certification must be signed 
by an authorized senior official of the entity receiving grant funds who 
can legally bind the organization or entity, and who has oversight for 
the administration and use of the funds in question. The certification 
in paragraph (c) of this section does not apply to planning assistance 
funds for the preparation and amendment of the Multiyear Implementation 
Plan.
    (a) I certify that each activity funded under this Agreement has 
been designed to plan for or undertake activities to restore and protect 
the natural resources, ecosystems, fisheries, marine and wildlife 
habitats, beaches, coastal wetlands, or economy of the Gulf Coast 
Region.
    (b) I certify that each activity funded under this Agreement is 
designed to carry out one or more of the eligible activities for this 
component.
    (c) I certify that each activity funded under this Agreement was 
part of a plan made available for public review and comment in a manner 
calculated to obtain broad-based participation from individuals, 
businesses, Indian tribes, and nonprofit organizations, and that the 
activity was selected after consideration of meaningful input from the 
public, as described in the grant application.
    (d) I certify that each activity funded under this Agreement that 
protects or restores natural resources is based on the best available 
science, as that term is defined in 31 CFR part 34.
    (e) I certify that this recipient has procedures in place for 
procuring property and services under this award that are consistent 
with the procurement standards applying to Federal grants. This 
recipient agrees that it will not request funds under this award for any 
contract unless this certification remains true and accurate.
    (f) I certify that a conflict of interest policy is in effect and 
covering each activity funded under this Agreement.
    (g) I make each of these certifications based on my personal 
knowledge and belief after reasonable and diligent inquiry, and I affirm 
that this recipient maintains written documentation sufficient to 
support each certification made above, and that this recipient's 
compliance with each of these certifications is a condition of this 
recipient's initial and continuing receipt and use of the funds provided 
under this Agreement.



Sec.  34.803  Conditions.

    At a minimum, each grant agreement under subparts D, E, F, G, and H 
of this part must contain the following conditions:
    (a) The recipient must immediately report any indication of fraud, 
waste, abuse, or potentially criminal activity pertaining to grant funds 
to Treasury and the Treasury Inspector General.
    (b) The recipient must maintain detailed records sufficient to 
account for the receipt, obligation, and expenditure of grant funds. The 
recipient must track program income.
    (c) Prior to disbursing funds to a subrecipient, the recipient must 
execute a legally binding written agreement with the entity receiving 
the subaward. The written agreement will extend all the applicable 
program requirements to the subrecipient.
    (d) The recipient must use the funds only for the purposes 
identified in the agreement.
    (e) The recipient must report at the conclusion of the grant period, 
or other period specified by the Federal agency administering the grant, 
on the use of funds pursuant to the agreement.
    (f) Trust Fund amounts may only be used to acquire land or interests 
in land by purchase, exchange, or donation from a willing seller.

[[Page 397]]

    (g) None of the Trust Fund amounts may be used to acquire land in 
fee title by the Federal Government unless the land is acquired by 
exchange or donation or the acquisition is necessary for the restoration 
and protection of the natural resources, ecosystems, fisheries, marine 
and wildlife habitats, beaches, and coastal wetlands of the Gulf Coast 
Region and has the concurrence of the Governor of the state in which the 
acquisition will take place.



Sec.  34.804  Noncompliance.

    (a) If Treasury determines that a Gulf Coast State, coastal 
political subdivision, or coastal zone parish has expended funds 
received under the Direct Component, Comprehensive Plan Component, or 
Spill Impact Component on an ineligible activity, Treasury will make no 
additional funds available to that recipient from any part of the Trust 
Fund until the recipient has deposited in the Trust Fund an amount equal 
to the amount expended for an ineligible activity, or Treasury has 
authorized the recipient to expend an equal amount from the recipient's 
own funds for an activity that meets the requirements of the Act.
    (b) If Treasury determines that a Gulf Coast State, coastal 
political subdivision, or coastal zone parish has materially violated a 
grant agreement under the Direct Component, Comprehensive Plan 
Component, or Spill Impact Component, Treasury will make no additional 
funds available to that recipient from any part of the Trust Fund until 
the recipient corrects the violation.
    (c) As a condition of receiving funds, recipients and subrecipients 
shall make available their records and personnel to Treasury in order to 
carry out the purposes of this section.



Sec.  34.805  Treasury Inspector General.

    In addition to other authorities available under the Act, the Office 
of the Inspector General of the Department of the Treasury is authorized 
to conduct, supervise, and coordinate audits and investigations of 
activities funded through grants under the Act.



PART 35_PANDEMIC RELIEF PROGRAMS--Table of Contents



       Subpart A_Coronavirus State and Local Fiscal Recovery Funds

Sec.
35.1 Purpose.
35.2 Applicability.
35.3 Definitions.
35.4 Reservation of authority, reporting.
35.5 Use of funds.
35.6 Eligible uses.
35.7 Pensions.
35.8 Tax.
35.9 Compliance with applicable laws.
35.10 Recoupment.
35.11 Payments to States.
35.12 Distributions to nonentitlement units of local government and 
          units of general local government.

            Subpart B_Compensation and Capital Distributions

35.20 Purpose, applicability, and general provisions.
35.21 Definitions.
35.22 Restrictions on compensation.
35.23 Restrictions on dividends, share buybacks, and other capital 
          distributions.
35.24 Annual certification.
35.25 Exemptive relief.

 Subpart C_State Small Business Credit Initiative Small Business Owners 
                      Demographics Data Collection

35.26 Authority, scope, and purpose.
35.27 Definitions.
35.28 Annual report requirements.
35.29 Format.

Appendix A to Part 35--Emergency Capital Investment Program Model 
          Excessive or Luxury Expenditures Policy

    Authority: 42 U.S.C. 802(f); 42 U.S.C. 803(f); 31 U.S.C. 321; 12 
U.S.C. 5701-5710; Division N, Title V, Subtitle B, Pub. L. 116-260, 134 
Stat. 1182 (12 U.S.C. 4703a); Section 104A, Pub. L. 103-325, 108 Stat. 
2160, as amended (12 U.S.C. 4701 et seq.); Pub. L. 117-2, 135 Stat. 4 
(42 U.S.C. 802 et seq.).

    Source: 86 FR 13455, Mar. 9, 2021, unless otherwise noted.



       Subpart A_Coronavirus State and Local Fiscal Recovery Funds

    Source: 87 FR 4446, Jan. 27, 2022, unless otherwise noted.

[[Page 398]]



Sec.  35.1  Purpose.

    This part implements section 9901 of the American Rescue Plan Act 
(Subtitle M of Title IX of Pub. L. 117-2), which amends Title VI of the 
Social Security Act (42 U.S.C. 801 et seq.) by adding sections 602 and 
603 to establish the Coronavirus State Fiscal Recovery Fund and 
Coronavirus Local Fiscal Recovery Fund.



Sec.  35.2  Applicability.

    This part applies to states, territories, Tribal governments, 
metropolitan cities, nonentitlement units of local government, counties, 
and units of general local government that accept a payment or transfer 
of funds made under section 602 or 603 of the Social Security Act.



Sec.  35.3  Definitions.

    Baseline means tax revenue of the recipient for its fiscal year 
ending in 2019, adjusted for inflation in each reporting year using the 
Bureau of Economic Analysis's Implicit Price Deflator for the gross 
domestic product of the United States.
    Capital expenditures has the same meaning given in 2 CFR 200.1.
    County means a county, parish, or other equivalent county division 
(as defined by the Census Bureau).
    Covered benefits include, but are not limited to, the costs of all 
types of leave (vacation, family-related, sick, military, bereavement, 
sabbatical, jury duty), employee insurance (health, life, dental, 
vision), retirement (pensions, 401(k)), unemployment benefit plans 
(Federal and State), workers' compensation insurance, and Federal 
Insurance Contributions Act taxes (which includes Social Security and 
Medicare taxes).
    Covered change means a change in law, regulation, or administrative 
interpretation that reduces any tax (by providing for a reduction in a 
rate, a rebate, a deduction, a credit, or otherwise) or delays the 
imposition of any tax or tax increase. A change in law includes any 
final legislative or regulatory action, a new or changed administrative 
interpretation, and the phase-in or taking effect of any statute or rule 
if the phase-in or taking effect was not prescribed prior to the start 
of the covered period.
    Covered period means, with respect to a state or territory, the 
period that:
    (1) Begins on March 3, 2021; and
    (2) Ends on the last day of the fiscal year of such State or 
territory in which all funds received by the State or territory from a 
payment made under section 602 or 603 of the Social Security Act have 
been expended or returned to, or recovered by, the Secretary.
    COVID-19 means the Coronavirus Disease 2019.
    COVID-19 public health emergency means the period beginning on 
January 27, 2020 and lasting until the termination of the national 
emergency concerning the COVID-19 outbreak declared pursuant to the 
National Emergencies Act (50 U.S.C. 1601 et seq.).
    Deposit means an extraordinary payment of an accrued, unfunded 
liability. The term deposit does not refer to routine contributions made 
by an employer to pension funds as part of the employer's obligations 
related to payroll, such as either a pension contribution consisting of 
a normal cost component related to current employees or a component 
addressing the amortization of unfunded liabilities calculated by 
reference to the employer's payroll costs.
    Eligible employer means an employer of an eligible worker who 
performs essential work.
    Eligible workers means workers needed to maintain continuity of 
operations of essential critical infrastructure sectors, including 
health care; emergency response; sanitation, disinfection, and cleaning 
work; maintenance work; grocery stores, restaurants, food production, 
and food delivery; pharmacy; biomedical research; behavioral health 
work; medical testing and diagnostics; home- and community-based health 
care or assistance with activities of daily living; family or childcare; 
social services work; public health work; vital services to Tribes; any 
work performed by an employee of a State, local, or Tribal government; 
educational work, school nutrition work, and other work required to 
operate a school facility; laundry work; elections work; solid waste or

[[Page 399]]

hazardous materials management, response, and cleanup work; work 
requiring physical interaction with patients; dental care work; 
transportation and warehousing; work at hotel and commercial lodging 
facilities that are used for COVID-19 mitigation and containment; work 
in a mortuary; and work in critical clinical research, development, and 
testing necessary for COVID-19 response.
    (1) With respect to a recipient that is a metropolitan city, 
nonentitlement unit of local government, or county, workers in any 
additional non-public sectors as each chief executive officer of such 
recipient may designate as critical to protect the health and well-being 
of the residents of their metropolitan city, nonentitlement unit of 
local government, or county; or
    (2) With respect to a State, territory, or Tribal government, 
workers in any additional non-public sectors as each Governor of a State 
or territory, or each Tribal government, may designate as critical to 
protect the health and well-being of the residents of their State, 
territory, or Tribal government.
    Essential work means work that:
    (1) Is not performed while teleworking from a residence; and
    (2) Involves:
    (i) Regular in-person interactions with patients, the public, or 
coworkers of the individual that is performing the work; or
    (ii) Regular physical handling of items that were handled by, or are 
to be handled by patients, the public, or coworkers of the individual 
that is performing the work.
    Funds means, with respect to a recipient, amounts provided to the 
recipient pursuant to a payment made under section 602(b) or 603(b) of 
the Social Security Act or transferred to the recipient pursuant to 
section 603(c)(4) of the Social Security Act.
    General revenue means money that is received from tax revenue, 
current charges, and miscellaneous general revenue, excluding refunds 
and other correcting transactions and proceeds from issuance of debt or 
the sale of investments, agency or private trust transactions, and 
intergovernmental transfers from the Federal Government, including 
transfers made pursuant to section 9901 of the American Rescue Plan Act. 
General revenue also includes revenue from liquor stores that are owned 
and operated by state and local governments. General revenue does not 
include revenues from utilities, except recipients may choose to include 
revenue from utilities that are part of their own government as general 
revenue provided the recipient does so consistently over the remainder 
of the period of performance. Revenue from Tribal business enterprises 
must be included in general revenue.
    Intergovernmental transfers means money received from other 
governments, including grants and shared taxes.
    Low-income household means a household with:
    (1) Income at or below 185 percent of the Federal Poverty Guidelines 
for the size of its household based on the poverty guidelines published 
most recently by the Department of Health and Human Services; or
    (2) Income at or below 40 percent of the Area Median Income for its 
county and size of household based on data published most recently by 
the Department of Housing and Urban Development.
    Micro-business means a small business that has five or fewer 
employees, one or more of whom owns the small business.
    Moderate-income household means a household with:
    (1) Income at or below 300 percent of the Federal Poverty Guidelines 
for the size of its household based on poverty guidelines published most 
recently by the Department of Health and Human Services; or
    (2) Income at or below 65 percent of the Area Median Income for its 
county and size of household based on data published most recently by 
the Department of Housing and Urban Development.
    Metropolitan city has the meaning given that term in section 
102(a)(4) of the Housing and Community Development Act of 1974 (42 
U.S.C. 5302(a)(4)) and includes cities that relinquish or defer their 
status as a metropolitan city for purposes of receiving allocations 
under section 106 of such Act (42 U.S.C. 5306) for fiscal year 2021.

[[Page 400]]

    Net reduction in total spending is measured as the State or 
territory's total spending for a given reporting year excluding its 
spending of funds, subtracted from its total spending for its fiscal 
year ending in 2019, adjusted for inflation using the Bureau of Economic 
Analysis's Implicit Price Deflator for the gross domestic product of the 
United States for that reporting year.
    Nonentitlement unit of local government means a ``city,'' as that 
term is defined in section 102(a)(5) of the Housing and Community 
Development Act of 1974 (42 U.S.C. 5302(a)(5)), that is not a 
metropolitan city.
    Nonprofit means a nonprofit organization that is exempt from Federal 
income taxation and that is described in section 501(c)(3) or 501(c)(19) 
of the Internal Revenue Code.
    Obligation means an order placed for property and services and 
entering into contracts, subawards, and similar transactions that 
require payment.
    Pension fund means a defined benefit plan and does not include a 
defined contribution plan.
    Period of performance means the time period described in Sec.  35.5 
during which a recipient may obligate and expend funds in accordance 
with sections 602(c)(1) and 603(c)(1) of the Social Security Act and 
this subpart.
    Premium pay means an amount of up to $13 per hour that is paid to an 
eligible worker, in addition to wages or remuneration the eligible 
worker otherwise receives, for all work performed by the eligible worker 
during the COVID-19 public health emergency. Such amount may not exceed 
$25,000 in total over the period of performance with respect to any 
single eligible worker. Premium pay may be awarded to non-hourly and 
part-time eligible workers performing essential work. Premium pay will 
be considered to be in addition to wages or remuneration the eligible 
worker otherwise receives if, as measured on an hourly rate, the premium 
pay is:
    (1) With regard to work that the eligible worker previously 
performed, pay and remuneration equal to the sum of all wages and 
remuneration previously received plus up to $13 per hour with no 
reduction, substitution, offset, or other diminishment of the eligible 
worker's previous, current, or prospective wages or remuneration; or
    (2) With regard to work that the eligible worker continues to 
perform, pay of up to $13 per hour that is in addition to the eligible 
worker's regular rate of wages or remuneration, with no reduction, 
substitution, offset, or other diminishment of the worker's current and 
prospective wages or remuneration.
    Qualified census tract has the same meaning given in 26 U.S.C. 
42(d)(5)(B)(ii)(I).
    Recipient means a State, territory, Tribal government, metropolitan 
city, nonentitlement unit of local government, county, or unit of 
general local government that receives a payment made under section 
602(b) or 603(b) of the Social Security Act or transfer pursuant to 
section 603(c)(4) of the Social Security Act.
    Reporting year means a single year or partial year within the 
covered period, aligned to the current fiscal year of the State or 
territory during the covered period.
    Secretary means the Secretary of the Treasury.
    State means each of the 50 States and the District of Columbia.
    Small business means a business concern or other organization that:
    (1) Has no more than 500 employees or, if applicable, the size 
standard in number of employees established by the Administrator of the 
Small Business Administration for the industry in which the business 
concern or organization operates, and
    (2) Is a small business concern as defined in section 3 of the Small 
Business Act (15 U.S.C. 632).
    Tax revenue means revenue received from a compulsory contribution 
that is exacted by a government for public purposes excluding refunds 
and corrections and, for purposes of Sec.  35.8, intergovernmental 
transfers. Tax revenue does not include payments for a special privilege 
granted or service rendered, employee or employer assessments and 
contributions to finance retirement and social insurance trust systems, 
or special assessments to pay for capital improvements.

[[Page 401]]

    Territory means the Commonwealth of Puerto Rico, the United States 
Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, 
or American Samoa.
    Title I eligible schools means schools eligible to receive services 
under section 1113 of Title I, Part A of the Elementary and Secondary 
Education Act of 1965, as amended (20 U.S.C. 6313), including schools 
served under section 1113(b)(1)(C) of that Act.
    Tribal enterprise means a business concern:
    (1) That is wholly owned by one or more Tribal governments, or by a 
corporation that is wholly owned by one or more Tribal governments; or
    (2) That is owned in part by one or more Tribal governments, or by a 
corporation that is wholly owned by one or more Tribal governments, if 
all other owners are either United States citizens or small business 
concerns, as these terms are used and consistent with the definitions in 
15 U.S.C. 657a(b)(2)(D).
    Tribal government means the recognized governing body of any Indian 
or Alaska Native Tribe, band, nation, pueblo, village, community, 
component band, or component reservation, individually identified 
(including parenthetically) in the list published on January 29, 2021, 
pursuant to section 104 of the Federally Recognized Indian Tribe List 
Act of 1994 (25 U.S.C. 5131).
    Unemployment rate means the U-3 unemployment rate provided by the 
Bureau of Labor Statistics as part of the Local Area Unemployment 
Statistics program, measured as total unemployment as a percentage of 
the civilian labor force.
    Unemployment trust fund means an unemployment trust fund established 
under section 904 of the Social Security Act (42 U.S.C. 1104).
    Unit of general local government has the meaning given to that term 
in section 102(a)(1) of the Housing and Community Development Act of 
1974 (42 U.S.C. 5302(a)(1)).



Sec.  35.4  Reservation of authority, reporting.

    (a) Reservation of authority. Nothing in this part shall limit the 
authority of the Secretary to take action to enforce conditions or 
violations of law, including actions necessary to prevent evasions of 
this subpart.
    (b) Extensions or accelerations of timing. The Secretary may extend 
or accelerate any deadline or compliance date of this part, including 
reporting requirements that implement this subpart, if the Secretary 
determines that such extension or acceleration is appropriate. In 
determining whether an extension or acceleration is appropriate, the 
Secretary will consider the period of time that would be extended or 
accelerated and how the modified timeline would facilitate compliance 
with this subpart.
    (c) Reporting and requests for other information. During the period 
of performance, recipients shall provide to the Secretary periodic 
reports providing detailed accounting of the uses of funds, 
modifications to a State or Territory's tax revenue sources, and such 
other information as the Secretary may require for the administration of 
this section. In addition to regular reporting requirements, the 
Secretary may request other additional information as may be necessary 
or appropriate, including as may be necessary to prevent evasions of the 
requirements of this subpart. False statements or claims made to the 
Secretary may result in criminal, civil, or administrative sanctions, 
including fines, imprisonment, civil damages and penalties, debarment 
from participating in Federal awards or contracts, and/or any other 
remedy available by law.



Sec.  35.5  Use of funds.

    (a) In general. A recipient may only use funds to cover costs 
incurred during the period beginning March 3, 2021, and ending December 
31, 2024, for one or more of the purposes enumerated in sections 
602(c)(1) and 603(c)(1) of the Social Security Act, as applicable, 
including those enumerated in Sec.  35.6, subject to the restrictions 
set forth in sections 602(c)(2) and 603(c)(2) of the Social Security 
Act, as applicable.
    (b) Costs incurred. A cost shall be considered to have been incurred 
for purposes of paragraph (a) of this section if the recipient has 
incurred an obligation with respect to such cost by December 31, 2024.

[[Page 402]]

    (c) Return of funds. A recipient must return any funds not obligated 
by December 31, 2024. A recipient must also return funds obligated by 
December 31, 2024 but not expended by December 31, 2026.



Sec.  35.6  Eligible uses.

    (a) In general. Subject to Sec. Sec.  35.7 and 35.8, a recipient may 
use funds for one or more of the purposes described in paragraphs (b) 
through (f) of this section.
    (b) Responding to the public health emergency or its negative 
economic impacts. A recipient may use funds to respond to the public 
health emergency or its negative economic impacts if the use meets the 
criteria provided in paragraph (b)(1) of this section or is enumerated 
in paragraph (b)(3) of this section; provided that, in the case of a use 
of funds for a capital expenditure under paragraphs (b)(1) or (b)(3) of 
this section, the use of funds must also meet the criteria provided in 
paragraph (b)(4) of this section. Treasury may also articulate 
additional eligible programs, services, or capital expenditures from 
time to time that satisfy the eligibility criteria of this paragraph 
(b), which shall be eligible under this paragraph (b).
    (1) Identifying eligible responses to the public health emergency or 
its negative economic impacts. (i) A program, service, or capital 
expenditure is eligible under this paragraph (b)(1) if a recipient 
identifies a harm or impact to a beneficiary or class of beneficiaries 
caused or exacerbated by the public health emergency or its negative 
economic impacts and the program, service, or capital expenditure 
responds to such harm.
    (ii) A program, service, or capital expenditure responds to a harm 
or impact experienced by an identified beneficiary or class of 
beneficiaries if it is reasonably designed to benefit the beneficiary or 
class of beneficiaries that experienced the harm or impact and is 
related and reasonably proportional to the extent and type of harm or 
impact experienced.
    (2) Identified harms: Presumptions of impacted and 
disproportionately impacted beneficiaries. A recipient may rely on the 
following presumptions to identify beneficiaries presumptively impacted 
or disproportionately impacted by the public health emergency or its 
negative economic impacts for the purpose of providing a response under 
paragraph (b)(1) or (b)(3) of this section:
    (i) Households or populations that experienced unemployment; 
experienced increased food or housing insecurity; qualify for the 
Children's Health Insurance Program (42 U.S.C. 1397aa et seq.), 
Childcare Subsidies through the Child Care and Development Fund Program 
(42 U.S.C. 9857 et seq. and 42 U.S.C. 618), or Medicaid (42 U.S.C. 1396 
et seq.); if funds are to be used for affordable housing programs, 
qualify for the National Housing Trust Fund (12 U.S.C. 4568) or the Home 
Investment Partnerships Program (42 U.S.C. 12721 et seq.); if funds are 
to be used to address impacts of lost instructional time for students in 
kindergarten through twelfth grade, any student who did not have access 
to in-person instruction for a significant period of time; and low- and 
moderate-income households and populations are presumed to be impacted 
by the public health emergency or its negative economic impacts;
    (ii) The general public is presumed to be impacted by the public 
health emergency for the purposes of providing the uses set forth in 
subparagraphs (b)(3)(i)(A) and (b)(3)(i)(C); and
    (iii) The following households, communities, small businesses, and 
nonprofit organizations are presumed to be disproportionately impacted 
by the public health emergency or its negative economic impacts:
    (A) Households and populations residing in a qualified census tract; 
households and populations receiving services provided by Tribal 
governments; households and populations residing in the territories; 
households and populations receiving services provided by territorial 
governments; low-income households and populations; households that 
qualify for Temporary Assistance for Needy Families (42 U.S.C. 601 et 
seq.), the Supplemental Nutrition Assistance Program (7 U.S.C. 2011 et 
seq.), Free and Reduced Price School Lunch and/or Breakfast programs (42 
U.S.C. 1751 et seq. and 42 U.S.C. 1773), Medicare Part D Low-income 
Subsidies

[[Page 403]]

(42 U.S.C. 1395w-114), Supplemental Security Income (42 U.S.C. 1381 et 
seq.), Head Start (42 U.S.C. 9831 et seq.), Early Head Start (42 U.S.C. 
9831 et seq.), the Special Supplemental Nutrition Program for Women, 
Infants, and Children (42 U.S.C. 1786), Section 8 Vouchers (42 U.S.C. 
1437f), the Low-Income Home Energy Assistance Program (42 U.S.C. 8621 et 
seq.), Pell Grants (20 U.S.C. 1070a), and, if SLFRF funds are to be used 
for services to address educational disparities, Title I eligible 
schools;
    (B) Small businesses operating in a qualified census tract, operated 
by Tribal governments or on Tribal lands, or operating in the 
territories; and
    (C) Nonprofit organizations operating in a qualified census tract, 
operated by Tribal governments or on Tribal lands, or operating in the 
territories.
    (3) Enumerated eligible uses: Responses presumed reasonably 
proportional. A recipient may use funds to respond to the public health 
emergency or its negative economic impacts on a beneficiary or class of 
beneficiaries for one or more of the following purposes unless such use 
is grossly disproportionate to the harm caused or exacerbated by the 
public health emergency or its negative economic impacts:
    (i) Responding to the public health impacts of the public health 
emergency for purposes including:
    (A) COVID-19 mitigation and prevention in a manner that is 
consistent with recommendations and guidance from the Centers for 
Disease Control and Prevention, including vaccination programs and 
incentives; testing programs; contact tracing; isolation and quarantine; 
mitigation and prevention practices in congregate settings; acquisition 
and distribution of medical equipment for prevention and treatment of 
COVID-19, including personal protective equipment; COVID-19 prevention 
and treatment expenses for public hospitals or health care facilities, 
including temporary medical facilities; establishing or enhancing public 
health data systems; installation and improvement of ventilation systems 
in congregate settings, health facilities, or other public facilities; 
and assistance to small businesses, nonprofits, or impacted industries 
to implement mitigation measures;
    (B) Medical expenses related to testing and treating COVID-19 that 
are provided in a manner consistent with recommendations and guidance 
from the Centers for Disease Control and Prevention, including emergency 
medical response expenses, treatment of long-term symptoms or effects of 
COVID-19, and costs to medical providers or to individuals for testing 
or treating COVID-19;
    (C) Behavioral health care, including prevention, treatment, 
emergency or first-responder programs, harm reduction, supports for 
long-term recovery, and behavioral health facilities and equipment; and
    (D) Preventing and responding to increased violence resulting from 
the public health emergency, including community violence intervention 
programs, or responding to increased gun violence resulting from the 
public health emergency, including payroll and covered benefits 
associated with community policing strategies; enforcement efforts to 
reduce gun violence; and investing in technology and equipment;
    (ii) Responding to the negative economic impacts of the public 
health emergency for purposes including:
    (A) Assistance to households and individuals, including:
    (1) Assistance for food; emergency housing needs; burials, home 
repairs, or weatherization; internet access or digital literacy; cash 
assistance; and assistance accessing public benefits;
    (2) Paid sick, medical, or family leave programs, or assistance to 
expand access to health insurance;
    (3) Childcare, early learning services, home visiting, or assistance 
for child welfare-involved families or foster youth;
    (4) Programs to address the impacts of lost instructional time for 
students in kindergarten through twelfth grade;
    (5) Development, repair, and operation of affordable housing and 
services or programs to increase long-term housing security;
    (6) Financial services that facilitate the delivery of Federal, 
State, or local benefits for unbanked and underbanked individuals;
    (7) Benefits for the surviving family members of individuals who 
have died

[[Page 404]]

from COVID-19, including cash assistance to surviving spouses or 
dependents of individuals who died of COVID-19;
    (8) Assistance for individuals who want and are available for work, 
including those who are unemployed, have looked for work sometime in the 
past 12 months, who are employed part time but who want and are 
available for full-time work, or who are employed but seeking a position 
with greater opportunities for economic advancement;
    (9) Facilities and equipment related to the provision of services to 
households provided in subparagraphs (b)(3)(ii)(A)(1)-(8);
    (10) The following expenses related to Unemployment Trust Funds:
    (i) Contributions to a recipient Unemployment Trust Fund and 
repayment of principal amounts due on advances received under Title XII 
of the Social Security Act (42 U.S.C. 1321) up to an amount equal to the 
difference between the balance in the recipient's Unemployment Trust 
Fund as of January 27, 2020 and the balance of such account as of May 
17, 2021 plus the principal amount outstanding as of May 17, 2021 on any 
advances received under Title XII of the Social Security Act between 
January 27, 2020 and May 17, 2021; provided that if a recipient repays 
principal on Title XII advances or makes a contribution to an 
Unemployment Trust Fund after April 1, 2022, such recipient shall not 
reduce average weekly benefit amounts or maximum benefit entitlements 
prior to December 31, 2024; and
    (ii) Any interest due on such advances received under Title XII of 
the Social Security Act (42 U.S.C. 1321); and
    (11) A program, service, capital expenditure, or other assistance 
that is provided to a disproportionately impacted household, population, 
or community, including:
    (i) Services to address health disparities of the disproportionately 
impacted household, population, or community;
    (ii) Housing vouchers and relocation assistance;
    (iii) Investments in communities to promote improved health outcomes 
and public safety such as parks, recreation facilities, and programs 
that increase access to healthy foods;
    (iv) Capital expenditures and other services to address vacant or 
abandoned properties;
    (v) Services to address educational disparities; and
    (vi) Facilities and equipment related to the provision of these 
services to the disproportionately impacted household, population, or 
community.
    (B) Assistance to small businesses, including:
    (1) Programs, services, or capital expenditures that respond to the 
negative economic impacts of the COVID-19 public health emergency, 
including loans or grants to mitigate financial hardship such as 
declines in revenues or impacts of periods of business closure, or 
providing technical assistance; and
    (2) A program, service, capital expenditure, or other assistance 
that responds to disproportionately impacted small businesses, including 
rehabilitation of commercial properties; storefront and fa[ccedil]ade 
improvements; technical assistance, business incubators, and grants for 
start-ups or expansion costs for small businesses; and programs or 
services to support micro-businesses;
    (C) Assistance to nonprofit organizations including programs, 
services, or capital expenditures, including loans or grants to mitigate 
financial hardship such as declines in revenues or increased costs, or 
technical assistance;
    (D) Assistance to tourism, travel, hospitality, and other impacted 
industries for programs, services, or capital expenditures, including 
support for payroll costs and covered benefits for employees, 
compensating returning employees, support for operations and maintenance 
of existing equipment and facilities, and technical assistance; and
    (E) Expenses to support public sector capacity and workforce, 
including:
    (1) Payroll and covered benefit expenses for public safety, public 
health, health care, human services, and similar employees to the extent 
that the employee's time is spent mitigating or responding to the COVID-
19 public health emergency;
    (2) Payroll, covered benefit, and other costs associated with 
programs

[[Page 405]]

or services to support the public sector workforce and with the 
recipient:
    (i) Hiring or rehiring staff to fill budgeted full-time equivalent 
positions that existed on January 27, 2020 but that were unfilled or 
eliminated as of March 3, 2021; or
    (ii) Increasing the number of its budgeted full-time equivalent 
employees by up to the difference between the number of its budgeted 
full-time equivalent employees on January 27, 2020, multiplied by 1.075, 
and the number of its budgeted full-time equivalent employees on March 
3, 2021, provided that funds shall only be used for additional budgeted 
full-time equivalent employees above the recipient's number of budgeted 
full-time equivalent employees as of March 3, 2021;
    (3) Costs to improve the design and execution of programs responding 
to the COVID-19 pandemic and to administer or improve the efficacy of 
programs addressing the public health emergency or its negative economic 
impacts; and
    (4) Costs associated with addressing administrative needs of 
recipient governments that were caused or exacerbated by the pandemic.
    (4) Capital expenditures. A recipient, other than a Tribal 
government, must prepare a written justification for certain capital 
expenditures according to Table 1 to paragraph (b)(4) of this section. 
Such written justification must include the following elements:
    (i) Describe the harm or need to be addressed;
    (ii) Explain why a capital expenditure is appropriate; and
    (iii) Compare the proposed capital expenditure to at least two 
alternative capital expenditures and demonstrate why the proposed 
capital expenditure is superior.

                       Table 1 to Paragraph (b)(4)
------------------------------------------------------------------------
                                    and the use is    and the use is not
 If a project has total expected     enumerated in       enumerated in
     capital expenditures of         (b)(3), then        (b)(3), then
------------------------------------------------------------------------
Less than $1 million............  No Written          No Written
                                   Justification       Justification
                                   required.           required.
Greater than or equal to $1       Written             Written
 million, but less than $10        Justification       Justification
 million.                          required but        required and
                                   recipients are      recipients must
                                   not required to     submit as part of
                                   submit as part of   regular reporting
                                   regular reporting   to Treasury.
                                   to Treasury.
$10 million or more.............  Written
                                   Justification
                                   required and
                                   recipients must
                                   submit as part of
                                   regular reporting
                                   to Treasury.
------------------------------------------------------------------------

    (c) Providing premium pay to eligible workers. A recipient may use 
funds to provide premium pay to eligible workers of the recipient who 
perform essential work or to provide grants to eligible employers that 
have eligible workers who perform essential work, provided that any 
premium pay or grants provided under this paragraph (c) must respond to 
eligible workers performing essential work during the COVID-19 public 
health emergency. A recipient uses premium pay or grants provided under 
this paragraph (c) to respond to eligible workers performing essential 
work during the COVID-19 public health emergency if:
    (1) The eligible worker's total wages and remuneration, including 
the premium pay, is less than or equal to 150 percent of the greater of 
such eligible worker's residing State's or county's average annual wage 
for all occupations as defined by the Bureau of Labor Statistics' 
Occupational Employment and Wage Statistics;
    (2) The eligible worker is not exempt from the Fair Labor Standards 
Act overtime provisions (29 U.S.C. 207); or
    (3) The recipient has submitted to the Secretary a written 
justification that explains how providing premium pay to the eligible 
worker is responsive to the eligible worker performing essential work 
during the COVID-19 public health emergency (such as a description of 
the eligible workers' duties, health, or financial risks faced due to 
COVID-19, and why the recipient determined that the premium pay was 
responsive despite the worker's higher income).
    (d) Providing government services. A recipient may use funds for the 
provision of government services to the extent of the reduction in the 
recipient's general

[[Page 406]]

revenue due to the public health emergency, calculated according to this 
paragraph (d). A recipient must make a one-time election to calculate 
the amount of the reduction in the recipient's general revenue due to 
the public health emergency according to either paragraph (d)(1) or 
(d)(2) of this section:
    (1) Standard allowance. The reduction in the recipient's general 
revenue due to the public health emergency over the period of 
performance will be deemed to be ten million dollars; or
    (2) Formula. The reduction in the recipient's general revenue due to 
the public health emergency over the period of performance equals the 
sum of the reduction in revenue, calculated as of each date identified 
in paragraph (d)(2)(i) of this section and according to the formula in 
paragraph (d)(2)(ii) of this section:
    (i) A recipient must make a one-time election to calculate the 
reduction in its general revenue using information as of either:
    (A) December 31, 2020, December 31, 2021, December 31, 2022, and 
December 31, 2023; or
    (B) The last day of each of the recipient's fiscal years ending in 
2020, 2021, 2022, and 2023.
    (ii) A reduction in a recipient's general revenue for each date 
identified in paragraph (d)(2)(i) of this section equals:

Max {[Base Year Revenue * (1 + Growth 
          Adjustment)[supcaret](nt/12)]-Actual General 
          Revenue; 0{time} 
    Where:
    (A) Base Year Revenue is the recipient's general revenue for the 
most recent full fiscal year prior to the COVID-19 public health 
emergency;
    (B) Growth Adjustment is equal to the greater of 5.2 percent (or 
0.052) and the recipient's average annual revenue growth over the three 
full fiscal years prior to the COVID-19 public health emergency;
    (C) n equals the number of months elapsed from the end of the base 
year to the calculation date;
    (D) Subscript t denotes the specific calculation date; and
    (E) Actual General Revenue is a recipient's actual general revenue 
collected during the 12-month period ending on each calculation date 
identified in paragraph (d)(2)(i) of this section, except:
    (1) For purposes of all calculation dates on or after April 1, 2022, 
in the case of any change made after January 6, 2022 to any law, 
regulation, or administrative interpretation that reduces any tax (by 
providing for a reduction in a rate, a rebate, a deduction, a credit, or 
otherwise) or delays the imposition of any tax or tax increase and that 
the recipient assesses has had the effect of decreasing the amount of 
tax revenue collected during the 12-month period ending on the 
calculation date relative to the amount of tax revenue that would have 
been collected in the absence of such change, the recipient must add to 
actual general revenue the amount of such decrease in tax revenue;
    (2) For purposes of any calculation date on or after April 1, 2022, 
in the case of any change made after January 6, 2022 to any law, 
regulation, or administrative interpretation that increases any tax (by 
providing for an increase in a rate, the reduction of a rebate, a 
deduction, or a credit, or otherwise) or accelerates the imposition of 
any tax or tax increase and that the recipient assesses has had the 
effect of increasing the amount of tax revenue collected during the 12-
month period ending on the calculation date relative to the amount of 
tax revenue that would have been collected in the absence of such 
change, the recipient must subtract from actual general revenue the 
amount of such increase in tax revenue;
    (3) If the recipient makes a one-time election to adjust general 
revenue to reflect tax changes made during the period beginning on 
January 27, 2020 and ending on January 6, 2022, for purposes of each 
calculation date identified in paragraph (d)(2)(i) of this section:
    (i) In the case of any change made during such prior period to any 
law, regulation, or administrative interpretation that reduces any tax 
(by providing for a reduction in a rate, a rebate, a deduction, a 
credit, or otherwise) or delays the imposition of any tax or tax 
increase and that the recipient assesses has had the effect of 
decreasing the amount of tax revenue collected during the 12-month 
period

[[Page 407]]

ending on the calculation date relative to the amount of tax revenue 
that would have been collected in the absence of such change, the 
recipient must add to actual general revenue the amount of such decrease 
in tax revenue; and
    (ii) In the case of any change made during such prior period to any 
law, regulation, or administrative interpretation that increases any tax 
(by providing for an increase in a rate, the reduction of a rebate, a 
deduction, or a credit, or otherwise) or accelerates the imposition of 
any tax or tax increase and that the recipient assesses has had the 
effect of increasing the amount of tax revenue collected during the 12-
month period ending on the calculation date relative to the amount of 
tax revenue that would have been collected in the absence of such 
change, the recipient must subtract from actual general revenue the 
amount of such increase in tax revenue; and
    (4) With respect to any calculation date during the period beginning 
on January 6, 2022 and ending on March 31, 2022, if the recipient makes 
the election in paragraph (d)(3) of this section, the recipient must 
also make the adjustments referenced in paragraph (d)(3) of this section 
with respect to any such changes in law, regulation, or administrative 
interpretation during the period beginning on January 6, 2022 and ending 
on such calculation date.
    (e) Making necessary investments in water, sewer, and broadband 
infrastructure. A recipient may use funds to make the following 
investments in water, sewer, and broadband infrastructure.
    (1) Water and sewer investments--(i) Clean Water State Revolving 
Fund projects. Projects or activities of the type that meet the 
eligibility requirements of section 603(c) of the Federal Water 
Pollution Control Act (33 U.S.C. 1383(c));
    (ii) Additional stormwater projects. Projects to manage, reduce, 
treat, or recapture stormwater or subsurface drainage water regardless 
of whether such projects would improve water quality if such projects 
would otherwise meet the eligibility requirements of section 603(c)(5) 
of the Federal Water Pollution Control Act (33 U.S.C. 1383(c)(5));
    (iii) Drinking Water State Revolving Fund projects. Projects or 
activities of the type that meet the eligibility requirements of section 
1452 of the Safe Drinking Water Act (42 U.S.C. 300j-12) as implemented 
by the regulations adopted by the Environmental Protection Agency (EPA) 
under 40 CFR 35.3520, provided that:
    (A) The recipient is not required to comply with the limitation 
under 40 CFR 35.3520(c)(2) to acquisitions of land from willing sellers 
or the prohibition under 40 CFR 35.3520(e)(6) on uses of funds for 
certain Tribal projects; and
    (B) In the case of lead service line replacement projects, the 
recipient must replace the full length of the service line and may not 
replace only a partial portion of the service line.
    (iv) Additional lead remediation and household water quality 
testing. Projects or activities to address lead in drinking water or 
provide household water quality testing that are within the scope of the 
programs the EPA is authorized to establish under sections 1459A(b)(2), 
1459B(b)(1), 1464(d)(2), and 1465 of the Safe Drinking Water Act (42 
U.S.C. 300j-19a(b)(2), 300j-19b(b)(1), 300j-24(d)(2), and 300j-25), 
provided that:
    (A) In the case of lead service line replacement projects, the 
recipient must replace the full length of the service line and may not 
replace only a partial portion of the service line; and
    (B) In the case of projects within the scope of the program the EPA 
is authorized to establish under section 1459B(b)(1) of the Safe 
Drinking Water Act, the recipient may determine the income eligibility 
of homeowners served by lead service line replacement projects in its 
discretion.
    (v) Drinking water projects to support increased population. 
Projects of the type that meet the eligibility requirements of 40 CFR 
35.3520 other than the requirement of subparagraph (b)(1) of such 
regulation to address present or prevent future violations of health-
based drinking water standards, if the following conditions are met:
    (A) The project is needed to support increased population, with need 
assessed as of the time the project is undertaken;

[[Page 408]]

    (B) The project is designed to support no more than a reasonable 
level of projected increased need, whether due to population growth or 
otherwise;
    (C) The project is a cost-effective means for achieving the desired 
level of service; and
    (D) The project is projected to continue to provide an adequate 
level of drinking water over its estimated useful life.
    (vi) Dams and reservoirs. Rehabilitation of dams and reservoirs if 
the following conditions are met:
    (A) The project meets the requirements of 40 CFR 35.3520 other than 
the following requirements:
    (1) The prohibition on the rehabilitation of dams and reservoirs in 
40 CFR 35.3520(e)(1) and (3); and
    (2) The requirement in 40 CFR 35.3520(b)(1) that the project is 
needed to address present or prevent future violations of health-based 
drinking water standards, provided that if the dam or reservoir project 
does not meet this requirement, the project must be needed to support 
increased population, with need assessed as of the time the project is 
undertaken, and the project must be projected to continue to provide an 
adequate level of drinking water over its estimated useful life;
    (B) The primary purpose of the dam or reservoir is for drinking 
water supply;
    (C) The project is needed for the provision of drinking water 
supply, with need assessed as of the time the project is initiated;
    (D) The project is designed to support no more than a reasonable 
level of projected increased need, whether due to population growth or 
otherwise; and
    (E) The project is a cost-effective means for achieving the desired 
level of service.
    (vii) Private wells. Rehabilitation of private wells, testing 
initiatives to identify contaminants in private wells, and treatment 
activities and remediation projects that address contamination in 
private wells, if the project meets the requirements of 40 CFR 35.3520 
other than the limitation to certain eligible systems under 40 CFR 
35.3520(a).
    (2) Broadband investments--(i) General. Broadband infrastructure if 
the following conditions are met:
    (A) The broadband infrastructure is designed to provide service to 
households and businesses with an identified need, as determined by the 
recipient, for such infrastructure;
    (B) The broadband infrastructure is designed to, upon completion:
    (1) Reliably meet or exceed symmetrical 100 Mbps download speed and 
upload speeds; or
    (2) In cases where it is not practicable, because of the excessive 
cost of the project or geography or topography of the area to be served 
by the project, to provide service reliably meeting or exceeding 
symmetrical 100 Mbps download speed and upload speeds:
    (i) Reliably meet or exceed 100 Mbps download speed and between at 
least 20 Mbps and 100 Mbps upload speed; and
    (ii) Be scalable to a minimum of 100 Mbps download speed and 100 
Mbps upload speed; and
    (C) The service provider for a completed broadband infrastructure 
investment project that provides service to households is required, for 
as long as the SLFRF-funded broadband infrastructure is in use, by the 
recipient to:
    (1) Participate in the Federal Communications Commission's 
Affordable Connectivity Program (ACP) through the lifetime of the ACP; 
or
    (2) Otherwise provide access to a broad-based affordability program 
to low-income consumers in the proposed service area of the broadband 
infrastructure that provides benefits to households commensurate with 
those provided under the ACP through the lifetime of the ACP.
    (ii) Cybersecurity infrastructure investments. Cybersecurity 
infrastructure investments that are designed to improve the reliability 
and resiliency of new and existing broadband infrastructure. Such 
investments may include the addition or modernization of network 
security hardware and software tools designed to strengthen 
cybersecurity for the end-users of these networks.
    (f) Meeting the non-federal matching requirements for Bureau of 
Reclamation projects. A recipient may use funds to

[[Page 409]]

meet the non-federal matching requirements of any authorized Bureau of 
Reclamation project.



Sec.  35.7  Pensions.

    A recipient (other than a Tribal government) may not use funds for 
deposit into any pension fund.



Sec.  35.8  Tax.

    (a) Restriction. A State or Territory shall not use funds to either 
directly or indirectly offset a reduction in the net tax revenue of the 
State or Territory resulting from a covered change during the covered 
period.
    (b) Violation. Treasury will consider a State or Territory to have 
used funds to offset a reduction in net tax revenue if, during a 
reporting year:
    (1) Covered change. The State or Territory has made a covered change 
that, either based on a reasonable statistical methodology to isolate 
the impact of the covered change in actual revenue or based on 
projections that use reasonable assumptions and do not incorporate the 
effects of macroeconomic growth to reduce or increase the projected 
impact of the covered change, the State or Territory assesses has had or 
predicts to have the effect of reducing tax revenue relative to current 
law;
    (2) Exceeds the de minimis threshold. The aggregate amount of the 
measured or predicted reductions in tax revenue caused by covered 
changes identified under paragraph (b)(1) of this section, in the 
aggregate, exceeds 1 percent of the State's or Territory's baseline;
    (3) Reduction in net tax revenue. The State or Territory reports a 
reduction in net tax revenue, measured as the difference between actual 
tax revenue and the State's or Territory's baseline, each measured as of 
the end of the reporting year; and
    (4) Consideration of other changes. The aggregate amount of measured 
or predicted reductions in tax revenue caused by covered changes is 
greater than the sum of the following, in each case, as calculated for 
the reporting year:
    (i) The aggregate amount of the expected increases in tax revenue 
caused by one or more covered changes that, either based on a reasonable 
statistical methodology to isolate the impact of the covered change in 
actual revenue or based on projections that use reasonable assumptions 
and do not incorporate the effects of macroeconomic growth to reduce or 
increase the projected impact of the covered change, the State or 
Territory assesses has had or predicts to have the effect of increasing 
tax revenue; and
    (ii) Reductions in spending, up to the amount of the State's or 
Territory's net reduction in total spending, that are in:
    (A) Departments, agencies, or authorities in which the State or 
Territory is not using funds; and
    (B) Departments, agencies, or authorities in which the State or 
Territory is using funds, in an amount equal to the value of the 
spending cuts in those departments, agencies, or authorities, minus 
funds used.
    (c) Amount and revenue reduction cap. If a State or Territory is 
considered to be in violation pursuant to paragraph (b) of this section, 
the amount used in violation of paragraph (a) of this section is equal 
to the lesser of:
    (1) The reduction in net tax revenue of the State or Territory for 
the reporting year, measured as the difference between the State's or 
Territory's baseline and its actual tax revenue, each measured as of the 
end of the reporting year; and,
    (2) The aggregate amount of the reductions in tax revenues caused by 
covered changes identified in paragraph (b)(1) of this section, minus 
the sum of the amounts in identified in paragraphs (b)(4)(i) and (ii) of 
this section.



Sec.  35.9  Compliance with applicable laws.

    A recipient must comply with all other applicable Federal statutes, 
regulations, and executive orders, and a recipient shall provide for 
compliance with the American Rescue Plan Act, this subpart, and any 
interpretive guidance by other parties in any agreements it enters into 
with other parties relating to these funds.



Sec.  35.10  Recoupment.

    (a) Identification of violations--(1) In general. Any amount used in 
violation of Sec.  35.5, 35.6, or 35.7 may be identified at any time 
prior to December 31, 2026.

[[Page 410]]

    (2) Annual reporting of amounts of violations. On an annual basis, a 
recipient that is a State or territory must calculate and report any 
amounts used in violation of Sec.  35.8.
    (b) Calculation of amounts subject to recoupment--(1) In general. 
Except as provided in paragraph (b)(2) of this section, the Secretary 
will calculate any amounts subject to recoupment resulting from a 
violation of Sec.  35.5, 35.6 or 35.7 as the amounts used in violation 
of such restrictions.
    (2) Violations of Sec.  35.8. The Secretary will calculate any 
amounts subject to recoupment resulting from a violation of Sec.  35.8, 
equal to the lesser of:
    (i) The amount set forth in Sec.  35.8(c); and,
    (ii) The amount of funds received by such recipient.
    (c) Initial notice. If the Secretary calculates an amount subject to 
recoupment under paragraph (b) of this section, Treasury will provide 
the recipient an initial written notice of the amount subject to 
recoupment along with an explanation of such amounts.
    (d) Request for reconsideration. Unless the Secretary extends or 
accelerates the time period, within 60 calendar days of receipt of an 
initial notice of recoupment provided under paragraph (c) of this 
section, a recipient may submit a written request to the Secretary 
requesting reconsideration of any amounts subject to recoupment under 
paragraph (b) of this section. To request reconsideration of any amounts 
subject to recoupment, a recipient must submit to the Secretary a 
written request that includes:
    (1) An explanation of why the recipient believes all or some of the 
amount should not be subject to recoupment; and
    (2) A discussion of supporting reasons, along with any additional 
information.
    (e) Final amount subject to recoupment. Unless the Secretary extends 
or accelerates the time period, within 60 calendar days of receipt of 
the recipient's request for reconsideration provided pursuant to 
paragraph (d) of this section or the expiration of the period for 
requesting reconsideration provided under paragraph (d), the recipient 
will be notified of the Secretary's decision to affirm, withdraw, or 
modify the notice of recoupment. Such notification will include an 
explanation of the decision, including responses to the recipient's 
supporting reasons and consideration of additional information provided. 
A recipient must invoke and exhaust the procedures available under this 
subpart prior to seeking judicial review of a decision under Sec.  
35.10.
    (f) Repayment of funds. Unless the Secretary extends or accelerates 
the time period, a recipient shall repay to the Secretary any amounts 
subject to recoupment in accordance with instructions provided by the 
Secretary:
    (1) Within 120 calendar days of receipt of the notice of recoupment 
provided under paragraph (c) of this section, in the case of a recipient 
that does not submit a request for reconsideration in accordance with 
the requirements of paragraph (d) of this section; or
    (2) Within 120 calendar days of receipt of the Secretary's decision 
under paragraph (e) of this section, in the case of a recipient that 
submits a request for reconsideration in accordance with the 
requirements of paragraph (d) of this section.
    (g) Other remedial actions. Prior to seeking recoupment or taking 
other appropriate action pursuant to paragraph (c), (d), (e), or (f) of 
this section, the Secretary may notify the recipient of potential 
violations and provide the recipient an opportunity for informal 
consultation and remediation.



Sec.  35.11  Payments to States.

    (a) In general. With respect to any State or Territory that has an 
unemployment rate as of the date that it submits an initial 
certification for payment of funds pursuant to section 602(d)(1) of the 
Social Security Act that is less than two percentage points above its 
unemployment rate in February 2020, the Secretary will withhold 50 
percent of the amount of funds allocated under section 602(b) of the 
Social Security Act to such State or territory until at least May 10, 
2022 and not more than twelve months from the date such initial 
certification is provided to the Secretary.
    (b) Payment of withheld amount. In order to receive the amount 
withheld

[[Page 411]]

under paragraph (a) of this section, the State or Territory must submit 
to the Secretary the following information:
    (1) A certification, in the form provided by the Secretary, that 
such State or Territory requires the payment to carry out the activities 
specified in section 602(c) of the Social Security Act and will use the 
payment in compliance with section 602(c) of the Social Security Act; 
and
    (2) Any reports required to be filed by that date pursuant to this 
part that have not yet been filed.



Sec.  35.12  Distributions to nonentitlement units of local government
and units of general local government.

    (a) Nonentitlement units of local government. Each State or 
Territory that receives a payment from the Secretary pursuant to section 
603(b)(2)(B) of the Social Security Act shall distribute the amount of 
the payment to nonentitlement units of local government in such State or 
Territory in accordance with the requirements set forth in section 
603(b)(2)(C) of the Social Security Act and without offsetting any debt 
owed by such nonentitlement units of local governments against such 
payments.
    (b) Budget cap. A State or Territory may not make a payment to a 
nonentitlement unit of local government pursuant to section 603(b)(2)(C) 
of the Social Security Act and paragraph (a) of this section in excess 
of the amount equal to 75 percent of the most recent budget for the 
nonentitlement unit of local government as of January 27, 2020. For 
purposes of this section 35.12, a nonentitlement unit of local 
government's most recent budget shall mean the nonentitlement unit of 
local government's total annual budget, including both operating and 
capital expenditure budgets, in effect as of January 27, 2020. A State 
or Territory shall permit a nonentitlement unit of local government 
without a formal budget as of January 27, 2020, to provide a 
certification from an authorized officer of the nonentitlement unit of 
local government of its most recent annual expenditures as of January 
27, 2020, and a State or Territory may rely on such certification for 
purposes of complying with this section 35.12.
    (c) Units of general local government. Each State or Territory that 
receives a payment from the Secretary pursuant to section 
603(b)(3)(B)(ii) of the Social Security Act, in the case of an amount to 
be paid to a county that is not a unit of general local government, 
shall distribute the amount of the payment to units of general local 
government within such county in accordance with the requirements set 
forth in section 603(b)(3)(B)(ii) of the Social Security Act and without 
offsetting any debt owed by such units of general local government 
against such payments.
    (d) Additional conditions. A State or Territory may not place 
additional conditions or requirements on distributions to nonentitlement 
units of local government or units of general local government beyond 
those required by section 603 of the Social Security Act or this 
subpart.



            Subpart B_Compensation and Capital Distributions



Sec.  35.20  Purpose, applicability, and general provisions.

    (a) Purpose. Pursuant Section 104A of the Community Development 
Banking and Financial Institutions Act of 1994 (Act), as added by the 
Consolidated Appropriations Act, 2021 (Pub. L. 116-260), this subpart 
establishes restrictions on executive compensation, dividend payments, 
and share buybacks for recipients of capital investments under the 
Department of the Treasury's Emergency Capital Investment Program (ECIP 
or Program), as well as additional criteria for participation in the 
Program that the Secretary has determined are appropriate in furtherance 
of the Program goals.
    (b) Applicability. This subpart applies on a consolidated basis to 
any insured depository institution, bank holding company, savings and 
loan holding company, or federally insured credit union that issues 
preferred stock or a subordinated debt instrument to the Department of 
the Treasury under the Program (an ECIP recipient, as defined in Sec.  
35.21 of this subpart). An ECIP recipient must comply with the 
requirements of this subpart during the ECIP period.

[[Page 412]]

    (c) Limitation of authority. Nothing in this subpart shall be 
interpreted to limit the authority of the appropriate Federal banking 
agency to take action under other provisions of law, including action to 
address unsafe or unsound practices or conditions, deficient capital 
levels, or violations of law or regulation, under section 8 of the 
Federal Deposit Insurance Act, section 8 of the Bank Holding Company 
Act, or section 10 of the Home Owners' Loan Act, or the Federal Credit 
Union Act, as may be applicable.



Sec.  35.21  Definitions.

    Except as modified in this regulation or unless the context 
otherwise requires, the terms used in this regulation have the same 
meaning as set forth in the relevant statutes. For purposes of this 
subpart:
    Act means the Community Development Banking and Financial 
Institutions Act of 1994, as amended (12 U.S.C. 4701 et seq.).
    Appropriate Federal banking agency has the same meaning as in 12 
U.S.C. 1813 and also includes the NCUA with respect to a federally 
insured credit union.
    Capital distributions means:
    (1) Dividends, including discretionary dividends, on non-senior 
securities and any other payments on a share of stock or other equity or 
equivalent interest;
    (2) Payments, including interest payments, on non-senior securities, 
that the issuer has full discretion to permanently or temporarily 
suspend without triggering a default;
    (3) Redemptions or repurchases of non-senior securities; or
    (4) Any similar transaction that the Department of the Treasury 
determines to be in substance a capital distribution;
    (5) Provided, that a ``capital distribution'' does not include:
    (i) Redemptions or repurchases of shares that are part of an 
employee stock ownership plan for an ECIP recipient that is not publicly 
traded, provided that the repurchase is required solely by virtue of the 
Employee Retirement Income Security Act of 1974, as amended;
    (ii) In the case of federally insured credit unions:
    (A) Payments of dividends and interest (as defined by 12 CFR 
707.2(h) and (o)) on accounts held by their members; provided that this 
exclusion does not apply to any extraordinary or special dividend by a 
credit union; or
    (B) Redemptions of membership share interests upon voluntary or 
involuntary terminations of membership by a credit union or its members, 
as applicable; and
    (iii) Solely in the case of Sec.  35.23(b) (Limit on amount of 
capital distributions), redemptions or repurchases of non-senior 
securities if the issuer of the non-senior securities being repurchased 
or redeemed fully funds the redemption or repurchase by issuing at least 
a corresponding amount of new non-senior securities that rank equally in 
liquidation with, receive the same capital treatment as and, if 
applicable, have a stated maturity date no earlier than the non-senior 
securities being redeemed or repurchased.
    ECIP means the Emergency Capital Investment Program established 
under Section 104A of the Community Development Banking and Financial 
Institutions Act of 1994, as amended.
    ECIP investment means any preferred stock, subordinated debt, or 
other instrument (including any successor to any such instrument) issued 
by an ECIP recipient to the Department of the Treasury under the ECIP.
    ECIP investment agreement means the agreement between an ECIP 
recipient and the Department of the Treasury with respect to the ECIP 
investment in that ECIP recipient.
    ECIP investment date means the date on which an ECIP recipient first 
issued an ECIP investment.
    ECIP period means the period from the ECIP investment date until the 
earliest of:
    (1) The date on which the ECIP recipient has fully redeemed or 
repaid the ECIP investment received under ECIP;
    (2) The date on which the investment the ECIP recipient received 
under the ECIP is no longer held, in full or in part, by the Department 
of the Treasury or any affiliate thereof; and
    (3) Ten years after the ECIP investment date.

[[Page 413]]

    ECIP recipient means any entity that has received a capital 
investment under the ECIP.
    Excessive or luxury expenditures means:
    (1) Excessive expenditures on any of the following to the extent 
such expenditures are not reasonable expenditures for staff development, 
reasonable performance incentives, or other similar reasonable measures 
conducted in the normal course of the ECIP recipient's business 
operations:
    (i) Entertainment or events;
    (ii) Office and facility renovations;
    (iii) Aviation or other transportation services;
    (iv) Tax gross-ups; and
    (v) Other similar items, activities, or events for which the ECIP 
recipient may reasonably anticipate incurring expenses, or reimbursing 
an employee for incurring expenses;
    (2) Provided, that reasonable capital investments in technology, 
equipment, and similar items that expand the long-term capability of an 
ECIP recipient to provide products and services to its customers and 
community are not excessive or luxury expenditures.
    Excessive or luxury expenditures policy means written standards 
applicable to the ECIP recipient and its employees that address the five 
categories of expenses set forth in the definition of ``excessive or 
luxury expenditures,'' and that are reasonably designed to eliminate 
excessive and luxury expenditures. Such written standards must:
    (1) Identify the types or categories of expenditures which are 
prohibited (which may include a threshold expenditure amount per item, 
activity, or event or a threshold expenditure amount per employee 
receiving the item or participating in the activity or event);
    (2) Identify the types or categories of expenditures for which prior 
approval is required (which may include a threshold expenditure amount 
per item, activity, or event or a threshold expenditure amount per 
employee receiving the item or participating in the activity or event);
    (3) Provide reasonable approval procedures for expenditures 
requiring prior approval;
    (4) Require the ECIP recipient to deliver a certification, executed 
by two senior executive officers (one of which must be its principal 
executive officer or principal financial officer) certifying that the 
approval of any expenditure requiring the prior approval of any senior 
executive officer, any executive officer of a substantially similar 
level of responsibility, or the ECIP recipient's board of directors (or 
a committee of such board of directors), was properly obtained with 
respect to each such expenditure;
    (5) Require the prompt internal reporting of violations to an 
appropriate person or persons identified in this policy; and
    (6) Mandate accountability for adherence to the policy.
    FDIC means the Federal Deposit Insurance Corporation.
    Federal Reserve Board means the Board of Governors of the Federal 
Reserve System.
    NCUA means the National Credit Union Administration.
    Non-senior security means any equity interest or equivalent interest 
(including but not limited to membership share interests in the case of 
a credit union) or any other interest in, or instrument issued by, an 
ECIP recipient that is pari passu with, or junior to, the ECIP 
investment with respect to capital distributions or ranking in 
liquidation, including but not limited to the common stock (or 
equivalent equity interest) of the ECIP recipient, or any equity 
interest or equivalent interest or any other interest in or instrument 
issued by a depository institution holding company of which the ECIP 
recipient is a subsidiary.
    OCC means the Office of the Comptroller of the Currency.
    Principal executive officer means the chief executive officer of an 
ECIP recipient (or individual performing a similar function).
    Principal financial officer means the chief financial officer of an 
ECIP recipient (or individual performing a similar function).
    Senior executive officer means an ECIP recipient's president, any 
vice president in charge of a principal business unit, division or 
function, any other officer who performs a policy making

[[Page 414]]

function, or any other person who performs similar policy making 
functions.
    Severance payment means any payment or benefit provided to an 
officer or employee of an ECIP recipient in connection with any 
termination of such officer or employee's employment with the ECIP 
recipient (including resignation, severance, retirement, or constructive 
termination), except for payment for services performed or benefits 
accrued. A severance payment includes cash payments, health care 
benefits, perquisites, the enhancement or acceleration of any payment or 
vesting of any payment or benefit, or any other in-kind benefit payable 
or provided in connection with any termination of an officer or employee 
of the ECIP recipient.
    Total compensation means all compensation, other than any severance 
payment, provided by an ECIP recipient to an officer or employee, 
including salary, wages, bonuses, awards of stock, deferred 
compensation, and other financial benefits.



Sec.  35.22  Restrictions on compensation.

    (a) Restriction on executive compensation. An ECIP recipient must 
ensure that the total compensation paid to its senior executive officers 
is appropriate and not excessive. Unless informed otherwise by the 
Department of the Treasury, an ECIP recipient is considered to have 
satisfied the requirements regarding executive compensation in this 
section if it, and, if applicable, all insured depository institution 
subsidiaries of the ECIP recipient, maintains compliance with the 
following (or any successor requirement, as applicable):
    (1) For an ECIP recipient or subsidiary of an ECIP recipient that is 
an insured depository institution, except for federally insured credit 
unions, the Interagency Guidelines Establishing Standards for Safety and 
Soundness as issued by the appropriate Federal banking agency for the 
ECIP recipient or subsidiary (i.e., for national banks and Federal 
savings associations, 12 CFR part 30, appendix A; state member banks, 12 
CFR part 208, appendix D-1; insured state nonmember banks and state 
savings associations, 12 CFR part 364, appendix A);
    (2) For an ECIP recipient that is a bank holding company, the 
requirements for corporate practices of bank holding companies as issued 
by the Federal Reserve Board at 12 CFR 225.4;
    (3) For an ECIP recipient that is a savings and loan holding 
company, the requirements regarding safe and sound operations of savings 
and loan holding companies as issued by the Federal Reserve Board at 12 
CFR 238.8; and
    (4) For an ECIP recipient that is a federally insured credit union, 
the requirements on compensation and benefits for federally insured 
credit unions as issued by the NCUA at 12 CFR 701.19(a); 12 CFR 
701.21(c)(8); 12 CFR 702.203(b)(10); and 12 CFR 702.204(b)(10).
    (b) Restriction on severance payments. An ECIP recipient shall not 
make excessive severance payments to any senior executive officer. 
Unless informed otherwise by the Department of the Treasury, an ECIP is 
considered to have satisfied the requirements regarding severance 
payments in this section if it maintains compliance with the following 
(or any successor requirement, as applicable):
    (1) For an ECIP recipient that is an insured depository institution, 
a bank holding company or a savings and loan holding company, the limits 
and prohibitions to enter into contracts to pay and to make golden 
parachute and indemnification payments to institution-affiliated parties 
to the extent applicable to the ECIP recipient, as issued by the FDIC at 
12 CFR part 359; and
    (2) For an ECIP recipient that is a federally insured credit union, 
the limits and prohibitions on the ability of federally insured credit 
unions to enter into contracts to pay and to make golden parachute and 
indemnification payments to institution-affiliated parties as issued by 
the NCUA at 12 CFR 750.1.
    (c) Excessive or luxury expenditures. (1) Ninety days after an ECIP 
investment date with respect to an ECIP recipient, the board of 
directors of the ECIP recipient must adopt an excessive or luxury 
expenditures policy, provide such policy to the Department of the 
Treasury and the ECIP recipient's appropriate Federal banking agency, 
and post the text of such policy on its

[[Page 415]]

internet website, if the ECIP recipient maintains an internet website.
    (2) If, after adopting an excessive or luxury expenditures policy, 
the board of directors of the ECIP recipient makes any material 
amendments to such policy, within ninety days of the adoption of the 
amended policy the board of directors must provide the amended policy to 
the Department of the Treasury and the ECIP recipient's appropriate 
Federal banking agency and post the amended policy on its internet 
website, if the ECIP recipient maintains an internet website.
    (3) The ECIP recipient must maintain, and continue the disclosure of 
any material amendments to, the excessive or luxury expenditures policy 
during the ECIP period, unless the Department of the Treasury determines 
that discontinuation of the policy would not be contrary to the public 
interest.
    (d) Material changes in policies or procedures. An ECIP recipient 
must obtain prior approval from the Department of the Treasury before 
making any material change to the policies or procedures that it 
maintains for purposes of compliance with paragraph (a), (b), or (c) of 
this section. A change to the compensation, severance pay, or excessive 
or luxury expenditures policies or procedures will be considered 
material for purposes of this section if the change is likely to have a 
negative effect on the financial condition of the ECIP recipient, limit 
the ability of the ECIP recipient to make payments under the terms of an 
ECIP instrument, or otherwise impair the ECIP recipient's ability to 
meet its obligations to the Department of the Treasury under the ECIP.
    (1) A request to make a material change to compensation, severance 
pay or excessive luxury expenditures policies or procedures, must be 
submitted by an ECIP recipient in writing and received by the Department 
of the Treasury at least thirty days prior to the effective date of the 
policy change. The request should describe the change, reason for the 
change, and anticipated financial or other impact of the change on the 
condition of the ECIP recipient.
    (2) The request will be deemed approved thirty days after the ECIP 
recipient has provided a complete request to the Department of the 
Treasury, unless, prior to the expiration of the thirty-day period, the 
Department of the Treasury objects to the proposed change or notifies 
the ECIP recipient that additional time is required in order to complete 
review of the proposed change to policy or procedures



Sec.  35.23  Restrictions on dividends, share buybacks, and other capital
distributions.

    (a) Restriction on capital distributions due to nonpayment. An ECIP 
recipient shall not make any capital distribution on a non-senior 
security, unless:
    (1) If the ECIP investment is in the form of preferred stock, the 
ECIP recipient has paid in full the dividends for the last completed 
dividend period on the preferred stock; or
    (2) If the ECIP investment is in a form other than preferred stock 
(including, subordinated debt), the ECIP recipient has paid in full the 
principal, interest, and other amounts due and payable under the terms 
of the ECIP investment, and no amount that has been deferred remains 
unpaid.
    (b) Limit on amount of capital distributions. (1) If an ECIP 
recipient is an insured depository institution, bank holding company, or 
savings and loan holding company, the ECIP recipient shall obtain the 
approval of the Department of the Treasury prior to making any capital 
distribution if the total of capital distributions made during the 
calendar year, including the proposed capital distribution, exceeds its 
eligible distributable income; provided, however, that any prior 
approval of a capital distribution by the Department of the Treasury 
does not supersede any applicable regulatory requirements of the ECIP 
recipient's appropriate Federal banking agency, or other actions taken 
by such agency. For purposes of this paragraph, ``eligible distributable 
income'' means the sum of the ECIP recipient's reported year-to-date net 
income as of the end of the most recent calendar quarter, plus net 
income for the two preceding calendar years, less any dividends or 
distributions for the year to date as of the end of the most recent 
calendar quarter and the two preceding calendar years, where each

[[Page 416]]

amount is calculated in accordance with the instructions to the Call 
Report or applicable reporting form.
    (2) If the ECIP recipient is federally insured credit union, the 
ECIP recipient shall obtain the Department of the Treasury's prior 
approval to make any capital distributions if the distribution would:
    (i) In the case of a dividend, be payable from retained earnings (as 
defined in 12 CFR 702.2(f)) other than undivided earnings; or
    (ii) Cause the ECIP recipient's net worth classification to fall 
below ``adequately capitalized'' (as defined in 12 CFR 702.102(a)(2)).
    (c) Exception for Subchapter S Corporations and other pass-through 
entities. Notwithstanding anything to the contrary in paragraphs (a) and 
(b) of this section, any ECIP recipient that is an S corporation, as 
defined in 26 U.S.C. 1361(a), or other pass-through entity may make 
capital distributions, to the extent reasonably required to cover its 
owners' tax obligations in respect to the entity's earnings. Such 
distributions shall be subject to an annual reconciliation, with any 
surplus or deficiency to be deducted or added to distributions, as 
applicable, in the following year. Any tax-related distributions 
permitted under this paragraph (c) must also comply with any applicable 
limitations or determinations established by an ECIP recipient's Federal 
regulators.



Sec.  35.24  Annual certification.

    On an annual basis an ECIP recipient shall, in accordance with the 
terms and conditions of its ECIP investment agreement, submit to the 
Department of the Treasury a certification executed by two senior 
executive officers (one of which must be either its principal executive 
officer or principal financial officer) that the ECIP recipient is in 
compliance with each of the excessive compensation, severance pay, and 
excessive or luxury expenditures requirements and restrictions on 
capital distributions set forth in Sec. Sec.  35.22 and 35.23.



Sec.  35.25  Exemptive relief.

    The Department of the Treasury may grant exemptions or waivers from 
some or all of the restrictions on share buybacks and dividend payments 
under this part if such exemption or waiver is necessary or appropriate 
to effectuate the goals of the ECIP or to protect the public interest. 
Such exemptions or waivers may be subject to such terms and conditions 
as deemed necessary or appropriate by the Department of the Treasury.



 Subpart C_State Small Business Credit Initiative Small Business Owners 
                      Demographics Data Collection

    Source: 87 FR 13633, Mar. 10, 2022, unless otherwise noted.



Sec.  35.26  Authority, scope, and purpose.

    (a) Authority and scope. This subpart is issued by the U.S. 
Department of the Treasury pursuant to Sections 3007 and 3010 of the 
Small Business Jobs Act of 2010, as amended by the American Rescue Plan 
Act of 2021 (12 U.S.C. 5706, 5709).
    (b) Purpose. The U.S. Department of the Treasury is collecting 
demographics-related data regarding those who own or control businesses 
that receive a loan, investment, other credit or equity support, or 
technical assistance under the State Small Business Credit Initiative 
for purposes of implementation, compliance, and understanding program 
outcomes.



Sec.  35.27  Definitions.

    In this subpart:
    (a) Controlling influence over a business means having the power to 
control, manage, or direct the business. A person is presumed to have a 
controlling influence over a business if the person is a senior 
executive officer or senior manager of the business (e.g., Chief 
Executive Officer, Chief Financial Officer, Chief Operating Officer), or 
any other individual who regularly performs similar functions.
    (b) Jurisdiction means:
    (1) One of the fifty states of the United States;
    (2) The District of Columbia, the Commonwealth of Puerto Rico, the 
Commonwealth of Northern Mariana

[[Page 417]]

Islands, Guam, American Samoa, and the United States Virgin Islands;
    (3) When designated by one of the fifty states of the United States, 
a political subdivision of that state that the U.S. Department of the 
Treasury determines has the capacity to participate in the State Small 
Business Credit Initiative;
    (4) Under the circumstances described in 12 U.S.C. 5703(d), a 
municipality of one of the fifty states of the United States to which 
the U.S. Department of the Treasury has given a special permission under 
12 U.S.C. 5703(d); and
    (5) A Tribal government or a group of Tribal governments that 
jointly apply to be approved by the U.S. Department of Treasury to 
participate in the State Small Business Credit Initiative as a single 
participating jurisdiction.
    (c) Minority individual means a natural person who identifies as 
American Indian or Alaska Native; Asian; Black or African American; 
Native Hawaiian or Other Pacific Islander; or Hispanic or Latino/a; or 
one or more than one of these groups.
    (d) Minority-owned or controlled business means a business that:
    (1) If privately owned, 51 percent or more is owned by minority 
individuals;
    (2) If publicly owned, 51 percent or more of the stock is owned by 
minority individuals;
    (3) In the case of a mutual institution, a majority of the board of 
directors, account holders, and the community which the institution 
services is predominantly comprised of minority individuals; or
    (4) One or more minority individuals have the power to exercise a 
controlling influence over the business.
    (e) Participating jurisdiction means a jurisdiction that has been 
approved by the U.S. Department of the Treasury for participation in the 
State Small Business Credit Initiative.
    (f) Principal owner of a business means a natural person who 
directly or indirectly, through any contract, arrangement, 
understanding, relationship or otherwise, owns 25 percent or more of the 
equity interests of the business. If a trust owns, directly or 
indirectly, through any contract, arrangement, understanding, 
relationship or otherwise, 25 percent or more of the equity interests of 
the business, the trustee is a principal owner.
    (g) Socially and economically disadvantaged individual (SEDI) 
demographics-related business means a business owned and controlled by 
individuals who have had their access to credit on reasonable terms 
diminished compared to others in comparable economic circumstances, due 
to their:
    (1) Membership of a group that has been subjected to racial or 
ethnic prejudice or cultural bias within American society;
    (2) Gender;
    (3) Veteran status;
    (4) Limited English proficiency;
    (5) Disability;
    (6) Long-term residence in an environment isolated from the 
mainstream of American society;
    (7) Membership of a federally or state-recognized Indian Tribe;
    (8) Long-term residence in a rural community;
    (9) Residence in a U.S. territory;
    (10) Residence in a community undergoing economic transitions 
(including communities impacted by the shift towards a net-zero economy 
or deindustrialization); or
    (11) Membership of an underserved community.
    (i) Underserved communities are populations sharing a particular 
characteristic, as well as geographic communities, that have been 
systematically denied a full opportunity to participate in aspects of 
economic, social, and civic life, as exemplified by the list in the 
definition of equity in paragraph (g)(11)(ii) of this section; and
    (ii) Equity is consistent and systematic fair, just, and impartial 
treatment of all individuals, including individuals who belong to 
underserved communities that have been denied such treatment, such as 
Black, Latino, and Indigenous and Native American persons, Asian 
Americans and Pacific Islanders, and other persons of color; members of 
religious minorities; lesbian, gay, bisexual, transgender, and queer 
(LGBTQ+) persons; persons with disabilities; persons who live in rural 
areas; and persons otherwise adversely affected by persistent poverty or 
inequality.

[[Page 418]]

    (12) For purposes of this paragraph (g), a business is ``owned and 
controlled'' by applicable individuals:
    (i) If privately owned, 51 percent or more is owned by such 
individuals;
    (ii) If publicly owned, 51 percent more or of the stock is owned by 
such individuals; and
    (ii) In the case of a mutual institution, if a majority of the board 
of directors, account holders, and the community which the institution 
services is predominantly comprised of such individuals.
    (h) Veteran-owned or controlled business means a business that:
    (1) If privately owned, 51 percent or more is owned by veterans;
    (2) If publicly owned, 51 percent or more of the stock is owned by 
veterans;
    (3) In the case of a mutual institution, a majority of the board of 
directors, account holders, and the community which the institution 
services is predominantly comprised of veterans; or
    (4) One or more individuals who are veterans have the power to 
exercise a controlling influence over the business.
    (i) Women-owned or controlled business means a business that:
    (1) If privately owned, 51 percent or more is owned by females;
    (2) If publicly owned, 51 percent or more of the stock is owned by 
females;
    (3) In the case of a mutual institution, a majority of the board of 
directors, account holders, and the community which the institution 
services is predominantly comprised of females; or
    (4) One or more individuals who are females have the power to 
exercise a controlling influence over the business.



Sec.  35.28  Annual report requirements.

    By March 31 of each year beginning March 31, 2023, and ending with 
the report to be submitted on March 31, 2028, each participating 
jurisdiction shall submit to the U.S. Department of the Treasury an 
annual report that includes, with respect to the previous calendar year, 
the following data for each business that receives a loan, investment, 
other credit or equity support, or technical assistance as part of the 
State Small Business Credit Initiative. For each business that receives 
a loan, investment, or other credit or equity support under the State 
Small Business Credit Initiative, the reported data shall be based on 
the ownership and control of the business immediately before the 
consummation of such loan, investment, or other credit or equity 
support-related transaction. For each business that receives technical 
assistance under the State Small Business Credit Initiative, the 
reported data shall be based on the ownership and control of the 
business at the time it receives such technical assistance.
    (a) Self-certified SEDI demographics-related business status. (1) 
Indicate which one or more of the following categories apply: Self-
certified due to membership of a group that has been subjected to racial 
or ethnic prejudice or cultural bias within American society; self-
certified due to gender; self-certified due to veteran status; self-
certified due to limited English proficiency; self-certified due to 
disability; self-certified due to long-term residence in an environment 
isolated from the mainstream of American society; self-certified due to 
membership of a federally or state-recognized Indian Tribe; self-
certified due to long-term residence in a rural community; self-
certified due to residence in a U.S. territory; self-certified due to 
residence in a community undergoing economic transitions (including 
communities impacted by the shift towards a net-zero economy or 
deindustrialization); self-certified due to membership of an 
``underserved community'' as defined in Sec.  35.27(g)(11)(i); none of 
the preceding categories are applicable; prefer not to respond; or the 
business did not answer.
    (2) The participating jurisdiction must permit each business to 
identify all of the categories that apply in the definition of SEDI 
demographics-related business, and the participating jurisdiction must 
report to Treasury all categories identified by the business.
    (b) Minority-owned or controlled business status. Indicate whether 
the business is a minority-owned or controlled business. The 
participating jurisdiction must indicate yes; no; prefer not to respond; 
or that the business did not answer.

[[Page 419]]

    (c) Women-owned or controlled business status. Indicate whether the 
business is a women-owned or controlled business. The participating 
jurisdiction must indicate yes; no; prefer not to respond; or that the 
business did not answer.
    (d) Veteran-owned or controlled business status. Indicate whether 
the business is a veteran-owned or controlled business. The 
participating jurisdiction must indicate yes; no; prefer not to respond; 
or that the business did not answer.
    (e) Race of principal owners. (1) For each principal owner of the 
business, indicate which one or more of the following race categories 
(including the Office of Management and Budget's minimum categories and 
the relevant disaggregated categories) with which the principal owner 
identifies: American Indian or Alaska Native; Asian; Asian disaggregated 
categories: Indian, Chinese, Filipino, Japanese, Korean, Vietnamese, 
Asian (Other); Black or African American; Native Hawaiian or Other 
Pacific Islander; Native Hawaiian or Other Pacific Islander 
disaggregated categories: Guamanian or Chamorro, Native Hawaiian, 
Samoan, Pacific Islander (Other); White; prefer not to respond; or that 
the business did not answer.
    (2) The participating jurisdiction must permit each business to 
identify all of the Office of Management and Budget's minimum categories 
and disaggregated categories in paragraph (e)(1) of this section with 
which each principal owner of the business identifies, and the 
participating jurisdiction must report to Treasury all categories 
identified by the business.
    (f) Ethnicity of principal owners. For each principal owner of the 
business, indicate which of the following ethnicity categories the 
principal owner identifies with: Hispanic or Latino/a; not Hispanic or 
Latino/a; prefer not to respond; or that the business did not answer.
    (g) Middle Eastern or North African Ancestry of principal owners. 
For each principal owner of the business, indicate which of the 
following ancestry categories the principal owner identifies with: 
Middle Eastern or North African; not Middle Eastern or North African; 
prefer not to respond; or that the business did not answer.
    (h) Gender of principal owners. For each principal owner of the 
business, indicate which of the following gender categories the 
principal owner identifies with: Female; male; nonbinary; prefer to 
self-describe, prefer not to respond; or that the business did not 
answer. If the ``prefer to self-describe'' option is chosen, the 
participating jurisdiction must provide an option for the business to 
write in the gender and must report what the business writes in.
    (i) Sexual orientation of principal owners. For each principal owner 
of the business, indicate which of the following sexual orientation 
categories the principal owner identifies with: Gay or lesbian; 
bisexual; straight, that is, not gay, lesbian, or bisexual; something 
else; prefer not to respond; or that the business did not answer.
    (j) Veteran status of principal owners. For each principal owner of 
the business, indicate which of the following categories the principal 
owner identifies with: Veteran; non-veteran; prefer not to respond; or 
that the business did not answer.



Sec.  35.29  Format.

    Participating jurisdictions must submit the information required 
under Sec.  35.28 using the formats specified from time to time on the 
U.S. Department of the Treasury's website.



 Sec. Appendix A to Part 35--Emergency Capital Investment Program Model 
                 Excessive or Luxury Expenditures Policy

                             I. Introduction

    A participant in the Emergency Capital Investment Program (ECIP 
recipient, as defined at 31 CFR 35.21) is required to establish and 
maintain policies designed to eliminate excessive or luxury 
expenditures. The term ``excessive or luxury expenditures'' means 
excessive expenditures on any of the following to the extent such 
expenditures are not reasonable expenditures for staff development, 
reasonable performance incentives, or other similar reasonable measures 
conducted in the normal course of the ECIP recipient's business 
operations: (1) Entertainment or events; (2) office and facility 
renovations; (3) aviation or other transportation

[[Page 420]]

services; (4) tax gross-ups; and (5) other similar items, activities, or 
events for which the ECIP recipient may reasonably anticipate incurring 
expenses, or reimbursing an employee for incurring expenses.
    (1) To facilitate compliance with this requirement, the Department 
of the Treasury is making available a model excessive or luxury 
expenditures policy. An ECIP recipient may refer to this model policy 
for guidance in satisfying the requirement at 31 CFR 35.22(c) to adopt 
and maintain an excessive or luxury expenditures policy. Alternatively, 
ECIP recipients may use other forms of, or existing policies relating 
to, excessive or luxury expenditures, provided that such other forms or 
policies satisfy all the requirements of the regulation at 31 CFR 
35.22(c).
    (2) An ECIP recipient's luxury or excessive expenditure policy 
should be posted on the ECIP recipient's website. Any material 
amendments to an ECIP recipient's excessive or luxury expenditures 
policy must made in accordance with the provisions set forth in 31 CFR 
35.22(d) (Material changes in policies or procedures). If the ECIP 
recipient makes any material amendments to this policy, then the ECIP 
recipient must submit a copy of the amended policy to the Department of 
the Treasury and post the amended policy on the ECIP recipient's 
website. ECIP recipients should refer to 31 CFR part 35, subpart B for 
additional information regarding definitions of terms used in the model 
policy, disclosure, material changes, certification, and other 
compliance requirements.

            II. Model Excessive or Luxury Expenditures Policy

                               A. Purpose

    The purpose of this policy is to establish parameters and internal 
controls governing the expenditures of [NAME OF ECIP RECIPIENT] 
(together with its subsidiaries and controlled affiliates, referred to 
hereafter as the Organization). Expenditures of the Organization should 
be customary, prudent, consistent with applicable laws and regulations, 
and reasonably related to the Organization's business objectives and 
needs. This policy identifies expenditures that are excessive or luxury 
expenditures, creates processes that are reasonably designed to 
eliminate such expenditures, and establishes accountability for 
compliance. Routine operating expenses, capital expenditures, and other 
reasonable expenses are not prohibited by this policy.

                              B. Authority

    The Organization has authority to provide compensation and benefits 
that are reasonable. This policy establishes a prohibition on 
expenditures that are excessive or luxury expenditures as required by 
the Department of the Treasury's Emergency Capital Investment Program 
regulations (31 CFR part 35), and as may be required by other statutes 
and regulations.

                            C. Responsibility

    This policy is the responsibility of the Organization's board of 
directors (board). The board has approved this policy and will review 
compliance with this policy no less frequently than annually, and 
summary data on excessive or luxury expenditures will be reported to the 
board as part of the compliance review.

                                D. Scope

    This policy applies to all employees, officers, and directors of the 
Organization with regard to any expenditure of the Organization. In 
making any expenditure on behalf of the Organization, employees, 
officers, and directors should consider whether the expenditure is an 
excessive or luxury expenditure that is prohibited under this policy.

                   E. Excessive or Luxury Expenditures

    ``Excessive or luxury expenditures'' means excessive expenditures on 
any of the following to the extent not reasonable or appropriate 
expenditures for business development, staff development, reasonable 
performance incentives, or other similar reasonable measures conducted 
in the normal course of the Organization's business operations:
    (1) Entertainment or events. This category includes fees, dues, 
tickets costs related to social, athletic, artistic and dining clubs, 
activities, celebrations or other events, and similar expenditures. 
Expenditures for charitable contributions and charitable events are not 
prohibited under this policy. Entertainment or events expenditures in an 
amount less than $___ per instance, and $___ on an annual aggregate 
basis per individual, are exempt from this policy.
    (2) Office and facility renovations. This category includes costs 
and allowances for office renovation, including expenditures related to 
furniture, art, office personalization, interior finishing, design and 
decoration, and similar expenditures. Office and facility renovations 
expenditures in an amount less than $___ per instance, and $___ on an 
annual aggregate basis per individual, are exempt from this policy.
    (3) Aviation or other transportation services. (i) This category 
includes charter fees, tickets, slip or docking fees, vehicle 
installment payments, reservation and travel agent expenses, and similar 
expenditures associated with transportation services (e.g., airline, 
train, rental cars, or vans). Mileage reimbursable according to current 
Internal Revenue Service mileage rates is exempt from this policy. 
Transportation services in an amount less than $___ per instance, and 
$___

[[Page 421]]

on an annual aggregate basis per individual, are exempt from this 
policy.
    (ii) The principal executive officer may establish or delegate to an 
appropriate executive officer the authority to establish processes for 
reimbursement of reasonable travel expenditures, which processes must be 
reviewed by executive management no less frequently than annually.
    (4) Tax gross-ups. This category includes any reimbursement of taxes 
owed with respect to any compensation. This category does not apply to 
tax equalization agreements for employees subject to tax from a non-U.S. 
jurisdiction.
    (5) Other similar items, activities, or events for which the 
Organization may reasonably anticipate incurring expenses or reimbursing 
an employee for incurring expenses. (i) Expenditures related to other 
items not listed in the preceding categories are exempt from this policy 
in an amount less than $___ per instance, and together with all 
expenditures permitted under this policy, may not exceed $___ on an 
annual aggregate basis per individual.
    (ii) For the avoidance of doubt, reasonable capital investments in 
technology, equipment, and similar items that expand the long-term 
capability of an ECIP recipient to provide products and services to its 
customers and community are not excessive or luxury expenditures.
    (iii) The principal executive officer may establish or delegate to 
an appropriate executive officer the authority to establish processes 
for the evaluation and approval of expenditures in the preceding 
categories that are not luxury or excessive expenditures and that are 
not otherwise exempt from this policy. These processes must be reviewed 
by executive management no less frequently than annually, as well as any 
additional threshold expenditure amounts per item, activity, or event, 
or a threshold expenditure amount per employee receiving the item or 
participating in the activity or event under this policy. Such approvals 
must be reported to the board of directors (which may be in an 
appropriate summary form) no less frequently than annually.

                       F. Exceptions or Violations

    (1) Any exception or violation of this policy must be promptly 
reported to the Organization's (i) principal executive officer, (ii) 
officer with primary responsibility for the Organization's compliance 
function, or (iii) officer designated with primary responsibility for 
overseeing the administration, monitoring, and compliance with this 
policy. Exceptions and violations must be reported to the board of 
directors no less frequently than annually, or more frequently as the 
nature and severity of violation may warrant. All employees, officers, 
and directors of the Organization must adhere to this policy and will be 
held accountable for compliance. Any employee or officer who violates 
this policy may be subject to disciplinary action up to and including 
termination of employment.
    (2) Any employee or officer that is aware of any circumstance that 
may indicate a violation of this policy is required to report such 
circumstance to their supervisor or the Organization's principal 
compliance officer or compliance group. The Organization prohibits 
retaliation against any employee or officer for making a good faith 
report of actual or suspected violations of the Organization's code of 
conduct, laws, regulations, or other Organization policies, including 
this policy. A finding of retaliation against any such employee or 
officer may result in disciplinary action up to and including 
termination. Failure to promptly report known violations by others may 
also be deemed a violation of the Organization's code of conduct.
    (3) Employees and officers may ask questions, raise concerns, or 
report instances of non-compliance with this policy and/or any of the 
existing underlying relevant policies by contacting the following: 
[COMPLIANCE HELP LINE OR E-MAIL].

                            G. Certification

    On an annual basis, the ECIP recipient will deliver to the 
Department of the Treasury a certification, executed by two senior 
executive officers (one of which must be either the ECIP recipient's 
principal executive officer or principal financial officer) certifying 
that (i) the Organization is in compliance with this policy and (ii) the 
approval of any expenditure requiring the prior approval of any senior 
executive officer, any executive officer of a substantially similar 
level of responsibility, or the board of directors (or a committee of 
such board), was properly obtained with respect to each such 
expenditure.



PART 50_TERRORISM RISK INSURANCE PROGRAM--Table of Contents



                      Subpart A_General Provisions

Sec.
50.1 Authority, purpose, and scope.
50.2 Responsible office.
50.3 Mandatory participation in program.
50.4 Definitions.
50.5 Rule of construction for dates.
50.6 Special rules for Interim Guidance safe harbors.
50.7 Procedure for requesting determinations of controlling influence.
50.8 Procedure for requesting general interpretations of statute.

         Subpart B_Disclosures as Conditions for Federal Payment

50.10 General disclosure requirements.

[[Page 422]]

50.11 Definition.
50.12 Clear and conspicuous disclosure.
50.13 Offer and renewal.
50.14 Separate line item.
50.15 Cap disclosure.
50.16 Use of model forms.
50.17 General disclosure requirements for State residual market 
          insurance entities and State workers' compensation funds.

                    Subpart C_Mandatory Availability

50.20 General mandatory availability requirements.
50.21 Make available.
50.22 No material difference from other coverage.
50.23 Applicability of State law requirements.

      Subpart D_State Residual Market Insurance Entities; Workers' 
                           Compensation Funds

50.30 General participation requirements.
50.31 Entities that do not share profits and losses with private sector 
          insurers.
50.32 Entities that share profits and losses with private sector 
          insurers.
50.33 Allocation of premium income associated with entities that do 
          share profits and losses with private sector insurers.

Subpart E [Reserved]

                        Subpart F_Data Collection

50.50 General.
50.51 Annual data reporting.
50.52 Small insurer data.
50.53 Collection of claims data.
50.54 Handling of data.

                         Subpart G_Certification

50.60 Certification.
50.61 Public communication.
50.62 Certification data collection.
50.63 Notification of certification determination.

                       Subpart H_Claims Procedures

50.70 Federal share of compensation.
50.71 Adjustments to the Federal share of compensation.
50.72 Notice of deductible erosion.
50.73 Loss certifications.
50.74 Payment of Federal share of compensation.
50.75 Determination of affiliations.
50.76 Final netting.

              Subpart I_Audit and Investigative Procedures

50.80 Audit authority.
50.81 Recordkeeping.
50.82 Civil penalties.
50.83 Adjustment of civil monetary penalty amount.

              Subpart J_Recoupment and Surcharge Procedures

50.90 Mandatory and discretionary recoupment.
50.91 Determination of recoupment amounts.
50.92 Establishment of Federal terrorism policy surcharge.
50.93 Notification of recoupment.
50.94 Collecting the surcharge.
50.95 Remitting the surcharge.
50.96 Insurer responsibility.

       Subpart K_Federal Cause of Action; Approval of Settlements

50.100 Federal cause of action and remedy.
50.101 State causes of action preempted.
50.102 Advance approval of settlements.
50.103 Procedure for requesting approval of proposed settlements.
50.104 Subrogation.

                    Subpart L_Cap on Annual Liability

50.110 Cap on annual liability.
50.111 Notice to Congress.
50.112 Determination of pro rata share.
50.113 Application of pro rata share.
50.114 Data call authority.
50.115 Final amount.

    Authority: 5 U.S.C. 301; 31 U.S.C. 321; Title I, Pub. L. 107-297, 
116 Stat. 2322, as amended by Pub. L. 109-144, 119 Stat. 2660, Pub. L. 
110-160, 121 Stat. 1839, Pub. L. 114-1, 129 Stat. 3, and Pub. L. 116-94, 
133 Stat. 2534 (15 U.S.C. 6701 note); Pub. L. 114-74, 129 Stat. 601, 
Title VII (28 U.S.C. 2461 note).

    Source: 81 FR 93765, Dec. 21, 2016, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  50.1  Authority, purpose, and scope.

    (a) Authority. This part is issued pursuant to authority in Title I 
of the Terrorism Risk Insurance Act of 2002, Public Law 107-297, 116 
Stat. 2322, as amended by the Terrorism Risk Insurance Extension Act of 
2005, Public Law 109-144, 119 Stat. 2660, the Terrorism Risk Insurance 
Program Reauthorization Act of 2007, Public Law 110-160, 121 Stat. 1839, 
the Terrorism Risk Insurance Program Reauthorization Act of 2015, Public 
Law 114-1, 129 Stat. 3, and the Terrorism Risk Insurance Program 
Reauthorization Act of 2019, Public Law 116-94, 133 Stat. 2534.

[[Page 423]]

    (b) Purpose. This part contains rules prescribed by the Department 
of the Treasury to implement and administer the Terrorism Risk Insurance 
Program.
    (c) Scope. This part applies to insurers subject to the Act and 
their policyholders and claimants.

[81 FR 93765, Dec. 21, 2016, as amended at 86 FR 30540, June 9, 2021]



Sec.  50.2  Responsible office.

    The office responsible for the administration of the Terrorism Risk 
Insurance Act in the Department of the Treasury is the Terrorism Risk 
Insurance Program Office within the Federal Insurance Office. The 
Treasury Assistant Secretary for Financial Institutions prescribes the 
regulations under the Act.



Sec.  50.3  Mandatory participation in program.

    Any entity that meets the definition of an insurer under the Act is 
required to participate in the Program.



Sec.  50.4  Definitions.

    For purposes of this part:
    (a) Act means the Terrorism Risk Insurance Act of 2002 (as amended).
    (b) Act of terrorism--(1) In general. The term act of terrorism 
means any act that is certified by the Secretary, in consultation with 
the Attorney General of the United States and the Secretary of Homeland 
Security:
    (i) To be an act of terrorism;
    (ii) To be a violent act or an act that is dangerous to human life, 
property, or infrastructure;
    (iii) To have resulted in damage within the United States, or 
outside of the United States in the case of:
    (A) An air carrier (as defined in 49 U.S.C. 40102) or a United 
States flag vessel (or a vessel based principally in the United States, 
on which United States income tax is paid and whose insurance coverage 
is subject to regulation in the United States); or
    (B) The premises of a United States mission; and
    (iv) To have been committed by an individual or individuals as part 
of an effort to coerce the civilian population of the United States or 
to influence the policy or affect the conduct of the United States 
Government by coercion.
    (2) Limitations. The Secretary is not authorized to certify an act 
as an act of terrorism if:
    (i) The act is committed as part of the course of a war declared by 
the Congress (except with respect to any coverage for workers' 
compensation); or
    (ii) Property and casualty insurance losses resulting from the act, 
in the aggregate, do not exceed $5,000,000. For these purposes, property 
and casualty insurance losses include any amounts subject to payment 
under a property and casualty insurance policy, even if the policyholder 
declined to obtain terrorism risk insurance under the policy or is 
otherwise ultimately responsible for the payment.
    (3) Judicial review precluded. The Secretary's certification of an 
act of terrorism, or determination not to certify an act as an act of 
terrorism, is final and is not subject to judicial review.
    (c)(1) Affiliate means, with respect to an insurer, any entity that 
controls, is controlled by, or is under common control with the insurer. 
An affiliate must itself meet the definition of insurer to participate 
in the Program.
    (2)(i) For purposes of paragraph (c)(1) of this section, an insurer 
has control over another insurer for purposes of the Program if:
    (A) The insurer directly or indirectly or acting through one or more 
other persons owns, controls, or has power to vote 25 percent or more of 
any class of voting securities of the other insurer;
    (B) The insurer controls in any manner the election of a majority of 
the directors or trustees of the other insurer; or
    (C) The Secretary determines, after notice and opportunity for 
hearing, that an insurer directly or indirectly exercises a controlling 
influence over the management or policies of the other insurer, even if 
there is no control as defined in paragraph (c)(2)(i)(A) or (c)(2)(i)(B) 
of this section.
    (ii) An entity, including any affiliate thereof, does not have 
control or exercise controlling influence over a reciprocal insurer 
under this section if, as of January 12, 2015, the entity, including any 
affiliate thereof, was acting as an

[[Page 424]]

attorney-in-fact for the reciprocal insurer, provided that the entity 
does not, for reasons other than activities it may perform under the 
attorney-in-fact relationship, have control over the reciprocal insurer 
as otherwise defined under this section.
    (3) An insurer described in paragraph (c)(2)(i)(A) or (B) of this 
section is conclusively deemed to have control.
    (4) For purposes of a determination of controlling influence under 
paragraph (c)(2)(i)(C) of this section, if an insurer is not described 
in paragraph (c)(2)(i)(A) or (B) of this section, the following 
rebuttable presumptions will apply:
    (i) If an insurer controls another insurer under the laws of a 
state, and at least one of the factors listed in paragraph (c)(4)(iv) of 
this section applies, there is a rebuttable presumption that the insurer 
that has control under state law exercises a controlling influence over 
the management or policies of the other insurer for purposes of 
paragraph (c)(2)(i)(C) of this section.
    (ii) If an insurer provides 25 percent or more of another insurer's 
capital (in the case of a stock insurer), policyholder surplus (in the 
case of a mutual insurer), or corporate capital (in the case of other 
entities that qualify as insurers), and at least one of the factors 
listed in paragraph (c)(4)(iv) of this section applies, there is a 
rebuttable presumption that the insurer providing such capital, 
policyholder surplus, or corporate capital exercises a controlling 
influence over the management or policies of the receiving insurer for 
purposes of paragraph (c)(2)(i)(C) of this section.
    (iii) If an insurer, at any time during a calendar year, supplies 25 
percent or more of the underwriting capacity for that year to an insurer 
that is a syndicate consisting of one or more incorporated or individual 
unincorporated underwriters, and at least one of the factors in 
paragraph (c)(4)(iv) of this section applies, there is a rebuttable 
presumption that the insurer exercises a controlling influence over the 
syndicate for purposes of paragraph (c)(2)(i)(C) of this section.
    (iv) If paragraphs (c)(4)(i) through (iii) of this section are not 
applicable, but two or more of the following factors apply to an 
insurer, with respect to another insurer, there is a rebuttable 
presumption that the insurer exercises a controlling influence over the 
management or policies of the other insurer for purposes of paragraph 
(c)(2)(i)(C) of this section:
    (A) The insurer is one of the two largest shareholders of any class 
of voting stock;
    (B) The insurer holds more than 35 percent of the combined debt 
securities and equity of the other insurer;
    (C) The insurer is party to an agreement pursuant to which the 
insurer possesses a material economic stake in the other insurer 
resulting from a profit-sharing arrangement, use of common names, 
facilities or personnel, or the provision of essential services to the 
other insurer;
    (D) The insurer is party to an agreement that enables the insurer to 
influence a material aspect of the management or policies of the other 
insurer;
    (E) The insurer would have the ability, other than through the 
holding of revocable proxies, to direct the votes of more than 25 
percent of the other insurer's voting stock in the future upon the 
occurrence of an event;
    (F) The insurer has the power to direct the disposition of more than 
25 percent of a class of voting stock of the other insurer in a manner 
other than a widely dispersed or public offering;
    (G) The insurer and/or the insurer's representative or nominee 
constitute more than one member of the other insurer's board of 
directors; or
    (H) The insurer or its nominee or an officer of the insurer serves 
as the chairman of the board, chairman of the executive committee, chief 
executive officer, chief operating officer, chief financial officer or 
in any position with similar policymaking authority in the other 
insurer.
    (5) An insurer that is not described in paragraph (c)(2)(i) or (ii) 
of this section may request a hearing in which the insurer may rebut a 
presumption of controlling influence under paragraph (c)(4)(i) through 
(iv) of this section or otherwise request a determination of controlling 
influence by presenting and supporting its position through written 
submissions to Treasury, and in Treasury's discretion, through informal 
oral

[[Page 425]]

presentations, in accordance with the procedure in Sec.  50.7.
    (6) An insurer's affiliates for a calendar year, for purposes of 
subpart H of this part, shall be determined in accordance with the 
timing requirements laid out in Sec.  50.75 of this part.
    (d) Aggregate Federal share of compensation means the aggregate 
amount paid by Treasury for the Federal share of compensation for 
insured losses in a calendar year.
    (e) Assessment period means a period, established by Treasury, 
during which policyholders of property and casualty insurance policies 
must pay, and insurers must collect, the Federal terrorism policy 
surcharge for remittance to Treasury.
    (f) Attorney-in-fact means a person or entity appointed by the 
subscribers or members of a reciprocal insurer to act for and bind the 
reciprocal insurer under relevant state law for the benefit of its 
subscribers or members.
    (g) Captive insurer means an insurer licensed under the captive 
insurance laws or regulations of any state.
    (h) Direct earned premium means direct earned premium for all 
property and casualty insurance issued by any insurer for insurance 
against all losses, including losses from an act of terrorism, occurring 
at the locations described in section 102(5)(A) and (B) of the Act.
    (1) State-licensed or admitted insurers. For a state licensed or 
admitted insurer that reports to the NAIC, direct earned premium is the 
premium information for property and casualty insurance reported by the 
insurer on column 2 of the Exhibit of Premiums and Losses of the NAIC 
Annual Statement (commonly known as Statutory Page 14).
    (i) Premium information as reported to state regulators through the 
NAIC should be included in the calculation of direct earned premiums for 
purposes of the Program only to the extent it reflects premiums for 
property and casualty insurance issued by the insurer against losses 
occurring at the locations described in section 102(5)(A) and (B) of the 
Act.
    (ii) Premiums for personal property and casualty lines of insurance 
(insurance primarily designed to cover personal, family or household 
risk exposures, with the exception of insurance written to insure 1 to 4 
family rental dwellings owned for the business purpose of generating 
income for the property owner), or premiums for any other insurance 
coverage that does not meet the definition of property and casualty 
insurance, should be excluded in the calculation of direct earned 
premiums for purposes of the Program.
    (iii) Personal property and casualty lines of insurance coverage 
that includes incidental coverage for commercial purposes are primarily 
personal coverage, and therefore premiums may be fully excluded by an 
insurer from the calculation of direct earned premium. For purposes of 
this section, commercial coverage is incidental if less than 25 percent 
of the total direct earned premium is attributable to commercial 
coverage. Property and casualty insurance against losses occurring at 
locations other than the locations described in section 102(5)(A) and 
(B) of the Act, or other insurance coverage that does not meet the 
definition of property and casualty insurance, but that includes 
incidental coverage for commercial risk exposures at such locations, is 
primarily not commercial, and therefore premiums for such insurance may 
also be fully excluded by an insurer from the calculation of direct 
earned premium. For purposes of this section, property and casualty 
insurance for losses occurring at the locations described in section 
102(5)(A) and (B) of the Act is incidental if less than 25 percent of 
the total direct earned premium for the insurance policy is attributable 
to coverage at such locations. Also for purposes of this section, 
coverage for commercial risk exposures is incidental if it is combined 
with coverages that otherwise do not meet the definition of property and 
casualty insurance and less than 25 percent of the total direct earned 
premium for the insurance policy is attributable to the coverage for 
commercial risk exposures.
    (iv) If an insurance policy covers both commercial and personal 
property and casualty exposures, insurers may allocate the premiums in 
accordance with the proportion of risk between commercial and personal 
components

[[Page 426]]

in order to ascertain direct earned premium. If a policy includes 
insurance coverage that meets the definition of property and casualty 
insurance for losses occurring at the locations described in section 
102(5)(A) and (B) of the Act, but also includes other coverage, insurers 
may allocate the premiums in accordance with the proportion of risk 
attributable to the components in order to ascertain direct earned 
premium.
    (2) Insurers that do not report to NAIC. An insurer that does not 
report to the NAIC, but that is licensed or admitted by any state (such 
as certain farm or county mutual insurers), should use the guidance 
provided in paragraph (h)(1) of this section to assist in ascertaining 
its direct earned premium.
    (i) Direct earned premium may be ascertained by adjusting data 
maintained by such insurer or reported by such insurer to its state 
regulator to reflect a breakdown of premiums for commercial and personal 
property and casualty exposure risk as described in paragraph (h)(1) of 
this section and, if necessary, re-stated to reflect the accrual method 
of determining direct earned premium versus direct premium.
    (ii) Such an insurer should consider other types of payments that 
compensate the insurer for risk of loss (contributions, assessments, 
etc.) as part of its direct earned premium.
    (3) Certain eligible surplus line carrier insurers. An eligible 
surplus line carrier insurer listed on the NAIC Quarterly Listing of 
Alien Insurers must ascertain its direct earned premium by pricing 
separately its premium for insurance that meets the definition of 
property and casualty insurance for losses occurring at the locations 
described in section 102(5)(A) and (B) of the Act.
    (4) Federally approved insurers. A federally approved insurer, 
defined under section 102(6)(A)(iii) of the Act, should use a 
methodology similar to that specified for eligible surplus line carrier 
insurers in paragraph (h)(3) of this section to calculate its direct 
earned premium. Such calculation should be adjusted to reflect the 
limitations on scope of insurance coverage under the Program (i.e., to 
the extent of Federal approval of property and casualty insurance in 
connection with maritime, energy or aviation activities).
    (i) Direct written premium means the premium information for 
property and casualty insurance that is included by an insurer in column 
1 of the Exhibit of Premiums and Losses of the NAIC Annual Statement or 
in an equivalent reporting requirement. The Federal terrorism policy 
surcharge is not included in amounts reported as direct written premium.
    (j) Discretionary recoupment amount means such amount of the 
aggregate Federal share of compensation in excess of the mandatory 
recoupment amount that the Secretary has determined will be recouped 
pursuant to section 103(e)(7)(D) of the Act.
    (k) Federal Insurance Office means the Federal Insurance Office 
within the U.S. Department of the Treasury.
    (l) Federal terrorism policy surcharge means the amount established 
by Treasury under subpart J of this part that is imposed as a policy 
surcharge on property and casualty insurance policies, expressed as a 
percentage of the written premium.
    (m) Insurance marketplace aggregate retention amount means an amount 
for a calendar year as calculated under section 103(e)(6) of the Act.
    (1) For calendar years beginning with 2015 through 2019, such amount 
is the lesser of the aggregate amount, for all insurers, of insured 
losses once there has been a Program Trigger Event during the calendar 
year and:
    (i) For calendar year 2015: $29,500,000,000;
    (ii) For calendar year 2016: $31,500,000,000;
    (iii) For calendar year 2017: $33,500,000,000;
    (iv) For calendar year 2018: $35,500,000,000; and
    (v) For calendar year 2019: $37,500,000,000.
    (2) For calendar years beginning with 2020 and any calendar year 
thereafter as may be necessary, such amount is the lesser of the 
aggregate amount, for all insurers, of insured losses once there has 
been a Program Trigger Event during the calendar year and the annual 
average of the sum of insurer deductibles for all insurers for the

[[Page 427]]

prior 3 years, to be calculated by taking:
    (i) The total amount of direct earned premium reported by insurers 
to Treasury pursuant to Sec.  50.51 in the three calendar years prior to 
the calendar year in question, and then dividing that figure by three; 
and
    (ii) Multiplying the resulting three-year average figure by 20%.
    (3) For calendar year 2020 and each subsequent calendar year, 
Treasury shall publish in the Federal Register the insurance marketplace 
aggregate retention amount no later than December 31 of the prior 
calendar year.
    (n) Insured loss. (1) The term insured loss means any loss resulting 
from an act of terrorism (including an act of war, in the case of 
workers' compensation) that is covered by primary or excess property and 
casualty insurance issued by an insurer if the loss:
    (i) Occurs within the United States;
    (ii) Occurs to an air carrier (as defined in 49 U.S.C. 40102), or to 
a United States flag vessel (or a vessel based principally in the United 
States, on which United States income tax is paid and whose insurance 
coverage is subject to regulation in the United States), regardless of 
where the loss occurs; however, to the extent a loss occurs to such an 
air carrier or vessel outside the United States, the insured loss does 
not include losses covered by third party insurance contracts that are 
separate from the insurance coverage provided to the air carrier or 
vessel; or
    (iii) Occurs at the premises of any United States mission.
    (2) The term insured loss includes reasonable loss adjustment 
expenses, incurred by an insurer in connection with insured losses, that 
are allocated and identified by claim file in insurer records, including 
expenses incurred in the investigation, adjustment, and defense of 
claims, but excluding staff salaries, overhead, and other insurer 
expenses that would have been incurred notwithstanding the insured loss.
    (3) The term insured loss does not include:
    (i) Punitive or exemplary damages awarded or paid in connection with 
the Federal cause of action specified in section 107(a)(1) of the Act. 
The term ``punitive or exemplary damages'' means damages that are not 
compensatory but are an award of money made to a claimant solely to 
punish or deter; or
    (ii) Extra-contractual damages awarded against, or paid by, an 
insurer; or
    (iii) Payments by an insurer in excess of policy limits; or
    (iv) Amounts paid by a policyholder as required under the terms and 
conditions of property and casualty insurance issued by an insurer.
    (o) Insurer means any entity, including any affiliate of the entity, 
that meets the following requirements:
    (1)(i) The entity must fall within at least one of the following 
categories:
    (A) It is licensed or admitted to engage in the business of 
providing primary or excess insurance in any state (including, but not 
limited to, state licensed captive insurance companies, state licensed 
or admitted risk retention groups, and state licensed or admitted farm 
and county mutuals) and, if a joint underwriting association, pooling 
arrangement, or other similar entity, then the entity must:
    (1) Have gone through a process of being licensed or admitted to 
engage in the business of providing primary or excess insurance that is 
administered by the state's insurance regulator, which process generally 
applies to insurance companies or is similar in scope and content to the 
process applicable to insurance companies;
    (2) Be generally subject to State insurance regulation, including 
financial reporting requirements, applicable to insurance companies 
within the State; and
    (3) Be managed independently from other insurers participating in 
the program;
    (B) It is not licensed or admitted to engage in the business of 
providing primary or excess insurance in any state, but is an eligible 
surplus line carrier listed on the NAIC Quarterly Listing of Alien 
Insurers;
    (C) It is approved or accepted for the purpose of offering property 
and casualty insurance by a Federal agency in connection with maritime, 
energy, or aviation activity, but only to the extent of such Federal 
approval of property and casualty insurance coverage

[[Page 428]]

offered by the insurer in connection with maritime, energy, or aviation 
activity;
    (D) It is a state residual market insurance entity or state workers' 
compensation fund; or
    (E) As determined by the Secretary, it falls within any of the 
classes or types of captive insurers or other self-insurance 
arrangements by municipalities and other entities.
    (ii) If an entity falls within more than one category described in 
paragraph (o)(1)(i) of this section, the entity is considered to fall 
within the first category within which it falls for purposes of the 
program.
    (2) The entity must receive direct earned premium, except in the 
case of:
    (i) State residual market insurance entities and state workers' 
compensation funds, to the extent provided in subpart D of this part; 
and
    (ii) Other classes or types of captive insurers and other self-
insurance arrangements by municipalities and other entities to the 
extent provided for in subpart E of this part.
    (3) The entity must meet any other criteria as prescribed by 
Treasury.
    (p) Insurer deductible means:
    (1) For an insurer that has had a full year of operations during the 
calendar year immediately preceding the applicable calendar year, the 
value of an insurer's direct earned premiums during the immediately 
preceding calendar year, multiplied by 20 percent; and
    (2) For an insurer that has not had a full year of operations during 
the immediately preceding calendar year, the insurer deductible will be 
based on data for direct earned premiums for the applicable calendar 
year multiplied by 20 percent. If the insurer does not have a full year 
of operations during the applicable calendar year, the direct earned 
premiums for the applicable calendar year will be annualized to 
determine the insurer deductible.
    (q) Mandatory recoupment amount means the difference between the 
insurance marketplace aggregate retention amount for a calendar year and 
the uncompensated insured losses during such calendar year.
    (r) NAIC means the National Association of Insurance Commissioners.
    (s) Person means any individual, business or nonprofit entity 
(including those organized in the form of a partnership, limited 
liability company, corporation, or association), trust or estate, or a 
State or political subdivision of a state or other governmental unit.
    (t) Professional liability insurance means insurance coverage for 
liability arising out of the performance of professional or business 
duties related to a specific occupation, with coverage being tailored to 
the needs of the specific occupation. Examples include abstracters, 
accountants, insurance adjusters, architects, engineers, insurance 
agents and brokers, lawyers, real estate agents, stockbrokers, and 
veterinarians. For purposes of this definition, professional liability 
insurance does not include directors and officers liability insurance.
    (u) Program means the Terrorism Risk Insurance Program established 
by the Act.
    (v) Program Trigger Event means a certified act of terrorism within 
a calendar year that results in aggregate industry insured losses, 
either on its own or in combination with any other certified act(s) of 
terrorism having previously taken place in the same calendar year, 
exceeding:
    (1) $100,000,000 with respect to calendar year 2015 insured losses;
    (2) $120,000,000 with respect to calendar year 2016 insured losses;
    (3) $140,000,000 with respect to calendar year 2017 insured losses;
    (4) $160,000,000 with respect to calendar year 2018 insured losses;
    (5) $180,000,000 with respect to calendar year 2019 insured losses; 
or
    (6) $200,000,000 with respect to calendar year 2020 insured losses 
and with respect to any calendar year thereafter.
    (w) Property and casualty insurance means commercial lines of 
property and casualty insurance, including excess insurance, workers' 
compensation insurance, and directors and officers liability insurance, 
and:
    (1) Means commercial lines within only the following lines of 
insurance from the NAIC's Exhibit of Premiums and Losses (commonly known 
as Statutory Page 14): Line 1--Fire; Line 2.1--Allied Lines; Line 5.1--
Commercial

[[Page 429]]

Multiple Peril (non-liability portion); Line 5.2--Commercial Multiple 
Peril (liability portion); Line 8--Ocean Marine; Line 9--Inland Marine; 
Line 16--Workers' Compensation; Line 17--Other Liability; Line 18--
Products Liability; Line 22--Aircraft (all perils); and Line 27--Boiler 
and Machinery; a stand-alone cyber liability policy falling within Line 
17--Other Liability, is property and casualty insurance, so long as it 
is not otherwise identified for state reporting purposes as a policy 
that is not property and casualty insurance, such as professional 
liability insurance.
    (2) Property and casualty insurance does not include:
    (i) Federal crop insurance issued or reinsured under the Federal 
Crop Insurance Act (7 U.S.C. 1501 et seq.), or any other type of crop or 
livestock insurance that is privately issued or reinsured (including 
crop insurance reported under either Line 2.1--Allied Lines or Line 
2.2--Multiple Peril (Crop) of the NAIC's Exhibit of Premiums and Losses 
(commonly known as Statutory Page 14);
    (ii) Private mortgage insurance (as defined in section 2 of the 
Homeowners Protection Act of 1998) (12 U.S.C. 4901) or title insurance;
    (iii) Financial guaranty insurance issued by monoline financial 
guaranty insurance corporations;
    (iv) Insurance for medical malpractice;
    (v) Health or life insurance, including group life insurance;
    (vi) Flood insurance provided under the National Flood Insurance Act 
of 1968 (42 U.S.C. 4001 et seq.) or earthquake insurance reported under 
Line 12 of the NAIC's Exhibit of Premiums and Losses (commonly known as 
Statutory Page 14);
    (vii) Reinsurance or retrocessional reinsurance;
    (viii) Commercial automobile insurance, including insurance reported 
under Lines 19.3 (Commercial Auto No-Fault (personal injury 
protection)), 19.4 (Other Commercial Auto Liability) and 21.2 
(Commercial Auto Physical Damage) of the NAIC's Exhibit of Premiums and 
Losses (commonly known as Statutory Page 14);
    (ix) Burglary and theft insurance, including insurance reported 
under Line 26 (Burglary and Theft) of the NAIC's Exhibit of Premiums and 
Losses (commonly known as Statutory Page 14);
    (x) Surety insurance, including insurance reported under Line 24 
(Surety) of the NAIC's Exhibit of Premiums and Losses (commonly known as 
Statutory Page 14);
    (xi) Professional liability insurance as defined in paragraph (t) of 
this section; or
    (xii) Farm owners multiple peril insurance, including insurance 
reported under Line 3 (Farmowners Multiple Peril) of the NAIC's Exhibit 
of Premiums and Losses (commonly known as Statutory Page 14).
    (x) Reciprocal insurer means an insurer organized under relevant 
state law as a reciprocal or interinsurance exchange.
    (y) Secretary means the Secretary of the U.S. Department of the 
Treasury.
    (z) Small insurer means an insurer (or an affiliated group of 
insurers in the case of affiliates within the meaning of paragraph (c) 
of this section) whose policyholder surplus for the immediately 
preceding year (as reported on its Annual Statement for state regulatory 
purposes at Page 3, Line 37, Column 1, or as calculated in similar 
fashion by participating insurers that do not file an Annual Statement) 
is less than five times the Program Trigger amount for the current year 
and whose direct earned premium for the preceding year is also less than 
five times the Program Trigger amount for the current year. An insurer 
that has not had a full year of operations during the immediately 
preceding calendar year is a small insurer if its policyholder surplus 
in the current year is less than five times the Program Trigger amount 
for the current year. A captive insurer is not a small insurer, 
regardless of the size of its policyholder surplus or direct earned 
premium.
    (aa) State means any state of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the 
Northern Mariana Islands, American Samoa, Guam, each of the United 
States Virgin Islands, and any territory or possession of the United 
States.

[[Page 430]]

    (bb) Surcharge means the Federal terrorism policy surcharge as 
defined in paragraph (l) of this section.
    (cc) Surcharge effective date means the date established by Treasury 
that begins the assessment period.
    (dd) Treasury means the U.S. Department of the Treasury.
    (ee) Uncompensated insured losses means the aggregate amount of 
insured losses of all insurers in a calendar year, once there has been a 
Program Trigger Event, that is not compensated by the Federal Government 
because such losses:
    (1) Are within the insurer deductibles of insurers, or
    (2) Are within the portions of losses in excess of insurer 
deductibles that are not compensated through payments made as a result 
of claims for the Federal share of compensation.
    (ff) United States means the several states, and includes the 
territorial sea and the continental shelf of the United States, as those 
terms are defined in the Violent Crime Control and Law Enforcement Act 
of 1994 (18 U.S.C. 2280 and 2281).

[81 FR 93765, Dec. 21, 2016, as amended at 84 FR 62452, Nov. 15, 2019; 
86 FR 30540, June 9, 2021]



Sec.  50.5  Rule of construction for dates.

    Unless otherwise expressly provided in the regulation, any date in 
these regulations is intended to be applied so that the day begins at 
12:01 a.m. and ends at midnight on that date.



Sec.  50.6  Special rules for Interim Guidance safe harbors.

    (a) An insurer will be deemed to be in compliance with the 
requirements of the Act to the extent the insurer reasonably relied on 
Interim Guidance prior to the effective date of applicable regulations.
    (b) For purposes of this section, any Interim Guidance will be 
posted by Treasury at https://home.treasury.gov/policy-issues/financial-
markets-financial-institutions-and-fiscal-service/federal-insurance-
office/terrorism-risk-insurance-program.

[81 FR 93765, Dec. 21, 2016, as amended at 86 FR 30540, June 9, 2021]



Sec.  50.7  Procedure for requesting determinations of controlling
influence.

    (a) An insurer or insurers not having control over another insurer 
under Sec.  50.4(c)(2)(i) or (ii) may make a written submission to 
Treasury to rebut a presumption of controlling influence under Sec.  
50.4(c)(4)(i) through (iv) or otherwise to request a determination of 
controlling influence. Such submissions shall be made to the Terrorism 
Risk Insurance Program Office, Department of the Treasury, Room 1410, 
1500 Pennsylvania Ave. NW., Washington, DC 20220. The submission should 
be entitled, ``Controlling Influence Submission,'' and should provide 
the full name and address of the submitting insurer(s) and the name, 
title, address and telephone number of the designated contact person(s) 
for such insurer(s).
    (b) Treasury will review submissions and determine whether Treasury 
needs additional written or orally presented information. In its 
discretion, Treasury may schedule a date, time, and place for an oral 
presentation by the insurer(s).
    (c) An insurer or insurers must provide all relevant facts and 
circumstances concerning the relationship(s) between or among the 
affected insurers and the control factors in Sec.  50.4(c)(4)(i) through 
(iv); and must explain in detail any basis for why the insurer believes 
that no controlling influence exists (if a presumption is being 
rebutted) in light of the particular facts and circumstances, as well as 
the Act's language, structure and purpose. Any confidential business or 
trade secret information submitted to Treasury should be clearly marked. 
Treasury will handle any subsequent request for information designated 
by an insurer as confidential business or trade secret information in 
accordance with Treasury's Freedom of Information Act regulations at 31 
CFR part 1.
    (d) Treasury will review and consider the insurer submission and 
other relevant facts and circumstances. Unless otherwise extended by 
Treasury, within 60 days after receipt of a complete submission, 
including any additional information requested by Treasury, and 
including any oral presentation,

[[Page 431]]

Treasury will issue a final determination of whether one insurer has a 
controlling influence over another insurer for purposes of the Program. 
The determination shall set forth Treasury's basis for its 
determination.

(Approved by the Office of Management & Budget under control number 
1505-0190)



Sec.  50.8  Procedure for requesting general interpretations of statute.

    Persons actually or potentially affected by the Act or regulations 
in this Part may request an interpretation of the Act or regulations by 
writing to the Terrorism Risk Insurance Program Office, Room 1410, 
Department of the Treasury, 1500 Pennsylvania Ave. NW., Washington, DC 
20220, giving a detailed explanation of the facts and circumstances and 
the reason why an interpretation is needed. A requester should segregate 
and mark any confidential business or trade secret information clearly. 
Treasury in its discretion will provide written responses to requests 
for interpretation. Treasury reserves the right to decline to provide a 
response in any case. Except in the case of any confidential business or 
trade secret information, Treasury will make written requests for 
interpretations and responses publicly available at the Treasury 
Department Library, on the Treasury Web site, or through other means as 
soon as practicable after the response has been provided. Treasury will 
handle any subsequent request for information that had been designated 
by a requester as confidential business or trade secret information in 
accordance with Treasury's Freedom of Information Act regulations at 31 
CFR part 1.



         Subpart B_Disclosures as Conditions for Federal Payment



Sec.  50.10  General disclosure requirements.

    (a) Content of disclosure. As a condition for Federal payments under 
section 103(b) of the Act, the Act requires that an insurer provide 
clear and conspicuous disclosure to the policyholder of:
    (1) The premium charged for insured losses covered by the Program; 
and
    (2) The Federal share of compensation for insured losses under the 
Program.
    (b) Form and timing of disclosure. The disclosure required by the 
Act must be made on a separate line item in the policy, at the time of 
offer and of renewal of the policy.



Sec.  50.11  Definition.

    For purposes of this Subpart, unless the context indicates 
otherwise, the term ``disclosure'' or ``disclosures'' refers to the 
disclosure described in section 103(b)(2) of the Act and Sec.  50.10. 
The term ``cap disclosure'' refers to the disclosure required by section 
103(b)(3) of the Act and Sec.  50.15.



Sec.  50.12  Clear and conspicuous disclosure.

    (a) General. Whether a disclosure is clear and conspicuous depends 
on the totality of the facts and circumstances of the disclosure. See 
Sec.  50.16 for model forms.
    (b) Description of premium. An insurer may describe the premium 
charged for insured losses covered by the Program as a portion or 
percentage of a policy premium, if consistent with standard business 
practice and provided that the amount of policy premium or the method of 
determining the policy premium is also stated. An insurer may not 
describe the premium in a manner that is misleading in the context of 
the Program, such as by characterizing the premium as a ``surcharge.''
    (c) Method of disclosure. Subject to Sec.  50.10(b), an insurer may 
provide disclosures using normal business practices, including forms and 
methods of communication used to communicate similar policyholder 
information to policyholders.
    (d) Use of producer. If an insurer normally communicates with a 
policyholder through an insurance producer or other intermediary, an 
insurer may provide disclosures through such producer or other 
intermediary. If an insurer elects to make the disclosures through an 
insurance producer or other intermediary, the insurer remains 
responsible for ensuring that the disclosures are provided by the 
insurance producer or other intermediary to policyholders in accordance 
with the Act.

[[Page 432]]

    (e) Demonstration of compliance. An insurer may demonstrate that it 
has satisfied the requirement to provide clear and conspicuous 
disclosure as described in Sec.  50.10 through use of appropriate 
systems and normal business practices that demonstrate a practice of 
compliance.
    (f) Certification of compliance. An insurer must certify that it has 
complied with the requirement to provide disclosure to the policyholder 
on all policies that form the basis for any claim that is submitted by 
an insurer for Federal payment under the Program.



Sec.  50.13  Offer and renewal.

    An insurer is deemed to be in compliance with the requirement of 
providing disclosure ``at the time of offer and of renewal of the 
policy'' under Sec.  50.10(b) if the insurer makes the disclosure no 
later than the time the insurer first formally offers to provide 
insurance coverage or renew a policy for a current policyholder.



Sec.  50.14  Separate line item.

    An insurer is deemed to be in compliance with the requirement of 
providing disclosure on a ``separate line item in the policy'' under 
Sec.  50.10(b) if the insurer makes the disclosure:
    (a) On the declarations page of the policy;
    (b) Elsewhere within the policy itself; or
    (c) In any rider or endorsement, or other document that is made a 
part of the policy.



Sec.  50.15  Cap disclosure.

    (a) General. Under section 103(e)(2) of the Act, if the aggregate 
insured losses exceed $100,000,000,000 during any calendar year, the 
Secretary shall not make any payment for any portion of the amount of 
such losses that exceeds $100,000,000,000, and no insurer that has met 
its insurer deductible shall be liable for the payment of any portion of 
the amount of such losses that exceeds $100,000,000,000.
    (b) Other requirements. As a condition for Federal payments under 
section 103(b) of the Act, an insurer must provide clear and conspicuous 
disclosure to the policyholder of the existence of the $100,000,000,000 
cap under section 103(e)(2). The cap disclosure must be made at the time 
of offer, purchase, and renewal of the policy.
    (c) Offer, purchase, and renewal. An insurer is deemed to be in 
compliance with the requirement of providing disclosure ``at the time of 
offer, purchase, and renewal of the policy'' under Sec.  50.15(b) if the 
insurer:
    (1) Makes the disclosure no later than the time the insurer first 
formally offers to provide insurance coverage or renew a policy for a 
current policyholder; and
    (2) If terrorism risk coverage is purchased, the insurer makes clear 
and conspicuous reference back to that disclosure, as well as the final 
terms of terrorism insurance coverage, at the time the transaction is 
completed.
    (d) Other applicable rules. The cap disclosure is covered by the 
rules in Sec.  50.12(a), (c), (d), (e), and (f) (relating to clear and 
conspicuous disclosure).



Sec.  50.16  Use of model forms.

    (a) General. An insurer that is required to make the disclosure 
under Sec.  50.10(b) or Sec.  50.15(b) is deemed to be in compliance 
with the disclosure requirements if the insurer uses NAIC Model 
Disclosure Form No. 1 or NAIC Model Disclosure Form No. 2, as 
appropriate.
    (b) Not exclusive means of compliance. An insurer is not required to 
use NAIC Model Disclosure Form No. 1 or NAIC Model Disclosure Form No. 2 
to satisfy the disclosure requirements. An insurer may use other means 
to comply with the disclosure requirements, as long as the disclosures 
comport with the requirements of the Act.
    (c) Definitions. For purposes of this section, references to NAIC 
Model Disclosure Form No. 1 and NAIC Model Disclosure Form No. 2 refer 
to such forms as revised in March 2020, or as subsequently modified by 
the NAIC, provided Treasury has stated that usage by insurers of the 
subsequently modified forms is deemed to satisfy the disclosure 
requirements of the Act and the insurer uses the most current forms, so 
approved by Treasury, that are available at the time of disclosure. 
These forms may be found on the Treasury website at https://
home.treasury.gov/policy-issues/financial-markets-financial-
institutions-and-fiscal-

[[Page 433]]

service/federal-insurance-office/terrorism-risk-insurance-program.

[81 FR 93765, Dec. 21, 2016, as amended at 86 FR 30540, June 9, 2021]



Sec.  50.17  General disclosure requirements for State residual market
insurance entities and State workers' compensation funds.

    (a) Residual market mechanism disclosure. A state residual market 
insurance entity or state workers' compensation fund may provide the 
disclosures required by this subpart B to policyholders using normal 
business practices, including forms and methods of communication used to 
communicate similar information to policyholders. The disclosures may be 
made by the state residual market insurance entity or state workers' 
compensation fund itself, the individual insurers that participate in 
the state residual market insurance entity or state workers' 
compensation fund, or its servicing carriers. The ultimate 
responsibility for ensuring that the disclosure requirements have been 
met rests with the insurer filing a claim under the Program.
    (b) Other requirements. Except as provided in this section, all 
other disclosure requirements set out in this subpart B apply to state 
residual insurance market entities and state workers' compensation 
funds.



                    Subpart C_Mandatory Availability



Sec.  50.20  General mandatory availability requirements.

    (a) General requirements. Under section 103(c) of the Act, an 
insurer must:
    (1) Make available, in all of its property and casualty insurance 
policies, coverage for insured losses; and
    (2) Make available property and casualty insurance coverage for 
insured losses that does not differ materially from the terms, amounts, 
and other coverage limitations applicable to losses arising from events 
other than acts of terrorism.
    (b) Compliance through 2027. Under section 108(a) of the Act, an 
insurer must comply with paragraphs (a)(1) and (2) of this section 
through calendar year 2027.
    (c) Beyond 2027. Notwithstanding paragraph (a)(2) of this section 
and Sec.  50.22(a), property and casualty insurance coverage for insured 
losses does not have to be made available beyond December 31, 2027, even 
if the policy period of insurance coverage for losses from events other 
than acts of terrorism extends beyond that date.

[81 FR 93765, Dec. 21, 2016, as amended at 86 FR 30540, June 9, 2021]



Sec.  50.21  Make available.

    (a) General. The requirement to make available coverage as provided 
in Sec.  50.20 applies at the time an insurer makes the initial offer of 
coverage as well as at the time an insurer makes an initial offer of 
renewal of an existing policy.
    (b) Offer consistent with definition of act of terrorism. An insurer 
must make available coverage for insured losses in a policy of property 
and casualty insurance consistent with the definition of an act of 
terrorism as defined in Sec.  50.4(b).
    (c) Changes negotiated subsequent to initial offer. If an insurer 
satisfies the requirement to make available coverage as described in 
Sec.  50.20 by first making an offer with coverage for insured losses 
that does not differ materially from the terms, amounts, and other 
coverage limitations applicable to losses arising from events other than 
acts of terrorism, which the policyholder or prospective policyholder 
declines, the insurer may negotiate with the policyholder or prospective 
policyholder an option of partial coverage for insured losses at a lower 
amount of coverage if permitted by any applicable state law. An insurer 
is not required by the Act to offer partial coverage if the policyholder 
or prospective policyholder declines full coverage. See Sec.  50.23.
    (d) Demonstrations of compliance. If an insurer makes an offer of 
insurance but no contract of insurance is concluded, the insurer may 
demonstrate that it has satisfied the requirement to make available 
coverage as described in Sec.  50.20 through use of appropriate systems 
and normal business practices that demonstrate a practice of compliance.

[[Page 434]]



Sec.  50.22  No material difference from other coverage.

    (a) Terms, amounts, and other coverage limitations. As provided in 
Sec.  50.20(a)(2), an insurer must offer coverage for insured losses 
arising from an act of terrorism that does not differ materially from 
the terms, amounts, and other coverage limitations (including 
deductibles) applicable to losses arising from events other than acts of 
terrorism. For purposes of this requirement, ``terms'' excludes price.
    (b) Limitations on types of risk. An insurer is not required to 
cover risks that it typically excludes or does not write to satisfy the 
requirement to make available coverage for losses resulting from an act 
of terrorism that does not differ materially from the terms, amounts, 
and other coverage limitations applicable to losses arising from events 
other than acts of terrorism. For example, if an insurer does not cover 
all types of risks, either because the insurer is outside of direct 
state regulatory oversight, or because a state permits certain 
exclusions for certain types of losses, such as nuclear, biological, or 
chemical events, then the insurer is not required to make such coverage 
available.



Sec.  50.23  Applicability of State law requirements.

    (a) General. After satisfying the requirement to make available 
coverage for insured losses that does not differ materially from the 
terms, amounts, and other coverage limitations applicable to losses 
arising from events other than acts of terrorism, if coverage is 
rejected an insurer may then offer coverage that is on different terms, 
amounts, or coverage limitations, as long as such an offer does not 
violate any applicable state law requirements.
    (b) Examples. (1) If an insurer subject to state regulation first 
makes available coverage in accordance with Sec.  50.20 and the state 
has a requirement that an insurer offer full coverage without any 
exclusion, then the requirement would continue to apply and the insurer 
may not subsequently offer less than full coverage or coverage with 
exclusions.
    (2) If an insurer subject to state regulation first makes available 
coverage in accordance with Sec.  50.20 and the state permits certain 
exclusions or allows for other limitations, or an insurance policy is 
not governed by state law requirements, then the insurer may 
subsequently offer limited coverage or coverage with exclusions.



   Subpart D_State Residual Market Insurance Entities; State Workers' 
                           Compensation Funds



Sec.  50.30  General participation requirements.

    (a) Insurers. As defined in Sec.  50.4(o), all state residual market 
insurance entities and state workers' compensation funds are insurers 
under the Program even if such entities do not receive direct earned 
premiums.
    (b) Mandatory participation. State residual market insurance 
entities and State workers' compensation funds are mandatory 
participants in the Program subject to the rules issued in this Subpart.
    (c) Identification. Treasury maintains a list of state residual 
market insurance entities and state workers' compensation funds at 
https://home.treasury.gov/policy-issues/financial-markets-financial-
institutions-and-fiscal-service/federal-insurance-office/terrorism-risk-
insurance-program. Procedures for providing comments and updates to that 
list are posted with the list.

[81 FR 93765, Dec. 21, 2016, as amended at 86 FR 30540, June 9, 2021]



Sec.  50.31  Entities that do not share profits and losses with private
sector insurers.

    (a) Treatment. A state residual market insurance entity or a state 
workers' compensation fund that does not share profits and losses with a 
private sector insurer is deemed to be a separate insurer under the 
Program.
    (b) Premium calculation. A state residual market insurance entity or 
a state workers' compensation fund that is deemed to be a separate 
insurer should follow the guidelines specified in Sec.  50.4(h)(1) or 
(2) for the purposes of calculating the appropriate measure of direct 
earned premium.

[[Page 435]]



Sec.  50.32  Entities that share profits and losses with private sector
insurers.

    (a) Treatment. A State residual market insurance entity or a State 
workers' compensation fund that shares profits and losses with a private 
sector insurer is deemed not to be a separate insurer under the Program.
    (b) Premium and loss calculation. A state residual market insurance 
entity or a State workers' compensation fund that is deemed not to be a 
separate insurer should continue to report, in accordance with normal 
business practices, to each participant insurer its share of premium 
income and insured losses, which shall then be included respectively in 
the participant insurer's direct earned premium or insured loss 
calculations.



Sec.  50.33  Allocation of premium income associated with entities that
do share profits and losses with private sector insurers.

    (a) Servicing carriers. For purposes of this subpart, a servicing 
carrier is an insurer that enters into an agreement to place and service 
insurance contracts for a state residual market insurance entity or a 
state workers' compensation fund and to cede premiums associated with 
such insurance contracts to the State residual market insurance entity 
or State workers' compensation fund. Premiums written by a servicing 
carrier on behalf of a state residual market insurance entity or State 
workers' compensation fund that are ceded to such an entity or fund 
shall not be included as direct earned premium (as described in Sec.  
50.4(h)(1) or (2)) of the servicing carrier.
    (b) Participant insurers. For purposes of this Subpart, a 
participant insurer is an insurer that shares in the profits and losses 
of a state residual market insurance entity or a state workers' 
compensation fund. Premium income that is distributed to or assumed by 
participant insurers in a state residual market insurance entity or 
state workers' compensation fund (whether directly or as quota share 
insurers of risks written by servicing carriers), shall be included in 
direct earned premium (as described in Sec.  50.4(h)(1) or (2)) of the 
participant insurer.

Subpart E [Reserved]



                        Subpart F_Data Collection



Sec.  50.50  General.

    Treasury may request from insurers such data and information as may 
be reasonably required in support of Treasury's administration of the 
Program.



Sec.  50.51  Annual data reporting.

    (a) General. No later than May 15 of each calendar year, all 
insurers shall provide specified data and information respecting their 
Program participation.
    (b) Scope. Except as otherwise provided by Treasury, the information 
to be provided shall address: the lines of property and casualty 
insurance subject to the Program, the premiums earned for terrorism risk 
insurance within those lines and for those lines generally, the 
geographical location of exposures covered under terrorism risk 
insurance, the pricing of terrorism risk insurance, the take-up rate for 
terrorism risk insurance, the amount of private reinsurance obtained by 
participating insurers in connection with such policies, and other 
matters concerning the Program as may be identified by Treasury.
    (c) Method of reporting. (1) Treasury will promulgate forms defining 
the specific data and information that each insurer must submit and make 
these forms available on its Web site. Treasury may adopt different data 
reporting forms for different types of insurers that participate in the 
Program, which modify the requested information by each different 
category of participating insurer based upon the manner and scope of the 
participation of those insurers in the Program. Each insurer shall 
submit the required data and information by electronic submission 
through the forms and data portal(s) identified on Treasury's Web site. 
All data and information provided as part of such electronic submission 
shall be certified by the insurer as a full and true statement of the 
information provided to the best of its knowledge, information and 
belief.
    (2) The data and information required to be provided under this 
subsection

[[Page 436]]

may be modified annually by Treasury. Any modification shall be made 
during the prior calendar year, and Treasury shall provide insurers at 
least 90 days before requiring collection of any newly specified data or 
information.
    (d) Supplemental requests. Treasury may issue supplemental requests, 
to some or all participating insurers, in connection with the annual 
data request provided for under this section, to the extent Treasury 
determines that it requires additional or clarifying information in 
order to analyze the effectiveness of the Program. Insurers shall 
respond to any such supplemental requests as may be made within the 
timeframe and in the manner specified by Treasury.
    (e) Small insurer exception. The Secretary may exempt a small 
insurer that meets the definition in Sec.  50.4(z) from any or all data 
calls under this section, or may modify the requests as applicable to 
such small insurer.



Sec.  50.52  Small insurer data.

    (a) General. The Secretary may collect information relating to small 
insurers, as defined in Sec.  50.4(z), in order to conduct a study of 
small insurers participating in the Program, and identify any 
competitive challenges small insurers face in the terrorism risk 
insurance marketplace.
    (b) Scope. Information collected concerning small insurers may 
include information necessary for Treasury to identify:
    (1) Changes to the market share, premium volume, and policyholder 
surplus of small insurers relative to large insurers;
    (2) How the property and casualty insurance market for terrorism 
risk differs between small and large insurers, and whether such a 
difference exists within other perils;
    (3) The impact on small insurers of the Program's mandatory 
availability requirement under section 103(c) of the Act;
    (4) The effect on small insurers of increasing the trigger amount 
for the Program under section 103(e)(1)(B) of the Act;
    (5) The availability and cost of private reinsurance for small 
insurers; and
    (6) The impact that state workers compensation laws have on small 
insurers and workers compensation carriers in the terrorism risk 
insurance marketplace.



Sec.  50.53  Collection of claims data.

    (a) General. Subsequent to any certification by the Secretary of an 
act of terrorism, insurers shall report to Treasury information 
respecting insured losses arising from the act of terrorism.
    (b) Contents of periodic reporting. Reporting under this subsection 
shall be by a form prescribed by Treasury and made available on the 
Treasury Web site, which provides basic information about each claim 
established by an insurer that involves or potentially involves an 
insured loss. Information to be reported for any claims by or against a 
policyholder shall identify paid and reserved amounts associated with 
the claim. In the case of an affiliated group of insurers, the form 
required by this subsection shall be submitted by a single insurer 
designated within the affiliated group, which shall report on a 
consolidated basis. Data and information reported under this subsection 
will include:
    (1) A listing of each claim by name of insured, catastrophe code, 
line of business, and in the case of an affiliated group of insurers, 
the particular insurer or insurers within the group associated with each 
claim;
    (2) Amounts paid, both loss and loss adjustment expenses, in 
connection with the claim as of the effective date of the report; and
    (3) Amounts reserved, both loss and loss adjustment expenses, in 
connection with the claim as of the effective date of the report.
    (c) Timing of reporting. To the extent that an insurer has 
established one or more claims that it believes involve insured losses 
arising from an act of terrorism, the insurer shall submit its first 
report within 60 days of establishing the first of such claims. An 
updated report shall be submitted each month thereafter, reporting data 
as of the prior month, until all claims arising from the act of 
terrorism have been resolved.

[[Page 437]]

    (d) Interrelationship with other reporting requirements. The 
reporting requirements under this subsection are independent of the 
Initial Notice of Deductible Erosion, Initial Certification of Loss, and 
Supplementary Certifications of Loss requirements in subpart H.
    (e) Other sources of information. Subsequent to any certification of 
an act of terrorism, Treasury may also seek information respecting loss 
estimates and projections from one or more organizations that are not 
participants in the Program, such as state insurance regulators, 
insurance modeling organizations, rating agencies, insurance brokers and 
producers, and insurance data aggregators. A data request may also be 
directed to insurers identified in connection with such inquiries. An 
insurer subject to such a data call shall respond to this request within 
the time frame specified in the request.



Sec.  50.54  Handling of data.

    (a) General. All nonpublic information submitted to the Secretary 
under subparts F and G of this part shall be considered proprietary 
information and shall:
    (1) Be handled and stored by Treasury in an appropriately secure 
manner;
    (2) Be considered, where appropriate, to be trade secrets or 
commercial or financial information obtained from a person and 
privileged or confidential; and
    (3) Not be publicly released in any unaggregated form in which a 
consumer, policyholder, or insurer is identifiable.
    (b) Use of insurance statistical aggregator. To the extent Treasury 
utilizes an insurance statistical aggregator in connection with any data 
collection under subparts F and G, such insurance statistical aggregator 
shall keep any nonpublic information that it collects confidential, 
consistent with the requirements of this section.
    (c) Confidentiality. (1) The submission of any non-publicly 
available data and information to the Secretary under subparts F and G 
of this part, and the sharing of any non-publicly available data with or 
by the Secretary among other Federal agencies, the state insurance 
regulatory authorities, or any other entities shall not constitute a 
waiver of, or otherwise affect, any privilege or immunity arising under 
Federal or state law (including the rules of any Federal or state court) 
to which the data or information is otherwise subject.
    (2) Any requirement under Federal or state law to the extent 
otherwise applicable, or any requirement pursuant to a written agreement 
in effect between the original source of any non-publicly available data 
or information and the source of such data or information to the 
Secretary, regarding privacy or confidentiality of any data or 
information in the possession of the source to the Secretary, shall 
continue to apply to such data or information after the data or 
information has been provided pursuant to this subpart.
    (3) Any data or information obtained by the Secretary under subparts 
F or G of this part may be made available to state insurance regulatory 
authorities, individually or collectively through an information-sharing 
agreement that:
    (i) Shall comply with applicable Federal law; and
    (ii) Shall not constitute a waiver of, or otherwise affect, any 
privilege or immunity under Federal or state law (including any 
privilege referred to in paragraph (b)(1) of this section and the rules 
of any Federal or State court) to which the data or information is 
otherwise subject.
    (4) Section 552 of title 5, United States Code, including any 
exceptions thereunder, shall apply to any data or information submitted 
under this Subpart by an insurer or affiliate of an insurer.



                         Subpart G_Certification



Sec.  50.60  Certification.

    (a) Certification decision. The Secretary, in consultation with the 
Attorney General of the United States and the Secretary of Homeland 
Security, is responsible for determining whether to certify an act as an 
act of terrorism.
    (b) Timeline for eligibility. An act is eligible for certification 
as an act of terrorism at the end of the following timeline:

[[Page 438]]

    (1) The Secretary commences review of whether an act satisfies the 
definition in Sec.  50.4(b);
    (2) Within 30 days of the Secretary commencing review, Treasury 
publishes the notice required by Sec.  50.61(a). During such review, the 
schedule of public notifications in Sec.  50.61(b) shall apply, as 
appropriate;
    (3) The Secretary's review finds that the act satisfies the elements 
for certification under Sec.  50.4(b)(1)(i) through (iv), and that it is 
not otherwise precluded from certification by Sec.  50.4(b)(2); and
    (4) Within 30 days or as soon as otherwise practicable after the 
review identified in paragraph (b)(3) of this section concludes that the 
act satisfies the necessary criteria, the Secretary consults with the 
Attorney General of the United States and the Secretary of Homeland 
Security pursuant to section 102(1)(A) of the Act.
    (c) Other consultation. Nothing in this section shall prevent the 
Secretary from consulting and coordinating with the Attorney General of 
the United States, the Secretary of Homeland Security, or any other 
government official prior to the consultation identified in paragraph 
(b)(4) of this section.
    (d) Finality. Any decision by the Secretary to certify, or 
determination not to certify, an act as an act of terrorism under this 
subpart shall be final, and shall not be subject to judicial review.
    (e) Nondelegation. The Secretary may not delegate or designate to 
any other officer, employee, or person, the determination of whether to 
certify an act as an act of terrorism.



Sec.  50.61  Public communication.

    (a) Initial notification. After the Secretary commences review of 
whether an act may satisfy the definition in Sec.  50.4(b), Treasury 
shall publish a notice in the Federal Register within 30 days of the 
Secretary commencing review notifying the public that the act is under 
review for certification as an act of terrorism. Treasury may also 
announce that an act is not under review for certification.
    (b) Update notification. Not later than 30 days following the 
publication of a notice under paragraph (a) of this section that an act 
is under review for certification, and not later than every 60 days 
thereafter until the Secretary determines whether to certify an act as 
an act of terrorism, Treasury shall publish a notice in the Federal 
Register notifying the public whether the act is still under review for 
certification as an act of terrorism.
    (c) Contents of notification. Nothing in this section shall require 
Treasury to provide any information other than whether the act is under 
review for certification as an act of terrorism (or is no longer under 
such review) or shall limit Treasury from providing further information 
of relevance.
    (d) Rules of construction. Nothing in this section shall be 
construed to preclude the Secretary from certifying or determining not 
to certify an act as an act of terrorism before notifying the public 
that the act is under review for certification. If, in the discretion of 
the Secretary, circumstances relating to an act render timely 
notification under this section by Treasury impracticable, Treasury 
shall provide the notification as soon as practicable, in a manner the 
Secretary determines is appropriate.
    (e) Nonbinding decision. A notification made under this section 
shall not be construed to be a final determination by the Secretary of 
whether to certify an act as an act of terrorism.



Sec.  50.62  Certification data collection.

    (a) General. (1) The Secretary, when evaluating an act for 
certification as an act of terrorism, may at any time direct one or more 
insurers to submit information regarding projected and actual losses in 
connection with an act and any other information the Secretary 
determines appropriate. The information sought by the Secretary shall be 
specified in the data request, and any insurer subject to the data 
request shall respond to the request within the time frame specified by 
the Secretary at the time of the request. The data requested may include 
actual loss reserves established by insurers in connection with the act 
under consideration, loss estimates generated by insurers in connection 
with the act under consideration which have not yet been established as 
actual loss reserves, and information respecting an insurer's

[[Page 439]]

property and casualty exposures in a particular geographic area 
associated with the act under consideration.
    (2) An insurer not required by Treasury to submit information under 
paragraph (a)(1) of this section may voluntarily submit information to 
the Secretary as specified in public notifications issued by Treasury.
    (b) Other sources of information. The Secretary may request 
information with respect to loss estimates and likely affected insurers 
from organizations, including state insurance regulators, insurance 
modeling organizations, rating agencies, insurance brokers and 
producers, and insurance data aggregators.



Sec.  50.63  Notification of certification determination.

    (a) Public notification. Not later than 5 business days after the 
Secretary determines whether to certify an act as an act of terrorism, 
Treasury shall publish a statement and submit a notice to the Federal 
Register notifying the public of the Secretary's decision.
    (b) Insurance supervisor notification. Not later than 5 business 
days after the Secretary determines whether to certify an act as an act 
of terrorism, Treasury shall notify in writing any relevant supervisory 
officials of the Secretary's decision.
    (c) Congressional notification. Not later than 5 business days after 
the Secretary determines whether to certify an act as an act of 
terrorism, Treasury shall notify in writing the President of the U.S. 
Senate and the Speaker of the U.S. House of Representatives of the 
Secretary's decision.
    (d) Rule of construction. If, in the discretion of the Secretary, 
circumstances relating to an act render timely notification by Treasury 
under this section impracticable, Treasury shall provide the 
notification as soon as practicable, in a manner the Secretary 
determines is appropriate.



                       Subpart H_Claims Procedures



Sec.  50.70  Federal share of compensation.

    (a) General. (1) Treasury will pay the Federal share of compensation 
for insured losses as provided in section 103 of the Act once a 
Certification of Loss required by Sec.  50.73 is deemed sufficient. The 
Federal share of compensation under the Program shall be:
    (i) 85 percent of that portion of the insurer's aggregate insured 
losses that exceeds its insurer deductible during calendar year 2015;
    (ii) 84 percent of that portion of the insurer's aggregate insured 
losses that exceeds its insurer deductible during calendar year 2016;
    (iii) 83 percent of that portion of the insurer's aggregate insured 
losses that exceeds its insurer deductible during calendar year 2017;
    (iv) 82 percent of that portion of the insurer's aggregate insured 
losses that exceeds its insurer deductible during calendar year 2018;
    (v) 81 percent of that portion of the insurer's aggregate insured 
losses that exceeds its insurer deductible during calendar year 2019; 
and
    (vi) 80 percent of that portion of the insurer's aggregate insured 
losses that exceeds its insurer deductible during calendar year 2020 and 
any calendar year thereafter.
    (2) The percentages in paragraph (a)(1) of this section are subject 
to any adjustments described in Sec.  50.71 and to the cap of $100 
billion as provided in section 103(e)(2) of the Act.
    (b) Program Trigger amounts. Notwithstanding paragraph (a) of this 
section or anything in this subpart to the contrary, Federal 
compensation will not be paid by Treasury unless the aggregate industry 
insured losses resulting from one or more certified acts of terrorism 
exceed the following amounts:
    (1) For insured losses resulting from acts of terrorism taking place 
in calendar year 2015: $100 million;
    (2) For insured losses resulting from acts of terrorism taking place 
in calendar year 2016: $120 million;
    (3) For insured losses resulting from acts of terrorism taking place 
in calendar year 2017: $140 million;
    (4) For insured losses resulting from acts of terrorism taking place 
in calendar year 2018: $160 million;
    (5) For insured losses resulting from acts of terrorism taking place 
in calendar year 2019: $180 million;

[[Page 440]]

    (6) For insured losses resulting from acts of terrorism taking place 
in calendar year 2020 and any calendar year thereafter: $200 million.
    (c) Conditions for payment of Federal share. Subject to paragraph 
(d) of this section, Treasury shall pay the appropriate amount of the 
Federal share of compensation for an insured loss to an insurer upon a 
determination that:
    (1) The insurer is an entity, including an affiliate thereof, that 
meets the requirements of Sec.  50.4(o);
    (2) The insurer's insured losses, as defined in Sec.  50.4(n) and 
limited by paragraph (d) of this section (including the allocated dollar 
value of the insurer's proportionate share of insured losses from a 
state residual market insurance entity or a state workers' compensation 
fund as described in Sec.  50.33), have exceeded its insurer deductible 
as defined in Sec.  50.4(p);
    (3) The insurer has paid or is prepared to pay an insured loss, 
based on a filed claim for the insured loss;
    (4) Neither the insurer's claim for Federal payment nor any 
underlying claim for an insured loss is fraudulent, collusive, made in 
bad faith, dishonest or otherwise designed to circumvent the purposes of 
the Act and regulations;
    (5) The insurer has provided a clear and conspicuous disclosure as 
required by Sec. Sec.  50.10 through 50.14 and a cap disclosure as 
required by Sec.  50.15;
    (6) The insurer offered coverage for insured losses and the offer 
was accepted by the insured prior to the act which results in the 
insured loss;
    (7) The insurer took all steps reasonably necessary to properly and 
carefully investigate the insured loss and otherwise processed the 
insured loss using practices appropriate for the business of insurance;
    (8) The insured loss is within the scope of coverage issued by the 
insurer under the terms and conditions of one or more policies for 
commercial property and casualty insurance as defined in Sec.  50.4(w); 
and
    (9) The procedures specified in this Subpart have been followed and 
all conditions for payment have been met.
    (d) Adjustments. Treasury may subsequently adjust, including 
requiring repayment of, any payment made under paragraph (c) of this 
section in accordance with its authority under the Act.
    (e) Suspension of payment for other insured losses. Upon a 
determination by Treasury that an insurer has failed to meet any of the 
requirements for payment specified in paragraph (c) of this section for 
a particular insured loss, Treasury may suspend payment of the Federal 
share of compensation for all other insured losses of the insurer 
pending investigation and audit of the insurer's insured losses.
    (f) Aggregate industry losses. Treasury will determine the amount of 
aggregate industry insured losses resulting from a certified act of 
terrorism. If aggregate industry insured losses in a calendar year 
resulting from one or more certified acts of terrorism exceed the 
applicable Program Trigger amounts specified in paragraph (b) of this 
section, Treasury will publish a document in the Federal Register of a 
Program Trigger Event.



Sec.  50.71  Adjustments to the Federal share of compensation.

    (a) Aggregate amount of insured losses. The aggregate amount of 
insured losses of an insurer in a calendar year used to calculate the 
Federal share of compensation shall be reduced by any amounts recovered 
by the insurer as salvage or subrogation for its insured losses in the 
calendar year.
    (b) Amount of Federal share of compensation. The Federal share of 
compensation shall be adjusted as follows:
    (1) No excess recoveries. For any calendar year, the sum of the 
Federal share of compensation paid by Treasury to an insurer and the 
insurer's recoveries for insured losses from other sources shall not be 
greater than the insurer's aggregate amount of insured losses for acts 
of terrorism in that calendar year. Amounts recovered for insured losses 
in excess of an insurer's aggregate amount of insured losses for acts of 
terrorism in a calendar year shall be repaid to Treasury within 45 days 
after the end of the month in which total recoveries of the insurer, 
from all sources, become excess. For purposes of this paragraph, amounts 
recovered from a reinsurer pursuant to an agreement whereby the 
reinsurer's

[[Page 441]]

right to any excess recovery has priority over the rights of Treasury 
shall not be considered a recovery subject to repayment to Treasury.
    (2) Reduction of amount payable. The Federal share of compensation 
for insured losses under the Program shall be reduced by the amount of 
other compensation provided by other Federal programs to an insured or a 
third party to the extent such other compensation duplicates the 
insurance indemnification for those insured losses.
    (i) Other Federal program compensation. For purposes of this 
section, compensation provided by other Federal programs for insured 
losses means compensation that is provided by Federal programs 
established for the purpose of compensating persons for losses in the 
event of emergencies, disasters, acts of terrorism, or similar events. 
Compensation provided by Federal programs for insured losses excludes 
benefit or entitlement payments, such as those made under the Social 
Security Act, under laws administered by the Secretary of Veteran 
Affairs, railroad retirement benefit payments, and other similar types 
of benefit payments.
    (ii) Insurer due diligence. With respect to any underlying claim for 
insured losses, each insurer shall inquire of all involved 
policyholders, insureds, and claimants whether the person receiving 
insurance proceeds for an insured loss has received, expects to receive, 
or is entitled to receive compensation from another Federal program for 
the insured loss, and if so, the source and the amount of the 
compensation received or expected. The response, source, and such 
amounts shall be reported with each underlying claim on the form 
specified in Sec.  50.73(b)(1).



Sec.  50.72  Notice of deductible erosion.

    Each insurer shall submit to Treasury a Notice on a form prescribed 
by Treasury whenever the insurer's aggregate insured losses (including 
reserves for ``incurred but not reported'' losses) within a calendar 
year exceed an amount equal to 50 percent of the insurer's deductible as 
specified in Sec.  50.4(p). Insurers are advised that the form for the 
Notice of Deductible Erosion will include an initial estimate of 
aggregate insured losses for the calendar year, the amount of the 
insurer deductible, and an estimate of the Federal share of compensation 
for the insurer's aggregate insured losses. In the case of an affiliated 
group of insurers, the Notice will include the name and address of a 
single designated insurer within the affiliated group that will serve as 
the single point of contact for the purpose of providing loss and 
compliance certifications as required in Sec.  50.73 and for receiving, 
disbursing, and distributing payments of the Federal share of 
compensation in accordance with Sec.  50.74. An insurer, at its option, 
may elect to include with its Notice of Deductible Erosion the 
certification of direct earned premium required by Sec.  50.73(b)(3).



Sec.  50.73  Loss certifications.

    (a) General. When an insurer has paid aggregate insured losses that 
exceed its insurer deductible for a calendar year, the insurer may make 
claim upon Treasury for the payment of the Federal share of compensation 
for its insured losses. The insurer shall file an Initial Certification 
of Loss, on a form prescribed by Treasury, and thereafter such 
Supplementary Certifications of Loss, on a form prescribed by Treasury, 
as may be necessary to receive payment for the Federal share of 
compensation for its insured losses.
    (b) Initial certification of loss. An insurer shall use its best 
efforts to file with the Program the Initial Certification of Loss 
within 45 days following the last calendar day of the month when an 
insurer has paid aggregate insured losses that exceed its insurer 
deductible. The Initial Certification of Loss will include the 
following:
    (1) Basic information, on a form prescribed by Treasury, about each 
insured loss paid (or to be paid pursuant to Sec.  50.73(b)(2)(i)) by 
the insurer. The form will include:
    (i) A listing of each insured loss paid (or to be paid pursuant to 
Sec.  50.73(b)(2)(i)) by the insurer by catastrophe code and line of 
business;
    (ii) The total amount of reinsurance recovered from other sources;
    (iii) A calculation of the aggregate insured losses sustained by the 
insurer above its insurer deductible for the calendar year; and

[[Page 442]]

    (iv) The amount the insurer claims as the Federal share of 
compensation for its aggregate insured losses.
    (2) A certification that the insurer is in compliance with the 
provisions of section 103(b) of the Act and this part, including 
certifications that:
    (i) The underlying insured losses reported pursuant to Sec.  
50.73(b)(1) either: Have been paid by the insurer; or will be paid by 
the insurer upon receipt of an advance payment of the Federal share of 
compensation as soon as possible, consistent with the insurer's normal 
business practices, but not longer than five business days after receipt 
of the Federal share of compensation;
    (ii) The underlying claims for insured losses were filed by persons 
who suffered an insured loss, or by persons acting on behalf of such 
persons;
    (iii) The underlying claims for insured losses were processed in 
accordance with appropriate business practices and the procedures 
specified in this subpart;
    (iv) The insurer has complied with the disclosure requirements of 
Sec. Sec.  50.10 through 50.14, and the cap disclosure requirement of 
Sec.  50.15, for each underlying insured loss that is included in the 
amount of the insurer's aggregate insured losses; and
    (v) The insurer has complied with the mandatory availability 
requirements of subpart C of this part.
    (3) A certification of the amount of the insurer's direct earned 
premium, together with the calculation of its insurer deductible 
(provided this certification was not submitted previously with the 
Notice of Deductible Erosion).
    (4) A certification that the insurer will disburse payment of the 
Federal share of compensation in accordance with this Subpart.
    (5) A certification that if Treasury has determined a Pro Rata Loss 
Percentage (PRLP) (see Sec.  50.112), the insurer has complied with 
applying the PRLP to insured loss payments, where required.
    (c) Supplementary certifications of loss. If the total amount of the 
Federal share of compensation due an insurer for insured losses under 
the Act has not been determined at the time an Initial Certification of 
Loss has been filed, the insurer shall file monthly, or on a schedule 
otherwise determined by Treasury, Supplementary Certifications of Loss 
updating the amount of the Federal share of compensation due for the 
insurer's insured losses. Supplementary Certifications of Loss will 
include the following:
    (1) A form as described in Sec.  50.73(b)(1); and
    (2) A certification as described in Sec.  50.73(b)(2).
    (d) Supplementary information. In addition to the information 
required in paragraphs (b) and (c) of this section, Treasury may require 
such additional supporting documentation as required to ascertain the 
Federal share of compensation for the insured losses of any insurer.
    (e) State Residual Market Insurance Entities and State Workers' 
Compensation Funds. A state residual market insurance entity or a state 
workers' compensation fund described in Sec.  50.32 shall provide the 
Certifications of Loss described in Sec.  50.73(b) and (c) for all of 
its insured losses to each participating insurer at the time it provides 
the allocated dollar value of the participating insurer's proportionate 
share of insured losses. In addition, at such time the state residual 
market insurance entity or state workers' compensation fund shall 
provide the certification described in Sec.  50.73(b)(2) to Treasury. 
Participating insurers shall treat the allocated dollar value of their 
proportionate share of insured losses from a state residual market 
insurance entity or state workers' compensation fund as an insured loss 
for the purpose of their own reporting to Treasury in seeking the 
Federal share of compensation.



Sec.  50.74  Payment of Federal share of compensation.

    (a) Timing. Treasury will promptly pay to an insurer the Federal 
share of compensation due the insurer for its insured losses. Payment 
shall be made in such installments and on such conditions as determined 
by the Treasury to be appropriate. Any overpayments by Treasury of the 
Federal share of compensation will be offset from future payments to the 
insurer or returned to Treasury within 45 days.

[[Page 443]]

    (b) Payment process. Payment of the Federal Share of Compensation 
for insured losses will be made to the insurer designated on the Notice 
of Deductible Erosion required by Sec.  50.72. An insurer that requests 
payment of the Federal Share of Compensation for insured losses must 
receive payment through electronic funds transfer. The insurer must 
establish either an account for reimbursement as described in paragraph 
(c) of this section (if the insurer only seeks reimbursement) or a 
segregated account as described in paragraph (d) of this section (if the 
insurer seeks advance payments or a combination of advance payments and 
reimbursement). Applicable procedures will be posted at https://
home.treasury.gov/policy-issues/financial-markets-financial-
institutions-and-fiscal-service/federal-insurance-office/terrorism-risk-
insurance-program or otherwise will be made publicly available.
    (c) Account for reimbursement. An insurer shall designate an account 
for the receipt of reimbursement of the Federal share of compensation at 
an institution eligible to receive payments through the Automated 
Clearing House (ACH) network.
    (d) Segregated account for advance payments. An insurer that seeks 
advance payments of the Federal share of compensation as certified 
according to Sec.  50.73(b)(2)(i) shall establish a segregated account 
into which Treasury will make advance payments as well as reimbursements 
to the insurer.
    (1) Definition of segregated account. For purposes of this section, 
a segregated account is an interest-bearing separate account established 
by an insurer at a financial institution eligible to receive payments 
through the ACH network. Such an account is limited to the purposes of:
    (i) Receiving payments of the Federal share of compensation;
    (ii) Disbursing payments to insureds and claimants; and
    (iii) Transferring payments to the insurer or affiliated insurers 
for insured losses reported as already paid.
    (2) Remittance of interest. All interest earned on advance payments 
in the segregated account must be remitted at least quarterly to 
Treasury's Bureau of the Fiscal Service or as otherwise prescribed in 
applicable procedures.
    (e) Denial or withholding of advance payment. Treasury may deny or 
withhold advance payments of the Federal share of compensation to an 
insurer if Treasury determines that the insurer has not properly 
disbursed previous advances of the Federal share of compensation or 
otherwise has not complied with the requirements for advance payment as 
provided in this Subpart.
    (f) Affiliated group. In the case of an affiliated group of 
insurers, Treasury will make payment of the Federal share of 
compensation for the insured losses of the affiliated group to the 
insurer designated in the Notice of Deductible Erosion to receive 
payment on behalf of the affiliated group. The designated insurer 
receiving payment from Treasury must distribute payment to affiliated 
insurers in a manner that ensures that each insurer in the affiliated 
group is compensated for its share of insured losses, taking into 
account a reasonable and fair allocation of the group deductible among 
affiliated insurers. Upon payment of the Federal share of compensation 
to the designated insurer, Treasury's payment obligation to the insurers 
in the affiliated group with respect to any insured losses covered is 
discharged to the extent of the payment.

[81 FR 93765, Dec. 21, 2016, as amended at 86 FR 30540, June 9, 2021]



Sec.  50.75  Determination of affiliations.

    For the purposes of this subpart, an insurer's affiliates for any 
calendar year shall be determined by the circumstances existing on the 
date of the act which is the Program Trigger Event for that calendar 
year.



Sec.  50.76  Final netting.

    (a) General. Pursuant to section 103(e)(4) of the Act, the Secretary 
shall have sole discretion to determine the time at which claims 
relating to any insured loss or act of terrorism shall become final.
    (b) Final Netting Date. The Secretary may determine a Final Netting 
Date for a calendar year, which for purposes of this part is the date on 
or before

[[Page 444]]

which an insurer must report to Treasury on the insurer's Certifications 
of Loss (both Initial Certification of Loss and any Supplemental 
Certifications of Loss) all insured losses that have been reported by 
its policyholders for the calendar year.
    (1) Criteria for Final Netting Date. The establishment of a Final 
Netting Date will be based on factors and considerations including:
    (i) Amounts of case reserves reported by insurers to Treasury for 
open underlying insured losses;
    (ii) The rate at which claims for the Federal share of compensation 
for insured losses are being made by insurers to Treasury;
    (iii) The rate at which new underlying insured losses are being 
added by insurers to their Supplementary Certifications of Loss and 
reported;
    (iv) The predominant lines of business for which underlying insured 
losses are being reported;
    (v) Tort and contract statutes of limitations relevant to insured 
losses and the manner in which they are being applied by the Federal 
courts;
    (vi) Common business practices;
    (vii) Issues that are delaying final resolution of insured losses;
    (viii) The application of the liability limitations and procedures 
under the Support Anti-terrorism by Fostering Effective Technologies Act 
of 2002 (6 U.S.C. 441 et seq.) that may affect final resolution of 
insured losses;
    (ix) Issues related to the cap on annual liability for insurer 
losses, including whether a projection that the cap on annual liability 
will be reached in connection with any calendar year indicates that no 
Final Netting Date should be set for that calendar year;
    (x) Treasury's claims administration costs; and
    (xi) [Reserved]
    (xii) Such other factors as the Secretary considers appropriate to 
take into account.
    (2) Notice of Final Netting Date. Treasury shall announce and 
publish in the Federal Register notice of a proposed Final Netting Date 
and its application to a specific calendar year, and will solicit 
comments from the public regarding the appropriateness of the proposed 
Final Netting Date. After receipt and evaluation of comments respecting 
its proposed Final Netting Date, Treasury will publish in the Federal 
Register a Final Netting Date, which is at least 180 days after the date 
of publication. The Secretary's determination of a Final Netting Date is 
final and not subject to judicial review.
    (c) Post-Final Netting Date claims. After the Final Netting Date, 
insurers may only make further claims for the Federal share of 
compensation for insured losses by submission of Supplemental 
Certifications of Loss with updated information on underlying insured 
losses previously reported to Treasury. Such updated information may 
reflect a decision by a court of competent jurisdiction concerning a 
limitation of liability under the Support Anti-terrorism by Fostering 
Effective Technologies Act of 2002. In the case of workers' compensation 
losses, the insurer may provide updated information based on the number 
of workers' compensation claimants previously reported. An insurer may 
not report any new underlying insured losses, or increased workers' 
compensation loss amounts based on an increase in the number of workers' 
compensation claimants, to Treasury after a Final Netting Date, except 
as provided in this section.
    (d) Commutation. A commutation is the payment by Treasury of a lump 
sum present value of future payments to an insurer in lieu of making 
payments in the future, as provided in this section.
    (1) In lieu of continued submission of Supplemental Certifications 
of Loss after the Final Netting Date as provided in paragraph (c) of 
this section, Treasury may require, or consider an insurer's request 
for, a commutation of an insurer's future claims for the Federal share 
of compensation based on estimates for the underlying insured losses 
reported to Treasury on or before the Final Netting Date. The payment by 
Treasury of a final commuted amount to an insurer will discharge 
Treasury from all future liabilities to the insurer for the Federal 
share of compensation for insured losses for the applicable calendar 
year. In the case of

[[Page 445]]

an affiliated group of insurers, the requirements of Sec.  50.74(f) 
apply, and payment of the final commuted amount to the designated 
insurer of the affiliated group discharges Treasury's payment obligation 
to the insurers in the affiliated group for insured losses for the 
applicable calendar year.
    (2) If future claims are to be commuted, Treasury may require 
additional information from the insurer, including an insurer's 
justification for a final payment amount with necessary actuarial 
factors and methodology, and pertinent information regarding the 
insurer's business relationships and other reinsurance recoverables. 
Insurers will be required to justify discount and other factors from 
which final payment amounts are derived. If Treasury notifies an insurer 
of a requirement to submit additional information to inform its 
commutation decision, the insurer will be provided (depending upon the 
complexity of the material sought) no less than 90 days from the date of 
notification to submit material required in the notice. If the insurer 
fails to provide the requested information, it will forfeit the right to 
future payments from Treasury. Treasury will evaluate such information 
in order to determine a final payment amount or (if applicable) an 
amount to be repaid to Treasury. Treasury may determine that it will not 
consider commutation until it has completed an audit of an insurer's 
insured losses pursuant to the authority set forth in subpart I of these 
regulations.
    (3) Payments of commuted amounts are not considered to be advance 
payments requiring a segregated account as described in Sec.  50.74(d).
    (4) Notwithstanding Sec.  50.70(d), a payment by Treasury of a final 
commuted amount to an insurer is final unless:
    (i) Treasury is put on notice that an insurer's claim was fraudulent 
or that other conditions for Federal payment were not met, in which case 
the insurer will be required to repay amounts that were not due; or
    (ii) The exception in paragraph (e) of this section applies, in 
which case Treasury may make additional payments for insured losses, but 
only under the conditions described in paragraph (e).
    (e) Exception. If within one year after the Final Netting Date, and 
regardless of commutation, an insurer has additional underlying reported 
insured losses that, in the absence of a Final Netting Date, would 
result in an increase of the Federal share of compensation to that 
insurer by 20% of the total amount already paid to that insurer, the 
insurer may request Treasury to allow those underlying insured losses to 
be submitted as part of a certification of loss. Under such 
circumstances and provided that all other conditions for payment have 
been met, Treasury may reopen or extend the insurer's claim for the 
Federal share of compensation for insured losses for the pertinent 
calendar year.



              Subpart I_Audit and Investigative Procedures



Sec.  50.80  Audit authority.

    The Secretary of the Treasury, or an authorized representative, 
shall have, upon reasonable notice, access to all books, documents, 
papers and records of an insurer that are pertinent to amounts paid to 
the insurer as the Federal share of compensation for insured losses, or 
pertinent to any Federal terrorism policy surcharge that is imposed 
pursuant to subpart J of this part, for the purposes of investigation, 
confirmation, audit, and examination.



Sec.  50.81  Recordkeeping.

    (a) Each insurer that seeks payment of a Federal share of 
compensation under subpart H of this part shall retain such records as 
are necessary to fully disclose all material matters pertinent to 
insured losses and the Federal share of compensation sought under the 
Program, including, but not limited to, records regarding premiums and 
insured losses for all commercial property and casualty insurance issued 
by the insurer and information relating to any adjustment in the amount 
of the Federal share of compensation payable. Insurers shall maintain 
detailed records for not less than five (5) years from the termination 
dates of all reinsurance agreements involving property and casualty 
insurance subject to the Act. Records relating to premiums

[[Page 446]]

shall be retained and available for review for not less than three (3) 
years following the conclusion of the policy year. Records relating to 
underlying claims shall be retained for not less than five (5) years 
following the final adjustment of the claim.
    (b) Each insurer that collects a Federal terrorism policy surcharge 
as required by subpart J of this part shall retain records related to 
such surcharge, including records of the property and casualty insurance 
premiums subject to the surcharge, the amount of the surcharge imposed 
on each policy, aggregate Federal terrorism policy surcharges collected, 
and aggregate Federal terrorism policy surcharges remitted to Treasury 
during each assessment period. Such records shall be retained and kept 
available for review for not less than three (3) years following the 
conclusion of the assessment period or settlement of accounts with 
Treasury, whichever is later.



Sec.  50.82  Civil penalties.

    (a) General. The Secretary may assess a civil monetary penalty, in 
an amount not exceeding the amount specified under Sec.  50.83, against 
any insurer that the Secretary determines, on the record after 
opportunity for a hearing:
    (1) Has failed to charge, collect, or remit the Federal terrorism 
policy surcharge under subpart J;
    (2) Has intentionally provided to Treasury erroneous information 
regarding premium or loss amounts;
    (3) Submits to Treasury fraudulent claims under the Program for 
insured losses;
    (4) Has failed to provide any disclosures or other information 
required by Treasury; or
    (5) Has otherwise failed to comply with provisions of the Act or 
these regulations.
    (b) Recovery of amount in dispute. A penalty under this section for 
any failure to pay, charge, collect, or remit amounts in accordance with 
the Act or under these regulations shall be in addition to any such 
amounts recovered by Treasury.
    (c) Procedure. Treasury shall notify in writing any insurer that it 
believes has committed one or more of the acts identified in paragraph 
(a) of this section. In that notification, Treasury shall identify the 
act or acts that it believes has been violated, and its basis for that 
belief, and shall set a schedule for further proceedings which shall 
include:
    (1) The opportunity for a written submission by the insurer that 
provides all relevant facts and circumstances concerning the alleged 
conduct, including any information that the insurer wishes Treasury to 
consider in connection with the alleged conduct; and
    (2) A hearing on the record, unless waived by the insurer, during 
which Treasury and the insurer may present further information 
respecting the conduct in question.
    (d) Other remedies preserved. Treasury's assessment and collection 
of a civil monetary penalty under this section shall be in addition and 
without prejudice to any other civil remedies or criminal penalties that 
may arise on account of the conduct in question under any other laws or 
regulations of the United States.



Sec.  50.83  Adjustment of civil monetary penalty amount.

    (a) Inflation Adjustment. Any penalty under the Act and these 
regulations may not exceed the greater of $1,436,220 and, in the case of 
any failure to pay, charge, collect or remit amounts in accordance with 
the Act or these regulations such amount in dispute.
    (b) Annual adjustment. The maximum penalty amount that may be 
assessed under this section will be adjusted in accordance with the 
Federal Civil Penalties Inflation Adjustment Act Improvements Act of 
2015, 28 U.S.C. 2461 note, by January 15 of each year and the updated 
amount will be posted in the Federal Register and on the Treasury 
website at https://home.treasury.gov/policy-issues/financial-markets-
financial-institutions-and-fiscal-service/federal-insurance-office/
terrorism-risk-insurance-program.

[81 FR 93765, Dec. 21, 2016, as amended at 86 FR 12539, Mar. 4, 2021; 86 
FR 30540, June 9, 2021]

[[Page 447]]



              Subpart J_Recoupment and Surcharge Procedures



Sec.  50.90  Mandatory and discretionary recoupment.

    (a) Pursuant to section 103(e) of the Act, the Secretary shall 
impose, and insurers shall collect, such Federal terrorism policy 
surcharges as needed to recover 140 percent of the mandatory recoupment 
amount for any calendar year.
    (b) In the Secretary's discretion, the Secretary may recover any 
portion of the aggregate Federal share of compensation that exceeds the 
mandatory recoupment amount through a Federal terrorism policy surcharge 
based on the factors set forth in section 103(e)(7)(D) of the Act.
    (c) If the Secretary imposes a federal terrorism policy surcharge as 
provided in paragraph (a) of this section, then the required amounts, 
based upon the extent to which payments for the Federal Share of 
Compensation have been made by the collection deadlines in section 
103(e)(7)(E) of the Act, shall be collected in accordance with such 
deadlines:
    (1) For any act of terrorism that occurs on or before December 31, 
2022, the Secretary shall collect all required amounts by September 30, 
2024;
    (2) For any act of terrorism that occurs between January 1, 2023 and 
December 31, 2023, the Secretary shall collect 35% of any required 
amounts by September 30, 2024, and the remainder by September 30, 2029; 
and
    (3) For any act of terrorism that occurs on or after January 1, 
2024, the Secretary shall collect all required amounts by September 30, 
2029.

[81 FR 93765, Dec. 21, 2016, as amended at 86 FR 30541, June 9, 2021]



Sec.  50.91  Determination of recoupment amounts.

    (a) If payments for the Federal share of compensation have been made 
for a calendar year, and Treasury determines that insured loss 
information is sufficiently developed and credible to serve as a basis 
for calculating recoupment amounts, Treasury will make an initial 
determination of any mandatory or discretionary recoupment amounts for 
that calendar year.
    (b)(1) Within 90 days after certification of an act of terrorism, 
the Secretary shall publish in the Federal Register an estimate of 
aggregate insured losses which shall be used as the basis for initially 
determining whether mandatory recoupment will be required.
    (2) If at any time Treasury projects that payments for the Federal 
share of compensation will be made for a calendar year, and that in 
order to meet the collection timing requirements of section 103(e)(7)(E) 
of the Act it is necessary to use an estimate of such payments as a 
basis for calculating recoupment amounts, Treasury will make an initial 
determination of any mandatory recoupment amounts for that calendar 
year.
    (c) Following the initial determination of recoupment amounts for a 
calendar year, Treasury will recalculate any mandatory or discretionary 
recoupment amount as necessary and appropriate, and at least annually, 
until a final recoupment amount for the calendar year is determined. 
Treasury will compare any recalculated recoupment amount to amounts 
already remitted and/or to be remitted to Treasury for a Federal 
terrorism policy surcharge previously established to determine whether 
any additional amount will be recouped by Treasury.
    (d) For the purpose of determining initial or recalculated 
recoupment amounts, Treasury may issue a data call to insurers for 
insurer deductible and insured loss information by calendar year. 
Treasury's determination of the aggregate amount of insured losses from 
Program Trigger Events of all insurers for a calendar year will be based 
on the amounts reported in response to a data call and any other 
information Treasury in its discretion considers appropriate. Submission 
of data in response to a data call shall be on a form promulgated by 
Treasury.



Sec.  50.92  Establishment of Federal terrorism policy surcharge.

    (a) Treasury will establish the Federal terrorism policy surcharge 
based on the following factors and considerations:

[[Page 448]]

    (1) In the case of a mandatory recoupment amount, the requirement to 
collect 140 percent of that amount;
    (2) The total dollar amount to be recouped as a percentage of the 
latest available annual aggregate industry direct written premium 
information;
    (3) The adjustment factors for terrorism loss risk-spreading 
premiums described in section 103(e)(8)(D) of the Act;
    (4) The annual 3 percent limitation on terrorism loss risk-spreading 
premiums collected on a discretionary basis as provided in section 
103(e)(8)(C) of the Act;
    (5) A preferred minimum initial assessment period of one full year 
and subsequent extension periods in full year increments;
    (6) The collection timing requirements of section 103(e)(8)(E) of 
the Act;
    (7) The likelihood that the amount of the Federal terrorism policy 
surcharge may result in the collection of an aggregate recoupment amount 
in excess of the planned recoupment amount; and
    (8) Such other factors as the Secretary considers appropriate to 
take into account.
    (b) The Federal terrorism policy surcharge shall be the obligation 
of the policyholder and is payable to the insurer with the premium for a 
property and casualty insurance policy in effect during the assessment 
period established by Treasury. See Sec.  50.94(c).



Sec.  50.93  Notification of recoupment.

    (a) Treasury will provide notifications of recoupment through 
publication of notices in the Federal Register or in another manner 
Treasury deems appropriate, based upon the circumstances of the 
certified act(s) of terrorism under consideration.
    (b) Treasury will provide reasonable advance notice to insurers of 
any initial Federal terrorism policy surcharge effective date. This 
effective date shall be January 1 of the calendar year following 
publication of the notice, unless such date would not provide for 
sufficient notice of implementation while meeting the collection timing 
requirements of section 103(e)(8)(E) of the Act.
    (c) Treasury will provide reasonable advance notice to insurers of 
any modification or cessation of the Federal terrorism policy surcharge.
    (d) Treasury will provide notification to insurers annually as to 
the continuation of the Federal terrorism policy surcharge.



Sec.  50.94  Collecting the surcharge.

    (a) Insurers shall collect a Federal terrorism policy surcharge from 
policyholders as required by Treasury.
    (b) Policies subject to the Federal terrorism policy surcharge are 
those for which direct written premium is reported on commercial lines 
of business on the NAIC's Exhibit of Premiums and Losses of the NAIC 
Annual Statement (commonly known as Statutory Page 14) as provided in 
Sec.  50.4(w)(1), or equivalently reported.
    (c) For policies subject to the Federal terrorism policy surcharge, 
the surcharge shall be imposed and collected on a written premium basis 
for policies that become effective or renew during the assessment 
period. All new, renewal, mid-term, and audit premiums for a policy term 
are subject to the surcharge in effect on the policy term effective 
date. Notwithstanding this paragraph, if the premium for a policy term 
that would otherwise be subject to the surcharge is revised after the 
end of the reporting period described in Sec.  50.95(e), then any 
additional premium attributable to such revision is not subject to the 
Surcharge. For purposes of this subpart:
    (1) Written premium basis means the premium amount charged a 
policyholder by an insurer for property and casualty insurance, 
including all premiums, policy expense constants and fees defined as 
premium pursuant to the Statements of Statutory Accounting Principles 
established by the NAIC, as adopted by the state for which the premium 
will be reported.
    (2) In the case of a policy providing multiple insurance coverages, 
if an insurer cannot identify the premium amount charged a policyholder 
specifically for property and casualty insurance under the policy, then:
    (i) If the insurer estimates that the portion of the premium amount 
charged for coverage other than property and casualty insurance is de 
minimis to the total premium for the policy,

[[Page 449]]

the insurer may impose and collect from the policyholder a surcharge 
amount based on the total premium for the policy, but
    (ii) If the insurer estimates that the portion of the premium amount 
charged for coverage other than property and casualty insurance is not 
de minimis, the insurer shall impose and collect from the policyholder a 
Surcharge amount based on a reasonable estimate of the premium amount 
for the property and casualty insurance coverage under the policy.
    (3) The Federal terrorism policy surcharge is not considered 
premium.
    (d) A policyholder must pay the applicable Federal terrorism policy 
surcharge when due. The insurer shall have such rights and remedies to 
enforce the collection of the surcharge that are the equivalent to those 
that exist under applicable state or other law for nonpayment of 
premium.
    (e) When an insurer returns an unearned premium, or otherwise 
refunds premium to a policyholder, it shall also return any Federal 
terrorism policy surcharge collected that is attributable to the 
refunded unearned premium. Notwithstanding this paragraph, if the 
written premium for a policy is revised and refunded after the end of 
the reporting period described in Sec.  50.95(e), then the insurer is 
not required to refund any Surcharge that is attributable to the 
refunded premium.
    (f) Notwithstanding paragraphs (a), (b), and (c) of this section, if 
the expense of collecting the Federal terrorism policy surcharge from 
all policyholders of an insurer during an assessment period exceeds the 
amount of the Surcharges anticipated to be collected, such insurer may 
satisfy its obligation to collect by omitting actual collection and 
instead remitting to Treasury the amount otherwise due.
    (g) The Federal terrorism policy surcharge is repayment of Federal 
financial assistance in an amount required by law. No fee or commission 
shall be charged on the Federal terrorism policy surcharge.



Sec.  50.95  Remitting the surcharge.

    (a) Each insurer shall report direct written premium and Federal 
terrorism policy surcharges to Treasury on a monthly and annual basis 
during the assessment period. Reporting will be on a form prescribed by 
Treasury and will be due according to the following schedule:
    (1) Monthly: From the beginning of the assessment period through 
November, on the last business day of the calendar month following the 
month for which premium is reported, and
    (2) Annually: March 1 for the prior calendar year.
    (b) The monthly statements provided to Treasury will include the 
following:
    (1) Cumulative calendar year direct written premium adjusted for 
premium not subject to the Federal terrorism policy surcharge, 
summarized by policy year.
    (2) The aggregate Federal terrorism policy surcharge amount 
calculated by applying the established surcharge percentage to the 
insurer's adjusted direct written premium by policy year.
    (3) Insurer certification of the submission.
    (c) The annual statements to be provided to Treasury will include 
the following:
    (1) Direct written premium, adjusted for premium not subject to the 
Federal terrorism policy surcharge, summarized by policy year and by 
commercial line of insurance as specified in Sec.  50.4(w).
    (2) The aggregate Federal terrorism policy surcharge amount 
calculated by applying the established surcharge percentage to the 
insurer's adjusted direct written premium by policy year.
    (3) In the case of an insurer that has chosen not to collect the 
Federal terrorism policy surcharge from its policyholders as provided in 
Sec.  50.94(f), a certification that the expense of collecting the 
Surcharge during the assessment period would have exceeded the amount of 
the surcharges collected over the assessment period.
    (4) Insurer certification of the submission.
    (d) The calculated aggregate Federal terrorism policy surcharge 
amount, as described in paragraphs (b)(2) and (c)(2) of this section, 
shall be remitted to Treasury upon submission of each monthly and annual 
statement. Through its submitted statements, an insurer obtains credit 
for a refund of

[[Page 450]]

any Federal terrorism policy surcharge previously remitted to Treasury 
that was subsequently returned by the insurer to a policyholder as 
attributable to refunded premium under Sec.  50.94(e). A negative 
calculated amount in a monthly or annual statement indicates payment 
from Treasury is due to the insurer.
    (e) Reporting shall continue for the one-year period following the 
end of the assessment period established by Treasury, unless otherwise 
permitted by Treasury.



Sec.  50.96  Insurer responsibility.

    Notwithstanding Sec.  50.4(o), for purposes of the collection, 
reporting and remittance of Federal terrorism policy surcharges to 
Treasury, the definition of insurer shall not include any affiliate of 
the insurer.



       Subpart K_Federal Cause of Action; Approval of Settlements



Sec.  50.100  Federal cause of action and remedy.

    (a) General. If the Secretary certifies an act as an act of 
terrorism pursuant to subpart G of this part, there shall exist a 
Federal cause of action for property damage, personal injury, or death 
arising out of or resulting from such act of terrorism, pursuant to 
section 107 of the Act, which shall be the exclusive cause of action and 
remedy for claims for property damage, personal injury, or death arising 
out of or relating to such act of terrorism, except as provided in 
paragraph (d) of this section.
    (b) Jurisdiction. For each determination described in paragraph (a) 
of this section, not later than 90 days after the Secretary certifies an 
act as an act of terrorism, the Judicial Panel on Multidistrict 
Litigation shall designate a single district court or, if necessary, 
multiple district courts of the United States that shall have original 
and exclusive jurisdiction over all actions for any claim (including any 
claim for loss of property, personal injury, or death) relating to or 
arising out of an act of terrorism subject to section 107 of the Act.
    (c) Effective period. The exclusive Federal cause of action and 
remedy described in paragraph (a) of this section shall exist only for 
causes of action for property damage, personal injury, or death that 
arise out of or result from acts of terrorism during the effective 
period of the Program.
    (d) Rights not affected. Nothing in section 107 of the Act or this 
subpart shall in any way:
    (1) Limit the liability of any government, organization, or person 
who knowingly participates in, conspires to commit, aids and abets, or 
commits any act of terrorism;
    (2) Affect any party's contractual right to arbitrate a dispute; or
    (3) Affect any provision of the Air Transportation Safety and System 
Stabilization Act (Pub. L. 107-42; 49 U.S.C. 40101 note).



Sec.  50.101  State causes of action preempted.

    All State causes of action of any kind for property damage, personal 
injury, or death arising out of or resulting from an act of terrorism 
that are otherwise available under state law are preempted, except that, 
pursuant to section 107(b) of the Act, nothing in this section shall 
limit in any way the liability of any government, organization, or 
person who knowingly participates in, conspires to commit, aids and 
abets, or commits the act of terrorism certified by the Secretary.



Sec.  50.102  Advance approval of settlements.

    (a) Mandatory submission of settlements for advance approval. 
Pursuant to section 107(a)(6) of the Act, an insurer shall submit to 
Treasury for advance approval any proposed agreement to settle or 
compromise any Federal cause of action for property damage, personal 
injury, or death, asserted by a third-party or parties against an 
insured, involving an insured loss, all or part of the payment of which 
the insurer intends to include in its aggregate insured losses for 
purposes of calculating the insurer deductible or the Federal share of 
compensation of its insured losses under the Program, when:
    (1) Any portion of the proposed settlement amount that is 
attributable to

[[Page 451]]

an insured loss or losses involving personal injury or death in the 
aggregate is $2 million or more per third-party claimant, regardless of 
the number of causes of action or insured losses being settled; or
    (2) Any portion of the proposed settlement amount that is 
attributable to an insured loss or losses involving property damage 
(including loss of use) in the aggregate is $10 million or more per 
third-party claimant, regardless of the number of causes of action or 
insured losses being settled.
    (b) Discretionary review of other settlements. Notwithstanding 
paragraph (a) of this section, Treasury may require that an insurer 
submit for review and advance approval any proposed agreement to settle 
or compromise any Federal cause of action for property damage, personal 
injury, or death, asserted by a third-party or parties against an 
insured, involving an insured loss, all or part of the payment of which 
the insurer intends to include in its aggregate insured losses for 
purposes of calculating the insurer deductible or the Federal share of 
compensation of its insured losses where the settlement amounts are 
below the applicable monetary thresholds identified in paragraphs (a)(1) 
and (2) of this section.
    (c) Factors. In determining whether to approve a proposed 
settlement, Treasury will consider the nature of the loss, the facts and 
circumstances surrounding the loss, and other factors such as whether:
    (1) The proposed settlement compensates for a third-party's loss, 
the liability for which is an insured loss under the terms and 
conditions of the underlying commercial property and casualty insurance 
policy, as certified by the insurer pursuant to Sec.  50.103(d)(2);
    (2) Any amount of the proposed settlement is attributable to 
punitive or exemplary damages intended to punish or deter (whether or 
not specifically so described as such damages);
    (3) The settlement amount offsets amounts received from the United 
States pursuant to any other Federal program;
    (4) The settlement amount does not include any items such as fees 
and expenses of attorneys, experts, and other professionals that have 
caused the insured losses under the underlying commercial property and 
casualty insurance policy to be overstated; and
    (5) Any other criteria that Treasury may consider appropriate, 
depending on the facts and circumstances surrounding the settlement, 
including the information contained in Sec.  50.103.
    (d) Settlement without seeking advance approval or despite 
disapproval. If an insurer settles a cause of action or agrees to the 
settlement of a cause of action without submitting the proposed 
settlement for Treasury's advance approval in accordance with paragraph 
(a) or (b) of this section, and in accordance with Sec.  50.103 or 
despite Treasury's disapproval of the proposed settlement, the insurer 
will not be entitled to include the paid settlement amount (or portion 
of the settlement amount, to the extent partially disapproved) in its 
aggregate insured losses for purposes of calculating the Federal share 
of compensation of its insured losses, unless the insurer can 
demonstrate, to the satisfaction of Treasury, extenuating circumstances.



Sec.  50.103  Procedure for requesting approval of proposed settlements.

    (a) Submission of notice. Insurers must request advance approval of 
a proposed settlement by submitting a notice of the proposed settlement 
and other required information in writing to the Terrorism Risk 
Insurance Program Office or its designated representative. The address 
where notices are to be submitted will be available at https://
home.treasury.gov/policy-issues/financial-markets-financial-
institutions-and-fiscal-service/federal-insurance-office/terrorism-risk-
insurance-program following any certification of an act of terrorism 
pursuant to section 102(1) of the Act.
    (b) Complete notice. Treasury will review requests for advance 
approval and determine whether additional information is needed to 
complete the notice.
    (c) Treasury response or deemed approval. Within 30 days after 
Treasury's receipt of a complete notice, or as extended in writing by 
Treasury, Treasury may issue a written response and indicate its partial 
or full approval or rejection of the proposed settlement. If Treasury 
does not issue a response within 30 days after Treasury's receipt

[[Page 452]]

of a complete notice, unless extended in writing by Treasury, the 
request for advance approval is deemed approved by Treasury. Any 
settlement is still subject to review under the claim procedures 
pursuant to Sec.  50.80.
    (d) Notice format. A notice of a proposed settlement should be 
entitled, ``Notice of Proposed Settlement--Request for Approval,'' and 
should provide the full name and address of the submitting insurer and 
the name, title, address, and telephone number of the designated contact 
person. An insurer must provide all relevant information, including the 
following, as applicable:
    (1) A brief description of the claim against the insured, the amount 
of the claim, the operative policy terms, and defenses to coverage;
    (2) A certification by the insurer that the settlement is for a 
third-party's loss, the liability for which is an insured loss under the 
terms and conditions of the underlying commercial property and casualty 
insurance policy;
    (3) A brief description of all damages allegedly sustained and an 
itemized statement of all damages by category (i.e., actual, economic 
and non-economic loss, punitive damages, etc.);
    (4) A statement from the insurer or its attorney in support of the 
settlement;
    (5) The total dollar amount of the proposed settlement and the 
amount of the proposed settlement which is an insured loss;
    (6) Indication as to whether the settlement was negotiated by 
counsel;
    (7) The amount to be paid that will compensate for any items such as 
fees and expenses of attorneys, experts, and other professionals for 
their services and expenses related to the insured loss and/or 
settlement and the net amount to be received by the third-party after 
such payment;
    (8) The amount(s) received from the United States pursuant to any 
other Federal program(s) for compensation of insured losses related to 
an act of terrorism;
    (9) The proposed terms of the written settlement agreement, 
including release language and subrogation terms;
    (10) Other relevant agreements, including:
    (i) Admissions of liability or insurance coverage;
    (ii) Determinations of the number of occurrences under a commercial 
property and casualty insurance policy;
    (iii) The allocation of paid amounts or amounts to be paid to 
certain policies, or to a specific policy, coverage and/or aggregate 
limits;
    (iv) Any other agreement that may affect the payment or amount of 
the Federal share of compensation to be paid to the insurer; and
    (v) Any other relevant agreement requested by Treasury.
    (11) A statement indicating whether the proposed settlement has been 
approved by the Federal court or is subject to such approval and whether 
such approval is expected or likely; and
    (12) Such other information that is related to the insured loss as 
may be requested by Treasury that it deems necessary to evaluate the 
proposed settlement.

[81 FR 93765, Dec. 21, 2016, as amended at 86 FR 30541, June 9, 2021]



Sec.  50.104  Subrogation.

    An insurer shall not waive its rights of subrogation under its 
property and casualty insurance policy with respect to any losses the 
payment of which the insurer intends to include in its insurer 
deductible or the aggregate insured losses for purposes of calculating 
the Federal share of compensation of its insured losses and shall, 
unless upon request the United States agrees in writing to forbear from 
exercising such right, preserve the subrogation right of the United 
States as provided by section 107(c) of the Act by not taking any action 
that would prejudice the subrogation right of the United States.



                    Subpart L_Cap on Annual Liability



Sec.  50.110  Cap on annual liability.

    Pursuant to section 103 of the Act, if the aggregate insured losses 
exceed $100,000,000,000 during a calendar year:
    (a) The Secretary shall not make any payment for any portion of the 
amount of such losses that exceeds $100,000,000,000;

[[Page 453]]

    (b) An insurer that has met its insurer deductible shall not be 
liable for the payment of any portion of the amount of such losses that 
exceeds $100,000,000,000; and
    (c) The Secretary shall determine the pro rata share of insured 
losses to be paid by each insurer that incurs insured losses under the 
Program.



Sec.  50.111  Notice to Congress.

    Pursuant to section 103(e)(3) of the Act, the Secretary shall 
provide an initial notice to Congress within 15 days of the 
certification of an act of terrorism, stating whether the Secretary 
estimates that aggregate insured losses will exceed $100,000,000,000 for 
the calendar year in which the event occurs. Such initial estimate may 
be based on insured loss amounts as compiled by insurance industry 
statistical organizations, data previously collected by the Secretary, 
and any other information the Secretary in his or her discretion 
considers appropriate. The Secretary shall also notify Congress if 
estimated or actual aggregate insured losses exceed $100,000,000,000 
during any calendar year.



Sec.  50.112  Determination of pro rata share.

    (a) Pro rata loss percentage (PRLP) is the percentage determined by 
the Secretary to be applied by an insurer against the amount that would 
otherwise be paid by the insurer under the terms and conditions of an 
insurance policy providing property and casualty insurance under the 
Program if there were no cap on annual liability under section 
103(e)(2)(A) of the Act.
    (b) Except as provided in paragraph (e) of this section, if Treasury 
estimates that aggregate insured losses may exceed the cap on annual 
liability for a calendar year, then Treasury will determine a PRLP. The 
PRLP applies to insured loss payments by insurers for insured losses 
incurred in the subject calendar year, as specified in Sec.  50.113, 
from the effective date of the PRLP, as established by Treasury, until 
such time as Treasury provides notice that the PRLP is revised. Treasury 
will determine the PRLP based on the following considerations:
    (1) Estimates of insured losses from insurance industry statistical 
organizations;
    (2) Any data calls issued by Treasury (see Sec.  50.114);
    (3) Expected reliability and accuracy of insured loss estimates and 
likelihood that insured loss estimates could increase;
    (4) Estimates of insured losses and expenses not included in 
available statistical reporting;
    (5) Such other factors as the Secretary considers important.
    (c) Treasury shall provide notice of the determination of the PRLP 
through publication in the Federal Register, or in another manner 
Treasury deems appropriate, based upon the circumstances of the act of 
terrorism under consideration.
    (d) As appropriate, Treasury will determine any revision to a PRLP 
based on the same considerations listed in paragraph (b) of this 
section, and will provide notice for its application to insured loss 
payments.
    (e) If Treasury estimates based on an initial act of terrorism or 
subsequent act of terrorism within a calendar year that aggregate 
insured losses may exceed the cap on annual liability, but an 
appropriate PRLP cannot yet be determined, Treasury will provide 
notification advising insurers of this circumstance and, after 
consulting with the relevant state authorities, may initiate the action 
described in either paragraph (e)(1) or (2) of this section.
    (1) Hiatus in payments. Call a hiatus in insurer loss payments for 
insured losses of up to two weeks. In such a circumstance, Treasury will 
determine a PRLP as quickly as possible. The PRLP, as later determined, 
will be effective retroactively as of the start of the hiatus. Any 
insured losses submitted in support of an insurer's claim for the 
Federal share of compensation will be reviewed for the insurer's 
compliance with pro rata payments in accordance with the effective date 
of the PRLP.
    (2) Determine an interim PRLP. (i) An interim PRLP is an amount 
determined without the availability of information necessary for 
consideration of all factors listed in Sec.  50.112(b). It is a 
conservatively low percentage amount

[[Page 454]]

determined in order to facilitate initial partial claim payments by 
insurers after an act of terrorism and prior to the time that 
information becomes available to determine a PRLP based on consideration 
of the factors listed in Sec.  50.112(b).
    (ii) In such a circumstance, Treasury will determine a PRLP to 
replace the interim PRLP as quickly as possible. The PRLP, as later 
determined, will be effective retroactively as of the effective date of 
the interim PRLP. Any insured losses submitted in support of an 
insurer's claim for the Federal share of compensation will be reviewed 
for the insurer's compliance with pro rata payments in accordance with 
the effective date of the interim PRLP, or as later replaced by the PRLP 
as appropriate.



Sec.  50.113  Application of pro rata share.

    An insurer shall apply the PRLP to determine the pro rata share of 
each insured loss to be paid by the insurer on all insured losses in the 
absence of an agreement on a complete and final settlement as evidenced 
by a signed settlement agreement or other means reviewable by a third 
party as of the effective date established by Treasury. Payments based 
on the application of the PRLP and determination of the pro rata share 
satisfy the insurer's liability for payment under the Program. 
Application of the PRLP and the determination of the pro rata share are 
the exclusive means for calculating the amount of insured losses for 
Program purposes. The pro rata share is subject to the following:
    (a) The pro rata share is determined based on the estimated or 
actual final claim settlement amount that would otherwise be paid.
    (b) All policies. If partial payments have already been made as of 
the effective date of the PRLP, then the pro rata share for that loss is 
the greater of the amount already paid as of the effective date of the 
PRLP or the amount computed by applying the PRLP to the estimated or 
actual final claim settlement amount that would otherwise be paid.
    (c) Certain workers' compensation insurance policies. If an 
insurer's payments under a workers' compensation policy cumulatively 
exceed the amount computed by applying the PRLP to the estimated or 
actual final claim settlement amount that would otherwise be paid 
because such estimated or actual final settlement amount is reduced from 
a previous estimate, then the insurer may request a review and 
adjustment by Treasury in the calculation of the Federal share of 
compensation. In requesting such a review, the insurer must submit 
information to supplement its Certification of Loss demonstrating a 
reasonable estimate invalidated by unexpected conditions differing from 
prior assumptions including, but not limited to, an explanation and the 
basis for the prior assumptions.
    (d) If an insurer has not yet made payments in excess of its insurer 
deductible, the rules in this paragraph apply.
    (1) If the insurer estimates that it will exceed its insurer 
deductible making payments based on the application of the PRLP to its 
insured losses, then the insurer shall apply the PRLP as of the 
effective date specified in Sec.  50.112(b).
    (2)(i) If the insurer estimates that it will not exceed its insurer 
deductible making payments based on the application of the PRLP to its 
insured losses, then the insurer may make payments on the same basis as 
prior to the effective date of the PRLP. The insurer may also make 
payments on the basis of applying some other pro rata amount it 
determines that is greater than the PRLP, where the insurer estimates 
that application of such other pro rata amount will result in it not 
exceeding its insurer deductible. The insurer remains liable for losses 
in accordance with Sec.  50.115(c).
    (ii) If an insurer estimates that it will not exceed its insurer 
deductible and has made payments on the basis provided in paragraph 
(d)(2)(i) of this section, but thereafter reaches its insurer 
deductible, then the insurer shall apply the PRLP to any remaining 
insured losses. When such an insurer submits a claim for the Federal 
share of compensation, the amount of the insurer's losses will be deemed 
to be the amount it would have paid if it had applied the PRLP as of the 
effective date, and the Federal share of compensation

[[Page 455]]

will be calculated on that amount. However, an insurer may request an 
exception if it can demonstrate that its estimate was invalidated as a 
result of insured losses from a subsequent act of terrorism.



Sec.  50.114  Data call authority.

    For the purpose of determining initial or recalculated PRLPs, 
Treasury may issue a data call to insurers for insured loss information, 
seeking information in addition to any information provided to Treasury 
under subparts F and H of this part.



Sec.  50.115  Final amount.

    (a) Treasury shall determine if, as a final proration, remaining 
insured loss payments, as well as adjustments to previous insured loss 
payments, can be made by insurers based on an adjusted PLRP, and 
aggregate insured losses still remain within the cap on annual 
liability. In such a circumstance, Treasury will notify insurers as to 
the final PRLP and its application to insured losses.
    (b) If paragraph (a) of this section applies, Treasury may require, 
as part of the insurer submission for the Federal share of compensation 
for insured losses, a supplementary explanation regarding how additional 
payments will be provided on previously settled insured losses.
    (c) An insurer that has prorated its insured losses, but that has 
not met its insurer deductible, remains liable for loss payments that in 
the aggregate bring the insurer's total insured loss payments up to an 
amount equal to the lesser of its insured losses without proration or 
its insurer deductible.

[[Page 457]]

          Subtitle B--Regulations Relating to Money and Finance

[[Page 459]]



         CHAPTER I--MONETARY OFFICES, DEPARTMENT OF THE TREASURY




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


  Editorial Note: For a document summarizing part 103's removal and 
distribution into 31 CFR chapter X, see 75 FR 65812, Oct. 26, 2010.
Part                                                                Page
51-55

[Reserved]

56              Domestic gold and silver operations sale of 
                    silver..................................         461
82              5-Cent and one-cent coin regulations........         461
91              Regulations governing conduct in or on the 
                    Bureau of the Mint buildings and grounds         462
92              United States Mint operations and procedures         464
100             Exchange of paper currency and coin.........         471
101             Mitigation of forfeiture of counterfeit gold 
                    coins...................................         477
123

[Reserved]

128             Reporting of international capital and 
                    foreign-currency transactions and 
                    positions...............................         478
129             Portfolio investment survey reporting.......         482
130-131

[Reserved]

132             Prohibition on funding of unlawful Internet 
                    gambling................................         484
133-147

[Reserved]

148             Qualified financial contracts recordkeeping 
                    related to the FDIC orderly liquidation 
                    authority...............................         494
149             Calculation of maximum obligation limitation         521
150             Financial research fund.....................         522
151-199

[Reserved]

[[Page 461]]

                         PARTS 51	55 [RESERVED]



PART 56_DOMESTIC GOLD AND SILVER OPERATIONS SALE OF SILVER-
-Table of Contents



Sec.
56.1 Conditions upon which silver will be sold.
56.2 Sales price.

    Authority: Sec. 209, 79 Stat. 257; 31 U.S.C. 405a-1.



Sec.  56.1  Conditions upon which silver will be sold.

    The General Services Administration, as agent for the Treasury 
Department, will conduct periodic sales of silver as agreed upon between 
GSA and the Treasury Department. Sales will be under competitive bidding 
procedures established by agreement between GSA and the Treasury 
Department. Details of the bidding and selling procedures are obtainable 
by telephone or by writing to General Services Administration, Property 
Management and Disposal Service, Industry Materials Division, Metals 
Project, Washington, DC 20405.

[32 FR 13380, Sept. 22, 1967]



Sec.  56.2  Sales price.

    Sales of silver will be at prices offered through the competitive 
bidding procedures referred to in Sec.  56.1, and accepted by the GSA.

[32 FR 13380, Sept. 22, 1967]



PART 82_5-CENT AND ONE-CENT COIN REGULATIONS--Table of Contents



Sec.
82.1 Prohibitions.
82.2 Exceptions.
82.3 Definitions.
82.4 Penalties.

    Authority: 31 U.S.C. 5111(d).

    Source: 72 FR 61055, Oct. 29, 2007, unless otherwise noted.



Sec.  82.1  Prohibitions.

    Except as specifically authorized by the Secretary of the Treasury 
(or designee) or as otherwise provided in this part, no person shall 
export, melt, or treat:
    (a) Any 5-cent coin of the United States; or
    (b) Any one-cent coin of the United States.



Sec.  82.2  Exceptions.

    (a) The prohibition contained in Sec.  82.1 against the exportation 
of 5-cent coins and one-cent coins of the United States shall not apply 
to:
    (1) The exportation in any one shipment of 5-cent coins and one-cent 
coins having an aggregate face value of not more than $100 that are to 
be legitimately used as money or for numismatic purposes. Nothing in 
this paragraph shall be construed to authorize export for the purpose of 
sale or resale of coins for melting or treatment by any person.
    (2) The exportation of 5-cent coins and one-cent coins carried on an 
individual, or in the personal effects of an individual, departing from 
a place subject to the jurisdiction of the United States, when the 
aggregate face value is not more than $5, or when the aggregate face 
value is not more than $25 and it is clear that the purpose for 
exporting such coins is for legitimate personal numismatic, amusement, 
or recreational use.
    (b) The prohibition contained in Sec.  82.1 against the treatment of 
5-cent coins and one-cent coins shall not apply to the treatment of 
these coins for educational, amusement, novelty, jewelry, and similar 
purposes as long as the volumes treated and the nature of the treatment 
makes it clear that such treatment is not intended as a means by which 
to profit solely from the value of the metal content of the coins.
    (c) The prohibition contained in Sec.  82.1 against the exportation, 
melting, or treatment of 5-cent and one-cent coins of the United States 
shall not apply to coins exported, melted, or treated incidental to the 
recycling of other materials so long as--
    (1) Such 5-cent and one-cent coins were not added to the other 
materials for their metallurgical value;
    (2) The volumes of the 5-cent coins and one-cent coins, relative to 
the volumes of the other materials recycled, makes it clear that the 
presence of such coins is merely incidental; and

[[Page 462]]

    (3) The separation of the 5-cent and one-cent coins from the other 
materials would be impracticable or cost prohibitive.
    (d) The prohibition contained in Sec.  82.1 against the exportation, 
melting, or treatment of 5-cent coins shall not apply to 5-cent coins 
inscribed with the years 1942, 1943, 1944, or 1945 that are composed of 
an alloy comprising copper, silver and manganese.
    (e) The prohibition contained in Sec.  82.1 against the exportation 
of 5-cent coins and one-cent coins shall not apply to 5-cent coins and 
one-cent coins exported by a Federal Reserve Bank or a domestic 
depository institution, or to a foreign central bank, when the 
exportation of such 5-cent coins and one-cent coins is for use as 
circulating money.
    (f)(1) The prohibition contained in Sec.  82.1 against exportation, 
melting, or treatment of 5-cent coins and one-cent coins of the United 
States shall not apply to coins exported, melted, or treated under a 
written license issued by the Secretary of the Treasury (or designee).
    (2) Applications for licenses should be transmitted to the Director, 
United States Mint, 801 9th Street, NW., Washington, DC 20220.



Sec.  82.3  Definitions.

    (a) 5-cent coin of the United States means a 5-cent coin minted and 
issued by the Secretary of the Treasury pursuant to 31 U.S.C. 
5112(a)(5).
    (b) One-cent coin of the United States means a one-cent coin minted 
and issued by the Secretary of the Treasury pursuant to 31 U.S.C. 
5112(a)(6).
    (c) Export means to remove, send, ship, or carry, or to take any 
action with the intent to facilitate a person's removing, sending, 
shipping, or carrying, from the United States or any place subject to 
the jurisdiction thereof, to any place outside of the United States or 
to any place not subject to the jurisdiction thereof.
    (d) Person means any individual, partnership, association, 
corporation, or other organization, but does not include an agency of 
the Government of the United States.
    (e) Treat or treatment means to smelt, refine, or otherwise treat by 
heating, or by a chemical, electrical, or mechanical process.



Sec.  82.4  Penalties.

    (a) Any person who exports, melts, or treats 5-cent coins or one-
cent coins of the United States in violation of Sec.  82.1 shall be 
subject to the penalties specified in 31 U.S.C. 5111(d), including a 
fine of not more than $10,000 and/or imprisonment of not more than 5 
years.
    (b) In addition to the penalties prescribed by 31 U.S.C. 5111(d), a 
person violating the prohibitions of this part may be subject to other 
penalties provided by law, including 18 U.S.C. 1001(a).




PART 91_REGULATIONS GOVERNING CONDUCT IN OR ON THE BUREAU OF THE MINT
BUILDINGS AND GROUNDS--Table of Contents



Sec.
91.1 Authority.
91.2 Applicability.
91.3 Recording presence.
91.4 Preservation of property.
91.5 Compliance with signs and directions.
91.6 Nuisances.
91.7 Gambling.
91.8 Alcoholic beverages, narcotics, hallucinogenic and dangerous drugs.
91.9 Soliciting, vending, debt collection, and distribution of 
          handbills.
91.10 Photographs.
91.11 Dogs and other animals.
91.12 Vehicular and pedestrian traffic.
91.13 Weapons and explosives.
91.14 Penalties and other law.

    Authority: 5 U.S.C. 301, by delegation from the Administrator of 
General Services, 35 FR 14426, and Treasury Department Order 177-25 
(Revision 2), 38 FR 21947.

    Source: 34 FR 503, Jan. 14, 1969, unless otherwise noted.



Sec.  91.1  Authority.

    The regulations in this part governing conduct in and on the Bureau 
of the Mint buildings and grounds located as follows: U.S. Mint, Colfax, 
and Delaware Streets, Denver, Colorado; U.S. Bullion Depository, Fort 
Knox, Kentucky; U.S. Assay Office, 32 Old Slip New York, New York; U.S. 
Mint, 5th and Arch Streets, Philadelphia, Pennsylvania; U.S. Assay 
Office, 155 Hermann Street, and the Old U.S. Mint

[[Page 463]]

Building, 88 Fifth Street, San Francisco, California; and U.S. Bullion 
Depository, West Point, New York; are promulgated pursuant to the 
authority vested in the Secretary of the Treasury, including 5 U.S.C. 
301, and that vested in him by delegation from the Administrator of 
General Services, 38 FR 20650 (1973), and in accordance with the 
authority vested in the Director of the Mint by Treasury Department 
Order No. 177-25 Revision 2), dated August 8, 1973, 38 FR 21947 (1973).

[38 FR 24897, Sept. 11, 1973]



Sec.  91.2  Applicability.

    The regulations in this part apply to the buildings and grounds of 
the Bureau of the Mint located as follows: U.S. Mint, Colfax and 
Delaware Streets, Denver, Colorado; U.S. Bullion Depository, Fort Knox, 
Kentucky; U.S. Assay Office, 32 Old Slip, New York, New York; U.S. Mint, 
Fifth and Arch Streets, Philadelphia, Pennsylvania; U.S. Assay Office, 
155 Hermann Street, and the Old U.S. Mint Building, 88 Fifth Street, San 
Francisco, California; and U.S. Bullion Depository, West Point, New 
York; and to all persons entering in or on such property. Unless 
otherwise stated herein, the Bureau of the Mint buildings and grounds 
shall be referred to in these regulations as the ``property''.

[38 FR 24897, Sept. 11, 1973]



Sec.  91.3  Recording presence.

    Except as otherwise ordered, the property shall be closed to the 
public during other than normal working hours. The property shall also 
be closed to the public when, in the opinion of the senior supervising 
official of any Bureau of the Mint establishment covered by these 
regulations, or his delegate, an emergency situation exists, and at such 
other times as may be necessary for the orderly conduct of the 
Government's business. Admission to the property during periods when 
such property is closed to the public will be limited to authorized 
individuals who will be required to sign the register and/or display 
identification documents when requested by the guard.



Sec.  91.4  Preservation of property.

    It shall be unlawful for any person without proper authority to 
wilfully destroy, damage, deface, or remove property or any part thereof 
or any furnishings therein.



Sec.  91.5  Compliance with signs and directions.

    Persons in and on the property shall comply with the instructions of 
uniformed Bureau of the Mint guards (U.S. Special Policemen), other 
authorized officials, and official signs of a prohibitory or directory 
nature.



Sec.  91.6  Nuisances.

    The use of loud, abusive, or profane language, unwarranted 
loitering, unauthorized assembly, the creation of any hazard to persons 
or things, improper disposal of rubbish, spitting, prurient prying, the 
commission of any obscene or indecent act, or any other disorderly 
conduct on the property is prohibited. The throwing of any articles of 
any kind in, upon, or from the property and climbing upon any part 
thereof, is prohibited. The entry, without specific permission, upon any 
part of the property to which the public does not customarily have 
access, is prohibited.



Sec.  91.7  Gambling.

    (a) Participating in games for money or other property, the 
operation of gambling devices, the conduct of a lottery or pool, the 
selling or purchasing of numbers tickets, or any other gambling in or on 
the property, is prohibited.
    (b) Possession in or on the property of any numbers slip or ticket, 
record, notation, receipt, or other writing of a type ordinarily used in 
any illegal form of gambling such as a tip sheet or dream book, unless 
explained to the satisfaction of the head of the bureau or his delegate, 
shall be prima facie evidence that there is participation in an illegal 
form of gambling in or on such property.

[34 FR 503, Jan. 14, 1969, as amended at 36 FR 3523, Feb. 26, 1971]

[[Page 464]]



Sec.  91.8  Alcoholic beverages, narcotics, hallucinogenic and dangerous 
drugs.

    Entering or being on the property, or operating a motor vehicle 
thereon by a person under the influence of alcoholic beverages, 
narcotics, hallucinogenic or dangerous drugs is prohibited. The use of 
any narcotic, hallucinogenic or dangerous drug in or on the property is 
prohibited. The use of alcoholic beverages in or on the property is 
prohibited except on occasions and on property upon which the Director 
of the Mint has for appropriate official uses granted and exemption 
permit in writing.

[38 FR 24898, Sept. 11, 1973]



Sec.  91.9  Soliciting, vending, debt collection, and distribution of
handbills.

    The unauthorized soliciting of alms and contributions, the 
commercial soliciting and vending of all kinds, the display or 
distribution of commercial advertising, or the collecting of private 
debts, in or on the property, is prohibited. This rule does not apply to 
Bureau of the Mint concessions or notices posted by authorized employees 
on the bulletin boards. Distribution of material such as pamphlets, 
handbills, and flyers is prohibited without prior approval from the 
Director of the Mint, or the delegate of the Director.



Sec.  91.10  Photographs.

    The taking of photographs on the property is prohibited, without the 
written permission of the Director of the Mint.



Sec.  91.11  Dogs and other animals.

    Dogs and other animals, except seeing-eye dogs, shall not be brought 
upon the property for other than official purposes.



Sec.  91.12  Vehicular and pedestrian traffic.

    (a) Drivers of all vehicles in or on the property shall drive in a 
careful and safe manner at all times and shall comply with the signals 
and directions of guards and all posted traffic signs.
    (b) The blocking of entrances, driveways, walks, loading platforms, 
or fire hydrants in or on the property is prohibited.
    (c) Parking in or on the property is not allowed without a permit or 
specific authority. Parking without authority, parking in unauthorized 
locations or in locations reserved for other persons or continuously in 
excess of 8 hours without permission, or contrary to the direction of a 
uniformed Bureau of the Mint guard, or of posted signs, is prohibited.
    (d) This paragraph may be supplemented from time to time with the 
approval of the Director of the Mint, or the delegate of the Director, 
by the issuance and posting of such specific traffic directives as may 
be required and when so issued and posted such directives shall have the 
same force and effect as if made a part hereof.



Sec.  91.13  Weapons and explosives.

    No person while on the property shall carry firearms, other 
dangerous or deadly weapons, or explosives, either openly or concealed, 
except for official purposes.



Sec.  91.14  Penalties and other law.

    Whoever shall be found guilty of violating any of the regulations in 
this part while on the property is subject to a fine of not more than 
$50, or imprisonment of not more than 30 days, or both (40 U.S.C. 318c). 
Nothing contained in the regulations in this part shall be construed to 
abrogate any other Federal laws or regulations or those of any State or 
municipality applicable to the property referred to in Sec.  91.2 and 
governed by the regulations in this part.



PART 92_UNITED STATES MINT OPERATIONS AND PROCEDURES--Table of Contents



                     Subpart A_Numismatic Operations

Sec.
92.1 Manufacture of medals.
92.2 Sale of ``list'' medals.
92.3 Manufacture and sale of ``proof'' coins.
92.4 Uncirculated Mint Sets.

                    Subpart B_Availability of Records

92.5 Procedure governing availability of Bureau of the Mint records.

[[Page 465]]

92.6 Appeal.

 Subpart C_Assessment of Civil Penalties for Misuse of Words, Letters, 
              Symbols, or Emblems of the United States Mint

92.11 Purpose.
92.12 Definitions.
92.13 Assessment of civil penalties.
92.14 Initiation of action.
92.15 Initial notice of assessment.
92.16 Written response.
92.17 Final action.
92.18 Judicial review.

    Authority: 5 U.S.C. 301, 31 U.S.C. 321 and 333.

    Source: 47 FR 56353, Dec. 16, 1982, unless otherwise noted.



                     Subpart A_Numismatic Operations



Sec.  92.1  Manufacture of medals.

    With the approval of the Director of the Mint, dies for medals of a 
national character designated by Congress may be executed at the 
Philadelphia Mint, and struck in such field office of the Mints and 
Assay Offices as the Director shall designate.



Sec.  92.2  Sale of ``list'' medals.

    Medals on the regular Mint list, when available, are sold to the 
public at a charge sufficient to cover their cost, and to include 
mailing cost when mailed. Copies of the list of medals available for 
sale and their selling prices may be obtained from the Director of the 
Mint, Washington, DC.



Sec.  92.3  Manufacture and sale of ``proof'' coins.

    ``Proof'' coins, i.e., coins prepared from blanks specially polished 
and struck, are made as authorized by the Director of the Mint and are 
sold at a price sufficient to cover their face value plus the additional 
expense of their manufacture and sale. Their manufacture and issuance 
are contingent upon the demands of regular operations. Information 
concerning availability and price may be obtained from the Director of 
the Mint, Treasury Department, Washington, DC 20220.



Sec.  92.4  Uncirculated Mint Sets.

    Uncirculated Mint Sets, i.e., specially packaged coin sets 
containing one coin of each denomination struck at the Mints at 
Philadelphia and Denver, and the Assay Office at San Francisco, will be 
made as authorized by the Director of the Mint and will be sold at a 
price sufficient to cover their face value plus the additional expense 
of their processing and sale. Their manufacture and issuance are 
contingent upon demands of regular operations. Information concerning 
availability and price may be obtained from the Director of the Mint, 
Treasury Department, Washington, DC 20220.



                    Subpart B_Availability of Records



Sec.  92.5  Procedure governing availability of Bureau of the 
Mint records.

    (a) Regulations of the Office of the Secretary adopted. The 
regulations on the Disclosure of Records of the Office of the Secretary 
and other bureaus and offices of the Department issued under 5 U.S.C. 
301 and 552 and published as part 1 of this title, 32 FR No. 127, July 
1, 1967, except for Sec.  1.7 of this title entitled ``Appeal,'' shall 
govern the availability of Bureau of the Mint records.
    (b) Determination of availability. The Director of the Mint 
delegates authority to the following Mint officials to determine, in 
accordance with part 1 of this title, which of the records or 
information requested is available, subject to the appeal provided in 
Sec.  92.6: The Deputy Director of the Mint, Division Heads in the 
Office of the Director, and the Superintendent or Officer in Charge of 
the field office where the record is located.
    (c) Requests for identifiable records. A written request for an 
identifiable record shall be addressed to the Director of the Mint, 
Washington, DC 20220. A request presented in person shall be made in the 
public reading room of the Treasury Department, 15th Street and 
Pennsylvania Avenue, NW, Washington, DC, or in such other office 
designated by the Director of the Mint.



Sec.  92.6  Appeal.

    Any person denied access to records requested under Sec.  92.5 may 
file an appeal to the Director of the Mint within 30 days after 
notification of such denial. The appeal shall provide the name

[[Page 466]]

and address of the appellant, the identification of the record denied, 
and the date of the original request and its denial.



 Subpart C_Assessment of Civil Penalties for Misuse of Words, Letters, 
              Symbols, or Emblems of the United States Mint

    Source: 72 FR 60776, Oct. 26, 2007, unless otherwise noted.



Sec.  92.11  Purpose.

    (a) The procedures in this subpart implement the provisions of 31 
U.S.C. 333(c), which authorize the Secretary of the Treasury to assess a 
civil penalty against any person who has misused the words, titles, 
abbreviations, initials, symbols, emblems, seals, or badges of the 
United States Mint in violation of 31 U.S.C. 333(a).
    (b) The procedures in this subpart do not apply to the extent that 
the Secretary of the Treasury, the Director of the United States Mint, 
or their authorized designees have specifically granted to the person 
express permission, in writing, to manufacture, produce, sell, possess, 
or use the words, titles, abbreviations, initials, symbols, emblems, 
seals, or badges in a contract, agreement, license, letter, memorandum, 
or similar document.
    (c) The procedures in this subpart are limited to actions initiated 
by the United States Mint to enforce the provisions of 31 U.S.C. 333. 
The procedures herein do not affect the provisions of 31 CFR part 27. 
Therefore, this subpart shall not be construed as the exclusive means 
for the Secretary of the Treasury to enforce 31 U.S.C. 333 insofar as a 
covered misuse affects the United States Mint.



Sec.  92.12  Definitions.

    (a) Assessing official means the Director of the United States Mint 
or his designee.
    (b) Examining official means an employee of the United States Mint 
appointed by the Director of the United States Mint (or an employee of 
the Treasury Department appointed by the Director of the United States 
Mint with the concurrence of the head of that employee's organization), 
to administer the procedures in this subpart in a particular case and to 
propose findings and recommendations in that case to the assessing 
official. The examining official must be:
    (1) An employee of the Treasury Department in the grade of GS-15 or 
higher; and
    (2) Capable of examining the matter without actual or apparent 
conflict of interest.
    (c) Broadcast or telecast means widespread dissemination by 
electronic transmission or method, whether audio and/or visual.
    (d) Civil penalty means a civil monetary penalty
    (e) Date of offense means the later of:
    (1) The date that the misuse occurred;
    (2) The date that the misuse had the effect of conveying the false 
impression that the activity was associated with or approved, endorsed, 
sponsored or authorized by the United States Mint or its officers or 
employees; or
    (3) If the violation is a continuing one, the date on which the 
misuse of the words, titles, abbreviations, initials, symbols, emblems, 
seals, or badges protected by 31 U.S.C. 333 or the procedures in this 
subpart last occurred.
    (f) Days means calendar days, unless otherwise stated.
    (g) Person means an individual, partnership, association, 
corporation, company, business, firm, manufacturer, or any other 
organization, entity, or institution.
    (h) Respondent means a person named in an Initial Notice of 
Assessment.
    (i) Symbol means any design or graphic used by the United States 
Mint or the Treasury Department to represent themselves or their 
products. A design or graphic may include
    (1) A trademark, designation of origin, or mark of identification, 
or
    (2) A stylized depiction comprising letters, words, or numbers.



Sec.  92.13  Assessment of civil penalties.

    (a) General rule. The assessing official may impose a civil penalty 
on any person when the following two conditions are met:

[[Page 467]]

    (1) That person uses in connection with, or as a part of, any 
advertisement, solicitation, business activity, or product, whether 
alone or with other words, letters, symbols, or emblems--
    (i) The words ``Department of the Treasury,'' ``United States 
Mint,'' or ``U.S. Mint'';
    (ii) The titles ``Secretary of the Treasury,'' ``Treasurer of the 
United States,'' ``Director of the United States Mint,'' or ``Director 
of the U.S. Mint'';
    (iii) The abbreviations or initials of any entity or title referred 
to in paragraph (a)(1)(i) or (a)(1)(ii) of this section;
    (iv) Any symbol, emblem, seal, or badge of an entity referred to in 
paragraph (a)(1)(i) of this section (including the design of any 
envelope, stationery, or identification card used by such an entity); or
    (v) Any colorable imitation of any such words, titles, 
abbreviations, initials, symbols, emblems, seals, or badges; and
    (2) That person's use is in a manner that could reasonably be 
interpreted or construed as conveying the false impression that such 
advertisement, solicitation, business activity, or product is in any 
manner approved, endorsed, sponsored, authorized by, or associated with 
the United States Mint, or any officer, or employee thereof.
    (b) Disclaimers. Any determination of whether a person has violated 
the provisions of paragraph (a) of this section shall be made without 
regard to any use of a disclaimer of affiliation with the United States 
Government or any particular agency or instrumentality thereof.
    (c) Civil penalty. The assessing official may impose a civil penalty 
on any person who violates the provisions of paragraph (a) of this 
section. The amount of a civil penalty shall not exceed $5,000 for each 
and every use of any material in violation of paragraph (a) of this 
section, except that such penalty shall not exceed $25,000 for each and 
every use if such use is in a broadcast or telecast.
    (d) Time limitations. (1) Civil penalties imposed under the 
procedures in this subpart must be assessed before the end of the three-
year period beginning on the date of offense.
    (2) The assessing official may commence a civil action to recover or 
enforce any civil penalty imposed in a Final Notice of Assessment issued 
pursuant to Sec.  92.17 at any time before the end of the two-year 
period beginning on the date of the Final Notice of Assessment. If 
judicial review of the Final Notice of Assessment is sought, the two-
year period begins to run from the date that a final and unappealable 
court order is issued.
    (e) Criminal Proceeding. No civil penalty may be imposed under the 
procedures in this subpart with respect to any violation of paragraph 
(a) of this section after a criminal proceeding on the same violation 
has been commenced by indictment or information under 31 U.S.C. 333(d).



Sec.  92.14  Initiation of action.

    (a) When an employee of the United States Mint learns of or 
discovers a potential violation of 31 U.S.C. 333 or this subpart, he or 
she will refer the matter, with all available evidence, to the assessing 
official.
    (b) The assessing official will consider relevant factors when 
determining whether to initiate an action to impose a civil penalty 
under the procedures in this subpart. Those factors may include, but are 
not limited to, the following:
    (1) The scope of the misuse;
    (2) The purpose and/or nature of the misuse;
    (3) The extent of the harm caused by the misuse;
    (4) The circumstances of the misuse;
    (5) The commercial benefit intended to be derived from the misuse; 
and
    (6) The repeated nature of the misuse.
    (c) If the assessing official decides to initiate an action to 
impose a civil penalty under the procedures in this subpart, he or she 
will, in writing:
    (1) Appoint an examining official; and
    (2) Delegate to the examining official the authority to prepare, 
sign, and serve an Initial Notice of Assessment on behalf of the 
assessing official.



Sec.  92.15  Initial notice of assessment.

    The examining official shall review all immediately available 
evidence on

[[Page 468]]

the matter; determine a proposed civil penalty based on the factors 
listed under Sec.  92.16(d)(2)(iii); and prepare and serve an Initial 
Notice of Assessment by United States mail or other means upon the 
person believed to be in violation of Sec.  92.13 and otherwise subject 
to a civil penalty. The notice shall provide the name and telephone 
number of the examining official, who can provide information concerning 
the notice and the procedures in this subpart. The notice shall include 
the following:
    (a) A specific reference to the provisions of Sec.  92.13 violated;
    (b) A concise statement of the facts that support the conclusion 
that such a violation occurred;
    (c) The amount of the civil penalty proposed and the maximum amount 
of the potential civil penalty that the assessing official could impose;
    (d) A notice informing the person alleged to be in violation of 
Sec.  92.13 that he or she:
    (1) May, within 30 days of the date of the notice, pay the proposed 
civil penalty, thereby waiving the right to make a written response 
under Sec.  92.16 and to seek judicial review under Sec.  92.18:
    (i) By electronic funds transfer (EFT) in accordance with 
instructions provided by the examining official in the Initial Notice of 
Assessment; or
    (ii) By means other than EFT only with the written approval of the 
assessing official;
    (2) May make a written response in accordance with Sec.  92.16 
within 30 days of the date of the notice addressing, as appropriate:
    (i) Why a civil penalty should not be imposed; and
    (ii) Why a civil penalty should be in a lesser amount than proposed.
    (3) May be represented by an attorney or other representative, 
provided that a designation of representative signed by the person 
alleged to be in violation is received by the examining official; and
    (4) May request, within 20 days of the date of the notice, a copy of 
or opportunity to review any documents and/or other evidence that the 
United States Mint compiled and relied on in determining to issue the 
notice (the assessing official reserves the right to assert privileges 
available under law and may decline to disclose certain documents and/or 
other evidence protected by such privileges; however, any documents or 
other evidence withheld from disclosure shall be expunged from the 
record and shall not be considered by the examining and assessing 
officials in arriving at their respective recommendations and 
decisions); and
    (e) An advisement of the following:
    (1) If no written response is received within the time allowed in 
Sec.  92.16(b), a Final Notice of Assessment may be issued without a 
presentation by the person;
    (2) If a written response has been made and the examining official 
deems it necessary, the examining official may request, orally or in 
writing, additional information from the respondent;
    (3) A Final Notice of Assessment may be issued in accordance with 
Sec.  92.17 requiring that the proposed civil penalty be paid;
    (4) A Final Notice of Assessment is subject to judicial review in 
accordance with 5 U.S.C. 701 et seq.; and
    (5) All submissions sent in response to the Initial Notice of 
Assessment must be transmitted to the address specified in the notice 
and include the name, address, and telephone number of the respondent.



Sec.  92.16  Written response.

    (a) Form and contents. (1) The written response submitted by a 
person pursuant to Sec.  92.15(d)(2) must provide the following:
    (i) A reference to and specific identification of the Initial Notice 
of Assessment involved;
    (ii) The full name of the person against whom the Initial Notice of 
Assessment has been made;
    (iii) If the respondent is not a natural person, the name and title 
of the officer authorized to act on behalf of the respondent; and
    (iv) If a representative of the person named in the Initial Notice 
of Assessment is filing the written response, a copy of the duly 
executed designation as representative.
    (2) The written response must admit or deny each violation of Sec.  
92.13 set

[[Page 469]]

forth in the Initial Notice of Assessment. Any violation not 
specifically denied will be presumed to be admitted. Where a violation 
is denied, the respondent shall specifically set forth the legal or 
factual basis upon which the allegation is denied. If the basis of the 
written response is that the respondent is not the person responsible 
for the alleged violation, the written response must set forth 
sufficient information to allow the examining and assessing officials to 
determine the truth of such an assertion. The written response should 
include any and all documents and other information that the respondent 
believes should be a part of the administrative record on the matter.
    (b) Time. (1) Except as provided in paragraph (b)(2) of this 
section, any written response made under this section must be submitted 
not later than 30 days after the date of the Initial Notice of 
Assessment.
    (2) If a request for documents or other evidence is made pursuant to 
Sec.  92.15(d)(4), the written response must be submitted not later than 
20 days after the date of the United States Mint's response to the 
request.
    (3)(i) In computing the number of days allowed for filing a written 
response under this paragraph, the first day counted is the day after 
the date of the Initial Notice of Assessment is issued. If the last date 
on which the response is required to be filed by this paragraph is a 
Saturday, Sunday or Federal holiday, the response will be due on the 
next business day after that date.
    (ii) If a response is transmitted by United States mail, it will be 
deemed timely filed if postmarked on or before the due date.
    (4) The examining official may extend the period for making a 
written response under paragraphs (b)(1) and (b)(2) of this section for 
up to ten days for good cause shown. Requests for extensions beyond ten 
days must be approved by the assessing official and must be based on 
good cause shown. Generally, failure to obtain representation in a 
timely manner will not be considered good cause.
    (c) Filing. The response may be sent by personal delivery, United 
States mail or commercial delivery. A written response transmitted by 
means other than United States mail will be considered filed on the date 
received at the address specified in the Initial Notice of Assessment.
    (d) Review and Recommendation. The examining official will fully 
consider the facts and arguments submitted by the respondent in the 
written response, any other documents filed by the respondent pursuant 
to this subpart, and the evidence in the United States Mint's record on 
the matter. If the respondent waives the right to submit a written 
response in accordance with Sec.  92.15(d)(1), or declines to submit a 
written response by the end of the 30-day response period, the examining 
official will fully consider the evidence in the United States Mint's 
record on the matter.
    (1) In fully considering the matter, the examining official will not 
consider any evidence introduced into the record by the United States 
Mint after the date of the Initial Notice of Assessment unless and until 
the respondent has been notified that such additional evidence will be 
considered, and has had an opportunity to request, review and comment on 
such evidence.
    (2) The examining official will prepare a concise report, addressed 
to the assessing official, which will contain the following:
    (i) The entire administrative record on the matter, including all 
information provided in or with a written response timely filed by the 
respondent and any additional information provided pursuant to Sec.  
92.15(e)(2), as well as all evidence upon which the Initial Notice of 
Assessment was based, and any additional evidence as provided for in 
Sec.  92.16(d)(1).
    (ii) A finding, based on the preponderance of the evidence, as to 
each alleged violation specified in the Initial Notice of Assessment;
    (iii) For each violation that the examining official determines to 
have occurred, a recommendation as to the appropriate amount of a civil 
penalty to be imposed which, upon additional consideration of the 
evidence, may be the same as, more than, or less than the amount 
initially proposed by the examining official pursuant to Sec.  92.15. In

[[Page 470]]

making this recommendation, the examining official will consider all 
relevant factors including, but not limited to, the following:
    (A) The scope of the misuse;
    (B) The purpose and/or nature of the misuse;
    (C) The extent of the harm caused by the misuse;
    (D) The circumstances of the misuse;
    (E) The commercial benefit intended to be derived from the misuse; 
and
    (F) The repeated nature of the misuse.
    (iv) If the examining official determines that a violation has 
occurred, a proposed Final Notice of Assessment that incorporates his or 
her findings and recommendations.
    (v) Any additional information or considerations that the assessing 
officer should consider in a decision whether to issue a Final Notice of 
Assessment under Sec.  92.17.



Sec.  92.17  Final action.

    (a) In making a final determination whether to impose a penalty, the 
assessing official shall take into consideration the entire report 
prepared by the examining official. Although the assessing official 
should accord appropriate weight to the findings and recommendations of 
the examining official, the assessing official is not bound by them. The 
assessing official may approve, disapprove, modify, or substitute any or 
all of the examining official's findings and recommendations if, in his 
or her judgment, the evidence in the record supports such a decision. 
The assessing official will determine whether:
    (1) The facts warrant a conclusion that no violation has occurred; 
or
    (2)(i) The facts warrant a conclusion that one or more violations 
have occurred; and
    (ii) The facts and violations found justify the conclusion that a 
civil penalty should be imposed.
    (b) If the assessing official determines that no violation has 
occurred, the official shall promptly send a letter indicating that 
determination to the person served with an Initial Notice of Assessment 
and to any designated representative of such person.
    (c) If the assessing official determines that a violation has 
occurred:
    (1) The assessing official shall issue a Final Notice of Assessment 
to the person served with an Initial Notice of Assessment and to any 
designated representative of such person.
    (2) The assessing official may, in his or her discretion:
    (i) Impose a civil penalty;
    (ii) Not impose a civil penalty; or
    (iii) Impose a civil penalty and suspend the payment of all or some 
of the civil penalty, conditioned on the violator's future compliance 
with 31 U.S.C. 333.
    (3) If a civil penalty is imposed under Sec.  92.17(c)(2)(i) or 
(iii), the assessing official shall determine the appropriate amount of 
the penalty in accordance with 31 U.S.C. 333(c)(2). In determining the 
amount of a civil penalty, the assessing official will consider relevant 
factors including, but not limited to, the following:
    (i) The scope of the misuse;
    (ii) The purpose and/or nature of the misuse;
    (iii) The extent of the harm caused by the misuse;
    (iv) The circumstances of the misuse;
    (v) The commercial benefit intended to be derived from the misuse; 
and
    (vi) The repeated nature of the misuse.
    (4) The Final Notice of Assessment shall:
    (i) Include the following:
    (A) A specific reference to each provision of Sec.  92.13 found to 
have been violated;
    (B) A concise statement of the facts supporting a conclusion that 
each violation has occurred;
    (C) An analysis of how the facts and each violation justifies the 
conclusion that a civil penalty should be imposed; and
    (D) The amount of each civil penalty imposed and a statement as to 
how the amount of each penalty was determined; and
    (ii) Inform the person of the following:
    (A) Payment of a civil penalty imposed by the Final Notice of 
Assessment must be made within 30 days of the date of the notice;

[[Page 471]]

    (B) Payment of a civil penalty imposed by the Final Notice of 
Assessment shall be paid by EFT in accordance with instructions provided 
in the notice, unless the assessing official has given written approval 
to have payment made by other means;
    (C) If payment of a civil penalty imposed by the Final Notice of 
Assessment has been suspended on the condition that the person comply in 
the future with 31 U.S.C. 333 and this subpart, the failure by the 
person to so comply will make the civil penalty payable on demand;
    (D) If a civil penalty is not paid within 30 days of the date of the 
Final Notice of Assessment (or on demand under paragraph (c)(3)(ii)(D) 
of this section), a civil action to collect the penalty or enforce 
compliance may be commenced at any time within two years of the date of 
the Final Notice of Assessment; and
    (E) Any civil penalty imposed by the Final Notice of Assessment may 
be subject to judicial review in accordance with 5 U.S.C. 701 et seq.



Sec.  92.18  Judicial review.

    A Final Notice of Assessment issued under the procedures in this 
subpart may be subject to judicial review pursuant to 5 U.S.C. 701 et 
seq.



PART 100_EXCHANGE OF PAPER CURRENCY AND COIN--Table of Contents



Sec.
100.2 Scope of regulations; transactions effected through Federal 
          Reserve banks and branches; distribution of coin and 
          currencies.

                          Subpart A_In General

100.3 Lawfully held coins and currencies in general.
100.4 Gold coin and gold certificates in general.

  Subpart B_Request for Examination of Mutilated Currency for Possible 
                               Redemption

100.5 Mutilated paper currency.
100.6 Destroyed paper currency.
100.7 Treasury's redemption process.
100.8 Packaging and shipping of mutilated currency.
100.9 Notices.

    Subpart C_Request for Examination of Coin for Possible Redemption

100.10 Request for examination of uncurrent coin for possible 
          redemption.
100.11 Request for examination of bent or partial coin for possible 
          redemption.
100.12 Exchange of fused or mixed coin.
100.13 Notices.

                       Subpart D_Other Information

100.16 Exchange of paper and coin to be handled through Federal Reserve 
          banks and branches.
100.17 Location of Federal Reserve banks and branches.
100.18 Counterfeit notes to be marked; ``redemption'' of notes 
          wrongfully so marked.
100.19 Disposition of counterfeit notes and coins.

    Authority: 31 U.S.C. 321.

    Source: 47 FR 32044, July 23, 1982, unless otherwise noted.



Sec.  100.2  Scope of regulations; transactions effected through
Federal Reserve banks and branches; distribution of coin and currencies.

    (a) The regulations in this part govern the exchange of the coin and 
paper currency of the United States (including national bank notes and 
Federal Reserve bank notes in process of retirement and Federal Reserve 
notes). Under authorization in the Act approved May 29, 1920, 41 Stat. 
655 (31 U.S.C. 476), the Secretary of the Treasury transferred to the 
Federal Reserve banks and branches the duties and functions performed by 
the former Assistant Treasurers of the United States in connection with 
the exchange of paper currency and coin of the United States. Except for 
the duties in this respect to be performed by the Treasurer of the 
United States and the Director of the Mint, as may be indicated from 
time to time by the Secretary of the Treasury, exchanges of the paper 
currency and coin of the United States and the distribution and 
replacement thereof will, so far as practicable, be effected through the 
Federal Reserve banks and branches. The Federal Reserve banks and 
branches are authorized to distribute available supplies of coin and 
currency to depository institutions, as that term is defined in section 
103 of the Monetary Control Act of 1980 (Pub. L. 96-221). As authorized 
by

[[Page 472]]

section 107 of the Act, transportation of coin and currency and coin 
wrapping services will be provided according to a schedule of fees 
established by the Board of Governors of the Federal Reserve System. 
Inquiries by depository institutions regarding distribution and related 
services should be addressed to the Federal Reserve bank of the district 
where the institution is located.
    (b) The Department of the Treasury has authorized amendments to this 
part by the following bureaus and offices:
    (1) This section--Office of the Secretary.
    (2) Subpart A--Office of the Secretary.
    (3) Subpart B--Bureau of Engraving and Printing.
    (4) Subpart C--United States Mint.
    (5) Subpart D--Office of the Secretary.

[47 FR 32044, July 23, 1982, as amended at 82 FR 60310, Dec. 20, 2017]



                          Subpart A_In General



Sec.  100.3  Lawfully held coin and currencies in general.

    The official agencies of the Department of the Treasury will 
continue to exchange lawfully held coins and currencies of the United 
States, dollar for dollar, for other coins and currencies which may be 
lawfully acquired and are legal tender for public and private debts. 
Paper currency of the United States which has been falsely altered and 
coins altered to render them for use as other denominations will not be 
redeemed since such currency and coins are subject to forfeiture under 
Title 18, United States Code, section 492. Persons receiving such 
currency and coins should notify immediately the nearest local office of 
the U.S. Secret Service of the Department of the Treasury, and hold the 
same pending advice from the Service.



Sec.  100.4  Gold coin and gold certificates in general.

    Gold coins, and gold certificates of the type issued before January 
30, 1934, are exchangeable, as provided in this part, into other 
currency or coin which may be lawfully issued.



  Subpart B_Request for Examination of Mutilated Currency for Possible 
                               Redemption

    Source: 79 FR 30725, May 29, 2014, unless otherwise noted.



Sec.  100.5  Mutilated paper currency.

    (a) General. Lawfully held mutilated paper currency of the United 
States may be submitted for examination in accord with the provisions in 
this subpart. Such currency may be redeemed at face amount if sufficient 
remnants of any relevant security feature and clearly more than one-half 
of the original note remains. Fragments of such mutilated currency which 
are not clearly more than one-half of the original whole note or are 
lacking sufficient remnants of any relevant security feature will be 
redeemed at face value only if the Director, Bureau of Engraving and 
Printing, Department of the Treasury, is satisfied that the missing 
portions have been totally destroyed. The Director's judgment shall be 
based on such evidence of total destruction as is necessary and shall be 
final. Any submission under this subpart shall be deemed an acceptance 
of all provisions contained herein.
    (b) Definitions. The following definitions are used in this subpart:
    Mutilated currency is currency which has been damaged to the extent 
that:
    (i) One-half or less of the original note remains; or
    (ii) Its condition is such that its value is questionable and the 
currency must be forwarded to the Department of the Treasury for the 
examination by trained experts before any redemption is made.
    Unfit currency is currency which is unfit for further circulation 
because of its physical condition such as torn, dirty, limp, worn or 
defaced. Unfit currency should not be forwarded to the Department of the 
Treasury, but may be exchanged at commercial banks.



Sec.  100.6  Destroyed paper currency.

    No relief will be granted on account of lawfully held paper currency 
which has been totally destroyed.

[[Page 473]]



Sec.  100.7  Treasury's redemption process.

    (a) Lawful holders of mutilated currency may receive a redemption at 
full value when:
    (1) Clearly more than 50% of a note identifiable as United States 
currency is present along with sufficient remnants of any relevant 
security feature; or
    (2) Fifty percent or less of a note identifiable as United States 
currency is present and the method of mutilation and supporting evidence 
demonstrate to the satisfaction of the Treasury that the missing 
portions have been totally destroyed.
    (b) No redemption will be made when:
    (1) A submission, or any portion thereof, demonstrates a pattern of 
intentional mutilation or an attempt to defraud the United States. In 
such instances, the entire submission will be destroyed or retained as 
evidence.
    (2) A submission appears to be part of, or intended to further, any 
criminal scheme. In such instances, the entire submission will be 
destroyed or retained as evidence.
    (3) A submission contains a material misrepresentation of facts.
    (4) Fragments and remnants presented are not identifiable as United 
States currency; or
    (5) Fragments and remnants presented which represent 50% or less of 
a note are identifiable as United States currency but the method of 
destruction and supporting evidence do not satisfy the Treasury that the 
missing portion has been totally destroyed.
    (c) Lawfully held mutilated currency in a submission that also 
contains counterfeit currency may be destroyed or retained as evidence, 
at the discretion of the Director of the Bureau of Engraving and 
Printing.
    (d) All cases will be handled under proper procedures to safeguard 
the funds and interests of the submitter of lawfully held mutilated 
currency. In some cases, the amount redeemed will be less than the 
amount estimated by the submitter. In other cases, the amount redeemed 
may be greater. The amount redeemed will be determined by an examination 
made by trained mutilated currency examiners and governed by the above 
criteria.
    (e) The Director of the Bureau of Engraving and Printing shall have 
final authority with respect to redemptions of mutilated currency 
submissions.
    (f) All submissions for review shall include an estimate of the 
value of the currency and an explanation of how it came to be mutilated. 
The submission should also contain the bank account number and routing 
number for an account of a United States bank since all redemptions of 
$500 or more shall be made through Electronic Funds Transfer (EFT).



Sec.  100.8  Packaging and shipping of mutilated currency.

    Mutilated currency examiners are best able to determine the value of 
the currency when it has been carefully packed and boxed as described 
below. As a result, failure to follow the directions in this section may 
result in a denial of redemption:
    (a) Regardless of the condition of the currency, do not disturb the 
fragments more than is absolutely necessary.
    (b) If the currency is brittle or inclined to fall apart, pack it 
carefully in cotton and box it as found, without disturbing the 
fragments, if possible.
    (c) If the currency was in a purse, box, or other container when 
mutilated, it should be left therein, if possible, in order to prevent 
further deterioration of the fragments or from their being lost.
    (d) If it is absolutely necessary to remove the fragments from the 
container, send the container with the currency and any other contents 
found, except as noted in paragraph (g) of this section.
    (e) If the currency was flat when mutilated, do not roll, fold, 
laminate, tape, glue or in any other way alter the currency in an 
attempt to preserve it.
    (f) If the currency was in a roll when mutilated, do not attempt to 
unroll or straighten.
    (g) If coin or any other metal is mixed with the currency, remove 
carefully. Do not send coin or other metal in the same package with 
mutilated paper currency, as the metal will break up the currency. Coin 
should be exchanged in accordance with subpart C of this part.

[[Page 474]]

    (h) Mutilated currency shipments must be addressed as follows:
    (1) USPS Delivery--Department of the Treasury, Bureau of Engraving 
and Printing, MCD/OFM, Room 344A, Post Office Box 37048, Washington, DC 
20013.
    (2) Non Postal Courier (FEDEX/UPS)--Department of the Treasury, 
Bureau of Engraving and Printing, MCD/OFM, Room 344-A, 14th & C Streets 
SW., Washington, DC 20228.



Sec.  100.9  Notices.

    (a) The Director may provide information pertaining to any mutilated 
currency submission to law enforcement officials or other third parties 
for purposes of investigation of related criminal activity or for 
purposes of seeking a civil judgment.
    (b) Whoever mutilates currency with the intent to render it unfit to 
be reissued may be fined and/or imprisoned. 18 U.S.C. 333.
    (c) Whoever intentionally files a false claim seeking reimbursement 
for mutilated currency may be held criminally liable under a number of 
statutes including 18 U.S.C. 287 and 18 U.S.C. 1341 and may be held 
civilly liable under 31 U.S.C. 3729, et seq.



    Subpart C_Request for Examination of Coin for Possible Redemption

    Source: 82 FR 60311, Dec. 20, 2017, unless otherwise noted.



Sec.  100.10  Request for examination of uncurrent coin for possible
redemption.

    (a) Definition. Uncurrent coins are whole U.S. coins which are 
merely worn or reduced in weight by natural abrasion yet are readily and 
clearly recognizable as to genuineness and denomination and which are 
machine countable.
    (b) Redemption process. The United States Mint will not accept 
uncurrent coins for redemption. Members of the public wishing to redeem 
lawfully held uncurrent coins must deposit the uncurrent coins with a 
bank or other financial institution that will accept them, or with a 
depository institution that has established a direct customer 
relationship with a Federal Reserve Bank. A Federal Reserve Bank will 
redeem uncurrent coins, based on the policies described in the Federal 
Reserve's Operating Circular 2.
    (c) Criteria for acceptance. Depository institutions that redeem 
uncurrent coins must sort the coins by denomination into packages in 
accordance with the Federal Reserve's Operating Circular 2. The Federal 
Reserve Banks have the right to reject any shipment containing objects 
that are not U.S. coins or any contaminant that could render the 
uncurrent coins unsuitable for coinage metal.
    (d) Redemption sites. The Federal Reserve Banks and branches listed 
in Sec.  100.17 are the only authorized redemption sites at which a 
depository institution that has established a direct customer 
relationship with a Federal Reserve Bank may redeem uncurrent coins.



Sec.  100.11  Request for examination of bent or partial coin for 
possible redemption.

    (a) General. Lawfully held bent or partial coins of the United 
States may be submitted to the United States Mint for examination in 
accordance with the provisions in this subpart. Any submission under 
this subpart shall be deemed an acceptance of all provisions of this 
subpart.
    (b) Definitions. (1) Bent coins are U.S. coins which are bent or 
deformed so as to preclude normal machine counting but which are readily 
and clearly identifiable as to genuineness and denomination.
    (2) Partial coins are U.S. coins which are not whole; partial coins 
must be readily and clearly identifiable as to genuineness and 
denomination.
    (3) Participants are individuals or businesses that submit coins 
through the redemption process.
    (c) Redemption process. (1) Depending on submission amount and 
frequency, participants may be subject to a certification process by the 
United States Mint. The established annual weight threshold and details 
about the participant certification process will be published on the 
United States Mint's website. If certification is required, it must be 
done prior to submission.

[[Page 475]]

    (2) All submissions for review shall include an estimate of the 
value of the coins and an explanation of how the submission came to be 
bent or partial. The submission should also contain the bank account 
number and routing number for a checking or savings account at a bank or 
other financial institution (such as a mutual fund, brokerage firm, or 
credit union) in the United States.
    (3) Participants may be required to provide documentation for how 
the participant came into custody of the bent or partial coins.
    (4) The United States Mint reserves the right to test samples from 
any submission to authenticate the material. The size of the sample will 
be limited to the amount necessary for authentication. Testing may 
result in partial or complete destruction of the sample.
    (5) The United States Mint reserves the right to conduct site visits 
for participants over a certain volume threshold to verify information 
provided to the United States Mint.
    (6) No redemption will be made when:
    (i) A submission, or any portion of a submission, demonstrates a 
pattern of intentional mutilation or an attempt to defraud the United 
States;
    (ii) A submission appears to be part of, or intended to further, any 
criminal activity;
    (iii) A submission contains a material misrepresentation of facts;
    (iv) Material presented is not identifiable as United States coins. 
In such instances, the participant will be notified to retrieve the 
entire submission, at the participant's sole expense, within 30 days. If 
the submission is not retrieved in a timely manner, the entire 
submission will be treated as voluntarily abandoned property, pursuant 
to 41 CFR 102-41.80, and will be retained or disposed of by the United 
States Mint;
    (v) A submission contains any contaminant that could render the 
coins unsuitable for coinage metal. In such instances, the participant 
will be notified to retrieve the entire submission, at the participant's 
sole expense, within 30 days. If the submission is not retrieved in a 
timely manner, the entire submission will be treated as voluntarily 
abandoned property, pursuant to 41 CFR 102-41.80, and will be retained 
or disposed of by the United States Mint; or
    (vi) A submission contains more than a nominal amount of uncurrent 
coins. In such instances, the participant may be notified to retrieve 
the entire submission, at the participant's sole expense, within 30 
days. If the submission is not retrieved in a timely manner, the entire 
submission will be treated as voluntarily abandoned property, pursuant 
to 41 CFR 102-41.80, and will be retained or disposed of by the United 
States Mint.
    (7) The Director of the United States Mint, or designee, shall have 
final authority with respect to all aspects of redemptions of bent or 
partial coin submissions.
    (d) Redemption rates--(1) Generally. Participants shall separate 
bent or partial coins by the denomination categories listed below in 
lots of at least one pound for each denomination category. The United 
States Mint will redeem bent or partial coins on the basis of their 
weight and denomination at the following rates:
    (i) One-Cent Coins: $1.4585 per pound.
    (ii) 5-Cent Coins: $4.5359 per pound.
    (iii) Dime, Quarter-Dollar, and Half-Dollar Coins: $20.00 per pound.
    (iv) $1 Coins: $20.00 per pound.
    (2) Exceptions. (i) The United States Mint will redeem one-cent 
coins inscribed with a year after 1982 at the rate set forth at 
paragraph (d)(1)(i) of this section unless such one-cent coins are 
presented unmixed from one-cent coins inscribed with a year before 1983. 
The United States Mint will redeem unmixed one-cent coins inscribed with 
a year after 1982 at a rate of $1.8100 per pound.
    (ii) The United States Mint will redeem $1 coins inscribed with a 
year after 1978 at the rate set forth at paragraph (d)(1)(iv) of this 
section unless such $1 coins are presented unmixed from $1 coins 
inscribed with a year before 1979. The United States Mint will redeem 
unmixed $1 coins inscribed with a year after 1978 at a rate of $56.00 
per pound.
    (e) Redemption sites. Coins are shipped at the sender's risk of loss 
and expense.
    (1) Bent and partial coins submitted in quantities less than or 
equal to a threshold established annually will be

[[Page 476]]

redeemed only at the United States Mint at Philadelphia, P.O. Box 400, 
Philadelphia, PA 19105.
    (2) Bent and partial coins submitted in quantities greater than a 
threshold established annually should be scheduled with the United 
States Mint to be sent directly to the authorized recycler(s) of the 
United States Mint.



Sec.  100.12  Exchange of fused or mixed coin.

    (a) Definitions. (1) Fused coins are U.S. coins which are melted to 
the extent that they are bonded together.
    (2) Mixed coins are U.S. coins of several alloy categories which are 
presented together, but are readily and clearly identifiable as U.S. 
coins.
    (b) Fused and mixed coins. The United States Mint will not accept 
fused coins for redemption. The United States Mint will not accept mixed 
coins for redemption, except as provided for in Sec.  100.11(d)(2).



Sec.  100.13  Notices.

    (a) Additional information and procedures about the United States 
Mint's redemption of bent or partial coins can be found on the United 
States Mint's website.
    (b) Criminal penalties connected with the defacement or mutilation 
of U.S. coins are provided in 18 U.S.C. 331.
    (c) The Director of the United States Mint may provide information 
pertaining to any bent or partial coin submissions to law enforcement 
officials or other third parties for purposes of investigating related 
criminal activity or for purposes of seeking a civil judgment.
    (d) Whoever intentionally files a false claim seeking reimbursement 
for uncurrent, bent or partial coins may be held criminally liable under 
a number of statutes including 18 U.S.C. 287 and 18 U.S.C. 1341 and may 
be held civilly liable under 31 U.S.C. 3729, et seq.



                       Subpart D_Other Information



Sec.  100.16  Exchange of paper and coin to be handled through 
Federal Reserve banks and branches.

    Other than as provided in this document all transactions including 
the exchange of paper currency and coin shall be handled through the 
Federal Reserve banks and branches.



Sec.  100.17  Location of Federal Reserve banks and branches.

                    Federal Reserve Bank and Address

Boston--600 Atlantic Avenue, Boston, MA 02106
New York--33 Liberty Street (Federal Reserve P.O. Station), New York, NY 
10045
Buffalo Branch--160 Delaware Avenue (P.O. Box 961), Buffalo, NY 14240
Philadelphia--Ten Independence Mall (P.O. Box 66), Philadelphia, PA 
19105
Cleveland--1455 East Sixth Street (P.O. Box 6387), Cleveland, OH 44101
Cincinnati Branch--150 East Fourth Street (P.O. Box 999), Cincinnati, OH 
45201
Pittsburgh Branch--717 Grant Street (P.O. Box 867), Pittsburgh, PA 15230
Richmond--701 East Byrd Avenue (P.O. Box 27622), Richmond, VA 23261
Baltimore Branch--114-120 East Lexington Street (P.O. Box 1378), 
Baltimore, MD 21203
Charlotte Branch--530 East Trade Street (P.O. Box 30248), Charlotte, NC 
28230
Atlanta--104 Marietta Street, NW., Atlanta, GA 30303
Birmingham Branch--1801 Fifth Avenue, North (P.O. Box 830447), 
Birmingham, AL 35283-0447
Jacksonville Branch--800 Water Street (P.O. Box 929) Jacksonville, FL 
32231-0044
Miami Branch--9100 NW., 36th Street (P.O. Box 520847), Miami, FL 33152
Nashville Branch--301 Eighth Avenue, North, Nashville, TN 37203
New Orleans Branch--525 St. Charles Avenue (P.O. Box 61630), New 
Orleans, LA 70161
Chicago--230 South LaSalle Street (P.O. Box 834), Chicago, IL 60690
Detroit Branch--160 Fort Street, West (P.O. Box 1059), Detroit, MI 48231
St. Louis--411 Locust Street (P.O. Box 442), St. Louis, MO 63166
Little Rock Branch--325 West Capitol Avenue (P.O. Box 1261), Little 
Rock, AR 72203
Louisville Branch--410 South Fifth Street (P.O. Box 32710), Louisville, 
KY 40232
Memphis Branch--200 North Main Street (P.O. Box 407), Memphis, TN 38101
Minneapolis--250 Marquette Avenue, Minneapolis, MN 55480
Helena Branch--400 North Park Avenue, Helena, MT 59601
Kansas City--925 Grand Avenue (Federal Reserve Station), Kansas City, MO 
64198
Denver Branch--1020 16th Street (P.O. Box 5228, Terminal Annex), Denver, 
CO 80217
Oklahoma City Branch--226 Dean A. McGee Street (P.O. Box 25129), 
Oklahoma City, OK 73125
Omaha Branch--2201 Farnam Street (P.O. Box 3958), Omaha, NB 68103
Dallas--400 South Akard Street (Station K), Dallas, TX 75222

[[Page 477]]

El Paso Branch--301 East Main Street (P.O. Box 100), El Paso, TX 79999
Houston Branch--1701 San Jacinto Street (P.O. Box 2578), Houston, TX 
77001
San Antonio Branch--126 East Nueva Street (P.O. Box 1471), San Antonio, 
TX 78295
San Francisco--400 Sansome Street (P.O. Box 7702), San Francisco, CA 
94120
Los Angeles Branch--950 South Grand Avenue (Terminal Annex, P.O. Box 
2077), Los Angeles CA 90051
Portland Branch--915 SW Stark Street (P.O. Box 3436), Portland, OR 97208
Salt Lake City Branch--120 South State Street (P.O. Box 30780), Salt 
Lake City, UT 84125
Seattle Branch--1015 Second Avenue (P.O. Box 3567), Seattle, WA 98124

[47 FR 32044, July 23, 1982, as amended at 56 FR 10170, Mar. 11, 1991]



Sec.  100.18  Counterfeit notes to be marked; ``redemption'' of notes
wrongfully so marked.

    The Act of June 30, 1876 (19 Stat. 4; 31 U.S.C. 424), provides that 
all U.S. Officers charged with the receipt or disbursement of public 
moneys, and all officers of national banks, shall stamp or write in 
plain letters the word ``counterfeit,'' ``altered,'' or ``worthless'' 
upon all fraudulent notes issued in the form of, and intended to 
circulate as money, which shall be presented at their places of 
business; and if such officers shall wrongfully stamp any genuine note 
of the United States, or of the national bank, they shall, upon 
presentation, ``redeem'' such notes at the face amount thereof.



Sec.  100.19  Disposition of counterfeit notes and coins.

    All counterfeit notes and coin found in remittances are cancelled 
and delivered to the U.S. Secret Service of the Department of the 
Treasury or to the nearest local office of that Service, a receipt for 
the same being forwarded to the sender. Communications with respect 
thereto should be addressed to the Director, U.S. Secret Service, 
Department of the Treasury, Washington, DC 20223.



PART 101_MITIGATION OF FORFEITURE OF COUNTERFEIT GOLD COINS-
-Table of Contents



Sec.
101.1 Purpose and scope.
101.2 Petitions for mitigation.
101.3 Petitions reviewed by Assistant Secretary, Enforcement, 
          Operations, Tariff Affairs.
101.4 Extraction of gold bullion from the counterfeit coins.
101.5 Payment of smelting costs.
101.6 Return of the bullion.
101.7 Exceptions.
101.8 Discretion of the Secretary.

    Authority: 18 U.S.C. 492.

    Source: 42 FR 1472, Jan. 7, 1977, unless otherwise noted.



Sec.  101.1  Purpose and scope.

    The purpose of this part is to establish a policy whereby certain 
purchasers or holders of gold coins who have forfeited them to the 
United States because they were counterfeit may, in the discretion of 
the Secretary of the Treasury, recover the gold bullion from the coins. 
This part sets forth the procedures to be followed in implementing this 
policy.



Sec.  101.2  Petitions for mitigation.

    (a) Who may file. Any person may petition the Secretary of the 
Treasury for return of the gold bullion of counterfeit gold coins 
forfeited to the United States, if:
    (1) The petitioner innocently purchased or received the coins and 
held them without the knowledge that they were counterfeit; and,
    (2) The petitioner voluntarily submitted the coins to the Treasury 
Department for a determination of whether they were legitimate or 
counterfeit; and,
    (3) The coins were determined to be counterfeit and were seized by 
the Treasury Department and forfeited to the United States.
    (b) To whom addressed. Petitions for mitigation of the forfeiture of 
counterfeit gold coins should be addressed to the Assistant Secretary, 
Enforcement, Operations, Tariff Affairs, Department of Treasury, 15th 
and Pennsylvania Avenue, NW., Washington, DC 20220.
    (c) Form. The petition need not be in any particular form, but must 
be under oath, and set forth at least the following:
    (1) The full name and address of the petitioner;
    (2) A description of the coin or coins involved;

[[Page 478]]

    (3) The name and address of the person from whom the coins were 
received or purchased by the petitioner;
    (4) The date and place where they were voluntarily submitted for 
examination;
    (5) Any other circumstances relied upon by the petitioner to justify 
the mitigation;
    (6) A statement that the petitioner purchased or received and held 
the coins without the knowledge that they were counterfeit.



Sec.  101.3  Petitions reviewed by Assistant Secretary, Enforcement, 
Operations, Tariff Affairs.

    (a) The Assistant Secretary will receive and review all petitions 
for mitigation of the forfeiture of counterfeit gold coins. He shall 
conduct such further investigation, and may request such further 
information from the petitioner as he deems necessary. Petitions will be 
approved if the Assistant Secretary determines that:
    (1) The gold coins have not been previously disposed of by normal 
procedures;
    (2) The petitioner was an innocent purchaser or holder of the gold 
coins and is not under investigation in connection with the coins at the 
time of submission or thereafter;
    (3) The coins are not needed and will not be needed in the future in 
any investigation or as evidence in legal proceedings; and
    (4) Mitigation of the forfeiture is in the best interest of the 
Government.



Sec.  101.4  Extraction of gold bullion from the counterfeit coins.

    If the petition is approved, the Assistant Secretary shall then 
forward the gold coins to the Bureau of the Mint where, if economically 
feasible, the gold bullion will be extracted from the counterfeit coins. 
The Bureau of the Mint will then return the bullion to the Assistant 
Secretary.



Sec.  101.5  Payment of smelting costs.

    The petitioner shall be required to pay all reasonable costs 
incurred in extracting the bullion from the counterfeit coins, as shall 
be determined by the Assistant Secretary. Payment must be made prior to 
the return of the gold bullion to the petitioner.



Sec.  101.6  Return of the bullion.

    After receiving the gold bullion from the Bureau of the Mint, the 
Assistant Secretary shall notify the petitioner that his petition has 
been approved and that payment of the smelting costs in an amount set 
forth in such notice must be made prior to the return of the bullion.



Sec.  101.7  Exceptions.

    The provisions of this part shall not apply where the cost of 
smelting the gold coins exceeds the value of the gold bullion to be 
returned.



Sec.  101.8  Discretion of the Secretary.

    The Secretary of the Treasury retains complete discretion to deny 
any claim of any petitioner when the Secretary believes it is not in the 
best interest of the Government to return the bullion to the petitioner 
or when the Secretary is not convinced that the petitoner was an 
innocent purchaser or holder without knowledge that the gold coins were 
counterfeit.

                           PART 123 [RESERVED]



PART 128_REPORTING OF INTERNATIONAL CAPITAL AND FOREIGN-CURRENCY TRANSACTIONS
AND POSITIONS--Table of Contents



                      Subpart A_General Information

Sec.
128.1 General reporting requirements.
128.2 Manner of reporting.
128.3 Use of information reported.
128.4 Penalties.
128.5 Recordkeeping requirements.

  Subpart B_Reports on International Capital Transactions and Positions

128.11 Purpose of reports.
128.12 Periodic reports.
128.13 Special survey reports.

             Subpart C_Reports on Foreign Currency Positions

128.21 Purpose of reports.
128.22 Periodic reports.
128.23 Special survey reports.

[[Page 479]]


Appendix A to Part 128--Determination Made by National Advisory Council 
          Pursuant to Section 2(a) and (b) of E.O. 10033

    Authority: 22 U.S.C. 286f and 3101 et seq.; 31 U.S.C. 5315 and 5321.

    Source: 58 FR 58495, Nov. 2, 1993, unless otherwise noted.



                      Subpart A_General Information



Sec.  128.1  General reporting requirements.

    (a) International capital transactions and positions. (1) In order 
to implement the International Investment and Trade in Services Survey 
Act, as amended (22 U.S.C. 3101 et seq.); and E.O. 11961, and to obtain 
information requested by the International Monetary Fund under the 
articles of agreement of the Fund pursuant to section 8(a) of the 
Bretton Woods Agreements Act (22 U.S.C. 286f) and E.O. 10033, persons 
subject to the jurisdiction of the United States are required to report 
information pertaining to--
    (i) United States claims on, and liabilities to, foreigners;
    (ii) Transactions in securities and other financial assets with 
foreigners; and
    (iii) The monetary reserves of the United States.
    (2) Data pertaining to direct investment transactions are not 
required to be reported under this part.
    (3) Reports shall be made in such manner and at such intervals as 
specified by the Secretary of the Treasury. See subpart B of this part 
for additional requirements concerning these reports.
    (b) Foreign currency positions. (1) In order to provide data on the 
nature and source of flows of mobile capital, including transactions by 
large United States business enterprises (as determined by the 
Secretary) and their foreign affiliates as required by 31 U.S.C. 5315, 
persons subject to the jurisdiction of the United States are required to 
report information pertaining to--
    (i) Transactions in foreign exchange;
    (ii) Transfers of credit that are, in whole or part, denominated in 
a foreign currency; and
    (iii) The creation or acquisition of claims that reference 
transactions, holdings, or evaluations of foreign exchange.
    (2) Reports shall be made in such manner and at such intervals as 
specified by the Secretary. See subpart C of this part for additional 
requirements concerning these reports.
    (c) Notice of reports. Notice of reports required by this part, 
specification of persons required to file report, and forms to be used 
to file reports will be published in the Federal Register. Persons 
currently required to file reports shall continue to file such reports 
using existing Treasury International Capital Forms BL-1/BL-1(SA), BL-2/
BL-2(SA), BL-3, BC/BC(SA), BQ-1, BQ-2, CM, CQ-1, CQ-2, S, and existing 
Treasury Foreign Currency Forms FC-1, FC-2, FC-3, and FC-4 until further 
notice is published in the Federal Register.



Sec.  128.2  Manner of reporting.

    (a) Methods of reporting--(1) Prescribed forms. (i) Except as 
provided in Sec.  128.2(a)(2), reports required by this part shall be 
made on forms prescribed by the Secretary. The forms and accompanying 
instructions will be published in accordance with Sec.  128.1(c).
    (ii) Copies of forms and instructions prescribed by the Secretary 
for reporting under this Part may be obtained from any Federal Reserve 
Bank, or from the Office of the Assistant Secretary (Economic Policy), 
Department of the Treasury, Washington, DC 20220.
    (2) Alternative methods of reporting. In lieu of reporting on forms 
prescribed by the Secretary pursuant to this part, reports may be filed 
on magnetic tape or other media acceptable to, and approved in writing 
by, the Federal Reserve district bank with which the report is filed, or 
by the Assistant Secretary (Economic Policy) in the case of a special 
exception filing pursuant to Sec.  128.2(b)(3). The Secretary may 
require that magnetic tape or other machine-readable media, or other 
rapid means of communication be used for filing special survey reports 
under subpart B or C of this part.
    (b) Filing of periodic reports--(1) Banks and other depository 
institutions, International Banking Facilities, and bank holding 
companies. Except as provided in Sec.  128.2(b)(3), each bank, 
depository

[[Page 480]]

institution, International Banking Facility, and bank holding company in 
the United States required to file periodic reports under subpart B or C 
of this part shall file such reports with the Federal Reserve bank of 
the district in which such bank, depository institution, International 
Banking Facility or bank holding company has its principal place of 
business in the United States.
    (2) Nonbanking enterprises and other persons. Except as provided in 
Sec.  128.2(b)(3), nonbanking enterprises and other persons in the 
United States required to file periodic reports under subpart B or C of 
this part shall file such reports with the Federal Reserve Bank of New 
York.
    (3) Special exceptions. If a respondent described in Sec.  
128.2(b)(1) or (2) is unable to file with a Federal Reserve district 
bank, such respondent shall file periodic reports with the Office of the 
Assistant Secretary (Economic Policy), Department of the Treasury, 
Washington, DC 20220, or as otherwise provided in the instructions to 
the periodic report forms.
    (c) Filing of special survey reports. All respondents required to 
file special survey reports under subpart B or C of this part file such 
reports as provided in Sec.  128.2(b) unless otherwise provided in the 
instructions to the special survey reports.



Sec.  128.3  Use of information reported.

    (a) Except for use in violation and enforcement proceedings pursuant 
to the International Investment and Trade in Services Survey Act, 22 
U.S.C. 3101 et seq., information submitted by any individual respondent 
on reports required under subpart B of this part may be used only for 
analytical and statistical purposes within the United States Government 
and will not be disclosed publicly by the Department of the Treasury, or 
by any other Federal agency or Federal Reserve district bank having 
access to the information as provided herein. Aggregate data derived 
from these forms may be published or otherwise publicly disclosed only 
in a manner which will not reveal the amounts reported by any individual 
respondent. The Department may furnish information from these forms to 
the Federal Reserve Board and to Federal agencies to the extent 
permitted by applicable law.
    (b) The information submitted by any individual respondent on 
reports required under subpart C of this part will not be disclosed 
publicly. Aggregated data may be published or disclosed only in a manner 
which will not reveal the information reported by any individual 
respondent. The Department may furnish to Federal agencies, the Board of 
Governors of the Federal Reserve System, and to Federal Reserve district 
banks data reported pursuant to subpart C of this part to the extent 
permitted by applicable law.



Sec.  128.4  Penalties.

    (a) Whoever fails to file a report required by subpart B of this 
part shall be subject to a civil penalty of not less than $2,500 and not 
more than $25,000
    (b) Whoever willfully fails to file a report required by subpart B 
of this part may be criminally prosecuted and upon conviction fined not 
more than $10,000 and, if an individual (including any officer, 
director, employee, or agent of any corporation who knowingly 
participates in such violation), may be imprisoned for not more than one 
year, or both.
    (c) Whoever fails to file a report required by subpart C of this 
part shall be subject to a civil penalty of not more than $10,000.



Sec.  128.5  Recordkeeping requirements.

    Banks, other depository institutions, International Banking 
Facilities, bank holding companies, brokers and dealers, and nonbanking 
enterprises subject to the jurisdiction of the United States shall 
maintain all information necessary to make a complete report pursuant to 
this Part for not less than three years from the date such report is 
required to be filed or was filed, whichever is later, or for such 
shorter period as may be specified in the instructions to the applicable 
report form.

(Approved by the Office of Management and Budget under control number 
1505-0149)

[[Page 481]]



  Subpart B_Reports on International Capital Transactions and Positions



Sec.  128.11  Purpose of reports.

    Reports on international capital transactions and positions provide 
timely and reliable information on international portfolio capital 
movements by U.S. persons. This information is needed for preparation of 
the capital accounts of the United States balance of payments and the 
international investment position of the United States.



Sec.  128.12  Periodic reports.

    (a) International capital positions. (1) Banks and other depository 
institutions, International Banking Facilities, bank holding companies, 
and brokers and dealers in the United States shall file monthly, 
quarterly and semiannual reports with respect to specified claims and 
liabilities positions with foreigners held for their own account and for 
the accounts of their customers.
    (2) Nonbanking enterprises in the United States not described in 
Sec.  128.12(a)(1) shall file monthly and quarterly reports with respect 
to deposits and certificates of deposit with banks outside the United 
States and specified claims and liabilities positions with unaffiliated 
foreigners.
    (b) Transactions in certain domestic and foreign long-term 
securities. Banks and nonbanking enterprises in the United States shall 
file monthly reports on their transactions in domestic and foreign long-
term securities or other financial assets with foreign residents.
    (c) Notice of periodic reports. Notice of periodic reports will be 
published in accordance with Sec.  128.1(c).



Sec.  128.13  Special survey reports.

    The Secretary may prescribe special survey reports at such times as 
the Secretary determines there is a need for detailed information on the 
aggregate data derived from current periodic reports or to provide 
additional qualitative information with respect to such data. Notice of 
special survey reports will be published in accordance with Sec.  
128.1(c).



             Subpart C_Reports on Foreign Currency Positions



Sec.  128.21  Purpose of reports.

    Reports by respondents on foreign currency positions provide data on 
the nature and source of flows of mobile capital, including transactions 
by large United States business enterprises (as determined by the 
Secretary) and their foreign affiliates as required by 31 U.S.C. 5315.



Sec.  128.22  Periodic reports.

    Respondents shall file reports weekly, monthly and quarterly on the 
value of such items as outstanding foreign exchange contracts, dealing 
positions, derivative foreign currency instruments, and other assets and 
liabilities denominated in the currencies specified on the forms. Notice 
of periodic reports will be published in accordance with Sec.  128.1(c).



Sec.  128.23  Special survey reports.

    The Secretary may prescribe special survey reports with respect to 
foreign exchange positions and related information at such times as the 
Secretary determines that there is a need for prompt or expanded 
information on current conditions in the foreign exchange markets. 
Notice of special survey reports will be published in accordance with 
Sec.  128.1(c).



  Sec. Appendix A to Part 128--Determination Made by National Advisory 
         Council Pursuant to Section 2 (a) and (b) of E.O. 10033

I. Determination of the National Advisory Council pursuant to E.O. 10033

    In an action dated September 7, 1965, the National Advisory Council 
on International Monetary and Financial Problems made the following 
determination pursuant to section 2(a) of E.O. 10033 of February 8, 
1949.
    Action 65 (E.O.)-49. The National Advisory Council, having consulted 
with the Director of the Bureau of the Budget, determines the current 
information with respect to international capital movements, derived 
from data on U.S. liabilities to and claims on foreigners and 
transactions in securities with

[[Page 482]]

foreigners, and current information with respect to U.S. gold holdings, 
foreign-currency holdings, and dollar liabilities to foreigners, are 
essential in order that the United States may comply with official 
requests of the International Monetary Fund for information with respect 
to the U.S. balance of payments and monetary reserves.
    Action No. 320, March 17, 1949 is superseded by this determination 
and is hereby revoked.
    II. Designation of the Treasury Department by the Director of the 
Bureau of the Budget pursuant to section 2(b) of E.O. 10033.
    On December 1, 1965, the Treasury Department was designated, 
pursuant to section 2(b) of E.O. 10033 of February 8, 1949, to collect 
information for the International Monetary Fund under the National 
Advisory Council determination of September 7, 1965. The letter 
containing the designation reads as follows:

                            December 1, 1965.

Hon. Henry H. Fowler,
Secretary of the Treasury, Washington, DC 20220.

    Dear Mr. Secretary: On September 7, 1965, the National Advisory 
Council after consultation with this Bureau in accordance with section 
2(a) of Executive Order 10033, made the following determination (Action 
65 (E.O.)-49:
    ``The National Advisory Council, having consulted with the Director 
of the Bureau of the Budget, determines that current information with 
respect to international capital movements, derived from data on U.S. 
liabilities to claims on foreigners and transactions in securities with 
foreigners, and current information with respect to U.S. gold holdings, 
foreign-currency holdings, and dollar liabilities to foreigners, are 
essential in order that the United States may comply with official 
requests of the International Monetary Fund for information with respect 
to the U.S. balance of payments and monetary reserves.''
    It is hereby determined pursuant to section 2(b) of Executive Order 
10033, that the Treasury Department shall collect information pertaining 
to capital movements between the United States and foreign countries and 
pertaining to the monetary reserves of the United States, except 
information pertaining to direct-investment transactions, U.S. 
Government foreign lending operations, and claims and liabilities of 
U.S. Government agencies (other than public debt obligations), which is 
collected by the Department of Commerce.
    This letter supersedes the earlier determination as to the 
responsibilities of the Treasury Department in this area, dated April 
21, 1949, as amended May 4, 1950.

                            Sincerely yours,

Raymond T. Bowman,
Assistant Director for Statistical Standards.



PART 129_PORTFOLIO INVESTMENT SURVEY REPORTING--Table of Contents



Sec.
129.1 Purpose.
129.2 Definitions.
129.3 Reporting requirements.
129.4 Recordkeeping requirements.
129.5 Confidentiality.
129.6 Penalties specified by law.

    Authority: 22 U.S.C. 3101 et seq.; E.O. 11961, 42 FR 4321, 3 CFR, 
1977 Comp., p. 86.

    Source: 58 FR 30707, May 27, 1993, unless otherwise noted.



Sec.  129.1  Purpose.

    The purpose of this part is to provide general information on 
portfolio investment survey data collection programs and analyses under 
the International Investment and Trade in Services Survey Act ((formerly 
the International Investment Survey Act of 1976) (the ``Act'')). The 
purpose of the Act is to provide for the collection of comprehensive and 
reliable information concerning international investment, including 
portfolio investment. The Act specifies that regular data collection 
programs and surveys specified by the Act or deemed necessary by the 
Secretary of the Treasury shall be conducted to secure information on 
international capital flows and other information related to 
international portfolio investment, including information that may be 
necessary for computing and analyzing the United States balance of 
payments.



Sec.  129.2  Definitions.

    For purposes of the Act and for reporting requirements under this 
Part:
    (a) United States, when used in a geographic sense, means the 
several States, the District of Columbia, the Commonwealth of Puerto 
Rico, and the territories and possessions of the United States.
    (b) Foreign, when used in a geographic sense, means that which is 
situated outside the United States or which belongs to or is 
characteristic of a country other than the United States.

[[Page 483]]

    (c) Person means any individual, branch, partnership, associated 
group, association, estate, trust, corporation, or other organization 
(whether or not organized under the laws of any State), and any 
government (including a foreign government, the United States 
Government, a State or local government, and any agency, corporation, 
financial institution, or other entity or instrumentality thereof, 
including a government-sponsored agency).
    (d) United States person means any person resident in the United 
States or subject to the jurisdiction of the United States.
    (e) Foreign person means any person resident outside the United 
States or subject to the jurisdiction of a country other than the United 
States.
    (f) Foreign parent means any foreign person who owns or controls, 
directly or indirectly, 10 percent or more of the voting securities of 
an incorporated United States business enterprise, or an equivalent 
interest in an unincorporated United States business enterprise.
    (g) Reporter means a United States person required to file a report.
    (h) Foreign official institution means central governments of 
foreign countries and their possessions, including recognized central 
banks of issue.



Sec.  129.3  Reporting requirements.

    (a) Notice of specific reporting requirements, including who is 
required to report, the information to be reported, the manner of 
reporting, and the time and place of filing reports, will be published 
by the Secretary of the Treasury in the Federal Register prior to the 
implementation of each survey or study.
    (b) Written responses are required from all reporters.
    (c) Information required from reporters shall be furnished under 
oath.



Sec.  129.4  Recordkeeping requirement.

    Reporters shall maintain all information used in preparing a report 
under this part for the period specified in the notice published by the 
Secretary of the Treasury pursuant to section 129.3, and shall make this 
information available for review and inspection at the request of the 
Department of the Treasury.



Sec.  129.5  Confidentiality.

    (a) Information collected pursuant to the Act will be kept in 
confidence.
    (b) Access to information collected pursuant to the Act shall be 
available only to officials and employees (including consultants and 
contractors and their employees) designated by the Secretary of the 
Treasury to perform functions under the Act.
    (c) Nothing in this part shall be construed to require any Federal 
agency to disclose information otherwise protected by law.
    (d) No person can compel the submission or disclosure of reports, or 
constituent parts thereof, or copies of such reports or constituents 
parts thereof, prepared pursuant to this part, without the prior written 
consent of the person who maintained or who furnished the report and the 
customer of the person who furnished the report, where the information 
supplied is identifiable as being derived from the records of the 
customer. As required by the Act, any published reports issued by the 
Treasury based upon information pursuant to this part will only contain 
data aggregated in such a way that neither the person supplying the 
information nor the investor can be identified.



Sec.  129.6  Penalties specified by law.

    Reporters are advised that the Act provides the following penalties:
    (a) Civil Penalties. Whoever fails to furnish any information 
required under the Act, whether required to be furnished in the form of 
a report or otherwise, or to comply with any other rule, regulation, 
order, or instruction promulgated under the Act, shall be subject to a 
civil penalty of not less than $2,500 and not more than $25,000.
    (b) Criminal Penalties. Whoever willfully violates any rule, 
regulation, order, or instruction promulgated under the Act, upon 
conviction, shall be fined not more than $10,000 and, if an individual, 
may be imprisoned for not more than one year, or both, and any officer, 
director, employee, or agent of

[[Page 484]]

any corporation who knowingly participates in such violation, upon 
conviction, may be punished by a like fine, imprisonment or both.

                        PARTS 130	131 [RESERVED]



PART 132_PROHIBITION ON FUNDING OF UNLAWFUL INTERNET GAMBLING-
-Table of Contents



Sec.
132.1 Authority, purpose, and incorporation by reference.
132.2 Definitions.
132.3 Designated payment systems.
132.4 Exemptions.
132.5 Policies and procedures required.
132.6 Non-exclusive examples of policies and procedures.
132.7 Regulatory enforcement.

Appendix A to Part 132--Model Notice

    Authority: 31 U.S.C. 321 and 5364.

    Source: 73 FR 69405, Nov. 18, 2008, unless otherwise noted.



Sec.  132.1  Authority, purpose, collection of information, and 
incorporation by reference.

    (a) Authority. This part is issued jointly by the Board of Governors 
of the Federal Reserve System (Board) and the Secretary of the 
Department of the Treasury (Treasury) under section 802 of the Unlawful 
Internet Gambling Enforcement Act of 2006 (Act) (enacted as Title VIII 
of the Security and Accountability For Every Port Act of 2006, Pub. L. 
No. 109-347, 120 Stat. 1884, and codified at 31 U.S.C. 5361-5367). The 
Act states that none of its provisions shall be construed as altering, 
limiting, or extending any Federal or State law or Tribal-State compact 
prohibiting, permitting, or regulating gambling within the United 
States. See 31 U.S.C. 5361(b). In addition, the Act states that its 
provisions are not intended to change which activities related to 
horseracing may or may not be allowed under Federal law, are not 
intended to change the existing relationship between the Interstate 
Horseracing Act of 1978 (IHA) (15 U.S.C. 3001 et seq.) and other Federal 
statutes in effect on October 13, 2006, the date of the Act's enactment, 
and are not intended to resolve any existing disagreements over how to 
interpret the relationship between the IHA and other Federal statutes. 
See 31 U.S.C. 5362(10)(D)(iii). This part is intended to be consistent 
with these provisions.
    (b) Purpose. The purpose of this part is to issue implementing 
regulations as required by the Act. The part sets out necessary 
definitions, designates payment systems subject to the requirements of 
this part, exempts certain participants in designated payment systems 
from certain requirements of this part, provides nonexclusive examples 
of policies and procedures reasonably designed to identify and block, or 
otherwise prevent and prohibit, restricted transactions, and sets out 
the Federal entities that have exclusive regulatory enforcement 
authority with respect to the designated payments systems and non-exempt 
participants therein.
    (c) Collection of information. The Office of Management and Budget 
(OMB) has approved the collection of information requirements in this 
part for the Department of the Treasury and assigned OMB control number 
1505-0204. The Board has approved the collection of information 
requirements in this part under the authority delegated to the Board by 
OMB, and assigned OMB control number 7100-0317.
    (d) Incorporation by reference--relevant definitions from ACH rules. 
(1) This part incorporates by reference the relevant definitions of ACH 
terms as published in the ``2008 ACH Rules: A Complete Guide to Rules & 
Regulations Governing the ACH Network'' (the ``ACH Rules''). The 
Director of the Federal Register approves this incorporation by 
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies 
of the ``2008 ACH Rules'' are available from the National Automated 
Clearing House Association, Suite 100, 13450 Sunrise Valley Drive, 
Herndon, Virginia 20171, http://nacha.org, (703) 561-1100. Copies also 
are available for public inspection at the Department of Treasury 
Library, Room 1428, Main Treasury Building, 1500 Pennsylvania Avenue, 
NW., Washington, DC 20220, and the National Archives and Records 
Administration (NARA). Before visiting the Treasury library, you must 
call (202) 622-0990 for an appointment. For information on the 
availability of

[[Page 485]]

this material at NARA, call (202) 741-6030, or go to: http://
www.archives.gov/federal_register/code_of_federal_regulations/
ibr_locations.html 20002.
    (2) Any amendment to definitions of the relevant ACH terms in the 
ACH Rules shall not apply to this part unless the Treasury and the Board 
jointly accept such amendment by publishing notice of acceptance of the 
amendment to this part in the Federal Register. An amendment to the 
definition of a relevant ACH term in the ACH Rules that is accepted by 
the Treasury and the Board shall apply to this part on the effective 
date of the rulemaking specified by the Treasury and the Board in the 
joint Federal Register notice expressly accepting such amendment.



Sec.  132.2  Definitions.

    The following definitions apply solely for purposes of this part:
    (a) Actual knowledge with respect to a transaction or commercial 
customer means when a particular fact with respect to that transaction 
or commercial customer is known by or brought to the attention of:
    (1) An individual in the organization responsible for the 
organization's compliance function with respect to that transaction or 
commercial customer; or
    (2) An officer of the organization.
    (b) Automated clearing house system or ACH system means a funds 
transfer system, primarily governed by the ACH Rules, which provides for 
the clearing and settlement of batched electronic entries for 
participating financial institutions. When referring to ACH systems, the 
terms in this regulation (such as ``originating depository financial 
institution,'' ``operator,'' ``originating gateway operator,'' 
``receiving depository financial institution,'' ``receiving gateway 
operator,'' and ``third-party sender'') are defined as those terms are 
defined in the ACH Rules.
    (c) Bet or wager. (1) Means the staking or risking by any person of 
something of value upon the outcome of a contest of others, a sporting 
event, or a game subject to chance, upon an agreement or understanding 
that the person or another person will receive something of value in the 
event of a certain outcome;
    (2) Includes the purchase of a chance or opportunity to win a 
lottery or other prize (which opportunity to win is predominantly 
subject to chance);
    (3) Includes any scheme of a type described in 28 U.S.C. 3702;
    (4) Includes any instructions or information pertaining to the 
establishment or movement of funds by the bettor or customer in, to, or 
from an account with the business of betting or wagering (which does not 
include the activities of a financial transaction provider, or any 
interactive computer service or telecommunications service); and
    (5) Does not include--
    (i) Any activity governed by the securities laws (as that term is 
defined in section 3(a)(47) of the Securities Exchange Act of 1934 (15 
U.S.C. 78c(a)(47)) for the purchase or sale of securities (as that term 
is defined in section 3(a)(10) of that act (15 U.S.C. 78c(a)(10));
    (ii) Any transaction conducted on or subject to the rules of a 
registered entity or exempt board of trade under the Commodity Exchange 
Act (7 U.S.C. 1 et seq.);
    (iii) Any over-the-counter derivative instrument;
    (iv) Any other transaction that--
    (A) Is excluded or exempt from regulation under the Commodity 
Exchange Act (7 U.S.C. 1 et seq.); or
    (B) Is exempt from State gaming or bucket shop laws under section 
12(e) of the Commodity Exchange Act (7 U.S.C. 16(e)) or section 28(a) of 
the Securities Exchange Act of 1934 (15 U.S.C. 78bb(a));
    (v) Any contract of indemnity or guarantee;
    (vi) Any contract for insurance;
    (vii) Any deposit or other transaction with an insured depository 
institution;
    (viii) Participation in any game or contest in which participants do 
not stake or risk anything of value other than--
    (A) Personal efforts of the participants in playing the game or 
contest or obtaining access to the Internet; or
    (B) Points or credits that the sponsor of the game or contest 
provides to participants free of charge and that can be used or redeemed 
only for participation

[[Page 486]]

in games or contests offered by the sponsor; or
    (ix) Participation in any fantasy or simulation sports game or 
educational game or contest in which (if the game or contest involves a 
team or teams) no fantasy or simulation sports team is based on the 
current membership of an actual team that is a member of an amateur or 
professional sports organization (as those terms are defined in 28 
U.S.C. 3701) and that meets the following conditions:
    (A) All prizes and awards offered to winning participants are 
established and made known to the participants in advance of the game or 
contest and their value is not determined by the number of participants 
or the amount of any fees paid by those participants.
    (B) All winning outcomes reflect the relative knowledge and skill of 
the participants and are determined predominantly by accumulated 
statistical results of the performance of individuals (athletes in the 
case of sports events) in multiple real-world sporting or other events.
    (C) No winning outcome is based--
    (1) On the score, point-spread, or any performance or performances 
of any single real-world team or any combination of such teams, or
    (2) Solely on any single performance of an individual athlete in any 
single real-world sporting or other event.
    (d) Block means to reject a particular transaction before or during 
processing, but it does not require freezing or otherwise prohibiting 
subsequent transfers or transactions regarding the proceeds or account.
    (e) Card issuer means any person who issues a credit card, debit 
card, pre-paid card, or stored value card, or the agent of such person 
with respect to such card.
    (f) Card system means a system for authorizing, clearing and 
settling transactions in which credit cards, debit cards, pre-paid 
cards, or stored value cards (such cards being issued or authorized by 
the operator of the system), are used to purchase goods or services or 
to obtain a cash advance. The term includes systems both in which the 
merchant acquirer, card issuer, and system operator are separate 
entities and in which more than one of these roles are performed by the 
same entity.
    (g) Check clearing house means an association of banks or other 
payors that regularly exchange checks for collection or return.
    (h) Check collection system means an interbank system for 
collecting, presenting, returning, and settling for checks or intrabank 
system for settling for checks deposited in and drawn on the same bank. 
When referring to check collection systems, the terms in this regulation 
(such as ``paying bank,'' ``collecting bank,'' ``depositary bank,'' 
``returning bank,'' and ``check'') are defined as those terms are 
defined in 12 CFR 229.2. For purposes of this part, ``check'' also 
includes an electronic representation of a check that a bank agrees to 
handle as a check.
    (i) Commercial customer means a person that is not a consumer and 
that contracts with a non-exempt participant in a designated payment 
system to receive, or otherwise accesses, payment transaction services 
through that non-exempt participant.
    (j) Consumer means a natural person.
    (k) Designated payment system means a system listed in Sec.  132.3.
    (l) Electronic fund transfer has the same meaning given the term in 
section 903 of the Electronic Fund Transfer Act (15 U.S.C. 1693a), 
except that such term includes transfers that would otherwise be 
excluded under section 903(6)(E) of that act (15 U.S.C. 1693a(6)(E)), 
and includes any funds transfer covered by Article 4A of the Uniform 
Commercial Code, as in effect in any State.
    (m) Financial institution means a State or national bank, a State or 
Federal savings and loan association, a mutual savings bank, a State or 
Federal credit union, or any other person that, directly or indirectly, 
holds an account belonging to a consumer. The term does not include a 
casino, sports book, or other business at or through which bets or 
wagers may be placed or received.
    (n) Financial transaction provider means a creditor, credit card 
issuer, financial institution, operator of a terminal at which an 
electronic fund transfer may be initiated, money

[[Page 487]]

transmitting business, or international, national, regional, or local 
payment network utilized to effect a credit transaction, electronic fund 
transfer, stored value product transaction, or money transmitting 
service, or a participant in such network, or other participant in a 
designated payment system.
    (o) Foreign banking office means:
    (1) Any non-U.S. office of a financial institution; and
    (2) Any non-U.S. office of a foreign bank as described in 12 U.S.C. 
3101(7).
    (p) Interactive computer service means any information service, 
system, or access software provider that provides or enables computer 
access by multiple users to a computer server, including specifically a 
service or system that provides access to the Internet and such systems 
operated or services offered by libraries or educational institutions.
    (q) Internet means the international computer network of 
interoperable packet switched data networks.
    (r) Internet gambling business means the business of placing, 
receiving or otherwise knowingly transmitting a bet or wager by any 
means which involves the use, at least in part, of the Internet, but 
does not include the performance of the customary activities of a 
financial transaction provider, or any interactive computer service or 
telecommunications service.
    (s) Intrastate transaction means placing, receiving, or otherwise 
transmitting a bet or wager where--
    (1) The bet or wager is initiated and received or otherwise made 
exclusively within a single State;
    (2) The bet or wager and the method by which the bet or wager is 
initiated and received or otherwise made is expressly authorized by and 
placed in accordance with the laws of such State, and the State law or 
regulations include--
    (i) Age and location verification requirements reasonably designed 
to block access to minors and persons located out of such State; and
    (ii) Appropriate data security standards to prevent unauthorized 
access by any person whose age and current location has not been 
verified in accordance with such State's law or regulations; and
    (3) The bet or wager does not violate any provision of--
    (i) The Interstate Horseracing Act of 1978 (15 U.S.C. 3001 et seq.);
    (ii) 28 U.S.C. chapter 178 (professional and amateur sports 
protection);
    (iii) The Gambling Devices Transportation Act (15 U.S.C. 1171 et 
seq.); or
    (iv) The Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.).
    (t) Intratribal transaction means placing, receiving or otherwise 
transmitting a bet or wager where--
    (1) The bet or wager is initiated and received or otherwise made 
exclusively--
    (i) Within the Indian lands of a single Indian tribe (as such terms 
are defined under the Indian Gaming Regulatory Act (25 U.S.C. 2703)); or
    (ii) Between the Indian lands of two or more Indian tribes to the 
extent that intertribal gaming is authorized by the Indian Gaming 
Regulatory Act (25 U.S.C. 2701 et seq.);
    (2) The bet or wager and the method by which the bet or wager is 
initiated and received or otherwise made is expressly authorized by and 
complies with the requirements of--
    (i) The applicable tribal ordinance or resolution approved by the 
Chairman of the National Indian Gaming Commission; and
    (ii) With respect to class III gaming, the applicable Tribal-State 
compact;
    (3) The applicable tribal ordinance or resolution or Tribal-State 
compact includes--
    (i) Age and location verification requirements reasonably designed 
to block access to minors and persons located out of the applicable 
Tribal lands; and
    (ii) Appropriate data security standards to prevent unauthorized 
access by any person whose age and current location has not been 
verified in accordance with the applicable tribal ordinance or 
resolution or Tribal-State Compact; and
    (4) The bet or wager does not violate any provision of--
    (i) The Interstate Horseracing Act of 1978 (15 U.S.C. 3001 et seq.);
    (ii) 28 U.S.C. chapter 178 (professional and amateur sports 
protection);

[[Page 488]]

    (iii) The Gambling Devices Transportation Act (15 U.S.C. 1171 et 
seq.); or
    (iv) The Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.).
    (u) Money transmitting business has the meaning given the term in 31 
U.S.C. 5330(d)(1) (determined without regard to any regulations 
prescribed by the Secretary of the Treasury thereunder).
    (v) Operator of a designated payment system means an entity that 
provides centralized clearing and delivery services between participants 
in the designated payment system and maintains the operational framework 
for the system. In the case of an automated clearinghouse system, the 
term ``operator'' has the same meaning as provided in the ACH Rules.
    (w) Participant in a designated payment system means an operator of 
a designated payment system, a financial transaction provider that is a 
member of, or has contracted for financial transaction services with, or 
is otherwise participating in, a designated payment system, or a third-
party processor. This term does not include a customer of the financial 
transaction provider, unless the customer is also a financial 
transaction provider otherwise participating in the designated payment 
system on its own behalf.
    (x) Reasoned legal opinion means a written expression of 
professional judgment by a State-licensed attorney that addresses the 
facts of a particular client's business and the legality of the client's 
provision of its services to relevant customers in the relevant 
jurisdictions under applicable federal and State law, and, in the case 
of intratribal transactions, applicable tribal ordinances, tribal 
resolutions, and Tribal-State compacts. A written legal opinion will not 
be considered ``reasoned'' if it does nothing more than recite the facts 
and express a conclusion.
    (y) Restricted transaction means any of the following transactions 
or transmittals involving any credit, funds, instrument, or proceeds 
that the Act prohibits any person engaged in the business of betting or 
wagering (which does not include the activities of a financial 
transaction provider, or any interactive computer service or 
telecommunications service) from knowingly accepting, in connection with 
the participation of another person in unlawful Internet gambling--
    (1) Credit, or the proceeds of credit, extended to or on behalf of 
such other person (including credit extended through the use of a credit 
card);
    (2) An electronic fund transfer, or funds transmitted by or through 
a money transmitting business, or the proceeds of an electronic fund 
transfer or money transmitting service, from or on behalf of such other 
person; or
    (3) Any check, draft, or similar instrument that is drawn by or on 
behalf of such other person and is drawn on or payable at or through any 
financial institution.
    (z) State means any State of the United States, the District of 
Columbia, or any commonwealth, territory, or other possession of the 
United States, including the Commonwealth of Puerto Rico, the 
Commonwealth of the Northern Mariana Islands, American Samoa, Guam, and 
the Virgin Islands.
    (aa) Third-party processor means a service provider that--
    (1) In the case of a debit transaction payment, such as an ACH debit 
entry or card system transaction, has a direct relationship with the 
commercial customer that is initiating the debit transfer transaction 
and acts as an intermediary between the commercial customer and the 
first depository institution to handle the transaction;
    (2) In the case of a credit transaction payment, such as an ACH 
credit entry, has a direct relationship with the commercial customer 
that is to receive the proceeds of the credit transfer and acts as an 
intermediary between the commercial customer and the last depository 
institution to handle the transaction; and
    (3) In the case of a cross-border ACH debit or check collection 
transaction, is the first service provider located within the United 
States to receive the ACH debit instructions or check for collection.
    (bb) Unlawful Internet gambling means to place, receive, or 
otherwise knowingly transmit a bet or wager by any means which involves 
the use, at least in part, of the Internet where such bet

[[Page 489]]

or wager is unlawful under any applicable Federal or State law in the 
State or Tribal lands in which the bet or wager is initiated, received, 
or otherwise made. The term does not include placing, receiving, or 
otherwise transmitting a bet or wager that is excluded from the 
definition of this term by the Act as an intrastate transaction or an 
intra-tribal transaction, and does not include any activity that is 
allowed under the Interstate Horseracing Act of 1978 (15 U.S.C. 3001 et 
seq.; see Sec.  132.1(a)). The intermediate routing of electronic data 
shall not determine the location or locations in which a bet or wager is 
initiated, received, or otherwise made.
    (cc) Wire transfer system means a system through which an 
unconditional order to a bank to pay a fixed or determinable amount of 
money to a beneficiary upon receipt, or on a day stated in the order, is 
transmitted by electronic or other means through the network, between 
banks, or on the books of a bank. When referring to wire transfer 
systems, the terms in this regulation (such as ``bank,'' ``originator's 
bank,'' ``beneficiary's bank,'' and ``intermediary bank'') are defined 
as those terms are defined in 12 CFR part 210, appendix B.



Sec.  132.3  Designated payment systems.

    The following payment systems could be used by participants in 
connection with, or to facilitate, a restricted transaction:
    (a) Automated clearing house systems;
    (b) Card systems;
    (c) Check collection systems;
    (d) Money transmitting businesses solely to the extent they
    (1) Engage in the transmission of funds, which does not include 
check cashing, currency exchange, or the issuance or redemption of money 
orders, travelers' checks, and other similar instruments; and
    (2) Permit customers to initiate transmission of funds transactions 
remotely from a location other than a physical office of the money 
transmitting business; and
    (e) Wire transfer systems.



Sec.  132.4  Exemptions.

    (a) Automated clearing house systems. The participants processing a 
particular transaction through an automated clearing house system are 
exempt from this regulation's requirements for establishing written 
policies and procedures reasonably designed to prevent or prohibit 
restricted transactions with respect to that transaction, except for--
    (1) The receiving depository financial institution and any third-
party processor receiving the transaction on behalf of the receiver in 
an ACH credit transaction;
    (2) The originating depository financial institution and any third-
party processor initiating the transaction on behalf of the originator 
in an ACH debit transaction; and
    (3) The receiving gateway operator and any third-party processor 
that receives instructions for an ACH debit transaction directly from a 
foreign sender (which could include a foreign banking office, a foreign 
third-party processor, or a foreign originating gateway operator).
    (b) Check collection systems. The participants in a particular check 
collection through a check collection system are exempt from this 
regulation's requirements for establishing written policies and 
procedures reasonably designed to prevent or prohibit restricted 
transactions with respect to that check collection, except for the 
depositary bank.
    (c) Money transmitting businesses. The participants in a money 
transmitting business are exempt from this regulation's requirements for 
establishing written policies and procedures reasonably designed to 
prevent or prohibit restricted transactions, except for the operator.
    (d) Wire transfer systems. The participants in a particular wire 
transfer through a wire transfer system are exempt from this 
regulation's requirements for establishing written policies and 
procedures reasonably designed to prevent or prohibit restricted 
transactions with respect to that transaction, except for the 
beneficiary's bank.

[[Page 490]]



Sec.  132.5  Policies and procedures required.

    (a) All non-exempt participants in designated payment systems shall 
establish and implement written policies and procedures reasonably 
designed to identify and block or otherwise prevent or prohibit 
restricted transactions.
    (b) A non-exempt financial transaction provider participant in a 
designated payment system shall be considered to be in compliance with 
the requirements of paragraph (a) of this section if--
    (1) It relies on and complies with the written policies and 
procedures of the designated payment system that are reasonably designed 
to--
    (i) Identify and block restricted transactions; or
    (ii) Otherwise prevent or prohibit the acceptance of the products or 
services of the designated payment system or participant in connection 
with restricted transactions; and
    (2) Such policies and procedures of the designated payment system 
comply with the requirements of this part.
    (c) For purposes of paragraph (b)(2) in this section, a participant 
in a designated payment system may rely on a written statement or notice 
by the operator of that designated payment system to its participants 
that states that the operator has designed or structured the system's 
policies and procedures for identifying and blocking or otherwise 
preventing or prohibiting restricted transactions to comply with the 
requirements of this part as conclusive evidence that the system's 
policies and procedures comply with the requirements of this part, 
unless the participant is notified otherwise by its Federal functional 
regulator or, in the case of participants that are not directly 
supervised by a Federal functional regulator, the Federal Trade 
Commission.
    (d) As provided in the Act, a person that identifies and blocks a 
transaction, prevents or prohibits the acceptance of its products or 
services in connection with a transaction, or otherwise refuses to honor 
a transaction, shall not be liable to any party for such action if--
    (1) The transaction is a restricted transaction;
    (2) Such person reasonably believes the transaction to be a 
restricted transaction; or
    (3) The person is a participant in a designated payment system and 
blocks or otherwise prevents the transaction in reliance on the policies 
and procedures of the designated payment system in an effort to comply 
with this regulation.
    (e) Nothing in this part requires or is intended to suggest that 
designated payment systems or participants therein must or should block 
or otherwise prevent or prohibit any transaction in connection with any 
activity that is excluded from the definition of ``unlawful Internet 
gambling'' in the Act as an intrastate transaction, an intratribal 
transaction, or a transaction in connection with any activity that is 
allowed under the Interstate Horseracing Act of 1978 (15 U.S.C. 3001 et 
seq.; see Sec.  132.1(a)).
    (f) Nothing in this part modifies any requirement imposed on a 
participant by other applicable law or regulation to file a suspicious 
activity report to the appropriate authorities.
    (g) The requirement of this part to establish and implement written 
policies and procedures applies only to the U.S. offices of participants 
in designated payment systems.



Sec.  132.6  Non-exclusive examples of policies and procedures.

    (a) In general. The examples of policies and procedures to identify 
and block or otherwise prevent or prohibit restricted transactions set 
out in this section are non-exclusive. In establishing and implementing 
written policies and procedures to identify and block or otherwise 
prevent or prohibit restricted transactions, a non-exempt participant in 
a designated payment system is permitted to design and implement 
policies and procedures tailored to its business that may be different 
than the examples provided in this section. In addition, non-exempt 
participants may use different policies and procedures with respect to 
different business lines or different parts of the organization.

[[Page 491]]

    (b) Due diligence. If a non-exempt participant in a designated 
payment system establishes and implements procedures for due diligence 
of its commercial customer accounts or commercial customer relationships 
in order to comply, in whole or in part, with the requirements of this 
regulation, those due diligence procedures will be deemed to be 
reasonably designed to identify and block or otherwise prevent or 
prohibit restricted transactions if the procedures include the steps set 
out in paragraphs (b)(1), (b)(2), and (b)(3) of this section and subject 
to paragraph (b)(4) of this section.
    (1) At the establishment of the account or relationship, the 
participant conducts due diligence of a commercial customer and its 
activities commensurate with the participant's judgment of the risk of 
restricted transactions presented by the customer's business.
    (2) Based on its due diligence, the participant makes a 
determination regarding the risk the commercial customer presents of 
engaging in an Internet gambling business and follows either paragraph 
(b)(2)(i) or (b)(2)(ii) of this section.
    (i) The participant determines that the commercial customer presents 
a minimal risk of engaging in an Internet gambling business.
    (ii) The participant cannot determine that the commercial customer 
presents a minimal risk of engaging in an Internet gambling business, in 
which case it obtains the documentation in either paragraph 
(b)(2)(ii)(A) or (b)(2)(ii)(B) of this section--
    (A) Certification from the commercial customer that it does not 
engage in an Internet gambling business; or
    (B) If the commercial customer does engage in an Internet gambling 
business, each of the following--
    (1) Evidence of legal authority to engage in the Internet gambling 
business, such as--
    (i) A copy of the commercial customer's license that expressly 
authorizes the customer to engage in the Internet gambling business 
issued by the appropriate State or Tribal authority or, if the 
commercial customer does not have such a license, a reasoned legal 
opinion that demonstrates that the commercial customer's Internet 
gambling business does not involve restricted transactions; and
    (ii) A written commitment by the commercial customer to notify the 
participant of any changes in its legal authority to engage in its 
Internet gambling business.
    (2) A third-party certification that the commercial customer's 
systems for engaging in the Internet gambling business are reasonably 
designed to ensure that the commercial customer's Internet gambling 
business will remain within the licensed or otherwise lawful limits, 
including with respect to age and location verification.
    (3) The participant notifies all of its commercial customers, 
through provisions in the account or commercial customer relationship 
agreement or otherwise, that restricted transactions are prohibited from 
being processed through the account or relationship.
    (4) With respect to the determination in paragraph (b)(2)(i) of this 
section, participants may deem the following commercial customers to 
present a minimal risk of engaging in an Internet gambling business--
    (i) An entity that is directly supervised by a Federal functional 
regulator as set out in Sec.  132.7(a); or
    (ii) An agency, department, or division of the Federal government or 
a State government.
    (c) Automated clearing house system examples. (1) The policies and 
procedures of the originating depository financial institution and any 
third party processor in an ACH debit transaction, and the receiving 
depository financial institution and any third party processor in an ACH 
credit transaction, are deemed to be reasonably designed to identify and 
block or otherwise prevent or prohibit restricted transactions if they--
    (i) Address methods to conduct due diligence in establishing a 
commercial customer account or relationship as set out in Sec.  
132.6(b);
    (ii) Address methods to conduct due diligence as set out in Sec.  
132.6(b)(2)(ii)(B) in the event that the participant has actual 
knowledge that an existing commercial customer of the participant 
engages in an Internet gambling business; and

[[Page 492]]

    (iii) Include procedures to be followed with respect to a commercial 
customer if the originating depository financial institution or third-
party processor has actual knowledge that its commercial customer has 
originated restricted transactions as ACH debit transactions or if the 
receiving depository financial institution or third-party processor has 
actual knowledge that its commercial customer has received restricted 
transactions as ACH credit transactions, such as procedures that 
address--
    (A) The circumstances under which the commercial customer should not 
be allowed to originate ACH debit transactions or receive ACH credit 
transactions; and
    (B) The circumstances under which the account should be closed.
    (2) The policies and procedures of a receiving gateway operator and 
third-party processor that receives instructions to originate an ACH 
debit transaction directly from a foreign sender are deemed to be 
reasonably designed to prevent or prohibit restricted transactions if 
they include procedures to be followed with respect to a foreign sender 
if the receiving gateway operator or third-party processor has actual 
knowledge, obtained through notification by a government entity, such as 
law enforcement or a regulatory agency, that such instructions included 
instructions for restricted transactions. Such procedures may address 
sending notification to the foreign sender, such as in the form of the 
notice contained in appendix A to this part.
    (d) Card system examples. The policies and procedures of a card 
system operator, a merchant acquirer, third-party processor, or a card 
issuer, are deemed to be reasonably designed to identify and block or 
otherwise prevent or prohibit restricted transactions, if the policies 
and procedures--
    (1) Provide for either--
    (i) Methods to conduct due diligence--
    (A) In establishing a commercial customer account or relationship as 
set out in Sec.  132.6(b); and
    (B) As set out in Sec.  132.6(b)(2)(ii)(B) in the event that the 
participant has actual knowledge that an existing commercial customer of 
the participant engages in an Internet gambling business; or
    (ii) Implementation of a code system, such as transaction codes and 
merchant/business category codes, that are required to accompany the 
authorization request for a transaction, including--
    (A) The operational functionality to enable the card system operator 
or the card issuer to reasonably identify and deny authorization for a 
transaction that the coding procedure indicates may be a restricted 
transaction; and
    (B) Procedures for ongoing monitoring or testing by the card system 
operator to detect potential restricted transactions, including--
    (1) Conducting testing to ascertain whether transaction 
authorization requests are coded correctly; and
    (2) Monitoring and analyzing payment patterns to detect suspicious 
payment volumes from a merchant customer; and
    (2) For the card system operator, merchant acquirer, or third-party 
processor, include procedures to be followed when the participant has 
actual knowledge that a merchant has received restricted transactions 
through the card system, such as--
    (i) The circumstances under which the access to the card system for 
the merchant, merchant acquirer, or third-party processor should be 
denied; and
    (ii) The circumstances under which the merchant account should be 
closed.
    (e) Check collection system examples. (1) The policies and 
procedures of a depositary bank are deemed to be reasonably designed to 
identify and block or otherwise prevent or prohibit restricted 
transactions, if they--
    (i) Address methods for the depositary bank to conduct due diligence 
in establishing a commercial customer account or relationship as set out 
in Sec.  132.6(b);
    (ii) Address methods for the depositary bank to conduct due 
diligence as set out in Sec.  132.6(b)(2)(ii)(B) in the event that the 
depositary bank has actual knowledge that an existing commercial 
customer engages in an Internet gambling business; and
    (iii) Include procedures to be followed if the depositary bank has 
actual knowledge that a commercial customer

[[Page 493]]

of the depositary bank has deposited checks that are restricted 
transactions, such as procedures that address--
    (A) The circumstances under which check collection services for the 
customer should be denied; and
    (B) The circumstances under which the account should be closed.
    (2) The policies and procedures of a depositary bank that receives 
checks for collection from a foreign banking office are deemed to be 
reasonably designed to identify and block or otherwise prevent or 
prohibit restricted transactions if they include procedures to be 
followed by the depositary bank when it has actual knowledge, obtained 
through notification by a government entity, such as law enforcement or 
a regulatory agency, that a foreign banking office has sent checks to 
the depositary bank that are restricted transactions. Such procedures 
may address sending notification to the foreign banking office, such as 
in the form of the notice contained in the appendix to this part.
    (f) Money transmitting business examples. The policies and 
procedures of an operator of a money transmitting business are deemed to 
be reasonably designed to identify and block or otherwise prevent or 
prohibit restricted transactions if they--
    (1) Address methods for the operator to conduct due diligence in 
establishing a commercial customer relationship as set out in Sec.  
132.6(b);
    (2) Address methods for the operator to conduct due diligence as set 
out in Sec.  132.6(b)(2)(ii)(B) in the event that the operator has 
actual knowledge that an existing commercial customer engages in an 
Internet gambling business;
    (3) Include procedures regarding ongoing monitoring or testing by 
the operator to detect potential restricted transactions, such as 
monitoring and analyzing payment patterns to detect suspicious payment 
volumes to any recipient; and
    (4) Include procedures when the operator has actual knowledge that a 
commercial customer of the operator has received restricted transactions 
through the money transmitting business, that address--
    (i) The circumstances under which money transmitting services should 
be denied to that commercial customer; and
    (ii) The circumstances under which the commercial customer account 
should be closed.
    (g) Wire transfer system examples. The policies and procedures of 
the beneficiary's bank in a wire transfer are deemed to be reasonably 
designed to identify and block or otherwise prevent or prohibit 
restricted transactions if they--
    (1) Address methods for the beneficiary's bank to conduct due 
diligence in establishing a commercial customer account as set out in 
Sec.  132.6(b);
    (2) Address methods for the beneficiary's bank to conduct due 
diligence as set out in Sec.  132.6(b)(2)(ii)(B) in the event that the 
beneficiary's bank has actual knowledge that an existing commercial 
customer of the bank engages in an Internet gambling business;
    (3) Include procedures to be followed if the beneficiary's bank 
obtains actual knowledge that a commercial customer of the bank has 
received restricted transactions through the wire transfer system, such 
as procedures that address
    (i) The circumstances under which the beneficiary bank should deny 
wire transfer services to the commercial customer; and
    (ii) The circumstances under which the commercial customer account 
should be closed.



Sec.  132.7  Regulatory enforcement.

    The requirements under this part are subject to the exclusive 
regulatory enforcement of--
    (a) The Federal functional regulators, with respect to the 
designated payment systems and participants therein that are subject to 
the respective jurisdiction of such regulators under section 505(a) of 
the Gramm-Leach-Bliley Act (15 U.S.C. 6805(a)) and section 5g of the 
Commodity Exchange Act (7 U.S.C. 7b-2); and
    (b) The Federal Trade Commission, with respect to designated payment 
systems and participants therein not otherwise subject to the 
jurisdiction of

[[Page 494]]

any Federal functional regulators (including the Commission) as 
described in paragraph (a) of this section.



                Sec. Appendix A to Part 132--Model Notice

[Date]
[Name of foreign sender or foreign banking office]
[Address]
Re: U.S. Unlawful Internet Gambling Enforcement Act Notice

Dear [Name of foreign counterparty]:

    On [date], U.S. government officials informed us that your 
institution processed payments through our facilities for Internet 
gambling transactions restricted by U.S. law on [dates, recipients, and 
other relevant information if available].
    We provide this notice to comply with U.S. Government regulations 
implementing the Unlawful Internet Gambling Enforcement Act of 2006 
(Act), a U.S. federal law. Our policies and procedures established in 
accordance with those regulations provide that we will notify a foreign 
counterparty if we learn that the counterparty has processed payments 
through our facilities for Internet gambling transactions restricted by 
the Act. This notice ensures that you are aware that we have received 
information that your institution has processed payments for Internet 
gambling restricted by the Act.
    The Act is codified in subchapter IV, chapter 53, title 31 of the 
U.S. Code (31 U.S.C. 5361 et seq.). Implementing regulations that 
duplicate one another can be found at part 233 of title 12 of the U.S. 
Code of Federal Regulations (12 CFR part 233) and part 132 of title 31 
of the U.S. Code of Federal Regulations (31 CFR part 132).

                        PARTS 133	147 [RESERVED]



PART 148_QUALIFIED FINANCIAL CONTRACTS RECORDKEEPING RELATED TO THE
FDIC ORDERLY LIQUIDATION AUTHORITY--Table of Contents



Sec.
148.1 Scope, purpose, effective date, and compliance dates.
148.2 Definitions.
148.3 Form, availability and maintenance of records.
148.4 Content of records.

Appendix A to Part 148--File Structure for Qualified Financial Contract 
          Records

    Authority: 31 U.S.C. 321(b) and 12 U.S.C. 5390(c)(8)(H).

    Source: 81 FR 75658, Oct. 31, 2016, unless otherwise noted.



Sec.  148.1  Scope, purpose, effective date, and compliance dates.

    (a) Scope. This part applies to each financial company that is a 
records entity and, with respect to Sec.  148.3(a), a top-tier financial 
company of a corporate group as defined in Sec.  148.2.
    (b) Purpose. This part establishes recordkeeping requirements with 
respect to QFCs of records entities in order to assist the Federal 
Deposit Insurance Corporation (``FDIC'') as receiver for a covered 
financial company (as defined in 12 U.S.C. 5381(a)(8)) in being able to 
exercise its rights and fulfill its obligations under 12 U.S.C. 
5390(c)(8), (9), or (10).
    (c) Effective Date. This part shall become effective December 30, 
2016.
    (d) Compliance--(1) Initial compliance dates. (i) A records entity 
subject to this part on the effective date must comply with Sec.  
148.3(a)(2) on the date that is 90 days after the effective date and 
with all other applicable requirements of this part on:
    (A) March 31, 2019 for a records entity that:
    (1) Has total assets equal to or greater than $1 trillion; or
    (2) Is a member of the corporate group of any such records entity 
described in paragraph (d)(1)(i)(A)(1) of this section;
    (B) June 30, 2019 for any records entity that is not subject to the 
compliance date set forth in paragraph (d)(1)(i)(A) of this section and:
    (1) Has total assets equal to or greater than $500 billion; or
    (2) Is a member of the corporate group of any such records entity 
described in paragraph (d)(1)(i)(B)(1) of this section; and
    (C) June 30, 2020 for any records entity that is not subject to the 
compliance dates set forth in paragraph (d)(1)(i)(A) or (B) of this 
section and:
    (1) Has total assets equal to or greater than $250 billion; or
    (2) Is a member of the corporate group of any such records entity 
described in paragraph (d)(1)(i)(C)(1) of this section; and

[[Page 495]]

    (D) June 30, 2021 for any records entity that is not subject to the 
compliance dates set forth in paragraph (d)(1)(i)(A), (B), or (C) of 
this section.
    (ii) A financial company that becomes a records entity after the 
effective date must comply with Sec.  148.3(a)(2) within 90 days of 
becoming a records entity and with all other applicable requirements of 
this part within 540 days of becoming a records entity or within the 
remainder of the applicable period provided under paragraph (d)(1)(i) of 
this section, whichever period is longer.
    (2) Subsequent compliance dates. If a financial company that at one 
time met the definition of records entity later ceases to meet the 
definition of records entity and thereafter, on any subsequent date, 
again meets the definition of a records entity, such financial company 
must comply with all applicable requirements of this part within 365 
days after such subsequent date, or within the remainder of the 
applicable period provided under paragraph (d)(1)(i) of this section, 
whichever period is longer.
    (3) Extensions of time to comply. The Secretary, in consultation 
with the FDIC, may grant one or more extensions of time for compliance 
with this part. A records entity may request an extension of time by 
submitting a written request to the Department of the Treasury and the 
FDIC at least 30 days prior to the deadline for its compliance provided 
under paragraph (d)(1) of this section. The written request for an 
extension must contain:
    (i) A statement of the reasons why the records entity cannot comply 
by the deadline; and
    (ii) A plan for achieving compliance during the requested extension 
period.
    (4) Compliance by top-tier financial company. A top-tier financial 
company must comply with Sec.  148.3(a)(1)(ii) on the same date as the 
date on which the records entity members of the corporate group of which 
it is the top-tier financial company are required to comply with this 
part.

[81 FR 75658, Oct. 31, 2016, as amended at 83 FR 17621, Apr. 23, 2018]



Sec.  148.2  Definitions.

    For purposes of this part:
    (a) Affiliate means any entity that controls, is controlled by, or 
is under common control with another entity.
    (b) Control. An entity ``controls'' another entity if:
    (1) The entity directly or indirectly or acting through one or more 
other persons owns, controls, or has the power to vote 25 percent or 
more of any class of voting securities of the other entity;
    (2) The entity controls in any manner the election of a majority of 
the directors or trustees of the other entity; or
    (3) The Board of Governors of the Federal Reserve System has 
determined, after notice and opportunity for hearing in accordance with 
12 CFR 225.31, that the entity directly or indirectly exercises a 
controlling influence over the management or policies of the other 
entity.
    (c) Corporate group means an entity and all affiliates of that 
entity.
    (d) Counterparty means any natural person or entity (or separate 
foreign branch or division of any entity) that is a party to a QFC with 
a records entity.
    (e) Derivative liabilities means the fair value of derivative 
instruments in a negative position as of the end of the most recent 
fiscal year end, as recognized and measured in accordance with U.S. 
generally accepted accounting principles or other applicable accounting 
standards. Such value shall be adjusted for the effects of master 
netting agreements and cash collateral held with the same counterparty 
on a net basis to the extent such adjustments are reflected on the 
audited consolidated statement of financial condition of the applicable 
financial company filed with its primary financial regulatory agency or 
agencies or, for financial companies not required to file such 
statements, on the consolidated balance sheet of the financial company 
prepared in accordance with U.S. generally accepted accounting 
principles or other applicable accounting standards.
    (f) Excluded entity means:
    (1) An insured depository institution as defined in 12 U.S.C. 
1813(c)(2);
    (2) A subsidiary of an insured depository institution that is not:

[[Page 496]]

    (i) A functionally regulated subsidiary as defined in 12 U.S.C. 
1844(c)(5);
    (ii) A security-based swap dealer as defined in 15 U.S.C. 
78c(a)(71); or
    (iii) A major security-based swap participant as defined in 15 
U.S.C. 78c(a)(67); or
    (3) An insurance company.
    (g) Financial company has the meaning set forth in 12 U.S.C. 
5381(a)(11).
    (h) Insurance company means:
    (1) An insurance company as defined in 12 U.S.C. 5381(a)(13); and
    (2) A mutual insurance holding company that meets the conditions set 
forth in 12 CFR 380.11 for being treated as an insurance company for the 
purpose of section 203(e) of the Dodd-Frank Act, 12 U.S.C. 5383(e).
    (i) Legal Entity Identifier or LEI for an entity shall mean the 
global legal entity identifier maintained for such entity by a utility 
accredited by the Global LEI Foundation or by a utility endorsed by the 
Regulatory Oversight Committee. As used in this definition:
    (1) Regulatory Oversight Committee means the Regulatory Oversight 
Committee (of the Global LEI System), whose charter was set forth by the 
Finance Ministers and Central Bank Governors of the Group of Twenty and 
the Financial Stability Board, or any successor thereof; and
    (2) Global LEI Foundation means the not-for-profit organization 
organized under Swiss law by the Financial Stability Board in 2014, or 
any successor thereof.
    (j) Parent entity with respect to an entity is an entity that 
controls that entity.
    (k) Position means an individual transaction under or evidenced by a 
QFC and includes the rights and obligations of a party to an individual 
transaction under or evidenced by a QFC.
    (l) Primary financial regulatory agency means:
    (1) With respect to any financial company, the primary financial 
regulatory agency as specified for such financial company in 
subparagraphs (A), (B), (C), and (E) of 12 U.S.C. 5301(12); and
    (2) With respect to a financial market utility that is subject to a 
designation pursuant to 12 U.S.C. 5463 for which there is no primary 
financial regulatory agency under Sec.  148.2(l)(1), the Supervisory 
Agency for that financial market utility as defined in 12 U.S.C. 
5462(8).
    (m) Qualified financial contract or QFC means any qualified 
financial contract defined in 12 U.S.C. 5390(c)(8)(D), including without 
limitation, any ``swap'' defined in section 1a(47) of the Commodity 
Exchange Act (7 U.S.C. 1a(47)) and in any rules or regulations issued by 
the Commodity Futures Trading Commission pursuant to such section; any 
``security-based swap'' defined in section 3(a) of the Securities 
Exchange Act of 1934 (15 U.S.C. 78c(a)) and in any rules or regulations 
issued by the Securities and Exchange Commission pursuant to such 
section; and any securities contract, commodity contract, forward 
contract, repurchase agreement, swap agreement, and any similar 
agreement that the FDIC determines by regulation, resolution, or order 
to be a qualified financial contract as provided in 12 U.S.C. 
5390(c)(8)(D).
    (n) Records entity--
    (1) Records entity means any financial company that:
    (i) Is not an excluded entity as defined in Sec.  148.2(f);
    (ii) Is a party to an open QFC; and
    (iii) (A) Is subject to a determination that the company shall be 
subject to Federal Reserve supervision and enhanced prudential standards 
pursuant to 12 U.S.C. 5323;
    (B) Is subject to a designation as, or as likely to become, 
systemically important pursuant to 12 U.S.C. 5463;
    (C) Is identified as a global systemically important bank holding 
company pursuant to 12 CFR part 217;
    (D)(1) Has total assets on a consolidated basis equal to or greater 
than $50 billion; and
    (2) On a consolidated basis has:
    (i) Total gross notional derivatives outstanding equal to or greater 
than $250 billion; or
    (ii) Derivative liabilities equal to or greater than $3.5 billion; 
or
    (E)(1) Is a member of a corporate group in which at least one 
financial company meets the criteria under one or more of paragraphs 
(n)(1)(iii)(A), (B), (C), or (D) of this section; and

[[Page 497]]

    (2)(i) Consolidates, is consolidated by, or is consolidated with 
such financial company on financial statements prepared in accordance 
with U.S. generally accepted accounting principles or other applicable 
accounting standards; or
    (ii) For financial companies not subject to such principles or 
standards, would consolidate, be consolidated by, or be consolidated 
with such financial company if such principles or standards applied.
    (2) A financial company that qualifies as a records entity pursuant 
to paragraph (n)(1)(iii)(D) will remain a records entity until one year 
after it ceases to meet the criteria set forth in paragraph 
(n)(1)(iii)(D) of this section.
    (o) Secretary means the Secretary of the Treasury or the Secretary's 
designee.
    (p) Subsidiary means any company that is controlled by another 
company.
    (q) Top-tier financial company means a financial company that is a 
member of a corporate group consisting of multiple records entities and 
that is not itself controlled by another financial company.
    (r) Total assets means the total assets reported on the audited 
consolidated statement of financial condition of the applicable 
financial company for the most recent year end filed with its primary 
financial regulatory agency or agencies or, for financial companies not 
required to file such statements, the total assets shown on the 
consolidated balance sheet of the financial company for the most recent 
fiscal year end as prepared in accordance with U.S. generally accepted 
accounting principles or other applicable accounting standards.
    (s) Total gross notional derivatives outstanding means the gross 
notional value of all derivative instruments that are outstanding as of 
the most recent fiscal year end, as recognized and measured in 
accordance with U.S. generally accepted accounting principles or other 
applicable accounting standards.



Sec.  148.3  Form, availability and maintenance of records.

    (a) Form and availability--(1) Electronic records. (i) Except to the 
extent of any relevant exemption provided under paragraph (c) of this 
section, a records entity is required to maintain the records described 
in Sec.  148.4 in electronic form and, as applicable, in the format set 
forth in the tables in the appendix to this part.
    (ii) A top-tier financial company must be capable of generating a 
single, compiled set of the records required to be maintained by Sec.  
148.4(a)-(h), in a format that allows for aggregation and disaggregation 
of such data by records entity and counterparty, for all records 
entities in its corporate group that are consolidated by or consolidated 
with such top-tier financial company on financial statements prepared in 
accordance with U.S. generally accepted accounting principles or other 
applicable accounting standards or, for financial companies not subject 
to such principles or standards, that would be consolidated by or 
consolidated with such financial company if such principles or standards 
applied.
    (2) Point of contact. Each records entity and top-tier financial 
company must provide a point of contact who is responsible for 
recordkeeping under this part by written notice to its primary financial 
regulatory agency or agencies and the FDIC and must provide written 
notice to its primary financial regulatory agency or agencies and the 
FDIC within 30 days of any change in its point of contact.
    (3) Access to records. Except to the extent of any relevant 
exemption provided under paragraph (c) of this section, a records entity 
and a top-tier financial company that are regulated by a primary 
financial regulatory agency shall be capable of providing electronically 
to such primary financial regulatory agency and the FDIC, within 24 
hours of request by the primary financial regulatory agency:
    (i) In the case of a records entity, the records specified in Sec.  
148.4, and
    (ii) In the case of a top-tier financial company, the set of records 
referenced in paragraph (a)(1)(ii) of this section.
    (b) Maintenance and updating--(1) Daily updating. Except to the 
extent of any relevant exemption provided under paragraph (c) of this 
section, the records maintained under Sec.  148.4 shall be based on 
values and information

[[Page 498]]

that are no less current than previous end-of-day values and 
information.
    (2) Records maintenance. The records required under Sec.  148.4 and 
the capability of generating the set of records required by paragraph 
(a)(1)(ii) of this section may be maintained on behalf of the records 
entity or top-tier financial company, as applicable, by any affiliate of 
such records entity or top-tier financial company, as applicable, or any 
third-party service provider; provided that such records entity shall 
itself maintain records under this part in the event that such affiliate 
or service provider shall fail to maintain such records and such top-
tier financial company shall itself maintain the capability of 
generating the set of records required by paragraph (a)(1)(ii) of this 
section in the event that such affiliate or service provider shall fail 
to maintain the capability of doing so.
    (3) Record retention. A records entity shall retain records 
maintained under Sec.  148.4 based on end-of-day values and information 
for the five preceding business days.
    (c) Exemptions--(1) De minimis exemption. A records entity that is a 
party to 50 or fewer open QFC positions is not required to maintain the 
records described in Sec.  148.4, other than the records described in 
Sec.  148.4(i).
    (2) Clearing organizations. A records entity that is a derivatives 
clearing organization registered with the Commodity Futures Trading 
Commission under section 5b of the Commodity Exchange Act (7 U.S.C. 7a-
1) or a clearing agency registered with the Securities and Exchange 
Commission under section 17A of the Securities Exchange Act of 1934 (15 
U.S.C. 78q-1) is not required to maintain the records described in Sec.  
148.4 if it is:
    (i) In compliance with the recordkeeping requirements of the 
Commodity Futures Trading Commission or the Securities and Exchange 
Commission, as applicable, including its maintenance of records 
pertaining to all QFCs cleared by such records entity; and
    (ii) Capable of and not restricted from, whether by law, regulation, 
or agreement, transmitting electronically to the FDIC the records 
maintained under such recordkeeping requirements within 24 hours of 
request of the Commodity Futures Trading Commission or the Securities 
and Exchange Commission, as applicable.
    (3) Requests for exemptions. One or more records entities may 
request an exemption from one or more of the requirements of this part 
by writing to the Department of the Treasury, the FDIC, and its primary 
financial regulatory agency or agencies, if any. The written request for 
an exemption must:
    (i) Identify the records entity or records entities or the types of 
records entities to which the exemption should apply;
    (ii) Specify the requirement(s) under this part from which the 
identified records entities should be exempt;
    (iii) Provide details as to the size, risk, complexity, leverage, 
frequency and dollar amount of qualified financial contracts, and 
interconnectedness to the financial system of each records entity 
identified in paragraph (c)(3)(i) of this section, to the extent 
appropriate, and any other relevant factors; and
    (iv) Specify the reason(s) why granting the exemption will not 
impair or impede the FDIC's ability to exercise its rights or fulfill 
its statutory obligations under 12 U.S.C. 5390(c)(8), (9), and (10).
    (4) Granting exemptions. (i) Upon receipt of a written 
recommendation from the FDIC, prepared in consultation with the primary 
financial regulatory agency or agencies for the applicable records 
entity or entities, that takes into consideration each of the factors 
referenced in 12 U.S.C. 5390(c)(8)(H)(iv) and any other factors the FDIC 
considers appropriate, the Secretary may grant, in whole or in part, a 
conditional or unconditional exemption from compliance with one or more 
of the requirements of this part by issuing an exemption to one or more 
records entities.
    (ii) In determining whether to grant an exemption to one or more 
records entities, including whether to grant a conditional or 
unconditional exemption, the Secretary will consider any factors deemed 
appropriate by the Secretary, including whether application of one or 
more requirements of this part is not necessary to achieve the

[[Page 499]]

purpose of this part as described in Sec.  148.1(b).
    (iii) If the FDIC does not submit, within 90 days of the date on 
which the FDIC and the Department of the Treasury received the exemption 
request, a written recommendation to the Secretary as to whether to 
grant or deny an exemption request, the Secretary will nevertheless 
determine whether to grant or deny the exemption request.



Sec.  148.4  Content of records.

    Subject to Sec.  148.3(c), a records entity must maintain the 
following records:
    (a) The position level data listed in Table A-1 in appendix A to 
this part with respect to each QFC to which it is a party.
    (b) The counterparty netting set data listed in Table A-2 in 
appendix A to this part for each netting set with respect to each QFC to 
which it is a party.
    (c) The legal agreements information listed in Table A-3 in appendix 
A to this part with respect to each QFC to which it is a party.
    (d) The collateral detail data listed in Table A-4 in appendix A to 
this part with respect to each QFC to which it is a party.
    (e) The corporate organization master data lookup table in appendix 
A to this part for the records entity and each of its affiliates.
    (f) The counterparty master data lookup table in appendix A to this 
part for each non-affiliated counterparty with respect to QFCs to which 
it is a party.
    (g) The booking location master data lookup table in appendix A to 
this part for each booking location used with respect to QFCs to which 
it is a party.
    (h) The safekeeping agent master data lookup table in the appendix 
to this part for each safekeeping agent used with respect to QFCs to 
which it is a party.
    (i) All documents that govern QFC transactions between the records 
entity and each counterparty, including, without limitation, master 
agreements and annexes, schedules, netting agreements, supplements, or 
other modifications with respect to the agreements, confirmations for 
each open QFC position of the records entity that has been confirmed and 
all trade acknowledgments for each open QFC position that has not been 
confirmed, all credit support documents including, but not limited to, 
credit support annexes, guarantees, keep-well agreements, or net worth 
maintenance agreements that are relevant to one or more QFCs, and all 
assignment or novation documents, if applicable, including documents 
that confirm that all required consents, approvals, or other conditions 
precedent for such assignment or novation have been obtained or 
satisfied.
    (j) A list of vendors directly supporting the QFC-related activities 
of the records entity and the vendors' contact information.



  Sec. Appendix A to Part 148--File Structure for Qualified Financial 
                            Contract Records

                                         Table A-1--Position-Level Data
----------------------------------------------------------------------------------------------------------------
                                                       Instructions and
                      Field             Example        data application       Definition           Validation
----------------------------------------------------------------------------------------------------------------
A1.1..........  As of date.......  2015-01-05.......  Provide data       YYYY-MM-DD..........
                                                       extraction date.
A1.2..........  Records entity     999999999........  Provide LEI for    Varchar(50).........  Validated against
                 identifier.                           records entity.                          CO.2.
                                                       Information
                                                       needed to review
                                                       position-level
                                                       data by records
                                                       entity.

[[Page 500]]

 
A1.3..........  Position           20058953.........  Provide a          Varchar(100).
                 identifier.                           position
                                                       identifier.
                                                       Should be used
                                                       consistently
                                                       across all
                                                       record entities
                                                       within the
                                                       corporate group.
                                                       Use the unique
                                                       transaction
                                                       identifier if
                                                       available.
                                                       Information
                                                       needed to
                                                       readily track
                                                       and distinguish
                                                       positions.
A1.4..........  Counterparty       888888888........  Provide a          Varchar(50).........  Validated against
                 identifier.                           counterparty                             CP.2.
                                                       identifier. Use
                                                       LEI if
                                                       counterparty has
                                                       one. Should be
                                                       used
                                                       consistently by
                                                       all record
                                                       entities within
                                                       the corporate
                                                       group.
                                                       Information
                                                       needed to
                                                       identify
                                                       counterparty by
                                                       reference to
                                                       Counterparty
                                                       Master Table.
A1.5..........  Internal booking   New York, New      Provide office     Varchar(50).........  Combination A1.2
                 location           York.              where the                                + A1.5 + A1.6
                 identifier.                           position is                              should have a
                                                       booked.                                  corresponding
                                                       Information                              unique
                                                       needed to                                combination BL.2
                                                       determine system                         + BL.3 + BL.4
                                                       on which the                             entry in Booking
                                                       trade is booked                          Location Master
                                                       and settled.                             Table.
A1.6..........  Unique booking     xxxxxx...........  Provide an         Varchar(50).........  Combination A1.2
                 unit or desk                          identifier for                           + A1.5 + A1.6
                 identifier.                           unit or desk at                          should have a
                                                       which the                                corresponding
                                                       position is                              unique
                                                       booked.                                  combination BL.2
                                                       Information                              + BL.3 + BL.4
                                                       needed to help                           entry in Booking
                                                       determine                                Location Master
                                                       purpose of                               Table.
                                                       position.

[[Page 501]]

 
A1.7..........  Type of QFC......  Credit, equity,    Provide type of    Varchar (100).
                                    foreign            QFC. Use unique
                                    exchange,          product
                                    interest rate      identifier if
                                    (including cross-  available.
                                    currency), other   Information
                                    commodity,         needed to
                                    securities         determine the
                                    repurchase         nature of the
                                    agreement,         QFC.
                                    securities
                                    lending, loan
                                    repurchase
                                    agreement,
                                    guarantee or
                                    other third
                                    party credit
                                    enhancement of a
                                    QFC.
A1.7.1........  Type of QFC        Credit, equity,    If QFC type is     Varchar(500)........  Only required if
                 covered by         foreign            guarantee or                             QFC type (A1.7)
                 guarantee or       exchange,          other third                              is a guarantee
                 other third        interest rate      party credit                             or other third
                 party credit       (including cross-  enhancement,                             party credit
                 enhancement.       currency), other   provide type of                          enhancement.
                                    commodity,         QFC of the QFC
                                    securities         that is covered
                                    repurchase         by such
                                    agreement,         guarantee or
                                    securities         other third
                                    lending, or loan   party credit
                                    repurchase         enhancement. Use
                                    agreement.         unique product
                                                       identifier if
                                                       available. If
                                                       multiple asset
                                                       classes are
                                                       covered by the
                                                       guarantee or
                                                       credit
                                                       enhancement,
                                                       enter the asset
                                                       classes
                                                       separated by
                                                       comma. If all
                                                       the QFCs of the
                                                       underlying QFC
                                                       obligor
                                                       identifier are
                                                       covered by the
                                                       guarantee or
                                                       other third
                                                       party credit
                                                       enhancement,
                                                       enter ``All''.

[[Page 502]]

 
A1.7.2........  Underlying QFC     888888888........  If QFC type is     Varchar(50).........  Only required if
                 obligor                               guarantee or                             QFC asset type
                 identifier.                           other third                              (A1.7) is a
                                                       party credit                             guarantee or
                                                       enhancement,                             other third
                                                       provide an                               party credit
                                                       identifier for                           enhancement.
                                                       the QFC obligor                          Validated
                                                       whose obligation                         against CO.2 if
                                                       is covered by                            affiliate or
                                                       the guarantee or                         CP.2 if non-
                                                       other third                              affiliate.
                                                       party credit
                                                       enhancement. Use
                                                       LEI if
                                                       underlying QFC
                                                       obligor has one.
                                                       Complete the
                                                       counterparty
                                                       master table
                                                       with respect to
                                                       a QFC obligor
                                                       that is a non-
                                                       affiliate.
A1.8..........  Agreement          xxxxxxxxx........  Provide an         Varchar(50).........  Validated against
                 identifier.                           identifier for                           A3.3.
                                                       the primary
                                                       governing
                                                       documentation,
                                                       e.g., the master
                                                       agreement or
                                                       guarantee
                                                       agreement, as
                                                       applicable.
A1.9..........  Netting agreement  xxxxxxxxx........  Provide an         Varchar(50).........  Validated against
                 identifier.                           identifier for                           A3.3.
                                                       netting
                                                       agreement. If
                                                       this agreement
                                                       is the same as
                                                       provided in
                                                       A1.8, use same
                                                       identifier.
                                                       Information
                                                       needed to
                                                       identify unique
                                                       netting sets.

[[Page 503]]

 
A1.10.........  Netting agreement  xxxxxxxxx........  Provide a netting  Varchar(50).........  Validated against
                 counterparty                          agreement                                CP.2.
                 identifier.                           counterparty
                                                       identifier. Use
                                                       same identifier
                                                       as provided in
                                                       A1.4 if
                                                       counterparty and
                                                       netting
                                                       agreement
                                                       counterparty are
                                                       the same. Use
                                                       LEI if netting
                                                       agreement
                                                       counterparty has
                                                       one. Information
                                                       needed to
                                                       identify unique
                                                       netting sets.
A1.11.........  Trade date.......  2014-12-20.......  Provide trade or   YYYY-MM-DD.
                                                       other commitment
                                                       date for the
                                                       QFC. Information
                                                       needed to
                                                       determine when
                                                       the entity's
                                                       rights and
                                                       obligations
                                                       regarding the
                                                       position
                                                       originated.
A1.12.........  Termination date.  2014-03-31.......  Provide date the   YYYY-MM-DD.
                                                       QFC terminates
                                                       or is expected
                                                       to terminate,
                                                       expire, mature,
                                                       or when final
                                                       performance is
                                                       required.
                                                       Information
                                                       needed to
                                                       determine when
                                                       the entity's
                                                       rights and
                                                       obligations
                                                       regarding the
                                                       position are
                                                       expected to end.
A1.13.........  Next call, put,    2015-01-25.......  Provide next       YYYY-MM-DD.
                 or cancellation                       call, put, or
                 date.                                 cancellation
                                                       date.
A1.14.........  Next payment date  2015-01-25.......  Provide next       YYYY-MM-DD.
                                                       payment date.
A1.15.........  Local Currency Of  USD..............  Provide currency   Char(3).
                 Position.                             in which QFC is
                                                       denominated. Use
                                                       ISO currency
                                                       code.

[[Page 504]]

 
A1.16.........  Current market     995000...........  Provide current    Num (25,5).
                 value of the                          market value of
                 position in                           the position in
                 local currency.                       local currency.
                                                       In the case of a
                                                       guarantee or
                                                       other third
                                                       party credit
                                                       enhancements,
                                                       provide the
                                                       current mark-to-
                                                       market expected
                                                       value of the
                                                       exposure.
                                                       Information
                                                       needed to
                                                       determine the
                                                       current size of
                                                       the obligation
                                                       or benefit
                                                       associated with
                                                       the QFC.
A1.17.........  Current market     995000...........  In the case of a   Num (25,5).
                 value of the                          guarantee or
                 position in U.S.                      other third
                 dollars.                              party credit
                                                       enhancements,
                                                       provide the
                                                       current mark-to-
                                                       market expected
                                                       value of the
                                                       exposure.
                                                       Information
                                                       needed to
                                                       determine the
                                                       current size of
                                                       the obligation/
                                                       benefit
                                                       associated with
                                                       the QFC.
A1.18.........  Asset              1................  Provide fair       Char(1).
                 Classification.                       value asset
                                                       classification
                                                       under GAAP,
                                                       IFRS, or other
                                                       accounting
                                                       principles or
                                                       standards used
                                                       by records
                                                       entity. Provide
                                                       ``1'' for Level
                                                       1, ``2'' for
                                                       Level 2, or
                                                       ``3'' for Level
                                                       3. Information
                                                       needed to assess
                                                       fair value of
                                                       the position.

[[Page 505]]

 
A1.19.........  Notional or        1000000..........  Provide the        Num (25,5).
                 principal amount                      notional or
                 of the position                       principal
                 in local                              amount, as
                 currency.                             applicable, in
                                                       local currency.
                                                       In the case of a
                                                       guarantee or
                                                       other third
                                                       party credit
                                                       enhancement,
                                                       provide the
                                                       maximum possible
                                                       exposure.
                                                       Information
                                                       needed to help
                                                       evaluate the
                                                       position.
A1.20.........  Notional or        1000000..........  Provide the        Num (25,5).
                 principal amount                      notional or
                 of the position                       principal
                 In U.S. dollars.                      amount, as
                                                       applicable, in
                                                       U.S. dollars. In
                                                       the case of a
                                                       guarantee or
                                                       other third
                                                       party credit
                                                       enhancements,
                                                       provide the
                                                       maximum possible
                                                       exposure.
                                                       Information
                                                       needed to help
                                                       evaluate the
                                                       position.
A1.21.........  Covered by third-  Y/N..............  Indicate whether   Char(1).............  Should be ``Y''
                 party credit                          QFC is covered                           or ``N.
                 enhancement                           by a guarantee
                 agreement (for                        or other third-
                 the benefit of                        party credit
                 the records                           enhancement.
                 entity)?                              Information
                                                       needed to
                                                       determine credit
                                                       enhancement.

[[Page 506]]

 
A1.21.1.......  Third-party        999999999........  If QFC is covered  Varchar(50).........  Required if A1.21
                 credit                                by a guarantee                           is ``Y''.
                 enhancement                           or other third-                          Validated
                 provider                              party credit                             against CP.2.
                 identifier (for                       enhancement,
                 the benefit of                        provide an
                 the records                           identifier for
                 entity).                              provider. Use
                                                       LEI if
                                                       available.
                                                       Complete the
                                                       counterparty
                                                       master table
                                                       with respect to
                                                       a provider that
                                                       is a non-
                                                       affiliate.
A1.21.2.......  Third-party        4444444..........  If QFC is covered  Varchar(50).........  Required if A1.21
                 credit                                by a guarantee                           is ``Y.''
                 enhancement                           or other third-                          Validated
                 agreement                             party credit                             against A3.3.
                 identifier (for                       enhancement,
                 the benefit of                        provide an
                 the records                           identifier for
                 entity).                              the agreement.
A1.21.3.......  Covered by third-  Y/N..............  Indicate whether   Char(1).............  Should be ``Y''
                 party credit                          QFC is covered                           or ``N.
                 enhancement                           by a guarantee
                 agreement (for                        or other third-
                 the benefit of                        party credit
                 the                                   enhancement.
                 counterparty)?                        Information
                                                       needed to
                                                       determine credit
                                                       enhancement.
A1.21.4.......  Third-party        999999999........  If QFC is covered  Varchar(50).........  Required if
                 credit                                by a guarantee                           A1.21.3 is
                 enhancement                           or other third-                          ``Y''. Validated
                 provider                              party credit                             against CO.2 or
                 identifier (for                       enhancement,                             CP.2.
                 the benefit of                        provide an
                 the                                   identifier for
                 counterparty).                        provider. Use
                                                       LEI if
                                                       available.
                                                       Complete the
                                                       counterparty
                                                       master table
                                                       with respect to
                                                       a provider that
                                                       is a non-
                                                       affiliate.

[[Page 507]]

 
A1.21.5.......  Third-party        4444444..........  If QFC is covered  Varchar(50).........  Required if
                 credit                                by a guarantee                           A1.21.3 is
                 enhancement                           or other third-                          ``Y''. Validated
                 agreement                             party credit                             against A3.3.
                 identifier (for                       enhancement,
                 the benefit of                        provide an
                 the                                   identifier for
                 counterparty).                        agreement.
A1.22.........  Related position   3333333..........  Use this field to  Varchar(100).
                 of records                            link any related
                 entity.                               positions of the
                                                       records entity.
                                                       All positions
                                                       that are related
                                                       to one another
                                                       should have same
                                                       designation in
                                                       this field.
A1.23.........  Reference number   9999999..........  Provide a unique   Varchar(500).
                 for any related                       reference number
                 loan.                                 for any loan
                                                       held by the
                                                       records entity
                                                       or a member of
                                                       its corporate
                                                       group related to
                                                       the position
                                                       (with multiple
                                                       entries
                                                       delimited by
                                                       commas).
A1.24.........  Identifier of the  999999999........  For any loan       Varchar(500).         .................
                 lender of the                         recorded in
                 related loan.                         A1.23, provide
                                                       identifier for
                                                       records entity
                                                       or member of its
                                                       corporate group
                                                       that holds any
                                                       related loan.
                                                       Use LEI if
                                                       entity has one.
----------------------------------------------------------------------------------------------------------------


                                    Table A-2--Counterparty Netting Set Data
----------------------------------------------------------------------------------------------------------------
                                                       Instructions and
                      Field             Example        data application       Definition           Validation
----------------------------------------------------------------------------------------------------------------
A2.1..........  As of date.......  2015-01-05.......  Data extraction    YYYY-MM-DD.
                                                       date.
A2.2..........  Records entity     999999999........  Provide the LEI    Varchar(50).........  Validated against
                 identifier.                           for the records                          CO.2.
                                                       entity.

[[Page 508]]

 
A2.3..........  Netting agreement  888888888........  Provide an         Varchar(50).........  Validated against
                 counterparty                          identifier for                           CP.2.
                 identifier.                           the netting
                                                       agreement
                                                       counterparty.
                                                       Use LEI if
                                                       counterparty has
                                                       one.
A2.4..........  Netting agreement  xxxxxxxxx........  Provide an         Varchar(50).........  Validated against
                 identifier.                           identifier for                           A3.3.
                                                       the netting
                                                       agreement.
A2.4.1........  Underlying QFC     888888888........  Provide            Varchar(50).........  Validated against
                 obligor                               identifier for                           CO.2 or CP.2.
                 identifier.                           underlying QFC
                                                       obligor if
                                                       netting
                                                       agreement is
                                                       associated with
                                                       a guarantee or
                                                       other third
                                                       party credit
                                                       enhancement. Use
                                                       LEI if available.
A2.5..........  Covered by third-  Y/N..............  Indicate whether   Char(1).............  Should be ``Y''
                 party credit                          the positions                            or ``N.``
                 enhancement                           subject to the
                 agreement (for                        netting set
                 the benefit of                        agreement are
                 the records                           covered by a
                 entity)?                              third-party
                                                       credit
                                                       enhancement
                                                       agreement.
A2.5.1........  Third-party        999999999........  Use LEI if         Varchar(50).........  Required if A2.5
                 credit                                available.                               is ``Y''.
                 enhancement                           Information                              Validated
                 provider                              needed to                                against CP.2.
                 identifier (for                       identity third-
                 the benefit of                        party credit
                 the records                           enhancement
                 entity).                              provider.
A2.5.2........  Third-party        4444444..........  .................  Varchar(50).........  Required if A2.5
                 credit                                                                         is ``Y''.
                 enhancement                                                                    Validated
                 agreement                                                                      against A3.3.
                 identifier (for
                 the benefit of
                 the records
                 entity).
A2.5.3........  Covered by third-  Y/N..............  Information        Char(1).............  Should be ``Y''
                 party credit                          needed to                                or ``N.
                 enhancement                           determine credit
                 agreement (for                        enhancement.
                 the benefit of
                 the
                 counterparty)?

[[Page 509]]

 
A2.5.4........  Third-party        999999999........  Use LEI if         Varchar(50).........  Required if
                 credit                                available.                               A2.5.3 is ``Y''.
                 enhancement                           Information                              Should be a
                 provider                              needed to                                valid entry in
                 identifier (for                       identity third-                          the Counterparty
                 the benefit of                        party credit                             Master Table.
                 the                                   enhancement                              Validated
                 counterparty).                        provider.                                against CP.2.
A2.5.5........  Third-party        4444444..........  Information used   Varchar(50).........  Required if
                 credit                                to determine                             A2.5.3 is ``Y''.
                 enhancement                           guarantee or                             Validated
                 agreement                             other third-                             against A3.3.
                 identifier (for                       party credit
                 the benefit of                        enhancement.
                 the
                 counterparty).
A2.6..........  Aggregate current  -1000000.........  Information        Num (25,5)..........  Market value of
                 market value in                       needed to help                           all positions in
                 U.S. dollars of                       evaluate the                             A1 for the given
                 all positions                         positions                                netting
                 under this                            subject to the                           agreement
                 netting                               netting                                  identifier
                 agreement.                            agreement.                               should be equal
                                                                                                to this value.
                                                                                                A2.6 = A2.7 +
                                                                                                A2.8.
A2.7..........  Current market     3000000..........  Information        Num (25,5)..........  Market value of
                 value in U.S.                         needed to help                           all positive
                 dollars of all                        evaluate the                             positions in A1
                 positive                              positions                                for the given
                 positions, as                         subject to the                           netting
                 aggregated under                      netting                                  agreement
                 this netting                          agreement.                               identifier
                 agreement.                                                                     should be equal
                                                                                                to this value.
                                                                                                A2.6 = A2.7 +
                                                                                                A2.8.
A2.8..........  Current market     -4000000.........  Information        Num (25,5)..........  Market value of
                 value in U.S.                         needed to help                           all negative
                 dollars of all                        evaluate the                             positions in A1
                 negative                              positions                                for the given
                 positions, as                         subject to the                           Netting
                 aggregated under                      netting                                  Agreement
                 this netting                          agreement.                               Identifier
                 agreement.                                                                     should be equal
                                                                                                to this value.
                                                                                                A2.6 = A2.7 +
                                                                                                A2.8.
A2.9..........  Current market     950000...........  Information        Num (25,5)..........  Market value of
                 value in U.S.                         needed to                                all collateral
                 dollars of all                        determine the                            posted by
                 collateral                            extent to which                          records entity
                 posted by                             collateral has                           for the given
                 records entity,                       been provided by                         netting
                 as aggregated                         records entity.                          agreement
                 under this                                                                     Identifier
                 netting                                                                        should be equal
                 agreement.                                                                     to sum of all
                                                                                                A4.9 for the
                                                                                                same netting
                                                                                                agreement
                                                                                                identifier in
                                                                                                A4.

[[Page 510]]

 
A2.10.........  Current market     50000............  Information        Num (25,5)..........  Market value of
                 value in U.S.                         needed to                                all collateral
                 dollars of all                        determine the                            posted by
                 collateral                            extent to which                          counterparty for
                 posted by                             collateral has                           the given
                 counterparty, as                      been provided by                         netting
                 aggregated under                      counterparty.                            agreement
                 this netting                                                                   identifier
                 agreement.                                                                     should be equal
                                                                                                to sum of all
                                                                                                A4.9 for the
                                                                                                same netting
                                                                                                agreement
                                                                                                identifier in
                                                                                                A4.
A2.11.........  Current market     950000...........  Information        Num (25,5).
                 value in U.S.                         needed to
                 dollar of all                         determine the
                 collateral                            extent to which
                 posted by                             collateral has
                 records entity                        been provided by
                 that is subject                       records entity.
                 to re-
                 hypothecation,
                 as aggregated
                 under this
                 netting
                 agreement.
A2.12.........  Current market     950000...........  Information        Num (25,5).
                 value in U.S.                         needed to
                 dollars of all                        determine the
                 collateral                            extent to which
                 posted by                             collateral has
                 counterparty                          been provided by
                 that is subject                       records entity.
                 to re-
                 hypothecation,
                 as aggregated
                 under this
                 netting
                 agreement.
A2.13.........  Records entity     950000...........  Provide records    Num (25,5)..........  Should be less
                 collateral--net.                      entity's                                 than or equal to
                                                       collateral                               A2.9.
                                                       excess or
                                                       deficiency with
                                                       respect to all
                                                       of its
                                                       positions, as
                                                       determined under
                                                       each applicable
                                                       agreement,
                                                       including
                                                       thresholds and
                                                       haircuts where
                                                       applicable.

[[Page 511]]

 
A2.14.........  Counterparty       950000...........  Provide            Num (25,5)..........  Should be less
                 collateral--net.                      counterparty's                           than or equal to
                                                       collateral                               A2.10.
                                                       excess or
                                                       deficiency with
                                                       respect to all
                                                       of its
                                                       positions, as
                                                       determined under
                                                       each applicable
                                                       agreement,
                                                       including
                                                       thresholds and
                                                       haircuts where
                                                       applicable.
A2.15.........  Next margin        2015-11-05.......  Provide next       YYYY-MM-DD.
                 payment date.                         margin payment
                                                       date for
                                                       position.
A2.16.........  Next margin        150000...........  Use positive       Num (25,5).
                 payment amount                        value if records
                 in U.S. dollars.                      entity is due a
                                                       payment and use
                                                       negative value
                                                       if records
                                                       entity has to
                                                       make the payment.
A2.17.........  Safekeeping agent  888888888........  Provide an         Varchar(50).........  Validated against
                 identifier for                        identifier for                           SA.2.
                 records entity.                       the records
                                                       entity's
                                                       safekeeping
                                                       agent, if any.
                                                       Use LEI if
                                                       safekeeping
                                                       agent has one.
A2.18.........  Safekeeping agent  888888888........  Provide an         Varchar(50).........  Validated against
                 identifier for                        identifier for                           SA.2.
                 counterparty.                         the
                                                       counterparty's
                                                       safekeeping
                                                       agent, if any.
                                                       Use LEI if
                                                       safekeeping
                                                       agent has one.
----------------------------------------------------------------------------------------------------------------


                                                               Table A-3--Legal Agreements
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     Instructions and data
                                              Field                  Example              application             Definition             Validation
--------------------------------------------------------------------------------------------------------------------------------------------------------
A3.1...............................  As Of Date............  2015-01-05............  Data extraction date.  YYYY-MM-DD.
A3.2...............................  Records entity          999999999.............  Provide LEI for        Varchar(50)..........  Validated against
                                      identifier.                                     records entity.                               CO.2.
A3.3...............................  Agreement identifier..  xxxxxx................  Provide identifier     Varchar(50).
                                                                                      for each master
                                                                                      agreement, governing
                                                                                      document, netting
                                                                                      agreement or third-
                                                                                      party credit
                                                                                      enhancement
                                                                                      agreement.

[[Page 512]]

 
A3.4...............................  Name of agreement or    ISDA Master 1992 or     Provide name of        Varchar(50).
                                      governing document.     Guarantee Agreement     agreement or
                                                              or Master Netting       governing document.
                                                              Agreement.
A3.5...............................  Agreement date........  2010-01-25............  Provide the date of    YYYY-MM-DD.
                                                                                      the agreement.
A3.6...............................  Agreement counterparty  888888888.............  Use LEI if             Varchar(50)..........  Validated against
                                      identifier.                                     counterparty has                              field CP.2.
                                                                                      one. Information
                                                                                      needed to identify
                                                                                      counterparty.
A3.6.1.............................  Underlying QFC obligor  888888888.............  Provide underlying     Varchar(50)..........  Validated against
                                      identifier.                                     QFC obligor                                   CO.2 or CP.2.
                                                                                      identifier if
                                                                                      document identifier
                                                                                      is associated with a
                                                                                      guarantee or other
                                                                                      third party credit
                                                                                      enhancement. Use LEI
                                                                                      if underlying QFC
                                                                                      obligor has one.
A3.7...............................  Agreement governing     New York..............  Provide law governing  Varchar(50).
                                      law.                                            contract disputes.
A3.8...............................  Cross-default           Y/N...................  Specify whether        Char(1)..............  Should be ``Y'' or
                                      provision?                                      agreement includes                            ``N.
                                                                                      default or other
                                                                                      termination event
                                                                                      provisions that
                                                                                      reference an entity
                                                                                      not a party to the
                                                                                      agreement (``cross-
                                                                                      default Entity'').
                                                                                      Information needed
                                                                                      to determine
                                                                                      exposure to
                                                                                      affiliates or other
                                                                                      entities.
A3.9...............................  Identity of cross-      777777777.............  Provide identity of    Varchar(500).........  Required if A3.8 is
                                      default entities.                               any cross-default                             ``Y''. ID should be
                                                                                      entities referenced                           a valid entry in
                                                                                      in A3.8. Use LEI if                           Corporate Org Master
                                                                                      entity has one.                               Table or
                                                                                      Information needed                            Counterparty Master
                                                                                      to determine                                  Table, if
                                                                                      exposure to other                             applicable. Multiple
                                                                                      entities.                                     entries comma
                                                                                                                                    separated.
A3.10..............................  Covered by third-party  Y/N...................  Information needed to  Char(1)..............  Should be ``Y'' or
                                      credit enhancement                              determine credit                              ``N.''
                                      agreement (for the                              enhancement.
                                      benefit of the
                                      records entity)?
A3.11..............................  Third-party credit      999999999.............  Use LEI if available.  Varchar(50)..........  Required if A3.10 is
                                      enhancement provider                            Information needed                            ``Y''. Should be a
                                      identifier (for the                             to identity Third-                            valid entry in the
                                      benefit of the                                  Party Credit                                  Counterparty Master
                                      records entity).                                Enhancement Provider.                         Table. Validated
                                                                                                                                    against CP.2.
A3.12..............................  Associated third-party  33333333..............  Information needed to  Varchar(50)..........  Required if A3.10 is
                                      credit enhancement                              determine credit                              ``Y''. Validated
                                      agreement document                              enhancement.                                  against field A3.3.
                                      identifier (for the
                                      benefit of the
                                      records entity).

[[Page 513]]

 
A3.12.1............................  Covered by third-party  Y/N...................  Information needed to  Char(1)..............  Should be ``Y'' or
                                      credit enhancement                              determine credit                              ``N.''
                                      agreement (for the                              enhancement.
                                      benefit of the
                                      counterparty)?
A3.12.2............................  Third-party credit      999999999.............  Use LEI if available.  Varchar(50)..........  Required if A3.12.1
                                      enhancement provider                            Information needed                            is ``Y''. Should be
                                      identifier (for the                             to identity Third-                            a valid entry in the
                                      benefit of the                                  Party Credit                                  Counterparty Master.
                                      counterparty).                                  Enhancement Provider.                         Validated against
                                                                                                                                    CP.2.
A3.12.3............................  Associated third-party  33333333..............  Information needed to  Varchar(50)..........  Required if A3.12.1
                                      credit enhancement                              determine credit                              is ``Y''. Validated
                                      agreement document                              enhancement.                                  against field A3.3.
                                      identifier (for the
                                      benefit of the
                                      counterparty).
A3.13..............................  Counterparty contact    John Doe & Co.........  Provide contact name   Varchar(200).
                                      information: name.                              for counterparty as
                                                                                      provided under
                                                                                      notice section of
                                                                                      agreement.
A3.14..............................  Counterparty contact    123 Main St, City,      Provide contact        Varchar(100).
                                      information: address.   State Zip code.         address for
                                                                                      counterparty as
                                                                                      provided under
                                                                                      notice section of
                                                                                      agreement.
A3.15..............................  Counterparty contact    1-999-999-9999........  Provide contact phone  Varchar(50).
                                      information: phone.                             number for
                                                                                      counterparty as
                                                                                      provided under
                                                                                      notice section of
                                                                                      agreement.
A3.16..............................  Counterparty's contact  [email protected]......  Provide contact email  Varchar(100).          .....................
                                      information: email                              address for
                                      address.                                        counterparty as
                                                                                      provided under
                                                                                      notice section of
                                                                                      agreement.
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                        Table A-4--Collateral Detail Data
----------------------------------------------------------------------------------------------------------------
                                                            Instructions and data
                           Field              Example            application           Definition     Validation
----------------------------------------------------------------------------------------------------------------
A4.1..............  As of date........  2015-01-05........  Data extraction date.  YYYY-MM-DD.
A4.2..............  Records entity      999999999.........  Provide LEI for        Varchar(50)......  Validated
                     identifier.                             records entity.                          against
                                                                                                      CO.2.
A4.3..............  Collateral posted/  P/N...............  Enter ``P'' if         Char(1).
                     collateral                              collateral has been
                     received flag.                          posted by the
                                                             records entity.
                                                             Enter ``R'' for
                                                             collateral received
                                                             by Records Entity.

[[Page 514]]

 
A4.4..............  Counterparty        888888888.........  Provide identifier     Varchar(50)......  Validated
                     identifier.                             for counterparty.                        against
                                                             Use LEI if                               CP.2.
                                                             counterparty has one.
A4.5..............  Netting agreement   xxxxxxxxx.........  Provide identifier     Varchar(50)......  Validated
                     identifier.                             for applicable                           against
                                                             netting agreement.                       field
                                                                                                      A3.3.
A4.6..............  Unique collateral   CUSIP/ISIN........  Provide identifier to  Varchar(50).
                     item identifier.                        reference individual
                                                             collateral posted.
A4.7..............  Original face       1500000...........  Information needed to  Num (25,5)
                     amount of                               evaluate collateral
                     collateral item                         sufficiency and
                     in local currency.                      marketability.
A4.8..............  Local currency of   USD...............  Use ISO currency code  Char(3).
                     collateral item.
A4.9..............  Market value        850000............  Information needed to  Num (25,5).......  Market
                     amount of                               evaluate collateral                      value of
                     collateral item                         sufficiency and                            all
                     in U.S. dollars.                        marketability and to                     collateral
                                                             permit aggregation                       posted by
                                                             across currencies.                       Records
                                                                                                      Entity or
                                                                                                      Counterpar
                                                                                                      ty A2.9 or
                                                                                                      A2.10 for
                                                                                                      the given
                                                                                                      netting
                                                                                                      agreement
                                                                                                      identifier
                                                                                                      should be
                                                                                                      equal to
                                                                                                      sum of all
                                                                                                      A4.9 for
                                                                                                      the same
                                                                                                      netting
                                                                                                      agreement
                                                                                                      identifier
                                                                                                      in A4.
A4.10.............  Description of      U.S. Treasury       Information needed to  Varchar(200).
                     collateral item.    Strip, maturity     evaluate collateral
                                         2020/6/30.          sufficiency and
                                                             marketability.
A4.11.............  Asset               1.................  Provide fair value     Char(1)..........  Should be
                     classification.                         asset classification                     ``1'' or
                                                             for the collateral                       ``2'' or
                                                             item under GAAP,                         ``3.''
                                                             IFRS, or other
                                                             accounting
                                                             principles or
                                                             standards used by
                                                             records entity.
                                                             Provide ``1'' for
                                                             Level 1, ``2'' for
                                                             Level 2, or ``3''
                                                             for Level 3.

[[Page 515]]

 
A4.12.............  Collateral or       Y/N...............  Specify whether the    Char(1)..........  Should be
                     portfolio                               specific item of                         ``Y'' or
                     segregation                             collateral or the                        ``N.''
                     status.                                 related collateral
                                                             portfolio is
                                                             segregated from
                                                             assets of the
                                                             safekeeping agent.
A4.13.............  Collateral          ABC broker-dealer   Provide location of    Varchar(200).
                     location.           (in safekeeping     collateral posted.
                                         account of
                                         counterparty).
A4.14.............  Collateral          New York, New York  Provide jurisdiction   Varchar(50).
                     jurisdiction.                           of location of
                                                             collateral posted.
A4.15.............  Is collateral re-   Y/N...............  Information needed to  Char(1)..........  Should be
                     hypothecation                           evaluate exposure of                     ``Y'' or
                     allowed?                                the records entity                       ``N.''
                                                             to the counterparty
                                                             or vice-versa for re-
                                                             hypothecated
                                                             collateral.
----------------------------------------------------------------------------------------------------------------


                                     Corporate Organization Master Table \1\
----------------------------------------------------------------------------------------------------------------
                                                       Instructions and
                      Field             Example        data application       Definition           Validation
----------------------------------------------------------------------------------------------------------------
CO.1..........  As of date.......  2015-01-05.......  Data extraction    YYYY-MM-DD.
                                                       date.
CO.2..........  Entity identifier  888888888........  Provide unique     Varchar(50).........  Should be unique
                                                       identifier. Use                          across all
                                                       LEI if                                   record entities.
                                                       available.
                                                       Information
                                                       needed to
                                                       identify entity.
CO.3..........  Has LEI been used  Y/N..............  Specify whether    Char(1).............  Should be ``Y''
                 for entity                            the entity                               or ``N.''
                 identifier?                           identifier
                                                       provided is an
                                                       LEI.
CO.4..........  Legal name of      John Doe & Co....  Provide legal      Varchar(200).
                 entity.                               name of entity.
CO.5..........  Immediate parent   77777777.........  Use LEI if         Varchar(50).
                 entity                                available.
                 identifier.                           Information
                                                       needed to
                                                       complete org
                                                       structure.
CO.6..........  Has LEI been used  Y/N..............  Specify whether    Char(1).............  Should be ``Y''
                 for immediate                         the immediate                            or ``N.''
                 parent entity                         parent entity
                 identifier?                           identifier
                                                       provided is an
                                                       LEI.

[[Page 516]]

 
CO.7..........  Legal name of      John Doe & Co....  Information        Varchar(200).
                 immediate parent                      needed to
                 entity.                               complete org
                                                       structure.
CO.8..........  Percentage         100.00...........  Information        Num (5,2).
                 ownership of                          needed to
                 immediate parent                      complete org
                 entity in the                         structure.
                 entity.
CO.9..........  Entity type......  Subsidiary,        Information        Varchar(50).
                                    foreign branch,.   needed to
                                   foreign division.   complete org
                                                       structure.
CO.10.........  Domicile.........  New York, New      Enter as city,     Varchar(50).
                                    York.              state or city,
                                                       foreign country.
CO.11.........  Jurisdiction       New York.........  Enter as state or  Varchar(50).
                 under which                           foreign
                 incorporated or                       jurisdiction.
                 organized.
CO.12.........  Reporting status.  REN..............  Indicate one of    Char(3).............  Should be ``REN''
                                                       the following,                           or ``NFC'' or
                                                       as appropriate,                          ``EXC'' or
                                                       given status of                          ``DEM'' or
                                                       entity under the                         ``ZER'' or
                                                       this part.                               ``OTH.''
                                                       Information
                                                       needed to
                                                       validate
                                                       compliance with
                                                       the requirements
                                                       of this part.
                                                      REN = Records
                                                       entity
                                                       (reporting)..
                                                      NFC= Non-
                                                       financial
                                                       company (not
                                                       reporting).
                                                      EXC = Excluded
                                                       entity (not
                                                       reporting).
                                                      ZER = Records
                                                       entity with 0
                                                       QFCs (not
                                                       reporting).
                                                      DEM = Records
                                                       entity de
                                                       minimis
                                                       exemption (not
                                                       reporting).
                                                      OTH = Records
                                                       entity using
                                                       another
                                                       exemption (not
                                                       reporting).
----------------------------------------------------------------------------------------------------------------
\1\ Foreign branches and divisions shall be separately identified to the extent they are identified in an
  entity's reports to its PFRAs.


[[Page 517]]


                                            Counterparty Master Table
----------------------------------------------------------------------------------------------------------------
                                                       Instructions and
                      Field             Example        data application       Definition           Validation
----------------------------------------------------------------------------------------------------------------
CP.1..........  As of date.......  2015-01-05.......  Data extraction    YYYY-MM-DD.
                                                       date.
CP.2..........  Counterparty       888888888........  Use LEI if         Varchar(50).
                 identifier.                           counterparty has
                                                       one. Should be
                                                       used
                                                       consistently
                                                       across all
                                                       records entities
                                                       within a
                                                       corporate group.
                                                       The counterparty
                                                       identifier shall
                                                       be the global
                                                       legal entity
                                                       identifier if
                                                       one has been
                                                       issued to the
                                                       entity. If a
                                                       counterparty
                                                       transacts with
                                                       the records
                                                       entity through
                                                       one or more
                                                       separate foreign
                                                       branches or
                                                       divisions and
                                                       any such branch
                                                       or division does
                                                       not have its own
                                                       unique global
                                                       legal entity
                                                       identifier, the
                                                       records entity
                                                       must include
                                                       additional
                                                       identifiers, as
                                                       appropriate to
                                                       enable the FDIC
                                                       to aggregate or
                                                       disaggregate the
                                                       data for each
                                                       counterparty and
                                                       for each entity
                                                       with the same
                                                       ultimate parent
                                                       entity as the
                                                       counterparty.
CP.3..........  Has LEI been used  Y/N..............  Indicate whether   Char(1).............  Should be ``Y''
                 for counterparty                      the counterparty                         or ``N.''
                 identifier?                           identifier is an
                                                       LEI.

[[Page 518]]

 
CP.4..........  Legal name of      John Doe & Co....  Information        Varchar(200).
                 counterparty.                         needed to
                                                       identify and, if
                                                       necessary,
                                                       communicate with
                                                       counterparty.
CP.5..........  Domicile.........  New York, New      Enter as city,     Varchar(50).
                                    York.              state or city,
                                                       foreign country.
CP.6..........  Jurisdiction       New York.........  Enter as state or  Varchar(50).
                 under which                           foreign
                 incorporated or                       jurisdiction.
                 organized.
CP.7..........  Immediate parent   77777777.........  Provide an         Varchar(50).
                 entity                                identifier for
                 identifier.                           the parent
                                                       entity that
                                                       directly
                                                       controls the
                                                       counterparty.
                                                       Use LEI if
                                                       immediate parent
                                                       entity has one.
CP.8..........  Has LEI been used  Y/N..............  Indicate whether   Char(1).............  Should be ``Y''
                 for immediate                         the immediate                            or ``N.''
                 parent entity                         parent entity
                 identifier?                           identifier is an
                                                       LEI.
CP.9..........  Legal name of      John Doe & Co....  Information        Varchar(200).
                 immediate parent                      needed to
                 entity.                               identify and, if
                                                       necessary,
                                                       communicate with
                                                       counterparty.
CP.10.........  Ultimate parent    666666666........  Provide an         Varchar(50).........
                 entity                                identifier for
                 identifier.                           the parent
                                                       entity that is a
                                                       member of the
                                                       corporate group
                                                       of the
                                                       counterparty
                                                       that is not
                                                       controlled by
                                                       another entity.
                                                       Information
                                                       needed to
                                                       identify
                                                       counterparty.
                                                       Use LEI if
                                                       ultimate parent
                                                       entity has one.
CP.11.........  Has LEI been used  Y/N..............  Indicate whether   Char(1).............  Should be ``Y''
                 for ultimate                          the ultimate                             or ``N.''
                 parent entity                         parent entity
                 identifier?                           identifier is an
                                                       LEI.

[[Page 519]]

 
CP.12.........  Legal name of      John Doe & Co....  Information        Varchar(100).         .................
                 ultimate parent                       needed to
                 entity.                               identify and, if
                                                       necessary,
                                                       communicate with
                                                       counterparty.
----------------------------------------------------------------------------------------------------------------


                                          Booking Location Master Table
----------------------------------------------------------------------------------------------------------------
                                                       Instructions and
                      Field             Example        data application       Definition           Validation
----------------------------------------------------------------------------------------------------------------
BL.1..........  As of date.......  2015-01-05.......  Data extraction    YYYY-MM-DD.
                                                       date.
BL.2..........  Records entity     999999999........  Provide LEI......  Varchar(50).........  Should be a valid
                 identifier.                                                                    entry in the
                                                                                                Corporate Org
                                                                                                Master Table.
BL.3..........  Internal booking   New York, New      Provide office     Varchar(50).
                 location           York.              where the
                 identifier.                           position is
                                                       booked.
                                                       Information
                                                       needed to
                                                       determine the
                                                       headquarters or
                                                       branch where the
                                                       position is
                                                       booked,
                                                       including the
                                                       system on which
                                                       the trade is
                                                       booked, as well
                                                       as the system on
                                                       which the trade
                                                       is settled.
BL.4..........  Unique booking     xxxxxx...........  Provide unit or    Varchar(50).
                 unit or desk                          desk at which
                 identifier.                           the position is
                                                       booked.
                                                       Information
                                                       needed to help
                                                       determine
                                                       purpose of
                                                       position.
BL.5..........  Unique booking     North American     Additional         Varchar(50).
                 unit or desk       trading desk.      information to
                 description.                          help determine
                                                       purpose of
                                                       position.
BL.6..........  Booking unit or    1-999-999-9999...  Information        Varchar(50).
                 desk contact--                        needed to
                 phone.                                communicate with
                                                       the booking unit
                                                       or desk.

[[Page 520]]

 
BL.7..........  Booking unit or    [email protected]....  Information        Varchar(100).         .................
                 desk contact--                        needed to
                 email.                                communicate with
                                                       the booking unit
                                                       or desk.
----------------------------------------------------------------------------------------------------------------


                                         Safekeeping Agent Master Table
----------------------------------------------------------------------------------------------------------------
                                                          Instructions and
                        Field              Example        data application      Definition         Validation
----------------------------------------------------------------------------------------------------------------
SA.1...........  As of date........  2015-01-05........  Data extraction     YYYY-MM-DD
                                                          date.
SA.2...........  Safekeeping agent   888888888.........  Provide an          Varchar(50).
                  identifier.                             identifier for
                                                          the safekeeping
                                                          agent. Use LEI if
                                                          safekeeping agent
                                                          has one.
SA.3...........  Legal name of       John Doe & Co.....  Information needed  Varchar(200).
                  safekeeping agent.                      to identify and,
                                                          if necessary,
                                                          communicate with
                                                          the safekeeping
                                                          agent.
SA.4...........  Point of contact--  John Doe..........  Information needed  Varchar(200).
                  name.                                   to identify and,
                                                          if necessary,
                                                          communicate with
                                                          the safekeeping
                                                          agent.
SA.5...........  Point of contact--  123 Main St, City,  Information needed  Varchar(100).
                  address.            State Zip Code.     to identify and,
                                                          if necessary,
                                                          communicate with
                                                          the safekeeping
                                                          agent.
SA.6...........  Point of contact--  1-999-999-9999....  Information needed  Varchar(50).
                  phone.                                  to identify and,
                                                          if necessary,
                                                          communicate with
                                                          the safekeeping
                                                          agent.
SA.7...........  Point of contact--  [email protected]..  Information needed  Varchar(100).     .................
                  email.                                  to identify and,
                                                          if necessary,
                                                          communicate with
                                                          the safekeeping
                                                          agent.
----------------------------------------------------------------------------------------------------------------


[[Page 521]]


                                               Details of Formats
----------------------------------------------------------------------------------------------------------------
                                                    Additional
         Format             Content in brief       explanation                        Examples
----------------------------------------------------------------------------------------------------------------
YYYY-MM-DD..............  Date...............  YYYY = four digit    2015-11-12
                                                date, MM = 2 digit
                                                month, DD = 2
                                                digit date.
Num (25,5)..............  Up to 25 numerical   Up to 20 numerical   1352.67
                           characters           characters before   12345678901234567890.12345
                           including 5          the decimal point   0
                           decimals.            and up to 5         -20000.25
                                                numerical           -0.257
                                                characters after
                                                the decimal point.
                                                The dot character
                                                is used to
                                                separate decimals.
Char(3).................  3 alphanumeric       The length is fixed  USD
                           characters.          at 3 alphanumeric   X1X
                                                characters.         999
Varchar(25).............  Up to 25             The length is not    asgaGEH3268EFdsagtTRCF543
                           alphanumeric         fixed but limited
                           characters.          at up to 25
                                                alphanumeric
                                                characters.
----------------------------------------------------------------------------------------------------------------



PART 149_CALCULATION OF MAXIMUM OBLIGATION LIMITATION--Table of Contents



Sec.
149.1 Authority and purpose.
149.2 Definitions.
149.3 Maximum obligation limitation.

    Authority: 31 U.S.C. 321 and 12 U.S.C. 5390.

    Source: 77 FR 37558, June 22, 2012, unless otherwise noted.



Sec.  149.1  Authority and purpose.

    (a) Authority. This part is issued by the Federal Deposit Insurance 
Corporation (FDIC) and the Secretary of the Department of the Treasury 
(Treasury) under section 210(n)(7) of the Dodd-Frank Wall Street Reform 
and Consumer Protection Act (Act).
    (b) Purpose. The purpose of this part is to issue implementing 
regulations as required by the Act. The part governs the calculation of 
the maximum obligation limitation which limits the aggregate amount of 
outstanding obligations the FDIC may issue or incur in connection with 
the orderly liquidation of a covered financial company.



Sec.  149.2  Definitions.

    As used in this part:
    Fair value. The term ``fair value'' means the expected total 
aggregate value of each asset, or group of assets that are managed 
within a portfolio of a covered financial company on a consolidated 
basis if such asset, or group of assets, was sold or otherwise disposed 
of in an orderly transaction.
    Most recent financial statement available. (1) The term ``most 
recent financial statement available'' means a covered financial 
company's--
    (i) Most recent financial statement filed with the Securities and 
Exchange Commission or any other regulatory body;
    (ii) Most recent financial statement audited by an independent CPA 
firm; or
    (iii) Other available financial statements.
    (2) The FDIC and the Treasury will jointly determine the most 
pertinent of the above financial statements, taking into consideration 
the timeliness and reliability of the statements being considered.
    Obligation. The term ``obligation'' means, with respect to any 
covered financial company--
    (1) Any guarantee issued by the FDIC on behalf of the covered 
financial company;
    (2) Any amount borrowed pursuant to section 210(n)(5)(A) of the Act; 
and
    (3) Any other obligation with respect to the covered financial 
company for which the FDIC has a direct or contingent liability to pay 
any amount.
    Total consolidated assets of each covered financial company that are 
available for repayment. The term ``total consolidated assets of each 
covered financial company that are available for repayment'' means the 
difference between:

[[Page 522]]

    (1) The total assets of the covered financial company on a 
consolidated basis that are available for liquidation during the 
operation of the receivership; and
    (2) To the extent included in paragraph (1) of this definition, all 
assets that are separated from, or made unavailable to, the covered 
financial company by a statutory or regulatory barrier that prevents the 
covered financial company from possessing or selling assets and using 
the proceeds from the sale of such assets.



Sec.  149.3  Maximum obligation limitation.

    The FDIC shall not, in connection with the orderly liquidation of a 
covered financial company, issue or incur any obligation, if, after 
issuing or incurring the obligation, the aggregate amount of such 
obligations outstanding for each covered financial company would 
exceed--
    (a) An amount that is equal to 10 percent of the total consolidated 
assets of the covered financial company, based on the most recent 
financial statement available, during the 30-day period immediately 
following the date of appointment of the FDIC as receiver (or a shorter 
time period if the FDIC has calculated the amount described under 
paragraph (b) of this section); and
    (b) The amount that is equal to 90 percent of the fair value of the 
total consolidated assets of each covered financial company that are 
available for repayment, after the time period described in paragraph 
(a) of this section.



PART 150_FINANCIAL RESEARCH FUND--Table of Contents



Sec.
150.1 Scope.
150.2 Definitions.
150.3 Determination of assessed companies.
150.4 Calculation of assessment basis.
150.5 Calculation of assessments.
150.6 Notice and payment of assessments.

    Authority: 12 U.S.C. 5345; 31 U.S.C. 321; 12 U.S.C. 5365 note 
(Section 401(d), Pub. L. 115-174, 132 Stat. 1358; Section 401(f), Pub. 
L. 115-174, 132 Stat. 1359).

    Source: 85 FR 15380, Mar. 18, 2020, unless otherwise noted.



Sec.  150.1  Scope.

    The assessments contained in this part are made pursuant to the 
authority contained in 12 U.S.C. 5345.



Sec.  150.2  Definitions.

    As used in this part:
    Assessed company means:
    (1) A bank holding company that has $250 billion or more in total 
assessable assets; or
    (2) A bank holding company, regardless of asset size, that has been 
identified as a global systemically important bank holding company under 
Sec.  217.402 of title 12, Code of Federal Regulations; or
    (3) A nonbank financial company that the Council has determined 
under section 113 of the Dodd-Frank Act shall be supervised by the 
Board.
    Assessment basis means, for a given assessment period, an estimate 
of the total expenses that are necessary or appropriate to carry out the 
responsibilities of the Office of Financial Research (OFR) and the 
Council as set out in the Dodd-Frank Act (including an amount necessary 
to reimburse reasonable implementation expenses of the Corporation that 
shall be treated as expenses of the Council pursuant to section 
210(n)(10) of the Dodd-Frank Act).
    Assessment fee rate, with regard to a particular assessment period, 
means the rate published by the Department for the calculation of 
assessment fees for that period.
    Assessment payment date means:
    (1) For any assessment period ending on March 31 of a given calendar 
year, September 15 of the prior calendar year; and
    (2) For any assessment period ending on September 30 of a given 
calendar year, March 15 of the same year.
    Assessment period means:
    (1) Any period of time beginning on October 1 and ending on March 31 
of the following calendar year; or
    (2) Any period of time beginning on April 1 and ending on September 
30 of the same calendar year.
    Bank holding company means:
    (1) A bank holding company as defined in section 2 of the Bank 
Holding Company Act of 1956 (12 U.S.C. 1841); or
    (2) A foreign banking organization.

[[Page 523]]

    Board means the Board of Governors of the Federal Reserve System.
    Corporation means the Federal Deposit Insurance Corporation.
    Council means the Financial Stability Oversight Council.
    Department means the Department of the Treasury.
    Determination date means:
    (1) For any assessment period ending on March 31 of a given calendar 
year, April 30 of the prior calendar year; and
    (2) For any assessment period ending on September 30 of a given 
calendar year, October 31 of the prior calendar year.
    Dodd-Frank Act means the Dodd-Frank Wall Street Reform and Consumer 
Protection Act.
    Foreign banking organization means a foreign bank or company that is 
treated as a bank holding company for purposes of the Bank Holding 
Company Act of 1956, pursuant to section 8(a) of the International 
Banking Act of 1978 (12 U.S.C. 3106(a)).
    OFR means the Office of Financial Research established by section 
152 of the Dodd-Frank Act.
    Total assessable assets means:
    (1) For a bank holding company other than a foreign banking 
organization, the average of the company's total consolidated assets for 
the four quarters preceding the relevant determination date, as reported 
on the bank holding company's four most recent Consolidated Financial 
Statements for Bank Holding Companies--FR Y-9C filings;
    (2) For any foreign banking organization, the average of the 
company's total assets of combined U.S. operations for the four quarters 
preceding the relevant determination date, as reported on the foreign 
banking organization's four most recent quarterly Capital and Asset 
Report for Foreign Banking Organizations--FR Y-7Q filings, or, if the 
foreign banking organization only files such form annually, the average 
of the two most recent annual filings on such form; or
    (3) For a nonbank financial company that the Council has determined 
under section 113 of the Dodd-Frank Act shall be supervised by the 
Board, either the average of the company's total consolidated assets for 
the four quarters preceding the relevant determination date, if the 
company is a U.S. company, or the average of the total assets of the 
company's combined U.S. operations for the four quarters preceding the 
relevant determination date, if the company is a non-U.S. company.



Sec.  150.3  Determination of assessed companies.

    (a) The determination that a bank holding company or a nonbank 
financial company is an assessed company will be made by the Department.
    (b) The Department will apply the following principles in 
determining whether a company is an assessed company:
    (1) For tiered bank holding companies for which a holding company 
owns or controls, or is owned or controlled by, other holding companies, 
the assessed company shall be the top-tier, regulated holding company.
    (2) In situations where more than one top-tier, regulated bank 
holding company has a legal authority for control of a U.S. bank, each 
of the top-tier regulated holding companies shall be designated as an 
assessed company.
    (3) In situations where a company has not filed four consecutive 
quarters of the financial reports referenced above for the most recent 
quarters (or two consecutive years for annual filers of the FR Y-7Q or 
successor form), such as may be true for companies that recently 
converted to a bank holding company, the Department will use, at its 
discretion, other financial or annual reports filed by the company, such 
as Securities and Exchange Commission (SEC) filings, to determine a 
company's total consolidated assets.
    (4) In situations where a company does not report total consolidated 
assets in its public reports or where a company uses a financial 
reporting methodology other than U.S. generally accepted accounting 
principles (GAAP) to report on its U.S. operations, the Department will 
use, at its discretion, any comparable financial information that the 
Department may require from the company for this determination.
    (c) Any company that the Department determines is an assessed 
company on a given determination date will be an assessed company for 
the entire assessment period related to such

[[Page 524]]

determination date, and will be subject to the full assessment fee for 
that assessment period, regardless of any changes in the company's 
assets or other attributes that occur after the determination date.



Sec.  150.4  Calculation of assessment basis.

    For each assessment period, the Department will calculate an 
assessment basis that shall be sufficient to replenish the Financial 
Research Fund to a level equivalent to the sum of:
    (a) Budgeted operating expenses for the OFR for the applicable 
assessment period;
    (b) Budgeted operating expenses for the Council for the applicable 
assessment period;
    (c) Budgeted capital expenses for the OFR for the 12-month period 
beginning on the first day of the applicable assessment period;
    (d) Budgeted capital expenses for the Council for the 12-month 
period beginning on the first day of the applicable assessment period; 
and
    (e) An amount necessary to reimburse reasonable implementation 
expenses of the Corporation as provided under section 210(n)(10) of the 
Dodd-Frank Act.



Sec.  150.5  Calculation of assessments.

    (a) For each assessed company, the Department will calculate the 
total assessable assets in accordance with the definition in Sec.  
150.2.
    (b) The Department will allocate the assessment basis to the 
assessed companies in the following manner:
    (1) Based on the sum of all assessed companies' total assessable 
assets, the Department will calculate the assessment fee rate necessary 
to collect the assessment basis for the applicable assessment period.
    (2) The assessment payable by an assessed company for each 
assessment period shall be equal to the assessment fee rate for that 
assessment period multiplied by the total assessable assets of such 
assessed company.



Sec.  150.6  Notice and payment of assessments.

    (a) No later than fifteen calendar days after the determination 
date, the Department will send to each assessed company a statement 
that:
    (1) Confirms that such company has been determined by the Department 
to be an assessed company; and
    (2) States the total assessable assets that the Department has 
determined will be used for calculating the company's assessment.
    (b) If a company that is required to make an assessment payment for 
a given assessment period believes that the statement referred to in 
paragraph (a) of this section contains an error, the company may provide 
the Department with a written request for a revised statement. Such 
request must be received by the Department via email within 30 calendar 
days and must include all facts that the company requests the Department 
to consider. The Department will respond to all such requests within 21 
calendar days of receipt thereof.
    (c) No later than the 14 calendar days prior to the payment date for 
a given assessment period, the Department will send an electronic 
billing notification to each assessed company, containing the final 
assessment that is required to be paid by such assessed company.
    (d) For the purpose of making the payments described in Sec.  150.5, 
each assessed company shall designate a deposit account for direct debit 
by the Department through www.pay.gov or successor website. No later 
than the later of 30 days prior to the payment date for an assessment 
period, or April 17, 2020, each such company shall provide notice to the 
Department of the account designated, including all information and 
authorizations required by the Department for direct debit of the 
account. After the initial notice of the designated account, no further 
notice is required unless the company designates a different account for 
assessment debit by the Department, in which case the requirements of 
the preceding sentence apply.
    (e) Each assessed company shall take all actions necessary to allow 
the Department to debit assessments from such company's designated 
deposit account. Each such company shall, prior to each assessment 
payment date, ensure that funds in an amount at least equal to the 
amount on the relevant

[[Page 525]]

electronic billing notification are available in the designated deposit 
account for debit by the Department. Failure to take any such action or 
to provide such funding of the account shall be deemed to constitute 
nonpayment of the assessment. The Department will cause the amount 
stated in the applicable electronic billing notification to be directly 
debited on the appropriate payment date from the deposit account so 
designated.
    (f) In the event that, for a given assessment period, an assessed 
company materially misstates or misrepresents any information that is 
used by the Department in calculating that company's total assessable 
assets, the Department may at any time re-calculate the assessment 
payable by that company for that assessment period, and the assessed 
company shall take all actions necessary to allow the Department to 
immediately debit any additional payable amounts from such assessed 
company's designated deposit account.
    (g) If a due date under this section falls on a date that is not a 
business day, the applicable date shall be the next business day.

                        PARTS 151	199 [RESERVED]

[[Page 527]]



                              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 529]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2022)

                      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 530]]

     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 531]]

    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 532]]

     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 (Parts 10100--10199)
       CII  U.S. Office of Special Counsel (Parts 10200--10299)

                      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 533]]

        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  [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  [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 534]]

         L  Rural Business-Cooperative Service, and Rural 
                Utilities Service, Department of Agriculture 
                (Parts 5000--5099)

                    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  [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 535]]

        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 536]]

      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)
        XV  Office of the Under-Secretary for Economic Affairs, 
                Department of Commerce (Parts 1500--1599)
            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 537]]

                     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 538]]

                          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) (Parts 1700--1799) 
                [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]

[[Page 539]]

        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099) [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)

[[Page 540]]

        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      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

[[Page 541]]

         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of 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)

[[Page 542]]

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of 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  [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)

[[Page 543]]

       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  National Institute of Standards and Technology, 
                Department of Commerce (Parts 400--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       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  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)

[[Page 544]]

       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]
            Subtitle D--Federal Acquisition Supply Chain Security
       201  Federal Acquisition Security Council (Parts 201-1--
                201-99)
            Subtitle E [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)

[[Page 545]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
        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)

[[Page 546]]

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)
         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)

[[Page 547]]

        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199) [Reserved]
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        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)

[[Page 548]]

        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 549]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2022)

                                                  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 550]]

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 Affairs, Office of the Under-          15, XV
       Secretary for
  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

[[Page 551]]

  Defense Logistics Agency                        32, I, XII; 48, 54
  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 Affairs, Office of the Under-Secretary   15, XV
     for
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
  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

[[Page 552]]

Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Acquisition Security Council              41, 201
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

[[Page 553]]

  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes St. Lawrence Seaway Development       33, IV
     Corporation
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
[[Page 554]]

Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior, Department of                           2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Safety and Environmental Enforcement, Bureau    30, II
       of
  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

[[Page 555]]

  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I, 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

[[Page 556]]

National Technical Information Service            15, XI
National Telecommunications and Information       15, XXIII; 47, III, IV, V
     Administration
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, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Utilities Service                           7, XVII, XVIII, XLII, L
Safety and Environmental Enforcement, Bureau of   30, II
Science and Technology Policy, Office of          32, XXIV; 47, II
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

[[Page 557]]

  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Tennessee Valley Authority                        5, LXIX; 18, XIII
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
  Great Lakes St. Lawrence Seaway Development     33, IV
       Corporation
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  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
U.S. Office of Special Counsel                    5, CII
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 559]]



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, 2017 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.

                                  2017

31 CFR
                                                                   82 FR
                                                                    Page
Subtitle A
0.215 Revised......................................................47106
0.216 Revised......................................................47106
23 Added...........................................................47108
50.83 (a) revised..................................................10435
Subtitle B
Chapter I
100.2 Undesignated text designated as (a); (b) added...............60310
100.10--100.13 (Subpart C) Revised.................................60311
148 Policy statement...............................................15630

                                  2018

31 CFR
                                                                   83 FR
                                                                    Page
Subtitle A
33 Policy statement................................................53575
50.83 (a) revised..................................................11877
Subtitle B
Chapter I
148 Policy statement...............................................65509
148 Notification...................................................66618
148.1 (d)(1)(i) introductory text, (A) introductory text, (B) 
        introductory text, (C) introductory text, and (D) revised 
                                                                   17621

                                  2019

31 CFR
                                                                   84 FR
                                                                    Page
Subtitle A
1 Authority citation revised........................................6325
1.0--1.7 (Subpart A) Revised........................................6325
27.3 (a)(1)(i), (ii), (iii), and (c) revised........................3106
27.3 (c) revised...................................................15956
34.204 (a) revised.................................................12932
50.4 (m)(2) introductory text, (i), and (3) revised................62452
50.83 (a) revised..................................................15956

                                  2020

31 CFR
                                                                   85 FR
                                                                    Page
Subtitle A
1.36 (c)(1)(ii) table and (g)(1)(ii) table amended.................86512
27.3 (c) revised...................................................10064
33.118 Added; interim..............................................71196
33.120 (c)(1) heading and (2) added; interim.......................71196
50 Authority citation revised......................................10064
50.83 (a) amended..................................................10064
Subtitle B
Chapter I
148 Notification.......................................................1
150 Revised........................................................15380

[[Page 560]]

                                  2021

31 CFR
                                                                   86 FR
                                                                    Page
Subtitle A
1.36 (c)(1)(ii) table and (g)(1)(ii) table amended.................35398
16.3 (a)(1)(iv) and (b)(1)(ii) revised.............................12539
27.3 (c) revised...................................................12539
33.108 (f)(3)(i), (iv) introductory text, and (A) through (C) 
        revised.....................................................6176
33.108 (f)(3)(iv) introductory text and (A) through (C) revised....53501
33.118 Heading, (a), and (b)(3) revised; (b)(5) and (g) added......53501
33.120 (a)(1) and (2) revised.......................................6176
33.120 (a) and (c)(2)(i) revised; (c)(2)(ii)(F) and (iii) added....53502
33.122 Added.......................................................53502
33.128 (a) revised...........................................6176, 53502
33.130 Added.......................................................53502
33.132 Added.......................................................53502
35 Added; interim..................................................13455
35 Authority citation revised......................................26819
35 Heading revised; interim........................................26819
35.1--35.12 (Subpart A) Added; interim.............................26819
50 Authority citation revised......................................12539
50.1 (a) revised; eff. 7-12-21.....................................30540
50.4 (b)(2)(ii), (n)(3)(iii), (w)(1), and (2) revised; (n)(3)(iv) 
        added; eff. 7-12-21........................................30540
50.4 Correction: (w)(2) introductory text revised; eff. 7-12-21....31620
50.6 (b) revised; eff. 7-12-21.....................................30540
50.16 (c) revised; eff. 7-12-21....................................30540
50.20 (b) and (c) revised; eff. 7-12-21............................30540
50.30 (c) revised; eff. 7-12-21....................................30540
50.74 (b) revised; eff. 7-12-21....................................30540
50.83 (a) revised..................................................12539
50.83 (b) revised; eff. 7-12-21....................................30540
50.90 (c) revised; eff. 7-12-21....................................30541
50.103 (a) revised; eff. 7-12-21...................................30541

                                  2022

   (Regulations published from January 1, 2022, through July 1, 2022)

31 CFR
                                                                   87 FR
                                                                    Page
Subtitle A
16.2 Amended.......................................................10309
35 Authority citation revised; interim.............................13632
35.1--35.12 (Subpart A) Revised.....................................4446
35.26--35.29 (Subpart C) Added; interim............................13633


                                  [all]