[Title 15 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2023 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          

          Title 15

Commerce and Foreign Trade


________________________

Parts 0 to 299

                         Revised as of January 1, 2023

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2023
                    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 15:
          SUBTITLE A--Office of the Secretary of Commerce            3
    SUBTITLE B--Regulations Relating to Commerce and Foreign 
      Trade
          Chapter I--Bureau of the Census, Department of 
          Commerce                                                 251
          Chapter II--National Institute of Standards and 
          Technology, Department of Commerce                       313
  Finding Aids:
      Table of CFR Titles and Chapters........................     423
      Alphabetical List of Agencies Appearing in the CFR......     443
      List of CFR Sections Affected...........................     453

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 15 CFR 0.735-1 
                       refers to title 15, part 
                       0, section 735-1.

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

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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 
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EFFECTIVE AND EXPIRATION DATES

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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 
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PAST PROVISIONS OF THE CODE

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``[RESERVED]'' TERMINOLOGY

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INCORPORATION BY REFERENCE

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This material, like any other properly issued regulation, has the force 
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    What is a proper incorporation by reference? The Director of the 
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    An index to the text of ``Title 3--The President'' is carried within 
that volume.

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the revision dates of the 50 CFR titles.

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INQUIRIES

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    Oliver A. Potts,
    Director,
    Office of the Federal Register
    January 1, 2023







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                               THIS TITLE

    Title 15--Commerce and Foreign Trade is composed of three volumes. 
The parts in these volumes are arranged in the following order: Parts 0-
299, 300-799, and part 800-End. The first volume containing parts 0-299 
is comprised of Subtitle A--Office of the Secretary of Commerce, 
Subtitle B, chapter I--Bureau of the Census, Department of Commerce, and 
chapter II--National Institute of Standards and Technology, Department 
of Commerce. The second volume containing parts 300-799 is comprised of 
chapter III--International Trade Administration, Department of Commerce, 
chapter IV--Foreign-Trade Zones Board, and chapter VII--Bureau of 
Industry and Security, Department of Commerce. The third volume 
containing part 800-End is comprised of chapter VIII--Bureau of Economic 
Analysis, Department of Commerce, chapter IX--National Oceanic and 
Atmospheric Administration, Department of Commerce, chapter XI--
Technology Administration, Department of Commerce, chapter XIII--East-
West Foreign Trade Board, chapter XIV--Minority Business Development 
Agency, chapter XV--Office of the Under-Secretary for Economic Affairs, 
Department of Commerce, Subtitle C, chapter XX--Office of the United 
States Trade Representative, and Subtitle D, chapter XXIII--National 
Telecommunications and Information Administration, Department of 
Commerce. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of January 1, 2023.

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

[[Page 1]]



                  TITLE 15--COMMERCE AND FOREIGN TRADE




                   (This book contains parts 0 to 299)

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

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

     SUBTITLE B--Regulations Relating to Commerce and Foreign Trade

chapter i--Bureau of the Census, Department of Commerce.....          30

chapter ii--National Institute of Standards and Technology, 
  Department of Commerce....................................         200

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             Subtitle A--Office of the Secretary of Commerce

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

Part                                                                Page
0               Employee responsibilities and conduct.......           5
1               The Seal of the Department of Commerce......          17
2               Procedures for handling and settlement of 
                    claims under the Federal Tort Claims Act          18
3

[Reserved]

4               Disclosure of government information........          20
4a              Classification, declassification, and public 
                    availability of national security 
                    information.............................          59
5               Operation of vending stands.................          62
6               Civil monetary penalty adjustments for 
                    inflation...............................          64
7               Securing the information and communications 
                    technology and services supply chain....          67
8               Nondiscrimination in federally assisted 
                    programs of the Department of Commerce--
                    effectuation of Title VI of the Civil 
                    Rights Act of 1964......................          78
8a              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..          92
8b              Prohibition of discrimination against the 
                    handicapped in federally assisted 
                    programs operated by the Department of 
                    Commerce................................         109
8c              Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Department 
                    of Commerce.............................         122
9               Procedures for a voluntary labeling program 
                    for household appliances and equipment 
                    to effect energy conservation...........         128
10              Procedures for the development of voluntary 
                    product standards.......................         131
11              Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally assisted programs.............         141
12              Fair packaging and labeling.................         141

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13              Intergovernmental review of Department of 
                    Commerce programs and activities........         144
14

[Reserved]

15              Legal proceedings...........................         147
16              Procedures for a voluntary consumer product 
                    information labeling program............         160
17              Personnel exchanges between Federal 
                    laboratories and non-Federal entities...         166
18              Attorney's fees and other expenses..........         168
19              Commerce debt collection....................         176
20              Nondiscrimination on the basis of age in 
                    programs or activities receiving Federal 
                    financial assistance....................         192
21-22

[Reserved]

23              Use of penalty mail in the location and 
                    recovery of missing children............         198
24

[Reserved]

25              Program.....................................         201
26

[Reserved]

27              Protection of human subjects................         216
28              New restrictions on lobbying................         234
29              Procedures for guidance documents...........         245

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PART 0_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents



                      Subpart A_General Provisions

Sec.
0.735-1 Purpose.
0.735-2 Cross-references to ethical conduct, financial disclosure, and 
          other applicable regulations.
0.735-3 Applicability.
0.735-4 Definitions.

Subparts B-C [Reserved]

         Subpart D_Regulatory Limitations Upon Employee Conduct

0.735-10 Administrative extension of statutory limitations.
0.735-10a--0.735-15 [Reserved]
0.735-16 Indebtedness.
0.735-17 Gambling, betting, and lotteries.
0.735-18 General conduct prejudicial to the Government.
0.735-19 Reporting undue influence to superiors.

Subpart E [Reserved]

                   Subpart F_Supplementary Regulations

0.735-32 Departmental.
0.735-33 Operating units.
0.735-34 Effective date of supplementary regulations.

                        Subpart G_Administration

0.735-35 Responsibilities of employees.
0.735-36 Responsibilities of operating units.
0.735-37 Procedure.
0.735-38 Availability for counseling.
0.735-39 Authorizations.
0.735-40 Disciplinary and other remedial action.
0.735-41 Inquiries and exceptions.

 Subpart H_Disciplinary Actions Concerning Post-Employment Conflict of 
                           Interest Violations

0.735-42 Scope.
0.735-43 Report of violations and investigation.
0.735-44 Initiation of proceedings.
0.735-45 Notice.
0.735-46 Hearing.
0.735-47 Decision absent a hearing.
0.735-48 Administrative appeal.
0.735-49 Sanctions.
0.735-50 Judicial review.

Appendix A to Part 0--Statutes Governing Conduct of Federal Employees

    Authority: 5 U.S.C. 301, 7301, 7353; 5 U.S.C. App. (Ethics in 
Government Act of 1978); 26 U.S.C. 7214(b); E.O. 12674, 54 FR 15159, 3 
CFR 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR 
1990 Comp., p. 306; 5 CFR part 2635.

    Source: 32 FR 15222, Nov. 2, 1967, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  0.735-1  Purpose.

    The purpose of this part is to set forth Department of Commerce 
policy and procedure relating to employee responsibilities and conduct.



Sec.  0.735-2  Cross-references to ethical conduct, financial disclosure,
and other applicable regulations.

    Employees of the Department of Commerce should refer to the 
executive branch-wide Standards of Ethical Conduct at 5 CFR part 2635 
and the executive branch-wide financial disclosure regulations at 5 CFR 
part 2634.

[68 FR 24879, May 9, 2003]



Sec.  0.735-3  Applicability.

    This part applies to all persons included within the term 
``employee'' as defined in Sec.  0.735-4, except as otherwise provided 
in this part.



Sec.  0.735-4  Definitions.

    For purposes of this part, except as otherwise indicated in this 
part:
    (a) Employee. (1) Shall include: (i) Every officer and employee of 
the Department of Commerce (regardless of location), including 
commissioned officers of the Environmental Science Services 
Administration; and
    (ii) Every other person who is retained, designated, appointed, or 
employed by a Federal officer or employee, who is engaged in the 
performance of a function of the Department under authority of law or an 
Executive act, and who is subject to the supervision of a Federal 
officer or employee while engaged in the performance of the duties of 
his position not only as to what he does but also as to how he performs 
his duties, regardless of whether the relationship to the Department is 
created by assignment, detail, contract, agreement or otherwise.
    (2) Shall not include: (i) Members of the Executive Reserve except 
when they are serving as employees of the

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Department under the circumstances described in paragraph (a)(1) of this 
section;
    (ii) Members of crews of vessels owned or chartered to the 
Government and operated by or for the Maritime Administration under a 
General Agency Agreement; or
    (iii) Any other person who is determined legally not to be an 
officer or employee of the United States.
    (b) Special Government employee shall mean an employee as defined in 
paragraph (a) of this section who is retained, designated, appointed, or 
employed to perform with or without compensation, for not to exceed 130 
days during any period of 365 consecutive days, temporary duties on 
either a full-time or intermittent basis.
    (c) Personnel officer means a personnel official to whom the power 
of appointment is redelegated under Administrative Order 202-250.
    (d) Operating unit means, for purposes of this part, primary and 
constituent operating units designated as such in the Department Order 
Series of the Department of Commerce and, in addition, the Office of the 
Secretary.
    (e) Head of an operating unit, for the purposes of this part, 
includes the Assistant Secretary for Administration with respect to the 
performance of functions under this part for the Office of the 
Secretary.

Subparts B-C [Reserved]



         Subpart D_Regulatory Limitations Upon Employee Conduct



Sec.  0.735-10  Administrative extension of statutory limitations.

    The provisions of the statutes identified in this part which relate 
to the ethical and other conduct of Federal employees are adopted and 
will be enforced as administrative regulations, violations of which may 
in appropriate cases be the basis for disciplinary action, including 
removal. The fact that a statute which may relate to employee conduct is 
not identified in this part does not mean that it may not be the basis 
for disciplinary action against an employee.



Sec. Sec.  0.735-10a--0.735-15  [Reserved]



Sec.  0.735-16  Indebtedness.

    (a) An employee shall pay each just financial obligation in a proper 
and timely manner, especially one imposed by law such as Federal, State, 
or local taxes. For purposes of this section, ``a just financial 
obligation'' means one acknowledged by the employee or reduced to 
judgment by a court, and ``in a proper and timely manner'' means in a 
manner which, in the view of the Department, does not, under the 
circumstances, reflect adversely on the Government as his employer.
    (b) In the event of dispute between an employee and an alleged 
creditor, this section does not require the Department to determine the 
validity or amount of the disputed debt.



Sec.  0.735-17  Gambling, betting, and lotteries.

    An employee shall not participate while on Government-owned or 
leased property or while on duty for the Government, in any gambling 
activity including the operation of a gambling device, in conducting a 
lottery or pool, in a game for money or property or in selling or 
purchasing a numbers slip or ticket. However, this section does not 
preclude activities
    (a) Necessitated by an employee's law enforcement duties, or
    (b) Under section 3 of Executive Order 10927 (relating to 
solicitations conducted by organizations composed of civilian employees 
or members of the armed forces among their own members for 
organizational support or for benefit or welfare funds for their own 
members) and similar agency-approved activities.



Sec.  0.735-18  General conduct prejudicial to the Government.

    (a) General policy. Officers and employees of the Federal Government 
are servants of the people. Because of this, their conduct must, in many 
instances, be subject to more restrictions and to higher standards than 
may be the case in certain private employments. They are expected to 
conduct themselves in a manner which will reflect favorably upon their 
employer. Although the

[[Page 7]]

Government is not particularly interested in the private lives of its 
employees, it does expect them to be honest, reliable, trustworthy, and 
of good character and reputation. They are expected to be loyal to the 
Government, and to the department or agency in which they are employed.
    (b) Specific policy. An employee shall not engage in criminal, 
infamous, dishonest, immoral, or notoriously disgraceful conduct, or 
other conduct prejudicial to the Government.
    (c) Regulations applicable to public buildings and grounds. Each 
employee is responsible for knowing and complying with regulations of 
the General Services Administration and of the Department of Commerce 
applicable to public buildings and grounds.



Sec.  0.735-19  Reporting undue influence to superiors.

    Each employee shall report to his superior any instance in which 
another person inside or outside the Federal Government uses or attempts 
to use undue influence to induce, by reason of his official Government 
position, former Government employment, family relationship, political 
position, or otherwise, the employee to do or omit to do any official 
act in derogation of his official duty.

Subpart E [Reserved]



                   Subpart F_Supplementary Regulations



Sec.  0.735-32  Departmental.

    The Assistant Secretary for Administration may prescribe 
supplementary instructions consistent with this part.



Sec.  0.735-33  Operating units.

    Each operating unit is hereby authorized and directed to prescribe, 
after approval by the Assistant Secretary for Administration, such 
additional regulations not inconsistent with this part as may be 
necessary to effectuate the general purpose of this part in the light of 
its individual operating requirements, including but not limited to 
pertinent statutory provisions, such as:
    (a) 35 U.S.C. 4, 122 (Patent Office);
    (b) 46 U.S.C. 1111(b) (Maritime Administration);
    (c) Certain provisions of the Defense Production Act of 1950, e.g., 
50 U.S.C. App. 2160(b)(2) (avoidance of conflicts of interest), 50 
U.S.C. App. 2160(b)(6) (financial statements), and 50 U.S.C. App. 
2160(f) (prohibition of use of confidential information for purposes of 
speculation) (Business and Defense Services Administration and any other 
primary operating unit affected); and
    (d) Certain provisions of Pub. L. 89-136, the Public Works and 
Economic Development Act of 1965, e.g., section 711 (restriction on 
employing certain EDA employees by applicants for financial assistance), 
and section 710(b) (embezzlement), false book entries, sharing in loans, 
etc., and giving out unauthorized information for speculation).



Sec.  0.735-34  Effective date of supplementary regulations.

    Supplementary regulations prescribed pursuant to Sec.  0.735-33, 
shall become effective upon approval by the issuing officer unless a 
different date is required by law or a later date is specified therein.



                        Subpart G_Administration



Sec.  0.735-35  Responsibilities of employees.

    It is the responsibility of each employee:
    (a) To assure, at the outset of his employment, that each of his 
interests and activities is consistent with the requirements established 
by or pursuant to this part;
    (b) To submit a statement of employment and financial interests at 
such times and in such form as may be specified in or pursuant to this 
part;
    (c) To certify, upon entering on duty in the Department, that he has 
read this part and applicable regulations supplementary thereto;
    (d) To obtain prior written authorization of any interest or 
activity about the propriety of which any doubt exists in the employee's 
mind, as provided in Sec.  0.735-39;
    (e) To confine each of his interests and activities at all times 
within the

[[Page 8]]

requirements established by or pursuant to this part, including any 
authorizations granted pursuant to this part; and
    (f) To obtain a further written authorization whenever circumstances 
change, or the nature or extent of the interest or activity changes, in 
such a manner as to involve the possibility of a violation or appearance 
of a violation of a limitation or requirement prescribed in or pursuant 
to this part.



Sec.  0.735-36  Responsibilities of operating units.

    The head of each operating unit, or his designee, shall:
    (a) Furnish or make available to each employee a copy of this part 
(or a comprehensive summary thereof) within 90 days after approval of 
this part by the Office of Personnel Management, and, upon their 
issuance, a copy of any regulations supplementary thereto (or a 
comprehensive summary thereof);
    (b) Furnish or make available to each new employee at the time of 
his entrance on duty a copy of this part as it may be amended and any 
supplementary regulations (or a comprehensive summary thereof);
    (c) Bring this part (or as it may be amended and any supplementary 
regulations thereto) to the attention of each employee annually, and at 
such other times as circumstances may warrant as may be determined by 
the Assistant Secretary for Administration;
    (d) Have available for review by employees, as appropriate, copies 
of laws, Executive orders, this part, supplementary regulations, and 
pertinent Office of Personnel Management regulations and instructions 
relating to ethical and other conduct of Government employees;
    (e) Advise each employee who is a special Government employee of his 
status for purposes of 18 U.S.C. 203 and 205;
    (f) Require each employee specified in Sec.  0.735-22 to submit a 
statement of employment and financial interests, as provided by or 
pursuant to this part;
    (g) Develop an appropriate form, with the approval of the counselor 
of the Department, on which the employee may certify that he has read 
this part and applicable regulations supplementary thereto, in 
accordance with Sec.  0.735-35(c), and on which he may, if he so 
desires, indicate that he has a private activity or interest about which 
he requests advice and guidance as provided by Sec.  0.735-38.
    (h) Require each employee upon entering on duty and at such other 
times as may be specified, to execute the certification required by 
Sec.  0.735-35(c);
    (i) Report to the program Secretarial Officer concerned and to the 
Assistant Secretary for Administration promptly any instance in which an 
employee, after notice, fails to submit the certification required under 
Sec.  0.735-35(c) or a statement of employment or financial interests 
required under this part within 14 calendar days following the 
prescribed time limit for doing so; and
    (j) Take action to impress upon each employee required to submit a 
statement of employment and financial interests, upon his supervisor, 
and upon employees with whom the employee works, their responsibility as 
follows:
    (1) The employee's supervisor is responsible (i) for excluding from 
the range of duties of the employee any contracts or other transactions 
between the Government and his outside employer, clients, or entities in 
which he has an interest within the purview of this part, and (ii) for 
overseeing the employee's activities in order to insure that the public 
interest is protected from improper conduct on his part and that he will 
not, through ignorance or inadvertence, embarrass the Government or 
himself.
    (2) The employee's supervisor and employees with whom he works are 
responsible for avoiding the use of the employee's services in any 
situation in which a violation of law, regulation, or ethical standards 
is likely to occur or to appear to occur.
    (3) The supervisor of an employee is responsible for initiating 
prompt and proper disciplinary or remedial action when a violation, 
intentional or innocent, is detected.
    (4) Employees shall avoid divulging to a special Government employee 
privileged Government information which is not necessary to the 
performance of his governmental responsibility or information which 
directly involves

[[Page 9]]

the financial interests of his non-Government employer.
    (5) An employee shall make every effort in his private work to avoid 
any personal contact with respect to negotiations with the Department 
for contracts, grants, or loans, if the subject matter is related to the 
subject matter of his Government employment. When this is not possible, 
he may participate if not otherwise prohibited by law (e.g., 18 U.S.C. 
203 and 205) in the negotiations for his private employer only with the 
prior approval of the head of the operating unit concerned.

[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]



Sec.  0.735-37  Procedure.

    The review of statements of employment and financial interests shall 
include the following basic measures, among others:
    (a) Statements shall be submitted to the designated officer, who 
will review each employee's statement of employment and financial 
interests to ascertain whether they are consistent with the requirements 
established by or pursuant to this part. (See Sec.  0.735-24(b).)
    (b) Where the statement raises any question of compliance with the 
requirements of this part, it shall be submitted to a deputy counselor 
for the organization unit concerned. The deputy counselor may, in his 
discretion, utilize the advice and services of others (including 
departmental facilities) to obtain further information needed to resolve 
the questions.
    (c) The designated officer shall maintain the statements of 
employment and financial interests in a file apart from the official 
personnel files and shall take every measure practicable to insure their 
confidentiality. Statements of employment and financial interests shall 
be preserved for 5 years following the separation of an employee from 
the Department or following termination of any other relationship under 
which the individual rendered service to the Department, except as may 
be otherwise authorized by the Assistant Secretary for Administration or 
as required by law.



Sec.  0.735-38  Availability for counseling.

    (a) The General Counsel of the Department shall:
    (1) Serve as the counselor for the Department of Commerce with 
respect to matters covered by the basic provisions cited in Sec.  0.735-
2(a) and otherwise by or pursuant to this part;
    (2) Serve as the Department of Commerce designee to the Office of 
Personnel Management on matters covered by this part; and
    (3) Coordinate the counseling services provided under this part and 
assure that counseling and interpretations on questions of conflicts of 
interest and other matters covered by this part are available to deputy 
counselors designated under paragraph (b) of this section.
    (b) The counselor shall designate employees who shall serve as 
deputy counselors for employees of the Department of Commerce with 
respect to matters covered by or pursuant to this part and shall give 
authoritative advice and guidance to each employee who seeks advice and 
guidance on questions of conflict of interests and other matters covered 
by or pursuant to this part.
    (c) Each operating unit shall notify its employees of the 
availability of counseling services and of how and where these services 
are available. This notification shall be given within 90 days after 
approval of this part by the Office of Personnel Management and 
periodically thereafter. In the case of a new employee appointed after 
the foregoing notification, notification shall be made at the time of 
his entrance on duty.
    (d) In each operating unit a deputy counselor shall advise and 
counsel each employee concerning any adjustments necessary in his 
financial interests or activities, or in any contemplated interests or 
activities, in order to meet the requirements established by or pursuant 
to this part.

[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]



Sec.  0.735-39  Authorizations.

    All requests for authorizations required under this part shall be 
addressed to the head of the operating unit concerned. In the Office of 
the

[[Page 10]]

Secretary such requests shall be addressed to the Secretary or such 
person as he may designate. When granted, authorizations will be in 
writing, and a copy of each authorization will be filed in the 
employees' official personnel file.
    (a) In case of doubt, or upon the request of the employee concerned, 
cases or questions will be forwarded to the counselor or a deputy 
counselor. (See Sec.  0.735-38.)
    (b) Where an activity requested to be authorized can be conducted as 
official business, it shall not be authorized as a private activity, but 
shall be conducted as official business.
    (c) Where authorizations involve speaking, writing, or teaching, use 
of the official title of the employee for identification purposes may be 
authorized, provided the employee makes it clear that his statements and 
actions are not of an official nature.
    (d) If an authorization has been granted for a specific activity or 
interest, and the activity or interest is subsequently deemed to 
constitute a violation of the limitations or requirements prescribed in 
or pursuant to this part, the employee concerned shall be notified in 
writing of the cancellation of the authorization and shall modify or 
stop the activity or interest involved, as requested.



Sec.  0.735-40  Disciplinary and other remedial action.

    (a) Violation of a requirement established in or pursuant to this 
part shall be cause for appropriate disciplinary action, which may be in 
addition to any penalty prescribed by law.
    (b) When, after consideration of the explanation of the employee 
provided by Sec.  0.735-20(c), the reviewing officer, in cooperation 
with the responsible supervisory official, decides that remedial action 
is required, he will take or cause to be taken immediate action to end 
the conflict or appearance of conflict of interest. Remedial action may 
include, but is not limited to:
    (1) Changes in assigned duties;
    (2) Divestment by the employee of his conflicting interest;
    (3) Disciplinary action (including removal from the service); or
    (4) Disqualification for a particular assignment.

Remedial action, whether disciplinary or otherwise, shall be effected in 
accordance with applicable laws, Executive orders, and regulations.
    (c) No disciplinary or remedial action may be taken under this 
section against an employee of another Federal department or agency on 
detail to the Department of Commerce other than through and with the 
concurrence of the detailed employee's employing agency.



Sec.  0.735-41  Inquiries and exceptions.

    (a) Inquiries relating to legal aspects of the limitations set forth 
in or cited in or pursuant to this part should be submitted to the 
appropriate deputy counselor. Inquiries relating to other aspects of 
this part or regulations supplementary thereto should be referred to the 
appropriate personnel office.
    (b) Within the limits of administrative discretion permitted to the 
Department, exceptions to the requirements of this part may be granted 
from time to time in unusual cases by the head of the operating unit, 
whenever the facts indicate that such an exception would promote the 
efficiency of the service. Each request for such an exception should be 
submitted in writing to the head of the operating unit concerned, and 
shall contain a full statement of the justification for the request. 
Reports concerning such requests, if approved, shall be forwarded to the 
program Secretarial Officer concerned and to the Assistant Secretary for 
Administration by the head of the operating unit concerned.



 Subpart H_Disciplinary Actions Concerning Post-Employment Conflict of 
                           Interest Violations

    Authority: 18 U.S.C. 207(j); 5 CFR 737.27.

    Source: 49 FR 32057, Aug. 10, 1984; 50 FR 928, Jan. 8, 1985, unless 
otherwise noted.



Sec.  0.735-42  Scope.

    (a) These regulations establish procedures for imposing sanctions 
against a former employee for violating the post-employment restrictions 
of the conflict of interest laws and regulations set

[[Page 11]]

forth in 18 U.S.C. 207 and 5 CFR Part 737. These procedures are 
established pursuant to the requirement in 18 U.S.C. 207(j). The General 
Counsel is responsible for resolving questions on the legal 
interpretation of 18 U.S.C. 207 or regulations issued thereunder and for 
advising employees on these provisions.
    (b) For purposes of this subpart, (1) ``Former employee'' means a 
former Government employee as defined in 5 CFR 737.3(a)(4) who had 
served in the Department;
    (2) ``Lesser included sanctions'' means sanctions of the same type 
but more limited scope as the proposed sanction; thus a bar on 
communication with an operating unit is a lesser included sanction of a 
proposed bar on communication with the Department and a bar on 
communication for one year is a lesser included sanction of a proposed 
five year bar;
    (3) ``Assistant Secretary'' means the Assistant Secretary for 
Administration or designee;
    (4) ``Director'' means the Director for Personnel and Civil Rights, 
Office of the Secretary, or designee;
    (5) ``Inspector General'' and ``General Counsel'' include any 
persons designated by them to perform their functions under this 
subpart; and
    (6) ``Days'' means calendar days except that a dead-line which falls 
on a weekend or holiday shall be extended to the next working day.



Sec.  0.735-43  Report of violations and investigation.

    (a) If an employee has information which indicates that a former 
employee has violated any provisions of 18 U.S.C. 207 or regulations 
thereunder, that employee shall report such information to the Inspector 
General.
    (b) Upon receiving information as set forth in paragraph (a) of this 
section from an employee or any other person, the Inspector General, 
upon a determination that it is nonfrivolous, shall expeditiously 
provide the information to the Director, Office of Government Ethics, 
and to the Criminal Division, Department of Justice. The Inspector 
General shall coordinate any investigation under this subpart with the 
Department of Justice, unless the Department of Justice informs the 
Inspector General that it does not intend to initiate criminal 
prosecution.
    (c) All investigations under this subpart shall be conducted in such 
a way as to protect the privacy of former employees. To ensure this, to 
the extent reasonable and practical, any information received as a 
result of an investigation shall remain confidential except as necessary 
to carry out the purposes of this subpart, including the conduct of an 
investigation, hearing, or judicial proceeding arising thereunder, or as 
may be required to be released by law.
    (d) The Inspector General shall report the findings of the 
investigation to the Director.



Sec.  0.735-44  Initiation of proceedings.

    If the Director determines, after an investigation by the Inspector 
General, that there is reasonable cause to believe that a former 
employee has violated post-employment statutes or regulations, the 
Director shall initiate administrative proceedings under this subpart by 
proposing sanctions against the former employee and by providing notice 
to the former employee as set forth in Sec.  0.735-45.



Sec.  0.735-45  Notice.

    (a) The Director shall notify the former employee of the proposed 
disciplinary action in writing by registered or certified mail, return 
receipt requested, or by any means which gives actual notice or is 
reasonably calculated to give actual notice. Notice shall be considered 
received if sent to the last known address of the former employee.
    (b) The notice shall include:
    (1) A statement of allegations and the basis thereof sufficiently 
detailed to enable the former employee to prepare a defense;
    (2) A statement that the former employee is entitled to a hearing if 
requested within 20 days from date of notice;
    (3) An explanation of the method by which the former employee may 
request a hearing under this subpart including the name, address, and 
telephone number of the person to contact if there are further 
questions;

[[Page 12]]

    (4) A statement that the former employee has the right to submit 
documentary evidence to the Director if a hearing is not requested and 
an explanation of the method of submitting such evidence and the date by 
which it must be received; and
    (5) A statement of the sanctions which have been proposed.



Sec.  0.735-46  Hearing.

    (a) Examiner. (1) Upon timely receipt of a request for a hearing, 
the Director shall refer the matter to the Assistant Secretary who shall 
appoint an examiner to conduct the hearing and render an initial 
decision.
    (2) The examiner shall be impartial, shall not be an individual who 
has participated in any manner in the decision to initiate the 
proceedings, and shall not have been employed under the immediate 
supervision of the former employee or have been employed under a common 
immediate supervisor. The examiner shall be admitted to practice law and 
have suitable experience and training to conduct the hearing, reach a 
determination and render an initial decision in an equitable manner.
    (b) Time, date, and place. The hearing shall be conducted at a 
reasonable time, date, and place as set by the examiner. In setting the 
date, the examiner shall give due regard to the need for both parties to 
adequately prepare for the hearing and the importance of expeditiously 
resolving allegations that may be damaging to the former employee's 
reputation.
    (c) Former employee's rights. At a hearing, the former employee 
shall have the right:
    (1) To represent himself or herself or to be represented by counsel,
    (2) To introduce and examine witnesses and to submit physical 
evidence,
    (3) To confront and cross-examine adverse witnesses,
    (4) To present oral argument, and
    (5) To receive a transcript or recording of the proceedings, on 
request.
    (d) Procedure and evidence. In a hearing under this subpart, the 
Federal Rules of Evidence and Civil Procedure do not apply but the 
examiner shall exclude irrelevant or unduly repetitious evidence and all 
testimony shall be taken under oath or affirmation. The examiner may 
make such orders and determinations regarding the admissibility of 
evidence, conduct of examination and cross-examination, and similar 
matters which the examiner deems necessary or appropriate to ensure 
orderliness in the proceedings and fundamental fairness to the parties. 
There shall be no discovery unless agreed to by the parties and ordered 
by the examiner. The hearing shall not be open to the public unless the 
former employee or the former employee's representative waives the right 
to a closed hearing, in which case the examiner shall determine whether 
the hearing will be open to the public.
    (e) Ex-parte communications. The former employee, the former 
employee's representative, and the agency representative shall not make 
any ex-parte communications to the examiner concerning the merits of the 
allegations against the former employee prior to the issuance of the 
initial decision.
    (f) Initial decision. (1) The proposed sanctions shall be sustained 
in an initial decision upon a determination by the examiner that the 
preponderance of the evidence indicated a violation of post-employment 
statutes or regulations.
    (2) The examiner shall issue an initial decision which is based 
exclusively on the transcript of testimony and exhibits together with 
all papers and requests filed in connection with the proceeding and 
which sets forth all findings of fact and conclusions of law relevant to 
the matter at issue.
    (3) The initial decision shall become final thirty days after 
issuance if there has been no appeal filed under Sec.  0.735-48.



Sec.  0.735-47  Decision absent a hearing.

    (a) If the former employee does not request a hearing in a timely 
manner, the Director shall make an initial decision on the basis of 
information compiled in the investigation, and any submissions made by 
the former employee.
    (b) The proposed sanction or a lesser included sanction shall be 
imposed if the record indicates a violation of post-employment statutes 
or regulations by a preponderance of the evidence.

[[Page 13]]

    (c) The initial decision shall become final thirty days after 
issuance if there has been no appeal filed under Sec.  0.735-48.



Sec.  0.735-48  Administrative appeal.

    (a) Within 30 days after issuance of the initial decision, either 
party may appeal the initial decision or any portion thereof to the 
Assistant Secretary. The opposing party shall have 20 days to respond.
    (b) If an appeal is filed, the Assistant Secretary shall issue a 
final decision which shall be based solely on the record, or portions 
thereof cited by the parties to limit issues, and the appeal and 
response. The Assistant Secretary shall also decide whether to impose 
the proposed sanction or a lesser included sanction.
    (c) If the final decision modifies or reverses the initial decision, 
it shall state findings of fact and conclusions of law which differ from 
the initial decision.



Sec.  0.735-49  Sanctions.

    (a) If there has been a final determination that the former employee 
has violated post-employment statutes or regulations, the Director shall 
impose, subject to the authority of the Assistant Secretary under Sec.  
0.735-48(b), the sanction which was proposed in the notice to the former 
employee or a lesser included sanction.
    (b) Sanctions which may be imposed include:
    (1) Prohibiting the former employee from making, on behalf of any 
other person except the United States, any formal or informal appearance 
before or, with the intent to influence, any oral or written 
communication to the Department or any organizational sub-unit thereof 
on any matter of business for a period not to exceed five years; and
    (2) Other appropriate disciplinary action.
    (c) The Director may enforce the sanctions of paragraph (b)(1) of 
this section by directing any or all employees to refuse to participate 
in any such appearance or to accept any such communication. As a method 
of enforcement, the Director may establish a list of former employees 
against whom sanctions have been imposed.



Sec.  0.735-50  Judicial review.

    Any former employee found to have violated 18 U.S.C. 207, or 
regulations issued thereunder, by a final administrative decision under 
this subpart may seek judicial review of the administrative 
determination.



    Sec. Appendix A to Part 0--Statutes Governing Conduct of Federal 
                                Employees

    There are numerous statutes pertaining to the ethical and other 
conduct of Federal employees, far too many to attempt to list them all. 
Consequently, only the more important ones of general applicability are 
referred to in this appendix.

                          a. bribery and graft

    .01 Title 18, U.S.C., section 201, prohibits anyone from bribing or 
attempting to bribe a public official by corruptly giving, offering, or 
promising him or any person selected by him, anything of value with 
intent (a) to influence any official act by him, (b) to influence him to 
commit or allow any fraud on the United States, or (c) to induce him to 
do or omit to do any act in violation of his lawful duty. As used in 
section 201, ``Public officials'' is broadly defined to include 
officers, employees, and other persons carrying on activities for or on 
behalf of the Government.
    .02 Section 201 also prohibits a public official's solicitation or 
acceptance of, or agreement to take, a bribe. In addition, it forbids 
offers or payments to, and solicitations or receipt by, a public 
official of anything of value ``for or because of'' any official act 
performed or to be performed by him.
    .03 Section 201 further prohibits the offering to or the acceptance 
by a witness of anything of value involving intent to influence his 
testimony at a trial, Congressional hearing, or agency proceeding. A 
similar provision applies to witnesses ``for or because of'' testimony 
given or to be given. The provisions summarized in this section do not 
preclude lawful witness fees, travel and subsistence expenses, or 
reasonable compensation for expert testimony.

   b. compensation to officers and employees in matters affecting the 
                               government

    .01 Title 18, U.S.C., section 203, prohibits an officer or employee 
from receiving compensation for services rendered for others before a 
Federal department or agency in matters in which the Government is a 
party or is interested.
    .02 Section 203 applies to a special Government employee as follows:

[[Page 14]]

    a. If the special Government employee has served in the Department 
of Commerce more than 60 days during the preceding period of 365 days, 
section 203 applies to him only in relation to a particular matter 
involving a specific party or parties (1) in which he has at any time 
participated personally and substantially in his governmental capacity, 
or (2) which is pending in the Department of Commerce; or
    b. If the special Government employee has served in the Department 
no more than 60 days during the preceding period of 365 days, section 
203 applies to him only in relation to a particular matter involving a 
specific party or parties in which he has at any time participated 
personally and substantially in his governmental capacity.
    .03 Section 203 does not apply to a retired officer of the uniformed 
services while not on active duty and not otherwise an officer or 
employee of the United States.

  c. activities of officers and employees in claims against and other 
                    matters affecting the government

    .01 Title 18, U.S.C., section 205, prohibits an officer or employee, 
otherwise than in the performance of his official duties, from:
    a. Acting as agent or attorney for prosecuting any claim against the 
United States, or receiving any gratuity, or any share of or interest in 
any such claim in consideration of assistance in the prosecution of such 
claims; or
    b. Acting as agent or attorney for anyone before any Government 
agency, court, or officer in connection with any matter in which the 
United States is a party or has a direct and substantial interest.
    .02 Section 205 applies to a special Government employee as follows:
    a. If the special Government employee has served in the Department 
more than 60 days during the preceding period of 365 days, section 205 
applies to him only in relation to a particular matter involving a 
specific party or parties (1) in which he has at any time participated 
personally and substantially in his governmental capacity, or (2) which 
is pending in the Department of Commerce; or
    b. If the special Government employee has served in the Department 
no more than 60 days during the preceding period of 365 days, section 
205 applies to him only in relation to a particular matter involving a 
specific party or parties in which he has at any time participated 
personally and substantially in his governmental capacity.
    .03 Section 205 does not preclude:
    a. An employee, if not inconsistent with faithful performance of his 
duties, from acting without compensation as agent or attorney for any 
person who is the subject of disciplinary, loyalty, or other personnel 
administration proceedings, in connection with those proceedings; or
    b. An employee from giving testimony under oath or from making 
statements required to be made under penalty for perjury or contempt.
    .04 Sections 203 and 205 do not preclude:
    a. An employee from acting as agent or attorney for his parents, 
spouse, child, or any person for whom, or for any estate for which, he 
is serving as guardian, executor, administrator, trustee, or other 
personal fiduciary, except in those matters in which he has participated 
personally and substantially as a Government employee or which are the 
subject of his official responsibility, provided the head of the 
operating unit concerned approves; or
    b. A special Government employee from acting as agent or attorney 
for another person in the performance of work under a grant by, or a 
contract with, or for the benefit of, the United States, provided the 
head of the operating unit concerned, with the approval of the 
appropriate program Secretarial Officer, shall certify in writing that 
the national interest so requires, and such certification shall be 
published in the Federal Register.
    .05 Section 205 does not apply to a retired officer of the uniformed 
services while not on active duty and not otherwise an officer or 
employee of the United States.

    d. disqualification of former officers and employees in matters 
       connected with former duties or official responsibilities; 
                      disqualification of partners

    .01 Title 18 U.S.C., section 207:
    a. Provides that a former Government officer or employee, including 
a former special Government employee, shall be permanently barred from 
acting as agent or attorney for anyone other than the United States in 
any matter in which the United States is a party or is interested and in 
which he participated personally and substantially in a governmental 
capacity;
    b. Bars a former Government officer or employee, including a special 
Government employee, of an agency, for a period of 1 year after his 
employment with it has ceased, from appearing personally as agent or 
attorney for another person before any court or agency in connection 
with a matter in which the Government has an interest and which was 
under his official responsibility at the employing agency (e.g., 
Department of Commerce) at any time within 1 year prior to the end of 
such responsibility; and
    c. Prohibits a partner of a person employed by the Government, 
including a special Government employee, from acting as agent or 
attorney for anyone other than the United States in matters in which the 
employee participates or has participated personally and substantially 
for the Government or which are the subject of his official 
responsibility.

[[Page 15]]

    .02 Subparagraphs .01a. and .01b. of this section do not prevent a 
former officer or employee or special Government employee who has 
outstanding scientific or technical qualifications from acting as 
attorney or agent or appearing personally before the Department of 
Commerce in connection with a particular matter in a scientific or 
technological field if the Assistant Secretary of Commerce for Science 
and Technology shall make a certification in writing, published in the 
Federal Register, that the national interest would be served by such 
action or appearance by the former officer or employee.

             e. acts affecting a personal financial interest

    .01 Title 18, U.S.C., section 208 prohibits an officer or employee, 
including a special Government employee, from participating personally 
and substantially in a governmental capacity in any matter in which, to 
his knowledge, he, his spouse, minor child, partner, organization in 
which he is serving as officer, director, trustee, partner, or employee, 
or any person or organization with whom he is negotiating or has any 
arrangement concerning prospective employment, has a financial interest.
    .02 Section 208 does not apply:
    a. If the officer or employee first advises the head of the 
operating unit concerned of the nature and circumstances of the matter 
involved, makes full disclosure of the financial interest, and receives 
in advance a written determination made by such official, with the 
approval of the appropriate program Secretarial Officer, that the 
interest is not so substantial as to be deemed likely to affect the 
integrity of the services which the Government may expect from the 
officer or employee; or
    b. If, by general rule or regulation published in the Federal 
Register, the financial interest has been exempted from the requirements 
of section 208 as being too remote or too inconsequential to affect the 
integrity of Government officers' or employees' services.

             f. salary of government officials and employees

    .01 Title 18, U.S.C., section 209, prohibits:
    a. An officer or employee from receiving any salary, or any 
contribution to or supplementation of salary, as compensation for his 
services as an officer or employee of the United States from any source 
other than the Government of the United States, except as may be 
contributed out of the treasury of a State, county, or municipality; and
    b. Any person or organization from paying, contributing to, or 
supplementing the salary of an officer or employee under circumstances 
which would make its receipt a violation of subparagraph .01a. of this 
section.
    .02 Section 209:
    a. Does not prevent a Government employee from continuing to 
participate in a bona fide pension or other welfare plan maintained by a 
former employer;
    b. Exempts special Government employees and employees serving the 
Government without compensation, and grants a corresponding exemption to 
any outside person paying compensation to such individuals; and
    c. Does not prohibit the payment or acceptance of sums under the 
terms of the Government Employees Training Act.

                g. code of ethics for government service

    ``Code of Ethics for Government Service,'' House Concurrent 
Resolution 175, 85th Congress, 2d Session, 72 Stat. B12 of July 11, 
1958, which reads as follows:
    ``Any Person in Government Service Should:
    ``Put loyalty to the highest moral principles and to country above 
loyalty to persons, party, or Government department.
    ``UPHOLD the Constitution, laws, and legal regulations of the United 
States and all governments therein and never be a party to their 
evasion.
    ``GIVE a full day's labor for a full day's pay; giving to the 
performance of his duties his earnest effort and best thought.
    ``SEEK to find and employ more efficient and economical ways of 
getting tasks accomplished.
    ``NEVER discriminate unfairly by the dispensing of special favors or 
privileges to anyone, whether for remuneration or not; and never accept 
for himself or his family, favors or benefits under circumstances which 
might be construed by reasonable persons as influencing the performance 
of his governmental duties.
    ``MAKE no private promises of any kind binding upon the duties of 
office, since a Government employee has no private word which can be 
binding on public duty.
    ``ENGAGE in no business with the Government, either directly or 
indirectly, which is inconsistent with the conscientious performance of 
his governmental duties.
    ``NEVER use any information coming to him confidentially in the 
performance of governmental duties as a means for making private profit.
    ``EXPOSE corruption wherever discovered.
    ``UPHOLD these principles, ever conscious that public office is a 
public trust.''

                             h. prohibitions

    .01 The prohibition against lobbying with appropriated funds (18 
U.S.C. 1913) reads as follows:

[[Page 16]]

    ``No part of the money appropriated by any enactment of Congress 
shall, in the absence of express authorization by Congress, be used 
directly or indirectly to pay for any personal service, advertisement, 
telegram, telephone, letter, printed or written matter, or other device, 
intended or designed to influence in any manner a Member of Congress, to 
favor or oppose, by vote or otherwise, any legislation or appropriation 
by Congress, whether before or after the introduction of any bill or 
resolution proposing such legislation or appropriation, but this shall 
not prevent officers or employees of the United States or of its 
departments or agencies from communicating to Members of Congress on the 
request of any Member or to Congress, through the proper official 
channels, requests for legislation or appropriations which they deem 
necessary for the efficient conduct of the public business.
    ``Whoever, being an officer or employee of the United States or of 
any department or agency thereof, violates or attempts to violate this 
section, shall be fined not more than $500 or imprisoned not more than 1 
year, or both; and after notice and hearing by the superior officer 
vested with the power of removing him, shall be removed from office or 
employment.''
    .02 The prohibitions against disloyalty and striking (5 U.S.C. 7311, 
18 U.S.C. 1918). An individual may not accept or hold a position in the 
Government of the United States if he:
    a. Advocates the overthrow of our constitutional form of government;
    b. Is a member of an organization that he knows advocates the 
overthrow of our constitutional form of government;
    c. Participates in a strike, or asserts the right to strike, against 
the Government of the United States or the government of the District of 
Columbia; or
    d. Is a member of an organization of employees of the Government of 
the United States or of individuals employed by the government of the 
District of Columbia that he knows asserts the right to strike against 
the Government of the United States or the government of the District of 
Columbia.
    .03 The prohibition against employment of a member of a Communist 
organization (50 U.S.C. 784).
    .04 The prohibitions against (a) the disclosure of classified 
information (18 U.S.C. 798, 50 U.S.C. 788); and (b) the disclosure of 
confidential information (18 U.S.C. 1905). Each employee who has access 
to classified information, e.g., confidential, secret, or top secret, or 
to a restricted area is responsible for knowing and for complying 
strictly with the security regulations of the Department of Commerce. 
(See Administrative Order 207-2.)
    .05 The prohibition against employment in the competitive civil 
service of any person who habitually uses intoxicating beverages to 
excess (5 U.S.C. 7352).
    .06 The prohibition against the misuse of a Government vehicle (31 
U.S.C. 638a(c)). No employee may willfully use or authorize the use of a 
Government-owned or Government-leased passenger motor vehicle or 
aircraft for other than official purposes.
    .07 The prohibition against the use of the franking privilege to 
avoid payment of postage on private mail (18 U.S.C. 1719).
    .08 The prohibition against the use of deceit in an examination or 
personnel action in connection with Government employment (18 U.S.C. 
1917).
    .09 The prohibition against fraud or false statements in a 
Government matter (18 U.S.C. 1001). An employee in connection with an 
official matter shall not knowingly and willfully conceal or cover up a 
material fact or falsify official papers or documents.
    .10 The prohibition against mutilating or destroying a public record 
(18 U.S.C. 2071). No employee may conceal, remove, mutilate, or destroy 
Government documents or records except for the disposition of records in 
accordance with law or regulation.
    .11 The prohibition against counterfeiting and forging 
transportation requests (18 U.S.C. 508). Falsely making, altering or 
forging, in whole or in part, any form of transportation request is 
prohibited.
    .12 The prohibitions against:
    a. Embezzlement of Government money or property (18 U.S.C. 641). No 
employee may convert any Government money or Government property to his 
own use or the use of another person.
    b. Failure to account for public money (18 U.S.C. 643). Any 
employee, who, having received public money which he is not authorized 
to retain, fails to render his accounts for same as provided by law, is 
guilty of embezzlement.
    c. Embezzlement of the money or property of another person in the 
possession of the employee by reason of his employment (18 U.S.C. 654). 
An employee is prohibited from embezzling or wrongfully converting for 
his own use the money or property of another which comes under his 
control as the result of his employment.
    .13 The prohibition against unauthorized removal or use of documents 
relating to claims from or by the Government (18 U.S.C. 285). No 
employee, without authority, may remove from the place where it was kept 
by authority of the United States any document, record, file, or paper 
intended to be used to procure the payment of money from or by the 
United States or the allowance or payment of any claim against the 
United States, regardless of whether the document or paper has already 
been used or the claim has already been allowed or paid; and no employee 
may use or attempt to use any such document, record, file, or paper to 
procure

[[Page 17]]

the payment of any money from or by the United States or the allowance 
or payment of any claim against the United States.
    .14 The prohibition against proscribed political activities, 
including the following, among others:
    a. Using official authority or influence for the purpose of 
interfering with or influencing the result of an election, except as 
authorized by law (5 U.S.C. 7324);
    b. Taking an active part in political management or in political 
campaigns, except as authorized by law (5 U.S.C. 7324);
    c. Offering or promising to pay anything of value in consideration 
of the use of, or promise to use, any influence to procure any 
appointive office or place under the United States for any person (18 
U.S.C. 210);
    d. Soliciting or receiving, either as a political contribution or 
for personal emolument, anything of value in consideration of a promise 
of support or use of influence in obtaining for any person any 
appointive office or place under the United States (18 U.S.C. 211);
    e. Using official authority to interfere with a Federal election (18 
U.S.C. 595);
    f. Promising any employment compensation, or other benefit made 
possible by Act of Congress in consideration of political activity or 
support (18 U.S.C. 600);
    g. Action by a Federal officer or employee to solicit or receive, or 
to be in any manner concerned with soliciting or receiving, any 
contribution for any political purpose whatever from any other Federal 
officer or employee or from any person receiving compensation for 
services from money derived from the Treasury of the United States (18 
U.S.C. 602);
    h. Soliciting or receiving (by any person) anything of value for any 
political purpose whatever on any Government premises (18 U.S.C. 603);
    i. Soliciting or receiving contributions for political purposes from 
anyone on Federal relief or work relief (18 U.S.C. 604);
    j. Payment of a contribution for political purposes by any Federal 
officer or employee to another Federal officer or employee (18 U.S.C. 
607); and
    k. Payment of a political contribution in excess of statutory 
limitations and purchase of goods, commodities, advertising, or articles 
the proceeds of which inure to the benefit of certain political 
candidates or organizations (18 U.S.C. 608).
    .15 The prohibition against an employee acting as the agent of a 
foreign principal registered under the Foreign Agents Registration Act 
(18 U.S.C. 219).



PART 1_THE SEAL OF THE DEPARTMENT OF COMMERCE--Table of Contents



Sec.
1.1 Purpose.
1.2 Description and design.
1.3 Delegation of authority.

    Authority: Sec. 1, 32 Stat. 825, as amended, 15 U.S.C. 1501.

    Source: 33 FR 9337, June 26, 1968, unless otherwise noted.



Sec.  1.1  Purpose.

    The purpose of this part is to describe the seal of the Department 
of Commerce and to delegate authority to affix the seal to 
certifications and documents of the Department.



Sec.  1.2  Description and design.

    (a) The Act of February 14, 1903 (32 Stat. 825, as amended) (15 
U.S.C. 1501), which established the Department of Commerce, provided 
that ``The said Secretary shall cause a seal of office to be made for 
the said department of such device as the President shall approve, and 
judicial notice shall be taken of the said seal.'' On April 4, 1913, the 
President approved and declared to be the seal of the Department of 
Commerce the device which he described as follows:

    Arms: Per fesse azure and or, a ship in full sail on waves of the 
sea, in chief proper; and in base a lighthouse illumined proper.

    Crest: The American Eagle displayed. Around the Arms, between two 
concentric circles, are the words:

                         Department of Commerce

                        United States of America

    (b) The design of the approved seal is as shown below. Where 
necessitated by requirements of legibility, immediate comprehension, or 
clean reproduction, the concentric circles may be eliminated from the 
seal on publications and exhibits, and in slides, motion pictures, and 
television. In more formal uses of the seal, such as on letterheads, the 
full, proper rendition of the seal shall be used.

[[Page 18]]

[GRAPHIC] [TIFF OMITTED] TC20SE91.005

    (c) The official symbolism of the seal shall be the following: The 
ship is a symbol of commerce; the blue denotes uprightness and 
constancy; the lighthouse is a well-known symbol representing guidance 
from the darkness which is translated to commercial enlightenment; and 
the gold denotes purity. The crest is the American bald eagle denoting 
the national scope of the Department's activities. (The above is a 
modification of the original symbolism issued with the President's 
approval of the seal, made necessary by

changes in the functions of the Department.)



Sec.  1.3  Delegation of authority.

    (a) Pursuant to authority vested in the Secretary of Commerce by 
law, (1) the Chief Administrative Officer of each operating unit, and 
(2) the Director, Office of Administrative Services in the Office of the 
Secretary, are hereby authorized to sign as Certifying Officers 
certifications as to the official nature of copies of correspondence and 
records from the files, publications and other documents of the 
Department and to affix the seal of the Department of Commerce to such 
certifications or documents for all purposes, including the purpose 
authorized by 28 U.S.C. 1733(b).
    (b) Delegations of authority to persons other than those named in 
paragraph (a) of this section may be made by the Assistant Secretary for 
Administration.
    (c) This delegation shall not affect or prejudice the use of 
properly authorized office or bureau seals in appropriate cases.



PART 2_PROCEDURES FOR HANDLING AND SETTLEMENT OF CLAIMS UNDER THE FEDERAL
TORT CLAIMS ACT--Table of Contents



Sec.
2.1 Purpose.
2.2 Provisions of law and regulations thereunder.
2.3 Delegation of authority.
2.4 Procedure for filing claims.
2.5 Adjudication and settlement of claims.
2.6 Payment of claims.
2.7 Supplementary regulations.

    Authority: 28 U.S.C. 2672.



Sec.  2.1  Purpose.

    (a) The purpose of this part is to delegate authority to settle or 
deny claims under the Federal Tort Claims Act (in part, 28 U.S.C. 2671-
2680) as amended by Pub. L. 89-506, 80 Stat. 306, and to establish 
procedures for the administrative adjudication of such claims accruing 
on or after January 18, 1967.

[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983]



Sec.  2.2  Provisions of law and regulations thereunder.

    (a) Section 2672 of Title 28, U.S. Code, as above amended, provides 
that:

    The head of each Federal agency or his designee, in accordance with 
regulations prescribed by the Attorney General, may consider, ascertain, 
adjust, determine, compromise, and settle any claim for money damages 
against the United States for injury or loss of property or personal 
injury or death caused by the negligent or wrongful act or omission of 
any employee of the agency 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 in accordance with the law of 
the place where the act or omission occurred: Provided, that any award, 
compromise, or settlement in excess of $25,000 shall be effected only 
with the prior written approval of the Attorney General or his designee.
    Subject to the provisions of this title relating to civil actions on 
tort claims against the United States, any such award, compromise, 
settlement, or determination shall be final and conclusive on all 
officers of the Government, except when procured by means of fraud.

[[Page 19]]

    Any award, compromise, or settlement in an amount of $2,500 or less 
made pursuant to this section shall be paid by the head of the Federal 
agency concerned out of appropriations available to that agency. Payment 
of any award, compromise, or settlement in an amount in excess of $2,500 
made pursuant to this section or made by the Attorney General in any 
amount pursuant to section 2677 of this title shall be paid in a manner 
similar to judgments and compromises in like causes and appropriations 
or funds available for the payment of such judgments and compromises are 
hereby made available for the payment of awards, compromises, or 
settlements under this chapter.
    The acceptance by the claimant of any such award, compromise, or 
settlement shall be final and conclusive on the claimant, and shall 
constitute a complete release of any claim against the United States and 
against the employee of the Government whose act or omission gave rise 
to the claim, by reason of the same subject matter.

    (b) Subsection (a) section 2675 of said Title 28 provides that:

    An action shall not be instituted upon a claim against the United 
States for money damages for injury or loss of property or personal 
injury or death caused by the negligent or wrongful act or omission of 
any employee of the Government while acting within the scope of his 
office or employment, unless the claimant shall have first presented the 
claim to the appropriate Federal agency and his claim shall have been 
finally denied by the agency in writing and sent by certified or 
registered mail. The failure of an agency to make final disposition of a 
claim within 6 months after it is filed shall, at the option of the 
claimant any time thereafter, be deemed a final denial of the claim for 
purposes of this section. The provisions of this subsection shall not 
apply to such claims as may be asserted under the Federal Rules of Civil 
Procedure by third party complaint, crossclaim, or counterclaim.

    (c) Section 2678 of said Title 28 provides that no attorney shall 
charge fees in excess of 25 percent of a judgment or settlement after 
litigation, or over 20 percent of administrative settlements.
    (d) Section 2401(b) of said Title 28 provides that:

    A tort claim against the United States shall be forever barred 
unless it is presented in writing to the appropriate Federal agency 
within 2 years after such claim accrues or unless action is begun within 
6 months after the date of mailing, by certified or registered mail, of 
notice of final denial of the claim by the agency to which it was 
presented.

    (e) Pursuant to section 2672 as amended, the Attorney General has 
issued regulations (herein referred to as ``the Regulations''; 28 CFR 
Part 14) prescribing standards and procedures for settlement of tort 
claims (31 FR 16616). Persons delegated authority under this part shall 
follow and be guided by such Regulations (28 CFR Part 14).

[32 FR 3769, Mar. 7, 1967, as amended at 63 FR 29945, June 2, 1998]



Sec.  2.3  Delegation of authority.

    (a) The General Counsel is hereby named as the designee of the 
Secretary ofCommerce with respect to tort claims filed under section 
2672 of Title 28, U.S. Code, as described in Sec.  2.2, with authority 
to act on such claims as provided in said section 2672, including denial 
thereof.
    (b) Authority delegated under this section may, with the approval of 
the General Counsel, be redelegated to other designees.
    (c) Settlement or denial of any claim under this part is final for 
the Department of Commerce.

[48 FR 31636, July 11, 1983]



Sec.  2.4  Procedure for filing claims.

    (a) The procedure for filing and the contents of claims shall be 
pursuant to Sec. Sec.  14.2, 14.3, and 14.4 of the Regulations (28 CFR 
Part 14).
    (b) Claims shall be filed with the Assistant General Counsel for 
Finance and Litigation, Department of Commerce, Washington, D.C. 20230.
    (c) If a claim is filed elsewhere in the Department, it shall 
immediately be recorded and transmitted to the Assistant General Counsel 
for Finance and Litigation.

[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983; 63 
FR 29945, June 2, 1998]



Sec.  2.5  Adjudication and settlement of claims.

    (a) Upon receipt of a claim by the Assistant General Counsel for 
Finance and Litigation, the time and date of receipt shall be recorded. 
The Assistant General Counsel may, after recording the claim, transmit 
it to the Departmental office or primary operating unit involved in the 
claim and request

[[Page 20]]

that an investigation be conducted. The appropriate Departmental office 
or primary operating unit shall designate an official to conduct the 
investigation, who shall prepare a file, obtain additional information 
as necessary, and prepare for the Assistant General Counsel's signature 
a proposed award or denial of the claim. If the investigation 
capabilities of the office or unit are insufficient for a proper and 
complete investigation, the office or unit shall consult with the 
Departmental Office of Investigations and Security to:
    (1) Have that Office conduct the investigation or
    (2) Request another Federal agency to conduct the investigation as 
necessary, pursuant to Sec.  14.8 of the regulations (28 CFR Part 14), 
all on a reimbursable basis.
    (b) If the amount of the proposed award exceeds $25,000 (in which 
case, approval by the Attorney General is required), or if consultation 
with the Department of Justice is desired or required pursuant to Sec.  
14.6 of the regulations, the Assistant General Counsel for Finance and 
Litigation will prepare and compile the material required by the 
Department of Justice under Sec.  14.7 of the Regulations.
    (c) Denial of a claim shall be communicated as provided by Sec.  
14.9 of the regulations (28 CFR Part 14).
    (d) Designees hereunder are responsible for the control over and 
expeditious handling of claims, bearing in mind the applicable statutory 
time limitations for adjudications of claims.

[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983; 63 
FR 29945, June 2, 1998]



Sec.  2.6  Payment of claims.

    When an award is made, the file on the case shall be transmitted to 
the appropriate fiscal office for payment by the Department or for 
transmittal for payment as prescribed by Sec.  14.10 of the Regulations 
(28 CFR Part 14). Prior to payment appropriate releases shall be 
obtained, as provided in said section.

[32 FR 3769, Mar. 7, 1967]



Sec.  2.7  Supplementary regulations.

    (a) The Assistant General Counsel for Finance and Litigation may 
from time to time issue such supplementary regulations or instructions 
as he/she deems appropriate to carry out the purpose of this part.
    (b) Any designee mentioned in paragraph (a) of Sec.  2.3 may issue 
regulations or instructions covering his/her area of responsibility 
hereunder which are consistent with this part and with those issued 
under paragraph (a) of this section, such regulations and instructions 
to be approved by the Assistant General Counsel for Finance and 
Litigation.

[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983. 
Redesignated and amended at 63 FR 29945, June 2, 1998]

                            PART 3 [RESERVED]



PART 4_DISCLOSURE OF GOVERNMENT INFORMATION--Table of Contents



                  Subpart A_Freedom of Information Act

Sec.
4.1 General provisions.
4.2 Public reading rooms.
4.3 Records under the FOIA.
4.4 Requirements for making requests.
4.5 Responsibility for responding to requests.
4.6 Time limits and expedited processing.
4.7 Responses to requests.
4.8 Classified information.
4.9 Confidential commercial information.
4.10 Appeals from initial determinations or untimely delays.
4.11 Fees.

                          Subpart B_Privacy Act

4.21 Purpose and scope.
4.22 Definitions.
4.23 Procedures for making inquiries.
4.24 Procedures for making requests for records.
4.25 Disclosure of requested records to individuals.
4.26 Special procedures: Medical records.
4.27 Procedures for making requests for correction or amendment.
4.28 Agency review of requests for correction or amendment.
4.29 Appeal of initial adverse agency determination on correction or 
          amendment.
4.30 Disclosure of record to person other than the individual to whom it 
          pertains.
4.31 Fees.
4.32 Penalties.
4.33 General exemptions.
4.34 Specific exemptions.

[[Page 21]]


Appendix A to Part 4--Freedom of Information Public Inspection 
          Facilities, and Addresses for Requests for Records Under the 
          Freedom of Information Act and Privacy Act, and Requests for 
          Correction or Amendment Under the Privacy Act
Appendix B to Part 4--Officials Authorized To Deny Requests for Records 
          Under the Freedom of Information Act, and Requests for Records 
          and Requests for Correction or Amendment Under the Privacy Act
Appendix C to Part 4--Systems of Records Noticed by Other Federal 
          Agencies and Applicable to Records of the Department, and 
          Applicability of This Part Thereto.

    Authority: 5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 553; 
31 U.S.C. 3717; 44 U.S.C. 3101; Reorganization Plan No. 5 of 1950.

    Source: 66 FR 65632, Dec. 20, 2001, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 4 appear at 80 FR 
70154, Nov. 13, 2015.



                  Subpart A_Freedom of Information Act



Sec.  4.1  General provisions.

    (a) The information in this part is furnished for the guidance of 
the public and in compliance with the requirements of the Freedom of 
Information Act (FOIA), as amended (5 U.S.C. 552). This part sets forth 
the procedures the Department of Commerce (Department) and its 
components follow to make publicly available materials and indices 
specified in 5 U.S.C. 552(a)(2) and records requested under 5 U.S.C. 
552(a)(3). Information routinely provided to the public as part of a 
regular Department activity (for example, press releases issued by the 
Office of Public Affairs) may be provided to the public without 
following this part. In addition, as a matter of policy, the Department 
shall make discretionary releases of records or information exempt from 
disclosure under the FOIA when required to do so in accordance with 
current law and/or Executive Branch policy. This policy does not create 
any right enforceable in court.
    (b) As used in this subpart, component means any office, division, 
bureau or other unit of the Department listed in Appendix A to this part 
(except that a regional office of a larger office or other unit does not 
constitute a separate component).
    (c) The Department has a FOIA Requester Service Center with at least 
one FOIA Public Liaison. Each Department component may have a FOIA 
Requester Service Center with at least one FOIA Public Liaison. FOIA 
Public Liaisons are responsible for: Working with requesters that have 
any concerns about the service received from a FOIA component, reducing 
delays in the processing of FOIA requests, increasing transparency and 
understanding of the status of requests, and assisting in the resolution 
of disputes. Contact information for the relevant component FOIA 
Requester Service Centers, FOIA Public Liaisons, and component FOIA 
offices and contacts is available at http://www.osec.doc.gov /opog/
contacts.html.
    (d) The Office of Government Information Services (OGIS) within the 
National Archives and Records Administration offers mediation services 
to resolve disputes between requesters and agencies as a non-exclusive 
alternative to litigation. Requesters with concerns about the handling 
of their requests may contact OGIS.

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62557, Oct. 20, 2014; 
83 FR 39589, Aug. 10, 2018]



Sec.  4.2  Public reading rooms.

    (a) Records that the FOIA requires to be made available for public 
inspection and copying are accessible electronically through the 
Department's ``Electronic FOIA Library'' on the Department's website, 
http://www.doc.gov, which includes links to websites for those 
components that maintain Electronic FOIA Libraries. Each component of 
the Department is responsible for determining which of its records are 
required to be made available, as well as identifying additional records 
of interest to the public that are appropriate for disclosure, and for 
making those records available either in its own Electronic Library or 
in the Department's central Electronic FOIA Library. Components that 
maintain their own Electronic FOIA Libraries are designated as such in 
Appendix A to this

[[Page 22]]

part. Each component shall also maintain and make available 
electronically a current subject-matter index of the records made 
available electronically. Each component shall ensure that posted 
records and indices are updated regularly, at least quarterly.
    (b) If the requester does not have access to the Internet and wishes 
to obtain information regarding publicly available information, he or 
she may contact the component's FOIA office. Appendix A to this part 
contains the contact information for the components' FOIA offices. Some 
components may also maintain physical public reading rooms. These 
components and their contact information are listed in Appendix A to 
this part.
    (c) The Department and its components shall maintain and make 
available electronically for public inspection:
    (1) Copies of records that have been released and--
    (i) That the component that maintains them determines, because of 
their subject matter, have become or are likely to become the subject of 
subsequent requests for substantially the same records by other 
requesters, or
    (ii) That have been requested three or more times by different 
requesters;
    (2) A general index of the records available for public inspection--
for purposes of these regulations, a general index includes records 
available through a search capability on the Department or component's 
website, such as a person finder;
    (3) Final opinions and orders, including concurring and dissenting 
opinions made in the adjudication of cases;
    (4) Those statements of policy and interpretations that have been 
adopted by a component and are not published in the Federal Register; 
and
    (5) Administrative staff manuals and instructions to staff that 
affect a member of the public.

[79 FR 62558, Oct. 20, 2014, as amended at 83 FR 39589, Aug. 10, 2018]



Sec.  4.3  Records under the FOIA.

    (a) Records under the FOIA include all Government records, 
regardless of format, medium or physical characteristics, and electronic 
records and information, audiotapes, videotapes, Compact Disks, DVDs, 
and photographs.
    (b) In response to a FOIA request, the Department has no obligation 
to create, compile, or obtain from outside the Department a record to 
satisfy a request (for example, extrapolating information from existing 
agency records, reformatting available information, preparing new 
electronic programs or databases, or creating data through calculations 
of rations, proportions, percentages, trends, frequency distributions, 
correlations, or comparisons). In complying with a request for records 
(including data and other electronically-stored information), whether 
the Department creates or compiles records (as by undertaking 
significant programming work) or merely extracts them from an existing 
database is fact dependent. The Department shall undertake reasonable 
efforts to search for records stored in electronic format (including 
data and other electronically-stored information).
    (c) Department officials may, upon request, create and provide new 
records to the public pursuant to statutes that authorize the creation 
and provision of new records for a fee, such as the first paragraph of 
15 U.S.C. 1525, or in accordance with authority otherwise provided by 
law. Such creation and provision of records is outside the scope of the 
FOIA.
    (d) Components shall preserve all correspondence pertaining to the 
requests they receive under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
Title 44 of the United States Code or the National Archives and Records 
Administration's General Records Schedule 4.2, Information Access and 
Protection Records. Components shall not dispose of records while they 
are the subject of a pending request, appeal, or lawsuit under the FOIA.

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62558, Oct. 20, 2014; 
83 FR 39589, Aug. 10, 2018]



Sec.  4.4  Requirements for making requests.

    (a) How made and addressed. The Department has a decentralized 
system

[[Page 23]]

for responding to FOIA requests, with each component designating a FOIA 
office to process records from that component. All components have the 
capability to receive requests electronically either through electronic 
mail (email) or the FOIAonline website, http://foiaonline 
.regulations.gov. A request for Department records that are not 
customarily made available to the public as part of the Department's 
regular informational services (or pursuant to a user fee statute), must 
be in writing and shall be processed under the FOIA, regardless of 
whether the FOIA is mentioned in the request. Requests must include the 
requester's full name and a valid return address. Requesters may also 
include other contact information, such as an email address and a 
telephone number. For the quickest handling, the request (and envelope, 
if the request is mailed or hand delivered) should be marked ``Freedom 
of Information Act Request.'' Requests may be submitted by U.S. mail, 
delivery service, email, or online at the FOIAonline website, http://
foiaonline .regulations.gov. Requests may also be submitted to some 
components, identified in Appendix A to this part, by facsimile. 
Requests should be sent to the Department component identified in 
Appendix A to this part that maintains those records requested, and 
should be sent to the addresses, email addresses, or numbers listed in 
Appendix A to this part or the Department's website, http://
www.doc.gov.\1\ If the proper component cannot be determined, the 
request should be sent to the central facility identified in Appendix A 
to this part. The central facility will forward the request to the 
component(s) it believes most likely to have the requested records. 
Requests will be considered received for purposes of the 20-day time 
limit of Sec.  4.6 as of the date it is received by the proper 
component's FOIA office, but in any event not later than ten working 
days after the request is first received by any Department component 
identified in Appendix A to this part.
---------------------------------------------------------------------------

    \1\ The United States Patent and Trademark Office (USPTO), which is 
established as an agency of the United States within the Department of 
Commerce, operates under its own FOIA regulations at 37 CFR part 102, 
subpart A. Accordingly, requests for USPTO records, and any appeals 
thereof, should be sent directly to the USPTO.
---------------------------------------------------------------------------

    (b) Requests for records about an individual or oneself. For 
requests for records about oneself, Sec.  4.24 contains additional 
requirements. For requests for records about another individual, either 
a notarized authorization signed by that individual or a declaration by 
that individual made under 28 U.S.C. 1746, a law that permits statements 
to be made under penalty of perjury as a substitute for notarization, 
permitting disclosure of the individual's records to the requester, or 
proof that the individual is deceased (for example, a copy of a death 
certificate or an obituary) will facilitate processing the request.
    (c) Description of records sought. (1) A FOIA request must 
reasonably describe the agency records sought, to enable Department 
personnel to locate them with a reasonable amount of effort.
    (2) Whenever possible, a request should include specific information 
about each record sought, such as the date, title or name, author, 
recipient, subject matter of the record, case number, file designation, 
or reference number, and the name and location of the office where the 
record(s) might be found.
    (i) In addition, if records about a court case are sought, the title 
of the case, the court in which the case was filed, and the nature of 
the case should be included.
    (ii) If known, any file designations or descriptions of the 
requested records should be included.
    (iii) As a general rule, the more specifically the request describes 
the records sought, the greater the likelihood that the Department will 
be able to locate those records.
    (3) Before submitting their requests, requesters may first contact 
the Department's or the component's FOIA contact to discuss the records 
they are seeking and to receive assistance in describing the records.
    (4) For further assistance, requesters may also contact the relevant 
FOIA Requester Service Center or FOIA Public Liaison. Contact 
information for relevant FOIA Requester Service Centers and FOIA Public 
Liaisons is contained on the Department's website,

[[Page 24]]

http://www.osec.doc.gov /opog/contacts.html and Appendix A to this part.
    (5) If a component determines that a request does not reasonably 
describe the records sought, it shall inform the requester what 
additional information is needed or how the request is otherwise 
insufficient, to enable the requester to modify the request to meet the 
requirements of this section.
    (6) Requesters who are attempting to reformulate or modify such a 
request may discuss their request first with the relevant FOIA Contact, 
or if unresolved, with the relevant Requester Service Center or FOIA 
Public Liaison to discuss the records they are seeking and to receive 
assistance in describing the records.
    (7) When a requester fails to provide sufficient detail within 30 
calendar days after having been asked to reasonably describe the records 
sought, the component shall notify the requester in writing that the 
request has not been properly made, that no further action will be 
taken, and that the FOIA request is closed. Such a notice constitutes an 
adverse determination under Sec.  4.7(d) for which components shall 
follow the procedures for a denial letter under Sec.  4.7(e).
    (8) In cases where a requester has modified his or her request, the 
date of receipt for purposes of the 20-day time limit of Sec.  4.6 shall 
be the date of receipt of the modified request.

[83 FR 39590, Aug. 10, 2018]



Sec.  4.5  Responsibility for responding to requests.

    (a) In general. Except as stated in paragraph (b) of this section, 
the proper component of the Department to respond to a request for 
records is the component that first receives the request and has 
responsive records (or in the instance of where no records exist, the 
component that first receives the request and is likely to have 
responsive records), or the component to which the Departmental FOIA 
Officer or component FOIA Officer assigns lead responsibility for 
responding to the request. Where a component's FOIA office determines 
that a request was misdirected within the Department, the receiving 
component's FOIA office shall route the request to the FOIA office of 
the proper component(s). Records responsive to a request shall include 
those records within the Department's possession and control as of the 
date the Department begins its search for them. A record that is 
excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), 
is not considered responsive to a request.
    (b) Consultations and referrals. When the Department or a component 
receives a request for a record (or a portion thereof) in its possession 
that originated with another Departmental component or Federal agency 
subject to the FOIA, the Department or component should typically refer 
the record to the component or originating agency for direct response to 
the requester (see Sec.  4.8 for additional information about referrals 
of classified information). When the Department or a component receives 
a request for a record (or a portion thereof) in its possession that 
originated with another Departmental component, Federal agency, or 
executive branch office that is not subject to the FOIA, the Department 
or component shall consult with that component, Federal agency, or 
executive branch office before responding to the requester. In instances 
where a record is requested that originated with the Department or 
component and another component, Federal agency, or executive branch 
office has substantial interest in the record (or a portion thereof), 
the Department or component should typically consult with that 
component, Federal agency, or executive branch office before responding 
to the requester.
    (c) Notice of referral. Whenever a component refers a record to 
another Federal agency or Department component for direct response to 
the requester, the component's FOIA Officer should typically notify the 
requester in writing of the referral and inform the requester of the 
name(s) of the agency or Department component to which the record was 
referred, including that agency's or component's FOIA contact 
information. The standard referral procedure is not appropriate where 
disclosure of the identity of the agency or Department component to 
which the referral would be made could harm an

[[Page 25]]

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 were not publicly known, 
then to disclose that law enforcement interest by providing notice of a 
referral could cause an unwarranted invasion of the personal privacy of 
the third party. In such cases, the agency that received the request 
should consult with the originating agency to seek its views on the 
disclosability of the record and the release determination should then 
be conveyed to the requester by the agency that originally received the 
request.
    (d) Timing of responses to consultations and referrals. All 
consultations and referrals shall be handled in chronological order, 
based on when the FOIA request was received by the first Federal agency.
    (e) Agreements regarding consultations and referrals. Components may 
make agreements with other Federal agencies to eliminate the need for 
consultations or referrals for particular types of records.

[66 FR 65632, Dec. 20, 2001, as amended at 71 FR 31073, June 1, 2006; 79 
FR 62559, Oct. 20, 2014; 83 FR 39590, Aug. 10, 2018]



Sec.  4.6  Time limits and expedited processing.

    (a) In general. Components ordinarily shall respond to requests 
according to their order of receipt.
    (b) Initial response and appeal. Unless the component and the 
requester have agreed otherwise, or when ``unusual circumstances'' exist 
as provided for in paragraph (d) of this section, a determination 
whether to comply with a FOIA request shall be made by components within 
20 working days (i.e., excluding Saturdays, Sundays, and legal public 
holidays) of the receipt of a request for a record under this part by 
the proper component identified in accordance with Sec.  4.5(a). In 
instances involving misdirected requests that are re-routed pursuant to 
Sec.  4.5(a), the response time shall commence on the date that the 
request is received by the proper component, but in any event not later 
than ten working days after the request is first received by any 
designated component. An administrative appeal, other than an appeal 
from a request made to the Office of the Inspector General, shall be 
decided within 20 working days of its receipt by the Office of the 
General Counsel. An administrative appeal from a request made to the 
Office of the Inspector General shall be decided within 20 working days 
of its receipt by the Office of the Inspector General Office of Counsel. 
The Department's failure to comply with the time limits identified in 
this paragraph constitutes exhaustion of the requester's administrative 
remedies for the purposes of judicial action to compel disclosure.
    (c) Clarification of request. Components may seek a one-time 
clarification of a request for records under this part. The component's 
request for clarification must be in writing. When a component seeks 
clarification of a request, the time for responding to a request set 
forth in Sec.  4.6(b) is tolled until the requester responds to the 
clarification request. The tolled period will end when the component 
that sought the clarification receives a response from the requester. If 
a component asks for clarification and does not receive a written 
response from the requester within 30 calendar days from the date of the 
component's clarification request, the component will presume that the 
requester is no longer interested and notify the requester that the 
request will be closed.
    (d) Unusual circumstances. (1) Components may extend the time period 
for processing a FOIA request only in ``unusual circumstances,'' as 
described in paragraph (d)(2) of this section, in which the component 
shall, before expiration of the twenty-day period to respond, notify the 
requester of the extension in writing of the unusual circumstances 
involved and the date by which processing of the request is expected to 
be completed. If the extension is for more than ten working days, the 
component shall provide the requester with an opportunity to modify the 
request or agree to an alternative time period for processing the 
original

[[Page 26]]

or modified request. Furthermore, the requester will be advised that the 
relevant FOIA Public Liaison or FOIA contact is available for this 
purpose and of the requester's right to seek dispute resolution services 
from the Office of Government Information Services (OGIS).
    (2) For purposes of this section, ``unusual circumstances'' include:
    (i) The need to search for and collect the requested agency records 
from field facilities or other establishments that are separate from the 
office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records that are the subject 
of a single request; or
    (iii) The need to consult, which shall be conducted with all 
practicable speed, with another Federal agency having a substantial 
interest in the determination of the FOIA request or with another 
component of the Department which has a substantial interest in the 
determination of the request.
    (3) If a component reasonably believes that multiple requests 
submitted by a requester, or by a group of requesters acting in concert, 
constitute a single request that would otherwise involve unusual 
circumstances, and the requests involve clearly related matters, the 
component may aggregate them. Multiple requests involving unrelated 
matters will not be aggregated.
    (e) Multi-track processing. (1) A component must use two or more 
processing tracks by distinguishing between simple and more complex 
requests based on the amount of work and/or time needed to process the 
request, including the amount of pages involved, the need to consult 
with or refer to other agencies or Department components or for 
commercial confidential information to a third party, or whether the 
request qualifies for unusual circumstances as described in paragraph 
(d)(2) of this section, and whether the request qualifies for expedited 
processing as described in paragraph (f) of this section.
    (2) A component using multi-track processing may provide requesters 
in its slower track(s) with an opportunity to limit the scope of their 
requests in order to qualify for faster processing. A component doing so 
shall contact the requester by telephone, email, letter, or through the 
FOIAonline Web site, http://foiaonline .regulations.gov, whichever is 
the most efficient in each case.
    (f) Expedited processing. (1) Requests and appeals shall be taken 
out of order and given expedited treatment whenever it is determined 
that they involve:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) The loss of substantial due process rights;
    (iii) A matter of widespread and exceptional media interest 
involving questions about the Government's integrity which affect public 
confidence; or
    (iv) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person primarily engaged in 
disseminating information.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. For a prompt 
determination, a request for expedited processing should be sent to the 
component listed in Appendix A to this part that maintains the records 
requested.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that person's 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing. For example, a requester within the category 
described in paragraph (f)(1)(iv) of this section, if 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, though it need not be his or her sole occupation. A 
requester within the category described in paragraph (f)(1)(iv) of this 
section must also establish a particular urgency to inform the public 
about the Government activity involved in the request--one that extends 
beyond the public's right to know about Government activity generally. 
The existence of numerous articles published on a given subject can be

[[Page 27]]

helpful to establishing the requirement that there be an ``urgency to 
inform'' the public on a topic. As a matter of administrative 
discretion, a component may waive the formal certification requirement.
    (4) Within ten calendar days of its receipt of a request for 
expedited processing, the proper component shall decide whether to grant 
it and shall notify the requester of the decision. Solely for purposes 
of calculating the foregoing time limit, any request for expedited 
processing shall always be considered received on the actual date of 
receipt by the proper component. If a request for expedited processing 
is granted, the request shall be given priority and processed as soon as 
practicable, subject to Sec.  4.11(i). If a request for expedited 
processing is denied, any appeal of that decision shall be acted on 
expeditiously.

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62559, Oct. 20, 2014; 
83 FR 39591, Aug. 10, 2018]



Sec.  4.7  Responses to requests.

    (a) Acknowledgment of requests. Upon receipt of a request, a 
component ordinarily shall send an acknowledgement to the requester 
which shall provide an assigned tracking request number for further 
reference and, if necessary, confirm whether the requester is willing to 
pay fees. A component must send this acknowledgment if the request will 
take longer than ten working days to process. In most cases, the 
acknowledgement email, generated by the FOIAonline system, that is sent 
to requesters who provide an email address will suffice for this 
requirement.
    (b) Interim responses. If a request involves voluminous records or 
requires searches in multiple locations, to the extent feasible, a 
component shall provide the requester with interim responses. Such 
responses may include records that are fully releasable or records that 
have been withheld in part under one or more applicable FOIA exemptions 
set forth at 5 U.S.C. 552(b). Bureaus will make reasonable efforts to 
provide to requesters an estimated date when a determination will be 
provided. An interim response is not a determination and appeal rights 
need not be provided with the interim response.
    (c) Determination--(1) Grants of requests. If a component makes a 
determination to grant a request in whole or in part, it shall notify 
the requester in writing of such determination.
    (i) A component shall inform the requester:
    (A) Of any fees charged under Sec.  4.11; and
    (B) That the requester may contact the relevant FOIA Public Liaison 
or FOIA contact for further assistance.
    (ii) The component shall also disclose records to the requester 
promptly upon payment of any applicable fees.
    (iii) Records disclosed in part shall be marked or annotated to show 
the applicable FOIA exemption(s) and the amount of information deleted, 
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 feasible.
    (2) Adverse determinations of requests. If a component makes an 
adverse determination regarding a request, it shall notify the requester 
of that determination in writing.
    (i) An adverse determination may be a denial of a request and 
includes decisions that:
    (A) The requested record is exempt, in whole or in part.
    (B) The request does not reasonably describe the records sought and 
the requester is unwilling to further clarify the request.
    (C) The information requested is not a record subject to the FOIA.
    (D) The requested record does not exist, cannot be located, or has 
previously been destroyed.
    (E) The requested record is not readily reproducible in the form or 
format sought by the requester.
    (ii) Adverse determinations may also include:
    (A) Denials of requested fee category status.
    (B) Denials of requests for fee waivers.
    (C) Denials of requests for expedited processing.
    (D) Denials of requests for reduction of fees.
    (3) Content of denial. The denial letter shall be signed by an 
official listed in

[[Page 28]]

Appendix B to this part (or a designee), and shall include:
    (i) The name and title or position of the person responsible for the 
denial;
    (ii) A brief statement of the reason(s) for the denial, including 
any FOIA exemption(s) applied by the component in denying the request;
    (iii) An estimate of the volume of any records or information 
withheld, by providing the number of pages or some other reasonable form 
of estimation. This estimate is not required if the volume is otherwise 
indicated by deletions marked on records that are disclosed in part, or 
if providing an estimate would harm an interest protected by an 
applicable FOIA exemption;
    (iv) A statement advising the requester of the right to seek dispute 
resolution services from the Department FOIA Public Liaison, the 
relevant component FOIA Public Liaison or FOIA contact, or OGIS; and
    (v) A statement that the denial may be appealed under Sec.  4.10, 
and a list of the requirements for filing an appeal set forth in Sec.  
4.10(b).
    (d) All responses shall be made subject to the provisions of Sec.  
4.25(b)(2)(iv).

[83 FR 39591, Aug. 10, 2018, as amended at 86 FR 21934, Apr. 26, 2021]



Sec.  4.8  Classified information.

    In processing a request for information classified under Executive 
Order 13526 or any other executive order concerning the classification 
of records, the information shall be reviewed to determine whether it 
should remain classified. Ordinarily the component or other Federal 
agency that classified the information should conduct the review, except 
that if a record contains information that has been derivatively 
classified by a component because it contains information classified by 
another component or agency, the component shall refer the 
responsibility for responding to the request to the component or agency 
that classified the underlying information. Information determined to no 
longer require classification shall not be withheld on the basis of FOIA 
exemption (b)(1) (5 U.S.C. 552(b)(1)), but should be reviewed to assess 
whether any other FOIA exemption should be invoked. Appeals involving 
classified information shall be processed in accordance with Sec.  
4.10(c).

[79 FR 62560, Oct. 20, 2014]



Sec.  4.9  Confidential commercial information.

    (a) Definitions. For the purposes of this section:
    (1) Confidential commercial information means commercial or 
financial information, obtained by the Department from a submitter, 
which may be protected from disclosure under FOIA exemption (b)(4) (5 
U.S.C. 552(b)(4)).
    (2) Submitter means any person or entity outside the Federal 
Government from which the Department obtains confidential commercial 
information, directly or indirectly. The term includes U.S. or foreign 
persons, U.S. or foreign corporations; state, local and tribal 
governments; and foreign governments.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information should be encouraged to use good-
faith efforts to designate, by appropriate markings, either at the time 
of submission or at a reasonable time thereafter, any portions of its 
submission that it considers to be protected from disclosure under FOIA 
exemption (b)(4). These designations will expire ten years after the 
date of the submission unless the submitter requests, and provides 
justification for, a longer period.
    (c) Notice to submitters. (1) A component shall provide a submitter 
with prompt written notice of a FOIA request or administrative appeal 
that seeks its confidential commercial information whenever required 
under paragraph (d) of this section, except as provided in paragraph (g) 
of this section, in order to give the submitter an opportunity under 
paragraph (e) of this section to object to disclosure of any specified 
portion of that information.
    (2) Such written notice shall be sent via certified mail, return 
receipt requested, or similar means.
    (3) Where notification of a voluminous number of submitters is 
required, such notification may be accomplished by posting or publishing 
the notice in a place reasonably calculated to accomplish notification.

[[Page 29]]

    (4) The notice shall either describe the confidential commercial 
information requested or include copies of the requested records or 
portions of the records containing the information. If notification of a 
large number of submitters is required, notification may be made by 
posting or publishing the notice in a place reasonably likely to 
accomplish notification, instead of sending individual notifications.
    (d) When notice is required. Notice shall be given to the submitter 
whenever:
    (1) The submitter has designated the information in good faith as 
protected from disclosure under FOIA exemption (b)(4); or
    (2) The component has reason to believe that the information may be 
protected from disclosure under FOIA exemption (b)(4), but has not yet 
determined whether the information is protected from disclosure.
    (e) Opportunity to object to disclosure. A component shall allow a 
submitter seven working days (i.e., excluding Saturdays, Sundays, and 
legal public holidays) from the date of receipt of the written notice 
described in paragraph (c) of this section to provide the component with 
a statement of any objection to disclosure. A FOIA Officer may extend 
the comment period from seven to ten working days, if a submitter 
requests an extension. The statement from a submitter must identify any 
portions of the information the submitter requests to be withheld under 
FOIA exemption (b)(4), and describe how each qualifies for protection 
under the exemption: That is, why the information is a trade secret, or 
commercial or financial information that is privileged or confidential. 
If a submitter fails to respond to the notice within the time specified, 
the submitter will be considered to have no objection to disclosure of 
the information. Information a submitter provides under this paragraph 
may itself be subject to disclosure under the FOIA.
    (f) Notice of intent to disclose. A component shall consider a 
submitter's objections and specific grounds under the FOIA for 
nondisclosure in deciding whether to disclose confidential commercial 
information. If a component decides to disclose confidential commercial 
information over a submitter's objection, the component shall give the 
submitter written notice via certified mail, return receipt requested, 
or similar means, which shall include:
    (1) A statement of reason(s) why the submitter's objections to 
disclosure were not sustained;
    (2) A description of the confidential commercial information to be 
disclosed; and
    (3) A statement that the component intends to disclose the 
information seven working days, or ten working days if an extension is 
granted, from the date the submitter receives the notice.
    (g) Exceptions to notice requirements. The notice requirements of 
paragraphs (c) and (f) of this section shall not apply if:
    (1) The component determines that the information is exempt and will 
be withheld under a FOIA exemption;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other than 
the FOIA) or by a regulation issued in accordance with Executive Order 
12600; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous, except that, in such a case, 
the component shall provide the submitter written notice of any final 
decision to disclose the information seven working days after the date 
the submitter receives the notice.
    (h) Notice to submitter 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. Where 
notification of a voluminous number of submitters is required, such 
notification may be accomplished by posting or publishing the notice in 
a place reasonably calculated to accomplish notification.
    (i) Corresponding notice to requester. Whenever a component provides 
a submitter with notice and an opportunity to object to disclosure under 
paragraph (c) of this section, the component shall notify the requester 
that the request is being processed under the provisions of this 
regulation and, as a consequence,

[[Page 30]]

there may be a delay in receiving a response. The notice to the 
requester will not include any of the specific information contained in 
the records being requested. Whenever a submitter files a lawsuit 
seeking to prevent the disclosure of confidential commercial 
information, the component shall notify the requester of such action 
and, as a consequence, there may be further delay in receiving a 
response.

[83 FR 39592, Aug. 10, 2018]



Sec.  4.10  Appeals from initial determinations or untimely delays.

    (a)(1) If a request for records to a component other than the Office 
of Inspector General is initially denied in whole or in part, or has not 
been timely determined, or if a requester receives an adverse 
determination regarding any other matter listed under this subpart (as 
described in Sec.  4.7(c)), the requester may file an appeal. Appeals 
can be submitted in writing or electronically, as described in paragraph 
(b)(1) of this section. For requests filed on or after July 1, 2016, the 
appeal must be received by the Office of the General Counsel during 
normal business hours (8:30 a.m. to 5:00 p.m., Eastern Time, Monday 
through Friday) within 90 calendar days of the date of the written 
denial of the adverse determination or, if there has been no 
determination, an appeal may be submitted any time after the due date of 
the request, including the last extension under Sec.  4.6(d), of a 
request due date. Written or electronic appeals arriving after normal 
business hours will be deemed received on the next normal business day. 
If the 90th calendar day falls on a Saturday, Sunday, or a legal public 
holiday, an appeal received by 5:00 p.m., Eastern Time, the next 
business day will be deemed timely. Appeals received after the 90-day 
limit will not be considered.
    (2) If a request for records to the Office of Inspector General is 
initially denied in whole or in part, or has not been timely determined, 
or if a requester receives an adverse determination regarding any other 
matter listed under this subpart (as described in Sec.  4.7(c)), the 
requester may file an appeal. Appeals can be submitted in writing or 
electronically, as described in paragraph (b)(2) of this section. For 
requests submitted on or after July 1, 2016, the appeal must be received 
by the Office of Inspector General, Office of Counsel, during normal 
business hours (8:30 a.m. to 5:00 p.m., Eastern Time, Monday through 
Friday) within 90 calendar days of the date of the written denial of the 
adverse determination or, if there has been no determination, an appeal 
may be submitted any time after the due date, including the last 
extension under Sec.  4.6(d), of the adverse determination. Written or 
electronic appeals arriving after normal business hours will be deemed 
received on the next normal business day. If the 90th calendar day falls 
on a Saturday, Sunday, or a legal public holiday, an appeal received by 
5:00 p.m., Eastern Time, the next business day will be deemed timely. 
Appeals received after the 90-day limit will not be considered.
    (b)(1) Appeals, other than appeals from requests made to the Office 
of Inspector General, shall be decided by the Assistant General Counsel 
for Employment, Litigation, and Information (AGC-ELI). Written appeals 
should be addressed to the Assistant General Counsel for Employment, 
Litigation, and Information, at the U.S. Department of Commerce, Office 
of the General Counsel, Room 5896, 1401 Constitution Avenue NW, 
Washington, DC 20230. For a written appeal, both the letter and the 
appeal envelope should be clearly marked ``Freedom of Information Act 
Appeal.'' Appeals may also be submitted electronically either by email 
to [email protected] or online at the FOIAonline website, http://
foiaonline .regulations.gov, if requesters have a FOIAonline account. In 
all cases, the appeal (written or electronic) should include a copy of 
the original request and initial denial, if any. All appeals should 
include a statement of the reasons why the records requested should be 
made available and why the adverse determination was in error. No 
opportunity for personal appearance, oral argument or hearing on appeal 
is provided. Upon receipt of an appeal, AGC-ELI ordinarily shall send an 
acknowledgement letter to the requester which shall confirm receipt of 
the requester's appeal.

[[Page 31]]

    (2) Appeals of initial and untimely determinations by the Office of 
Inspector General shall be decided by the Counsel to the Inspector 
General, except that appeals of records requests that were initially 
denied by the Counsel to the Inspector General shall be decided by the 
Deputy Inspector General. Written appeals should be addressed to the 
Counsel to the Inspector General, or the Deputy Inspector General if the 
records were initially denied by the Counsel to the Inspector General. 
The address of both is: U.S. Department of Commerce, Office of the 
Inspector General, Office of Counsel, Room 7898C, 1401 Constitution 
Avenue NW, Washington, DC 20230. For a written appeal, both the letter 
and the appeal envelope should be clearly marked ``Freedom of 
Information Act Appeal.'' Appeals may also be submitted electronically 
either by email to [email protected] or online at the FOIAonline website, 
http://foiaonline .regulations.gov, if requesters have a FOIAonline 
account. In all cases, the appeal (written or electronic) should include 
a copy of the original request and initial denial, if any. All appeals 
should include a statement of the reasons why the records requested 
should be made available and why the adverse determination was in error. 
No opportunity for personal appearance, oral argument or hearing on 
appeal is provided. Upon receipt of an appeal, the Counsel to the 
Inspector General, or the Deputy Inspector General if the records were 
initially denied by the Counsel to the Inspector General, ordinarily 
shall send an acknowledgement letter to the requester which shall 
confirm receipt of the requester's appeal.
    (c) Upon receipt of an appeal involving records initially denied on 
the basis of FOIA exemption (b)(1), the records shall be forwarded to 
the Deputy Assistant Secretary for Security (DAS) for a declassification 
review. The DAS may overrule previous classification determinations in 
whole or in part if continued protection in the interest of national 
security is no longer required, or no longer required at the same level. 
The DAS shall advise the AGC-ELI, the General Counsel, Counsel to the 
Inspector General, or Deputy Inspector General, as appropriate, of his 
or her decision.
    (d) If an appeal is granted, the notification letter may include 
documents to be released or the request may be referred back to the 
component for further action consistent with the determination on the 
appeal.
    (e) If no determination on an appeal has been sent to the requester 
within the twenty working day period specified in Sec.  4.6(b) or the 
last extension thereof, the requester is deemed to have exhausted all 
administrative remedies with respect to the request, giving rise to a 
right of judicial review under 5 U.S.C. 552(a)(6)(C). If the requester 
initiates a court action against the Department based on the provision 
in this paragraph, the administrative appeal process may continue.
    (f) The determination on an appeal shall be in writing and, when it 
denies records in whole or in part, the letter to the requester shall 
include:
    (1) A brief explanation of the basis for the denial, including a 
list of the applicable FOIA exemptions and a description of how they 
apply;
    (2) A statement that the decision is final for the Department;
    (3) Notification that dispute resolution services are offered by the 
Office of Government Information Services (OGIS) of the National 
Archives and Records Administration as a non-exclusive alternative to 
litigation, informing the requester that dispute resolution is a 
voluntary process, and if the Department and requester agree to 
participate in the dispute resolution services provided by OGIS, the 
Department will actively engage as a partner to the process in an 
attempt to resolve the dispute.
    (4) Notification that judicial review of the denial is available in 
the district court of the United States in the district in which the 
requester resides, or has his or her principal place of business, or in 
which the agency records are located, or in the District of Columbia; 
and

[[Page 32]]

    (5) The name and title or position of the official responsible for 
denying the appeal.

[66 FR 65632, Dec. 20, 2001, as amended at 69 FR 49784, Aug. 12, 2004; 
79 FR 62561, Oct. 20, 2014; 80 FR 70153, Nov. 13, 2015; 83 FR 39593, 
Aug. 10, 2018]



Sec.  4.11  Fees.

    (a) In general. Components shall charge fees for processing requests 
under the FOIA in accordance with paragraph (c) of this section, except 
where fees are limited under paragraph (d) of this section or when a 
waiver or reduction is granted under paragraph (l) of this section. A 
component shall collect all applicable fees before processing a request 
if a component determines that advance payment is required in accordance 
with paragraphs (i)(2) and (i)(3) of this section. If advance payment of 
fees is not required, a component shall collect all applicable fees 
before sending copies of requested records to a requester. Requesters 
must pay fees by check or money order made payable to the Treasury of 
the United States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, which can include furthering 
those interests through litigation. Components shall determine, whenever 
reasonably possible, the use to which a requester will put the requested 
records. If it appears that the requester will put the records to a 
commercial use, or if a component has reasonable cause to doubt a 
requester's asserted non-commercial use, the component shall provide the 
requester a reasonable opportunity to submit further clarification.
    (2) Direct costs means those expenses a component incurs in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records to respond to a FOIA request. The hourly 
processing fees for calculating direct costs for Department or component 
personnel searching for, duplication, and reviewing records are 
reflected in Table 1. Note that the 16% overhead has already been 
included in the hourly rates identified in Table 1.

                  Table 1--FOIA Hourly Processing Fees
------------------------------------------------------------------------
              Type                        Grade             Hourly rate
------------------------------------------------------------------------
Administrative.................  E-9/GS-8 and below.....             $28
Professional...................  Contractor/O-1 to O-6/W-             56
                                  1 to W-5/GS-9 to GS-15.
Executive......................  O-7 and above and                   128
                                  Senior Executive
                                  Service.
------------------------------------------------------------------------

    (3) Duplication means the making of a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies may take the form of paper, microform, audiovisual materials, or 
electronic records, among others. A component shall honor a requester's 
specified preference of form or format of disclosure if the record is 
readily reproducible with reasonable efforts in the requested form or 
format.
    (4) Educational institution is any school that operates a program of 
scholarly research. A requester in this fee category must show that the 
request is made in connection with his or her role at the educational 
institution. Educational institutions may include a preschool, a public 
or private elementary or secondary school, an institution of 
undergraduate higher education, an institution of graduate higher 
education, an institution of professional education, or an institution 
of vocational education A Department component may seek verification 
from the requester that the request is in furtherance of scholarly 
research and agencies will advise requesters of their placement in this 
category. Verification may be supported by a letter from a teacher, 
instructor, or professor written on the institution's letterhead or from 
an institutional email address and in which the body of the email 
outlines the research to be conducted. Student requests may be supported 
by evidence that the records are

[[Page 33]]

sought for the student's academic research purposes, for example, 
through evidence of a class assignment or a letter from a teacher, 
instructor, or professor. A component's decision to grant a requester 
educational institution status will be made on a case-by-case basis 
based upon the requester's intended use of the material.

    Example 1. A request from a professor or a student of geology at a 
university for records relating to soil erosion, written on letterhead 
of the Department of Geology, would be presumed to be from an 
educational institution.
    Example 2. A request from the same professor or student of geology 
seeking drug information from the Food and Drug Administration in 
furtherance of a murder mystery he is writing would not be presumed to 
be an institutional request, regardless of whether it was written on 
institutional letterhead.
    Example 3. A student who makes a request in furtherance of their 
coursework or other school-sponsored activities and provides a copy of a 
course syllabus or other reasonable documentation to indicate the 
research purpose for the request, would qualify as part of this fee 
category.
    (5) Noncommercial scientific institution means an institution that 
is not operated on a ``commercial'' basis, as that term is 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. To be in this 
category, a requester 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 rather than for a commercial 
use.
    (6) Representative of the news media, or news media requester, means 
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 are television or radio stations broadcasting to the 
public at-large and publishers of periodicals that disseminate ``news'' 
and make their products available through a variety of means to the 
general public including news organizations that disseminate solely on 
the internet. To be in this category, a requester must not be seeking 
the requested records for a commercial use. A request for records that 
supports the news-dissemination function of the requester shall not be 
considered to be for a commercial use. A freelance journalist shall be 
regarded as working for a news-media entity if the journalist can 
demonstrate a solid basis for expecting publication through that entity, 
whether or not the journalist is actually employed by the entity. A 
publication contract would be the clearest proof, but components shall 
also look to the past publication record of a requester in making this 
determination. A component's decision to grant a requester media status 
will be made on a case-by-case basis based upon the requester's intended 
use of the material. The mere fact that a person or entity has been 
classified as news media with respect to one request does not mean they 
will be so considered as news media with respect to any other requests.
    (7) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting it and marking any 
applicable exemptions. Review costs are recoverable even if a record 
ultimately is not disclosed. Review time includes time spent obtaining 
and considering any formal objection to disclosure made by a submitter 
under Sec.  4.9, but does not include time spent resolving general legal 
or policy issues regarding the application of exemptions.
    (8) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes identification of 
information within records and also includes reasonable efforts to 
locate and retrieve information from records maintained in electronic 
form or format. Components shall ensure that searches are done in the 
most efficient and least expensive manner reasonably possible.

[[Page 34]]

    (c) Fees. In responding to FOIA requests, components shall charge 
the fees summarized in chart form in paragraphs (c)(1) and (c)(2) of 
this section and explained in paragraphs (c)(3) through (c)(5) of this 
section, unless a waiver or reduction of fees has been granted under 
paragraph (l) of this section.
    (1) The four categories and chargeable fees are:

------------------------------------------------------------------------
                Category                         Chargeable fees
------------------------------------------------------------------------
(i) Commercial Use Requesters..........  Search, Review, and
                                          Duplication.
(ii) Educational and Non-commercial      Duplication (excluding the cost
 Scientific Institution Requesters.       of the first 100 pages).
(iii) Representatives of the News Media  Duplication (excluding the cost
                                          of the first 100 pages).
(iv) All Other Requesters..............  Search and Duplication
                                          (excluding the cost of the
                                          first 2 hours of search and
                                          100 pages).
------------------------------------------------------------------------

    (2) Uniform fee schedule.

------------------------------------------------------------------------
                Service                                Rate
------------------------------------------------------------------------
(i) Manual search......................  Hourly rate from Table 1 of
                                          employee involved.
(ii) Computerized search...............  Actual direct cost, including
                                          operator time, using the
                                          hourly rate from Table 1, of
                                          the employee involved.
(iii) Review of records................  Hourly rate from Table 1 of
                                          employee involved.
(iv) Duplication of records:
    (A) Paper copy reproduction........  $.08 per page.
    (B) Other reproduction (e.g.,        Actual direct cost, including
     converting paper into an             operator time, using the
     electronic format (e.g.,             hourly rate from Table 1, of
     scanning), computer disk or          the employee involved.
     printout, or other electronically-
     formatted reproduction (e.g.,
     uploading records made available
     to the requester into FOIAonline)).
------------------------------------------------------------------------

    (3) Search. (i) Search fees shall be charged for all requests--other 
than requests made by educational institutions, noncommercial scientific 
institutions, or representatives of the news media--subject to the 
limitations of paragraph (d) of this section. Components shall charge 
for time spent searching even if they do not locate any responsive 
records or if they withhold any records located as entirely exempt from 
disclosure. Search fees shall be the direct costs of conducting the 
search by the involved employees.
    (ii) For computer searches of records, requesters will be charged 
the direct costs of conducting the search, although certain requesters 
(as provided in paragraph (d)(1) of this section) will be charged no 
search fee and certain other requesters (as provided in paragraph (d)(3) 
of this section) are entitled to the cost equivalent of two hours of 
manual search time without charge. These direct costs will include the 
costs of the operator/programmer FOIA hourly processing rate 
apportionable to the search and any other tangible direct costs 
associated with a computer search.
    (4) Duplication. Duplication fees shall be charged to all 
requesters, subject to the limitations 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 producible by the 
component in the form or format requested. For either a photocopy or a 
computer-generated printout of a record (no more than one copy of which 
need be supplied), the fee shall be $.08 per page. Requesters may reduce 
costs by specifying double-sided duplication, except where this is 
technically not feasible. For electronic forms of duplication, other 
than a computer-generated printout, components will charge the direct 
costs of that duplication. Such direct costs will include the costs of 
the requested electronic medium on which the copy is to be made and the 
actual operator time and computer resource usage required to produce the 
copy, to the extent they can be determined.

[[Page 35]]

    (5) Review. Review fees shall be charged to requesters who make a 
commercial use request. Review fees shall be charged only for the 
initial record review, in which a component determines whether an 
exemption applies to a particular record at the initial request level. 
No charge shall be imposed for review at the administrative appeal level 
for an exemption already applied. However, records withheld under an 
exemption that is subsequently determined not to apply may be reviewed 
again to determine whether any other exemption not previously considered 
applies, and the costs of that review are chargeable. Review fees shall 
be the direct costs of conducting the review by the involved employees.
    (d) Limitations on charging fees. (1) No search fees shall be 
charged for requests from educational institutions, non-commercial 
scientific institutions, or representatives of the news media.
    (2) No search fee or review fee shall be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (3) Except for requesters seeking records for a commercial use, 
components shall provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent); and
    (ii) The first two hours of search (or the cost equivalent).
    (4) If a total fee calculated under paragraph (c) of this section is 
$20.00 or less for any request, no fee shall be charged. If such total 
fee is more than $20.00, the full amount of such fee shall be charged.
    (5) The provisions of paragraphs (d) (3) and (4) of this section 
work together. This means that for requesters other than those seeking 
records for a commercial use, no fee shall be charged unless the cost of 
search in excess of two hours plus the cost of duplication in excess of 
100 pages totals more than $20.00.
    (6) No search fees shall be charged to a FOIA requester when a 
component does not comply with the statutory time limits at 5 U.S.C. 
552(a)(6) in which to respond to a request (this section only applies to 
FOIA requests, not appeals), except as described in paragraph (d)(8) of 
this section.
    (7) No duplication fees shall be charged to requesters in the fee 
category of a representative of the news media or an educational or 
noncommercial scientific institution when a component does not comply 
with the statutory time limits at 5 U.S.C. 552(a)(6) in which to respond 
to a request, except as described in paragraph (d)(8) of this section.
    (8)(i) When a Department component determines that unusual 
circumstances, as those terms are defined in Sec.  4.6(d)(2), apply to 
the processing of the request, and provides timely written notice to the 
requester in accordance with the FOIA, then the Department component is 
granted an additional ten days until the fee restrictions in paragraphs 
(d)(6) and (7) of this section apply.
    (ii) The fee restrictions in paragraphs (d)(6) and (7) of this 
section do not apply:
    (A) When a Department component determines that unusual 
circumstances, as those terms are defined in Sec.  4.6(d)(2), apply to 
the processing of the request;
    (B) More than 5,000 pages are necessary to respond to the request;
    (C) The Department component provides timely written notice to the 
requester in accordance with the FOIA; and
    (D) The Department component has discussed with the requester (or 
made three good faith attempts to do so) on how the requester can 
effectively limit the scope of the request.
    (e) Notice of anticipated fees in excess of $20.00. (1) When a 
component determines or estimates that the fees for processing a FOIA 
request will total more than $20.00 or total more than the amount the 
requester indicated a willingness to pay, the component shall notify the 
requester of the actual or estimated amount of the fees, unless the 
requester has stated in writing 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 that the estimated fee 
may be only a portion of the total fee. A notice under this paragraph 
shall offer the requester an opportunity to discuss the matter with 
Departmental personnel in order to

[[Page 36]]

modify the request in an effort to meet the requester's needs at a lower 
cost. The requester may also contact the Department FOIA Public Liaison, 
the relevant component's FOIA Public Liaison or FOIA contact, or OGIS 
for further assistance, or file an administrative appeal of the fee 
estimate amount in accordance with Sec.  4.10.
    (2) When a requester has been notified that the actual or estimated 
fees will amount to more than $20.00, or amount to more than the amount 
the requester indicated a willingness to pay, the component will do no 
further work on the request until the requester agrees in writing to pay 
the actual or estimated total fee. The component will toll the 
processing of the request when it notifies the requester of the actual 
or estimated amount of fees and this time will be excluded from the 
twenty (20) working day time limit (as specified in Sec.  4.6(b)). The 
requester's agreement to pay fees must be made in writing, must 
designate an exact dollar amount the requester is willing to pay, and 
must be received within 30 calendar days from the date of the 
notification of the fee estimate. If the requester fails to submit an 
agreement to pay the anticipated fees within 30 calendar days from the 
date of the component's fee notice, the component will presume that the 
requester is no longer interested and notify the requester that the 
request will be closed.
    (f) Charges for other services. Apart from the other provisions of 
this section, if a component decides, as a matter of administrative 
discretion, to comply with a request for special services, the component 
shall charge the direct cost of providing them. Such services could 
include certifying that records are true copies or sending records by 
other than ordinary mail.
    (g) Charging interest. Components shall charge interest on any 
unpaid bill starting on the 31st calendar day following the date of 
billing the requester. Interest charges shall be assessed at the rate 
provided in 31 U.S.C. 3717 and accrue from the date of the billing until 
the component receives payment. Components shall take all steps 
authorized by the Debt Collection Act of 1982, as amended by the Debt 
Collection Improvement Act of 1996, to effect payment, including offset, 
disclosure to consumer reporting agencies, and use of collection 
agencies.
    (h) Aggregating requests. If a component reasonably believes that a 
requester or a group of requesters acting together is attempting to 
divide a request into a series of requests for the purpose of avoiding 
fees, the component may aggregate those requests and charge accordingly. 
Among the factors a component shall consider in deciding whether to 
aggregate are the closeness in time between the component's receipt of 
the requests, and the relatedness of the matters about which the 
requests are made. A component may generally presume that multiple 
requests that involve related matters made by the same requester or a 
closely related group of requesters within a 30 calendar day period have 
been made in order to avoid fees. If requests are separated by a longer 
period, a component shall aggregate them only if a solid basis exists 
for determining that aggregation is warranted under all the 
circumstances involved. Multiple requests involving unrelated matters 
shall not be aggregated.
    (i) Advance payments. (1) For requests other than those described in 
paragraphs (i)(2) and (3) of this section, a component shall not require 
the requester to make an advance payment (i.e., a payment made before a 
component begins to process or continues work on a request). Payment 
owed for work already completed (i.e., a pre-payment before copies of 
responsive records are sent to a requester) is not an advance payment.
    (2) When a component determines or estimates that the total fee for 
processing a FOIA request will be $250.00 or more, the component shall 
notify the requester of the actual or estimated fee and require the 
requester to make an advance payment of the entire anticipated fee 
before beginning to process the request. A notice under this paragraph 
shall offer the requester an opportunity to discuss the matter with 
Departmental personnel in order to modify the request in an effort to 
meet the requester's needs at a lower cost.
    (3) When a requester has previously failed to pay a properly charged 
FOIA fee to any component or other Federal

[[Page 37]]

agency within 30 calendar days of the date of billing, the component 
shall notify the requester that he or she is required to pay the full 
amount due, plus any applicable interest, and to 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 from 
that requester. A notice under this paragraph shall offer the requester 
an opportunity to discuss the matter with Departmental personnel in 
order to modify the request in an effort to meet the requester's needs 
at a lower cost.
    (4) When the component requires advance payment or payment due under 
paragraphs (i)(2) and (i)(3) of this section, the component will not 
further process the request until the required payment is made. The 
component will toll the processing of the request when it notifies the 
requester of the advanced payment due and this time will be excluded 
from the twenty (20) working day time limit (as specified in Sec.  
4.6(b)). If the requester does not pay the advance payment within 30 
calendar days from the date of the component's fee notice, the component 
will presume that the requester is no longer interested and notify the 
requester that the request will be closed.
    (j) Tolling. When necessary for the component to clarify issues 
regarding fee assessment with the FOIA requester, the time limit for 
responding to the FOIA request is tolled until the component resolves 
such issues with the requester. The tolling period is from the day a 
requester was contacted through the working day (i.e., excluding 
Saturdays, Sundays, and legal public holidays) on which a response was 
received by the responsible component.
    (k) Other statutes specifically providing for fees. The fee schedule 
of this section does not apply to fees charged under any statute (except 
for the FOIA) that specifically requires an agency to set and collect 
fees for particular types of records. If records responsive to requests 
are maintained for distribution by agencies operating such statutorily 
based fee schedule programs, components shall inform requesters how to 
obtain records from those sources. Provision of such records is not 
handled under the FOIA.
    (l) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request will be furnished without charge, or at a charge 
reduced below that established under paragraph (c) of this section, if 
the requester asks for such a waiver in writing and the responsible 
component determines, after consideration of information provided by the 
requester, that the requester has demonstrated that:
    (i) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the Government; and
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) To determine whether the first fee waiver requirement is met, 
components shall consider the following factors:
    (i) The subject of the request: whether the subject of the requested 
records concerns the operations or activities of the Government. The 
subject of the requested records must concern identifiable operations or 
activities of the Federal Government, with a connection that is direct 
and clear, not remote or attenuated.
    (ii) The informative value of the information to be disclosed: 
whether the disclosure is ``likely to contribute'' to an understanding 
of Government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about Government 
operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. The 
disclosure of information that already is in the public domain, in 
either a duplicative or a substantially identical form, would not be 
likely to contribute to such understanding.
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested information will contribute to 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

[[Page 38]]

subject area and ability and intention to effectively convey information 
to the public shall be considered. It shall be presumed that a 
representative of the news media satisfies this consideration.
    (iv) The significance of the contribution to public understanding: 
whether the disclosure is likely to contribute ``significantly'' to 
public understanding of Government operations or activities. The 
public's understanding of the subject in question prior to the 
disclosure must be significantly enhanced by the disclosure.
    (3) To determine whether the second fee waiver requirement (i.e., 
that disclosure is not primarily in the commercial interest of the 
requester) is met, components shall consider the following factors:
    (i) The existence and magnitude of a commercial interest: whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. Components shall consider any commercial interest 
of the requester (with reference to the definition of ``commercial use 
request'' in paragraph (b)(1) of this section), or of any person on 
whose behalf the requester may be acting, that would be furthered by the 
requested disclosure. Requesters shall be given an opportunity to 
provide explanatory information regarding this consideration.
    (ii) The primary interest in disclosure: Whether any identified 
commercial interest of the requester is sufficiently great, in 
comparison with the public interest in disclosure, that disclosure is 
``primarily in the commercial interest of the requester.'' A fee waiver 
or reduction is justified if the public interest standard (paragraph 
(l)(1)(i) of this section) is satisfied and the public interest is 
greater than any identified commercial interest in disclosure. 
Components ordinarily shall presume that if a news media requester has 
satisfied the public interest standard, the public interest is the 
primary interest served by disclosure to that requester. Disclosure to 
data brokers or others who merely compile and market Government 
information for direct economic return shall not be presumed to 
primarily serve the public interest.
    (4) If only some of the records to be released satisfy the 
requirements for a fee waiver, a waiver shall be granted for those 
records.
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (l)(2) and (3) of this section, insofar as 
they apply to each request.

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62562, Oct. 20, 2014; 
83 FR 39594, Aug. 10, 2018]



                          Subpart B_Privacy Act



Sec.  4.21  Purpose and scope.

    (a) This subpart establishes policies and procedures for 
implementing the Privacy Act of 1974, as amended (5 U.S.C. 552a). The 
main objectives of the subpart are to facilitate full exercise of rights 
conferred on individuals under the Act, and to protect the privacy of 
individuals on whom the Department maintains records in systems of 
records under the Act.
    (b) The Department shall act promptly and in accordance with the Act 
upon receipt of any inquiry, request or appeal from a citizen of the 
United States or an alien lawfully admitted for permanent residence into 
the United States, regardless of the individual's age. Further, the 
Department shall maintain only such information on individuals as is 
relevant and necessary to the performance of its lawful functions; 
maintain that information with such accuracy, relevancy, timeliness, and 
completeness as is reasonably necessary to assure fairness in 
determinations made by the Department about the individual; obtain 
information from the individual to the extent practicable; and take 
every reasonable step to protect that information from unwarranted 
disclosure. The Department shall maintain no record describing how an 
individual exercises rights guaranteed by the First Amendment unless 
expressly authorized to do so by statute or by the individual about whom 
the record is maintained, or unless to do so is pertinent to and within 
the scope of an authorized law enforcement activity. An individual's 
name and address shall not be sold or rented by the Department unless 
such action is specifically authorized by law.

[[Page 39]]

    (c) This subpart applies to all components of the Department. 
Components may promulgate supplementary orders and rules not 
inconsistent with this subpart.
    (d) The Assistant Secretary for Administration is delegated 
responsibility for maintaining this subpart, for issuing such orders and 
directives internal to the Department as are necessary for full 
compliance with the Act, and for publishing all required notices 
concerning systems of records.
    (e) Matters outside the scope of this subpart include:
    (1) Requests for records that do not pertain to the requester, or to 
the individual about whom the request is made if the requester is the 
parent or guardian of the individual;
    (2) Requests involving information pertaining to an individual that 
is in a record or file but not within the scope of a system of records 
notice published in the Federal Register;
    (3) Requests to correct a record if a grievance procedure is 
available to the individual either by regulation or through a provision 
in a collective bargaining agreement with the Department or a component 
of the Department, and the individual has initiated, or expressed in 
writing the intention of initiating, such a grievance procedure; and
    (4) Requests for employee-employer services and counseling that were 
routinely granted prior to enactment of the Act, including, but not 
limited to, test calculations of retirement benefits, explanations of 
health and life insurance programs, and explanations of tax withholding 
options.
    (f) Any request for records that pertains to the requester, or to 
the individual about whom the request is made if the requester is the 
parent or guardian of the individual, shall be processed under the Act 
and this subpart and under the Freedom of Information Act and the 
Department's implementing regulations at subpart A of this part, 
regardless whether the Act or the Freedom of Information Act is 
mentioned in the request.



Sec.  4.22  Definitions.

    (a) All terms used in this subpart which are defined in 5 U.S.C. 
552a shall have the same meaning herein.
    (b) As used in this subpart:
    (1) Act means the ``Privacy Act of 1974, as amended (5 U.S.C. 
552a)''.
    (2) Appeal means a request by an individual to review and reverse an 
initial denial of a request from that individual for correction or 
amendment.
    (3) Component means any office, division, bureau or other unit of 
the Department listed in Appendix A to this part (except that a regional 
office of a larger office or other unit does not constitute a separate 
component).
    (4) Department means the Department of Commerce.
    (5) Inquiry means either a request for general information regarding 
the Act and this subpart or a request from an individual (or that 
individual's parent or guardian) that the Department determine whether 
it has any record in a system of records that pertains to that 
individual.
    (6) Person means any human being and also shall include, but is not 
limited to, corporations, associations, partnerships, trustees, 
receivers, personal representatives, and public or private 
organizations.
    (7) Privacy Act Officer means those officials, identified in 
Appendix B to this part, who are authorized to receive and act upon 
inquiries, requests for access, and requests for correction or 
amendment.
    (8) Request for access means a request from an individual or an 
individual's parent or guardian to see a record pertaining to that 
individual in a particular system of records.
    (9) Request for correction or amendment means a request from an 
individual or an individual's parent or guardian that the Department 
change (by correction, amendment, addition or deletion) a particular 
record pertaining to that individual in a system of records.
    (10) Un-redacted SSN Mailed Documents Listing (USMDL) means the 
Department approved list, as posted at www.commerce.gov/privacy, 
designating

[[Page 40]]

those documents for which the inclusion of SSN is determined to be 
necessary to fulfill a compelling Department business need when the 
documents are requested by individuals outside the Department or other 
Federal agencies, as determined jointly by the Senior Agency Official 
for Privacy and the Departmental Privacy Act Officer.

[66 FR 65632, Dec. 20, 2001, as amended at 86 FR 21935, Apr. 26, 2021]



Sec.  4.23  Procedures for making inquiries.

    (a) Any individual, regardless of age, who is a citizen of the 
United States or an alien lawfully admitted for permanent residence into 
the United States may submit an inquiry to the Department. The inquiry 
should be made either in person or by mail addressed to the appropriate 
component identified in Appendix A to this part or to the official 
identified in the notification procedures paragraph of the systems of 
records notice published in the Federal Register. \2\ If an individual 
believes the Department maintains a record pertaining to him or her but 
does not know which system of records might contain such a record and/or 
which component of the Department maintains the system of records, 
assistance in person or by mail will be provided at the first address 
listed in Appendix A to this part.
---------------------------------------------------------------------------

    \2\ The United States Patent and Trademark Office (USPTO), which is 
established as an agency of the United States within the Department of 
Commerce, operates under its own PA regulations at 37 CFR part 102, 
subpart B. Accordingly, requests concerning records maintained by the 
USPTO should be sent directly to the USPTO.
---------------------------------------------------------------------------

    (b) Inquiries submitted by mail should include the words ``PRIVACY 
ACT INQUIRY'' in capital letters at the top of the letter and on the 
face of the envelope. If the inquiry is for general information 
regarding the Act and this subpart, no particular information is 
required. The Department reserves the right to require compliance with 
the identification procedures appearing at Sec.  4.24(d). If the inquiry 
is a request that the Department determine whether it has a record 
pertaining to the individual, the following information should be 
submitted:
    (1) Name of individual whose record is sought;
    (2) Statement that individual whose record is sought is either a 
U.S. citizen or an alien lawfully admitted for permanent residence;
    (3) Identifying data that will help locate the record (for example, 
maiden name, occupational license number, period or place of employment, 
etc.);
    (4) Record sought, by description and by record system name, if 
known;
    (5) Action requested (that is, sending information on how to 
exercise rights under the Act; determining whether requested record 
exists; gaining access to requested record; or obtaining copy of 
requested record);
    (6) Copy of court guardianship order or minor's birth certificate, 
as provided in Sec.  4.24(d)(3), but only if requester is guardian or 
parent of individual whose record is sought;
    (7) Requester's name (printed), signature, address, and (optional) 
telephone number;
    (8) Date; and,
    (9) Certification of request by notary or other official, but only 
if
    (i) Request is for notification that requested record exists, for 
access to requested record, or for copy of requested record;
    (ii) Record is not available to any person under 5 U.S.C. 552; and
    (iii) Requester does not appear before an employee of the Department 
for verification of identity.
    (c) Any inquiry which is not addressed as specified in paragraph (a) 
of this section or which is not marked as specified in paragraph (b) of 
this section will be so addressed and marked by Department personnel and 
forwarded immediately to the responsible Privacy Act Officer. An inquiry 
which is not properly addressed by the individual will not be deemed to 
have been ``received'' for purposes of measuring the time period for 
response until actual receipt by the Privacy Act Officer. In each 
instance when an inquiry so forwarded is received, the Privacy Act 
Officer shall notify the individual that his or her inquiry was 
improperly addressed and the date the inquiry was received at the proper 
address.
    (d)(1) Each inquiry received shall be acted upon promptly by the 
responsible

[[Page 41]]

Privacy Act Officer. Every effort will be made to respond within ten 
working days (i.e., excluding Saturdays, Sundays and legal public 
holidays) of the date of receipt at the proper address. If a response 
cannot be made within ten working days, the Privacy Act Officer shall 
send an acknowledgment during that period providing information on the 
status of the inquiry and asking for such further information as may be 
necessary to process the inquiry. The first correspondence sent by the 
Privacy Act Officer to the requester shall contain the Department's 
control number assigned to the request, as well as a statement that the 
requester should use that number in all future contacts with the 
Department. The Department shall use that control number in all 
subsequent correspondence.
    (2) If the Privacy Act Officer fails to send an acknowledgment 
within ten working days, as provided in paragraph (d)(1) of this 
section, the requester may ask the Assistant General Counsel for 
Litigation, Employment, and Oversight to take corrective action. No 
failure of a Privacy Act Officer to send an acknowledgment shall confer 
administrative finality for purposes of judicial review.
    (e) An individual shall not be required to state a reason for or 
otherwise justify his or her inquiry.
    (f) Special note should be taken that certain agencies are 
responsible for publishing notices of systems of records having 
Government-wide application to other agencies, including the Department. 
The agencies known to be publishing these general notices and the types 
of records covered therein appear in Appendix C to this part. These 
general notices do not identify the Privacy Act Officers in the 
Department to whom inquiries should be presented or mailed. The 
provisions of this section, and particularly paragraph (a) of this 
section, should be followed in making inquiries with respect to such 
records. Such records in the Department are subject to the provisions of 
this part to the extent indicated in Appendix C to this part. The 
exemptions, if any, determined by the agency publishing a general notice 
shall be invoked and applied by the Department after consultation, as 
necessary, with that other agency.



Sec.  4.24  Procedures for making requests for records.

    (a) Any individual, regardless of age, who is a citizen of the 
United States or an alien lawfully admitted for permanent residence into 
the United States may submit a request to the Department for access to 
records. The request should be made either in person or by mail 
addressed to the appropriate office listed in Appendix A to this part.
    (b) Requests submitted by mail should include the words ``PRIVACY 
ACT REQUEST'' in capital letters at the top of the letter and on the 
face of the envelope. Any request which is not addressed as specified in 
paragraph (a) of this section or which is not marked as specified in 
this paragraph will be so addressed and marked by Department personnel 
and forwarded immediately to the responsible Privacy Act Officer. A 
request which is not properly addressed by the individual will not be 
deemed to have been ``received'' for purposes of measuring time periods 
for response until actual receipt by the Privacy Act Officer. In each 
instance when a request so forwarded is received, the Privacy Act 
Officer shall notify the individual that his or her request was 
improperly addressed and the date the request was received at the proper 
address.
    (c) If the request follows an inquiry under Sec.  4.23 in connection 
with which the individual's identity was established by the Department, 
the individual need only indicate the record to which access is sought, 
provide the Department control number assigned to the request, and sign 
and date the request. If the request is not preceded by an inquiry under 
Sec.  4.23, the procedures of this section should be followed.
    (d) The requirements for identification of individuals seeking 
access to records are:
    (1) In person. Each individual making a request in person shall be 
required to present satisfactory proof of identity. The means of proof, 
in the order of preference and priority, are:
    (i) A document bearing the individual's photograph (for example, 
driver's

[[Page 42]]

license, passport or military or civilian identification card);
    (ii) A document, preferably issued for participation in a Federally-
sponsored program, bearing the individual's signature (for example, 
unemployment insurance book, employer's identification card, national 
credit card, and professional, craft or union membership card); and,
    (iii) A document bearing neither the photograph nor the signature of 
the individual, preferably issued for participation in a Federally-
sponsored program (for example, Medicaid card). If the individual can 
provide no suitable documentation of identity, the Department will 
require a signed statement asserting the individual's identity and 
stipulating that the individual understands the penalty provision of 5 
U.S.C. 552a(i)(3) recited in Sec.  4.32(a). In order to avoid any 
unwarranted disclosure of an individual's records, the Department 
reserves the right to determine the adequacy of proof of identity 
offered by any individual, particularly if the request involves a 
sensitive record.
    (2) Not in person. If the individual making a request does not 
appear in person before a Privacy Act Officer or other employee 
authorized to determine identity, then identity must be determined by:
    (i) A certification of a notary public or equivalent officer 
empowered to administer oaths must accompany the request under the 
circumstances prescribed in Sec.  4.23(b)(9). The certification in or 
attached to the letter must be substantially in accordance with the 
following text:

    City of ____ County of ____. (Name of individual), who affixed (his) 
(her) signature below in my presence, came before me, a (title), in and 
for the aforesaid County and State, this __ day of __, 20_, and 
established (his) (her) identity to my satisfaction. My commission 
expires ____.
    Signature: ______.; or

    (ii) Statement of identity made under 28 U.S.C. 1746, a law that 
permits statements to be made under penalty of perjury as a substitute 
for notarization.
    (3) Parents of minors and legal guardians. An individual acting as 
the parent of a minor or the legal guardian of the individual to whom a 
record pertains shall establish his or her personal identity in the same 
manner prescribed in either paragraph (d)(1) or (d)(2) of this section. 
In addition, such other individual shall establish his or her identity 
in the representative capacity of parent or legal guardian. In the case 
of the parent of a minor, the proof of identity shall be a certified or 
authenticated copy of the minor's birth certificate. In the case of a 
legal guardian of an individual who has been declared incompetent due to 
physical or mental incapacity or age by a court of competent 
jurisdiction, the proof of identity shall be a certified or 
authenticated copy of the court's order. For purposes of the Act, a 
parent or legal guardian may represent only a living individual, not a 
decedent. A parent or legal guardian may be accompanied during personal 
access to a record by another individual, provided the provisions of 
Sec.  4.25(f) are satisfied.
    (e) If the provisions of this subpart are alleged to impede an 
individual in exercising his or her right to access, the Department will 
consider, from an individual making a request, alternative suggestions 
regarding proof of identity and access to records.
    (f) An individual shall not be required to state a reason for or 
otherwise justify his or her request for access to a record.

[66 FR 65632, Dec. 20, 2001, as amended at 73 FR 10381, Feb. 27, 2008]



Sec.  4.25  Disclosure of requested records to individuals.

    (a)(1) The responsible Privacy Act Officer shall act promptly upon 
each request. Every effort will be made to respond within ten working 
days (i.e., excluding Saturdays, Sundays and legal public holidays) of 
the date of receipt. If a response cannot be made within ten working 
days due to unusual circumstances, the Privacy Act Officer shall send an 
acknowledgment during that period providing information on the status of 
the request and asking for any further information that may be necessary 
to process the request. ``Unusual circumstances'' shall include 
circumstances in which:
    (i) A search for and collection of requested records from inactive 
storage,

[[Page 43]]

field facilities or other establishments is required;
    (ii) A voluminous amount of data is involved;
    (iii) Information on other individuals must be separated or expunged 
from the particular record; or
    (iv) Consultations with other agencies having a substantial interest 
in the determination of the request are necessary.
    (2) If the Privacy Act Officer fails to send an acknowledgment 
within ten working days, as provided in paragraph (a)(1) of this 
section, the requester may ask the Assistant General Counsel for 
Litigation, Employment, and Oversight to take corrective action. No 
failure of a Privacy Act Officer to send an acknowledgment shall confer 
administrative finality for purposes of judicial review.
    (3) Inclusion of SSNs on responsive documents.
    (i) The Department shall redact SSNs from responsive documents 
provided to requesters where feasible. Where full redaction is not 
feasible, partial redaction to create a truncated SSN shall be preferred 
to no redaction. The following conditions must be met for the inclusion 
of an unredacted (full) SSN or partially redacted (truncated) SSN on a 
responsive document:
    (ii) The inclusion of the full SSN or truncated SSN of an individual 
must be required or authorized by law,
    (iii) The inclusion of the full SSN or truncated SSN of an 
individual must be determined by the Senior Agency Official for Privacy 
and Departmental Privacy Act Officer to be necessary to fulfill a 
compelling Department business need; and
    (iv) The full SSN of an individual may be included only on documents 
listed on the USMDL.
    (4) The following requirements apply when the Department mails or 
delivers responsive documents containing SSNs or truncated SSNs:
    (i) The full SSN of an individual may be included only on documents 
listed on the USMDL.
    (ii) For documents that are listed on the USMDL and that include the 
full SSN of an individual, the signature of the recipient is required 
upon delivery.
    (iii) For documents that include the truncated form of the SSN of an 
individual, the signature of the recipient is required upon delivery.
    (iv) The full SSN, the truncated SSN, any part of the SSN of an 
individual must not be visible from the outside of the envelope or 
package.
    (b) Grant of access: (1) Notification. An individual shall be 
granted access to a record pertaining to him or her, unless the 
provisions of paragraph (g)(1) of this section apply. The Privacy Act 
Officer shall notify the individual of a determination to grant access, 
and provide the following information:
    (i) The methods of access, as set forth in paragraph (b)(2) of this 
section;
    (ii) The place at which the record may be inspected;
    (iii) The earliest date on which the record may be inspected and the 
period of time that the records will remain available for inspection. In 
no event shall the earliest date be later than thirty calendar days from 
the date of notification;
    (iv) The estimated date by which a copy of the record will be mailed 
and the fee estimate pursuant to Sec.  4.31. In no event shall the 
estimated date be later than thirty calendar days from the date of 
notification;
    (v) The fact that the individual, if he or she wishes, may be 
accompanied by another individual during personal access, subject to the 
procedures set forth in paragraph (f) of this section; and,
    (vi) Any additional prerequisites for granting access to a specific 
record.
    (2) Methods of access. The following methods of access to records by 
an individual may be available depending on the circumstances of a given 
situation:
    (i) Inspection in person may be had in the office specified by the 
Privacy Act Officer granting access, during the hours indicated in 
Appendix A to this part;
    (ii) Transfer of records to a Federal facility more convenient to 
the individual may be arranged, but only if the Privacy Act Officer 
determines that a suitable facility is available, that the individual's 
access can be properly supervised at that facility, and that

[[Page 44]]

transmittal of the records to that facility will not unduly interfere 
with operations of the Department or involve unreasonable costs, in 
terms of both money and manpower; and,
    (iii) Copies of documents may be mailed at the request of the 
individual and may be subject to payment of the fees prescribed in 
Sec. Sec.  4.25(a)(3) and 4.31. In the event that the Department, at its 
own initiative, elects to provide a copy by mail, no fee will be charged 
to the individual.
    (iv) Copies of documents listed on the USMDL that include full SSNs 
and that are requested by an individual are subject to payment of the 
fees prescribed in Sec.  4.31.
    (v) Documents containing SSNs or truncated SSNs that are required to 
be returned by the individual to the Department will be mailed or 
delivered along with a prepaid mail or delivery service envelope at the 
expense of the Department.
    (c) Access to medical records is governed by the provisions of Sec.  
4.26.
    (d) The Department shall supply such other information and 
assistance at the time of access as to make the record intelligible to 
the individual.
    (e) The Department reserves the right to limit access to copies and 
abstracts of original records, rather than the original records. This 
election would be appropriate, for example, when the record is in an 
automated data medium such as tape or disc, when the record contains 
information on other individuals, and when deletion of information is 
permissible under exemptions (for example, 5 U.S.C. 552a(k)(2)). In no 
event shall original records of the Department be made available to the 
individual except under the immediate supervision of the Privacy Act 
Officer or his or her designee.
    (f) Any individual who requests access to a record pertaining to 
that individual may be accompanied by another individual of his or her 
choice. ``Accompanied'' includes discussing the record in the presence 
of the other individual. The individual to whom the record pertains 
shall authorize the presence of the other individual in writing. The 
authorization shall include the name of the other individual, a specific 
description of the record to which access is sought, the Department 
control number assigned to the request, the date, and the signature of 
the individual to whom the record pertains. The other individual shall 
sign the authorization in the presence of the Privacy Act Officer. An 
individual shall not be required to state a reason or otherwise justify 
his or her decision to be accompanied by another individual during 
personal access to a record.
    (g) Initial denial of access: (1) Grounds. Access by an individual 
to a record that pertains to that individual will be denied only upon a 
determination by the Privacy Act Officer that:
    (i) The record is exempt under Sec.  4.33 or 4.34, or exempt by 
determination of another agency publishing notice of the system of 
records, as described in Sec.  4.23(f);
    (ii) The record is information compiled in reasonable anticipation 
of a civil action or proceeding;
    (iii) The provisions of Sec.  4.26 pertaining to medical records 
have been invoked; or
    (iv) The individual unreasonably has failed to comply with the 
procedural requirements of this part.
    (2) Notification. The Privacy Act Officer shall give notice of 
denial of access to records to the individual in writing, and the notice 
shall include the following information:
    (i) The Privacy Act Officer's name and title or position;
    (ii) The date of the denial;
    (iii) The reasons for the denial, including citation to the 
appropriate section of the Act and this part;
    (iv) The individual's opportunities, if any, for further 
administrative consideration, including the identity and address of the 
responsible official. If no further administrative consideration within 
the Department is available, the notice shall state that the denial is 
administratively final; and,
    (v) If stated to be administratively final within the Department, 
the individual's right to judicial review provided under 5 
U.S.C.552a(g)(1), as limited by 5 U.S.C. 552a(g)(5).
    (3) Administrative review. If a Privacy Act Officer issues an 
initial denial of a request, the individual's opportunities

[[Page 45]]

for further consideration shall be as follows:
    (i) As to denial under paragraph (g)(1)(i) of this section, two 
opportunities for further consideration are available in the 
alternative:
    (A) If the individual contests the application of an exemption to 
the records, the review procedures in Sec.  4.25(g)(3)(ii) shall apply; 
or,
    (B) If the individual challenges the validity of the exemption 
itself, the individual must file a petition for the issuance, amendment, 
or repeal of a rule under 5 U.S.C. 553(e). If the exemption was 
determined by the Department, such petition shall be filed with the 
Assistant Secretary for Administration. If the exemption was determined 
by another agency (as described in Sec.  4.23(f)), the Department will 
provide the individual with the name and address of the other agency and 
any relief sought by the individual shall be that provided by the 
regulations of the other agency. Within the Department, no such denial 
is administratively final until such a petition has been filed by the 
individual and disposed of on the merits by the Assistant Secretary for 
Administration.
    (ii) As to denial under paragraphs (g)(1)(ii) of this section, 
(g)(1)(iv) of this section or (to the limited extent provided in 
paragraph (g)(3)(i)(A) of this section) paragraph (g)(1)(i) of this 
section, the individual may file for review with the Assistant General 
Counsel for Litigation, Employment, and Oversight, as indicated in the 
Privacy Act Officer's initial denial notification. The individual and 
the Department shall follow the procedures in Sec.  4.28 to the maximum 
extent practicable.
    (iii) As to denial under paragraph (g)(1)(iii) of this section, no 
further administrative consideration within the Department is available 
because the denial is not administratively final until expiration of the 
time period indicated in Sec.  4.26(a).
    (h) If a request is partially granted and partially denied, the 
Privacy Act Officer shall follow the appropriate procedures of this 
section as to the records within the grant and the records within the 
denial.

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62564, Oct. 20, 2014; 
86 FR 21935, Apr. 26, 2021]



Sec.  4.26  Special procedures: Medical records.

    When a request for access involves medical or psychological records, 
the records will be reviewed by the Department's medical officer for a 
determination on whether disclosure would be harmful to the individual 
to whom they relate. If it is determined that disclosure would be 
harmful, the Department may refuse to disclose the records directly to 
the requester but shall transmit them to a doctor authorized in writing 
by the individual to whom the records relate to receive the documents. 
If an individual refuses to provide written authorization to release his 
or her medical records to a doctor, barring any applicable exemption, 
the Department shall give the individual access to his or her records by 
means of a copy, provided without cost to the requester, sent registered 
mail, return receipt requested.

[79 FR 62564, Oct. 20, 2014]



Sec.  4.27  Procedures for making requests for correction or amendment.

    (a) Any individual, regardless of age, who is a citizen of the 
United States or an alien lawfully admitted for permanent residence into 
the United States may submit a request for correction or amendment to 
the Department. The request should be made either in person or by mail 
addressed to the Privacy Act Officer who processed the individual's 
request for access to the record, and to whom is delegated authority to 
make initial determinations on requests for correction or amendment. The 
offices of Privacy Act Officers are open to the public between the hours 
of 9 a.m. and 4 p.m. Monday through Friday (excluding Saturdays, 
Sundays, and legal public holidays).
    (b) Requests submitted by mail should include the words ``PRIVACY 
ACT REQUEST'' in capital letters at the top of the letter and on the 
face of the envelope. Any request that is not addressed as specified in 
paragraph (a) of this section or that is not marked as

[[Page 46]]

specified in this paragraph will be so addressed and marked by 
Department personnel and forwarded immediately to the responsible 
Privacy Act Officer. A request that is not properly addressed by the 
individual will not be deemed to have been ``received'' for purposes of 
measuring the time period for response until actual receipt by the 
Privacy Act Officer. In each instance when a request so forwarded is 
received, the Privacy Act Officer shall notify the individual that his 
or her request was improperly addressed and the date the request was 
received at the proper address.
    (c) Since the request, in all cases, will follow a request for 
access under Sec.  4.25, the individual's identity will be established 
by his or her signature on the request and use of the Department control 
number assigned to the request.
    (d) A request for correction or amendment should include the 
following:
    (1) Specific identification of the record sought to be corrected or 
amended (for example, description, title, date, paragraph, sentence, 
line and words);
    (2) The specific wording to be deleted, if any;
    (3) The specific wording to be inserted or added, if any, and the 
exact place at which it is to be inserted or added; and,
    (4) A statement of the basis for the requested correction or 
amendment, with all available supporting documents and materials that 
substantiate the statement. The statement should identify the criterion 
of the Act being invoked, that is, whether the information in the record 
is unnecessary, inaccurate, irrelevant, untimely or incomplete.



Sec.  4.28  Agency review of requests for correction or amendment.

    (a)(1)(i) Not later than ten working days (i.e., excluding 
Saturdays, Sundays and legal public holidays) after receipt of a request 
to correct or amend a record, the Privacy Act Officer shall send an 
acknowledgment providing an estimate of time within which action will be 
taken on the request and asking for such further information as may be 
necessary to process the request. The estimate of time may take into 
account unusual circumstances as described in Sec.  4.25(a). No 
acknowledgment will be sent if the request can be reviewed, processed 
and the individual notified of the results of review (either compliance 
or denial) within the ten working days. Requests filed in person will be 
acknowledged in writing at the time submitted.
    (ii) If the Privacy Act Officer fails to send the acknowledgment 
within ten working days, as provided in paragraph (a)(1)(i) of this 
section, the requester may ask the Assistant General Counsel for 
Litigation, Employment, and Oversight, or in the case of a request to 
the Office of the Inspector General, the Counsel to the Inspector 
General, to take corrective action. No failure of a Privacy Act Officer 
to send an acknowledgment shall confer administrative finality for 
purposes of judicial review.
    (2) Promptly after acknowledging receipt of a request, or after 
receiving such further information as might have been requested, or 
after arriving at a decision within the ten working days, the Privacy 
Act Officer shall either:
    (i) Make the requested correction or amendment and advise the 
individual in writing of such action, providing either a copy of the 
corrected or amended record or, in cases in which a copy cannot be 
provided, a statement as to the means by which the correction or 
amendment was effected; or
    (ii) Inform the individual in writing that his or her request is 
denied and provide the following information:
    (A) The Privacy Act Officer's name and title or position;
    (B) The date of the denial;
    (C) The reasons for the denial, including citation to the 
appropriate sections of the Act and this subpart; and
    (D) The procedures for appeal of the denial as set forth in Sec.  
4.29, including the address of the Assistant General Counsel for 
Litigation, Employment, and Oversight, or in the case of a request to 
the Office of the Inspector General, the address of the Counsel to the 
Inspector General.
    (3) The term promptly in this section means within thirty working 
days (i.e., excluding Saturdays, Sundays and

[[Page 47]]

legal public holidays). If the Privacy Act Officer cannot make the 
determination within thirty working days, the individual will be advised 
in writing of the reason for the delay and of the estimated date by 
which the determination will be made.
    (b) Whenever an individual's record is corrected or amended pursuant 
to a request from that individual, the Privacy Act Officer shall notify 
all persons and agencies to which the corrected or amended portion of 
the record had been disclosed prior to its correction or amendment, if 
an accounting of such disclosure required by the Act was made. The 
notification shall require a recipient agency maintaining the record to 
acknowledge receipt of the notification, to correct or amend the record, 
and to apprise any agency or person to which it had disclosed the record 
of the substance of the correction or amendment.
    (c) The following criteria will be considered by the Privacy Act 
Officer in reviewing a request for correction or amendment:
    (1) The sufficiency of the evidence submitted by the individual;
    (2) The factual accuracy of the information to be corrected or 
amended;
    (3) The relevance and necessity of the information in terms of the 
purpose for which it was collected;
    (4) The timeliness and currency of the information in light of the 
purpose for which it was collected;
    (5) The completeness of the information in terms of the purpose for 
which it was collected;
    (6) The degree of risk that denial of the request could unfairly 
result in determinations adverse to the individual;
    (7) The character of the record sought to be corrected or amended; 
and,
    (8) The propriety and feasibility of complying with the specific 
means of correction or amendment requested by the individual.
    (d) The Department will not undertake to gather evidence for the 
individual, but does reserve the right to verify the evidence the 
individual submits.
    (e) Correction or amendment of a record requested by an individual 
will be denied only upon a determination by the Privacy Act Officer 
that:
    (1) The individual has failed to establish, by a preponderance of 
the evidence, the propriety of the correction or amendment in light of 
the criteria set forth in paragraph (c) of this section;
    (2) The record sought to be corrected or amended is part of the 
official record in a terminated judicial, quasi-judicial or quasi-
legislative proceeding to which the individual was a party or 
participant;
    (3) The information in the record sought to be corrected or amended, 
or the record sought to be corrected or amended, is the subject of a 
pending judicial, quasi-judicial or quasi-legislative proceeding to 
which the individual is a party or participant;
    (4) The correction or amendment would violate a duly enacted statute 
or promulgated regulation; or,
    (5) The individual unreasonably has failed to comply with the 
procedural requirements of this part.
    (f) If a request is partially granted and partially denied, the 
Privacy Act Officer shall follow the appropriate procedures of this 
section as to the records within the grant and the records within the 
denial.

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62564, Oct. 20, 2014]



Sec.  4.29  Appeal of initial adverse agency determination on correction
or amendment.

    (a) If a request for correction or amendment is denied initially 
under Sec.  4.28, the individual may submit a written appeal within 
thirty calendar days of the date of the initial denial. The appeal must 
be received by the General Counsel, or by the Counsel to the Inspector 
General in the case of an appeal of an initial adverse determination by 
the Office of Inspector General, during normal business hours (8:30 a.m. 
to 5:00 p.m., Eastern Time, Monday through Friday) within 30 calendar 
days of the date of the initial denial. Appeals arriving after normal 
business hours will be deemed received on the next normal business day. 
If the 30th calendar day falls on a Saturday, Sunday, or a legal public 
holiday, an appeal received by 5:00 p.m., Eastern

[[Page 48]]

Time, the next business day will be deemed timely.
    (b)(1) An appeal from a request to a component other than the Office 
of the Inspector General should be addressed to the Assistant General 
Counsel for Litigation, Employment, and Oversight, U.S. Department of 
Commerce, Room 5875, 14th and Constitution Avenue NW., Washington, DC 
20230. An appeal should include the words ``Privacy Act Appeal'' at the 
top of the letter and on the face of the envelope. An appeal not 
addressed and marked as provided herein will be so marked by Department 
personnel when it is so identified, and will be forwarded immediately to 
the Assistant General Counsel for Litigation, Employment, and Oversight. 
An appeal which is not properly addressed by the individual will not be 
deemed to have been ``received'' for purposes of measuring the time 
periods in this section until actual receipt by the Assistant General 
Counsel for Litigation, Employment, and Oversight. In each instance when 
an appeal so forwarded is received, the Assistant General Counsel for 
Litigation, Employment, and Oversight shall notify the individual that 
his or her appeal was improperly addressed and the date on which the 
appeal was received at the proper address.
    (2) An appeal of an initial adverse determination on correction or 
amendment by the Office of Inspector General should be addressed to the 
Counsel to the Inspector General, U.S. Department of Commerce, Room 
7898C, 14th and Constitution Avenue NW., Washington, DC 20230. An appeal 
should include the words ``Privacy Act Appeal'' at the top of the letter 
and on the face of the envelope. An appeal not addressed and marked as 
provided herein will be so marked by Department personnel when it is so 
identified, and will be forwarded immediately to the Counsel to the 
Inspector General. An appeal which is not properly addressed by the 
individual will not be deemed to have been ``received'' for purposes of 
measuring the time periods in this section until actual receipt by the 
Counsel to the Inspector General. In each instance when an appeal so 
forwarded is received, the Counsel to the Inspector General shall notify 
the individual that his or her appeal was improperly addressed and the 
date on which the appeal was received at the proper address.
    (c) The individual's appeal shall be signed by the individual, and 
shall include a statement of the reasons for why the initial denial is 
believed to be in error, and the Department's control number assigned to 
the request. The Privacy Act Officer who issued the initial denial shall 
furnish to the Assistant General Counsel for Litigation, Employment, and 
Oversight, or in the case of an initial denial by the Office of the 
Inspector General, to the Counsel to the Inspector General, the 
record(s) the individual requests to be corrected or amended, and all 
correspondence between the Privacy Act Officer and the requester. 
Although the foregoing normally will comprise the entire record on 
appeal, the Assistant General Counsel for Litigation, Employment, and 
Oversight, or in the case of an initial denial by the Office of the 
Inspector General, the Counsel to the Inspector General, may seek any 
additional information necessary to ensure that the final determination 
is fair and equitable and, in such instances, disclose the additional 
information to the individual to the greatest extent possible, and 
provide an opportunity for comment thereon.
    (d) No personal appearance or hearing on appeal will be allowed.
    (e) The Assistant General Counsel for Litigation, Employment, and 
Oversight, or in the case of an initial denial by the Office of the 
Inspector General, the Counsel to the Inspector General, shall act upon 
the appeal and issue a final determination in writing not later than 
thirty working days (i.e., excluding Saturdays, Sundays and legal public 
holidays) from the date on which the appeal is received, except that the 
Assistant General Counsel for Litigation, Employment, and Oversight, or 
in the case of an initial denial by the Office of the Inspector General, 
the Counsel to the Inspector General, may extend the thirty days upon 
deciding that a fair and equitable review cannot be made within that 
period, but only if the individual is advised in writing of the reason 
for the extension and the estimated date by which a final

[[Page 49]]

determination will be issued. The estimated date should not be later 
than the sixtieth day after receipt of the appeal unless unusual 
circumstances, as described in Sec.  4.25(a), are met.
    (f) If the appeal is determined in favor of the individual, the 
final determination shall include the specific corrections or amendments 
to be made and a copy thereof shall be transmitted promptly to the 
individual and to the Privacy Act Officer who issued the initial denial. 
Upon receipt of such final determination, the Privacy Act Officer shall 
promptly take the actions set forth in Sec.  4.28(a)(2)(i) and (b).
    (g) If the appeal is denied, the final determination shall be 
transmitted promptly to the individual and state the reasons for the 
denial. The notice of final determination shall inform the individual 
that:
    (1) The individual has a right under the Act to file with the 
Assistant General Counsel for Litigation, Employment, and Oversight, or 
in the case of an initial denial by the Office of the Inspector General, 
the Counsel to the Inspector General, a concise statement of reasons for 
disagreeing with the final determination. The statement ordinarily 
should not exceed one page and the Department reserves the right to 
reject an excessively lengthy statement. It should provide the 
Department control number assigned to the request, indicate the date of 
the final determination and be signed by the individual. The Assistant 
General Counsel for Litigation, Employment, and Oversight, or in the 
case of an initial denial by the Office of the Inspector General, the 
Counsel to the Inspector General, shall acknowledge receipt of such 
statement and inform the individual of the date on which it was 
received;
    (2) Any such disagreement statement submitted by the individual 
would be noted in the disputed record, and filed with it;
    (3) The purposes and uses to which the statement would be put are 
those applicable to the record in which it is noted, and that a copy of 
the statement would be provided to persons and agencies to which the 
record is disclosed subsequent to the date of receipt of such statement;
    (4) The Department would append to any such disagreement statement a 
copy of the final determination or summary thereof, which also would be 
provided to persons and agencies to which the disagreement statement is 
disclosed; and
    (5) The individual has a right to judicial review of the final 
determination under 5 U.S.C. 552a(g)(1)(A), as limited by 5 U.S.C. 
552a(g)(5).
    (h) In making the final determination, the Assistant General Counsel 
for Litigation, Employment, and Oversight, or in the case of an initial 
denial by the Office of the Inspector General, the Counsel to the 
Inspector General, shall employ the criteria set forth in Sec.  4.28(c) 
and shall deny an appeal only on grounds set forth in Sec.  4.28(e).
    (i) If an appeal is partially granted and partially denied, the 
Assistant General Counsel for Litigation, Employment, and Oversight, or 
in the case of an initial denial by the Office of the Inspector General, 
the Counsel to the Inspector General, shall follow the appropriate 
procedures of this section as to the records within the grant and the 
records within the denial.
    (j) Although a copy of the final determination or a summary thereof 
will be treated as part of the individual's record for purposes of 
disclosure in instances where the individual has filed a disagreement 
statement, it will not be subject to correction or amendment by the 
individual.
    (k) The provisions of paragraphs (g)(1) through (g)(3) of this 
section satisfy the requirements of 5 U.S.C. 552a(e)(3).

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62564, Oct. 20, 2014]



Sec.  4.30  Disclosure of record to person other than the individual to
whom it pertains.

    (a) The Department may disclose a record pertaining to an individual 
to a person other than the individual to whom it pertains only in the 
following instances:
    (1) Upon written request by the individual, including authorization 
under Sec.  4.25(f);
    (2) With the prior written consent of the individual;

[[Page 50]]

    (3) To a parent or legal guardian under 5 U.S.C. 552a(h);
    (4) When required by the Act and not covered explicitly by the 
provisions of 5 U.S.C. 552a(b); and
    (5) When permitted under 5 U.S.C. 552a(b)(1) through (12), as 
follows: \3\
---------------------------------------------------------------------------

    \3\ 5 U.S.C. 552a(b)(4) has no application within the Department.
---------------------------------------------------------------------------

    (i) To those officers and employees of the agency that maintains the 
record who have a need for the record in the performance of their 
duties;
    (ii) Required under 5 U.S.C. 552;
    (iii) For a routine use as defined in 5 U.S.C. 552a(a)(7);
    (iv) To the Bureau of the Census for purposes of planning or 
carrying out a census or survey or related activity pursuant to the 
provisions of Title 13 of the U.S. Code;
    (v) To a requester who has provided the agency with advance adequate 
written assurance that the record will be used solely as a statistical 
research or reporting record, and the record is to be transferred in a 
form that is not individually identifiable;
    (vi) To the National Archives and Records Administration as a record 
that has sufficient historical or other value to warrant its continued 
preservation by the United States Government, or for evaluation by the 
Archivist of the United States, or the designee of the Archivist, to 
determine whether the record has such value;
    (vii) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality has made a 
written request to the agency which maintains the record, specifying the 
particular portion desired and the law enforcement activity for which 
the record is sought;
    (viii) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if upon such disclosure 
notification is transmitted to the last known address of such 
individual;
    (ix) To either House of Congress, or, to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee;
    (x) To the Comptroller General, or any of his or her authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office;
    (xi) Pursuant to the order of a court of competent jurisdiction; or
    (xii) To a consumer reporting agency in accordance with 31 U.S.C. 
3711(e).
    (b) The situations referred to in paragraph (a)(4) of this section 
include the following:
    (1) 5 U.S.C. 552a(c)(4) requires dissemination of a corrected or 
amended record or notation of a disagreement statement by the Department 
in certain circumstances;
    (2) 5 U.S.C. 552a(d) requires disclosure of records to the 
individual to whom they pertain, upon request; and
    (3) 5 U.S.C. 552a(g) authorizes civil action by an individual and 
requires disclosure by the Department to the court.
    (c) The Privacy Act Officer shall make an accounting of each 
disclosure by him of any record contained in a system of records in 
accordance with 5 U.S.C. 552a(c)(1) and (2). Except for a disclosure 
made under 5 U.S.C. 552a(b)(7), the Privacy Act Officer shall make such 
accounting available to any individual, insofar as it pertains to that 
individual, upon any request submitted in accordance with Sec.  4.24. 
The Privacy Act Officer shall make reasonable efforts to notify any 
individual when any record in a system of records is disclosed to any 
person under compulsory legal process, promptly upon being informed that 
such process has become a matter of public record.

[66 FR 65632, Dec. 20, 2001, as amended at 67 FR 60282, Sept. 25, 2002]



Sec.  4.31  Fees.

    (a) The only fee to be charged to an individual under this part is 
for duplication of records at the request of the individual. Components 
shall charge a fee for duplication of records under the Act in the same 
way in which they charge a duplication fee under Sec.  4.11, except as 
provided in this section. Accordingly, no fee shall be charged or

[[Page 51]]

collected for: search, retrieval, or review of records; copying at the 
initiative of the Department without a request from the individual; 
transportation of records; or first-class postage.
    (b) The Department shall provide an individual one copy of each 
record corrected or amended pursuant to the individual's request without 
charge as evidence of the correction or amendment.
    (c) As required by the United States Office of Personnel Management 
in its published regulations implementing the Act, the Department shall 
charge no fee for a single copy of a personnel record covered by that 
agency's Government-wide published notice of systems of records.



Sec.  4.32  Penalties.

    (a) The Act provides, in pertinent part:

    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. (5 
U.S.C. 552a(i)(3)).

    (b) A person who falsely or fraudulently attempts to obtain records 
under the Act also may be subject to prosecution under such other 
criminal statutes as 18 U.S.C. 494, 495 and 1001.



Sec.  4.33  General exemptions.

    (a) Individuals may not have access to records maintained by the 
Department but which were provided by another agency which has 
determined by regulation that such information is subject to general 
exemption under 5 U.S.C. 552a(j). If such exempt records are within a 
request for access, the Department will advise the individual of their 
existence and of the name and address of the source agency. For any 
further information concerning the record and the exemption, the 
individual must contact that source agency.
    (b) The general exemptions determined to be necessary and proper 
with respect to systems of records maintained by the Department, 
including the parts of each system to be exempted, the provisions of the 
Act from which they are exempted, and the justification for the 
exemption, are as follows:
    (1) Individuals identified in Export Transactions--COMMERCE/BIS-1. 
Pursuant to 5 U.S.C. 552a(j)(2), these records are hereby determined to 
be exempt from all provisions of the Act, except 5 U.S.C. 552a(b), 
(c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), 
and (i). These exemptions are necessary to ensure the proper functioning 
of the law enforcement activity, to protect confidential sources of 
information, to fulfill promises of confidentiality, to maintain the 
integrity of the law enforcement process, to avoid premature disclosure 
of the knowledge of criminal activity and the evidentiary bases of 
possible enforcement actions, to prevent interference with law 
enforcement proceedings, to avoid disclosure of investigative 
techniques, and to avoid endangering law enforcement personnel. Section 
12(c) of the Export Administration Act of 1979, as amended, also 
protects this information from disclosure.
    (2) Fisheries Law Enforcement Case Files--COMMERCE/NOAA-5. Pursuant 
to 5 U.S.C. 552a(j)(2), these records are hereby determined to be exempt 
from all provisions of the Act, except 5 U.S.C. 552a (b), (c) (1) and 
(2), (e) (4) (A) through (F), (e) (6), (7), (9), (10), and (11), and 
(i). These exemptions are necessary to ensure the proper functioning of 
the law enforcement activity, to protect confidential sources of 
information, to fulfill promises of confidentiality, to prevent 
interference with law enforcement proceedings, to avoid the disclosure 
of investigative techniques, to avoid the endangering of law enforcement 
personnel, to avoid premature disclosure of the knowledge of criminal 
activity and the evidentiary bases of possible enforcement actions, and 
to maintain the integrity of the law enforcement process.
    (3) Investigative and Inspection Records--COMMERCE/DEPT-12. Pursuant 
to 5 U.S.C. 552a(j)(2), these records are hereby determined to be exempt 
from all provisions of the Act, except 5 U.S.C. 552a (b), (c) (1) and 
(2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and (11), and (i). 
These exemptions are necessary to ensure the proper operation

[[Page 52]]

of the law enforcement activity, to protect confidential sources of 
information, to fulfill promises of confidentiality, to prevent 
interference with law enforcement proceedings, to avoid the disclosure 
of investigative techniques, to avoid the endangering of law enforcement 
personnel, to avoid premature disclosure of the knowledge of criminal 
activity and the evidentiary bases of possible enforcement actions, and 
to maintain the integrity of the law enforcement process.
    (4) Access Control and Identity Management System--COMMERCE/DEPT-25. 
Pursuant to 5 U.S.C. 552a(j)(2), these records are hereby determined to 
be exempt from all provisions of the Act, except 5 U.S.C. 552a(b), 
(c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), 
and (i). These exemptions are necessary to ensure the proper functioning 
of the law enforcement activity, to protect confidential sources of 
information, to fulfill promises of confidentiality, to maintain the 
integrity of the law enforcement process, to avoid premature disclosure 
of the knowledge of criminal activity and the evidentiary bases of 
possible enforcement actions, to prevent interference with law 
enforcement proceedings, to avoid disclosure of investigative 
techniques, and to avoid endangering law enforcement personnel.
    (5) Investigation and Threat Management Records--COMMERCE/DEPT-27. 
Pursuant to 5 U.S.C. 552a(j)(2), these records are hereby determined to 
be exempt from all provisions of the Act, except 5 U.S.C. 552a(b), 
(c)(l) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), 
and (i). These exemptions are necessary to ensure the proper functioning 
of the law enforcement activity of the agency, to prevent disclosure of 
classified information as required by Executive Order 13526, to assure 
the protection of the President, to prevent subjects of investigation 
from frustrating the investigatory process, to prevent the disclosure of 
investigative techniques, to fulfill commitments made to protect the 
confidentiality of information, and to avoid endangering these sources 
and law enforcement personnel.

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62565, Oct. 20, 2014; 
80 FR 68443, Nov. 5, 2015; 86 FR 49921, Sept. 7, 2021]



Sec.  4.34  Specific exemptions.

    (a)(1) Certain systems of records under the Act that are maintained 
by the Department may occasionally contain material subject to 5 U.S.C. 
552a(k)(1), relating to national defense and foreign policy materials. 
The systems of records published in the Federal Register by the 
Department that are within this exemption are: COMMERCE/BIS-1, COMMERCE/
ITA-2, COMMERCE/ITA-3, COMMERCE/NOAA-11, COMMERCE/PAT-TM-4, COMMERCE/
DEPT-12, COMMERCE/DEPT-13, COMMERCE/DEPT-14, COMMERCE/DEPT-25, and 
COMMERCE/DEPT-27.
    (2) The Department hereby asserts a claim to exemption of such 
materials wherever they might appear in such systems of records, or any 
systems of records, at present or in the future. The materials would be 
exempt from 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), 
and (f), because the materials are required by Executive order to be 
kept secret in the interest of the national defense and foreign policy.
    (b) The specific exemptions determined to be necessary and proper 
with respect to systems of records maintained by the Department, 
including the parts of each system to be exempted, the provisions of the 
Act from which they are exempted, and the justification for the 
exemption, are as follows:
    (1) Exempt under 5 U.S.C. 552a(k)(1). The systems of records exempt 
hereunder appear in paragraph (a) of this section. The claims for 
exemption of COMMERCE/DEPT-12, COMMERCE/BIS-1, COMMERCE/NOAA-5, 
COMMERCE/DEPT-25, and COMMERCE/DEPT-27 under this paragraph are subject 
to the condition that the general exemption claimed in Sec.  4.33(b) is 
held to be invalid.
    (2)(i) Exempt under 5 U.S.C. 552a(k)(2). The systems of records 
exempt (some only conditionally), the

[[Page 53]]

sections of the Act from which exempted, and the reasons therefor are as 
follows:
    (A) Individuals identified in Export Administration compliance 
proceedings or investigations--COMMERCE/BIS-1, but only on condition 
that the general exemption claimed in Sec.  4.33(b)(1) is held to be 
invalid;
    (B) Individuals involved in export transactions--COMMERCE/ITA-2;
    (C) Fisheries Law Enforcement Case Files--COMMERCE/NOAA-5, but only 
on condition that the general exemption claimed in Sec.  4.33(b)(2) is 
held to be invalid;
    (D) Investigative and Inspection Records--COMMERCE/DEPT-12, but only 
on condition that the general exemption claimed in Sec.  4.33(b)(3) is 
held to be invalid;
    (E) Investigative Records--Persons Within the Investigative 
Jurisdiction of the Department--COMMERCE/DEPT-13;
    (F) Access Control and Identity Management System--COMMERCE/DEPT-25, 
but only on condition that the general exemption claimed in Sec.  
4.33(b)(4) is held to be invalid;
    (G) Investigation and Threat Management Records--COMMERCE/DEPT-27, 
but only on condition that the general exemption claimed in Sec.  
4.33(b)(4) is held to be invalid;
    (ii) The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d), 
(e)(1), (e)(4)(G), (H), and (I), and (f). The reasons for asserting the 
exemption are to prevent subjects of investigation from frustrating the 
investigatory process; to ensure the proper functioning and integrity of 
law enforcement activities; to prevent disclosure of investigative 
techniques; to maintain the ability to obtain necessary information; to 
fulfill commitments made to sources to protect their identities and the 
confidentiality of information; and to avoid endangering these sources 
and law enforcement personnel. Special note is taken that the proviso 
clause in this exemption imports due process and procedural protections 
for the individual. The existence and general character of the 
information exempted shall be made known to the individual to whom it 
pertains.
    (3)(i) Exempt under 5 U.S.C. 552a(k)(4). The systems of records 
exempt, the sections of the Act from which exempted, and the reasons 
therefor are as follows:
    (A) Special Censuses, Surveys, and Other Studies--COMMECE/CENSUS-3;
    (B) Economic Survey Collection--COMMERCE/CENSUS-4;
    (C) Decennial Census Program--COMMERCE/CENSUS-5;
    (D) Population Census Records for 1910 & All Subsequent Decennial 
Census--COMMERCE/CENSUS-6;
    (E) Other Agency Surveys & Reimbursable--COMMERCE/CENSUS-7;
    (F) Statistical Administrative Records System--COMMERCE/CENSUS-8;
    (G) Longitudinal Employer-Household Dynamics System--COMMERCE/
CENSUS-9; and
    (H) Foreign Trade Statistics--COMMERCE/CENSUS-12.
    (ii) The foregoing are exempted from 5 U.S.C. 552a(c)(3), (d), 
(e)(1), (e)(4)(G) (H), and (I), and (f). The reasons for asserting the 
exemption are to comply with the prescription of Title 13 of the United 
States Code, especially sections 8 and 9 relating to prohibitions 
against disclosure, and to avoid needless consideration of these records 
whose sole statistical use comports fully with a basic purpose of the 
Act, namely, that no adverse determinations are made from these records 
as to any identifiable individual.
    (4)(i) Exempt under 5 U.S.C. 552a(k)(5 ). The systems of records 
exempt (some only conditionally), the sections of the Act from which 
exempted, and the reasons therefor are as follows:
    (A) Applications to U.S. Merchant Marine Academy (USMMA)--COMMERCE/
MA-1;
    (B) USMMA Midshipman Medical Files--COMMERCE/MA-17;
    (C) USMMA Midshipman Personnel Files--COMMERCE/MA-18;
    (D) USMMA Non-Appropriated Fund Employees--COMMERCE/MA-19;
    (E) Applicants for the NOAA Corps--COMMERCE/NOAA-I;
    (F) Commissioned Officer Official Personnel Folders--COMMERCE/NOAA-
3;

[[Page 54]]

    (G) Conflict of lnterest Records, Appointed Officials--COMMERCE/
DEPT-3;
    (H) Investigative and Inspection Records--COMMERCE/DEPT-12, but only 
on condition that the general exemption claimed in Sec.  4.33(b)(3) is 
held to be invalid;
    (I) Investigative Records--Persons within the Investigative 
Jurisdiction of the Department COMMERCE/DEPT-13;
    (J) Litigation, Claims, and Administrative Proceeding Records--
COMMERCE/DEPT-14;
    (K) Access Control and Identity Management System--COMMERCE/DEPT-25, 
but only on condition that the general exemption claimed in Sec.  
4.33(b)(4) is held to be invalid; and
    (L) Investigation and Threat Management Records--COMMERCE/DEPT-27, 
but only on condition that the general exemption claimed in Sec.  
4.33(b)(4) is held to be invalid.
    (ii) The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d), 
(e)(1), (e)(4) (G), (H), and (I), and (f). The reasons for asserting the 
exemption are to maintain the ability to obtain candid and necessary 
information, to fulfill commitments made to sources to protect the 
confidentiality of information, to avoid endangering these sources and, 
ultimately, to facilitate proper selection or continuance of the best 
applicants or persons for a given position or contract. Special note is 
made of the limitation on the extent to which this exemption may be 
asserted. The existence and general character of the information 
exempted will be made known to the individual to whom it pertains.
    (c) At the present time, the Department claims no exemption under 5 
U.S.C. 552a(k) (3), (6) and (7).

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62565, Oct. 20, 2014; 
80 FR 68443, Nov. 5, 2015; 86 FR 49921, Sept. 7, 2021]





  Sec. Appendix A to Part 4--Freedom of Information Public Inspection 
Facilities, and Addresses for Requests for Records Under the Freedom of 
    Information Act and Privacy Act, and Requests for Correction or 
                     Amendment Under the Privacy Act

    Each address listed below is the respective component's mailing 
address for receipt and processing of requests for records under the 
Freedom of Information Act and Privacy Act, for requests for correction 
or amendment under the Privacy Act and, unless otherwise noted, its 
public inspection facility for records available to the public under the 
Freedom of Information Act. Requests should be addressed to the 
component the requester knows or has reason to believe has possession 
of, control over, or primary concern with the records sought. Otherwise, 
requests should be addressed to the Departmental FOIA Office identified 
in paragraph (1) of this appendix. The telephone and facsimile numbers 
for each component are included after its address, as well as email 
addresses for components that maintain an email address for the purposes 
of receiving of FOIA and Privacy Act requests. Records of components 
that are required to be made publicly available are available 
electronically either through the Department's ``Electronic FOIA 
Library'' on the Department's Web site, http://www.doc.gov, as described 
in Sec.  4.2(a), or the component's separate online Electronic FOIA 
Library as indicated below. Components that maintain a public inspection 
facility are designated as such below. These public inspection 
facilities records are open to the public Monday through Friday (i.e., 
excluding Saturdays, Sundays, and legal public holidays) between 9:00 
a.m. and 4:00 p.m. local time of the facility at issue. The Departmental 
Freedom of Information Act Officer is authorized to revise this appendix 
to reflect changes in the information contained in it. Any such 
revisions shall be posted on the Department's ``FOIA Home Page'' link 
found at the Department's Web site, http://www.doc.gov.
    (1) U.S. Department of Commerce, Office of Privacy and Open 
Government, Departmental FOIA Office, 14th and Constitution Avenue NW., 
Mail Stop A300, Washington, DC 20230; Phone: (202) 482-3258; Fax: (202) 
482-0827; Email: [email protected]; FOIAonline: http://foiaonline 
.regulations.gov. This component maintains an online Electronic FOIA 
Library through the Department's Web site, http://www.doc.gov. This 
online Electronic FOIA Library serves the Office of the Secretary, all 
other components of the Department not identified below, and those 
components identified below that do not have separate online Electronic 
FOIA Libraries.

[[Page 55]]

    (2) Bureau of the Census, Policy Coordination Office, U.S. 
Department of Commerce, Room 8H027, 4600 Silver Hill Road, Suitland, 
Maryland 20233; Ph.: (301) 763-6440; Fax: (301) 763-6239 (ATTN.: FOIA 
Office); Email: [email protected]; FOIAonline: http://foiaonline 
.regulations.gov. This component maintains a separate online Electronic 
FOIA Library through its Web site, http://www.census.gov.
    (3) Bureau of Economic Analysis/Economic and Statistics 
Administration, Office of the Under Secretary for Economic Affairs, U.S. 
Department of Commerce, 14th and Constitution Avenue NW., Mail Stop 
H4836, Washington, DC 20230; Ph.: (202) 482-5997; Fax: (202) 482-2889; 
Email: [email protected]; FOIAonline: http://foiaonline .regulations.gov. 
This component maintains a separate online Electronic FOIA Library 
through its Web site, http://www.esa.doc.gov.
    (4) Bureau of Industry and Security, Office of Administration, U.S. 
Department of Commerce, 14th and Constitution Avenue NW., Mails Stop 
H6622, Washington, DC 20230; Ph.: (202) 482-0953; Fax: (202) 482-0326; 
Email: [email protected]; FOIAonline: http://foiaonline 
.regulations.gov. This component maintains a separate online Electronic 
FOIA Library through its Web site, http://www.bis.doc.gov.
    (5) Economic Development Administration, Office of the Chief 
Counsel, U.S. Department of Commerce, 14th and Constitution Avenue NW, 
Room 72023, Washington, DC 20230; Ph.: (202) 482-3085; Fax: (202) 482-
5671; FOIAonline: http://foiaonline .regulations.gov. This component 
maintains a separate online Electronic FOIA Library through its website, 
http://www.eda.gov. The following Regional EDA offices do not maintain 
separate online Electronic FOIA Libraries.
    (i) Atlanta Regional Office, EDA, U.S. Department of Commerce, 401 
West Peachtree Street NW., Suite 1820, Atlanta, Georgia 30308; Ph.: 
(404) 730-3006.
    (ii) Austin Regional Office, EDA, U.S. Department of Commerce, 504 
Lavaca Street, Suite 1100, Austin, Texas 78701; Ph.: (512) 381-8165.
    (iii) Chicago Regional Office, EDA, U.S. Department of Commerce, 111 
North Canal Street, Suite 855, Chicago, Illinois 60606; Ph.: (312) 353-
8143.
    (iv) Denver Regional Office, EDA, U.S. Department of Commerce, 410 
17th Street, Suite 250, Denver, Colorado 80202; Ph.: (303) 844-4404.
    (v) Philadelphia Regional Office, EDA, U.S. Department of Commerce, 
Robert N.C. Nix Federal Building, 900 Market Street, Room 602, 
Philadelphia, Pennsylvania 19107; Ph.: (215) 597-4603.
    (vi) Seattle Regional Office, EDA, U.S. Department of Commerce, 
Jackson Federal Building, Room 1890, 915 Second Avenue, Seattle, 
Washington 98174; Ph.: (206) 220-7663.
    (6) International Trade Administration, Office of Strategic 
Resources, U.S. Department of Commerce, 14th and Constitution Avenue 
NW., Room 40003, Washington, DC 20230; Ph.: (202) 482-7937; Fax: (202) 
482-1584; Email: [email protected]; FOIAonline: http://foiaonline 
.regulations.gov. This component does not maintain a separate online 
Electronic FOIA Library.
    (7) Minority Business Development Agency, Office of Administration 
and Employee Support Services, U.S. Department of Commerce, 14th and 
Constitution Avenue NW., Room 5092, Washington, DC 20230; Ph.: (202) 
482-2419; Fax: (202) 482-2500; Email: [email protected]; FOIAonline: http://
foiaonline .regulations.gov. This component maintains a separate online 
Electronic FOIA Library through its Web site, http://www.mbda.gov.
    (8) National Institute of Standards and Technology, Management and 
Organization Office, U.S. Department of Commerce, 100 Bureau Drive, Mail 
Stop 1710, Gaithersburg, Maryland 20899-1710; Ph.: (301) 975-4054; Fax: 
(301) 975-5301; Email: [email protected]; FOIAonline: http://foiaonline 
.regulations.gov. This component maintains a separate public inspection 
facility at the Administration Building, Gaithersburg, Maryland. Please 
call (301) 975-4054 for inspection facility directions and hours. This 
component does not maintain a separate online Electronic FOIA Library.
    (9) National Oceanic and Atmospheric Administration, U.S. Department 
of Commerce, 1315 East-West Highway (SSMC3), Room 9719, Silver Spring, 
Maryland 20910; Ph.: (301) 628-5658; Fax: (301) 713-1169; Email: 
[email protected]; FOIAonline: http://foiaonline .regulations.gov. This 
component maintains a separate online Electronic FOIA Library through 
its Web site, http://www.noaa.gov.
    (10) National Technical Information Service, Office of the Chief 
Information Officer, U.S. Department of Commerce, 5301 Shawnee Road, 
Room 227, Alexandria, Virginia 22312; Ph.: (703) 605-6710; Fax: (703) 
605-6764; FOIAonline: http://foiaonline .regulations.gov. This component 
maintains a separate online Electronic FOIA Library through its Web 
site, http://www.ntis.gov.
    (11) National Telecommunications and Information Administration, 
Office of the Chief Counsel, U.S. Department of Commerce, 14th and 
Constitution Avenue NW., Mail Stop 4713, Washington, DC 20230; Ph.: 
(202) 482-1816; Fax: (202) 501-8013; Email: [email protected]; 
FOIAonline: http://foiaonline .regulations.gov. This component does not 
maintain a separate online Electronic FOIA Library.
    (12) Office of Inspector General, FOIA and Records Management 
Specialist, U.S. Department of Commerce, 14th and Constitution Avenue 
NW., Room 7099C, Washington, DC 20230; Ph.: (202) 482-3470; Fax: (202) 
501-7921; Email: [email protected]; FOIAonline:

[[Page 56]]

http://foiaonline .regulations.gov. This component maintains a separate 
online Electronic FOIA Library through its Web site, http://
www.oig.doc.gov.

[79 FR 62566, Oct. 20, 2014, as amended at 83 FR 39596, Aug. 10, 2018]



  Sec. Appendix B to Part 4--Officials Authorized To Deny Requests for 
 Records Under the Freedom of Information Act, and Requests for Records 
     and Requests for Correction or Amendment Under the Privacy Act

    The officials of the Department listed below and their superiors 
have authority, with respect to the records for which each is 
responsible, to deny requests for records under the FOIA,\1\ and 
requests for records and requests for correction or amendment under the 
PA. In addition, the Departmental Freedom of Information Act Officer and 
the Freedom of Information Act Officer for the Office of the Secretary 
have the foregoing FOIA and PA denial authority for all records of the 
Department. The Departmental Freedom of Information Act Officer is 
authorized to assign that authority, on a case-by-case basis only, to 
any of the officials listed below, if the records responsive to a 
request include records for which more than one official listed below is 
responsible. The Departmental Freedom of Information Act Officer is 
authorized to revise this appendix to reflect changes in designation of 
denial officials. Any such revisions shall be posted on the Department's 
``FOIA Home Page'' link found at the Department's Web site, http://
www.doc.gov.
---------------------------------------------------------------------------

    \1\ The foregoing officials have sole authority under Sec.  4.7(c) 
to deny requests for records in any respect, including, for example, 
denying requests for reduction or waiver of fees.
---------------------------------------------------------------------------

                         OFFICE OF THE SECRETARY

Office of the Secretary: Executive Secretary; Freedom of Information Act 
Officer
Office of Business Liaison: Director
Office of Public Affairs: Director; Deputy Director; Press Secretary; 
Deputy Press Secretary
Assistant Secretary for Legislative and Intergovernmental Affairs; 
Deputy Assistant Secretary for Legislative and Intergovernmental Affairs
Office of Inspector General: Freedom of Information Act Officer
Office of the General Counsel: Deputy General Counsel; Assistant General 
Counsel for Litigation, Employment, and Oversight
Office of Executive Support: Director
Office of Chief Information Officer: Director

                 ASSISTANT SECRETARY FOR ADMINISTRATION

Office of Civil Rights: Director
Office of Budget: Director
Office of Privacy and Open Government: Director; Departmental Freedom of 
Information Act Officer
Office of Program Evaluation and Risk Management: Director
Office of Financial Management: Director
Office of Human Resources Management: Director; Deputy Director
Office of Administrative Services: Director
Office of Security: Director
Office of Acquisition Management: Director
Office of Acquisition Services: Director
Office of Small and Disadvantaged Business Utilization: Director

                     BUREAU OF INDUSTRY AND SECURITY

Under Secretary
Deputy Under Secretary
Director, Office of Administration
Director, Office of Planning, Evaluation and Management
Assistant Secretary for Export Administration
Deputy Assistant Secretary for Export Administration
Director, Office of Strategic Industries and Economic Security
Director, Office of Nonproliferation Controls and Treaty Compliance
Director, Office of Exporter Services
Assistant Secretary for Export Enforcement
Deputy Assistant Secretary for Export Enforcement
Director, Office of Export Enforcement
Director, Office of Enforcement Analysis
Director, Office of Antiboycott Compliance

                 ECONOMICS AND STATISTICS ADMINISTRATION

Office of Administration: Director
Bureau of Economic Analysis: Director
Bureau of the Census: Freedom of Information Act Officer

                   ECONOMIC DEVELOPMENT ADMINISTRATION

Freedom of Information Officer

                   INTERNATIONAL TRADE ADMINISTRATION

                        Executive Administration

Under Secretary for International Trade
Deputy Under Secretary for International Trade
Chief Counsel for International Trade
Chief Counsel for Enforcement and Compliance
Trade Promotion Coordinating Committee Secretariat
Director, Office of Public Affairs

[[Page 57]]

Director, Office of Legislative and Intergovernmental Affairs
Chief Information Officer
Deputy Chief Information Officer
Chief Administrative Officer, Office of the Chief Information Officer
Chief Financial and Administration Officer
Deputy Chief Financial Administrative Officer
Director, Budget Division
Director, Financial Management and Administrative Oversight Division
Director, Business Operations and Policy Compliance Division
Director, Performance Management and Employee Programs Division
Freedom of Information Act Officer

                       Enforcement and Compliance

Assistant Secretary for Enforcement and Compliance
Deputy Assistant Secretary for Enforcement and Compliance
Director, Office of Foreign Trade Zones Staff
Director, Office of Operations Support
Deputy Assistant Secretary for Antidumping and Countervailing Duty 
Operations
Executive Director, Antidumping and Countervailing Duty Operations
Director, Office of Antidumping and Countervailing Duty Enforcement I
Director, Office of Antidumping and Countervailing Duty Enforcement II
Director, Office of Antidumping and Countervailing Duty Enforcement III
Director, Office of Antidumping and Countervailing Duty Enforcement IV
Director, Office of Antidumping and Countervailing Duty Enforcement V
Director, Office of Antidumping and Countervailing Duty Enforcement VI
Director, Office of Antidumping and Countervailing Duty Enforcement VII
Deputy Assistant Secretary for Policy & Negotiations
Director, Office of Trade Agreements Negotiations and Compliance
Director, Office of Accounting
Director, Office of Policy

                             Global Markets

Assistant Secretary of Global Markets and Director General for the 
US&FCS
Deputy Director General
Principal Deputy Assistant Secretary
Executive Director, Advocacy Center
Director, Business Information and Technology Office
Director, Global Knowledge Center
Director, Office of Budget
Director, Office of Foreign Service Human Capital
Director, Office of Strategic Planning
Director, Office of Administrative Services
Executive Director, SelectUSA
Deputy Assistant Secretary for U.S. Field
National U.S. Field Director
Deputy Assistant Secretary for Asia
Executive Director for Asia
Director, Office of the ASEAN and Pacific Basin
Director, Office of East Asia and APEC
Director, Office of South Asia
Deputy Assistant Secretary for China, Hong Kong, and Mongolia
Executive Director for China, Hong Kong, and Mongolia
Director, Office of China, Hong Kong, and Mongolia
Deputy Assistant Secretary for Western Hemispheres
Executive Director for Western Hemispheres
Director, Office of North and Central America
Director, Office of South America
Deputy Assistant Secretary for Europe, Middle East, and Africa
Executive Deputy Assistant Secretary for Europe, Middle East, and Africa
Executive Director for Europe and Eurasia
Director, Office of Europe Country Affairs
Director, Office of the European Union
Director, Office of Russia, Ukraine, and Eurasia
Executive Director for Africa and Middle East
Director, Office of the Middle East and North Africa
Director, Office of Sub-Saharan Africa

                          Industry and Analysis

Assistant Secretary for Industry and Analysis
Deputy Assistant Secretary for Industry and Analysis
Trade Agreements Secretariat
Executive Director, Office of Trade Programs and Strategic Partnerships
Director, Trade Promotion Programs
Director, Strategic Partnerships
Director, Office of Advisory Committees and Industry Outreach
Director, Office of Planning, Coordination and Management
Deputy Assistant Secretary for Services
Director, Office of Financial and Insurance Industries
Director, Office of Digital Service Industries
Director, Office of Supply Chain, Professional and Business Services
Executive Director for National Travel and Tourism Office
Director, Office of Travel and Tourism Industries
Deputy Assistant Secretary for Trade Policy and Analysis
Director, Office of Standards and Investment Policy
Director, Office of Trade and Economic Analysis
Director, Office of Trade Negotiations and Analysis

[[Page 58]]

Director, Office of Intellectual Property Rights
Deputy Assistant Secretary for Manufacturing
Director, Office of Energy and Environmental Industries
Director, Office of Transportation and Machinery
Director, Office of Health and Information Technologies
Deputy Assistant Secretary for Textiles, Consumer Goods, and Materials
Director, Office of Textiles and Appeal
Director, Office of Materials
Director, Office of Consumer Goods

                  MINORITY BUSINESS DEVELOPMENT AGENCY

Chief Counsel
Freedom of Information Officer

              NATIONAL INSTITUTE OF STANDARDS AND TECNOLOGY

Chief, Management and Organization Office
NIST Counsel

             NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Under Secretary
Deputy Under Secretary for Operations
Chief, Resource and Operations Management
Director, Office of Communications and External Affairs
Director, Office of Marine and Aviation Operations
General Counsel
Deputy General Counsel
Assistant Administrator for National Ocean Services
Deputy Assistant Administrator for National Ocean Services
Assistant Administrator for National Marine Fisheries Service
Deputy Assistant Administrator for Operations for National Marine 
Fisheries Service
Deputy Assistant Administrator for Regulatory Programs for National 
Marine Fisheries Service
Assistant Administrator for National Weather Services
Deputy Assistant Administrator for National Weather Services
Assistant Administrator for National Environmental Satellite, Data, and 
Information Service
Deputy Assistant Administrator for National Environmental Satellite, 
Data, and Information Service
Assistant Administrator for Oceanic and Atmospheric Research
Deputy Assistant Administrator for Programs & Administration (Oceanic 
and Atmospheric Research)
Assistant Administrator for Program, Planning and Integration
Chief Administrative Officer
Chief Financial Officer
Chief Information Officer
Director, Acquisition and Grants Office
Deputy Director, Acquisition and Grants Office
Head of Contracting Offices, Acquisition and Grants Office
Director, Workforce Management Office
Senior Advisor for International Affairs
Director, Office of Legislation & Intergovernmental Affairs
Freedom of Information Officer

                 NATIONAL TECHNICAL INFORMATION SERVICE

Director
Deputy Director
Chief Financial Officer/Associate Director for Finance and 
Administration

       NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION

Deputy Assistant Secretary
Chief Counsel
Deputy Chief Counsel

[79 FR 62567, Oct. 20, 2014, as amended at 86 FR 21935, Apr. 26, 2021]



 Sec. Appendix C to Part 4--Systems of Records Noticed by Other Federal 
 Agencies and Applicable to Records of the Department and Applicability 
                          of This Part Thereto

------------------------------------------------------------------------
       Category of records                  Other Federal Agency
------------------------------------------------------------------------
Federal Personnel Records........  Office of Personnel Management. \1\
Federal Employee Compensation Act  Department of Labor. \2\
 Program Program.
Equal Employment Opportunity       Equal Employment Opportunity
 Appeal Complaints.                 Commission. \3\
Formal Complaints/Appeals of       Merit Systems Protection Board. \4\
 Adverse Personnel Actions.
------------------------------------------------------------------------
\1\ The provisions of this part do not apply to these records covered by
  notices of systems of records published by the Office of Personnel
  Management for all agencies. The regulations of OPM alone apply.
\2\ The provisions of this part apply only initially to these records
  covered by notices of systems of records published by the U.S.
  Department of Labor for all agencies. The regulations of that
  Department attach at the point of any denial for access or for
  correction or amendment.

[[Page 59]]

 
\3\ The provisions of this part do not apply to these records covered by
  notices of systems of records published by the Equal Employment
  Opportunity Commission for all agencies. The regulations of the
  Commission alone apply.
\4\ The provisions of this part do not apply to these records covered by
  notices of systems of records published by the Merit Systems
  Protection Board for all agencies. The regulations of the Board alone
  apply.



PART 4a_CLASSIFICATION, DECLASSIFICATION, AND PUBLIC AVAILABILITY OF
NATIONAL SECURITY INFORMATION

Sec.
4a.1 General.
4a.2 Director for Security.
4a.3 Classification levels.
4a.4 Classification authority.
4a.5 Duration of classification.
4a.6 General.
4a.7 Mandatory review for declassification.
4a.8 Access to classified information by individuals outside the 
          Government.

    Authority: E.O. 13526; 75 FR 707, January 5, 2010 (as corrected at 
75 FR 1013, January 8, 2010).

    Source: 66 FR 65650, Dec. 20, 2001, unless otherwise noted.



Sec.  4a.1  General.

    Executive Order 13526 provides the only basis for classifying 
information within the Department of Commerce (Department), except as 
provided in the Atomic Energy Act of 1954, as amended. The Department's 
policy is to make information concerning its activities available to the 
public, consistent with the need to protect the national defense and 
foreign relations of the United States. Accordingly, security 
classification shall be applied only to protect the national security.

[85 FR 35375, June 10, 2020]



Sec.  4a.2  Director for Security.

    The Director for Security is responsible for implementing and 
ensuring compliance with E.O. 13526 and this part.

[85 FR 35375, June 10, 2020]



Sec.  4a.3  Classification levels.

    Information may be classified as national security information by a 
designated original classifier of the Department if it is determined the 
information concerns one or more of the categories described in section 
1.4 of E.O. 13526. The levels established in section 1.2 of E.O. 13526 
(Top Secret, Secret, and Confidential) are the only terms that may be 
applied to national security information. Except as provided by statute, 
no other terms shall be used within the Department for the three 
classification levels.

[85 FR 35375, June 10, 2020]



Sec.  4a.4  Classification authority.

    (a) Authority to originally classify information as Secret or 
Confidential may be exercised only by the Secretary of Commerce and by 
officials to whom such authority is specifically delegated. No official 
of the Department is authorized to originally classify information as 
Top Secret.
    (b) In accordance with section 1.3(c)(1) of E.O. 13526, delegations 
of original classification authority shall be limited to the minimum 
required to administer E.O. 13526. The Secretary of Commerce shall 
ensure that designated subordinate officials have a demonstrable and 
continuing need to exercise delegated original classification authority.
    (c) In accordance with section 1.3(c)(4) of E.O. 13526, each 
delegation of original classification authority shall be in writing and 
the authority shall not be redelegated except as provided in E.O. 13526.
    (d) In accordance with section 1.3(c)(4) of E.O. 13526, each 
delegation shall identify the official by name or position.
    (e) In accordance with section 1.3(c)(5) of E.O. 13526, delegations 
of original classification authority shall be reported or made available 
by name or position to the Director of the Information Security 
Oversight Office in the National Archives and Records Administration.
    (f) In accordance with section 1.3(d) of E.O. 13526, all original 
classification authorities and their designates shall receive training 
in proper classification (including the avoidance of over-
classification) and declassification as

[[Page 60]]

provided in E.O. 13526 and its implementing directives at least once a 
calendar year.

[85 FR 35375, June 10, 2020]



Sec.  4a.5  Duration of classification.

    (a) Information shall remain classified no longer than ten years 
from the date of its original classification, unless, in accordance with 
section 1.5(b) of E.O. 13526, the original classification authority 
otherwise determines that the sensitivity of the information requires 
that it be marked for declassification for up to 25 years from the date 
of the original decision.
    (b) For Department of Commerce originally classified information 
marked for an indefinite duration which contains incomplete 
declassification instructions, or lacks them entirely:
    (1) The information shall be declassified in accordance with E.O. 
13526 as soon as it no longer meets the standards for classification 
under E.O. 13526, or
    (2) if the standards for classification under E.O. 13526 are met, 
the information shall be declassified after 10 years from the date of 
the original classification, unless the original classification 
authority determines that the sensitivity of the information requires 
that it remain classified for up to 25 years from the date of the 
original classification, as provided in section 1.5.(b) of E.O. 13526.

[85 FR 35375, June 10, 2020]



Sec.  4a.6  General.

    National security information over which the Department exercises 
final classification jurisdiction shall be declassified or downgraded as 
soon as national security considerations permit. If information is 
declassified, it may continue to be exempt from public disclosure by the 
Freedom of Information Act (5 U.S.C. 552) or other applicable law.



Sec.  4a.7  Mandatory review for declassification.

    (a) Requests. Classified information under the jurisdiction of the 
Department is subject to review for declassification in accordance with 
32 CFR 2001.33, upon receipt of a written request that describes the 
information with sufficient specificity to locate it with a reasonable 
amount of effort. Requests must be submitted to the Director for 
Security, U.S. Department of Commerce, 1401 Constitution Avenue NW, 
Washington, DC 20230.
    (b) Exemptions. The following are exempt from mandatory review for 
declassification:
    (1) Information that has been reviewed for declassification within 
the past two years;
    (2) Information that is the subject of pending litigation;
    (3) Information originated by the incumbent President, the incumbent 
President's White House Staff, committees, commissions, or boards 
appointed by the incumbent President, or other entities within the 
Executive Office of the President that solely advise and assist the 
incumbent President; and
    (4) Information specifically exempt from such review by law.
    (c) Processing requirements. (1) For requests for review of 
classified information not received from the National Archives and 
Records Administration, the Director for Security, or their designate, 
shall acknowledge receipt of the request directly to the requester. If a 
request does not adequately describe the information sought in 
accordance with paragraph (a) of this section, the requester shall be 
notified that unless additional information is provided, no further 
action will be taken. The request shall be forwarded to the component 
that originated the information or that has primary interest in the 
subject matter. The component assigned action shall review the 
information in accordance with Sec.  4a.7(c)(2) through (4) within 
twenty working days.
    (2) The component assigned action shall determine whether, under the 
declassification provisions of the U.S. Department of Commerce's Manual 
of Security, the entire document or portions thereof may be 
declassified. Declassification of the information shall be

[[Page 61]]

accomplished by a designated declassification authority. Upon 
declassification, the information shall be remarked. If the information 
is not partially or entirely declassified, the reviewing official shall 
provide the reasons for denial by citing the applicable provisions of 
E.O. 13526. If the classification is a derivative decision based on 
classified source material of another Federal agency, the component 
shall provide the information to the originator for review.
    (3) If information is declassified, the component shall also 
determine whether it is releasable under the Freedom of Information Act 
(FOIA) as amended (5 U.S.C. 552). If the information is not releasable, 
the component shall advise the Director for Security that the 
information has been declassified but that it is exempt from disclosure, 
citing the appropriate exemption of the FOIA as amended.
    (4) If the request for declassification is denied in whole or in 
part, the requester shall be notified of the right to appeal the 
determination within sixty calendar days and of the procedures for such 
an appeal. If declassified information remains exempt from disclosure 
under the FOIA as amended, the requester shall be advised of the 
appellate procedures under that law.
    (d) Fees. If the request requires services for which fees are 
chargeable, the component assigned action shall calculate the 
anticipated fees to be charged, and may be required to ascertain the 
requester's willingness to pay the allowable charges as a precondition 
to taking further action on the request, in accordance with Department 
of Commerce rules promulgated under 5 U.S.C. 552(a)(4)(A) of the Freedom 
of Information Act as amended and Department of Commerce rules 
promulgated under 5 U.S.C. 552a(f)(5) of the Privacy Act of 1974 (5 
U.S.C. 552a).
    (e) Right of appeal. (1) A requester may appeal to the Director for 
Security when information requested under this section is not completely 
declassified and released after expiration of the applicable time 
limits. Within thirty working days (i.e., excluding Saturdays, Sundays, 
and legal public holidays) of receipt of a written appeal:
    (i) The Director for Security shall determine whether continued 
classification of the requested information is required in whole or in 
part;
    (ii) If information is declassified, determine whether it is 
releasable under the Freedom of Information Act as amended; and
    (iii) Notify the requester of his or her determination, making 
available any information determined to be releasable. If continued 
classification is required under the provisions of the Department of 
Commerce Manual for Security, the Director for Security shall notify the 
requester of his or her determination, including the reasons for denial 
based on applicable provisions of E.O. 13526, and of the right of final 
appeal to the Interagency Security Classification Appeals Panel.
    (2) During the declassification review of information under appeal 
the Director for Security may overrule previous determinations in whole 
or in part if continued protection in the interest of national security 
is no longer required. If the Director for Security determines that the 
information no longer requires classification, it shall be declassified 
and, unless it is otherwise exempt from disclosure under the Freedom of 
Information Act as amended, released to the requester. The Director for 
Security shall advise the original reviewing component of his or her 
decision.

[66 FR 65650, Dec. 20, 2001, as amended at 85 FR 35376, June 10, 2020]



Sec.  4a.8  Access to classified information by individuals outside the
Government.

    (a) Industrial, Educational, and Commercial Entities. Certain 
bidders, contractors, grantees, educational, scientific, or industrial 
organizations may receive classified information under the procedures 
prescribed by the National Industrial Security Program Operating Manual.
    (b) Access by historical researchers and former Presidential 
appointees. An individual engaged in historical research projects or who 
has previously occupied a policy-making position to which he or she was 
appointed by the President may be authorized access to classified 
information for a limited period,

[[Page 62]]

provided that the head of the component with jurisdiction over the 
information:
    (1) Determines in writing that:
    (i) Access is consistent with national security;
    (ii) The individual has a compelling need for access; and
    (iii) The Department's best interest is served by providing access;
    (2) Obtains in writing from the individual:
    (i) Consent to a review by the Department of any resultant notes and 
manuscripts for the purpose of determining that no classified 
information is contained in them; and
    (ii) Agreement to safeguard classified information in accordance 
with applicable requirements; and
    (iii) A detailed description of the individual's research;
    (3) Ensures that custody of classified information is maintained at 
a Department facility;
    (4) Limits access granted to former Presidential appointees to items 
that the individual originated, reviewed, signed, or received while 
serving as a Presidential appointee; and
    (5) Receives from the Director for Security:
    (i) A determination that the individual is trustworthy; and
    (ii) Approval to grant access to the individual.
    (c) An individual seeking access should describe the information 
with sufficient specificity to locate and compile it with a reasonable 
amount of effort. If the access requested by a historical researcher or 
former Presidential appointee requires services for which fees are 
chargeable, the responsible component shall notify the individual in 
advance.
    (d) This section applies only to classified information originated 
by the Department, or to information in the sole custody of the 
Department. Otherwise, the individual shall be referred to the 
classifying agency.

[66 FR 65650, Dec. 20, 2001, as amended at 85 FR 35376, June 10, 2020]



PART 5_OPERATION OF VENDING STANDS--Table of Contents



Sec.
5.1 Purpose.
5.2 Policy.
5.3 Assignment of functions and authorities.
5.4 Permits.
5.5 Vending machines.
5.6 Appeals.
5.7 Reports.
5.8 Approval of regulations.

    Authority: Sec. 4, 68 Stat. 663; 20 U.S.C. 107.

    Source: 28 FR 7772, July 31, 1963, unless otherwise noted.



Sec.  5.1  Purpose.

    This part prescribes regulations to assure the granting of 
preference to blind persons licensed under the provisions of the 
Randolph-Sheppard Vending Stand Act (49 Stat. 1559, as amended by the 
act of August 3, 1954, 68 Stat. 663; 20 U.S.C. 107) for the operation of 
vending stands (which term as used in this order includes vending 
machines).



Sec.  5.2  Policy.

    (a) The Department adopts the Federal policy announced in the 
Randolph-Sheppard Vending Stand Act, as amended, to provide blind 
persons with remunerative employment to enlarge the economic 
opportunities of the blind and to stimulate the blind to greater efforts 
in striving to make themselves self-supporting.
    (b) It shall be the policy of the Department to authorize blind 
persons licensed under the provisions of the Randolph-Sheppard Vending 
Stand Act, as amended to operate vending stands without any charge for 
space or necessary utilities on properties owned and occupied by the 
Department or on which the Department controls maintenance, operation, 
and protection.
    (c) The Department will cooperate with the Department of Education 
and State licensing agencies in making surveys to determine whether and 
where vending stands may be properly and profitably operated by licensed 
blind persons.
    (d) The application of a State licensing agency for a permit may be 
denied or revoked if it is determined that the

[[Page 63]]

interests of the United States would be adversely affected or the 
Department would be unduly inconvenienced by the issuance of a permit or 
its continuance.
    (e) Disagreements concerning the denial, revocation, or modification 
of a permit may be appealed by the State licensing agency as set forth 
in Sec.  5.6.

[28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990]



Sec.  5.3  Assignment of functions and authorities.

    (a) The Director, Office of Administrative Services, shall carry out 
the Department's responsibility to provide, in accordance with 
applicable law and regulation, the maximum opportunity for qualified 
blind persons to operate vending stands.
    (b) Subject to instructions issued by the Director, Office of 
Administrative Services, the head of each primary organization unit 
shall be responsible for implementing this program within his area.
    (c) The Director, Office of Administrative Services for the primary 
organization units located in the main Commerce building and the head of 
each other primary organization unit will make determinations with 
respect to the terms of permits including the location and operation of 
vending stands and machines in their respective areas.
    (d) Unresolved differences and significant violations of the terms 
of permits shall be reported to the State licensing agency. Where no 
corrective action is forthcoming, the matter shall be referred to the 
Office of Vocational Rehabilitation, Department of Education for 
consideration prior to further action.

[28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990]



Sec.  5.4  Permits.

    (a) No permit, lease, or other arrangement for the operation of a 
vending stand on property under control of the Department shall be 
entered into or renewed without first consulting the State licensing 
agency or equivalent authority.
    (b) The permit shall be conditioned upon the vending stand meeting 
specified standards, including standards relating to appearance, safety, 
sanitation, maintenance, and efficiency of operation. Due regard shall 
be given to laws and regulations for the public welfare which are 
applicable, or would be applicable, if the property involved was not 
owned or controlled by the Federal Government.
    (c) The permit shall specify the types of articles specified in 
section 2(a)(4) of the Act as amended (newspapers, periodicals, 
confections, tobacco products, articles dispensed automatically or in 
containers or wrappings in which they are placed before delivery to the 
vending stand). Such other related articles as the State licensing 
agency asks to be included shall be permitted to be sold, unless such 
factors as inadequacy of available facilities, safety, health, public 
welfare, or legal requirements demand otherwise.
    (d) The permit shall contain a provision that alterations made by 
other than the United States shall be approved by and conducted under 
the supervision of an appropriate official of the Department or the 
primary organization unit concerned.
    (e) The permit may contain other reasonable conditions necessary for 
the protection of the Government and prospective patrons of the stand.
    (f) The permit shall describe the location of the stand proper and 
the location of any vending machines which are operated in conjunction 
with it.



Sec.  5.5  Vending machines.

    (a) The income from any vending machines which are located within 
reasonable proximity to and are in direct competition with a vending 
stand for which a permit has been issued under these regulations shall 
be assigned to the operator of such stand.
    (b) If a vending machine vends articles of a type authorized by the 
permit and is so located that it attracts customers who would otherwise 
patronize the vending stand, such machine shall be deemed to be in 
reasonable proximity to and direct competition with the stand.



Sec.  5.6  Appeals.

    (a) In any instance where the Department of Commerce official as 
provided

[[Page 64]]

in Sec.  5.3(c) and the State licensing agency fail to reach agreement 
concerning the granting, revocation, or modification of a permit, the 
location, method of operation, assignment of proceeds, or other terms of 
a permit (including articles which may be sold), the State licensing 
agency shall be notified in writing by the Commerce official concerned 
that it has the right to appeal such disagreements, within 30 days of 
the notice, to the Assistant Secretary for Administration for 
investigation and final decision.
    (b) Upon receipt of a timely appeal the Assistant Secretary for 
Administration will cause a full investigation to be made. The State 
licensing agency shall be given an opportunity to present information 
pertinent to the facts and circumstances of the case. The complete 
investigation report including the recommendations of the investigating 
officer shall be submitted to the Assistant Secretary for Administration 
within 60 days from the date of the appeal.
    (c) The Assistant Secretary for Administration will render a final 
decision on the appeal within 90 days of the date of appeal.
    (d) The State licensing agency will be informed of the final 
decision on its appeal. Copies of the decision will be forwarded to the 
Department of Commerce official concerned and the Department of 
Education.

[28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990]



Sec.  5.7  Reports.

    No later than fifteen days following the end of each fiscal year the 
responsible officials set forth in Sec.  5.3(c) shall forward to the 
Director, Office of Administrative Services a report on activities under 
this order. The report shall include:
    (a) The number of applications, including requests for installations 
initiated by the Department, for vending stands received from State 
licensing agencies;
    (b) The number of such requests accepted or approved;
    (c) The number denied, on which no appeal was made and the number 
denied on which an appeal was made; and
    (d) The number and status of any requests still pending.



Sec.  5.8  Approval of regulations.

    The provisions of this part have been approved by the Director, 
Bureau of the Budget, pursuant to Executive Order 10604, of April 22, 
1955.



PART 6_CIVIL MONETARY PENALTY ADJUSTMENTS FOR INFLATION-
-Table of Contents



Sec.
6.1 Definitions.
6.2 Purpose and scope.
6.3 Adjustments for inflation to civil monetary penalties.
6.4 Effective date of adjustments for inflation to civil monetary 
          penalties.
6.5 Subsequent annual adjustments for inflation to civil monetary 
          penalties.

    Authority: Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); 
Pub. L. 104-134, 110 Stat. 1321 (31 U.S.C. 3701 note); Sec. 701 of Pub. 
L. 114-74, 129 Stat. 599 (28 U.S.C. 1 note; 28 U.S.C. 2461 note).

    Source: 87 FR 158, Jan. 4, 2022, unless otherwise noted.



Sec.  6.1  Definitions.

    (a) The Department of Commerce means the United States Department of 
Commerce.
    (b) Civil Monetary Penalty means any penalty, fine, or other 
sanction that:
    (1) Is for a specific monetary amount as provided by Federal law, or 
has a maximum amount provided for by Federal law; and
    (2) Is assessed or enforced by an agency pursuant to Federal law; 
and
    (3) Is assessed or enforced pursuant to an administrative proceeding 
or a civil action in the Federal courts.



Sec.  6.2  Purpose and scope.

    The purpose of this part is to make adjustments for inflation to 
civil monetary penalties, as required by the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Pub. L. 101-410; 28 U.S.C. 2461), as 
amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134) 
and the Federal Civil Penalties Inflation Adjustment Act Improvements 
Act of 2015 (Section 701 of Pub. L. 114-74), of each civil monetary

[[Page 65]]

penalty provided by law within the jurisdiction of the United States 
Department of Commerce (Department of Commerce).



Sec.  6.3  Adjustments for inflation to civil monetary penalties.

    The civil monetary penalties provided by law within the jurisdiction 
of the Department of Commerce, as set forth in paragraphs (a) through 
(f) of this section, are hereby adjusted for inflation in accordance 
with the Federal Civil Penalties Inflation Adjustment Act of 1990, as 
amended, from the amounts of such civil monetary penalties that were in 
effect as of January 15, 2021, to the amounts of such civil monetary 
penalties, as thus adjusted. The year stated in parenthesis represents 
the year that the civil monetary penalty was last set by law or adjusted 
by law (excluding adjustments for inflation).
    (a) United States Department of Commerce. (1) 31 U.S.C. 3802(a)(1), 
Program Fraud Civil Remedies Act of 1986 (1986), violation, maximum from 
$11,803 to $12,537.
    (2) 31 U.S.C. 3802(a)(2), Program Fraud Civil Remedies Act of 1986 
(1986), violation, maximum from $11,803 to $12,537.
    (3) 31 U.S.C. 3729(a)(1)(G), False Claims Act (1986); violation, 
minimum from $11,803 to $12,537; maximum from $23,607 to $25,076.
    (b) Bureau of Economic Analysis. 22 U.S.C. 3105(a), International 
Investment and Trade in Services Act (1990); failure to furnish 
information, minimum from $4,876 to $5,179; maximum from $48,762 to 
$51,796.
    (c) Bureau of Industry and Security. (1) 15 U.S.C. 5408(b)(1), 
Fastener Quality Act (1990), violation, maximum from $48,762 to $51,796.
    (2) 22 U.S.C. 6761(a)(1)(A), Chemical Weapons Convention 
Implementation Act (1998), violation, maximum from $39,693 to $42,163.
    (3) 22 U.S.C. 6761(a)(l)(B), Chemical Weapons Convention 
Implementation Act (1998), violation, maximum from $7,939 to $8,433.
    (4) 50 U.S.C. 1705(b), International Emergency Economic Powers Act 
(2007), violation, maximum from $311,562 to $330,947.
    (5) 22 U.S.C. 8142(a), United States Additional Protocol 
Implementation Act (2006), violation, maximum from $32,258 to $34,265.
    (6) 50 U.S.C. 4819, Export Controls Act of 2018 (2018), violation, 
maximum from $308,901 to $328,121.
    (d) Census Bureau. (1) 13 U.S.C. 304, Collection of Foreign Trade 
Statistics (2002), each day's delinquency of a violation; total of not 
to exceed maximum per violation, from $1,436 to $1,525; maximum per 
violation, from $14,362 to $15,256.
    (2) 13 U.S.C. 305(b), Collection of Foreign Trade Statistics (2002), 
violation, maximum from $14,362 to $15,256.
    (e) International Trade Administration. (1) 19 U.S.C. 81s, Foreign 
Trade Zone (1934), violation, maximum from $3,011 to $3,198.
    (2) 19 U.S.C. 1677f(f)(4), U.S.-Canada Free Trade Agreement 
Protective Order (1988), violation, maximum from $216,628 to $230,107.
    (f) National Oceanic and Atmospheric Administration. (1) 51 U.S.C. 
60123(a), Land Remote Sensing Policy Act of 2010 (2010), violation, 
maximum from $11,905 to $12,646.
    (2) 51 U.S.C. 60148(c), Land Remote Sensing Policy Act of 2010 
(2010), violation, maximum from $11,905 to $12,646.
    (3) 16 U.S.C. 773f(a), Northern Pacific Halibut Act of 1982 (2007), 
violation, maximum from $249,251 to $264,759.
    (4) 16 U.S.C. 783, Sponge Act (1914), violation, maximum from $1,780 
to $1,891.
    (5) 16 U.S.C. 957(d), (e), and (f), Tuna Conventions Act of 1950 
(1962):
    (i) Violation of 16 U.S.C. 957(a), maximum from $88,952 to $94,487.
    (ii) Subsequent violation of 16 U.S.C. 957(a), maximum from $191,590 
to $203,511.
    (iii) Violation of 16 U.S.C. 957(b), maximum from $3,011 to $3,198.
    (iv) Subsequent violation of 16 U.S.C. 957(b), maximum from $17,791 
to $18,898.
    (v) Violation of 16 U.S.C. 957(c), maximum from $383,182 to 
$407,024.
    (6) 16 U.S.C. 957(i), Tuna Conventions Act of 1950,\1\ violation, 
maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \1\ This National Oceanic and Atmospheric Administration maximum 
civil monetary penalty, as prescribed by law, is the maximum civil 
monetary penalty per 16 U.S.C. 1858(a), Magnuson-Stevens Fishery 
Conservation and Management Act civil monetary penalty (paragraph 
(f)(15) of this section).

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

[[Page 66]]

    (7) 16 U.S.C. 959, Tuna Conventions Act of 1950,\2\ violation, 
maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \2\ See footnote 1.
---------------------------------------------------------------------------

    (8) 16 U.S.C. 971f(a), Atlantic Tunas Convention Act of 1975,\3\ 
violation, maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \3\ See footnote 1.
---------------------------------------------------------------------------

    (9) 16 U.S.C. 973f(a), South Pacific Tuna Act of 1988 (1988), 
violation, maximum from $541,570 to $575,266.
    (10) 16 U.S.C. 1174(b), Fur Seal Act Amendments of 1983 (1983), 
violation, maximum from $25,780 to $27,384.
    (11) 16 U.S.C. 1375(a)(1), Marine Mammal Protection Act of 1972 
(1972), violation, maximum from $30,107 to $31,980.
    (12) 16 U.S.C. 1385(e), Dolphin Protection Consumer Information 
Act,\4\ violation, maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \4\ See footnote 1.
---------------------------------------------------------------------------

    (13) 16 U.S.C. 1437(d)(1), National Marine Sanctuaries Act (1992), 
violation, maximum from $183,629 to $195,054.
    (14) 16 U.S.C. 1540(a)(1), Endangered Species Act of 1973:
    (i) Violation as specified (1988), maximum from $54,157 to $57,527.
    (ii) Violation as specified (1988), maximum from $25,995 to $27,612.
    (iii) Otherwise violation (1978), maximum from $1,780 to $1,891.
    (15) 16 U.S.C. 1858(a), Magnuson-Stevens Fishery Conservation and 
Management Act (1990), violation, maximum from $195,047 to $207,183.
    (16) 16 U.S.C. 2437(a), Antarctic Marine Living Resources Convention 
Act of 1984,\5\ violation, maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \5\ See footnote 1.
---------------------------------------------------------------------------

    (17) 16 U.S.C. 2465(a), Antarctic Protection Act of 1990,\6\ 
violation, maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \6\ See footnote 1.
---------------------------------------------------------------------------

    (18) 16 U.S.C. 3373(a), Lacey Act Amendments of 1981 (1981):
    (i) 16 U.S.C. 3373(a)(1), violation, maximum from $27,879 to 
$29,614.
    (ii) 16 U.S.C. 3373(a)(2), violation, maximum from $697 to $740.
    (19) 16 U.S.C. 3606(b)(1), Atlantic Salmon Convention Act of 
1982,\7\ violation, maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \7\ See footnote 1.
---------------------------------------------------------------------------

    (20) 16 U.S.C. 3637(b), Pacific Salmon Treaty Act of 1985,\8\ 
violation, maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \8\ See footnote 1.
---------------------------------------------------------------------------

    (21) 16 U.S.C. 4016(b)(1)(B), Fish and Seafood Promotion Act of 1986 
(1986); violation, minimum from $1,180 to $1,253; maximum from $11,803 
to $12,537.
    (22) 16 U.S.C. 5010, North Pacific Anadromous Stocks Act of 1992,\9\ 
violation, maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \9\ See footnote 1.
---------------------------------------------------------------------------

    (23) 16 U.S.C. 5103(b)(2), Atlantic Coastal Fisheries Cooperative 
Management Act,\10\ violation, maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \10\ See footnote 1.
---------------------------------------------------------------------------

    (24) 16 U.S.C. 5154(c)(1), Atlantic Striped Bass Conservation 
Act,\11\ violation, maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \11\ See footnote 1.
---------------------------------------------------------------------------

    (25) 16 U.S.C. 5507(a), High Seas Fishing Compliance Act of 1995 
(1995), violation, maximum from $169,412 to $179,953.
    (26) 16 U.S.C. 5606(b), Northwest Atlantic Fisheries Convention Act 
of 1995,\12\ violation, maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \12\ See footnote 1.
---------------------------------------------------------------------------

    (27) 16 U.S.C. 6905(c), Western and Central Pacific Fisheries 
Convention Implementation Act,\13\ violation, maximum from $195,047 to 
$207,183.
---------------------------------------------------------------------------

    \13\ See footnote 1.
---------------------------------------------------------------------------

    (28) 16 U.S.C. 7009(c) and (d), Pacific Whiting Act of 2006,\14\ 
violation, maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \14\ See footnote 1.
---------------------------------------------------------------------------

    (29) 22 U.S.C. 1978(e), Fishermen's Protective Act of 1967 (1971):
    (i) Violation, maximum from $30,107 to $31,980.
    (ii) Subsequent violation, maximum from $88,952 to $94,487.
    (30) 30 U.S.C. 1462(a), Deep Seabed Hard Mineral Resources Act 
(1980), violation, maximum, from $76,764 to $81,540.
    (31) 42 U.S.C. 9152(c), Ocean Thermal Energy Conversion Act of 1980 
(1980),

[[Page 67]]

violation, maximum from $76,764 to $81,540.
    (32) 16 U.S.C. 1827a, Billfish Conservation Act of 2012,\15\ 
violation, maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \15\ See footnote 1.
---------------------------------------------------------------------------

    (33) 16 U.S.C. 7407(b), Port State Measures Agreement Act of 
2015,\16\ violation, maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \16\ See footnote 1.
---------------------------------------------------------------------------

    (34) 16 U.S.C. 1826g(f), High Seas Driftnet Fishing Moratorium 
Protection Act,\17\ violation, maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \17\ See footnote 1.
---------------------------------------------------------------------------

    (35) 16 U.S.C. 7705, Ensuring Access to Pacific Fisheries Act,\18\ 
violation, maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \18\ See footnote 1.
---------------------------------------------------------------------------

    (36) 16 U.S.C. 7805, Ensuring Access to Pacific Fisheries Act,\19\ 
violation, maximum from $195,047 to $207,183.
---------------------------------------------------------------------------

    \19\ See footnote 1.
---------------------------------------------------------------------------

    (g) National Technical Information Service. 42 U.S.C. 1306c(c), 
Bipartisan Budget Act of 2013 (2013), violation, minimum from $1,012 to 
$1,075; maximum total penalty on any person for any calendar year, 
excluding willful or intentional violations, from $252,955 to $268,694.



Sec.  6.4  Effective date of adjustments for inflation to civil monetary
penalties.

    The Department of Commerce's 2022 adjustments for inflation made by 
Sec.  6.3, of the civil monetary penalties there specified, are 
effective on January 15, 2022, and said civil monetary penalties, as 
thus adjusted by the adjustments for inflation made by Sec.  6.3, apply 
only to those civil monetary penalties, including those whose associated 
violation predated such adjustment, which are assessed by the Department 
of Commerce after the effective date of the new civil monetary penalty 
level, and before the effective date of any future adjustments for 
inflation to civil monetary penalties thereto made subsequent to January 
15, 2022 as provided in Sec.  6.5.



Sec.  6.5  Subsequent annual adjustments for inflation to civil monetary
penalties.

    The Secretary of Commerce or his or her designee by regulation shall 
make subsequent adjustments for inflation to the Department of 
Commerce's civil monetary penalties annually, which shall take effect 
not later than January 15, notwithstanding section 553 of title 5, 
United States Code.



PART 7_SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES
SUPPLY CHAIN--Table of Contents



                            Subpart A_General

7.1 Purpose.
7.2 Definitions.
7.3 Scope of Covered ICTS Transactions.
7.4 Determination of foreign adversaries.
7.5 Effect on other laws.
7.6 Amendment, modification, or revocation.
7.7 Public disclosure of records.

                  Subpart B_Review of ICTS Transactions

7.100 General.
7.101 Information to be furnished on demand.
7.102 Confidentiality of information.
7.103 Initial review of ICTS Transactions.
7.104 First interagency consultation.
7.105 Initial determination.
7.106 Recordkeeping requirement.
7.107 Procedures governing response and mitigation.
7.108 Second interagency consultation.
7.109 Final determination.
7.110 Classified national security information.

                          Subpart C_Enforcement

7.200 Penalties.

    Authority: 50 U.S.C. 1701 et seq.; 50 U.S.C. 1601 et seq.; E.O. 
13873, 84 FR 22689.

    Source: 86 FR 4923, Jan. 19, 2021, unless otherwise noted.



                            Subpart A_General



Sec.  7.1  Purpose.

    These regulations set forth the procedures by which the Secretary 
may: (a) Determine whether any acquisition, importation, transfer, 
installation, dealing in, or use of any information and communications 
technology or

[[Page 68]]

service (ICTS Transaction) that has been designed, developed, 
manufactured, or supplied by persons owned by, controlled by, or subject 
to the jurisdiction or direction of foreign adversaries poses certain 
undue or unacceptable risks as identified in the Executive Order; (b) 
issue a determination to prohibit an ICTS Transaction; (c) direct the 
timing and manner of the cessation of the ICTS Transaction; and (d) 
consider factors that may mitigate the risks posed by the ICTS 
Transaction. The Secretary will evaluate ICTS Transactions under this 
rule, which include classes of transactions, on a case-by-case basis. 
The Secretary, in consultation with appropriate agency heads specified 
in Executive Order 13873 and other relevant governmental bodies, as 
appropriate, shall make an initial determination as to whether to 
prohibit a given ICTS Transaction or propose mitigation measures, by 
which the ICTS Transaction may be permitted. Parties may submit 
information in response to the initial determination, including a 
response to the initial determination and any supporting materials and/
or proposed measures to remediate or mitigate the risks identified in 
the initial determination as posed by the ICTS Transaction at issue. 
Upon consideration of the parties' submissions, the Secretary will issue 
a final determination prohibiting the transaction, not prohibiting the 
transaction, or permitting the transaction subject to the adoption of 
measures determined by the Secretary to sufficiently mitigate the risks 
associated with the ICTS Transaction. The Secretary shall also engage in 
coordination and information sharing, as appropriate, with international 
partners on the application of these regulations.



Sec.  7.2  Definitions.

    Appropriate agency heads means the Secretary of the Treasury, the 
Secretary of State, the Secretary of Defense, the Attorney General, the 
Secretary of Homeland Security, the United States Trade Representative, 
the Director of National Intelligence, the Administrator of General 
Services, the Chairman of the Federal Communications Commission, and the 
heads of any other executive departments and agencies the Secretary 
determines is appropriate.
    Commercial item has the same meaning given to it in Federal 
Acquisition Regulation (48 CFR part 2.101).
    Department means the United States Department of Commerce.
    Entity means a partnership, association, trust, joint venture, 
corporation, group, subgroup, or other non-U.S. governmental 
organization.
    Executive Order means Executive Order 13873, May 15, 2019, 
``Securing the Information and Communications Technology and Services 
Supply Chain''.
    Foreign adversary means any foreign government or foreign non-
government person determined by the Secretary to have engaged in a long-
term pattern or serious instances of conduct significantly adverse to 
the national security of the United States or security and safety of 
United States persons.
    ICTS Transaction means any acquisition, importation, transfer, 
installation, dealing in, or use of any information and communications 
technology or service, including ongoing activities, such as managed 
services, data transmission, software updates, repairs, or the 
platforming or data hosting of applications for consumer download. An 
ICTS Transaction includes any other transaction, the structure of which 
is designed or intended to evade or circumvent the application of the 
Executive Order. The term ICTS Transaction includes a class of ICTS 
Transactions.
    IEEPA means the International Emergency Economic Powers Act (50 
U.S.C. 1701, et seq.).
    Information and communications technology or services or ICTS means 
any hardware, software, or other product or service, including cloud-
computing services, primarily intended to fulfill or enable the function 
of information or data processing, storage, retrieval, or communication 
by electronic means (including electromagnetic, magnetic, and photonic), 
including through transmission, storage, or display.
    Party or parties to a transaction means a person engaged in an ICTS 
Transaction, including the person acquiring the ICTS and the person from 
whom the ICTS is acquired. Party or parties

[[Page 69]]

to a transaction include entities designed, or otherwise used with the 
intention, to evade or circumvent application of the Executive Order. 
For purposes of this rule, this definition does not include common 
carriers, except to the extent that a common carrier knew or should have 
known (as the term ``knowledge'' is defined in 15 CFR 772.1) that it was 
providing transportation services of ICTS to one or more of the parties 
to a transaction that has been prohibited in a final written 
determination made by the Secretary or, if permitted subject to 
mitigation measures, in violation of such mitigation measures.
    Person means an individual or entity.
    Person owned by, controlled by, or subject to the jurisdiction or 
direction of a foreign adversary means any person, wherever located, who 
acts as an agent, representative, or employee, or any person who acts in 
any other capacity at the order, request, or under the direction or 
control, of a foreign adversary or of a person whose activities are 
directly or indirectly supervised, directed, controlled, financed, or 
subsidized in whole or in majority part by a foreign adversary; any 
person, wherever located, who is a citizen or resident of a nation-state 
controlled by a foreign adversary; any corporation, partnership, 
association, or other organization organized under the laws of a nation-
state controlled by a foreign adversary; and any corporation, 
partnership, association, or other organization, wherever organized or 
doing business, that is owned or controlled by a foreign adversary.
    Secretary means the Secretary of Commerce or the Secretary's 
designee.
    Sensitive personal data means:
    (1) Personally-identifiable information, including:
    (i) Financial data that could be used to analyze or determine an 
individual's financial distress or hardship;
    (ii) The set of data in a consumer report, as defined under 15 
U.S.C. 1681a, unless such data is obtained from a consumer reporting 
agency for one or more purposes identified in 15 U.S.C. 1681b(a);
    (iii) The set of data in an application for health insurance, long-
term care insurance, professional liability insurance, mortgage 
insurance, or life insurance;
    (iv) Data relating to the physical, mental, or psychological health 
condition of an individual;
    (v) Non-public electronic communications, including email, 
messaging, or chat communications, between or among users of a U.S. 
business's products or services if a primary purpose of such product or 
service is to facilitate third-party user communications;
    (vi) Geolocation data collected using positioning systems, cell 
phone towers, or WiFi access points such as via a mobile application, 
vehicle GPS, other onboard mapping tool, or wearable electronic device;
    (vii) Biometric enrollment data including facial, voice, retina/
iris, and palm/fingerprint templates;
    (viii) Data stored and processed for generating a Federal, State, 
Tribal, Territorial, or other government identification card;
    (ix) Data concerning U.S. Government personnel security clearance 
status; or
    (x) The set of data in an application for a U.S. Government 
personnel security clearance or an application for employment in a 
position of public trust; or
    (2) Genetic information, which includes the results of an 
individual's genetic tests, including any related genetic sequencing 
data, whenever such results, in isolation or in combination with 
previously released or publicly available data, constitute identifiable 
data. Such results shall not include data derived from databases 
maintained by the U.S. Government and routinely provided to private 
parties for purposes of research. For purposes of this paragraph, 
``genetic test'' shall have the meaning provided in 42 U.S.C. 300gg-
91(d)(17).
    Undue or unacceptable risk means those risks identified in Section 
1(a)(ii) of the Executive Order.
    United States person means any United States citizen; any permanent 
resident alien; or any entity organized under the laws of the United 
States or any jurisdiction within the United States (including such 
entity's foreign branches).

[[Page 70]]



Sec.  7.3  Scope of Covered ICTS Transactions.

    (a) This part applies only to an ICTS Transaction that:
    (1) Is conducted by any person subject to the jurisdiction of the 
United States or involves property subject to the jurisdiction of the 
United States;
    (2) Involves any property in which any foreign country or a national 
thereof has an interest (including through an interest in a contract for 
the provision of the technology or service);
    (3) Is initiated, pending, or completed on or after January 19, 
2021, regardless of when any contract applicable to the transaction is 
entered into, dated, or signed or when any license, permit, or 
authorization applicable to such transaction was granted. Any act or 
service with respect to an ICTS Transaction, such as execution of any 
provision of a managed services contract, installation of software 
updates, or the conducting of repairs, that occurs on or after January 
19, 2021 may be deemed an ICTS Transaction within the scope of this 
part, even if the contract was initially entered into, or the activity 
commenced, prior to January 19, 2021; and
    (4) Involves one of the following ICTS:
    (i) ICTS that will be used by a party to a transaction in a sector 
designated as critical infrastructure by Presidential Policy Directive 
21--Critical Infrastructure Security and Resilience, including any 
subsectors or subsequently designated sectors;
    (ii) Software, hardware, or any other product or service integral 
to:
    (A) Wireless local area networks, including:
    (1) Distributed antenna systems; and
    (2) Small-cell or micro-cell base stations;
    (B) Mobile networks, including:
    (1) eNodeB based stations;
    (2) gNodeB or 5G new radio base stations;
    (3) NodeB base stations;
    (4) Home location register databases;
    (5) Home subscriber servers;
    (6) Mobile switching centers;
    (7) Session border controllers; and
    (8) Operation support systems;
    (C) Satellite payloads, including:
    (1) Satellite telecommunications systems;
    (2) Satellite remote sensing systems; and
    (3) Satellite position, navigation, and timing systems;
    (D) Satellite operations and control, including:
    (1) Telemetry, tracking, and control systems;
    (2) Satellite control centers;
    (3) Satellite network operations;
    (4) Multi-terminal ground stations; and
    (5) Satellite uplink centers;
    (E) Cable access points, including:
    (1) Core routers;
    (2) Core networks; and
    (3) Core switches;
    (F) Wireline access points, including:
    (1) Access infrastructure datalinks; and
    (2) Access infrastructure digital loops;
    (G) Core networking systems, including:
    (1) Core infrastructure synchronous optical networks and synchronous 
digital hierarchy systems;
    (2) Core infrastructure dense wavelength division multiplexing or 
optical transport network systems;
    (3) Core infrastructure internet protocol and internet routing 
systems;
    (4) Core infrastructure content delivery network systems;
    (5) Core infrastructure internet protocol and multiprotocol label 
switching systems;
    (6) Data center multiprotocol label switching routers; and
    (7) Metropolitan multiprotocol label switching routers; or
    (H) Long- and short-haul networks, including:
    (1) Fiber optical cables; and
    (2) Repeaters;
    (iii) Software, hardware, or any other product or service integral 
to data hosting or computing services, to include software-defined 
services such as virtual private servers, that uses, processes, or 
retains, or is expected to use, process, or retain, sensitive personal 
data on greater than one million U.S. persons at any point over the 
twelve (12) months preceding an ICTS Transaction, including:
    (A) Internet hosting services;

[[Page 71]]

    (B) Cloud-based or distributed computing and data storage;
    (C) Managed services; and
    (D) Content delivery services;
    (iv) Any of the following ICTS products, if greater than one million 
units have been sold to U.S. persons at any point over the twelve (12) 
months prior to an ICTS Transaction:
    (A) Internet-enabled sensors, webcams, and any other end-point 
surveillance or monitoring device;
    (B) Routers, modems, and any other home networking device; or
    (C) Drones or any other unmanned aerial system;
    (v) Software designed primarily for connecting with and 
communicating via the internet that is in use by greater than one 
million U.S. persons at any point over the twelve (12) months preceding 
an ICTS Transaction, including:
    (A) Desktop applications;
    (B) Mobile applications;
    (C) Gaming applications; and
    (D) Web-based applications; or
    (vi) ICTS integral to:
    (A) Artificial intelligence and machine learning;
    (B) Quantum key distribution;
    (C) Quantum computing;
    (D) Drones;
    (E) Autonomous systems; or
    (F) Advanced Robotics.
    (b) This part does not apply to an ICTS Transaction that:
    (1) Involves the acquisition of ICTS items by a United States person 
as a party to a transaction authorized under a U.S. government-
industrial security program; or
    (2) The Committee on Foreign Investment in the United States (CFIUS) 
is actively reviewing, or has reviewed, as a covered transaction or 
covered real estate transaction or as part of such a transaction under 
section 721 of the Defense Production Act of 1950, as amended, and its 
implementing regulations.
    (c) (c) Notwithstanding the exemption in paragraph (b)(2) of this 
section, ICTS Transactions conducted by parties to transactions reviewed 
by CFIUS that were not part of the covered transaction or covered real 
estate transaction reviewed by CFIUS remain fully subject to this part.



Sec.  7.4  Determination of foreign adversaries.

    (a) The Secretary has determined that the following foreign 
governments or foreign non-government persons have engaged in a long-
term pattern or serious instances of conduct significantly adverse to 
the national security of the United States or security and safety of 
United States persons and, therefore, constitute foreign adversaries 
solely for the purposes of the Executive Order, this rule, and any 
subsequent rule:
    (1) The People's Republic of China, including the Hong Kong Special 
Administrative Region (China);
    (2) Republic of Cuba (Cuba);
    (3) Islamic Republic of Iran (Iran);
    (4) Democratic People's Republic of Korea (North Korea);
    (5) Russian Federation (Russia); and
    (6) Venezuelan politician Nicol[aacute]s Maduro (Maduro Regime).
    (b) The Secretary's determination of foreign adversaries is solely 
for the purposes of the Executive Order, this rule, and any subsequent 
rule promulgated pursuant to the Executive Order. Pursuant to the 
Secretary's discretion, the list of foreign adversaries will be revised 
as determined to be necessary. Such revisions will be effective 
immediately upon publication in the Federal Register without prior 
notice or opportunity for public comment.
    (c) The Secretary's determination is based on multiple sources, 
including:
    (1) National Security Strategy of the United States;
    (2) The Director of National Intelligence's 2016-2019 Worldwide 
Threat Assessments of the U.S. Intelligence Community;
    (3) The 2018 National Cyber Strategy of the United States of 
America; and
    (4) Reports and assessments from the U.S. Intelligence Community, 
the U.S. Departments of Justice, State and Homeland Security, and other 
relevant sources.
    (d) (d) The Secretary will periodically review this list in 
consultation with appropriate agency heads and may add to, subtract 
from, supplement, or otherwise amend this list. Any amendment to this 
list will apply to any ICTS Transaction that is initiated,

[[Page 72]]

pending, or completed on or after the date that the list is amended.



Sec.  7.5  Effect on other laws.

    Nothing in this part shall be construed as altering or affecting any 
other authority, process, regulation, investigation, enforcement 
measure, or review provided by or established under any other provision 
of Federal law, including prohibitions under the National Defense 
Authorization Act of 2019, the Federal Acquisition Regulations, or 
IEEPA, or any other authority of the President or the Congress under the 
Constitution of the United States.



Sec.  7.6  Amendment, modification, or revocation.

    Except as otherwise provided by law, any determinations, 
prohibitions, or decisions issued under this part may be amended, 
modified, or revoked, in whole or in part, at any time.



Sec.  7.7  Public disclosure of records.

    Public requests for agency records related to this part will be 
processed in accordance with the Department of Commerce's Freedom of 
Information Act regulations, 15 CFR part 4, or other applicable law and 
regulation.



                  Subpart B_Review of ICTS Transactions



Sec.  7.100  General.

    In implementing this part, the Secretary of Commerce may:
    (a) Consider any and all relevant information held by, or otherwise 
made available to, the Federal Government that is not otherwise 
restricted by law for use for this purpose, including:
    (1) Publicly available information;
    (2) Confidential business information, as defined in 19 CFR 201.6, 
or proprietary information;
    (3) Classified National Security Information, as defined in 
Executive Order 13526 (December 29, 2009) and its predecessor executive 
orders, and Controlled Unclassified Information, as defined in Executive 
Order 13556 (November 4, 2010);
    (4) Information obtained from state, local, tribal, or foreign 
governments or authorities;
    (5) Information obtained from parties to a transaction, including 
records related to such transaction that any party uses, processes, or 
retains, or would be expected to use, process, or retain, in their 
ordinary course of business for such a transaction;
    (6) Information obtained through the authority granted under 
sections 2(a) and (c) of the Executive Order and IEEPA, as set forth in 
U.S.C. 7.101;
    (7) Information provided by any other U.S. Government national 
security body, in each case only to the extent necessary for national 
security purposes, and subject to applicable confidentiality and 
classification requirements, including the Committee for the Assessment 
of Foreign Participation in the United States Telecommunications 
Services Sector and the Federal Acquisitions Security Council and its 
designated information-sharing bodies; and
    (8) Information provided by any other U.S. Government agency, 
department, or other regulatory body, including the Federal 
Communications Commission, Department of Homeland Security, and 
Department of Justice;
    (b) Consolidate the review of any ICTS Transactions with other 
transactions already under review where the Secretary determines that 
the transactions raise the same or similar issues, or that are otherwise 
properly consolidated;
    (c) In consultation with the appropriate agency heads, in 
determining whether an ICTS Transaction involves ICTS designed, 
developed, manufactured, or supplied, by persons owned by, controlled 
by, or subject to the jurisdiction or direction of a foreign adversary, 
consider the following:
    (1) Whether the person or its suppliers have headquarters, research, 
development, manufacturing, test, distribution, or service facilities, 
or other operations in a foreign country, including one controlled by, 
or subject to the jurisdiction of, a foreign adversary;
    (2) Ties between the person--including its officers, directors or 
similar officials, employees, consultants, or contractors--and a foreign 
adversary;
    (3) Laws and regulations of any foreign adversary in which the 
person is headquartered or conducts operations,

[[Page 73]]

including research and development, manufacturing, packaging, and 
distribution; and
    (4) Any other criteria that the Secretary deems appropriate;
    (d) In consultation with the appropriate agency heads, in 
determining whether an ICTS Transaction poses an undue or unacceptable 
risk, consider the following:
    (1) Threat assessments and reports prepared by the Director of 
National Intelligence pursuant to section 5(a) of the Executive Order;
    (2) Removal or exclusion orders issued by the Secretary of Homeland 
Security, the Secretary of Defense, or the Director of National 
Intelligence (or their designee) pursuant to recommendations of the 
Federal Acquisition Security Council, under 41 U.S.C. 1323;
    (3) Relevant provisions of the Defense Federal Acquisition 
Regulation (48 CFR ch. 2) and the Federal Acquisition Regulation (48 CFR 
ch. 1), and their respective supplements;
    (4) The written assessment produced pursuant to section 5(b) of the 
Executive Order, as well as the entities, hardware, software, and 
services that present vulnerabilities in the United States as determined 
by the Secretary of Homeland Security pursuant to that section;
    (5) Actual and potential threats to execution of a ``National 
Critical Function'' identified by the Department of Homeland Security 
Cybersecurity and Infrastructure Security Agency;
    (6) The nature, degree, and likelihood of consequence to the United 
States public and private sectors that could occur if ICTS 
vulnerabilities were to be exploited; and
    (7) Any other source or information that the Secretary deems 
appropriate; and
    (e) In the event the Secretary finds that unusual and extraordinary 
harm to the national security of the United States is likely to occur if 
all of the procedures specified herein are followed, the Secretary may 
deviate from these procedures in a manner tailored to protect against 
that harm.



Sec.  7.101  Information to be furnished on demand.

    (a) Pursuant to the authority granted to the Secretary under 
sections 2(a), 2(b), and 2(c) of the Executive Order and IEEPA, persons 
involved in an ICTS Transaction may be required to furnish under oath, 
in the form of reports or otherwise, at any time as may be required by 
the Secretary, complete information relative to any act or transaction, 
subject to the provisions of this part. The Secretary may require that 
such reports include the production of any books, contracts, letters, 
papers, or other hard copy or electronic documents relating to any such 
act, transaction, or property, in the custody or control of the persons 
required to make such reports. Reports with respect to transactions may 
be required either before, during, or after such transactions. The 
Secretary may, through any person or agency, conduct investigations, 
hold hearings, administer oaths, examine witnesses, receive evidence, 
take depositions, and require by subpoena the attendance and testimony 
of witnesses and the production of any books, contracts, letters, 
papers, and other hard copy or documents relating to any matter under 
investigation, regardless of whether any report has been required or 
filed in connection therewith.
    (b) For purposes of paragraph (a) of this section, the term 
``document'' includes any written, recorded, or graphic matter or other 
means of preserving thought or expression (including in electronic 
format), and all tangible things stored in any medium from which 
information can be processed, transcribed, or obtained directly or 
indirectly, including correspondence, memoranda, notes, messages, 
contemporaneous communications such as text and instant messages, 
letters, emails, spreadsheets, metadata, contracts, bulletins, diaries, 
chronological data, minutes, books, reports, examinations, charts, 
ledgers, books of account, invoices, air waybills, bills of lading, 
worksheets, receipts, printouts, papers, schedules, affidavits, 
presentations, transcripts, surveys, graphic representations of any 
kind, drawings,

[[Page 74]]

photographs, graphs, video or sound recordings, and motion pictures or 
other film.
    (c) Persons providing documents to the Secretary pursuant to this 
section must produce documents in a format useable to the Department of 
Commerce, which may be detailed in the request for documents or 
otherwise agreed to by the parties.



Sec.  7.102  Confidentiality of information.

    (a) Information or documentary materials, not otherwise publicly or 
commercially available, submitted or filed with the Secretary under this 
part will not be released publicly except to the extent required by law.
    (b) The Secretary may disclose information or documentary materials 
that are not otherwise publicly or commercially available and referenced 
in paragraph (a) in the following circumstances:
    (1) Pursuant to any administrative or judicial proceeding;
    (2) Pursuant to an act of Congress;
    (3) Pursuant to a request from any duly authorized committee or 
subcommittee of Congress;
    (4) Pursuant to any domestic governmental entity, or to any foreign 
governmental entity of a United States ally or partner, information or 
documentary materials, not otherwise publicly or commercially available 
and important to the national security analysis or actions of the 
Secretary, but only to the extent necessary for national security 
purposes, and subject to appropriate confidentiality and classification 
requirements;
    (5) Where the parties or a party to a transaction have consented, 
the information or documentary material that are not otherwise publicly 
or commercially available may be disclosed to third parties; and
    (6) Any other purpose authorized by law.
    (c) This section shall continue to apply with respect to information 
and documentary materials that are not otherwise publicly or 
commercially available and submitted to or obtained by the Secretary 
even after the Secretary issues a final determination pursuant to Sec.  
7.109 of this part.
    (d) The provisions of 18 U.S.C. 1905, relating to fines and 
imprisonment and other penalties, shall apply with respect to the 
disclosure of information or documentary material provided to the 
Secretary under these regulations.



Sec.  7.103  Initial review of ICTS Transactions.

    (a) Upon receipt of any information identified in Sec.  7.100(a), 
upon written request of an appropriate agency head, or at the 
Secretary's discretion, the Secretary may consider any referral for 
review of a transaction (referral).
    (b) In considering a referral pursuant to paragraph (a), the 
Secretary shall assess whether the referral falls within the scope of 
Sec.  7.3(a) of this part and involves ICTS designed, developed, 
manufactured, or supplied by persons owned by, controlled by, or subject 
to the jurisdiction or direction of a foreign adversary, and determine 
whether to:
    (1) Accept the referral and commence an initial review of the 
transaction;
    (2) Request additional information, as identified in Sec.  7.100(a), 
from the referring entity regarding the referral; or
    (3) Reject the referral.
    (c) Upon accepting a referral pursuant to paragraph (b) of this 
section, the Secretary shall conduct an initial review of the ICTS 
Transaction and assess whether the ICTS Transaction poses an undue or 
unacceptable risk, which may be determined by evaluating the following 
criteria:
    (1) The nature and characteristics of the information and 
communications technology or services at issue in the ICTS Transaction, 
including technical capabilities, applications, and market share 
considerations;
    (2) The nature and degree of the ownership, control, direction, or 
jurisdiction exercised by the foreign adversary over the design, 
development, manufacture, or supply at issue in the ICTS Transaction;
    (3) The statements and actions of the foreign adversary at issue in 
the ICTS Transaction;
    (4) The statements and actions of the persons involved in the 
design, development, manufacture, or supply at issue in the ICTS 
Transaction;

[[Page 75]]

    (5) The statements and actions of the parties to the ICTS 
Transaction;
    (6) Whether the ICTS Transaction poses a discrete or persistent 
threat;
    (7) The nature of the vulnerability implicated by the ICTS 
Transaction;
    (8) Whether there is an ability to otherwise mitigate the risks 
posed by the ICTS Transaction;
    (9) The severity of the harm posed by the ICTS Transaction on at 
least one of the following:
    (i) Health, safety, and security;
    (ii) Critical infrastructure;
    (iii) Sensitive data;
    (iv) The economy;
    (v) Foreign policy;
    (vi) The natural environment; and
    (vii) National Essential Functions (as defined by Federal Continuity 
Directive-2 (FCD-2)); and
    (10) The likelihood that the ICTS Transaction will in fact cause 
threatened harm.
    (d) If the Secretary finds that an ICTS Transaction does not meet 
the criteria of paragraph (b) of this section:
    (1) The transaction shall no longer be under review; and
    (2) Future review of the transaction shall not be precluded, where 
additional information becomes available to the Secretary.



Sec.  7.104  First interagency consultation.

    Upon finding that an ICTS Transaction likely meets the criteria set 
forth in Sec.  7.103(c) during the initial review under Sec.  7.103, the 
Secretary shall notify the appropriate agency heads and, in consultation 
with them, shall determine whether the ICTS Transaction meets the 
criteria set forth in Sec.  7.103(c).



Sec.  7.105  Initial determination.

    (a) If, after the consultation required by Sec.  7.104, the 
Secretary determines that the ICTS Transaction does not meet the 
criteria set forth in Sec.  7.103(c):
    (1) The transaction shall no longer be under review; and
    (2) Future review of the transaction shall not be precluded, where 
additional information becomes available to the Secretary.
    (b) If, after the consultation required by Sec.  7.104, the 
Secretary determines that the ICTS Transaction meets the criteria set 
forth in Sec.  7.103(c), the Secretary shall:
    (1) Make an initial written determination, which shall be dated and 
signed by the Secretary, that:
    (i) Explains why the ICTS Transaction meets the criteria set forth 
in Sec.  7.103(c); and
    (ii) Sets forth whether the Secretary has initially determined to 
prohibit the ICTS Transaction or to propose mitigation measures, by 
which the ICTS Transaction may be permitted; and
    (2) Notify the parties to the ICTS Transaction either through 
publication in the Federal Register or by serving a copy of the initial 
determination on the parties via registered U.S. mail, facsimile, and 
electronic transmission, or third-party commercial carrier, to an 
addressee's last known address or by personal delivery.
    (c) Notwithstanding the fact that the initial determination to 
prohibit or propose mitigation measures on an ICTS Transaction may, in 
whole or in part, rely upon classified national security information, or 
sensitive but unclassified information, the initial determination will 
contain no classified national security information, nor reference 
thereto, and, at the Secretary's discretion, may not contain sensitive 
but unclassified information.



Sec.  7.106  Recordkeeping requirement.

    Upon notification that an ICTS Transaction is under review or that 
an initial determination concerning an ICTS Transaction has been made, a 
notified person must immediately take steps to retain any and all 
records relating to such transaction.



Sec.  7.107  Procedures governing response and mitigation.

    Within 30 days of service of the Secretary's notification pursuant 
to Sec.  7.105, a party to an ICTS Transaction may respond to the 
Secretary's initial determination or assert that the circumstances 
resulting in the initial determination no longer apply, and thus seek to 
have the initial determination rescinded or mitigated pursuant to the 
following administrative procedures:
    (a) A party may submit arguments or evidence that the party believes 
establishes that insufficient basis exists for

[[Page 76]]

the initial determination, including any prohibition of the ICTS 
Transaction;
    (b) A party may propose remedial steps on the party's part, such as 
corporate reorganization, disgorgement of control of the foreign 
adversary, engagement of a compliance monitor, or similar steps, which 
the party believes would negate the basis for the initial determination;
    (c) Any submission must be made in writing;
    (d) A party responding to the Secretary's initial determination may 
request a meeting with the Department, and the Department may, at its 
discretion, agree or decline to conduct such meetings prior to making a 
final determination pursuant to Sec.  7.109;
    (e) This rule creates no right in any person to obtain access to 
information in the possession of the U.S. Government that was considered 
in making the initial determination to prohibit the ICTS Transaction, to 
include classified national security information or sensitive but 
unclassified information; and
    (f) (f) If the Department receives no response from the parties 
within 30 days after service of the initial determination to the 
parties, the Secretary may determine to issue a final determination 
without the need to engage in the consultation process provided in 
section 7.108 of this rule.



Sec.  7.108  Second interagency consultation.

    (a) Upon receipt of any submission by a party to an ICTS Transaction 
under Sec.  7.107, the Secretary shall consider whether and how any 
information provided--including proposed mitigation measures--affects an 
initial determination of whether the ICTS Transaction meets the criteria 
set forth in Sec.  7.103(c).
    (b) After considering the effect of any submission by a party to an 
ICTS Transaction under Sec.  7.107 consistent with paragraph (a), the 
Secretary shall consult with and seek the consensus of all appropriate 
agency heads prior to issuing a final determination as to whether the 
ICTS Transaction shall be prohibited, not prohibited, or permitted 
pursuant to the adoption of negotiated mitigation measures.
    (c) If consensus is unable to be reached, the Secretary shall notify 
the President of the Secretary's proposed final determination and any 
appropriate agency head's opposition thereto.
    (d) After receiving direction from the President regarding the 
Secretary's proposed final determination and any appropriate agency 
head's opposition thereto, the Secretary shall issue a final 
determination pursuant to Sec.  7.109.



Sec.  7.109  Final determination.

    (a) For each transaction for which the Secretary issues an initial 
determination that an ICTS Transaction is prohibited, the Secretary 
shall issue a final determination as to whether the ICTS Transaction is:
    (1) Prohibited;
    (2) Not prohibited; or
    (3) Permitted, at the Secretary's discretion, pursuant to the 
adoption of negotiated mitigation measures.
    (b) Unless the Secretary determines in writing that additional time 
is necessary, the Secretary shall issue the final determination within 
180 days of accepting a referral and commencing the initial review of 
the ICTS Transaction pursuant to Sec.  7.103.
    (c) If the Secretary determines that an ICTS Transaction is 
prohibited, the Secretary shall have the discretion to direct the least 
restrictive means necessary to tailor the prohibition to address the 
undue or unacceptable risk posed by the ICTS Transaction.
    (d) The final determination shall:
    (1) Be written, signed, and dated;
    (2) Describe the Secretary's determination;
    (3) Be unclassified and contain no reference to classified national 
security information;
    (4) Consider and address any information received from a party to 
the ICTS Transaction;
    (5) Direct, if applicable, the timing and manner of the cessation of 
the ICTS Transaction;
    (6) Explain, if applicable, that a final determination that the ICTS 
Transaction is not prohibited does not preclude the future review of 
transactions related in any way to the ICTS Transaction;

[[Page 77]]

    (7) Include, if applicable, a description of the mitigation measures 
agreed upon by the party or parties to the ICTS Transaction and the 
Secretary; and
    (8) State the penalties a party will face if it fails to comply 
fully with any mitigation agreement or direction, including violations 
of IEEPA, or other violations of law.
    (e) The written, signed, and dated final determination shall be sent 
to:
    (1) The parties to the ICTS Transaction via registered U.S. mail and 
electronic mail; and
    (2) The appropriate agency heads.
    (f) The results of final written determinations to prohibit an ICTS 
Transaction shall be published in the Federal Register. The publication 
shall omit any confidential business information.



Sec.  7.110  Classified national security information.

    In any review of a determination made under this part, if the 
determination was based on classified national security information, 
such information may be submitted to the reviewing court ex parte and in 
camera. This section does not confer or imply any right to review in any 
tribunal, judicial or otherwise.



                          Subpart C_Enforcement



Sec.  7.200  Penalties.

    (a) Maximum penalties.
    (1) Civil penalty. A civil penalty not to exceed the amount set 
forth in Section 206 of IEEPA, 50 U.S.C. 1705, may be imposed on any 
person who violates, attempts to violate, conspires to violate, or 
causes any knowing violation of any final determination or direction 
issued pursuant to this part, including any violation of a mitigation 
agreement issued or other condition imposed under this part. IEEPA 
provides for a maximum civil penalty not to exceed the greater of 
$250,000, subject to inflationary adjustment, or an amount that is twice 
the amount of the transaction that is the basis of the violation with 
respect to which the penalty is imposed.
    (2) Criminal penalty. A person who willfully commits, willfully 
attempts to commit, or willfully conspires to commit, or aids and abets 
in the commission of a violation of any final determination, direction, 
or mitigation agreement shall, upon conviction of a violation of IEEPA, 
be fined not more than $1,000,000, or if a natural person, may be 
imprisoned for not more than 20 years, or both.
    (3) The Secretary may impose a civil penalty of not more than the 
maximum statutory penalty amount, which, when adjusted for inflation, is 
$307,922, or twice the amount of the transaction that is the basis of 
the violation, per violation on any person who violates any final 
determination, direction, or mitigation agreement issued pursuant to 
this part under IEEPA.
    (i) Notice of the penalty, including a written explanation of the 
penalized conduct specifying the laws and regulations allegedly violated 
and the amount of the proposed penalty, and notifying the recipient of a 
right to make a written petition within 30 days as to why a penalty 
should not be imposed, shall be served on the notified party or parties.
    (ii) The Secretary shall review any presentation and issue a final 
administrative decision within 30 days of receipt of the petition.
    (4) Any civil penalties authorized in this section may be recovered 
in a civil action brought by the United States in U.S. district court.
    (b) Adjustments to penalty amounts.
    (1) The civil penalties provided in IEEPA are subject to adjustment 
pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 
(Pub. L. 101-410, as amended, 28 U.S.C. 2461 note).
    (2) The criminal penalties provided in IEEPA are subject to 
adjustment pursuant to 18 U.S.C. 3571.
    (c) The penalties available under this section are without prejudice 
to other penalties, civil or criminal, available under law. Attention is 
directed to 18 U.S.C. 1001, which provides that whoever, in any matter 
within the jurisdiction of any department or agency in the United 
States, knowingly and willfully falsifies, conceals, or covers up by any 
trick, scheme, or device a material fact, or makes any false, 
fictitious, or

[[Page 78]]

fraudulent statements or representations, or makes or uses any false 
writing or document knowing the same to contain any false, fictitious, 
or fraudulent statement or entry, shall be fined under title 18, United 
States Code, or imprisoned not more than 5 years, or both.



PART 8_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF THE DEPARTMENT
OF COMMERCE_EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964-
-Table of Contents



 Subpart A_General Provisions; Prohibitions: Nondiscrimination Clause; 
                        Applicability to Programs

Sec.
8.1 Purpose.
8.2 Application of this part.
8.3 Definitions.
8.4 Discrimination prohibited.
8.5 Nondiscrimination clause.
8.6 Applicability of this part to Department assisted programs.

                      Subpart B_General Compliance

8.7 Cooperation, compliance reports and reviews and access to records.
8.8 Complaints.
8.9 Intimidatory or retaliatory acts prohibited.
8.10 Investigations.
8.11 Procedures for effecting compliance.
8.12 Hearings.
8.13 Decisions and notices.
8.14 Judicial review.
8.15 Effect on other laws; supplementary instructions; coordination.

Appendix A to Part 8--Federal Financial Assistance Covered By Title VI

    Authority: Sec. 602, Civil Rights Act of 1964 (42 U.S.C. 2000d-1).

    Source: 38 FR 17938, July 5, 1973, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 8 appear at 68 FR 
51352, Aug. 26, 2003.



 Subpart A_General Provisions; Prohibitions: Nondiscrimination Clause; 
                        Applicability to Programs



Sec.  8.1  Purpose.

    The purpose of this part is to effectuate the provisions of title VI 
of the Civil Rights Act of 1964 (hereafter referred to as the ``Act'') 
to the end that no person in the United States shall, on the ground of 
race, color, or national origin, be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program receiving Federal financial assistance from the 
Department of Commerce. This part is consistent with achievement of the 
objectives of the statutes authorizing the financial assistance given by 
the Department of Commerce as provided in section 602 of the Act.



Sec.  8.2  Application of this part.

    (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 and as said Appendix may be amended. It applies to money 
paid, property transferred, or other Federal financial assistance 
extended after January 9, 1965, pursuant to an application approved 
prior to such effective date.
    (b) This part does not apply to (1) any Federal financial assistance 
by way of insurance or guaranty contracts, (2) money paid, property 
transferred, or other assistance extended before January 9, 1965, except 
where such assistance was subject to the title VI regulations of this 
Department or of any other agency whose responsibilities are now 
exercised by this Department, (3) any assistance to any individual who 
is the ultimate beneficiary under any such program, or (4) any 
employment practice, under any such program, of any employer, employment 
agency, or labor organization except to the extent described in Sec.  
8.4(c). The fact that a type of Federal financial assistance is not 
listed in Appendix A shall not mean, if title VI of the Act 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 the list by notice published in the Federal Register.



Sec.  8.3  Definitions.

    (a) Department means the Department of Commerce, and includes each 
and all

[[Page 79]]

of its operating and equivalent other units.
    (b) Secretary means the Secretary of Commerce.
    (c) United States means the States of the United States, the 
District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, 
Guam, Wake Island, the Canal Zone, and the territories and possessions 
of the United States, and the term State means anyone of the foregoing.
    (d) Person means an individual in the United States who is or is 
eligible to be a participant in or an ultimate beneficiary of any 
program which receives Federal financial assistance, and includes an 
individual who is an owner or member of a firm, corporation, or other 
business or organization which is or is eligible to be a participant in 
or an ultimate beneficiary of such a program. Where a primary objective 
of the Federal financial assistance to a program is to provide 
employment, ``person'' includes employees or applicants for employment 
of a recipient or other party subject to this part under such program.
    (e) Responsible department official with respect to any program 
receiving Federal financial assistance means the Secretary or other 
official of the Department who by law or by delegation has the principal 
authority within the Department for the administration of a law 
extending such assistance. It also means any officials so designated by 
due delegation of authority within the Department to act in such 
capacity with regard to any program under this part.
    (f) Federal financial assistance includes
    (1) Grants, loans, or agreements for participation in loans, of 
Federal funds,
    (2) The grant or donation of Federal property or interests in 
property,
    (3) The sale or lease of, or the permission to use (on other than a 
casual or transient basis), Federal property or any interest in such 
property or in property in which the Federal Government has an interest, 
without consideration, or at a nominal consideration, or at a 
consideration which is reduced, for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to or use by the recipient,
    (4) Waiver of charges which would normally be made for the 
furnishing of Government services,
    (5) The detail of Federal personnel,
    (6) Technical assistance, and
    (7) Any Federal agreement, arrangement, contract, or other 
instrument which has as one of its purposes the provision of assistance.
    (g) Program or activity and program mean all of the operations of 
any entity described in paragraphs (g)(1) through (4) of this section, 
any part of which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (g)(1), (2), or (3) of this section.
    (h) Facility includes all or any portion of structures, equipment, 
vessels,

[[Page 80]]

or other real or personal property or interests therein, and the 
provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration, contract for use, or acquisition of 
facilities.
    (i) Recipient means any governmental, public or private agency, 
institution, organization, or other entity, or any individual, who or 
which is an applicant for Federal financial assistance, or to whom 
Federal financial assistance is extended directly or through another 
recipient. Recipient further includes a subgrantee, an entity which 
leases or operates a facility for or on behalf of a recipient, and any 
successors, assignees, or transferees of any kind of the recipient, but 
does not include any person who is an ultimate beneficiary.
    (j) Primary recipient means any recipient which is authorized or 
required to extend or distribute Federal financial assistance to another 
recipient.
    (k) Applicant means one who submits an application, request, or plan 
required to be approved by a responsible Department official, or by a 
primary recipient, as a condition to eligibility for Federal financial 
assistance, and ``application'' means such an application, request, or 
plan.
    (l) Other parties subject to this part includes any governmental, 
public or private agency, institution, organization, or other entity, or 
any individual, who or which, like a recipient, is not to engage in 
discriminatory acts with respect to applicable persons covered by this 
part, because of his or its direct or substantial participation in any 
program, such as a contractor, subcontractor, provider of employment, or 
user of facilities or services provided under any program.

[38 FR 17938, July 5, 1973, as amended at 68 FR 51352, Aug. 26, 2003]



Sec.  8.4  Discrimination prohibited.

    (a) General. No person in the United States shall, on the ground of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under, any program to which this part applies.
    (b) Specific discriminatory acts prohibited. (1) A recipient of 
Federal financial assistance, or other party subject to this part, shall 
not participate, directly or through contractual or other arrangements, 
in any act or course of conduct which, on the ground of race, color, or 
national origin:
    (i) Denies to a person any service, financial aid, or other benefit 
provided under the program;
    (ii) Provides 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) Subjects a person to segregation or separate or other 
discriminatory treatment in any matter related to his receipt (or 
nonreceipt) of any such service, financial aid, property, or other 
benefit under the program.
    (iv) Restricts a person in any way in the enjoyment of services, 
facilities, or any other advantage, privilege, property, or benefit 
provided to others under the programs;
    (v) Treats 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) Denies a person an opportunity to participate in the program 
through the provision of property or services or otherwise, or affords 
him an opportunity to do so which is different from that afforded others 
under the program (including the opportunity to participate in the 
program as an employee but only to the extent set forth in paragraph (c) 
of this section);
    (vii) Denies a person the same opportunity or consideration given 
others to be selected or retained or otherwise to participate as a 
contractor, subcontractor, or subgrantee;
    (viii) Denies a person the opportunity to participate as a member of 
a planning or advisory body which is an integral part of the program.
    (2) A recipient, or other party subject to this part, in determining 
the types of services, financial aid, or other benefits, or facilities 
which will be provided under any program, or the class of persons to 
whom, or the situations in which, such services, financial aid,

[[Page 81]]

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, shall not, directly or through contractual or other 
arrangements, utilize 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 
as respect any persons of a particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or other party subject to this part 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 
part applies, on the grounds of race, color or national origin; or with 
the purpose or effect of defeating or substantially impairing the 
accomplishment of the objectives of the Act or this part.
    (4) As used in this section, the services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
shall be deemed to include any service, financial aid, or other benefit 
provided or made available in or through or utilizing a facility 
provided with the aid of Federal financial assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph and paragraph (c) of this section does not limit the 
generality of the prohibition in paragraph (a) of this section.
    (6)(i) In administering a program regarding which the recipient has 
previously discriminated against persons on the ground of race, color, 
or national origin, the recipient must take affirmative action to 
overcome the effects of prior discrimination.
    (ii) Even in the absence of such prior discrimination, a recipient 
in administering a program may take affirmative action to overcome the 
effects of conditions which resulted in limiting participation by 
persons of a particular race, color or national origin.
    (c) 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 or other party 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, use of facilities, and treatment of employees). Such 
recipients and other parties subject to this part shall take affirmative 
action to ensure that applicants are employed, and employees are treated 
during employment without regard to their race, color, or national 
origin. Such recipients and other parties subject to this part shall, as 
may be required by supplemental regulations, develop a written 
affirmative action plan. The requirements applicable to construction 
employment under any such program shall be in addition to those 
specified in or pursuant to Part III of Executive Order 11246 or any 
Executive order which supersedes it. Federal financial assistance to 
programs under laws funded or administered by the Department which has 
as a primary objective the providing of employment include those set 
forth in Appendix A II of this part.
    (2) Where a primary objective of the Federal financial assistance to 
a program to which this part applies is not to provide employment, but 
discrimination on the grounds of race, color, or national origin, in the 
employment practices of the recipient or other party subject to this 
part, tends, on the grounds of race, color, or national origin, to 
exclude persons from participating in, to deny them the benefits of, or 
to subject them to discrimination under any such program, the provisions 
of paragraph (c)(1) of this section shall apply to the employment 
practices of the recipient or other party subject to this part, to the 
extent necessary to assure equality of opportunity to, and

[[Page 82]]

nondiscriminatory treatment of such persons.

[38 FR 17938, July 5, 1973; 38 FR 23777, Sept. 4, 1973]



Sec.  8.5  Nondiscrimination clause.

    (a) Applicability. Every application for, and every grant, loan, or 
contract authorizing approval of, Federal financial assistance and to 
provide a facility subject to this part, and every modification or 
amendment thereof, shall, as a condition to its approval and to the 
extension of any Federal financial assistance pursuant thereto, contain 
or be accompanied by an assurance that the program will be conducted in 
compliance with all requirements imposed by or pursuant to this part. 
The assurances shall be set forth in a nondiscrimination clause. The 
responsible Department official shall specify the form and contents of 
the nondiscrimination clause for each program as appropriate.
    (b) Contents. Without limiting its scope or language in any way, a 
nondiscrimination clause shall contain, where determined to be 
appropriate, and in an appropriate form, reference to the following 
assurances, undertakings, and other provisions:
    (1) That the recipient or other party subject to this part will not 
participate directly or indirectly in the discrimination prohibited by 
Sec.  8.4, including employment practices when a program covering such 
is involved.
    (2) That when employment practices are covered, the recipient or 
other party subject to this part will (i) in all solicitations or 
advertisements for employees placed by or for the recipient, state that 
qualified applicants will receive consideration for employment without 
regard to race, color, or national origin; (ii) notify each labor union 
or representative of workers with which it has a collective bargaining 
agreement or other contract or understanding of the recipient's 
commitments under this section; (iii) post the nondiscrimination clause 
and the notice to labor unions in conspicuous places available to 
employees and applicants for employment; and (iv) otherwise comply with 
the requirements of Sec.  8.4(c).
    (3) When continuing Federal financial assistance is involved, the 
recipient thereunder (i) will state 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 (ii) will provide for such 
methods of administration for the program as are found by the 
responsible Department official to give reasonable assurance that all 
recipients of Federal financial assistance under such program and any 
other parties connected therewith subject to this part will comply with 
all requirements imposed by or pursuant to this part.
    (4) That the recipient agrees to secure the compliance or to 
cooperate actively with the Department to secure the compliance by 
others with this part and the nondiscrimination clause as may be 
directed under an applicable program. For instance, the recipient may be 
requested by the responsible Department official to undertake and agree 
(i) to obtain or enforce or to assist and cooperate actively with the 
responsible Department official in obtaining or enforcing, the 
compliance of other recipients or of other parties subject to this part 
with the nondiscrimination required by this part; (ii) to insert 
appropriate nondiscrimination clauses in the respective contracts with 
or grants to such parties; (iii) to obtain and to furnish to the 
responsible Department official such information as he may require for 
the supervision or securing of such compliance; (iv) to carry out 
sanctions for noncompliance with the obligations imposed upon recipients 
and other parties subject to this part; and (v) to comply with such 
additional provisions as the responsible Department official deems 
appropriate to establish and protect the interests of the United States 
in the enforcement of these obligations. In the event that the 
cooperating recipient becomes involved in litigation with a noncomplying 
party as a result of such departmental direction, the cooperating 
recipient may request the Department to enter into such litigation to 
protect the interests of the United States.

[[Page 83]]

    (5) In the case of real property, structures or improvements 
thereon, or interests therein, which are acquired for a program 
receiving Federal financial assistance, or in the case where Federal 
financial assistance is provided in the form of a transfer of real 
property or interest therein from the Federal Government, the instrument 
effecting or recording the transfer shall contain a covenant running 
with the land assuring nondiscrimination for the period during which the 
real property is used for a purpose for which the Federal financial 
assistance is extended or for another purpose involving the provision of 
similar services or benefits, or for as long as the recipient retains 
ownership or possession of the property, whichever, is longer. Where no 
transfer of property is involved, but property is improved with Federal 
financial assistance, the recipient shall agree to include such a 
covenant in any subsequent transfer of such property. Where the property 
is obtained from the Federal Government, such covenant may also include 
a condition coupled with a right to be reserved by the Department to 
revert title to the property in the event of a breach of the covenant 
where, in the discretion of the responsible Department 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 responsible Department official may agree, upon request of the 
transferee and if necessary to accomplish such financing, and upon such 
conditions as he deems appropriate to forebear the exercise of such 
right to revert title for so long as the lien of such mortgage or other 
encumbrance remains effective.
    (6) In programs 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 such assistance the 
nondiscrimination requirements of this part shall extend to any facility 
located wholly or in part in such space.
    (7) That a recipient shall not take action that is calculated to 
bring about indirectly what this part forbids it to accomplish directly.
    (8) Provisions specifying the extent to which like assurances will 
be required of subgrantees, contractors and subcontractors, lessees, 
transferees, successors in interest, and other participants in the 
program.
    (9) Provisions which give the United States a right to seek judicial 
enforcement of the assurances.
    (10) In the case where any assurances are required from an academic, 
a medical care, detention or correctional, or any other institution or 
facility, insofar as the assurances relate to the institution's 
practices with respect to the admission, care, or other treatment of 
persons by the institution or with respect to the opportunity of persons 
to participate in the receiving or providing of services, treatment, or 
benefits, such assurances shall be applicable to the entire institution 
or facility.
    (11) In the case where the Federal financial assistance is in the 
form of or to aid in the acquisition of personal property, or real 
property or interest therein or structures thereon, the assurance shall 
obligate the recipients, 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 and 
benefits, or for as long as the recipient or transferee retains 
ownership or possession of the property, whichever is longer. In the 
case of any other type or form of assistance, the assurances shall be in 
effect for the duration of the period during which Federal financial 
assistance is extended to the program.

[38 FR 17938, July 5, 1973; 38 FR 23777, Sept. 4, 1973, as amended at 68 
FR 51352, Aug. 26, 2003]

[[Page 84]]



Sec.  8.6  Applicability of this part to Department assisted programs.

    The following examples illustrate the applicability of this part to 
programs which receive or may receive Federal financial assistance 
administered by the Department. The fact that a particular type of 
Federal financial assistance is not listed does not indicate that it is 
not covered by this part, The discrimination referred to is that 
described in Sec.  8.4 against persons on the ground of race, color, or 
national origin.
    (a) Assistance to support economic development. Discrimination in 
which recipients and other parties subject to this part shall not 
engage, directly or indirectly, includes discrimination in
    (1) The letting of contracts or other arrangements for the planning, 
designing, engineering, acquisition, construction, rehabilitation, 
conversion, enlargement, installation, occupancy, use, maintenance, 
leasing, subleasing, sales, or other utilization or disposition of 
property or facilities purchased or financed in whole or in part with 
the aid of Federal financial assistance;
    (2) The acquisition of goods or services, or the production, 
preparation, manufacture, marketing, transportation, or distribution of 
goods or services in connection with a program or its operations;
    (3) The onsite operation of the project or facilities;
    (4) Services or accommodations offered to the public in connection 
with the program; and
    (5) In employment practices in connection with or which affect the 
program (as defined in Sec.  8.4(c)); in the following programs:
    (i) Any program receiving Federal financial assistance for the 
purchase or development of land and facilities (including machinery and 
equipment) for industrial or commercial usage.
    (ii) Any program receiving Federal financial assistance in the form 
of loans or direct or supplementary grants for the acquisition or 
development of land and improvements for public works, public service or 
development facility usage, and the acquisition, construction, 
rehabilitation, alteration, expansion, or improvement of such 
facilities, including related machinery and equipment.
    (iii) In any program receiving any form of technical assistance 
designed to alleviate or prevent conditions of excessive employment or 
underemployment.
    (iv) In any program receiving Federal financial assistance in the 
form of administrative expense grants.
    (b) Assistance to support the training of students. A current 
example of such assistance is that received by State maritime academies 
or colleges, by contract, of facilities (vessels), related equipment and 
funds to train merchant marine officers. In this and other instances of 
student training, discrimination which is prohibited by recipients and 
other parties subject to this part includes discrimination in the 
selection of persons to be trained and in their treatment by the 
recipients in any aspect of the educational process and discipline 
during their training, or in the availability or use of any academic, 
housing, eating, recreational, or other facilities and services, or in 
financial assistance to students furnished or controlled by the 
recipients or incidental to the program. In any case where selection of 
trainees is made from a predetermined group, such as the students in an 
institution or area, the group must be selected without discrimination.
    (c) Assistance to support mobile or other trade fairs. In programs 
in which operators of mobile trade fairs using U.S. flag vessels and 
aircraft and designed to exhibit and sell U.S. products abroad, or in 
which other trade fairs or exhibitions, receive technical and financial 
assistance, discrimination which is prohibited by recipients and other 
parties subject to this part includes discrimination in the selection or 
retention of any actual or potential exhibitors, or in access to or use 
of the services or accommodations by, or otherwise with respect to 
treatment of, exhibitors or their owners, officers, employees, or 
agents.
    (d) Assistance to support business entities eligible for trade 
adjustment assistance. In programs in which eligible business entities 
receive any measure or kind of technical, financial or tax adjustment 
assistance because of or in

[[Page 85]]

connection with the impact of U.S. international trade upon such 
business, discrimination which is prohibited by recipients and other 
parties subject to this part includes discrimination in their employment 
practices as defined in Sec.  8.4(c).
    (e) Assistance to support research and development and related 
activities. In programs in which individuals, educational or other 
institutions, public governmental or business entities receive Federal 
financial assistance in order to encourage or foster research or 
development activities as such, or to obtain, promote, develop, or 
protect thereby technical, scientific, environmental, or other 
information, products, facilities, resources, or services which are to 
be made available to or used by others; but where such programs do not 
constitute Government procurement of property or services, 
discrimination which is prohibited by recipients and other parties 
subject to this part includes discrimination with respect to (1) the 
choice, retention or treatment of contractors, subcontractors, 
subgrantees or of any other person; (2) the provision of services, 
facilities, or financial aid; (3) the participation of any party in the 
research activities; (4) the dissemination to or use by any person of 
the results or benefits of the research or development, whether in the 
form of information, products, services, facilities, resources, or 
otherwise. If research is performed within an educational institution 
under which it is expected that students or others will participate in 
the research as a part of their experience or training, on a compensated 
or uncompensated basis, there shall be no discrimination in admission of 
students to, or in their treatment by, that part of the school from 
which such students are drawn or in the selection otherwise of trainees 
or participants. The recipient educational institutions will be required 
to give the assurances provided in Sec.  8.5(b)(10).
    (f) Assistance to aid in the operations of vessels engaged in U.S. 
foreign commerce. In programs in which the operators of American-flag 
vessels used to furnish shipping services in the foreign commerce of the 
United States receive Federal financial assistance in the form of 
operating differential subsidies, discrimination which is prohibited by 
recipients and other parties subject to this part includes 
discrimination in soliciting, accepting or serving in any way passengers 
or shippers of cargo entitled to protection in the United States under 
the Act.

[38 FR 17938, July 5, 1973, as amended at 68 FR 51352, Aug. 26, 2003]



                      Subpart B_General Compliance



Sec.  8.7  Cooperation, compliance reports and reviews and access to records.

    (a) Cooperation and assistance. Each responsible Department official 
shall to the fullest extent practicable seek the cooperation of 
recipients and other parties subject to this part in obtaining 
compliance with this part and shall provide assistance and guidance to 
recipients and other parties to help them comply voluntarily with this 
part.
    (b) Compliance reports. Each recipient and other party subject to 
this part shall keep such records and submit to the responsible 
Department official timely, complete, and accurate compliance reports at 
such times and in such form and containing such information as the 
responsible Department official may determine to be necessary to enable 
him to ascertain whether the recipient or such other party has complied 
or is complying with this part. In general, recipients should have 
available for the department racial and ethnic data showing the extent 
to which members of minority groups are beneficiaries of federally 
assisted programs. In the case in which a primary recipient extends 
Federal financial assistance to any other recipient, or under which a 
recipient is obligated to obtain or to cooperate in obtaining the 
compliance of other parties subject to this part, such other recipients 
or other parties shall also submit such compliance reports to the 
primary recipient or recipients as may be necessary to enable them to 
carry out their obligations under this part.
    (c) Access to sources of information. Each recipient or other party 
subject to this part shall permit access by the responsible Department 
official or his designee during normal business hours to such of its 
books, records, accounts, and other sources of information, and

[[Page 86]]

its facilities, as may be pertinent to ascertain compliance with this 
part. Where any information required of a recipient or other party is in 
the exclusive possession of another who fails or refuses to furnish this 
information, the recipient or other party 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 or 
other party subject to this part 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 this part and the 
responsible Department official finds necessary to apprise such persons 
of the protections against discrimination assured them by the Act and 
this part.
    (e) Compliance review. The responsible Department official or his 
designee shall from time to time review the practices of recipients and 
other parties subject to this part to determine whether they are 
complying with this part.



Sec.  8.8  Complaints.

    (a) Filing complaints. Any person who believes himself or any 
specific class of persons to be subjected to discrimination prohibited 
by this part may by himself or by a representative file with the 
responsible Department official a written complaint. A complaint shall 
be filed not later than 180 days from the date of the alleged 
discrimination, unless the time for filing is extended by the 
responsible Department official.
    (b) [Reserved]



Sec.  8.9  Intimidatory or retaliatory acts prohibited.

    (a) No recipient or other party subject to this part shall 
intimidate, threaten, coerce, or discriminate against, any person for 
the purpose of interfering with any right or privilege secured by 
section 601 of the Act of this part, or because the person has made a 
complaint, testified, assisted, or participated in any manner in an 
investigation, proceeding, or hearing under this part.
    (b) 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 or 
other proceeding arising thereunder.



Sec.  8.10  Investigations.

    (a) Making the investigation. The responsible Department official or 
his designee will make a prompt investigation whenever a compliance 
review, report, complaint, or any other information indicates a possible 
failure to comply with this part. The investigation shall include, where 
appropriate, a review of the pertinent practices and policies of the 
recipient or other party subject to this part, the circumstances under 
which the possible noncompliance with this part occurred, and other 
factors relevant to a determination as to whether there has been a 
failure to comply with this part.
    (b) Resolution of matters. (1) If an investigation pursuant to 
paragraph (a) of this section indicates a failure to comply with this 
part, the responsible Department official will so inform the recipient 
or other party subject to this part 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.  8.11.
    (2) If an investigation does not warrant action pursuant to 
paragraph (b)(1) of this section, the responsible Department official 
will so inform the recipient or other party subject to this part and the 
complainant, if any, in writing.



Sec.  8.11  Procedures 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.

[[Page 87]]

Such other means may include, but are not limited to, (1) a reference to 
the Department of Justice with a recommendation that appropriate 
proceedings be brought to enforce any rights of the United States under 
any law of the United States (including other titles of the Act), or any 
assurance or other contractural undertaking, and (2) any applicable 
proceeding under State or local law.
    (b) Noncompliance with Sec.  8.5. If a recipient or other party 
subject to this part fails or refuses to furnish an assurance required 
under Sec.  8.5 or otherwise fails or refuses to comply with a 
requirement imposed by or pursuant to that section, Federal financial 
assistance may be refused in accordance with the procedures of paragraph 
(c) of this section. The Department shall not be required to provide 
assistance in such a case during the pendency of the administrative 
proceedings under said paragraph except that the Department shall 
continue assistance during the pendency of such proceedings where such 
assistance is due and payable pursuant to an application or contract 
therefor approved prior to the effective date of this part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating, or refusing to 
grant or continue Federal financial assistance shall become effective 
until (1) the responsible Department official has advised the recipient 
or other party subject to this part of his failure to comply and has 
determined that compliance cannot be secured by voluntary means, (2) 
there has been an express finding on the record, after opportunity for 
hearing, of a failure by such recipient or other party to comply with a 
requirement imposed by or pursuant to this part, (3) the action has been 
approved by the Secretary pursuant to Sec.  8.13(e), and (4) the 
expiration of 30 days after the Secretary has filed with the committee 
of the House and the committee of the Senate having legislative 
jurisdiction over the program involved, a full written report of the 
circumstances and the grounds for such action. Any action to suspend or 
terminate or to refuse to grant or to continue Federal financial 
assistance shall be limited to the particular political entity, or part 
thereof, or other recipient or other party as to whom such a finding has 
been made and shall be limited in its effect to the particular program, 
or part thereof, in which such noncompliance has been so found.
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until (1) the 
responsible Department official has determined that compliance cannot be 
secured by voluntary means, (2) the recipient or other party 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 party. During this 
period of at least 10 days additional efforts shall be made to persuade 
the recipient or other party to comply with this part and to take such 
corrective action as may be appropriate.



Sec.  8.12  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec.  8.11(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
recipient or other party subject to this part. This notice shall advise 
the recipient or other party 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 recipient or other party may request of 
the responsible Department official that the matter be scheduled for 
hearing, or (2) advise the recipient or other party 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. A recipient or other party may waive a hearing 
and submit written information and argument for the record. The failure 
of a recipient or other party to request a hearing under this paragraph 
of this section or to appear at a hearing for which a date has been

[[Page 88]]

set shall be deemed to be a waiver of the right to a hearing under 
section 602 of the Act and Sec.  8.11(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 in Washington, D.C., at a time fixed by the 
responsible Department official or hearing officer unless he determines 
that the convenience of the recipient or other party or of the 
Department requires that another place be selected. Hearings shall be 
held before the responsible Department official, or at his discretion, 
before a hearing officer.
    (c) Right to counsel. In all proceedings under this section, the 
recipient or other party 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 Procedures 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 recipient or other party shall be entitled to introduce all 
relevant evidence on the issues as stated in the notice for hearing or 
as determined by the officer conducting the hearing at the outset of or 
during the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent the 
substance thereof is stipulated for the record. All decisions shall be 
based upon the hearing record and written findings shall be made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more Federal statutes, authorities, or other 
means by which Federal financial assistance is extended and to which 
this part applies, or noncompliance with this part and the regulations 
of one or more other Federal departments or agencies issued under Title 
VI of the Act, the Secretary may, by agreement with such other 
departments or agencies where applicable, provide for the conduct of 
consolidated or joint hearings and for the application to such hearings 
of rules of procedures not inconsistent with this part. Final decisions 
in such cases, insofar as this part is concerned, shall be made in 
accordance with Sec.  8.13.



Sec.  8.13  Decisions and notices.

    (a) Decision by person other than the responsible Department 
official. If the 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 his recommended findings and 
proposed decision to the responsible Department official for a final 
decision, and a copy of such initial decision or certification shall be 
mailed to the recipient or other party subject to this part. Where the 
initial decision is made by the hearing officer, the recipient or other 
party may within 30 days of the mailing of such notice of initial 
decision file with the responsible Department official his exceptions to 
the initial decision, with his reasons therefor. In the absence of 
exceptions, the responsible Department official may on his own motion 
within 45 days after the initial decision serve on the recipient or 
other party a notice that he will review the decision. Upon the filing 
of such exceptions or of such notice of review, the responsible 
Department official shall review the initial decision and issue his own 
decision thereon including the reasons therefor. In the absence of 
either

[[Page 89]]

exceptions or a notice of review the initial decision shall constitute 
the final decision of the responsible Department official.
    (b) Decisions on record or review by the responsible Department 
official. Whenever a record is certified to the responsible Department 
official for decision or he reviews the decision of a hearing officer 
pursuant to paragraph (a) of this section, or whenever the responsible 
Department official conducts the hearing, the recipient or other party 
shall be given reasonable opportunity to file with him briefs or other 
written statements of its contentions, and a copy of the final decision 
of the responsible Department official shall be given in writing to the 
recipient or other party and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec.  8.12(a) a decision shall be made by 
the responsible departmental official on the record and a copy of such 
decision shall be given in writing to the recipient or other party, and 
to the complainant, if any.
    (d) Ruling required. Each decision of a hearing officer or 
responsible Department official shall set forth his ruling on each 
finding, conclusion, or exception presented, and shall identify the 
requirement or requirements imposed by or pursuant to this part with 
which it is found that the recipient or other party has failed to 
comply.
    (e) Approval by Secretary. Any final decision of a responsible 
Department official (other than the Secretary) which provides for the 
suspension or termination of, or the refusal to grant or continue, 
Federal financial assistance, or the imposition of any other sanction 
available under this part of the Act, shall promptly be transmitted to 
the Secretary, 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 the Act and this 
part, including provisions designed to assure that no Federal financial 
assistance to which this regulation applies will thereafter be extended 
to the recipient or other party determined by such decision to be in 
default in its performance of an assurance given by it pursuant to this 
part, or to have otherwise failed to comply with this part, unless and 
until it corrects its noncompliance and satisfies the responsible 
Department official that it will fully comply with this part.
    (g) Posttermination proceedings. (1) Any recipient or other party 
which is 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 recipient or other party adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the responsible Department official to restore fully its 
eligibility to receive Federal financial assistance. Any such request 
shall be supported by information showing that the recipient or other 
party has met the requirements of paragraph (g)(1) of this section. If 
the responsible Department official determines that those requirements 
have been satisfied, he shall restore such eligibility.
    (3) If the responsible Department official denies any such request, 
the recipient or other party may submit a request for a hearing in 
writing, specifying why it believes such official to have been in error. 
It shall thereupon be given an expeditious hearing, with a decision on 
the record in accordance with rules of procedure issued by the 
responsible Department official. The recipient or other party 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.

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Sec.  8.14  Judicial review.

    Action taken pursuant to section 602 of the Act is subject to 
judicial review as provided in section 603 of the Act.



Sec.  8.15  Effect on other laws; supplementary instructions; coordination.

    (a) Effect on other laws. All regulations, orders, or like 
directions heretofore issued by any officer of the Department which 
impose requirements designed to prohibit any discrimination against 
individuals on the ground of race, color, or national origin under any 
program to which this part applies, and which authorizes the suspension 
or termination of or refusal to grant or to continue Federal financial 
assistance to any recipient or other party subject to this part of such 
assistance for failure to comply with such requirements, are hereby 
superseded to the extent that such discrimination is prohibited by this 
part, except that nothing in this part shall be deemed to relieve any 
one of any obligations assumed or imposed under any such superseded 
regulation, order, instruction, or like direction prior to January 9, 
1965. Nothing in this part, however, shall be deemed to supersede any of 
the following (including future amendments thereof):
    (1) Executive Order 11246 and regulations issued thereunder, or
    (2) Executive Order 11063 and regulations issued thereunder, or any 
other regulations or instructions, insofar as such order, 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. Each responsible Department official 
shall issue and promptly make available to interested parties forms and 
detailed instructions and procedures for effectuating this part as 
applied to programs to which this part applies and for which he is 
responsible.
    (c) Supervision and coordination. The Secretary may from time to 
time assign to officials of the Department, or to officials of other 
departments or agencies of the Government with the consent of such 
departments or agencies, responsibilities in connection with the 
effectuation of the purposes of title VI of the Act and this part (other 
than responsibility for final decision as provided in Sec.  8.13), 
including the achievement of effective coordination and maximum 
uniformity within the Department and within the executive branch of the 
government in the application of title VI and this part to similar 
programs and in similar situations. 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 responsible official of this Department.





Sec. Appendix A to Part 8--Federal Financial Assistance Covered by Title 
                                   VI

 i. federal financial assistance to which title 15, subtitle a, part 8 
                                 applies

                   Economic Development Administration

    1. Loans, grants, technical and other assistance for public works 
and development facilities, for supplementing Federal grants-in-aid, for 
private businesses, and for other purposes, including assistance in 
connection with designated economic development districts and regions 
(Public Works and Economic Development Act of 1965, as amended, 42 
U.S.C. 3121 et seq.).
    2. Financial and technical assistance to firms to aid economic 
adjustment to the effects of increased imports in direct competition 
with firm products (Trade Act of 1974, 19 U.S.C. 2341-2354).
    3. Assistance to communities adversely affected by increased imports 
in direct competition with products manufactured in the community area 
(Trade Act of 1974, 19 U.S.C. 2371-2374).
    4. Assistance to projects involving construction of local and State 
public facilities in order to reduce unemployment and provide State and 
local governments with badly needed public facilities (Local Public 
Works Capital Development and Assistance Act of 1976, 42 U.S.C. 6701-
6710).
    5. Trade adjustment assistance: Loans, dissemination of technical 
information (title II of the Trade Act of 1974, 19 U.S.C. 2341-2374).

                         Maritime Administration

    1. Operating differential subsidy assistance to operators of U.S. 
flag vessels engaged in U.S. foreign commerce (46 U.S.C. 1171 et seq.).

[[Page 91]]

    2. Assistance to operate State maritime academies and colleges to 
train merchant marine officers (46 U.S.C. 1381-1388).
    3. Ship construction differential subsidies, direct payments 
(Merchant Marine Act of 1936, as amended, 46 U.S.C. 1151-1161).

                      National Bureau of Standards

    1. Grants to universities and other research organizations for fire 
research and safety programs (15 U.S.C. 278f).

           National Fire Prevention and Control Administration

    1. Academy planning assistance: To assist States in the development 
of training and education in the fire prevention and control area (15 
U.S.C. 2201-2219).
    2. State fire incident reporting assistance: To assist States in the 
establishment and operation of a statewide fire incident and casualty 
reporting system (15 U.S.C. 2201-2219).
    3. Public education assistance planning: Publications, audiovisual 
presentations and demonstrations, research, testing, and experimentation 
to determine the most effective means for such public education (15 
U.S.C. 2205c).
    4. Policy development assistance: Studies of the operations and 
management aspects of fire services (15 U.S.C. 2207c).

             National Oceanic and Atmospheric Administration

    1. Assistance to States, educational institutions, and the 
commercial fishing industry for the development of tuna and other latent 
fisheries (16 U.S.C. 758e).
    2. Assistance to States for the development and implementation of 
programs to protect and study certain species of marine mammals (16 
U.S.C. 1379b).
    3. Financial assistance to States with agencies which have entered 
into a cooperative agreement to assist in the preservation of threatened 
and endangered species (16 U.S.C. 1535).
    4. Assistance to coastal States for the development of estuarine 
sanctuaries to serve as field laboratories and for acquiring access to 
public beaches (16 U.S.C. 1461).
    5. Assistance to coastal States for the development, implementation, 
and administration of coastal zone management programs (16 U.S.C. 1454-
1455).
    6. Assistance to coastal States to help communities in dealing with 
the economic, social, and environmental consequences resulting from 
expanded coastal energy activity (16 U.S.C. 1456).
    7. Authority to enter into cooperative agreements with ``colleges 
and universities, with game and fish departments of the several States, 
and with nonprofit organizations relating to cooperative research 
units.'' Assistance limited to assignment of personnel, supplies, and 
incidental expenses (16 U.S.C. 753 a and b).
    8. Grants for education and training of personnel in the field of 
commercial fishing, ``to public and nonprofit private universities and 
colleges * * *'' (16 U.S.C. 760d).
    9. Grants for ``office and any other necessary space'' for the 
Northern Pacific Halibut Commission (16 U.S.C. 772).
    10. The ``Dingell Johnson Act'': Apportionment of dollars to States 
for restoration and management of sport or recreational species (16 
U.S.C. 777-777i; 777k).
    11. Authority to cooperate with and provide assistance to States in 
controlling jellyfish, etc. (16 U.S.C. 1201, 1202).
    12. Authority to cooperate with and provide assistance to certain 
States and territories in the study and control of ``Crown of Thorns'' 
starfish (16 U.S.C. 1211-1213).
    13. Technical assistance to fishing cooperatives regarding catching 
and marketing aquatic products (15 U.S.C. 521-522).
    14. Fish research and experimentation program cooperation with other 
agencies in acquisition of lands, construction of buildings, employment 
of personnel in establishing and maintaining research stations (16 
U.S.C. 778a).
    15. Assistance to upgrade commercial fishing vessels and gear (16 
U.S.C. 742c).
    16. Assistance to State projects designed for the research and 
development of commercial fisheries resources of the nation (16 U.S.C. 
779a-779f).
    17. Assistance to State and other non-Federal interests under 
cooperative agreements to conserve, develop, and enhance anadromous and 
Great Lakes Fisheries (16 U.S.C. 757a et seq.).
    18. Grants and other assistance under the National Sea Grant College 
and Program Act of 1966: To support establishment of major university 
centers for marine research, education, training, and advisory services 
(33 U.S.C. 1121-1124).
    19. Geodetic surveys and services; advisory services; dissemination 
of technical information (33 U.S.C. 883a).
    20. Nautical charts assistance; advisory services; dissemination of 
technical information (33 U.S.C. 883a).
    21. River and flood forecast and warning services; advisory services 
(15 U.S.C. 313).
    22. Weather forecast and warning services (15 U.S.C. 311 and 313, 49 
U.S.C. 1351 and 1463).
    23. Commercial fisheries disaster assistance (16 U.S.C. 779b).
    24. Provision for the Weather Service to assist in joint projects 
``of mutual interest'' (15 U.S.C. 1525).

       National Telecommunications and Information Administration

    1. Grants for the planning and construction of public 
telecommunications facilities for

[[Page 92]]

the production and distribution of noncommercial educational and 
cultural radio and television programming and related instructional and 
informational materials. (Public Telecommunications Financing Act of 
1978, 47 U.S.C. Sections 390-394).

                 Office of Minority Business Enterprise

    1. Assistance to minority business enterprises: Grants, contracts, 
advisory service, technical information (15 U.S.C. 1512; title III of 
the Public Works and Economic Development Act of 1965, as amended, 42 
U.S.C. 3151; Executive Order 11625, Oct. 13, 1971).

                  Regional Action Planning Commissions

    1. Supplemental grants to Federal grant-in-aid programs and 
technical assistance funds for planning, investigations, studies, 
training programs, and demonstration projects, including demonstrations 
in energy, transportation, health and nutrition, education and 
indigenous arts and crafts (title V of the Public Works and Economic 
Development Act of 1965, as amended, 42 U.S.C. 3181-3196).

                      United States Travel Service

    1. Assistance to strengthen the domestic and foreign commerce of the 
United States, and to promote friendly understanding and appreciation of 
the United States by encouraging foreign residents to visit the United 
States (22 U.S.C. 2121 et seq.).

                             Departmentwide

    1. Authority to make basis scientific research grants (42 U.S.C. 
1891-1893; to be superseded no later than Feb. 3, 1979, by the Federal 
Grant and Cooperative Agreement Act of 1977, Pub. L. 95-224).

 ii. a primary objective of the financial assistance authorized by the 
 following statutes, already listed above in appendix ai, is to provide 
                               employment

    1. Public Works and Economic Development Act of 1965, as amended (42 
U.S.C. 3121 et seq.).
    2. Trade Act of 1974 (19 U.S.C. 2341-2354).
    3. Local Public Works Capital Development and Assistance Act of 1976 
(42 U.S.C. 6701-6710)

[43 FR 49303, Oct. 23, 1978, as amended at 44 FR 12642, Mar. 8, 1979]



PART 8a_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                         Subpart A_Introduction

Sec.
8a.100 Purpose and effective date.
8a.105 Definitions.
8a.110 Remedial and affirmative action and self-evaluation.
8a.115 Assurance required.
8a.120 Transfers of property.
8a.125 Effect of other requirements.
8a.130 Effect of employment opportunities.
8a.135 Designation of responsible employee and adoption of grievance 
          procedures.
8a.140 Dissemination of policy.

                           Subpart B_Coverage

8a.200 Application.
8a.205 Educational institutions and other entities controlled by 
          religious organizations.
8a.210 Military and merchant marine educational institutions.
8a.215 Membership practices of certain organizations.
8a.220 Admissions.
8a.225 Educational institutions eligible to submit transition plans.
8a.230 Transition plans.
8a.235 Statutory amendments.

     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

8a.300 Admission.
8a.305 Preference in admission.
8a.310 Recruitment.

 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

8a.400 Education programs or activities.
8a.405 Housing.
8a.410 Comparable facilities.
8a.415 Access to course offerings.
8a.420 Access to schools operated by LEAs.
8a.425 Counseling and use of appraisal and counseling materials.
8a.430 Financial assistance.
8a.435 Employment assistance to students.
8a.440 Health and insurance benefits and services.
8a.445 Marital or parental status.
8a.450 Athletics.

[[Page 93]]

8a.455 Textbooks and curricular material.

Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

8a.500 Employment.
8a.505 Employment criteria.
8a.510 Recruitment.
8a.515 Compensation.
8a.520 Job classification and structure.
8a.525 Fringe benefits.
8a.530 Marital or parental status.
8a.535 Effect of state or local law or other requirements.
8a.540 Advertising.
8a.545 Pre-employment inquiries.
8a.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

8a.600 Notice of covered programs.
8a.605 Enforcement procedures.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 65 FR 52865, 52877, Aug. 30, 2000, unless otherwise noted.



                         Subpart A_Introduction



Sec.  8a.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.  8a.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate, transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means with respect to any program 
receiving Federal financial assistance, the Secretary or other official 
of the Department who by law or by delegation has the principal 
authority within the Department for the administration of a law 
extending such assistance. Designated agency official also means any 
officials so designated by due delegation of authority within the 
Department to act in such capacity with regard to any program under 
these Title IX regulations.
    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

[[Page 94]]

not, upon such sale or transfer, properly accounted for to the Federal 
Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a technical field, whether or not the 
school or institution offers certificates, diplomas, or degrees and 
whether or not it offers full-time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at Sec. Sec.  
8a.100 through 8a.605.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that 
admits students of both sexes without discrimination.

[[Page 95]]



Sec.  8a.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.  8a.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.  8a.110(a) 
to eliminate existing discrimination on the basis of sex or to eliminate 
the effects of past discrimination whether occurring prior to or 
subsequent to the submission to the designated agency official of such 
assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document

[[Page 96]]

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.  8a.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.  8a.205 through 8a.235(a).



Sec.  8a.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.  8a.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.  8a.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.  8a.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants

[[Page 97]]

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.  8a.300 through 8a.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.  8a.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.  8a.200  Application.

    Except as provided in Sec. Sec.  8a.205 through 8a.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.  8a.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.  8a.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of

[[Page 98]]

the United States or for the merchant marine.



Sec.  8a.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.  8a.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.  8a.225 and 8a.230, and Sec. Sec.  8a.300 through 
8a.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Sec. Sec.  8a.300 through .310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec.  8a.300 
through 8a.310 apply to each recipient. A recipient to which Sec. Sec.  
8a.300 through 8a.310 apply shall not discriminate on the basis of sex 
in admission or recruitment in violation of Sec. Sec.  8a.300 through 
8a.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec.  8a.300 through 8a.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.  8a.300 through 8a.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.  8a.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec.  8a.300 through 8a.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.  8a.300 through 
8a.310.



Sec.  8a.230  Transition plans.

    (a) Submission of plans. An institution to which Sec.  8a.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 99]]

    (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.  8a.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec.  8a.300 through 
8a.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.  8a.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.  8a.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 100]]

    (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.  8a.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.  8a.300 through Sec. Sec.  8a.310 apply, 
except as provided in Sec. Sec.  8a.225 and Sec. Sec.  8a.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.  8a.300 through 8a.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.  8a.300 through 8a.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 101]]

    (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.  8a.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.  8a.305  Preference in admission.

    A recipient to which Sec. Sec.  8a.300 through 8a.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.  8a.300 through 8a.310.



Sec.  8a.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.  
8a.300 through 8a.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.  8a.110(a), and may choose to undertake 
such efforts as affirmative action pursuant to Sec.  8a.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec.  8a.300 through 8a.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.  8a.300 through 8a.310.



 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec.  8a.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 
8a.400 through 8a.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.  8a.300 through 8a.310 do not 
apply, or an entity, not a recipient, to which Sec. Sec.  8a.300 through 
8a.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec.  8a.400 
through 8a.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 102]]

    (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.  8a.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.  8a.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.  8a.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 103]]

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.  8a.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.  8a.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.  8a.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 104]]

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.  8a.450.



Sec.  8a.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.  
8a.500 through 8a.550.



Sec.  8a.440  Health and insurance benefits and services.

    Subject to Sec.  8a.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.  8a.500 through 8a.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.  8a.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 105]]

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.  8a.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.  8a.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 106]]

    (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.  8a.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.  8a.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.  8a.500 
through 8a.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.  8a.500 through 8a.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 107]]

    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec.  8a.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.  8a.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.  8a.500 through 8a.550.



Sec.  8a.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.  8a.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.  8a.550.



Sec.  8a.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.  8a.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.  8a.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 108]]

    (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.  8a.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.  8a.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec.  8a.500 through 8a.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.  8a.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.  8a.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.  8a.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec.  
8a.500 through 8a.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.  8a.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 109]]

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.  8a.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 15 CFR 8.7 through 8.15, and 13 CFR 
part 317.

[65 FR 52877, Aug. 30, 2000]



PART 8b_PROHIBITION OF DISCRIMINATION AGAINST THE HANDICAPPED IN FEDERALLY
ASSISTED PROGRAMS OPERATED BY THE DEPARTMENT OF COMMERCE--Table of Contents



                      Subpart A_General Provisions

Sec.
8b.1 Purpose.
8b.2 Application.
8b.3 Definitions.
8b.4 Discrimination prohibited.
8b.5 Assurances required.
8b.6 Remedial action, voluntary action, and self-evaluation.
8b.7 Designation of responsible employee and adoption of grievance 
          procedures.
8b.8 Notice.
8b.9 Administrative requirements for small recipients.
8b.10 Effect of state or local law or other requirements and effect of 
          employment opportunities.

                     Subpart B_Employment Practices

8b.11 Discrimination prohibited.
8b.12 Reasonable accommodation.
8b.13 Employment criteria.
8b.14 Preemployment inquiries.
8b.15 Employment on ships.

                         Subpart C_Accessibility

8b.16 Discrimination prohibited.
8b.17 Existing facilities.
8b.18 New construction.

                   Subpart D_Post Secondary Education

8b.19 Application of this subpart.
8b.20 Admission and recruitment.
8b.21 Treatment of students.
8b.22 Academic adjustments.
8b.23 Housing provided by the recipient.
8b.24 Financial and employment assistance to students.
8b.25 Nonacademic services.

                          Subpart E_Procedures

8b.26 Procedures.

    Authority: 29 U.S.C. 794.

    Source: 47 FR 17746, Apr. 23, 1982, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 8b appear at 68 FR 
51353, Aug. 26, 2003.



                      Subpart A_General Provisions



Sec.  8b.1  Purpose.

    Section 504 of the Rehabilitation Act of 1973, as amended, prohibits 
discrimination on the basis of handicap in any program or activity 
receiving Federal financial assistance. The purpose of this part is to 
implement section 504 with respect to programs or activities receiving 
Federal financial assistance from the Department of Commerce.



Sec.  8b.2  Application.

    This part applies to each recipient of Federal financial assistance 
from the Department of Commerce and to each program or activity 
receiving such assistance. The requirements of this part do not apply to 
the ultimate beneficiaries of Federal financial assistance in the 
program or activity receiving Federal financial assistance.



Sec.  8b.3  Definitions.

    As used in this part, the term:
    (a) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as 
amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516, 
and by the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978, Pub. L. 95-602 (codified at 29 U.S.C. 
794 (1976 & Supp. II 1978)).
    (b) Applicant for assistance means one who submits an application, 
request, or plan required to be approved by a Department official or by 
a recipient as a condition to becoming a recipient.
    (c) Department means the Department of Commerce and any of its 
constituent

[[Page 110]]

units authorized to provide Federal financial assistance.
    (d) Facility means all or any portion of buildings, ships, 
structures, equipment, roads, walks, parking lots, industrial parks, or 
other real or personal property or interest in such property.
    (e) Federal financial assistance means any grant, loan, contract 
(other than a procurement contract or a contract of insurance or 
guarantee), or any other arrangement by which the Department provides or 
otherwise makes available assistance in the form of:
    (1) Funds;
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of such 
property, including:
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value is not returned to the 
Federal Government.
    (f) Handicap means any condition or characteristic that renders a 
person a handicapped person as defined in paragraph (g) of this section.
    (g) Handicapped person--(1) Handicapped person means any person who:
    (i) Has a physical or mental impairment which substantially limits 
one or more major life activities;
    (ii) Has a record of such an impairment; or
    (iii) Is regarded as having such an impairment.
    (2) For purposes of employment, the term ``handicapped person'' does 
not include any person who is an alcoholic or drug abuser whose current 
use of alcohol or drugs prevents that individual from performing the 
duties of the job in question, or whose employment, because of current 
alcohol or drug abuse, would constitute a direct threat to property or 
to the safety of others.
    (3) As used in paragraph (g)(1) of this section, the phrase:
    (i) Physical or mental impairment means:
    (A) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genito-urinary; hemic and lymphatic; skin; and endocrine; or
    (B) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities;
    (C) 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.
    (ii) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, working, and receiving education or vocational 
training.
    (iii) Has a record of such an impairment means that the individual 
has a history of, or has been misclassified as having, a mental or 
physical impairment that substantially limits one or more major life 
activities.
    (iv) Is regarded as having an impairment means that the individual:
    (A) Has a physical or mental impairment that does not substantially 
limit major life activities, but that is treated by a recipient as 
constituting such a limitation;
    (B) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (C) Has none of the impairments defined in paragraph (g)(3)(i) of 
this section, but is treated by a recipient as having such an 
impairment.
    (h) Program or activity means all of the operations of any entity 
described in paragraphs (h)(1) through (4) of this section, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or

[[Page 111]]

agency (and each other State or local government entity) to which the 
assistance is extended, in the case of assistance to a State or local 
government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (h)(1), (2), or (3) of this section.
    (i) Qualified handicapped person means:
    (1) With respect to employment, a handicapped person who, with 
reasonable accommodation, can perform the essential functions of the job 
in question;
    (2) With respect to post secondary and vocational education 
services, a handicapped person who meets the academic and technical 
standards requisite to admission or participation in the recipient's 
education program or activity;
    (3) With respect to other services, a handicapped person who meets 
the essential eligibility requirements for the receipt of such services.
    (j) Recipient means any State or its political subdivisions, any 
instrumentality of a State or its political subdivisions, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended directly or 
indirectly through another recipient, or including any successor, 
assignee, or transferee of a recipient, but excluding the ultimate 
beneficiary of the assistance.
    (k) Secretary means the Secretary of Commerce, U.S. Department of 
Commerce.
    (l) Section 504 means section 504 of the Act.
    (m) Small recipient means a recipient who serves fewer than 15 
beneficiaries and who employs fewer than 15 employees at all times 
during a grant year.

[47 FR 17746, Apr. 23, 1982, as amended at 68 FR 51353, Aug. 26, 2003]



Sec.  8b.4  Discrimination prohibited.

    (a) General. No qualified handicapped individual shall, on the basis 
of handicap, be excluded from participation in, be denied the benefits 
of, or otherwise be subjected to discrimination under any program or 
activity that receives Federal financial assistance.
    (b) Discriminatory actions prohibited. (1) A recipient, in providing 
any aid, benefit, or service, may not, directly or through contractual, 
licensing, or other arrangements, on the basis of handicap:
    (i) Deny a qualified handicapped individual the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped individual an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped individual with any aid, 
benefit, or service that is not as effective as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped individuals or to any class of handicapped individuals, 
unless such action is necessary to provide qualified handicapped 
individuals with aid, benefits, or services that are as effective as 
those provided to others;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
individual by providing significant assistance to an agency, 
organization, or person that discriminates on the basis of handicap in 
providing any aid, benefit, or service to beneficiaries of the 
recipient's program or activity;

[[Page 112]]

    (vi) Deny a qualified handicapped individual the opportunity to 
participate as a member of planning or advisory boards; or
    (vii) Otherwise limit a qualified handicapped individual in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving any aid, benefits, or services.
    (2) For purposes of this part, aid, benefits, and services must 
afford handicapped individuals an equal opportunity to obtain the same 
result, to gain the same benefit, or to reach the same level of 
achievement as afforded to others, in the most integrated setting 
appropriate to the individual's needs. However, aid, benefits and 
services, to be equally effective, need not produce the identical result 
or level of achievement for handicapped and nonhandicapped individuals.
    (3) A recipient may not deny a qualified handicapped individual the 
opportunity to participate in its regular aid, benefits, or services, 
despite the existence of separate or different aid, benefits, or 
services which are established in accordance with this part.
    (4) A recipient may not, directly or through contractual or other 
arrangements, use criteria or methods of administration:
    (i) That have the effect of subjecting qualified handicapped 
individuals to discrimination on the basis of handicap;
    (ii) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the recipient's program or 
activity with respect to handicapped individuals; or
    (iii) That perpetuate the discrimination of another recipient if 
both recipients are subject to common administrative control or are 
agencies of the same state.
    (5) In determining the geographic site or location of a facility, an 
applicant for assistance or a recipient may not make selections:
    (i) That have the effect of excluding handicapped individuals from, 
denying them the benefit of, or otherwise subjecting them to 
discrimination under any program or activity that receives Federal 
financial assistance; or
    (ii) That have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of the program or 
activity with respect to handicapped individuals.
    (6) As used in this section, the aid, benefit, or service provided 
under a program or activity receiving Federal financial assistance 
includes any aid, benefit, or service provided in or through a facility 
that has been constructed, expanded, altered, leased, rented or 
otherwise acquired, in whole or in part, with Federal financial 
assistance.
    (7)(i) In providing services, recipients to which this subpart 
applies, except small recipients, shall ensure that no handicapped 
participant is denied the benefits of, excluded from participation in, 
or otherwise subjected to discrimination under the program or activity 
operated by the recipient because of the absence of auxiliary aids for 
participants with impaired sensory, manual or speaking skills. A 
recipient shall operate each program or activity to which this subpart 
applies so that, when viewed in its entirety, auxiliary aids are readily 
available. The Secretary may require small recipients to provide 
auxiliary aids in order to ensure that no handicapped participant is 
denied the benefits of, excluded from participation in, or otherwise 
subjected to discrimination under the program or activity operated by 
small recipients, when this would not significantly impair the ability 
of the small recipient to provide benefits or services.
    (ii) Auxiliary aids may include brailled and taped materials, 
interpreters, telecommunications devices, or other equally effective 
methods of making orally delivered information available to persons with 
hearing impairments, readers for persons with visual impairments, 
equipment adapted for use by persons with manual impairments, and other 
similar devices and actions. Recipients need not provide attendants, 
individually prescribed devices, readers for personal use or study, or 
other devices or services of a personal nature.
    (c) Aid, benefits, or services limited by Federal law. The exclusion 
of non-handicapped persons from aid, benefits, or services limited by 
Federal statute

[[Page 113]]

or Executive order to handicapped individuals, or the exclusion of a 
specific class of handicapped individuals from aid, benefits, or 
services limited by Federal statute or Executive order to a different 
class of handicapped individuals is not prohibited by this part.
    (d) Integrated setting. Recipients shall administer programs or 
activities in the most integrated setting appropriate to the needs of 
qualified handicapped individuals.
    (e) Communications with individuals with impaired vision and 
hearing. Recipients shall ensure that communications with their 
applicants, employees and beneficiaries are available to persons with 
impaired vision or hearing. Appropriate modes of communication may 
include braille, enlarged type, sign language and telecommunications 
devices.

[47 FR 17746, Apr. 23, 1982, as amended at 68 FR 51353, Aug. 26, 2003]



Sec.  8b.5  Assurances required.

    (a) Assurances. An applicant for Federal financial assistance to 
which this part applies shall submit an assurance, on a form specified 
by the Secretary, that the program or activity will be operated in 
compliance with this part. An applicant may incorporate these assurances 
by reference in subsequent applications to the Department.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended in the form of real property or structures on the 
property, the assurance will obligate the recipient or, in the case of a 
subsequent transfer, the transferee, for the period during which the 
real property or structures are used for the purpose for which Federal 
financial assistance is extended, or for another purpose involving the 
provision of similar services or benefits.
    (2) In case of Federal financial assistance extended to provide 
personal property, the assurance will obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases, the assurance will obligate the recipient 
for the period during which Federal financial assistance is extended or 
the federally-funded program or activity is operated, whichever is 
longer.
    (c) Covenants. (1) Where Federal financial assistance is provided in 
the form of real property or interest in the property from the 
Department, the instrument effecting or recording this transfer shall 
contain a covenant running with the land to assure nondiscrimination for 
the period during which the real property is used for a purpose for 
which the Federal financial assistance is extended or for another 
purpose involving the provision of similar services or benefits.
    (2) Where no transfer or property is involved but property is 
purchased or improved with Federal financial assistance, the recipient 
shall agree to include the covenant described in paragraph (c)(1) of 
this section in the instrument effecting or recording any subsequent 
transferee of the property.
    (3) Where Federal financial assistance is provided in the form of 
real property or interest in the property from the Department, the 
covenant shall also include a condition coupled with a right to be 
reserved by the Department to revert title to the property in the event 
of a breach of the covenant. If a transferee of real property proposed 
to mortgage or otherwise encumber the real property as security to 
finance construction of new, or improvement of existing, facilities on 
the property for the purposes for which the property was transferred, 
the Secretary may agree to forbear the exercise of such right to revert 
title for so long as the lien of such mortgage or other encumbrance 
remains effective. Such an agreement by the Secretary may be entered 
into only upon the request of the transferee (recipient) if it is 
necessary to accomplish such financing and upon such terms and 
conditions as the Secretary deems appropriate.
    (d) Interagency agreements. Where funds are granted by the 
Department to another Federal agency to carry out the objectives of 
Federal financial assistance under a law administered by the Department, 
and where the grant obligates the recipient agency to comply with the 
rules and regulations of the Department applicable to that grant the 
provisions of this part shall apply to programs or activities operated 
with such funds.

[[Page 114]]



Sec.  8b.6  Remedial action, voluntary action, and self-evaluation.

    (a) Remedial action. (1) If the Secretary finds that a recipient has 
discriminated against persons on the basis of handicap in violation of 
section 504 or this part, the recipient shall take such remedial action 
as the Secretary deems necessary to overcome the effects of the 
discrimination.
    (2) Where a recipient is found to have discriminated against persons 
on the basis of handicap in violation of section 504 or this part and 
where another recipient exercises control over the recipient that has 
discriminated, the Secretary, where appropriate, may require either or 
both recipients to take remedial action.
    (3) The Secretary may, where necessary to overcome the effects of 
discrimination in violation of section 504 or this part, require a 
recipient to take remedial action:
    (i) With respect to handicapped individuals who would have been 
participants in the program or activity had the discrimination not 
occurred; and
    (ii) With respect to handicapped persons who are no longer 
participants in the recipient's program or activity, but who were 
participants in the program or activity when the discrimination 
occurred; and
    (iii) with respect to employees and applicants for employment.
    (b) Voluntary action. A recipient may take steps, in addition to any 
action that is required by this part, to overcome the effects of 
conditions that resulted in limited participation in the recipient's 
program or activity by qualified handicapped individuals.
    (c) Self-evaluation. (1) A recipient shall, within one year of the 
effective date of this part:
    (i) Evaluate, with the assistance of interested persons, including 
handicapped individuals or organizations representing handicapped 
individuals, its current policies and practices and the effects thereof 
that do not or may not meet the requirements of this part;
    (ii) Modify, after consultation with interested persons, including 
handicapped individuals or organizations representing handicapped 
individuals, any policies and practices that do not meet the 
requirements of this part; and
    (iii) Take, after consultation with interested persons, including 
handicapped individuals or organizations representing handicapped 
individuals, appropriate remedial steps to eliminate the effects of any 
discrimination that resulted from adherence to these policies and 
practices.
    (2) A recipient, other than a small recipient, shall for at least 
three years following completion of the evaluation required under 
paragraph (c)(1) of this section, maintain on file, make available for 
public inspection, and provide to the Secretary upon request:
    (i) A list of the interested persons consulted;
    (ii) A description of areas examined and any problems identified; 
and
    (iii) A description of any modifications made and of any remedial 
steps taken.
    (3) The Secretary may, as he or she deems necessary, direct 
recipients to conduct additional self-evaluations, in accordance with 
the requirements of paragraph (c)(1) of this section.

(Approved by the Office of Management and Budget under control number 
0605-0006)

[47 FR 17746, Apr. 23, 1982, as amended at 47 FR 35472, Aug. 16, 1982]



Sec.  8b.7  Designation of responsible employee and adoption of grievance 
procedures.

    (a) Designation of responsible employee. A recipient, other than a 
small recipient, shall designate at least one person to coordinate its 
efforts to comply with this part.
    (b) Adoption of grievance procedures. A recipient, other than a 
small recipient, shall adopt grievance procedures that incorporate 
appropriate due process standards and that provide for the prompt and 
equitable resolution of complaints alleging any action prohibited by 
this part. Such procedures need not be established with respect to 
complaints from applicants for employment or from applicants for 
admission to post secondary educational institutions.



Sec.  8b.8  Notice.

    (a) A recipient, other than a small recipient, shall take 
appropriate initial

[[Page 115]]

and continuing steps to notify participants, beneficiaries, applicants 
and employees, including those with impaired vision or hearing, and 
unions or professional organizations holding collective bargaining or 
professional agreements with the recipient, that it does not 
discriminate on the basis of handicap in violation of Section 504 and of 
this part. The notification shall state, where appropriate, that the 
recipient does not discriminate in the admission or access to, or 
treatment or employment in, its programs or activities. The notification 
shall also include an identification of the responsible employee 
designated pursuant to Sec.  8b.7(a). A recipient shall make the initial 
notification required by this paragraph within 90 days of the effective 
date of this part. Methods of initial and continuing notification may 
include the posting of notices, publications in newspapers and 
magazines, placement of notices in recipient's publications, and 
distribution of memoranda or other written communication. A recipient 
shall take appropriate steps to ensure that notice is available to 
persons with impaired vision or hearing.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information made available to 
participants, beneficiaries, applicants, or employees, it shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this paragraph either by including appropriate inserts in existing 
materials and publications, or by revising and reprinting the materials 
and publications.



Sec.  8b.9  Administrative requirements for small recipients.

    The Secretary may require small recipients to comply with Sec. Sec.  
8b.7 and 8b.8, in whole or in part, when the Secretary finds a violation 
of this part or finds that such compliance will not significantly impair 
the ability of the small recipient to provide benefits or services.



Sec.  8b.10  Effect of state or local law or other requirements and effect 
of employment opportunities.

    (a) The obligation to comply with this part is not obviated or 
alleviated by the existence of any state or local law or other 
requirement that, on the basis of handicap, imposes prohibitions or 
limits upon the eligibility of qualified handicapped individuals to 
receive services, participate in programs or activities, or practice any 
occupation or profession.
    (b) The obligation to comply with this part is not obviated or 
alleviated because employment opportunities in any occupation or 
profession are or may be more limited for handicapped individuals than 
for nonhandicapped persons.



                     Subpart B_Employment Practices



Sec.  8b.11  Discrimination prohibited.

    (a) General. (1) No qualified handicapped individual shall, on the 
basis of handicap, be subjected to discrimination in employment under 
any program or activity that receives Federal financial assistance.
    (2) A recipient shall make all decisions concerning employment under 
any program or activity to which this part applies in a manner which 
ensures that discrimination on the basis of handicap does not occur and 
may not limit, segregate, or classify applicants or employees in any way 
that adversely affects their opportunities or status because of 
handicap.
    (3) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination prohibited by this subpart. 
The relationships referred to in this subparagraph include relationships 
with employment and referral agencies, with labor unions, with 
organizations providing or administering fringe benefits to employees of 
the recipient, and with organizations providing training and 
apprenticeships.
    (b) Specific activities. The prohibition against discrimination in 
employment applies to the following activities:
    (1) Recruitment, advertising and the processing of applicants for 
employment;

[[Page 116]]

    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff and rehiring;
    (3) Rates of pay or any other form of compensation and changes in 
compensation; pension or other benefit the applicant or employee 
receives from any other source.



Sec.  8b.12  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or metal limitations of an otherwise qualified handicapped 
applicant or employee unless the recipient can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
program or activity.
    (b) Reasonable accommodation may include:
    (1) Making the facilities used by the employees in the area where 
the program or activity is conducted, including common areas used by all 
employees such as hallways, restrooms, cafeterias and lounges, readily 
accessible to and usable by handicapped persons; and
    (2) Job restructuring, part-time or modified work schedules, 
acquisition or modification of equipment or devices, the provision of 
readers or interpreters, and other similar actions.
    (c) In determining pursuant to paragraph (a) of this section whether 
an accommodation would impose an undue hardship on the operation of a 
recipient's program or activity, factors to be considered include:
    (1) The overall size of the recipient's program or activity with 
respect to number of employees, number of participants, number and type 
of facilities, and size of budget;
    (2) The type of the recipient's operation, including the composition 
and structure of the recipient's workforce; and
    (3) The nature and cost of the accommodation needed.
    (d) A recipient may not deny any employment opportunity to a 
qualified handicapped employee or applicant if the basis for the denial 
is the need to make reasonable accommodation to the physical or mental 
limitations of the employee or applicant.
    (e) Nothing in this paragraph shall relieve a recipient of its 
obligation to make its program or activity accessible as required in 
subpart C of this part, or to provide auxiliary aids, as required by 
Sec.  8b.4(b)(7).



Sec.  8b.13  Employment criteria.

    (a) A recipient may not make use of any employment test or other 
selection criterion that screens out or tends to screen out handicapped 
individuals or any class of handicapped individuals unless;
    (1) The test score or other selection criterion, as used by the 
recipient, is shown to be job-related for the position in question; and
    (2) Alternative job-related tests or criteria that do not screen out 
or tend to screen out as many handicapped individuals are not shown by 
the Secretary to be available.
    (b) A recipient shall select and administer tests concerning 
employment so as best to ensure that, when administered to an applicant 
or employee who has a handicap that impairs sensory, manual, or speaking 
skills, the test results accurately to reflect the applicant's or 
employee's job skills aptitude, or whatever factor the test purports to 
measure, rather than reflecting the applicant's or employee's impaired 
sensory, manual, or speaking skills (except where those skills are the 
factors that the test purports to measure).



Sec.  8b.14  Preemployment inquiries.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
recipient may not conduct preemployment inquiry of an applicant for 
employment as to whether the applicant is a handicapped individual, or 
as to the nature or severity of a handicap. A recipient may, however, 
make preemployment inquiry into an applicant's ability to perform job-
related functions.
    (b) When a recipient is taking remedial action to correct the 
effects of past discrimination pursuant to Sec.  8b.6(a), when a 
recipient is taking voluntary action to overcome the effects of 
conditions that resulted in limited participation in this federally 
assisted program or activity pursuant to Sec.  8b.6(b), or when a 
recipient is taking

[[Page 117]]

affirmative action pursuant to section 503 of the Act, the recipient may 
invite applicants for employment to indicate whether and to what extent 
they are handicapped, Provided, That:
    (1) The recipient states clearly on any written questionnaire used 
for this purpose or makes clear orally, if no written questionnaire is 
used, that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary or 
affirmative action efforts; and
    (2) The recipient states clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential as 
provided in paragraph (d) of this section, that refusal to provide it 
will not subject the applicant or employee to any adverse treatment, and 
that it will be used only in accordance with this part.
    (c) Nothing in this section shall prohibit a recipient from 
conditioning an offer of employment on the results of a medical 
examination conducted prior to the employee's entrance on duty, 
Provided, That:
    (1) All employees are subject to such an examination regardless of 
handicap, and
    (2) The results of such an examination are used only in accordance 
with the requirements of this part.
    (d) Information obtained in accordance with this section as to the 
medical condition or history of the applicant shall be collected and 
maintained on separate forms that shall be accorded confidentiality as 
medical records, except:
    (1) Employing officials may obtain the information after making a 
conditional decision to make a job offer to the applicant or the 
applicant was placed conditionally in a job pool or placed conditionally 
on an eligibility list;
    (2) Supervisors and managers may be informed regarding restrictions 
on the work or duties of qualified handicapped individuals and regarding 
necessary accommodations;
    (3) First aid and safety personnel may be informed, where 
appropriate, if the condition might require emergency treatment; and
    (4) Government officials investigating compliance with the Act shall 
be provided information upon request.



Sec.  8b.15  Employment on ships.

    No qualified handicapped individual possessing an appropriate 
license or certificate obtained from the United States Coast Guard 
pursuant to the requirements of 46 CFR 10.01-1 et seq. and 12.01-1 et 
seq. shall, on the basis of handicap, be subjected to discrimination in 
employment on ships under any program or activity to which this part 
applies.



                         Subpart C_Accessibility



Sec.  8b.16  Discrimination prohibited.

    No qualified handicapped individual shall, because a recipient's 
facilities are inaccessible to or unusable by handicapped individuals, 
be denied the benefits of, be excluded from participation in, or 
otherwise be subjected to discrimination under any program or activity 
to which this part applies.



Sec.  8b.17  Existing facilities.

    (a) Accessibility. A recipient shall operate each program or 
activity to which this part applies so that when each part is viewed in 
its entirety it is readily accessible to qualified handicapped 
individuals. This paragraph does not require a recipient to make each of 
its existing facilities or every part of a facility accessible to and 
usable by qualified handicapped individuals. However, if a particular 
program is available in only one location, that site must be made 
accessible or the aid, benefit, or service must be made available at an 
alternative accessible site or sites. Accessibility requires nonpersonal 
aids to make the aid, benefit, or service accessible to mobility 
impaired persons.
    (b) Methods. A recipient may comply with the requirements of 
paragraph (a) of this section through such means as redesign of 
equipment, reassignment of classes or other services to accessible 
buildings, assignment of aides to beneficiaries, home visits, delivery 
of services at alternate accessible sites, alteration of existing 
facilities and construction of new facilities in conformance with the 
requirement of Sec.  8b.19, or

[[Page 118]]

any other method that results in making its program or activity 
accessible to handicapped individuals. A recipient is not required to 
make structural changes in existing facilities where other methods are 
effective in achieving compliance with paragraph (a) of this section. In 
choosing among available methods for meeting the requirement of 
paragraph (a) of this section, a recipient shall give priority to those 
methods that serve handicapped individuals in the most integrated 
setting appropriate.
    (c) If a small recipient finds, after consultation with a qualified 
handicapped individual seeking its services, that there is no method of 
complying with paragraph (a) of this section other than making a 
significant alteration in its existing facilities or facility, the small 
recipient may, as an alternative, refer the qualified handicapped 
individual to other providers of those services that are accessible at 
no additional cost to the handicapped.
    (d) Time period. A recipient shall comply with the requirement of 
paragraph (a) of this section within 60 days of the effective date of 
this part. Where structural changes in facilities are necessary, such 
changes shall be made within three years of the effective date of this 
part, but in any event as expeditiously as possible.
    (e) Transition plan. In the event that structural changes to 
facilities are necessary to meet the requirement of paragraph (a) of 
this section, a recipient shall develop, within six months of the 
effective date of this part, a transition plan setting forth the steps 
necessary to complete such changes. The plan shall be developed with the 
assistance of interested persons, including handicapped persons or 
organizations representing handicapped persons. A copy of the transition 
plan shall be made available for public inspection. The plan shall, at a 
minimum:
    (1) Identify physical obstacles in the recipient's facilities that 
limit the accessibility of its program or activity to qualified 
handicapped individuals;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
full accessibility under Sec.  8b.17(a) and, if the time period of the 
transition plan is longer than one year, identify the steps that will be 
taken during each year of the transition period; and
    (4) Indicate the person responsible for implementation of the plan.
    (f) Notice. The recipient shall adopt and implement procedures to 
ensure that interested persons, including persons with impaired vision 
or hearing, can obtain information as to the existence and location of 
services, activities and facilities that are accessible to and usable by 
qualified handicapped individuals.

(Approved by the Office of Management and Budget under control number 
0605-0006)

[47 FR 17746, Apr. 23, 1982, as amended at 47 FR 35472, Aug. 16, 1982; 
68 FR 51353, Aug. 26, 2003]



Sec.  8b.18  New construction.

    (a) Design and construction. Each facility or part of a facility 
constructed by, on behalf of, or for the use of a recipient shall be 
designed and constructed in such manner that the facility or part of the 
facility is readily accessible to and usable by qualified handicapped 
individuals, if the construction was commenced after the effective date 
of this part.
    (b) Alteration. Each facility or part of a facility which is altered 
by, on behalf of, or for the use of a recipient after the effective date 
of this part of the facility shall, to the maximum extent feasible, be 
altered in such manner that the altered portion of the facility is 
readily accessible to and usable by qualified handicapped individuals.
    (c) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as of August 17, 1990, design, construction, or alteration of 
buildings in conformance with sections 3-8 of the Uniform Federal 
Accessibility Standards (UFAS) (Appendix A to 41 CFR subpart 101-19.6) 
shall be deemed to comply with the requirements of this section with 
respect to those buildings. Departures from particular technical and 
scoping requirements of UFAS by the use of other methods are permitted 
where substantially equivalent or greater access to and usability of the 
building is provided.

[[Page 119]]

    (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall 
be interpreted to exempt from the requirements of UFAS only mechanical 
rooms and other spaces that, because of their intended use, will not 
require accessibility to the public or beneficiaries or result in the 
employment or residence therein of persons with physical handicaps.
    (3) This section does not require recipients to make building 
alterations that have little likelihood of being accomplished without 
removing or altering a load-bearing structural member.

[47 FR 17746, Apr. 23, 1982, as amended at 55 FR 29320, July 18, 1990]



                   Subpart D_Post Secondary Education



Sec.  8b.19  Application of this subpart.

    Subpart D applies to post secondary education programs or 
activities, including post secondary vocational education programs or 
activities, that receive Federal financial assistance for the operation 
of, such programs or activities.



Sec.  8b.20  Admission and recruitment.

    (a) General. Qualified handicapped may not, on the basis of 
handicap, be denied admission or be subjected to discrimination in 
admission or recruitment by a recipient to which this subpart applies.
    (b) Admissions. In administering its admission policies, a recipient 
to which this subpart applies:
    (1) May not apply limitations upon the number or proportion of 
handicapped individuals who may be admitted; and
    (2) May not make use of any test or criterion for admission that has 
a disproportionate, adverse effect on handicapped individuals or any 
class of handicapped individuals unless:
    (i) The test or criterion, as used by the recipient, has been 
validated as a predictor of success in the education program or activity 
in question; and
    (ii) Alternate tests or criteria that have a less disproportionate, 
adverse effect are not shown by the Secretary to be available.
    (3) Shall assure itself that (i) admissions tests are selected and 
administered so as best to ensure that, when a test is administered to 
an applicant who has a handicap that impairs sensory, manual, or 
speaking skills, the test results accurately reflect the applicant's 
aptitude or achievement level of whatever other factor the test purports 
to measure, rather than reflecting the applicant's impaired sensory, 
manual, or speaking skills (except where those skills are the factors 
that the test purports to measure); (ii) admissions tests that are 
designed for persons with impaired sensory, manual, or speaking skills 
are offered as often and in as timely a manner as are other admissions 
tests; and (iii) admissions tests are administered in facilities that, 
on the whole, are accessible to handicapped individuals; and
    (4) Except as provided in paragraph (c) of this section, may not 
make pre-admission inquiry as to whether an applicant for admission is a 
handicapped individual but, after admission, may make inquiries on a 
confidential basis as to handicaps that may require accommodation.
    (c) Pre-admission inquiry exception. When a recipient is taking 
remedial action to correct the effects of past discrimination pursuant 
to Sec.  8b.6(a) or when a recipient is taking voluntary action to 
overcome the effects of conditions that resulted in limited 
participation in its federally assisted program or activity pursuant to 
Sec.  8b.6(b), the recipient may invite applicants for admission to 
indicate whether and to what extent they are handicapped, Provided, 
That:
    (1) The recipient states clearly on any written questionnaire used 
for this purpose or makes clear orally, if no written questionnaire is 
used, that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary action 
efforts; and
    (2) The recipient states clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential, that 
refusal to provide it will not subject the applicant to any adverse 
treatment, and that it will be used only in accordance with this part.

[[Page 120]]

    (d) Validity studies. For the purpose of paragraph (b)(2) of this 
section, a recipient may base prediction equations on first year grades, 
but shall conduct periodic validity studies against the criterion of 
overall success in the education program or activity in question in 
order to monitor the general validity of the test scores.



Sec.  8b.21  Treatment of students.

    (a) General. No qualified handicapped student shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any academic research, 
occupational training, housing, health insurance, counseling, financial 
aid, physical education, athletics, recreation, transportation, other 
extracurricular, or other post secondary education aid, benefits, or 
services to which this subpart applies.
    (b) A recipient to which this subpart applies that considers 
participation by students in education programs or activities not 
operated wholly by the recipient as part of, or equivalent to, education 
programs or activities operated by the recipient shall assure itself 
that the other education program or activity, as a whole, provides an 
equal opportunity for the participation of qualified handicapped 
persons.
    (c) A recipient to which this subpart applies may not, on the basis 
of handicap exclude any qualified handicapped student from any course or 
study, or other part of its education program or activity.
    (d) A recipient to which this subpart applies shall operate its 
program or activity in the most integrated setting appropriate.



Sec.  8b.22  Academic adjustments.

    (a) Academic requirements. A recipient to which this subpart applies 
shall make such modifications to its academic requirements as are 
necessary to ensure that such requirements do not discriminate or have 
the effect of discriminating, on the basis of handicap, against a 
qualified handicapped applicant or student. Academic requirements that 
the recipient can demonstrate are essential to the instruction being 
pursued by such student or to any directly related licensing requirement 
will not be regarded as discriminatory within the meaning of this 
section. Modifications may include changes in the length of time 
permitted for the completion of degree requirements, substitution of 
specific courses required for the completion of degree requirements, and 
adaptation of the manner in which specific courses are conducted.
    (b) Other rules. A recipient to which this subpart applies may not 
impose upon handicapped students other rules, such as the prohibition of 
tape recorders in classrooms or of dog guides in campus buildings, that 
have the effect of limiting the participation of handicapped students in 
the recipient's education program or activity.
    (c) Course examinations. In its course examinations or other 
procedures for evaluating student's academic achievement, a recipient to 
which this subpart applies shall provide such methods for evaluating the 
achievement of students who have a handicap that impairs sensory, 
manual, or speaking skills as will best ensure that the results of the 
evaluation represents the student's achievement in the course, rather 
than reflecting the student's impaired sensory, manual, or speaking 
skills (except where such skills are the factors that the test purports 
to measure).
    (d) Auxiliary aids. (1) A recipient to which this subpart applies 
shall ensure that no handicapped student is denied the benefits of, 
excluded from participation in, or otherwise subjected to discrimination 
because of the absence of educational auxiliary aids for students with 
impaired sensory, manual, or speaking skills. A recipient shall operate 
each program or activity to which this subpart applies so that, when 
viewed in its entirety, auxiliary aids are readily available.
    (2) Auxiliary aids may include taped text, interpreters or other 
effective methods of making orally delivered materials available to 
students with hearing impairments, readers in libraries for students 
with visual impairments, classroom equipment adapted for use by students 
with manual impairments, and other similar services

[[Page 121]]

and actions. Recipients need not provide attendants, individually 
prescribed devices, readers for personal use or study, or other devices 
or services of a personal nature.



Sec.  8b.23  Housing provided by the recipient.

    (a) A recipient that provides housing to its nonhandicapped students 
shall provide comparable, convenient, and accessible housing to 
handicapped students at the same cost as to others. At the end of 
transition period provided for in subpart C, such housing shall be 
available in sufficient quantity and variety so that the scope of 
handicapped students choice of living accommodations is, as a whole, 
comparable to that of nonhandicapped students.
    (b) Other housing. A recipient that assists any agency, 
organization, or person in making housing available to any of its 
students shall take such action as may be necessary to assure itself 
that such housing is, as a whole, made available in a manner that does 
not result in discrimination on the basis of handicap.



Sec.  8b.24  Financial and employment assistance to students.

    (a) Provision of financial assistance. (1) In providing financial 
assistance to qualified handicapped individuals, a recipient to which 
this subpart applies may not (i) on the basis of handicap, provide less 
assistance than is provided to nonhandicapped persons, limit eligibility 
for assistance, or otherwise discriminate or (ii) assist any entity or 
person that provides assistance to any of the recipient's students in a 
manner that discriminates against qualified handicapped individuals on 
the basis of handicap.
    (2) A recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established under wills, trust, bequest, or similar legal instruments 
that require awards to be made on the basis of factors that discriminate 
or have the effect of discriminating on the basis of handicap only if 
the overall effect of the award of scholarships, fellowships, and other 
forms of financial assistance is not discriminatory on the basis of 
handicap.
    (b) Assistance in making available outside employment. A recipient 
that assists any agency, organization, or person in providing employment 
opportunities to any of its students shall assure itself that such 
employment opportunities, as a whole, are made available in a manner 
that would not violate subpart B if they were provided by the recipient.
    (c) Employment of student by recipients. A recipient that employs 
any of its students may not do so in a manner that violates subpart B.



Sec.  8b.25  Nonacademic services.

    (a) Physical education and athletics. (1) In providing physical 
education courses and athletics and similar aid, benefits, or services 
to any of its students, a recipient to which this subpart applies may 
not discriminate on the basis of handicap. A recipient that offers 
physical education courses or that operates or sponsors intercollegiate, 
club, or intramural athletics shall provide to qualified handicapped 
students an equal opportunity for participation in these activities.
    (2) A recipient may offer to handicapped students physical education 
and athletic activities that are separate or different only if 
separation of differentiation is consistent with the requirements of 
Sec.  8b.22(d) and only if no qualified handicapped student is denied 
the opportunity to compete for teams or to participate in courses that 
are not separate or different.
    (b) Counseling and placement services. A recipient to which this 
subpart applies that provides personal, academic, or vocational 
counseling guidance, or placement services to its students shall provide 
these services without discrimination on the basis of handicap. The 
recipient shall ensure that qualified handicapped students are not 
counseled toward more restrictive career objectives than are 
nonhandicapped students with similar interests and abilities. This 
requirement does not preclude a recipient from providing factual 
information about licensing and certification requirements that may 
present obstacles to handicapped persons in their pursuit of particular 
careers.

[[Page 122]]

    (c) Social organizations. A recipient that provides significant 
assistance to fraternities, sororities, or similar organizations shall 
assure itself that the membership practices of such organizations do not 
permit discrimination otherwise prohibited by this subpart.



                          Subpart E_Procedures



Sec.  8b.26  Procedures.

    The enforcement provisions applicable to Title VI of the Civil 
Rights Act of 1964 found at Sec. Sec.  8.7 through 8.15 of this subtitle 
shall apply to this part.



PART 8c_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 
PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF COMMERCE-
-Table of Contents



Sec.
8c.1 Purpose.
8c.2 Application.
8c.3 Definitions.
8c.4-8c.9 [Reserved]
8c.10 Self-evaluation.
8c.11 Notice.
8c.12-8c.29 [Reserved]
8c.30 General prohibitions against discrimination.
8c.31-8c.39 [Reserved]
8c.40 Employment.
8c.41-8c.48 [Reserved]
8c.49 Program accessibility: Discrimination prohibited.
8c.50 Program accessibility: Existing facilities.
8c.51 Program accessibility: New construction and alterations.
8c.52-8c.59 [Reserved]
8c.60 Communications.
8c.61-8c.69 [Reserved]
8c.70 Compliance procedures.

    Authority: 29 U.S.C 794.

    Source: 53 FR 19277, May 27, 1988, unless otherwise noted.



Sec.  8c.1  Purpose.

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



Sec.  8c.2  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.  8c.3  Definitions.

    For purposes of this part, the term--
    Agency means the Department of Commerce.
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, and other similar services and devices. Auxiliary aids 
useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TDD's), interpreters, notetakers, written 
materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Individual with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a

[[Page 123]]

record of such an impairment, or is regarded as having such an 
impairment. As used in this definition, the phrase:
    (1) ``Physical or mental impairment'' includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical or mental 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
and drug addiction and alcoholism
    (2) ``Major life activities'' includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) ``Has a record of such an impairment'' means has a history of, 
or has been misclassified as having, a mental or physical impairment 
that substantially limits one or more major life activities.
    (4) ``Is regarded as having an impairment'' means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others 
towards 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.
    Qualified individual with handicaps means--
    (1) With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, an individual with handicaps who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
agency can demonstrate would result in a fundamental alteration in its 
nature;
    (2) With respect to any other program or activity, an individual 
with handicaps who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (3) ``Qualified handicapped person'' as that term is defined for 
purposes of employment in 29 CFR 1613.702(f), which is made applicable 
to this part by Sec.  8c.40.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978) Pub. L. 95-602, 92 Stat. 2955); and the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). 
As used in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.

[53 FR 19277, May 27, 1988; 53 FR 25722, July 8, 1988]



Sec. Sec.  8c.4-8c.9  [Reserved]



Sec.  8c.10  Self-evaluation.

    (a) The agency shall, by July 26, 1989, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including individuals with handicaps or organizations representing 
individuals with handicaps, to participate in the self-evaluation 
process by submitting comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the

[[Page 124]]

self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec.  8c.11  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the Secretary of 
Commerce or the Secretary's designee finds necessary to apprise such 
persons of the protections against discrimination assured them by 
section 504 and this regulation.



Sec. Sec.  8c.12-8c.29  [Reserved]



Sec.  8c.30  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the 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 a planning or advisory board; or
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified individual with handicaps 
the opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicaps; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program with respect to individuals with handicaps.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified individuals with handicaps 
to discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified

[[Page 125]]

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.  8c.31-8c.39  [Reserved]



Sec.  8c.40  Employment.

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



Sec. Sec.  8c.41-8c.48  [Reserved]



Sec.  8c.49  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec.  8c.50, 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.  8c.50  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps; or
    (2) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with section Sec.  8c.50(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the Secretary of Commerce or the 
Secretary's 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 is not required to make 
structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. The agency, in 
making alterations to existing buildings, shall meet accessibility 
requirements to the extent compelled by the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), and any regulations 
implementing it. In choosing

[[Page 126]]

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 by September 26, 1988, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by July 26, 1991, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by January 26, 1989, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including individuals with 
handicaps or organizations representing individuals with handicaps, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its program 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.  8c.51  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements, and standards 
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established 
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec.  8c.52-8c.59  [Reserved]



Sec.  8c.60  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applications and 
beneficiaries by telephone, telecommunication devices for deaf persons 
(TDD's) or equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signs at a primary entrance to each of 
its inaccessible facilities, directing users to a location at which they 
can obtain information about accessible facilities. The international 
symbol for accessibility shall be used at each primary entrance of an 
accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens,

[[Page 127]]

the agency has the burden of proving that compliance with Sec.  8c.60 
would result in such alteration or burdens. The decision that compliance 
would result in such alteration of burdens must be made by the Secretary 
of Commerce or the Secretary's designee after considering all agency 
resources available for use in the funding and operation of the 
conducted program or activity, and must be accompanied by a written 
statement of the reasons for reaching that conclusion. If an action 
required to comply with this section would result in such an alteration 
or such burdens, the agency shall take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that, to the maximum extent possible, individuals with handicaps 
receive the benefits and services of the program or activity.



Sec. Sec.  8c.61-8.69  [Reserved]



Sec.  8c.70  Compliance procedures

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
Part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Chief of the Compliance Divison shall be responsible for 
coordinating implemention of this section. Complaints may be sent to 
Chief, Compliance Division, Office of Civil Rights, Room 6012, Herbert 
C. Hoover Building, 14th and Constitution Avenue, Washington, DC, 20230.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec.  8c.70(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the Assistant 
Secretary for Administration.
    (j) The Assistant Secretary for Administration shall notify the 
complainant of the results of the appeal within 60 days of the receipt 
of the request. If the Assistant Secretary for Administration determines 
that additional information is needed from the complainant, he or she 
shall have 60 days from the date of receipt of the additional 
information to make his or her determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of the section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[53 FR 19277, May 27, 1988; 53 FR 25722, July 8, 1988]

[[Page 128]]



PART 9_PROCEDURES FOR A VOLUNTARY LABELING PROGRAM FOR HOUSEHOLD APPLIANCES
AND EQUIPMENT TO EFFECT ENERGY CONSERVATION--Table of Contents



Sec.
9.0 Purpose.
9.1 Goal of program.
9.2 Definitions.
9.3 Appliances and equipment included in program.
9.4 Development of voluntary energy conservation specifications.
9.5 Participation of manufacturers.
9.6 Termination of participation.
9.7 Department of Commerce energy conservation mark.
9.8 Amendment or revision of voluntary energy conservation 
          specifications.
9.9 Consumer education.
9.10 Coordination with State and local programs.
9.11 Annual report.

    Authority: Sec. 2, 31 Stat. 1449, as amended, sec. 1, 64 Stat. 371; 
15 U.S.C. 272, Reorganization Plan No. 3 of 1946, Part VI; Message from 
the President of the United States Concerning Energy Resources, April 
18, 1973 (119 Cong. Rec. H2886).

    Source: 38 FR 29574, Oct. 26, 1973, unless otherwise noted.



Sec.  9.0  Purpose.

    The purpose of this part is to establish procedures relating to the 
Department's voluntary labeling program for household appliances and 
equipment to promote and effect energy conservation.



Sec.  9.1  Goal of program.

    (a) This program was initiated in response to the direction of 
President Nixon in his 1973 Energy Message that the Department of 
Commerce in cooperation with the Council on Environmental Quality and 
the Environmental Protection Agency develop a voluntary labeling program 
which would apply to energy-consuming home appliances.
    (b) The goal of this program is to encourage manufacturers to 
provide consumers, at the point of sale, with information on the energy 
consumption and energy efficiency of household appliances and equipment. 
Such information, presented in a uniform manner readily understandable 
to consumers, would be displayed on labels attached to or otherwise 
provided with the appliances or equipment. The labels will include a 
system intended to make it possible for consumers to compare by cost or 
otherwise the energy consumption and energy efficiency characteristics 
when purchasing household appliances and equipment and to select those 
that can effect savings in energy consumption.



Sec.  9.2  Definitions.

    (a) The term Secretary means the Secretary of Commerce.
    (b) The term manufacturer means any person engaged in the 
manufacturing or assembling of new appliances or equipment in the United 
States, or in the importing of such products for sale or resale, or any 
person whose brand or trademark appears on such products who owns such 
brand or trademark and has authorized its use on such products, if the 
brand or trademark of the person actually manufacturing or assembling 
the products does not appear on the products.
    (c) The term energy consumption means the energy resources used by 
appliances or equipment under conditions of use approximating actual 
operating conditions insofar as practical as determined through test 
procedures contained or identified in a final Voluntary Energy 
Conservation Specification published under Sec.  9.4(e).
    (d) The term energy efficiency means the energy use of appliances or 
equipment relative to their output of services, as determined through 
test procedures contained or identified in a final Voluntary Energy 
Conservation Specification published under Sec.  9.4(e).
    (e) The term consumer means the first person who purchases a new 
appliance or item of equipment for purposes other than resale.
    (f) The term class of appliance or equipment means a group of 
appliances or equipment whose functions or features are similar, and 
whose functional output covers a range that may be of interest to 
consumers.
    (g) The term Specification means a Voluntary Energy Conservation 
Specification developed under Sec.  9.4.
    (h) The term label means printed matter affixed to or otherwise 
provided with appliances or equipment and

[[Page 129]]

meeting all the requirements called for in a Voluntary Energy 
Conservation Specification published under Sec.  9.4(e).

[38 FR 29574, Oct. 26, 1973, as amended at 40 FR 33966, Aug. 13, 1975]



Sec.  9.3  Appliances and equipment included in program.

    The appliances and equipment included in this program are room and 
central air conditioners, household refrigerators, home freezers, 
clothes washers, dishwashers, clothes dryers, kitchen ranges and ovens, 
water heaters, comfort heating equipment, and television receivers. 
Additional appliances and equipment may be included in the program by 
the Secretary pursuant to rule making procedures as set out in 5 U.S.C. 
553. Individual units of appliances and equipment manufactured for 
export are not included in this program.

[38 FR 29574, Oct. 26, 1973, as amended at 40 FR 33966, Aug. 13, 1975]



Sec.  9.4  Development of voluntary energy conservation specifications.

    (a) The Secretary in cooperation with appropriate Federal agencies 
and in cooperation with affected manufacturers, distributors, retailers, 
consumers, environmentalists, and other interested parties shall develop 
proposed Specifications for the specific classes of appliances and 
equipment covered under Sec.  9.3.
    (b) Each Specification shall as a minimum include:
    (1) A description of the class of appliance or equipment covered by 
the Specification, listing the distribution of energy efficiencies for 
that class of appliance or equipment.
    (2) Listings or descriptions of test methods to be used in measuring 
the energy consumption and/or energy efficiency characteristics of the 
class of appliance or equipment.
    (3) A prototype Label and directions for displaying the Label on or 
with appliances or equipment of that class. The Label shall be 
prominent, readable, and visible and shall include information that will 
assist the consumer in comparing by cost or otherwise the energy 
consumption and/or energy efficiency characteristics of a particular 
appliance or item of equipment with all others in its class. The Label 
shall also include the Department of Commerce Energy Conservation Mark 
specified in Sec.  9.7.
    (4) Conditions for the participation of manufacturers in the 
program.
    (c) The test methods listed or described in the Specification 
pursuant to Sec.  9.4(b)(2) shall be those described in existing 
nationally-recognized voluntary standards where such methods are 
appropriate. Where appropriate test methods do not so exist, they will 
be developed by the Department of Commerce in cooperation with 
interested parties.
    (d) The Secretary upon development of a proposed Specification shall 
publish in the Federal Register a notice giving the complete text of the 
proposed Specification, and any other pertinent information, and 
inviting any interested person to submit written comments on the 
proposed Specification within 30 days after its publication in the 
Federal Register, unless another time limit is provided by the 
Secretary. Interested persons wanting to express their views in an 
informal hearing may do so if, within 15 days after the proposed 
Specification is published in the Federal Register, they request the 
Secretary to hold a hearing. Such informal hearings shall be held so as 
to give all interested persons opportunity for the oral presentation of 
data, views, or arguments in addition to the opportunity to make written 
submissions. Notice of such hearings shall be published in the Federal 
Register. A transcript shall be kept of any oral presentations.
    (e) The Secretary, after consideration of all written and oral 
comments and other materials received in accordance with paragraph (d) 
of this section, shall publish in the Federal Register within 30 days 
after the final date for receipt of comments, or as soon as practicable 
thereafter, a notice either:
    (1) Giving the complete text of a final Specification, including 
conditions of use, and stating that any manufacturer of appliances or 
equipment in the class concerned desiring voluntarily to use the Label 
and Energy Conservation Mark with such appliances or equipment must 
advise the Department of Commerce; or

[[Page 130]]

    (2) Stating that the proposed Specification will be further 
developed before final publication; or
    (3) Withdrawing the proposed Specification from further 
consideration.



Sec.  9.5  Participation of manufacturers.

    (a) Manufacturers desiring to participate in this program will so 
notify the Department of Commerce. The notification will identify the 
particular Specification to be used and the manufacturer's model numbers 
for the products to be labeled. The notification will also state that 
the manufacturer will abide by all conditions contained in the 
Specification and will desist from using the Label and Energy 
Conservation Mark if requested by the Department of Commerce under the 
provisions of Sec.  9.6.
    (b) The conditions for participation will be set out in the 
Specification and will include, but not be limited to, the following:
    (1) Prior to the use of a Label the manufacturer will make or have 
made the measurements to obtain the information required for inclusion 
on the Label and, if requested, will forward within 30 days such 
measurement data to the Department of Commerce. Such measurement data 
will be kept on file by the manufacturer or his agent for two years 
after that model of appliance or equipment is no longer manufactured 
unless otherwise provided in the Specification. The use of independent 
test laboratories or national certification programs available to any 
manufacturer is acceptable for the purposes of this program.
    (2) The manufacturer will describe the test results on the Label as 
prescribed in the Specification.
    (3) The manufacturer will display or arrange to display, in 
accordance with the appropriate Specification, the Label on or with each 
individual unit of appliance or equipment within the subject class and 
with the same brand name manufactured by him except for units exported 
from the United States. All models with the same brand name that fall 
within the class must be included in the program unless they are for 
export only.
    (4) The manufacturer agrees at his expense to comply with any 
reasonable request of the Department of Commerce to have appliances or 
equipment manufactured by him tested to determine that testing has been 
done according to the relevant Specification.
    (5) Manufacturers may reproduce the Department of Commerce Labels 
and Energy Conservation Mark in advertising provided that the entire 
Label, complete with all information required to be displayed at the 
point of retail sale, is shown legibly.



Sec.  9.6  Termination of participation.

    (a) The Department of Commerce upon finding that a manufacturer is 
not complying with the conditions of participation set out in these 
procedures or in a Specification may terminate upon 30 days notice the 
manufacturer's participation in the program: Provided, That the 
manufacturer shall first be given an opportunity to show cause why the 
participation should not be terminated. Upon receipt of a notice of 
termination, a manufacturer may request within 30 days a hearing under 
the provisions of 5 U.S.C. 558.
    (b) A manufacturer may at any time terminate his participation and 
responsibilities under this program with regard to a specific class of 
products by giving written notice to the Secretary that he has 
discontinued use of the Label and Energy Conservation Mark for all 
appliances or equipment within that class.



Sec.  9.7  Department of Commerce energy conservation mark.

    The Department of Commerce shall develop an Energy Conservation Mark 
which shall be registered in the U.S. Patent Office under 15 U.S.C. 1054 
for use on each Label described in a Specification.



Sec.  9.8  Amendment or revision of voluntary energy conservation 
specifications.

    The Secretary may by order amend or revise any Specification 
published under Sec.  9.4. The procedure applicable to the establishment 
of a Specification under Sec.  9.4 shall be followed in amending or 
revising such Specification. Such amendment or revision shall not

[[Page 131]]

apply to appliances or equipment manufactured prior to the effective 
date of the amendment or revision.



Sec.  9.9  Consumer education.

    The Department of Commerce, in close cooperation and coordination 
with interested Government agencies, appropriate industry trade 
associations and industry members, and interested consumers and 
environmentalists shall carry out a program to educate consumers 
relative to the significance of the labeling program. Some elements of 
this program shall also be directed toward informing retailers and other 
interested groups about the program.



Sec.  9.10  Coordination with State and local programs.

    The Department of Commerce will establish and maintain an active 
program of communication with appropriate state and local government 
offices and agencies and will furnish and make available information and 
assistance that will promote to the greatest practicable extent 
uniformity in State, local, and Federal programs for the labeling of 
household appliances and equipment to effect energy conservation.



Sec.  9.11  Annual report.

    The Secretary will prepare an annual report of activities under the 
program, including an evaluation of the program and a list of 
participating manufacturers and classes of appliances and equipment.



PART 10_PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS-
-Table of Contents



Sec.
10.0 General.
10.1 Initiating development of a new standard.
10.2 Funding.
10.3 Development of a proposed standard.
10.4 Establishment of the Standard Review Committee.
10.5 Development of a recommended standard.
10.6 Procedures for acceptance of a recommended standard.
10.7 Procedure when a recommended standard is not supported by a 
          consensus.
10.8 Standing Committee.
10.9 Publication of a standard.
10.10 Review of published standards.
10.11 Revision or amendment of a standard.
10.12 Editorial changes.
10.13 Withdrawal of a published standard.
10.14 Appeals.
10.15 Interpretations.
10.16 Effect of procedures.

    Authority: Sec. 2.31 Stat. 1449, as amended, sec. 1, .64 Stat 371; 
15 U.S.C. 272, Reorganization Plan No. 3 of 1946, Part VI (3 CFR 1943-
1948 Comp., p. 1065).

    Source: 51 FR 22497, June 20, 1986, unless otherwise noted.



Sec.  10.0  General.

    (a) Introduction. The Department of Commerce (hereinafter referred 
to as the ``Department'') recognizes the importance, the advantages, and 
the benefits of voluntary standards and standardization activities. Such 
standards may cover, but are not limited to, terms, classes, sizes 
(including quantities of packaged consumer commodities), dimensions, 
capacities, quality levels, performance criteria, inspection 
requirements, marking requirements, testing equipment, test procedures 
and installation procedures. Economic growth is promoted through:
    (1) Reduction of manufacturing costs, inventory costs, and 
distribution costs;
    (2) Better understanding among manufacturers, producers, or 
packagers (hereinafter referred to as producers), distributors, users, 
and consumers; and
    (3) Simplification of the purchase, installation, and use of the 
product being standardized.
    (b) Requirements for Department of Commerce sponsorship. The 
Department may sponsor the development of a voluntary Product Standard 
if, upon receipt of a request, the Department determines that:
    (1) The proposed standard is likely to have substantial public 
impact;
    (2) The proposed standard reflects the broad interest of an industry 
group or an organization concerned with the manufacture, production, 
packaging, distribution, testing, consumption, or use of the product, or 
the interest of a Federal or State agency;
    (3) The proposed standard would not duplicate a standard published 
by, or actively being developed or revised by, a private standards-
writing organization to such an extent that it would

[[Page 132]]

contain similar requirements and test methods for identical types of 
products, unless such duplication was deemed by the Department to be in 
the public interest;
    (4) Lack of government sponsorship would result in significant 
public disadvantage for legal reasons or reasons of domestic and 
international trade;
    (5) The proposed standard is not appropriate for development and 
maintenance by a private standards-writing organization; and
    (6) The proposed standard will be funded by a proponent organization 
or government agency to cover costs for administrative and technical 
support services provided by the Department.
    (c) Role of the Department. The Department assists in the 
establishment of a Voluntary Product Standard as follows:
    (1) Acts as an unbiased coordinator in the development of the 
standard;
    (2) Provides editorial assistance in the preparation of the 
standard;
    (3) Supplies such assistance and review as is required to assure the 
technical soundness of the standard;
    (4) Seeks satisfactory adjustment of valid points of disagreement;
    (5) Determines the compliance with the criteria established in these 
procedures for such voluntary standards;
    (6) Provides secretarial functions for each committee appointed by 
the Department under these procedures;
    (7) Publishes the standard as a public document;
    (8) Administers the funds for administrative and technical support 
services; and
    (9) Seeks listing for standards developed under these procedures as 
American National Standards through the American National Standards 
Institute, when deemed appropriate by the Department.
    (d) Role of producers, distributors, users, and consumers. 
Producers, distributors, users, consumers, and other interested groups 
may contribute to the development of a Voluntary Product Standard as 
follows:
    (1) Initiate and participate in the development of the standard;
    (2) Provide technical or other relevant counsel, as appropriate, 
relating to the standard;
    (3) Promote the use of, and support for, the standard; and
    (4) Assist in keeping the standard current with respect to advancing 
technology and marketing practices.
    (e) Role of the National Institute of Standards & Technology. The 
National Institute of Standards & Technology (NIST) administers these 
procedures for the Department. Any communications concerning these 
procedures (e.g., questions, clarifications, appeals) should be 
addressed to the Office of Product Standards Policy, National Institute 
of Standards & Technology, Gaithersburg, Maryland 20899.

[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  10.1  Initiating development of a new standard.

    (a) Any group or association of producers, distributors, users, or 
consumers, or a testing laboratory, or a State or Federal agency, may 
request the Department to initiate the development and publication of a 
Voluntary Product Standard under these procedures. Requests shall be in 
writing, signed by a representative of the group or agency, and 
forwarded to the Department. The initial request may be accompanied by a 
copy of a draft of the suggested standard.
    (b) The request shall include a commitment to provide sufficient 
funding to cover all costs associated with the development and 
maintenance of the proposed Voluntary Product Standard.
    (c) The Department may require additional information such as 
technical, marketing, or other appropriate data essential to discussion 
and development of the proposed standard, including, but not limited to, 
physical, mechanical, chemical, or performance characteristics, and 
production figures.
    (d) Upon receipt of an appropriate request and after a determination 
by the Department that the development of a Voluntary Product Standard 
is justified, the Department may initiate the development by requesting 
that a draft of the suggested standard be prepared by an appropriate 
committee, provided such a draft has not previously been submitted under 
paragraph (a) of this section.

[[Page 133]]

    (e) The Department may initiate the development of a Voluntary 
Product Standard, if such action is deemed by the Department to be in 
the public interest, notwithstanding the absence of a request from an 
outside source. A voluntary standard initiated by the Department shall 
be processed in accordance with all requirements of these procedures and 
shall be developed in the same manner as a voluntary standard initiated 
by any group referred to in paragraph (a) of this section.
    (f) An agreement regarding funding procedures and receipt of a 
deposit estimated by the Department to be sufficient to cover the first 
year's costs shall occur prior to the initiation of any project.



Sec.  10.2  Funding.

    Groups who represent producers, distributors, consumers or users, or 
others that wish to act or continue to act as proponent organizations 
for the development or maintenance of a Voluntary Product Standard will 
be required to pay for administrative and technical support services 
provided by the National Institute of Standards & Technology and such 
other direct or indirect costs associated with the development or 
maintenance of that standard as may be deemed appropriate by the 
Department, including costs to the Department in connection with the 
operation of the Standard Review Committee and the Standing Committee. 
Funds may also be provided by a government agency at the request of a 
proponent organization or when acting on its own behalf for the 
development or maintenance of a Voluntary Product Standard. Proponents 
of standards that meet sponsorship criteria established in these 
procedures shall furnish an initial deposit of funds sufficient to cover 
the first year's services and other costs. Estimated annual costs will 
be based on an hourly rate for salary and overhead established by the 
Department for the National Institute of Standards & Technology's 
administrative and technical support services plus estimates of direct 
costs to provide funds for such items as the travel of consumer 
representatives unable to otherwise attend committee meetings, travel 
for Department staff, and printing costs. Project funds will be reviewed 
annually. Excess funds may be refunded or applied to the next accounting 
period. Should funds from deposits be inadequate during an accounting 
period, work on the project will continue only if funds are restored to 
a level estimated adequate to complete the 12-month period.

[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  10.3  Development of a proposed standard.

    (a) A proposed standard as submitted to the Department:
    (1) Shall be based on adequate technical information, or, in the 
case of size standards (including standards covering the quantities for 
packaged consumer commodities), on adequate marketing information, or 
both, as determined to be appropriate by the Department;
    (2) Shall not be contrary to the public interest;
    (3) Shall be technically appropriate and such that conformance or 
nonconformance with the standard can be determined either during or 
after the manufacturing process by inspection or other procedures which 
may be utilized by either an individual or a testing facility competent 
in the particular field;
    (4) Shall follow the format prescribed by the National Institute of 
Standards & Technology. (Copies of the recommended format may be 
obtained from the Office of Product Standards Policy, National Institute 
of Standards & Technology, Gaithersburg, Maryland 20899.);
    (5) Shall include performance requirements if such are deemed by the 
Department to be technically sound, feasible, and practical, and the 
inclusion of such is deemed to be appropriate;
    (6) May include dimensions, sizes, material specifications, product 
requirements, design stipulations, component requirements, test methods, 
testing equipment descriptions, and installation procedures. The 
appropriateness of the inclusion in a standard of any particular item 
listed in this subparagraph shall be determined by the Department; and

[[Page 134]]

    (7) Shall be accompanied by rational statements pertaining to the 
requirements and test methods contained in the standard, if deemed 
necessary by the Department.
    (b) A proposed standard that is determined by the Department to meet 
the criteria set forth in paragraph (a) of this section may be subjected 
to further review by an appropriate individual, committee, organization, 
or agency (either government or nongovernment, but not associated with 
the proponent group).
    (c) A proposed standard may be circulated by the Department to 
appropriate producers, distributors, users, consumers, and other 
interested groups for consideration and comment as well as to others 
requesting the opportunity to comment.
    (d) The proponent group or appropriate committee which drafted the 
initial proposal under Sec.  10.1(d) shall consider all comments and 
suggestions submitted by the reviewer designated under paragraph (b) of 
this section, and those received by the Department as a result of any 
circulation under paragraph (c) of this section, and may make such 
adjustments in the proposal as are technically sound and as are believed 
to cause the standard to be generally acceptable to producers, 
distributors, users, consumers, and other interested parties. The 
proposal will then be submitted to the Department for further 
processing.

[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  10.4  Establishment of the Standard Review Committee.

    (a) The Department shall establish and appoint the members of a 
Standard Review Committee within a reasonable time after receiving a 
proposed standard. The committee shall consist of qualified 
representatives of producers, distributors, and users or consumers of 
product for which a standard is sought or any other appropriate general 
interest groups such as State and Federal agencies. When requested by 
the Standard Review Committee, the Department shall appoint one voting 
member from among the representatives of the Federal agencies, other 
than the Department of Commerce. All other representatives of Federal 
agencies on the Standard Review Committees shall be advisory nonvoting 
members. (Alternates to committee members may be designated by the 
Department.) When deemed appropriate by the Department, project funds 
under Sec.  10.2 may be made available to assure participation by 
consumer interests on the committee at required meetings.
    (b) A Standard Review Committee may remain in existence for a period 
necessary for the final development of the standard, or for 2 years, 
whichever is less.
    (c) The Department shall be responsible for the organization of the 
committee. Any formal operating procedures developed by the committee 
shall be subject to approval by the Department. The committee may 
conduct business either in a meeting or through correspondence, but only 
if a quorum participates. A quorum shall consist of two-thirds of all 
voting members of the committee. A majority of the voting members of the 
committee participating shall be required to approve any actions taken 
by the committee except for the action of recommending a standard to the 
Department, the requirements for which are contained in Sec.  10.5(b).



Sec.  10.5  Development of a recommended standard.

    (a) The Standard Review Committee, with the guidance and assistance 
of the Department and, if appropriate, the reviewer designated under 
Sec.  10.3(b), shall review a proposed standard promptly. If the 
committee finds that the proposal meets the requirements set forth in 
Sec.  10.3(a), it may recommend to the Department that the proposal be 
circulated for acceptance under Sec.  10.6. If, however, the committee 
finds that the proposal being reviewed does not meet the requirements 
set forth in Sec.  10.3(a), the committee shall change the proposal, 
after consulting with the proponent group, so that these requirements 
are met, before recommending such proposal to the Department.
    (b) The recommendation of a standard by the Standard Review 
Committee shall be approved by at least three-quarters, or rejected by 
more than one-quarter, of all of the members of the

[[Page 135]]

committee eligible to vote. The voting on the recommendation of a 
standard shall be conducted by the Department if conducted by letter 
ballot. If such voting is accomplished at a meeting of the committee, 
the balloting shall be either by roll call or by signed written ballot 
conducted by the Department or the chairman of this committee. If 
conducted by the chairman, a report of the vote shall be made to the 
Department within 15 days. If the balloting at the meeting does not 
result in either approval by at least three-quarters of all members (or 
alternates) eligible to vote (whether present or not), or rejection by 
more than one-quarter of the members (or alternates) or the committee 
eligible to vote, the balloting shall be disregarded and the Department 
shall subsequently conduct a letter ballot of all members of the 
committee.
    (c) Any member of the committee casting a negative ballot shall have 
the right to support an objection by furnishing the chairman of the 
committee and the Department with a written statement setting forth the 
basis for the objection. The written statement of objection shall be 
filed within 15 days after the date of the meeting during which the 
voting on the standard was accomplished, or, in the case of a letter 
ballot, within the time limit established for the return of the ballot.
    (d) At the time a recommended standard is submitted to the 
Department, the Chairman of the Standard Review Committee shall furnish 
a written report in support of the committee's recommendation. Such 
report shall include a statement with respect to compliance with the 
requirements as established by these procedures, a discussion of the 
manner in which any objections were resolved, and a discussion of any 
unresolved objections together with the committee's reasons for 
rejecting such unresolved objections.



Sec.  10.6  Procedures for acceptance of a recommended standard.

    (a) Upon receipt from the Standard Review Committee of a recommended 
standard and report, the Department shall give appropriate public notice 
and distribute the recommended standard for acceptance unless:
    (1) Upon a showing by any member of the committee who has voted to 
oppose the recommended standard on the basis of an unresolved objection, 
the Department determines that if such objection were not resolved, the 
recommended standard:
    (i) Would be contrary to the public interest, if published;
    (ii) Would be technically inadequate; or
    (iii) Would be inconsistent with law or established public policy; 
or
    (2) The Department determines that all criteria and procedures set 
forth herein have not been met satisfactorily or that there is a legal 
impediment to the recommended standard.
    (b) Distribution for acceptance or rejection for the purpose of 
determining general concurrence will be made to a list compiled by the 
Department, which, in the judgment of the Department, shall be 
representative of producers, distributors, and users and consumers.
    (c) Distribution for comment will be made to any party filing a 
written request with the Department, and to such other parties as the 
Department may deem appropriate, including testing laboratories and 
interested State and Federal agencies.
    (d) The Department shall analyze the recommended standard and the 
responses received under paragraphs (b) and (c) of this section. If such 
analysis indicates that the recommended standard is supported by a 
consensus, it shall be published as a Voluntary Product Standard by the 
Department: Provided, That all other requirements listed in these 
procedures have been satisfied.
    (e) The following definitions shall apply to the term used in this 
section:
    (1) ``Consensus'' means general concurrence and, in addition, no 
substantive objection deemed valid by the Department.
    (2) ``General concurrence'' means acceptance among those responding 
to the distribution made under paragraph (b) of this section in 
accordance with the conditions set forth in paragraph (f) of this 
section.

[[Page 136]]

    (3) ``Substantive objection'' means a documented objection based on 
grounds that one or more of the criteria set forth in these procedures 
has not been satisfied.
    (4) ``Average industry acceptance'' means a percentage equal to the 
sum of the percentages of acceptance obtained from responses to 
distribution of the recommended standard in the producer segment, the 
distributor segment, and the user and consumer segment, divided by 
three. No consideration will be given to volume of production or volume 
of distribution in determining average industry acceptance.
    (5) ``Producer segment'' means those persons who manufacture or 
produce the product covered by the standard.
    (6) ``Distributor segment'' means those persons who distribute at 
wholesale or retail the product covered by the standard.
    (7) ``User and consumer segment'' means those persons who use or 
consume the product covered by the standard.
    (8) ``Acceptance by volume of production'' means the weighted 
percentage of acceptance of those responding to the distribution in the 
producer segment. The weighting of each response will be made in 
accordance with the volume of production represented by each respondent.
    (9) ``Acceptance by volume of distribution'' means the weighted 
percentage of acceptance of those responding to the distribution in the 
distributor segment. The weighting of each response will be made in 
accordance with the volume of distribution represented by each 
respondent.
    (f) A recommended standard shall be deemed to be supported by 
general concurrence whenever:
    (1) An analysis of the responses to the distribution under paragraph 
(b) of this section indicates:
    (i) An average industry acceptance of not less than 75 percent;
    (ii) Acceptance of not less than 70 percent by the producer segment, 
the distributor segment, and the user and consumer segment, each segment 
being considered separately; and
    (iii) Acceptance by volume of production and acceptance by volume of 
distribution of not less than 70 percent in each case: Provided, That 
the Department shall disregard acceptance by volume of production or 
acceptance by volume of distribution or both unless, in the judgment of 
the Department, accurate figures for the volume of production or 
distribution are reasonably available and an evaluation of either or 
both of such acceptances is deemed necessary by the Department; or
    (2) The Department determines that publication of the standard is 
appropriate under the procedures set forth in paragraph (g) of this 
section and, in addition, an analysis of the responses to the 
distribution under paragraph (b) of this section indicates:
    (i) An average industry acceptance of not less than 66\2/3\ percent;
    (ii) Acceptance of not less than 60 percent by the producer segment, 
the distributor segment, and the user and consumer segment, each segment 
being considered separately; and
    (iii) Acceptance by volume of production and acceptance by volume of 
distribution of not less than 60 percent in each case: Provided, That 
the Department shall disregard acceptance by volume of production or 
acceptance by volume of distribution or both unless, in the judgment of 
the Department, accurate figures for the volume of production or 
distribution are reasonably available and an evaluation of either or 
both of such acceptances is deemed necessary by the Department.
    (g) A recommended standard which fails to achieve the acceptance 
requirements of paragraph (f)(1) of this section, but which satisfies 
the acceptance criteria of paragraph (f)(2) of this section, shall be 
returned to the Standard Review Committee for reconsideration. The 
committee, by the affirmative vote of not less than three-quarters of 
all members eligible to vote, may resubmit the recommended standard 
without change to the Department with a recommendation that the standard 
be published as a Voluntary Product Standard. The Department shall then 
conduct a public rulemaking hearing in accordance with the requirements 
of law as set forth in section 553 of Title 5, United States Code, to 
assist it in determining whether publication of the standard is in the 
public interest. If the Department determines that

[[Page 137]]

publication of the standard is in the public interest, the standard 
shall be published as a Voluntary Product Standard.



Sec.  10.7  Procedure when a recommended standard is not supported by 
a consensus.

    If the Department determines that a recommended standard is not 
supported by a consensus, the Department may:
    (a) Return the recommended standard to the Standard Review Committee 
for further action, with or without suggestions;
    (b) Terminate the development of the recommended standard under 
these procedures; or
    (c) Take such other action as it may deem necessary or appropriate 
under the circumstances.



Sec.  10.8  Standing Committee.

    (a) The Department shall establish and appoint the members of a 
Standing Committee prior to the publication of a standard. The committee 
may include members from the Standard Review Committee, and shall 
consist of qualified representatives of producers, distributors, and 
users or consumers of the product covered by the standard, and 
representatives of appropriate general interest groups such as 
municipal, State, and Federal agencies. When requested by the Standing 
Committee, the Department shall appoint one voting member from among the 
representatives of the Federal agencies, other than the Department of 
Commerce. When requested by the Standing Committee for PS 20-70, 
``American Softwood Lumber Standard,'' the Department shall appoint two 
voting members from among the representatives of the Federal agencies, 
other than the Department of Commerce. All other representatives of 
Federal agencies shall be advisory nonvoting members of Standing 
Committees. (Alternates to committee members may be designated by the 
Department.) When deemed appropriate by the Department, project funds 
under Sec.  10.2, may be made available to assure participation by 
consumer interests on the committee at required meetings.
    (b) Appointments to a Standing Committee may not exceed a term of 5 
years. However, the committee may be reconstituted by the Department 
whenever appropriate, and members may be reappointed by the Department 
to succeeding terms. Appointments to the committee will be terminated 
upon the withdrawal of the standard.
    (c) The Department shall be responsible for the organization of the 
committee. Any formal operating procedures developed by the committee 
shall be subject to approval by the Department. The committee may 
conduct business either in a meeting or through correspondence, but only 
if a quorum participates. A quorum shall consist of two-thirds of all 
voting members of the committee. A majority of the voting members of the 
committee participating shall be required to approve any actions taken 
by the committee except for the approval of revisions of the standard 
which shall be governed by the provisions of Sec.  10.5 (b), (c), and 
(d),
    (d) The members of a Standing Committee should be knowledgeable 
about:
    (1) The product or products covered by the standard;
    (2) The standard itself; and
    (3) Industry and trade practices relating to the standard.
    (e) The committee shall:
    (1) Keep itself informed of any advancing technology that might 
affect the standard;
    (2) Provide the Department with interpretations of provisions of the 
standard upon request;
    (3) Make recommendations to the Department concerning the 
desirability or necessity of revising or amending the standard;
    (4) Receive and consider proposals to revise or amend the standard; 
and
    (5) Recommend to the Department the revision or amendment of a 
standard.



Sec.  10.9  Publication of a standard.

    A Voluntary Product Standard published by the department under these 
procedures shall be assigned an appropriate number for purposes of 
identification and reference. Public notice shall be given regarding the 
publication and identification of the standard. A voluntary standard by 
itself has no

[[Page 138]]

mandatory or legally binding effect. Any person may choose to use or not 
to use such a standard. Appropriate reference in contracts, codes, 
advertising, invoices, announcements, product labels, and the like may 
be made to a Voluntary Product Standard published under these 
procedures. Such reference shall be in accordance with such policies as 
the Department may establish, but no product may be advertised or 
represented in any manner which would imply or tend to imply approval or 
endorsement of that product by the Department or by the Federal 
Government.



Sec.  10.10  Review of published standards.

    (a) Each standard published under these or previous procedures shall 
be reviewed regularly to determine the feasibility of transferring 
sponsorship to a private standards-writing organization. While the 
Department encourages the development of standards to replace Voluntary 
Product Standards by private standards-writing organizations, withdrawal 
of a Voluntary Product Standard, which meets the requirements of Sec.  
10.0(b), shall not be considered until a replacement standard is 
published.
    (b) Each standard published under these or previous procedures shall 
be reviewed by the Department, with such assistance of the Standing 
Committee or others as may be deemed appropriate by the Department, 
within 5 years after initial issuance or last revision and at least 
every 5 years thereafter. The purpose of this review shall be to 
determine whether the standard has become obsolete, technically 
inadequate, no longer acceptable to or used by the industry, or 
inconsistent with law or established public policy.
    (c) If any of the above conditions is found to exist, the Department 
shall initiate action to amend, revise, or withdraw the standard in 
accordance with Sec.  10.11 or Sec.  10.13. If none is found to exist, 
the standard shall be kept in effect provided adequate funding is 
maintained.



Sec.  10.11  Revision or amendment of a standard.

    (a) A published standard shall be subject to revision or amendment 
when it is determined to be inadequate by its Standing Committee or by 
the Department of one or more of the following reasons or for any other 
appropriate reasons:
    (1) Any portion of the standard is obsolete, technically inadequate, 
or no longer generally acceptable to or used by the industry;
    (2) The standard or any part of it is inconsistent with law or 
established public policy; or
    (3) The standard or any part of it is being used to mislead users or 
consumers or is determined to be against the interest of users, 
consumers, or the public in general.
    (b) A revision of a standard shall be considered by the Department 
to include changes which are comprehensive in nature, which have a 
substantive effect on the standards, which change the level of 
performance or safety or the design characteristics of the product being 
standardized, or which cannot reasonably be injected into a standard 
without disturbing the general applicability of the standard. Each 
suggestion for revision shall be submitted by the Department to the 
Standing Committee for appropriate consideration. The Standing Committee 
shall serve the same functions in the revision of a standard as the 
Standard Review Committee serves in the development of a new standard. 
The processing of a revision of a standard shall be dependent upon the 
age of the standard as computed from its effective date and shall be 
accomplished as follows:
    (1) A proposed revision of a standard older than 5 years at the time 
such proposed revision is submitted to the Standing Committee by the 
Department shall be processed as a new standard under these procedures 
and, when approved for publication, the standard shall be republished 
and reidentified to indicate the year in which the revision became 
effective. The revised standard shall supersede the previously published 
standard.
    (2) A proposed revision of a standard less than 5 years at the time 
such proposed revision is submitted to the Standing Committee by the 
Department shall be processed as a new standard except that:

[[Page 139]]

    (i) Distribution for acceptance or rejection shall be made to an 
appropriate list of producers, distributors, and users and consumers 
compiled by the Department;
    (ii) If the revision affects only one subsection of the requirement 
section and/or only one subsection of the test methods section, it may 
be circulated separately for determining consensus and subsequently 
published as an addendum to the standard with appropriate dissemination 
and public notice of the addendum; and
    (iii) If the revision does not change the level of performance or 
safety or the design characteristics of the product being standardized, 
the standard need not be reidentified.
    (c) An amendment to a standard shall be considered by the Department 
to be any non-editorial change which is not comprehensive in nature, 
which has no substantive effect on the standard, which does not change 
the level of performance or safety or the design characteristics of the 
product being standardized, and which reasonably can be injected into a 
standard without disturbing the general applicability of the standard. 
Each suggestion for amendment shall be submitted by the Department to 
the Standing Committee for appropriate consideration. An amendment to a 
standard recommended by not less than 90 percent of the members of the 
committee eligible to vote and found acceptable by the Department, shall 
be published as an addendum (until the standard is republished) and 
distributed to acceptors of record. Public notice of the amendment shall 
be given and copies of the amendment shall be distributed to those 
filing written requests.



Sec.  10.12  Editorial changes.

    The Department may, without prior notice, make such editorial or 
other minor changes as it deems necessary to reduce ambiguity or to 
improve clarity in any proposed, recommended, or published standard, or 
revision or amendment thereof.



Sec.  10.13  Withdrawal of a published standard.

    (a) Standards published under these and previous procedures may be 
withdrawn by the Director of the National Institute of Standards & 
Technology at any time. Such action will be taken if, after consultation 
with the Standing Committee as provided in paragraph (a)(1) of this 
section and after public notice, the Director determines that the 
standard is: Obsolete; technically inadequate; no longer generally 
acceptable to and used by the industry; inconsistent with law or 
established public policy; not in the public interest; or otherwise 
inappropriate; and revision or amendment is not feasible or would serve 
no useful purpose. Additionally, a standard may be withdrawn if it 
cannot be demonstrated that a particular standard has substantial public 
impact, that it does not duplicate a standard published by a private 
standards-writing organization, or that lack of government sponsorship 
would result in significant public disadvantage for legal reasons or for 
reasons of domestic and international trade. The Director may withdraw a 
standard if costs to maintain such a standard are not reimbursed by the 
proponent or other government agencies.
    (1) Before withdrawing a standard published under these procedures, 
the Director will review the relative advantages and disadvantages of 
amendment, revision, development of a new standard, or withdrawal with 
the members of the Standing Committee, if such committee was appointed 
or reappointed within the previous five years.
    (2) Public notice of intent to withdraw an existing standard 
published under these procedures shall be given and a 30-day period will 
be provided for the filing with the Director or written objections to 
the withdrawal. Such objections will be considered and analyzed by the 
Director before a determination is made to withdraw the standard. If the 
Director determines that a particular standard does not meet the 
criteria set out in Sec.  10.0(b), the standard will be withdrawn.
    (b) The filing under paragraph (a) of this section of a request to 
retain a standard or standards shall operate to stay the withdrawal of 
such standard or standards until the Director's determination has been 
made. If the Director determines that the requested

[[Page 140]]

standard or standards shall be withdrawn, the stay will remain in 
effect, if an appeal is filed in accordance with the requirements of 
Sec.  10.14, until the decision of the Director is announced in the 
Federal Register. If, however, no appeal is received, the Director shall 
announce withdrawal of the particular standard or standards.
    (c) Notice of the withdrawal action will be published in the Federal 
Register and such withdrawal will take effect 60 days from the date the 
withdrawal notice is published.

[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  10.14  Appeals.

    (a) Any person directly affected by a procedural action taken by 
NIST or the Standard Review Committee under Sec. Sec.  10.5, 10.6 or 
10.7 regarding the development of a standard, by NIST or the Standing 
Committee under Sec.  10.10 regarding the review of a published 
standard, or under Sec.  10.11 regarding the revision of a standard, or 
under Sec.  10.13 regarding the withdrawal of a standard, may appeal 
such action.
    (b) Such appeal shall be filed in written form with the body taking 
the action complained of (NIST, the Standard Review Committee, or the 
Standing Committee) within 30 days after the date of announcement of the 
action.
    (c) If appeal is filed with the Standard Review Committee or the 
Standing Committee, the Committee shall attempt to resolve the appeal 
informally. If the appeal is filed with NIST, NIST with the consultation 
and advice of the Standard Review Committee or the Standing Committee, 
whichever is appropriate, shall attempt to resolve the appeal 
informally.
    (d) If the appeal is to the Standard Review Committee or the 
Standing Committee and the Committee is unable to resolve such an appeal 
informally, the Committee shall hold a hearing regarding the appeal. 
Announcement of the hearing shall be made to members of the Standard 
Review Committee or the Standing Committee and all the acceptors of 
record, when appropriate, as well as other known interests. Notice of 
the hearing shall be published in the Federal Register. The hearing will 
be an informal, nonadversary proceeding at which there will be no formal 
pleadings or adverse parties. Written statements will be furnished by 
witnesses prior to the hearing. A record of the hearing will be made. 
Copies of the written statements and the record of the hearing will be 
available at cost.
    (e) Those members of the Committee hearing the appeal will develop a 
recommendation to the Committee concerning the resolution of the appeal. 
NIST will review the recommendation and if found acceptable will subject 
it to a letter ballot of the Committee. Approval by three-fourths of the 
members of the Committee eligible to vote will constitute acceptance by 
the Committee and by NIST. Notice of the Committee decision will be 
published in the Federal Register.
    (f) If the appeal is to NIST and the attempt to resolve the appeal 
informally under paragraph (c) of this section is not successful, the 
Deputy Director of NIST will schedule a hearing with an appeals panel at 
an appropriate location. Announcement of the hearing shall be made to 
members of the Standard Review Committee or Standing Committee and all 
acceptors of record, when appropriate, as well as to other known 
interests. Notice of the hearing shall be published in the Federal 
Register.
    (g) The Deputy Director of NIST will name two other persons, who 
have not been directly involved in the matter in dispute and who will 
not be directly or materially affected by any decision made or to be 
made in the dispute, to sit on the panel with the Deputy Director, who 
will act as presiding officer. The presiding officer will have the right 
to exercise such authority as necessary to ensure the equitable and 
efficient conduct of the hearing and to maintain an orderly proceeding.
    (h) The hearing will be an informal, nonadversary proceeding at 
which there will be no formal pleadings or adverse parties. The hearing 
will be open to the public. Witnesses shall submit a written 
presentation for the record seven days prior to the hearing. A record 
will be made of the hearing. Copies of the written statements and the 
record of the hearing will be available at cost.

[[Page 141]]

    (i) The appeals panel will make a recommendation to the Director of 
NIST. The Director's decision on the appeal will be announced within 60 
days following the hearing and will be communicated to the complainant 
and other interested parties by letter. Notice of the Director's 
decision shall be published in the Federal Register.

[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  10.15  Interpretations.

    (a) An interpretation of a Voluntary Product Standard may be 
obtained through the submission of a written request. The request shall 
identify the specific section of the standard involved.
    (b) In the case of PS 20-70, the ``American Softwood Lumber 
Standard,'' interpretations shall be made by the American Lumber 
Standards Committee (ALSC) under the procedures developed by the ALSC 
and found acceptable to NIST.
    (c) In the case of the other Voluntary Product Standards, 
interpretations shall be made by the appropriate Standing Committees 
under procedures developed by those committees and found acceptable to 
NIST.

[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  10.16  Effect of procedures.

    Nothing contained in these procedures shall be deemed to apply to 
the development, publication, revision, amendment, or withdrawal of any 
standard which is not identified as a ``Voluntary Product Standard'' by 
the Department. The authority of the Department with respect to 
engineering standards activities generally, including the authority to 
publish appropriate recommendations not identified as ``Voluntary 
Product Standards,'' is not limited in any way by these procedures.



PART 11_UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR
FEDERAL AND FEDERALLY ASSISTED PROGRAMS--Table of Contents



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



Sec.  11.1  Uniform relocation and real property acquisition.

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

[52 FR 48018, Dec. 17, 1987 and 54 FR 8912, 8913, Mar. 2, 1989]



PART 12_FAIR PACKAGING AND LABELING--Table of Contents



Sec.
12.1 Introduction.
12.2 Undue proliferation.
12.3 Development of voluntary product standards.
12.4 Report to the Congress.

    Authority: Secs. 5(d), 5(e), 80 Stat. 1298, 15 U.S.C. 1454; sec. 3, 
Dept. Order 177 (31 FR 6746), as amended (32 FR 3110).

    Source: 32 FR 11074, July 29, 1967, unless otherwise noted.



Sec.  12.1  Introduction.

    (a) These procedures apply to the discharge of the responsibility 
given to the Secretary of Commerce by sections 5(d) and 5(e) of the Fair 
Packaging and Labeling Act (Pub. L. 89-755, 80 Stat. 1299), hereinafter 
called the ``Act''. The word ``Secretary'', as used hereinafter, shall 
refer to the Secretary of Commerce or his authorized delegate.
    (b) The Secretary does not have the responsibility or the authority 
under

[[Page 142]]

the Act to issue any regulations governing the packaging or labeling 
practices of private industry.
    (c) The Secretary does have the responsibility and authority to:
    (1) Determine whether the reasonable ability of consumers to make 
value comparisions with respect to any consumer commodity or reasonably 
comparable consumer commodities is impaired by undue proliferation of 
the weights, measures, or quantities in which such commodity or 
commodities are being distributed in packages for sale at retail.
    (2) Request manufacturers, packers, and distributors, where a 
determination of undue proliferation has been made, to participate in 
the development of a voluntary product standard under the procedures 
governing the Department's voluntary standards program.
    (3) Report to Congress with a recommendation as to whether 
legislation providing regulatory authority should be enacted, when after 
1 year following the date private industry has been requested to 
participate in the development of a voluntary product standard it is 
determined that such a standard will not be published, or when following 
the publication of such a standard it is determined that the standard 
has not been observed.
    (d) The Act does not furnish a detailed, definitive explanation of 
``undue proliferation''. It does, however, point out that the condition 
of ``undue proliferation'' must be one which ``impairs the reasonable 
ability of consumers to make value comparisons'' with respect to 
consumer commodities. Generally, therefore, the Department will 
determine ``undue proliferation'' on a case-by-case basis, and, 
accordingly, is establishing by these procedures an orderly process for 
such determinations.
    (e) As used hereinafter the term ``undue proliferation'' shall refer 
to such undue proliferation--of the weights, measures or quantities in 
which any consumer commodity or reasonably comparable consumer 
commodities are being distributed for sale at retail--as impairs the 
reasonable ability of consumers to make value comparisons with respect 
to such consumer commodity or commodities, as set out in section 5(d) of 
the Act.



Sec.  12.2  Undue proliferation.

    (a) Information as to possible undue proliferation. Any person or 
group, including a State or local governmental entity, is invited to 
communicate information to the Secretary concerning the possible 
existence of undue proliferation. Such communications should be in 
writing and include supporting information and explanations.
    (b) Initiation of inquiry as to undue proliferation. Upon receipt of 
information regarding the possible existence of undue proliferation, the 
Secretary will determine whether there has been a showing of good cause 
warranting an inquiry. If the Secretary determines that good cause 
exists, he shall initiate an inquiry for the purpose of finding facts 
concerning the existence of undue proliferation.
    (c) Procedures for inquiry--(1) Cooperation with State and local 
officials. Any inquiry initiated under paragraph (b) of this section may 
be conducted in cooperation with State and local weights and measures 
officials.
    (2) Participation by interested persons. The Secretary may, during 
the course of the inquiry, afford interested persons or groups an 
opportunity to submit in writing comments, data, arguments, views, or 
other information relevant to the inquiry.
    (d) Proposed determination as to existence of undue proliferation. 
(1) If, after consideration of all relevant information, the Secretary 
concludes that undue proliferation appears to exist, he shall publish a 
proposed determination to this effect. The proposed determination shall 
identify the particular consumer commodity or commodities involved and 
shall be accompanied by a concise statement of the facts upon which it 
is based.
    (2) Within 60 days after publication of the proposed determination, 
any interested party may submit in writing comments, data, arguments, 
views, or other information relevant to the proposed determination. All 
written submissions shall be made a part of the public record.
    (3) Within 30 days after the proposed determination has been 
published, any

[[Page 143]]

interested party may request in writing an oral hearing to present his 
views. The granting of such a hearing shall be at the discretion of the 
Secretary. Any such hearing shall be public and notice thereof shall be 
published at least 15 days in advance. A transcript of the hearing shall 
be made part of the public record.
    (e) Final determination as to undue proliferation. As soon as 
practicable following the conclusion of the proceedings described in 
paragraph (d) of this section, the Secretary shall either publish a 
final determination of undue proliferation, or he shall publish a notice 
withdrawing his proposed determination of undue proliferation. In no 
event shall the withdrawal of a proposed determination operate to 
preclude the initiation of another inquiry regarding the same or similar 
subject matter under paragraph (b) of this section.



Sec.  12.3  Development of voluntary product standards.

    (a) Invitation to participate in the development of a voluntary 
product standard. Whenever the Secretary publishes a final determination 
of undue proliferation under Sec.  12.2(e), he shall invite 
manufacturers, packers, and distributors of the commodity or commodities 
involved to participate in the development of a voluntary product 
standard in accordance with the terms of the Act and the Department's 
published procedures for voluntary product standards. The term 
``Voluntary Product Standard'' as used in this section means a standard 
for weights, measures or quantities in which the commodity or 
commodities are being distributed in packages for sale at retail.
    (b) Determination that voluntary product standard will not be 
published. (1) If a voluntary product standard has not been developed 
within one year from the date on which participation was invited, the 
Secretary may conclude that a voluntary product standard will not likely 
be published. Upon reaching such a conclusion, the Secretary will 
publish a proposed determination that a voluntary product standard will 
not be published.
    (2) Within 60 days after publication of the proposed determination, 
any interested party may submit in writing comments, data, arguments, 
views, or other information relevant to the proposed determination. All 
written submissions shall be made a part of the public record.
    (3) Within 30 days after the proposed determination has been 
published, any interested party may request in writing an oral hearing 
to present his views. The granting of such a hearing shall be at the 
discretion of the Secretary. Any such hearing shall be public and notice 
thereof shall be published at least 15 days in advance. A transcript of 
the hearing shall be made part of the public record.
    (4) As soon as practicable following the conclusion of the 
proceedings described in paragraphs (b)(2) and (3) of this section, the 
Secretary shall either publish a final determination that a voluntary 
product standard will not be published, or he shall publish a notice 
withdrawing his proposed determination under paragraph (b)(1) of this 
section. In no event shall the withdrawal of a proposed determination 
operate to preclude the publication of another proposed determination 
under paragraph (b)(1) of this section with respect to the same or 
similar subject matter.
    (c) Determination that a published voluntary product standard has 
not been observed. (1) Whenever the Secretary has reason to believe that 
a voluntary product standard published under these procedures is not 
being observed he shall initiate an inquiry to determine such fact.
    (2) If, on the basis of the information developed during the 
inquiry, the Secretary concludes that the voluntary product standard is 
not being observed, he shall publish a proposed determination to this 
effect. The proposed determination shall identify the particular 
standard involved and shall be accompanied by a concise statement of the 
facts upon which it is based.
    (3) Within 60 days after publication of the proposed determination, 
any interested party may submit in writing comments, data, arguments, 
views, or other information relevant to the proposed determination. All 
written submissions shall be made a part of the public record.

[[Page 144]]

    (4) Within 30 days after the proposed determination has been 
published, any interested party may request in writing an oral hearing 
to present his views. The granting of such a hearing shall be at the 
discretion of the Secretary. Any such hearing shall be public and notice 
thereof shall be published at least 15 days in advance. A transcript of 
the hearing shall be made part of the public record.
    (5) As soon as practicable following the conclusion of the 
proceedings described in paragraphs (c)(3) and (4) of this section, and 
upon consideration of all relevant information, the Secretary shall 
either publish a final determination that the voluntary product standard 
is not being observed, or he shall publish a notice withdrawing his 
proposed determination under paragraph (c)(2) of this section. In no 
event shall the withdrawal of a proposed determination operate to 
preclude the initiation of another inquiry regarding the same standard 
under paragraph (c)(1) of this section.



Sec.  12.4  Report to the Congress.

    Whenever the Secretary publishes a final determination under Sec.  
12.3(b)(4) or Sec.  12.3(c)(5), he shall promptly report such 
determination to the Congress with a statement of the efforts that have 
been made under the voluntary standards program and his recommendation 
as to whether Congress should enact legislation providing regulatory 
authority to deal with the situation in question.



PART 13_INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF COMMERCE PROGRAMS AND
ACTIVITIES--Table of Contents



Sec.
13.1 Purpose.
13.2 Definitions.
13.3 Programs and activities of the Department subject to the 
          regulations.
13.4 General responsibilities under the Order.
13.5 Obligations with respect to Federal interagency coordination.
13.6 State selection of programs and activities.
13.7 Communication with state and local officials concerning the 
          Department's programs and activities.
13.8 Opportunity to comment on proposed Federal financial assistance and 
          direct Federal development.
13.9 Receipt of and response to comments.
13.10 Accommodation of intergovernmental concerns.
13.11 Obligations in interstate situations.

    Authority: Executive Order 12372, July 14, 1982, 47 FR 30959, as 
amended April 8, 1983, 48 FR 15587, sec. 401, Intergovernmental 
Cooperation Act of 1968, as amended (31 U.S.C. 6506); sec. 204, 
Demonstration Cities and Metropolitan Development Act of 1966 as amended 
(42 U.S.C. 3334).

    Source: 48 FR 29134, June 24, 1983, unless otherwise noted.



Sec.  13.1  Purpose.

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968 and section 204 of the Demonstration Cities and 
Metropolitan Development Act of 1966.
    (b) These regulations are intended to foster an intergovernmental 
partnership and a strengthened Federalism by relying on state processes 
and on state, areawide, regional and local coordination for review of 
proposed Federal financial assistance and direct Federal development.
    (c) These regulations are intended to aid the internal management of 
the Department, and are not intended to create any right or benefit 
enforceable at law by a party against the Department or its officers.



Sec.  13.2  Definitions.

    Department means the U.S. Department of Commerce.
    Order means Executive Order 12372, issued July 14, 1982, and amended 
April 8, 1983 and titled ``Intergovernmental Review of Federal 
Programs.''
    Secretary means the Secretary of the U.S. Department of Commerce or 
an official or employee of the Department acting for the Secretary under 
a delegation of authority.
    State means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the

[[Page 145]]

U.S. Virgin Islands, or the Trust Territory of the Pacific Islands.



Sec.  13.3  Programs and activities of the Department subject to the
regulations.

    The Secretary publishes in the Federal Register a list of the 
Department's programs and activities that are subject to these 
regulations and identifies which of these are subject to the 
requirements of section 204 of the Demonstration Cities and Metropolitan 
Development Act.



Sec.  13.4  General responsibilities under the Order.

    (a) The Secretary provides opportunities for consultation by elected 
officials of those state and local governments that would provide the 
non-Federal funds for, or that would be directly affected by, proposed 
Federal financial assistance from, or direct Federal development by, the 
Department.
    (b) If a state adopts a process under the Order to review and 
coordinate proposed Federal financial assistance and direct Federal 
development, the Secretary, to the extent permitted by law:
    (1) Uses the state process to determine official views of state and 
local elected officials;
    (2) Communicates with state and local elected officials as early in 
a program planning cycle as is reasonably feasible to explain specific 
plans and actions;
    (3) Makes efforts to accommodate state and local elected officials' 
concerns with proposed Federal financial assistance and direct Federal 
development that are communicated through the state process;
    (4) Allows the states to simplify and consolidate existing federally 
required state plan submissions;
    (5) Where state planning and budgeting systems are sufficient and 
where permitted by law, encourages the substitution of state plans for 
federally required state plans;
    (6) Seeks the coordination of views of affected state and local 
elected officials in one state with those of another state when proposed 
Federal financial assistance or direct Federal development has an impact 
on interstate metropolitan urban centers or other interstate areas; and
    (7) Supports state and local governments by discouraging the 
reauthorization or creation of any planning organization which is 
federally-funded, which has a limited purpose, and which is not 
adequately representative of, or accountable to, state or local elected 
officials.



Sec.  13.5  Obligations with respect to Federal interagency coordination.

    The Secretary, to the extent practicable, consults with and seeks 
advice from all other substantially affected Federal departments and 
agencies in an effort to assure full coordination between such agencies 
and the Department regarding programs and activities covered under these 
regulations.



Sec.  13.6  State selection of programs and activities.

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec.  13.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities, shall consult with local elected 
officials.
    (b) Each state that adopts a process shall notify the Secretary of 
the Department's programs and activities selected for that process.
    (c) A state may notify the Secretary of changes in its selections at 
any time. For each change, the state shall submit to the Secretary an 
assurance that the state has consulted with elected local elected 
officials regarding the change. The Department may establish deadlines 
by which states are required to inform the Secretary of changes in their 
program selections.
    (d) The Secretary uses a state's process as soon as feasible, 
depending on individual programs and activities, after the Secretary is 
notified of its selections.



Sec.  13.7  Communication with state and local officials concerning the 
Department's programs and activities.

    (a) For those programs and activities covered by a state process 
under Sec.  13.6, the Secretary, to the extent permitted by law:

[[Page 146]]

    (1) Uses the state process to determine views of state and local 
elected officials; and,
    (2) Communicates with state and local elected officials, through the 
state process, as early in a program planning cycle as is reasonably 
feasible to explain specific plans and actions.
    (b) The Secretary provides notice to directly affected state, 
areawide, regional, and local entities in a state of proposed Federal 
financial assistance or direct Federal development if:
    (1) The state has not adopted a process under the Order; or
    (2) The assistance or development involves a program or activity not 
selected for the state process. This notice may be made by publication 
in the Federal Register or other appropriate means, which the Department 
in its discretion deems appropriate.



Sec.  13.8  Opportunity to comment on proposed Federal financial assistance
and direct Federal development.

    (a) Except in unusual circumstances, the Secretary gives state 
processes or directly affected state, areawide, regional and local 
officials and entities at least:
    (1) 30 days from the date established by the Secretary to comment on 
proposed Federal financial assistance in the form of noncompeting 
continuation awards; and
    (2) 60 days from the date established by the Secretary to comment on 
proposed direct Federal development or Federal financial assistance 
other than noncompeting continuation awards.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with the Department have been 
delegated.
    (c) Applicants for programs and activities subject to section 204 of 
the Demonstration Cities and Metropolitan Act shall allow areawide 
agencies a 60-day opportunity for review and comment.



Sec.  13.9  Receipt of and response to comments.

    (a) The Secretary follows the procedures in Sec.  13.10 if:
    (1) A state office or official is designated to act as a single 
point of contact between a state process and all Federal agencies; and
    (2) That office or official transmits a state process recommendation 
for a program selected under Sec.  13.6.
    (b)(1) The single point of contact is not obligated to transmit 
comments from state, areawide, regional or local officials and entities 
where there is no state process recommendation.
    (2) If a state process recommendation is transmitted by a single 
point of contact, all comments from state, areawide, regional, and local 
officials and entities that differ from it must also be transmitted.
    (c) If a state has not established a process, or is unable to submit 
a state process recommendation, state, areawide, regional and local 
officials and entities may submit comments either to the applicant or to 
the Department.
    (d) If a program or activity is not selected for a state process, 
state, areawide, regional and local officials and entities may submit 
comments either to the applicant or to the Department. In addition, if a 
state process recommendation for a nonselected program or activity is 
transmitted to the Department by the single point of contact, the 
Secretary follows the procedures of Sec.  13.10 of this part.
    (e) The Secretary considers comments which do not constitute a state 
process recommendation submitted under these regulations and for which 
the Secretary is not required to apply the procedures of Sec.  13.10 of 
this part, when such comments are provided by a single point of contact, 
by the applicant, or directly to the Department by a commenting party.



Sec.  13.10  Accommodation of intergovernmental concerns.

    (a) If a state process provides a state process recommendation to 
the Department through its single point of contact, the Secretary 
either:
    (1) Accepts the recommendation;
    (2) Reaches a mutually agreeable solution with the state process; or
    (3) Provides the single point of contact with a written explanation 
of the decision in such form as the Secretary

[[Page 147]]

in his or her discretion deems appropriate. The Secretary may also 
supplement the written explanation by providing the explanation to the 
single point of contact by telephone, other telecommunication, or other 
means.
    (b) In any explanation under paragraph (a)(3) of this section, the 
Secretary informs the single point of contact that:
    (1) The Department will not implement its decision for at least ten 
days after the single point of contact receives the explanation; or
    (2) The Secretary has reviewed the decision and determined that, 
because of unusual circumstances, the waiting period of at least ten 
days is not feasible.
    (c) For purposes of computing the waiting period under paragraph 
(b)(1) of this section, a single point of contact is presumed to have 
received written notification 5 days after the date of mailing of such 
notification.



Sec.  13.11  Obligations in interstate situations.

    (a) The Secretary is responsible for:
    (1) Identifying proposed Federal financial assistance and direct 
Federal development that have an impact on interstate areas;
    (2) Notifying appropriate officials and entities in states which 
have adopted a process and which select the Department's program or 
activity.
    (3) Making efforts to identify and notify the affected state, 
areawide, regional, and local officials and entities in those states 
that have not adopted a process under the Order or do not select the 
Department's program or activity;
    (4) Responding pursuant to Sec.  13.10 of this part if the Secretary 
receives a recommendation from a designated areawide agency transmitted 
by a single point of contact, in cases in which the review, 
coordination, and communication with the Department have been delegated.
    (b) The Secretary uses the procedures in Sec.  13.10 if a state 
process provides a state process recommendation to the Department 
through a single point of contact.

                           PART 14 [RESERVED]



PART 15_LEGAL PROCEEDINGS--Table of Contents



                      Subpart A_Service of Process

Sec.
15.1 Scope and purpose.
15.2 Definitions.
15.3 Acceptance of service of process.

  Subpart B_Testimony by Employees and the Production of Documents in 
                            Legal Proceedings

15.11 Scope.
15.12 Definitions.
15.13 Demand for testimony or production of documents: Department 
          procedures.
15.14 Demand for testimony or production of documents in matters in 
          which the United States is not a party.
15.15 Demand for testimony or production of documents in matters in 
          which the United States is a party.
15.16 Demand for testimony or production of documents: Department policy 
          and considerations.
15.17 Subpoenas and demands served upon employees or former employees of 
          the Office of the Inspector General.
15.18 Testimony of Department employees in proceedings involving the 
          United States.

Subpart C_Involuntary Child and Spousal Support Allotments of NOAA Corps 
                                Officers

15.21 Purpose.
15.22 Applicability and scope.
15.23 Definitions.
15.24 Policy.
15.25 Procedures.

 Subpart D_Statement of Policy and Procedures Regarding Indemnification 
                   of Department of Commerce Employees

15.31 Policy.
15.32 Procedures for the handling of lawsuits against Department 
          employees arising within the scope of their office or 
          employment.

    Authority: 5 U.S.C. 301; 15 U.S.C. 1501, 1512, 1513, 1515 and 1518; 
Reorganization Plan No. 5 of 1950; 3 CFR, 1949-1953 Comp., p. 1004; 44 
U.S.C. 3101; subpart C is issued under 37 U.S.C. 101, 706; 15 U.S.C. 
1673; 42 U.S.C. 665.

    Editorial Note: Nomenclature changes to part 15 appear at 62 FR 
19669, Apr. 23, 1997.



                      Subpart A_Service of Process

    Source: 53 FR 41318, Oct. 21, 1988, unless otherwise noted. 
Redesignated at 62 FR 19669, Apr. 23, 1997.

[[Page 148]]



Sec.  15.1  Scope and purpose.

    (a) This subpart sets forth the procedures to be followed when a 
summons or complaint is served on the Department, a component, or the 
Secretary or a Department employee in his or her official capacity.
    (b) This subpart is intended to ensure the orderly execution of the 
affairs of the Department and not to impede any legal proceeding.
    (c) This subpart does not apply to subpoenas. The procedures to be 
followed with respect to subpoenas are set out in subpart B.
    (d) This subpart does not apply to service of process made on a 
Department employee personally on matters not related to official 
business of the Department or to the official responsibilities of the 
Department employee.

[53 FR 41318, Oct. 21, 1988. Redesignated and amended at 62 FR 19669, 
19670, Apr. 23, 1997]



Sec.  15.2  Definitions.

    For the purpose of this subpart:
    (a) General Counsel means the General Counsel of the United States 
Department of Commerce or other Department employee to whom the General 
Counsel has delegated authority to act under this subpart, or the chief 
legal officer (or designee) of the Department of Commerce component 
concerned.
    (b) Component means Office of the Secretary or an operating unit of 
the Department as defined in Department Organization Order 1-1.
    (c) Department means the Department of Commerce.
    (d) Department employee means any officer or employee of the 
Department, including commissioned officers of the National Oceanic and 
Atmospheric Administration.
    (e) Legal proceeding means a proceeding before a tribunal 
constituted by law, including a court, an administrative body or 
commission, or an administrative law judge or hearing officer.
    (f) Official business means the authorized business of the 
Department.
    (g) Secretary means Secretary of Commerce.



Sec.  15.3  Acceptance of service of process.

    (a) Except as otherwise provided in this subpart, any summons or 
complaint to be served in person or by registered or certified mail or 
as otherwise authorized by law on the Department, a component or the 
Secretary or a Department employee in their official capacity, shall be 
served on the General Counsel of the United States Department of 
Commerce, Washington, DC 20230.
    (b) Any summons or complaint to be served in person or by registered 
or certified mail or as otherwise authorized by law on the Patent and 
Trademark Office or the Commissioner of Patents and Trademarks or an 
employee of the Patent and Trademark Office in his or her official 
capacity, shall be served on the Solicitor for the Patent and Trademark 
Office or a Department employee designated by the Solicitor.
    (c) Except as otherwise provided in this subpart, any component or 
Department employee served with a summons or complaint shall immediately 
notify and deliver the summons or complaint to the office of the General 
Counsel. Any employee of the Patent and Trademark Office served with a 
summons or complaint shall immediately notify and deliver the summons or 
complaint to the office of the Solicitor.
    (d) Any Department employee receiving a summons or complaint shall 
note on the summons or complaint the date, hour, and place of service 
and whether service was by personal delivery or by mail.
    (e) When a legal proceeding is brought to hold a Department employee 
personally liable in connection with an action taken in the conduct of 
official business, rather than liable in an official capacity, the 
Department employee by law is to be served personally with process. 
Service of process in this case is inadequate when made upon the General 
Counsel or the Solicitor or their designees. Except as otherwise 
provided in this subpart, a Department employee sued personally for an 
action taken in the conduct of official business shall immediately 
notify and deliver a copy of the summons or complaint to the office of 
the General Counsel. Any employee of the Patent

[[Page 149]]

and Trademark Office sued personally for an action taken in the conduct 
of official business shall immediately notify and deliver a copy of the 
summons or complaint to the Office of the Solicitor.
    (f) A Department employee sued personally in connection with 
official business may be represented by the Department of Justice at its 
discretion. See 28 CFR 50.15 and 50.16 (1987).
    (g) The General Counsel or Solicitor or Department employee 
designated by either, when accepting service of process for a Department 
employee in an official capacity, shall endorse on the Marshal's or 
server's return of service form or receipt for registered or certified 
mail the following statement: ``Service accepted in official capacity 
only.'' The statement may be placed on the form or receipt with a rubber 
stamp.
    (h) Upon acceptance of service or receiving notification of service, 
as provided in this section, the General Counsel and Solicitor shall 
take appropriate steps to protect the rights of the Department, 
component, the Secretary or Department employee involved.



  Subpart B_Testimony by Employees and the Production of Documents in 
                            Legal Proceedings

    Source: 60 FR 9291, Feb. 17, 1995, unless otherwise noted. 
Redesignated at 62 FR 19669, Apr. 23, 1997.



Sec.  15.11  Scope.

    (a) This subpart sets forth the policies and procedures to be 
followed with respect to the production or disclosure of the testimony 
of employees and former employees of the Department of Commerce as 
witnesses in legal proceedings and the production or disclosure of 
information contained in Department of Commerce documents, or any 
information acquired by any person while such person was an employee of 
the Department of Commerce, for use in legal proceedings pursuant to a 
request, order, or subpoena (collectively referred to in this subpart as 
a ``demand''). No Department employee or former employee shall comply 
with such a demand without the prior authorization of the General 
Counsel or appropriate agency counsel, in accordance with this subpart.
    (b) This subpart does not apply to any legal proceeding in which an 
employee is to testify while on leave status, regarding facts or events 
unrelated to the official business of the Department or the duties of 
the employee.
    (c) This subpart does not apply to any legal proceeding in which the 
Department is a party or to subpoenas for testimony or documents 
received from Congress, a Federal agency Inspector General, or a Special 
Prosecutor.
    (d) This subpart does not apply to any demand for testimony of 
employees and former employees of the United States Patent and Trademark 
Office (USPTO) or to demands for the production of USPTO documents. The 
process for any demand for testimony of an employee or for the 
production of documents of the USPTO can be found at 37 CFR 104.21 
through 104.24, and any such demands must be sent directly to the USPTO.
    (e) This subpart in no way affects the rights and procedures 
governing public access to records pursuant to the Freedom of 
Information Act, the Privacy Act, or the Trade Secrets Act or other 
Federal law restricting the disclosure of information. Moreover, 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, Census data 
under Title 13, U.S.C., or other confidentiality statutes, must satisfy 
the requirements for disclosure set forth in those statutes, if any, 
before the records may be provided or testimony given. The General 
Counsel or appropriate agency counsel should first determine if there is 
a legal basis to provide the testimony or records sought under 
applicable confidentiality statutes before applying the procedures 
established in this subpart.
    (f) This subpart is not intended to be relied upon to, and does not, 
create any right or benefit, substantive or procedural, enforceable at 
law by any party against the United States.

[87 FR 162, Jan. 4, 2022]

[[Page 150]]



Sec.  15.12  Definitions.

    For the purpose of this subpart:
    (a) Agency counsel means the Chief Counsel/s or General Counsel/s 
(or that official's designee) of a bureau or operating unit within the 
U.S. Department of Commerce who is the senior legal officer responsible 
for overseeing legal advice and guidance provided to a particular bureau 
or operating unit.
    (b) Component means Office of the Secretary or a bureau or operating 
unit of the Department as defined in Department Organization Order 1-1.
    (c) Counsel to the Inspector General means Counsel to the Inspector 
General of the U.S. Department of Commerce.
    (d) Demand means a request, order, or subpoena for testimony or 
documents for use in any legal proceeding, regardless of whether the 
United States is a party to the proceeding.
    (e) Department means the United States Department of Commerce and 
any of its components, bureaus, or operating units.
    (f) Document or information means any record, regardless of format, 
medium or physical characteristic, document, electronically stored 
information, paper and other property of the Department, including 
without limitation, official letters, telegrams, memoranda, reports, 
studies, writings, emails, calendar and diary entries, text or chat 
messages, maps, graphs, pamphlets, notes, charts, tabulations, analyses, 
statistical or informational accumulations, any kind of summaries of 
meetings and conversations, film impressions, magnetic tapes or sound or 
mechanical reproductions. Nothing in this paragraph (f) shall be 
interpreted as requiring the creation of a new document to respond to 
any demand.
    (g) Employee means any current or former employees or officers of 
the U.S. Department of Commerce, including any commissioned officer of 
the National Oceanic and Atmospheric Administration or any other 
individual who has been appointed by, or is subject to the supervision, 
jurisdiction, or control of the U.S. Department of Commerce, including 
contract employees. Contractors may be included.
    (h) General Counsel means the General Counsel of the U.S. Department 
of Commerce or other U.S. Department of Commerce employee to whom the 
General Counsel has delegated authority to act under this subpart.
    (i) Inspector General means the Inspector General of the U.S. 
Department of Commerce.
    (j) Legal proceeding means all pretrial, trial, and post-trial 
stages of any existing or reasonably anticipated judicial or 
administrative actions, hearings, investigations, or similar proceedings 
before administrative, civil, or criminal courts, commissions, boards, 
or other tribunals, domestic--including local, tribal, state, and 
Federal--foreign, or international. ``Legal proceedings'' includes all 
phases of discovery as well as responses to any formal or informal 
requests by attorneys, investigators, or other persons not employed by 
the Department, regarding, testimony, documents, information, or 
consultation, solicited for use in any legal proceedings.
    (k) Official business means the authorized business of the U.S. 
Department of Commerce.
    (l) Secretary means the Secretary of the U.S. Department of 
Commerce.
    (m) Testimony means a statement in any form, including personal 
appearances before a judge, magistrate, administrative law judge, 
administrative judge, hearing officer, special master, special counsel, 
investigating officer or board, or any other court or legal tribunal; 
declarations made pursuant to 28 U.S.C. 1746; 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.
    (n) United States means the Federal Government, its departments and 
agencies, and individuals acting on behalf of the Federal Government.

[87 FR 162, Jan. 4, 2022]



Sec.  15.13  Demand for testimony or production of documents: Department
procedures.

    (a) General. No employee, in response to a demand, shall produce any 
documents or information of the Department, or provide testimony 
regarding any information relating to, or based

[[Page 151]]

upon Department documents, or disclose any information or produce 
documents acquired or generated as part of the performance of that 
employee's official duties or because of that employee's official status 
without the prior authorization of the General Counsel or appropriate 
agency counsel.
    (b) Notifications. (1) A demand for the testimony of an employee or 
for the production of documents of the Department shall be made in 
writing and addressed to the Assistant General Counsel for Employment, 
Litigation, and Information, U.S. Department of Commerce, 1401 
Constitution Avenue NW, Room 5896, Washington, DC 20230; or by email to: 
[email protected]; or to appropriate agency counsel.
    (2) The process for any demand for testimony of an employee or for 
the production of documents of the USPTO can be found at 37 CFR 104.21 
through 104.24, and any such demands should be sent directly to the 
USPTO, in accordance with Sec.  15.11(d).
    (c) Employee procedure. Whenever a Department employee receives an 
inquiry or demand for testimony or production of documents, that 
employee shall not respond, and shall immediately notify the Office of 
the Assistant General Counsel for Employment, Litigation, and 
Information as provided in paragraph (b)(1) of this section, or 
appropriate agency counsel, and provide a copy of the demand. An 
employee may not answer inquiries from a person not employed by the 
Department regarding testimony or documents subject to a demand or a 
potential demand under the provisions of this subpart without the 
approval of the General Counsel or appropriate agency counsel.
    (d) Subpoenas. A subpoena for testimony or production of documents 
by a Department employee must be served in person, at the office or 
home, or by mail in accordance with the Federal Rules of Civil or 
Criminal Procedure or applicable state procedure. Service solely by 
electronic means is not authorized. If service is made upon anyone other 
than the General Counsel or appropriate agency counsel, then a copy of 
the subpoena shall also be contemporaneously sent to the General Counsel 
at the appropriate addresses in paragraph (b) of this section, or 
appropriate agency counsel.
    (1) An employee who receives such a subpoena shall not respond and 
shall immediately forward the subpoena to the Office of the Assistant 
General Counsel for Employment, Litigation, and Information or the 
appropriate agency counsel. The General Counsel or appropriate agency 
counsel will determine the extent to which a Department employee will 
comply with the subpoena.
    (2) If the General Counsel or appropriate agency counsel determines 
that an employee should not comply with a properly-served subpoena, the 
General Counsel or agency counsel will attempt to have the subpoena 
withdrawn or modified. If this cannot be done with regard to a subpoena 
for documents, the Department will provide the tribunal with an 
objections letter or other notification that the documents will not be 
produced. If this cannot be done with regard to a subpoena for 
testimony, the General Counsel or appropriate agency counsel will 
attempt to obtain U.S. Department of Justice representation for the 
employee and move to have the subpoena modified or quashed. If, because 
of time constraints, this is not possible prior to the compliance date 
specified in the subpoena, 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 the 
Department's regulations in this subpart and inform the legal tribunal 
that the employee has been advised by counsel not to provide the 
requested testimony and/or produce documents. If the legal tribunal 
rules that the demand in the subpoena must be complied with, the 
employee shall respectfully decline to comply with the demand. United 
States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

[87 FR 162, Jan. 4, 2022]



Sec.  15.14  Demand for testimony or production of documents in matters
in which the United States is not a party.

    (a) General. Every demand for testimony or documents in a legal 
matter in which the United States is not a

[[Page 152]]

named party shall be made in writing, delivered in accordance with Sec.  
15.13(b) no later than 30 days before the document or testimony is 
required, and shall be accompanied by an affidavit or written 
declaration under 28 U.S.C. 1746, or, if an affidavit or declaration is 
not feasible, a written statement setting forth:
    (1) The title of the legal proceeding,
    (2) The forum;
    (3) The requesting party's interest in the legal proceeding;
    (4) The reason for the demand and the relevance of the request to 
the legal proceeding;
    (5) A showing that the desired testimony or document is not 
reasonably available from any other source; and
    (6) If testimony is requested, the intended use of the testimony; a 
general summary of the desired testimony; the time that will be required 
to prepare for, travel to, and present testimony; and a showing that no 
document could be provided and used in lieu of testimony, including from 
opposing parties via discovery proceedings.
    (b) Purpose. The purpose of the requirement in this section is to 
assist the General Counsel or appropriate agency counsel in making an 
informed decision regarding whether testimony or the production of a 
document(s) should be authorized, in accordance with Sec.  15.16. Any 
authorization for testimony by an employee of the Department shall be 
limited to the scope of the demand as summarized in the statement or as 
negotiated in paragraph (e) of this section.
    (c) Prior authorization. A certified copy of a document that has 
been authorized pursuant to Sec.  15.16(a) for use in a legal proceeding 
may be provided upon written request and payment of applicable fees. 
Written requests for certification must be addressed to the agency 
counsel for the component having possession, custody, or control of the 
document. The requestor must provide the agency with information 
regarding the prior authorization for release of the requested document 
pursuant to Sec.  15.16(a), including date of release and parties to 
whom the document was released.
    (d) Secretary's authority. The Secretary retains the authority to 
authorize and direct testimony in those cases where a statute or 
Presidential order mandates a personal decision by the Secretary.
    (e) Consultation. The General Counsel or appropriate agency counsel 
may consult or negotiate with an attorney for a party, or with the party 
if not represented by an attorney, to refine or limit a demand so that 
compliance is less burdensome or seek additional information about the 
demand necessary to make the determination required by paragraph (b) of 
this section. Failure of the attorney or party to cooperate in good 
faith to enable the General Counsel or the appropriate agency counsel to 
make an informed decision under this subpart may serve, where 
appropriate, as a basis for a determination not to comply with the 
demand. In addition, the General Counsel or appropriate agency counsel 
may impose further conditions or restrictions on the production of any 
document or testimony when that is in the best interests of the United 
States.
    (f) Fact witness. If an employee is authorized to give testimony in 
a legal proceeding not involving the United States, the testimony, if 
otherwise proper, shall be limited to facts within the personal 
knowledge of the employee that are not classified, privileged, or 
protected from disclosure under applicable law or regulation. If asked 
to provide factual testimony that the employee believes may be 
classified, privileged, or protected from disclosure under applicable 
law or regulation, then the witness shall:
    (1) Respectfully decline to answer on the grounds that such 
testimony is prohibited; and
    (2) Request an opportunity to consult with the General Counsel or 
appropriate agency counsel.
    (g) Expert or opinion witness. (1) Current employees, with or 
without compensation, shall not provide expert or opinion testimony in 
any legal proceedings regarding Department information, subjects, or 
activities except on behalf of the United States or a party represented 
by the United States Department of Justice. However, upon a showing by 
the requester that there are exceptional circumstances and that the 
anticipated testimony will not be

[[Page 153]]

adverse to the interests of the Department or the United States, the 
General Counsel, or appropriate agency counsel after consultation with 
the Office of the General Counsel, may grant special authorization in 
writing for a current employee to appear and give the expert or opinion 
testimony.
    (i) If, while testifying in any legal proceeding, an employee is 
asked for expert or opinion testimony regarding official information, 
subjects, or activities, which testimony has not been approved in 
advance in accordance with the regulations in this subpart, the witness 
shall:
    (A) Respectfully decline to answer on the grounds that such expert 
or opinion testimony is forbidden by the regulations in this subpart;
    (B) Request an opportunity to consult with the General Counsel or 
appropriate agency counsel before giving such testimony; and
    (C) Explain that upon such consultation, approval for such testimony 
may be provided.
    (ii) If the body conducting the proceeding then orders the witness 
to provide expert or opinion testimony regarding official information, 
subjects, or activities without the opportunity to consult with either 
the General Counsel or appropriate agency counsel, the witness shall 
respectfully refuse to provide such testimony. See United States ex rel. 
Touhy v. Ragen, 340 U.S. 462 (1951).
    (iii) If an employee is unaware of the regulations in this subpart 
and provides expert or opinion testimony regarding official information, 
subjects, or activities in a legal proceeding without the consultation 
discussed in paragraph (g)(1)(i) of this section, the witness must, as 
soon as possible after testifying, inform the General Counsel or 
appropriate agency counsel that such testimony was given and provide a 
written summary of the expert or opinion testimony provided.
    (2) Former employees may provide opinion or expert testimony if:
    (i) The testimony does not involve non-public facts, information, or 
documents about a particular matter that were acquired by the former 
employee during the performance of their employment with the United 
States; and
    (ii) The involvement of the former employee in the proceeding as a 
witness complies with 18 U.S.C. 207 and applicable post-employment 
ethics rules. See 5 CFR part 2641. Former employees offering expert or 
opinion testimony and those seeking such testimony from former 
employees, must confer with the General Counsel or appropriate agency 
counsel to ascertain if the prospective expert or opinion testimony is 
consistent with this subpart.
    (h) Decision. A decision under this subpart to comply or not to 
comply with a demand is neither an assertion or waiver of privilege, nor 
an assertion of lack of relevance or technical deficiency, nor does it 
reflect any other ground for noncompliance.
    (i) Waiver. The General Counsel or appropriate agency counsel may 
waive any requirements set forth under this section to the extent 
allowed by law, when circumstances warrant.

[87 FR 162, Jan. 4, 2022]



Sec.  15.15  Demand for testimony or production of documents in matters
in which the United States is a party.

    If a demand is received pertaining to a legal matter in which the 
United States but not the Department is a named party, or where a party 
other than the Department is represented by the Department of Justice, 
the following rules apply.
    (a) Demand not from the United States. For demands for documents 
from, or testimony of an employee of the Department, from an entity 
other than the United States pursuant to a legal proceeding in which the 
United States is a party, the demand must be in writing and signed, 
delivered in accordance with Sec.  15.13(b), setting forth the 
information required in Sec.  15.14(a), and copied to the attorneys of 
record representing or acting under the authority of the United States 
in the legal proceeding. Upon receipt of the demand, the General Counsel 
or appropriate agency counsel shall promptly contact the appropriate 
Department of Justice office to coordinate any response in accordance 
with applicable Federal or state rules of civil procedure governing 
discovery matters.
    (b) Demand from the United States. When a demand for documents from,

[[Page 154]]

testimony of, or consultation with an employee of the Department comes 
from an attorney representing or acting under the authority of the 
United States concerning a legal proceeding in which the United States 
is a party, every such demand should be accompanied by a statement 
setting forth the legal proceeding, the forum, the United States' 
interest in the legal proceeding, and the relevance and use of the 
requested documents or testimony. The purpose of the requirement in this 
paragraph (b) is to assist the General Counsel or the appropriate agency 
counsel in making all necessary arrangements to facilitate the demand on 
behalf of the United States. Where appropriate, the General Counsel or 
appropriate agency counsel may require reimbursement to the Department 
of the expenses associated with a Department employee giving testimony 
or providing consultation on behalf of the United States.
    (c) Expert or opinion witness. In a legal proceeding in which the 
United States is a party, a current Department employee may not testify 
as an expert or opinion witness for any other party other than the 
United States. However, a former employee may provide opinion or expert 
testimony for a party other than the United States if:
    (1) The testimony does not involve facts, information, or documents 
about a particular matter that were acquired by the former employee 
during the performance of their official duties as an employee of the 
United States; and
    (2) The involvement of the former employee in the proceeding as a 
witness complies with applicable post-employment conflict of interest 
laws. See 18 U.S.C. 207 and 5 CFR part 2641. A former employee offering 
expert or opinion testimony or consulting, and those seeking such 
testimony from a former employee, shall confer with the General Counsel 
or appropriate agency counsel to ascertain if the prospective expert or 
opinion testimony or consulting is consistent with this subpart.

[87 FR 162, Jan. 4, 2022]



Sec.  15.16  Demand for testimony or production of documents: Department
policy and considerations.

    (a) Decision. In deciding whether to authorize a demand for 
testimony or documents under this subpart, the General Counsel or 
appropriate agency counsel shall consider whether the disclosure or 
testimony is in the interests of the Department. The following factors 
should be considered:
    (1) Conserving the time of Department employees for conducting 
official business;
    (2) Minimizing the possibility of involving the Department in 
controversial issues that are not related to the Department's mission or 
matters that do not further the Department's mission;
    (3) Preventing the possibility that the public will misconstrue 
variances between personal opinions of Department employees and official 
Department policy;
    (4) Avoiding spending the time and money of the United States for 
private purposes;
    (5) Preserving the integrity of the administrative or judicial 
process;
    (6) Protecting classified, confidential, or controlled unclassified 
information, and the deliberative process of the Department;
    (7) Preventing the appearance of improperly favoring one litigant 
over another;
    (8) Avoiding the denial of a party's constitutional or statutory 
rights;
    (9) Whether such disclosure is appropriate under the rules of 
procedure governing the case or matter in which the demand arose;
    (10) Whether disclosure is appropriate under the relevant 
substantive law concerning privilege; and
    (11) Any other issue that is relevant to the decision.
    (b) Non-disclosure factors. Demands for testimony or documents in 
response to which disclosure will not be made by any Department official 
include, but are not limited to, those demands with respect to which any 
of the following factors exist:
    (1) Disclosure is restricted by statute or regulation, or would 
violate a rule of procedure, Executive order, policy, or an applicable 
Government directive;

[[Page 155]]

    (2) Disclosure would reveal classified or controlled unclassified 
information, unless appropriately declassified or decontrolled by the 
originating agency;
    (3) Disclosure would reveal a confidential source or informant, 
unless the investigative agency and the source or informant have no 
objection;
    (4) Disclosure would reveal investigatory records compiled for law 
enforcement purposes and would interfere with enforcement proceedings or 
disclose investigative techniques and procedures, the effectiveness of 
which would thereby be impaired;
    (5) Disclosure would improperly reveal trade secrets or disclose 
information protected by law, a non-disclosure agreement, or court order 
without authorized consent;
    (6) Disclosure would be unduly costly, burdensome, or otherwise 
inappropriate under applicable court rules;
    (7) Disclosure would involve the Department in controversial issues 
that are not related to the Department's mission or issues that do not 
further the Department's mission; or
    (8) Disclosure would involve scientific or expert opinion on 
research that is controversial or contrary to Department policy, or 
would result in burdensome repetition of similar testimony in subsequent 
proceedings.

[87 FR 162, Jan. 4, 2022]



Sec.  15.17  Subpoenas and demands served upon employees or former
employees of the Office of the Inspector General.

    Notwithstanding the requirements set forth in Sec. Sec.  15.11 
through 15.16, this subpart is applicable to demands served on employees 
or former employees of the Office of the Inspector General (OIG), except 
that wherever in Sec. Sec.  15.11 through 15.16 there appear the phrases 
General Counsel, agency counsel, or Assistant General Counsel for 
Employment, Litigation, and Information, there shall be substituted in 
lieu thereof the Inspector General or Counsel to the Inspector General. 
In addition, the appropriate address for notifications specified in 
Sec.  15.13(b) pertaining to employees and former employees covered 
under this section is Office of the Inspector General, U.S. Department 
of Commerce, 1401 Constitution Avenue NW, Room 7896, Washington, DC 
20230.

[87 FR 162, Jan. 4, 2022]



Sec.  15.18  Testimony of Department employees in proceedings involving
the United States.

    The following applies in legal proceedings in which the United 
States is a party:
    (a) A Department employee may not testify as an expert or opinion 
witness for any other party other than the United States.
    (b) Whenever, in any legal proceeding involving the United States, a 
request is made by an attorney representing or acting under the 
authority of the United States, the General Counsel, or the Solicitor, 
or appropriate agency counsel will make all necessary arrangements for 
the Department employee to give testimony on behalf of the United 
States. Where appropriate, the General Counsel, or the Solicitor, or 
appropriate agency counsel may require reimbursement to the Department 
of the expenses associated with a Department employee giving testimony 
on behalf of the United States.



Subpart C_Involuntary Child and Spousal Support Allotments of NOAA Corps 
                                Officers

    Source: 53 FR 15548, May 2, 1988, unless otherwise noted. 
Redesignated at 62 FR 19669, Apr. 23, 1997.



Sec.  15.21  Purpose.

    This subpart provides implementing policies governing involuntary 
child or child and spousal support allotments for officers of the 
uniformed service of the National Oceanic and Atmospheric Administration 
(NOAA), and prescribes applicable procedures.



Sec.  15.22  Applicability and scope.

    This subpart applies to Commissioned Officers of the NOAA Corps on 
active duty.



Sec.  15.23  Definitions.

    (a) Active duty. Full-time duty in the NOAA Corps.
    (b) Authorized person. Any agent or attorney of any state having in 
effect a

[[Page 156]]

plan approved under part D of title IV of the Social Security Act (42 
U.S.C. 651-664), who has the duty or authority to seek recovery of any 
amounts owed as child or child and spousal support (including, when 
authorized under the state plan, any official of a political 
subdivision); and the court that has authority to issue an order against 
a member for the support and maintenance of a child or any agent of such 
court.
    (c) Child support. Periodic payments for the support and maintenance 
of a child or children, subject to and in accordance with state or local 
law. This includes but is not limited to, payments to provide for 
health, education, recreation, and clothing or to meet other specific 
needs of such a child or children.
    (d) Designated official. The official who is designated to receive 
notices of failure to make payments from an authorized person (as 
defined in paragraph (b) of this section). For the Department of 
Commerce this official is the Assistant General Counsel for 
Administration.
    (e) Notice. A court order, letter, or similar documentation issued 
by an authorized person providing notification that a member has failed 
to make periodic support payments under a support order.
    (f) Spousal support. Periodic payments for the support and 
maintenance of a spouse or former spouse, in accordance with state and 
local law. It includes, but is not limited to, separate maintenance, 
alimony while litigation continues, and maintenance. Spousal support 
does not include any payment for transfer of property or its value by an 
individual to his or her spouse or former spouse in compliance with any 
community property settlement, equitable distribution of property, or 
other division of property between spouses or former spouses.
    (g) Support order. Any order for the support of any person issued by 
a court of competent jurisdiction or by administrative procedures 
established under state law that affords substantial due process and is 
subject to judicial review. A court of competent jurisdiction includes: 
(1) Indian tribal courts within any state, territory, or possession of 
the United States and the District of Columbia; and (2) a court in any 
foreign country with which the United States has entered into an 
agreement that requires the United States to honor the notice.



Sec.  15.24  Policy.

    (a) It is the policy of the Department of Commerce to require 
Commissioned Officers of the NOAA Corps on active duty to make 
involuntary allotments from pay and allowances as payment of child, or 
child and spousal, support payments when the officer has failed to make 
periodic payments under a support order in a total amount equal to the 
support payable for two months or longer. Failure to make such payments 
shall be established by notice from an authorized person to the 
designated official. Such notice shall specify the name and address of 
the person to whom the allotment is payable. The amount of the allotment 
shall be the amount necessary to comply with the support order. If 
requested, the allotment may include arrearages as well as amounts for 
current support, except that the amount of the allotment, together with 
any other amounts withheld for support from the officer as a percentage 
of pay, shall not exceed the limits prescribed in section 303 (b) and 
(c) of the Consumer Credit Protection Act (15 U.S.C. 1673). An allotment 
under this subpart shall be adjusted or discontinued upon notice from an 
authorized person.
    (b) Notwithstanding the above, no action shall be taken to require 
an allotment from the pay and allowances of any officer until such 
officer has had a consultation with an attorney from the Office of the 
Assistant General Counsel for Administration, in person, to discuss the 
legal and other factors involved with respect to the officer's support 
obligation and his/her failure to make payments. Where it has not been 
possible, despite continuing good faith efforts to arrange such a 
consultation, the allotment shall start the first pay period beginning 
after 30 days have elapsed since the notice required in paragraph (d)(1) 
of Sec.  15.25 is given to the affected officer.

[53 FR 15548, May 2, 1988. Redesignated and amended at 62 FR 19669, 
19670, Apr. 23, 1997]

[[Page 157]]



Sec.  15.25  Procedures.

    (a) Service of notice. (1) An authorized person shall send to the 
designated official a signed notice that includes:
    (i) A statement that delinquent support payments equal or exceed the 
amount of support payable for 2 months under a support order, and a 
request that an allotment be initiated pursuant to 42 U.S.C. 665.
    (ii) A certified copy of the support order.
    (iii) The amount of the monthly support payment. Such amount may 
include arrearages, if a support order specifies the payment of such 
arrearages. The notice shall indicate how much of the amount payable 
shall be applied toward liquidation of the arrearages.
    (iv) Sufficient information identifying the officer to enable 
processing by the designated official. The following information is 
requested:
    (A) Full name;
    (B) Social Security Number;
    (C) Date of birth; and
    (D) Duty station location.
    (v) The full name and address of the allottee. The allottee shall be 
an authorized person, the authorized person's designee, or the recipient 
named in the support order.
    (vi) Any limitations on the duration of the support allotment.
    (vii) A certificate that the official sending the notice is an 
authorized person.
    (viii) A statement that delinquent support payments are more than 12 
weeks in arrears, if appropriate.
    (2) The notice shall be accomplished by certified or registered 
mail, return receipt requested, or by personal service, upon the 
appropriate designated official, who shall note the date and time of 
receipt on the notice.
    (3) The notice is effective when it is received in the office of the 
designated official.
    (4) When the information submitted is not sufficient to identify the 
officer, the notice shall be returned directly to the authorized person 
with an explanation of the deficiency. However, prior to returning the 
notice if there is sufficient time, an attempt should be made to inform 
the authorized person who caused the notice to be served, that it will 
not be honored unless adequate information is supplied.
    (5) Upon receipt of effective notice of delinquent support payments, 
together with all required supplementary documents and information, the 
designated official shall identify the officer from whom moneys are due 
and payable. The allotment shall be established in the amount necessary 
to comply with the support order and to liquidate arrearages if provided 
by a support order when the maximum amount to be allotted under this 
provision, together with any other moneys withheld for support from the 
officer, does not exceed:
    (i) 50 percent of the officer's disposable earnings for any month 
where the officer asserts by affidavit or other acceptable evidence, 
that he/she is supporting a spouse and/or dependent child, other than a 
party in the support order. When the officer submits evidence, copies 
shall be sent to the authorized person, together with notification that 
the officer's support claim will be honored.
    If the support claim is contested by the authorized person, that 
authorized person may refer this matter to the appropriate court or 
other authority for resolution.
    (ii) 60 percent of the officer's disposable earnings for any month 
where the officer fails to assert by affidavit or other acceptable 
evidence that he/she is supporting a spouse and/or dependent child.
    (iii) Regardless of the limitations above, an additional 5 percent 
of the officer's disposable earnings shall be withheld when it is stated 
in the notice that the officer is in arrears in an amount equivalent to 
12 or more weeks' support.
    (b) Disposable earnings. The following moneys are subject to 
inclusion in computation of the officer's disposable earnings:
    (1) Basic pay.
    (2) Special pay (including enlistment and reenlistment bonuses).
    (3) Accrued leave payments (basic pay portions only).
    (4) Aviation career incentive pay.
    (5) Incentive pay for Hazardous Duty.
    (6) Readjustment pay.
    (7) Diving pay.

[[Page 158]]

    (8) Sea pay.
    (9) Severance pay (including disability severance pay).
    (10) Retired pay (including disability retired pay).
    (c) Exclusions. In determining the amount of any moneys due from or 
payable by the United States to any individual, there shall be excluded 
amounts which are:
    (1) Owed by the officer to the United States.
    (2) Required by law to be deducted from the remuneration or other 
payment involved, including, but not limited to:
    (i) Amounts withheld from benefits payable under Title II of the 
Social Security Act where the withholding is required by law.
    (ii) Federal employment taxes.
    (3) Properly withheld for federal and state income tax purposes if 
the withholding of the amounts is authorized by law and if amounts 
withheld are not greater than would be the case if the individual 
claimed all dependents to which he/she were entitled. The withholding of 
additional amounts pursuant to section 3402(i) of Title 26 of the United 
States Code may be permitted only when the officer presents evidence of 
a tax obligation which supports the additional withholding.
    (4) Deducted for servicemen's Group Life Insurance coverage.
    (5) Advances of pay that may be due and payable by the officer at 
some future date.
    (d) Officer notification. (1) As soon as possible, but not later 
than 15 calendar days after the date of receipt of notice, the 
designated official shall send to the officer, at his/her duty station 
or last known address, written notice:
    (i) That notice has been received from an authorized person, 
including a copy of the documents submitted;
    (ii) Of the maximum limitations set forth, with a request that the 
officer submit supporting affidavits or other documentation necessary 
for determining the applicable percentage limitation;
    (iii) That the officer may submit supporting affidavits or other 
documentation as evidence that the information contained in the notice 
is in error;
    (iv) That by submitting supporting affidavits or other necessary 
documentation, the officer consents to the disclosure of such 
information to the party requesting the support allotment;
    (v) Of the amount or percentage that will be deducted if the officer 
fails to submit the documentation necessary to enable the designated 
official to respond to the notice within the prescribed time limits;
    (vi) That legal counsel will be provided by the Office of the 
Assistant General Counsel for Administration; and
    (vii) Of the date that the allotment is scheduled to begin.
    (2) The officer shall be provided with the following:
    (i) A consultation in person with an attorney from the Office of the 
Assistant General Counsel for Administration, to discuss the legal and 
other factors involved with the officer's support obligation and his/her 
failures to make payment.
    (ii) Copies of any other documents submitted with the notice.
    (3) The Office of the Assistant General Counsel for Administration 
will make every effort to see that the officer receives a consultation 
concerning the support obligation and the consequences of failure to 
make payments within 30 days of the notice required in paragraph (d)(1). 
In the event such consultation is not possible, despite continuing good 
faith efforts to arrange a consultation, no action shall be taken to 
require an allotment from the pay and allowances of any NOAA Corps 
Officer until 30 days have elapsed after the notice described in 
paragraph (d)(1) is given to the affected officer.
    (4) If, within 30 days of the date of the notice, the officer has 
furnished the designated official affidavits or other documentation 
showing the information in the notice to be in error, the designated 
official shall consider the officer's response. The designated official 
may return to the authorized person, without action, the notice for a 
statutorily required support allotment together with the member's 
affidavit and other documentation, if the member submits substantial 
proof of error, such as:

[[Page 159]]

    (i) The support payments are not delinquent.
    (ii) The underlying support order in the notice has been amended, 
superseded, or set aside.
    (e) Absence of funds. (1) When notice is served and the identified 
officer is found not to be entitled to moneys due from or payable by 
NOAA, the designated official shall return the notice to the authorized 
person, and advise that no moneys are due from or payable by NOAA to the 
named individual.
    (2) Where it appears that moneys are only temporarily exhausted or 
otherwise unavailable, the authorized person shall be fully advised as 
to why, and for how long, the money will be unavailable.
    (3) In instances where the officer separates from active duty 
service, the authorized person shall be informed by the Office of 
Commissioned Personnel, NOAA Corps that the allotment is discontinued.
    (4) Payment of statutorily required allotments shall be enforced 
over other voluntary deductions and allotments when the gross amount of 
pay and allowances is not sufficient to permit all authorized deductions 
and collections.
    (f) Allotment of funds. (1) The authorized person or allottee shall 
notify the designated official promptly if the operative court order 
upon which the allotment is based is vacated, modified, or set aside. 
The designated official shall also be notified of any events affecting 
the allottee's eligibility to receive the allotment, such as the former 
spouse's remarriage, if a part of the payment is for spousal support, 
and notice of a change in eligibility for child support payments under 
circumstances of death, emancipation, adoption, or attainment of 
majority of a child whose support is provided through the allotment.
    (2) An allotment established under this Directive shall be adjusted 
or discontinued upon notice from the authorized person.
    (3) Neither the Department of Commerce nor any officer or employee 
thereof, shall be liable for any payment made from moneys due from, or 
payable by, the Department of Commerce to any individuals pursuant to 
notice regular on its face, if such payment is made in accordance with 
this subpart. If a designated official receives notice based on support 
which, on its face, appears to conform to the law of the jurisdiction 
from which it was issued, the designated official shall not be required 
to ascertain whether the authority that issued the orde had obtained 
personal jurisdiction over the member.
    (4) Effective date of allotment. The allotment shall start with the 
first pay period beginning after the officer has had a consultation with 
an attorney from the Office of the Assistant General Counsel for 
Administration but not later than the first pay period beginning after 
30 days have elapsed since the notice required in paragraph (d)(1) of 
this section is given to the affected officer. The Department of 
Commerce shall not be required to vary its normal NOAA Corps allotment 
payment cycle to comply with the notice.
    (g) Designated official. Notice should be sent to: The Assistant 
General Counsel for Administration, Office of the General Counsel, U.S. 
Department of Commerce, Washington, DC 20230, (202) 377-5387.



 Subpart D_Statement of Policy and Procedures Regarding Indemnification 
                   of Department of Commerce Employees

    Source: 62 FR 19670, Apr. 23, 1997, unless otherwise noted.



Sec.  15.31  Policy.

    (a) The Department of Commerce may indemnify a present or former 
Department employee who is personally named as a defendant in any civil 
suit in state or federal court, or other legal proceeding seeking 
damages against a present or former Department employee personally, for 
any verdict, judgment or other monetary award which is rendered against 
such employee, provided that the conduct giving rise to the verdict, 
judgment or award was taken within the scope of his/her employment and 
that such indemnification is in the interest of the Department as 
determined by the Secretary or his/her designee.

[[Page 160]]

    (b) The Department may settle or compromise a personal damage claim 
against a present or former employee by the payment of available funds 
at any time provided the alleged conduct giving rise to the personal 
property claim was taken within the employee's scope of employment and 
such settlement is in the interest of the Department as determined by 
the Secretary or his/her designee.
    (c) Absent exceptional circumstances, as determined by the Secretary 
or his/her designee, the Department will not consider a request either 
to indemnify or to settle a personal damage claim before entry of an 
adverse verdict, judgment or award.
    (d) Any payment under this section either to indemnify a present or 
former Department employee or to settle a personal damage claim shall be 
contingent upon the availability of appropriated funds of the Department 
of Commerce.



Sec.  15.32  Procedures for the handling of lawsuits against Department
employees arising within the scope of their office or employment.

    The following procedures shall be followed in the event that a civil 
action or proceeding is brought, in any court, against a present or 
former employee of the Department (or against his/her estate) for 
personal injury, loss of property or death, resulting from the 
Department employee's activities while acting within the scope of his/
her office or employment:
    (a) After being served with process or pleadings in such an action 
or proceeding, the employee (or the executor(rix) or administrator(rix)) 
of the estate shall within five (5) calendar days of receipt, deliver 
all such process and pleadings or an attested true copy thereof, 
together with a fully detailed report of the circumstances of the 
incident giving rise to the court action or proceeding to the General 
Counsel. Where appropriate, the General Counsel, or his/her designee, 
may request that the Department of Justice provide legal representation 
for the present or former Department employee.
    (b)(1) Only if a present or former employee of the Department has 
satisfied the requirements of paragraph (a) of this section in a timely 
fashion, may the employee subsequently request indemnification to 
satisfy a verdict, judgment, or award entered against that employee.
    (2) No request for indemnification will be considered unless the 
employee has submitted a written request, with appropriate 
documentation, including copies of the verdict, judgment, appeal bond, 
award, or settlement proposal through the employee's supervisory chain 
to the head of the employee's component. The written request will 
include an explanation by the employee of how the employee was working 
within the scope of employment and whether the employee has insurance or 
any other source of indemnification.
    (3) The head of the component or his/her designee will forward the 
employee's request with a recommendation to the General Counsel for 
review. The request for indemnification shall include a detailed 
analysis of the basis for the recommendation. The head of the component 
will also certify to the General Counsel that the component has funds 
available to pay the indemnification.
    (c) The General Counsel or his/her designee will review the 
circumstances of the incident giving rise to the action or proceeding, 
and all data bearing upon the question of whether the employee was 
acting within the scope of his/her employment. Where appropriate, the 
agency shall seek the views of the Department of Justice and/or the U.S. 
Attorney for the district embracing the place where the action or 
proceeding is brought.
    (d) The General Counsel shall forward the request, the accompanying 
documentation, and the General Counsel's recommendation to the Secretary 
or his/her designee for decision.



PART 16_PROCEDURES FOR A VOLUNTARY CONSUMER PRODUCT INFORMATION LABELING
PROGRAM--Table of Contents



Sec.
16.1 Purpose.
16.2 Description and goal of program.
16.3 Definitions.
16.4 Finding of need to establish a specification for labeling a 
          consumer product.

[[Page 161]]

16.5 Development of performance information labeling specifications.
16.6 Establishment of fees and charges.
16.7 Participation in program.
16.8 Termination of participation.
16.9 Rules governing designated agents.
16.10 The Department of Commerce Mark.
16.11 Amendment or revision of a performance information labeling 
          specification.
16.12 Consumer education.
16.13 Coordination with State and local programs.
16.14 Annual report.

    Authority: Sec. 2, 31 Stat. 1449, as amended; sec. 1, 64 Stat. 371, 
(15 U.S.C. 272); Re-organization Plan No. 3 of 1946, Part VI.

    Source: 42 FR 26648, May 25, 1977, unless otherwise noted.



Sec.  16.1  Purpose.

    The purpose of this part is to establish procedures under which a 
voluntary consumer product information labeling program administered by 
the Department of Commerce will function.



Sec.  16.2  Description and goal of program.

    (a) The Department's Voluntary Consumer Product Information Labeling 
Program makes available to consumers, at the point of sale, information 
on consumer product performance in an understandable and useful form so 
as to facilitate accurate consumer purchasing decisions and enhance 
consumer satisfaction. It also educates consumers, distributors and 
retailers in the use of the product performance information displayed 
and provides manufacturers and other persons who participate in the 
program with an opportunity to convey to the public the particular 
advantages of their products. These objectives are accomplished by:
    (1) Selecting or developing standardized test methods by which 
selected product performance characteristics can be measured;
    (2) Developing labeling methods by which information concerning 
product performance can be transmitted in useful form to consumers at 
the point of sale;
    (3) Encouraging manufacturers and other participants in the program 
voluntarily to test and label their products according to the selected 
or developed methods; and
    (4) Encouraging consumers through various informational and 
educational programs to utilize the product performance information 
provided.
    (b) The program involves voluntary labeling by enrolled participants 
of selected categories of consumer products with information concerning 
selected performance characteristics of those products. The performance 
characteristics selected are those that are of demonstrable importance 
to consumers, that consumers cannot evaluate through mere inspection of 
the product, and that can be measured objectively and reported 
understandably to consumers. The consumer products covered include those 
for which incorrect purchase decision can result in financial loss, 
dissatisfaction, or inconvenience. The program seeks to avoid the 
duplication of other Federal programs under which performance 
characteristics are labeled by exempting those performance 
characteristics from this program. However, where the Federal agency 
concerned agrees, the Department of Commerce may include information 
about those performance characteristics in CPILP labels if, by doing so, 
product comparison at the point of sale is simplified for consumers, and 
the complexity of product labeling is reduced for the manufacturers by 
enabling them to comply with the labeling requirements of other Federal 
agencies through participation in CPILP.
    (c) For selected categories of consumer products, the program 
includes advertising guidelines covering situations where quantitative 
performance values are stated in advertising or where qualitative 
comparisons are made of the performance of different products.

[42 FR 26648, May 25, 1977, as amended at 43 FR 8255, Mar. 1, 1978]



Sec.  16.3  Definitions.

    (a) The term Secretary means the Secretary of Commerce or her 
designee.
    (b) The term consumer means the first person who purchases a 
consumer product for purposes other than resale.
    (c) The term participant means a manufacturer, assembler or private

[[Page 162]]

brand labeler of consumer products or an importer of such products for 
resale and who participates in the program.
    (d) The term consumer product means any article produced or 
distributed for sale to a consumer for the use, consumption, or 
enjoyment of such consumer. The term does not include products 
customarily intended primarily for business, commercial, or industrial 
use.
    (e) The term person means an individual; a manufacturer; 
distributor; retailer; importer; private brand labeler; government 
agency at the Federal (including any agency of the Department of 
Commerce), State and local level; consumer organization; trade 
association; standards writing body; professional society; testing 
laboratory; or educational institution.
    (f) The term performance characteristic means a performance 
characteristic of a consumer product that can be measured in an 
objective manner with respect to a given consumer product.
    (g) The term Specification means a Performance Information Labeling 
Specification developed under Sec.  16.5.
    (h) The term label means printed matter affixed to or otherwise 
provided with a consumer product and containing all of the performance 
characteristics as prescribed by the Specification applicable to that 
product.
    (i) The term designated agent means a person as defined in paragraph 
(e) of this section, who has been designated by the Secretary to carry 
out appropriate operational procedures on behalf of more than one 
participant in this program in accordance with rules set out under Sec.  
16.9.



Sec.  16.4  Finding of need to establish a specification for labeling a
consumer product.

    (a) Any person may request the Secretary to find that there is a 
need to label a particular consumer product with information concerning 
one or more specific performance characteristics of that product.
    (b) Such a request shall be in writing and will, to the extent 
practicable, include the following information:
    (1) Identification of the consumer product;
    (2) Extent that the product identified in paragraph (b)(1) of this 
section is used by the public and, if known, what the production or 
sales volume is of such product;
    (3) Nature and extent of difficulty experienced by consumers in 
making informed purchase decisions because of a lack of knowledge 
regarding the performance characteristics of the identified consumer 
product;
    (4) Potential or actual loss to consumers as a result of an 
incorrect decision based on an inadequate understanding of the 
performance characteristics of the identified consumer product;
    (5) Extent of incidence of consumer complaints arising from or 
reasonably traceable to lack of knowledge regarding the performance 
characteristics of the identified consumer product;
    (6) If known, whether there currently exist test methods which could 
be used to test the performance characteristics of the identified 
consumer product and an identification of those test methods;
    (7) Reasons why it is felt, in cases where existing test methods are 
identified in responding to paragraph (b)(6) of this section, that such 
test methods are suitable for making objective measurements of the 
performance characteristics of the identified consumer product; and
    (8) Estimated cost to participants to test and label the product.
    (c) The Secretary may ask for more information to support a request 
made under paragraph (a) of this section if she feels it is necessary to 
do so, or, if she deems it to be in the public interest, may develop 
such information herself as by consultation on a one-time basis with 
consumers, consumer organizations, and others. The Secretary shall act 
expeditiously on all requests and shall notify the requester of her 
decision in writing. If the Secretary determines that there is no need 
to establish a Specification for labeling the requested consumer product 
performance characteristics, or because of a lack of resources, she will 
decline to act further on the request. In those instances where the 
Secretary declines a request, she shall state the reasons for so 
declining.

[[Page 163]]

    (d) If the Secretary finds that a need exists to establish a 
Specification for labeling a consumer product under this program, she 
shall publish a notice in the Federal Register setting out such finding 
and its basis and stating that she is developing a proposed 
Specification in accordance with Sec.  16.5.



Sec.  16.5  Development of performance information labeling specifications.

    (a) If the Secretary makes a finding of need pursuant to Sec.  16.4, 
she will publish a proposed Performance Information Labeling 
Specification in the Federal Register with a notice giving the complete 
text of the proposed Specification and any other pertinent information. 
The notice will invite any interested person to submit written comments 
on the proposed Specification within 45 days after its publication in 
the Federal Register, unless another time limit is provided by the 
Secretary. Interested persons wanting to express their views in an 
informal hearing may do so, if within 15 days after the proposed 
Specification is published in the Federal Register, they request the 
Secretary to hold a hearing. Such informal hearings shall be held so as 
to give all interested persons an opportunity for the oral presentation 
of data, views, or arguments in addition to the opportunity to make 
written submissions. Notice of such hearings shall be published in the 
Federal Register. A transcript shall be kept of any oral presentations.
    (b) Each Specification shall as a minimum include:
    (1) A description of the performance characteristics of the consumer 
product covered;
    (2) An identification by reference of the test methods to be used in 
measuring the performance characteristics. The test methods, where they 
exist and are deemed appropriate for inclusion in the particular 
Specification involved, shall be those which are described in 
nationally-recognized voluntary standards. Where appropriate test 
methods do not exist, they will be developed by the Department of 
Commerce in cooperation with interested parties and set out in full in 
the Specification;
    (3) A prototype label and directions for displaying the label on or 
with the consumer product concerned. Such directions will not prohibit 
the display of additional information by the participant on space 
adjacent to the marked boundaries of the label; and
    (4) Conditions of participation.
    (c) The Secretary, after consideration of all written and oral 
comments and other materials received in accordance with paragraph (a) 
of this section, shall publish in the Federal Register within 30 days 
after the final date for receipt of comments, or as soon as practicable 
thereafter, a notice either:
    (1) Giving the complete text of a final Specification, including 
conditions of use, and stating that any prospective participant in the 
program desiring voluntarily to use the Department of Commerce Mark 
developed under Sec.  16.10 must advise the Department of Commerce: or
    (2) Stating that the proposed Specification will be further 
developed before final publication; or
    (3) Withdrawing the proposed Specification from further 
consideration.



Sec.  16.6  Establishment of fees and charges.

    (a) The Secretary in conjunction with the use of the Working Capital 
Fund of the National Institute of Standards & Technology, as authorized 
under section 12 of the Act of March 3, 1901, as amended (15 U.S.C. 
278b), for this program, shall establish fees and charges for use of the 
Department of Commerce Label and Mark on each product. Such fees and 
charges shall be related to the number of units of products labeled, 
where appropriate. The fees and charges established by the Secretary, 
which may be revised by her when she deems it appropriate to do so, 
shall be in amounts calculated to make the operation of this program as 
self-sufficient as reasonable. A separate notice will be published in 
the Federal Register simultaneously with the notice of each proposed 
Specification referred to in Sec.  16.5(a). Such notice will set out a 
schedule of estimated fees and charges the Secretary proposes to 
establish. The notice would be furnished for informational and guidance 
purposes only in order that the public may evaluate the proposed 
Specification in light of the expected fees to be charged.

[[Page 164]]

    (b) At such time as the Secretary publishes the notice announcing 
the final Specification referred to in Sec.  16.5(c)(1), she shall 
simultaneously publish a separate notice in the Federal Register setting 
forth the final schedule of fees that will be charged participants in 
the program. The effective date of such final schedule of fees shall be 
the same as the date on which the final Specification takes effect.
    (c) Revisions, if any, to the fees and charges established by the 
Secretary under paragraph (b) of this section shall be published in 
subsequent Federal Register notices and shall take effect not less than 
thirty (30) days after the date of publication of such notice.
    (d) The establishment of fees and charges under this section may, at 
any time, be suspended by the Secretary for any length of time.

[42 FR 26648, May 25, 1977, as amended at 42 FR 57686, Nov. 4, 1977; 55 
FR 38315, Sept. 18, 1990]



Sec.  16.7  Participation in program.

    (a) Any manufacturer, assembler, or private brand labeler of 
consumer products or importer of such products for resale, desiring to 
participate in this program will so notify the Secretary. The 
notification will identify the particular Specification to be used and 
the prospective participant's identification and model numbers for the 
products to be labeled. The notification must include a statement that 
if accepted as a participant in the program by the Secretary, the 
prospective participant will:
    (1) Abide by all conditions imposed by these procedures:
    (2) Abide by the conditions contained in the Specification, as 
prescribed in paragraph (d) of this section;
    (3) Pay the fees and charges established by the Secretary; and
    (4) Desist from using the Department of Commerce label and Mark if 
his participation is terminated under Sec.  16.8.
    (b) The Secretary shall act expeditiously on all requests to 
participate in the program and shall notify each prospective participant 
of her decision in writing. In those instances where the Secretary 
declines a request, she shall state the reasons for so declining.
    (c) If a prospective participant seeking to participate in the 
program is notified by the Secretary that she proposes to deny that 
prospective participant the right to participate, that prospective 
participant shall have thirty (30) days from the receipt of such 
notification to request a hearing under the provisions of 5 U.S.C. 556. 
The Secretary's proposed denial shall become final through the issuance 
of a written decision to such prospective participant in the event that 
he does not appeal such notification by the end of the thirty (30) day 
period. If however, such prospective participant requests a hearing 
within that thirty (30) day period, the Secretary's proposed denial 
shall be stayed pending the outcome of the hearing held pursuant to 5 
U.S.C. 556.
    (d) The conditions set out in each Specification will include, but 
not be limited to, the following:
    (1) Prior to the use of a Label, the participant will make or have 
made the measurements to obtain the information required for inclusion 
on the Label and, if requested, will forward within 30 days such 
measurement data to the Secretary. Such measurement data will be kept on 
file by the participant or his agent for two years after that product is 
no longer manufactured unless otherwise provided in the Specification.
    (2) The participant will describe the test results on the Label as 
prescribed in the Specification.
    (3) The participant will display or arrange to display, in 
accordance with the appropriate Specification, the Label on or with each 
individual product of the type covered except for units exported from 
the U.S. Participants who utilized more than one brand name may 
participate by labeling some or all of the brand names. All models with 
the same brand name must be included in the program unless they are for 
export only.
    (4) The participant agrees at his expense to comply with any 
reasonable request of the Secretary to have consumer products 
manufactured, assembled, imported, or privately brand labeled by him 
tested to determine that testing has been done according to the relevant 
Specification.

[[Page 165]]

    (5) Participants may reproduce the Department of Commerce Label and 
Mark in advertising: Provided, That the entire Label, complete with all 
information required to be displayed at the point of retail sale, is 
shown legibly and is not combined or associated directly with any other 
mark or logo.



Sec.  16.8  Termination of participation.

    (a) The Secretary upon finding that a participant is not complying 
with the conditions set out in these procedures or in a Specification 
may terminate upon 30 days notice the participant's right to continue 
his participation in the program: Provided, That the participant shall 
first by given an opportunity to show cause why the participation should 
not be terminated.
    (b) Upon receipt of a notice from the Secretary of the proposed 
termination, which notice shall set forth the reasons for such proposed 
termination, the participant shall have thirty (30) days from the date 
of receipt of such notification to request a hearing under the 
provisions of 5 U.S.C. 556. The Secretary's proposed termination shall 
become final through the issuance of a written decision to the 
participant in the event such participant does not appeal the proposed 
termination within the thirty (30) day period. If, however, the 
participant requests a hearing within the thirty (30) day period, the 
Secretary's proposed termination shall be stayed pending the outcome of 
the hearing held pursuant to 5 U.S.C. 556.
    (c) A participant may at any time terminate his participation and 
responsibilities under this program with regard to a specific type of 
product by giving written notice to the Secretary that he has 
discontinued use of the Department of Commerce Label and Mark for all 
consumer products of the type involved.



Sec.  16.9  Rules governing designated agents.

    (a) The following rules, requirements and tasks shall be applicable 
with respect to the seeking of designated agent status and the 
performance of that role after such status has been obtained. Each 
person desiring to be designated as a designated agent under this 
program shall:
    (1) Make written application to the Secretary;
    (2) Provide appropriate information showing his qualifications to 
represent members within a given product area and that more than one 
prospective participant in that product area is agreeable to such 
representation; and
    (3) Agree to service any participant in this program in the agent's 
cognizant product area whether or not such participant is a member of 
the organization or body which that agent represents.
    (b) The Secretary may require a person seeking designated agent 
status to supply further information before granting such status to that 
person. The Secretary will notify each person seeking designated agent 
status, in writing, as expeditiously as possible after evaluating such 
person's application.
    (c) Each person granted designated agent status shall:
    (1) Provide the Secretary with a list of the participants that the 
designated agent services under the program. The Secretary shall also be 
provided an updated list as soon thereafter as may be practicable 
whenever there are any changes in the list;
    (2) Collect fees and charges from the participants serviced under 
this program, consolidate such sums, and transmit those fees and charges 
required under Sec.  16.6 to the Secreatry;
    (3) Distribute Department of Commerce Marks developed under Sec.  
16.10 or instructions for the printing of such Marks to the participants 
that the designated agent services under this program;
    (4) Gather and consolidate such statistical information as may be 
required by the Secretary from individual participants serviced;
    (5) Provide the Secretary with reports, including the consolidate 
statistical information referred to in paragraph (c)(4) of this section, 
as may be called for by her, relative to the activities of the 
participants the designated agent is servicing; and
    (6) Perform any additional tasks mutually agreed upon by the 
designated agent and the Secretary.

[[Page 166]]

    (d) If a person seeking designated agent status is notified by the 
Secretary that she proposes to deny that person such status, that person 
shall have thirty (30) days from the date of receipt of such 
notification to request a hearing under the provisions of 5 U.S.C. 556. 
The Secretary's proposed denial shall become final through the issuance 
of a written decision to such person in the event that he does not 
appeal such notification by the end of that thirty (30) day period. If, 
however, such person requests a hearing within that thirty (30) day 
period, the Secretary proposed denial shall be stayed pending the 
outcome of the hearing held pursuant to 5 U.S.C. 556.
    (e) If the Secretary finds that a designated agent has violated the 
terms of paragraph (c) of this section, she may, after consultations 
with such designated agent, notify such person that she proposes to 
revoke his status as a designated agent.
    (f) Upon receipt of a notice from the Secretary of the proposed 
revocation, which notice shall set forth the reasons for such proposed 
revocation, the designated agent shall have thirty (30) days from the 
date of receipt of such notification to request a hearing under the 
provisions of U.S.C. 556. The Secretary's proposed revocation shall 
become final through the issuance of a written decision to the 
designated agent in the event such designated agent does not appeal the 
proposed revocation within that thirty (30) day period. If, however, the 
designated agent requires a hearing within that thirty (30) day period, 
the Secretary's proposed revocation shall be stayed pending the outcome 
of the hearing held pursuant to 5 U.S.C. 556.



Sec.  16.10  The Department of Commerce Mark.

    The Department of Commerce shall develop a Mark which shall be 
registered in the U.S. Patent and Trademark Office under 15 U.S.C. 1054 
for use on each Label described in a Specification.



Sec.  16.11  Amendment or revision of a performance information labeling
specification.

    The Secretary may by order amend or revise any Specification 
published under Sec.  16.5. The procedure applicable to the 
establishment of a Specification under Sec.  16.5 shall be followed in 
amending or revising such Specification. Such amendment or revision 
shall not apply to consumer products manufactured prior to the effective 
date of the amendment or revision.



Sec.  16.12  Consumer education.

    The Secretary, in close cooperation and coordination with interested 
Government agencies, appropriate trade associations and industry 
members, consumer organizations, and other interested persons shall 
carry out a program to educate consumers relative to the significance of 
the labeling program. Some elements of this program shall also be 
directed toward informing retailers and other interested groups about 
the program.



Sec.  16.13  Coordination with State and local programs.

    The Secretary will establish and maintain an active program of 
communication with appropriate State and local government offices and 
agencies and will furnish and make available information and assistance 
that will promote uniformity in State and local programs for the 
labeling of performance characteristics of consumer products.



Sec.  16.14  Annual report.

    The Secretary will prepare an annual report of activities under the 
program, including an evaluation of the program and a list of 
participants, designated agents, and types of consumer products covered.



PART 17_PERSONNEL EXCHANGES BETWEEN FEDERAL LABORATORIES AND NON-FEDERAL
ENTITIES--Table of Contents



Sec.
17.1 Scope.
17.2 Definitions.

[[Page 167]]

17.3 Exchange of Federal laboratory personnel with recipients of Federal 
          funding.
17.4 Personnel exchanges from a Federal laboratory.
17.5 Personnel exchanges to a Federal laboratory.

    Authority: 15 U.S.C. 3712.

    Source: 81 FR 73025, Oct. 24, 2016, unless otherwise noted.



Sec.  17.1  Scope.

    (a) The Stevenson-Wydler Technology Innovation Act of 1980, Public 
Law 96-480, as amended (codified at title 15 of the United States Code 
(U.S.C.), section 3701 et seq.) (the Stevenson-Wydler Act), sets forth a 
national policy to renew, expand, and strengthen cooperation among 
academia, Federal laboratories, labor, and industry, in forms including 
personnel exchanges (15 U.S.C. 3701(3)). One proven method to ensure 
that Federal innovations are passed to industry and the public is to 
encourage frequent interactions among Federal laboratories, academic 
institutions, and industry, including both large and small businesses. 
In accordance with applicable ethics regulations and Agency policies, 
exchanges of personnel between Federal laboratories and outside 
collaborators should be encouraged (15 U.S.C. 3702(5)). Models that 
include Federal funding, as well as those that are executed without 
Federal funding, are encouraged.
    (b) This part implements 15 U.S.C. 3712 and provides clarification 
regarding the appropriate use of personnel exchanges in relation to 
Federal laboratory Cooperative Research and Development Agreements 
(CRADAs) under the authority of 15 U.S.C. 3710a.
    (c) This part is applicable to exchanges of personnel between 
Federal laboratories and parties to a CRADA under 15 U.S.C. 3710a(a)(1).



Sec.  17.2  Definitions.

    (a) The term funding agreement shall have the meaning according to 
it under 35 U.S.C. 201(b).
    (b) The term contractor shall have the meaning according to it under 
35 U.S.C. 201(c).
    (c) The term Federal laboratory shall have the meaning according to 
it under 15 U.S.C. 3703(4).



Sec.  17.3  Exchange of Federal laboratory personnel with recipients of
Federal funding.

    (a) In accordance with 15 U.S.C. 3710a(b)(3)(A) and 3710a(d)(1), a 
Federal laboratory may provide personnel, services, property, and other 
resources to a collaborating party, with or without reimbursement (but 
not funds to non-Federal parties) for the conduct of specified research 
or development efforts under a CRADA which are consistent with the 
missions of the Federal laboratory. The existence of a funding agreement 
between a Federal laboratory and a contractor shall not preclude the 
Federal laboratory from using its authority under 15 U.S.C. 3710a to 
enter into a CRADA with the contractor as a collaborating party for the 
conduct of specified research or development efforts, where the director 
of the Federal laboratory determines that the technical subject matter 
of the funding agreement is sufficiently distinct from that of the 
CRADA. In no event shall a contractor which is a collaborating party 
transfer funds to a Federal laboratory under a CRADA using funds awarded 
to the contractor by that laboratory.
    (b) (1) A Federal laboratory may enter into a CRADA with a 
contractor as a collaborating party for the purpose of exchange of 
personnel for the conduct of specified research or development efforts 
where the determination required under paragraph (a) of this section 
could not be made, provided that:
    (i) The CRADA includes at least one collaborating party in addition 
to the Federal laboratory and that contractor; and
    (ii) The Federal laboratory shall not provide services, property or 
other resources to that contractor under the CRADA.
    (2) Where a Federal laboratory enters into a CRADA with a contractor 
under this paragraph (b), the terms of that contractor's funding 
agreement shall normally supersede the terms of the CRADA, to the extent 
that any individual terms conflict, as applied to

[[Page 168]]

that contractor and the Federal laboratory only.
    (c) In making the determination required under paragraph (a) of this 
section, the director of a Federal laboratory may consider factors 
including the following:
    (1) Whether the conduct of specified research or development efforts 
under the CRADA would require the contractor to perform tasks identical 
to those required under the funding agreement;
    (2) Whether existing intellectual property to be provided by the 
Federal laboratory or the contractor under the CRADA is the same as that 
provided under, or referenced in, the funding agreement;
    (3) Whether the contractor's employees performing the specified 
research or development efforts under the CRADA are the same employees 
performing the tasks required under the funding agreement; and
    (4) Whether services, property or other resources contemplated by 
the Federal laboratory to be provided to the contractor for the 
specified research or development efforts under the CRADA would 
materially benefit the contractor in the performance of tasks required 
under the funding agreement.



Sec.  17.4  Personnel exchanges from a Federal laboratory.

    (a) For personnel exchanges in which a Federal laboratory maintains 
funding for Federal personnel provided to a collaborating party--
    (1) in accordance with 15 U.S.C. 3710a(b)(3)(A), a Federal 
laboratory may exchange personnel with a collaborating party for the 
purposes of specified scientific or technical research towards a mutual 
goal consistent with the mission of the Agency, where no invention 
currently exists, or
    (2) in accordance with 15 U.S.C. 3710a(b)(3)(C), a Federal 
laboratory may exchange personnel with a non-Federal collaborating party 
for the purposes of developing or commercializing an invention in which 
the Federal government has an ownership interest, including an invention 
made by an employee or former employee while in the employment or 
service of the Federal government, and such personnel exchanged may 
include such employee who is an inventor.
    (i) Funding may be provided under a CRADA by the non-Federal 
collaborating party to the Federal laboratory for the participation of 
the Federal employee in developing or commercializing an invention, 
including costs for salary and other expenses, such as benefits and 
travel.
    (ii) Royalties from inventions received through a license agreement 
negotiated with the Federal laboratory and paid by the Federal 
laboratory to an inventor who is a Federal employee are considered 
Federal compensation.
    (3) Where an employee leaves Federal service in order to receive 
salary or other compensation from a non-Federal organization, a Federal 
laboratory may use reinstatement authority in accordance with 5 CFR 
315.401, or other applicable authorities, to rehire the former Federal 
employee at the conclusion of the exchange.



Sec.  17.5  Personnel exchanges to a Federal laboratory.

    For exchanges in which a Federal laboratory provides funds for the 
non-federal personnel--
    (a) Outside personnel with expertise in scientific commercialization 
may be brought in to a Federal laboratory through the Presidential 
Innovation Fellows program or related programs (see 5 CFR 213.3102(r)) 
for Entrepreneur-In-Residence programs or similar, related programs run 
by the General Services Administration (GSA) or other Federal Agencies.
    (b) A laboratory may engage with the GSA or other relevant Agency to 
transfer funding for exchanged personnel, and may work with such agency 
to select and place Entrepreneurs-In-Residence at the laboratory for the 
purposes of evaluating the laboratory's technologies, and providing 
technical consulting to facilitate readying a technology for 
commercialization by an outside entity.



PART 18_ATTORNEY'S FEES AND OTHER EXPENSES--Table of Contents



                           General Provisions

Sec.

[[Page 169]]

18.1 Purpose of these rules.
18.2 Definitions.
18.3 When the Act applies.
18.4 Proceedings covered.
18.5 Eligibility of applicants.
18.6 Standards for awards.
18.7 Allowable fees and expenses.
18.8 Rulemaking on maximum rates for attorney fees.
18.9 Awards against other agencies.
18.10 Delegations of authority.

                  Information Required from Applicants

18.11 Contents of application.
18.12 Net worth exhibit.
18.13 Documentation of fees and expenses.
18.14 When an application may be filed.

                 Procedures for Considering Applications

18.15 Filing and service of documents.
18.16 Answer to application.
18.17 Reply.
18.18 Comments by other parties.
18.19 Settlement.
18.20 Further proceedings.
18.21 Decision.
18.22 Agency review.
18.23 Judicial review.
18.24 Payment of award.

    Authority: 5 U.S.C. 504(c)(1).

    Source: 47 FR 13510, Mar. 31, 1982, unless otherwise noted.

                           General Provisions



Sec.  18.1  Purpose of these rules.

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



Sec.  18.2  Definitions.

    As used in this part:
    (a) Adversary adjudication means an adjudication under 5 U.S.C. 554 
in which the position of the United States is represented by counsel or 
otherwise, but excludes an adjudication for the purpose of establishing 
or fixing a rate or for the purpose of granting or renewing a license.
    (b) Adjudicative officer means the official, without regard to 
whether the official is designated as an administrative law judge, a 
hearing officer or examiner, or otherwise, who presided at the adversary 
adjudication.



Sec.  18.3  When the Act applies.

    The Act applies to any adversary adjudication pending or commenced 
before the Department on or after August 5, 1985. It also applies to any 
adversary adjudication commenced on or after October 1, 1984, and 
finally disposed of before August 5, 1985, provided that an application 
for fees and expenses, as described in Sec. Sec.  18.11 through 18.14 of 
this part, has been filed with the Department within 30 days after 
August 5, 1985, and to any adversary adjudication pending on or 
commenced on or after October 1, 1981, in which an application for fees 
and other expenses was timely filed and was dismissed for lack of 
jurisdiction.

[53 FR 6798, Mar. 3, 1988]



Sec.  18.4  Proceedings covered.

    (a) The Act applies to adversary adjudications conducted by the 
Department and to appeals of decisions of contracting officers of the 
Department made pursuant to section 6 of the Contract Disputes Act of 
1978 (41 U.S.C. 605) before agency boards of contract appeals as 
provided in section 8 of that Act (41 U.S.C. 607). Adversary 
adjudications conducted by the Department are adjudications under 5 
U.S.C. 554 in which the position of this or any other agency of the 
United States, or any component of an agency, is presented by an 
attorney or other representative who enters an appearance and 
participates in the proceeding. Pursuant to section 8(c) of the Contract 
Disputes Act (41 U.S.C. 607(c)), the Department has arranged for appeals 
from decisions by contracting officers of the Department to be decided 
by the General

[[Page 170]]

Services Administration Board of Contract Appeals. This Board, in 
accordance with its own procedures, shall be responsible for making 
determinations on applications pursuant to the Act relating to appeals 
to the Board from decisions of contracting officers of the Department. 
Such determinations are final, subject to appeal under Sec.  18.23. Any 
proceeding in which the Department may prescribe a lawful present or 
future rate is not covered by the Act. Proceedings to grant or renew 
licenses are also excluded, but proceedings to modify, suspend, or 
revoke licenses are covered if they are otherwise ``adversary 
adjudications.'' The Department proceedings covered are:
    (1) Department-wide. (i) Title VI Civil Rights hearings conducted by 
the Department under 42 U.S.C. 2000d-1 and 15 CFR 8.12(d).
    (ii) Handicap discrimination hearings conducted by the Department 
under 29 U.S.C. 794(a) and 15 CFR 8.12(d).
    (2) National Oceanic and Atmospheric Administration (``NOAA'')
    (i) Proceedings concerning suspension, revocation, or modification 
of a permit or license issued by NOAA.
    (ii) Proceedings to assess civil penalties under any of the statutes 
administered by NOAA.
    (3) International Trade Administration. Enforcement proceedings 
under the AntiBoycott provisions of the Export Administration Act of 
1979, 50 U.S.C. app. 2407.
    (4) Patent and Trademark Office. Disbarment proceedings of attorneys 
and agents under 35 U.S.C. 32.
    (b) The Department may also designate a proceeding not listed in 
paragraph (a) of this section as an adversary adjudication for purposes 
of the Act by so stating in an order initiating the proceeding or 
designating the matter for hearing. The Department's failure to 
designate a proceeding as an adversary adjudication shall not preclude 
the filing of an application by a party who believes the proceeding is 
covered by the Act; whether the proceeding is covered will then be an 
issue for resolution in proceedings on the application.
    (c) If a proceeding includes both matters covered by the Act and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to covered issues.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6798, Mar. 3, 1988]



Sec.  18.5  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 part.
    (b) The types of eligible applicants are as follows:
    (1) An individual with a net worth of not more than $2 million;
    (2) The sole owner of an unincorporated business who has a net worth 
of not more than $7 million, including both personal and business 
interests, and not more than 500 employees;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees; and
    (5) Any other partnership, corporation, association, unit of local 
government, or organization with a net worth of not more than $7 million 
and not more than 500 employees.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
proceeding was initiated.
    (d) An applicant who owns an unincorporated business will be 
considered as an ``individual'' rather than a ``sole owner of an 
unincorporated business'' if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (e) The employees of an applicant include all persons who regularly 
perform services for remuneration for the applicant, under the 
applicant's direction and control. Part-time employees shall be included 
on a proportional basis.
    (f) The net worth and number of employees of the applicant and all 
of its

[[Page 171]]

affiliates shall be aggregated to determine eligibility. Any individual, 
corporation or other entity that directly or indirectly controls or owns 
a majority of the voting shares or other interest of the applicant, or 
any corporation or other entity of which the applicant directly or 
indirectly owns or controls a majority of the voting shares or other 
interest, will be considered an affiliate for purposes of this part, 
unless the adjudicative officer determines 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.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6798, Mar. 3, 1988]



Sec.  18.6  Standards for awards.

    (a) A prevailing applicant may receive an award for fees and 
expenses incurred in connection with a proceeding, or in a significant 
and discrete substantive portion of the proceedings, unless the position 
of the Department over which the applicant has prevailed was 
substantially justified. The position of the Department includes, in 
addition to the position taken by the Department in the adversary 
adjudication, the action or failure to act by the Department upon which 
the adversary adjudication is based. The burden of proof that an award 
should not be made to an eligible prevailing applicant because the 
Department's position was substantially justified is on the agency 
counsel.
    (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.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.7  Allowable fees and expenses.

    (a) Awards will be based on rates customarily charged by persons 
engaged in the business of acting as attorneys, agents and expert 
witnesses, even if the services were made available without charge or at 
a reduced rate to the applicant.
    (b) No award for the fee of an attorney or agent under this rule may 
exceed $75.00 per hour. No award to compensate an expert witness may 
exceed the highest rate at which the Department pays expert witnesses. 
However, an award may also include the reasonable expenses of the 
attorney, agent, or witness as a separate item, if the attorney, agent, 
or witness ordinarily charges clients separately for such expenses.
    (c) In determining the reasonableness of the fee sought for an 
attorney, agent, or expert witness, the adjudicative officer shall 
consider the following:
    (1) If the attorney, agent, or witness is in private practice, his 
or her customary fee for similar services, or, if an employee of the 
applicant, the fully allocated cost of the services;
    (2) The prevailing rate for similar services in the community in 
which the attorney, agent or witness ordinarily performs services;
    (3) The time actually spent in the representation of the applicant;
    (4) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceedings; and
    (5) Such other factors as may bear on the value of the services 
provided.
    (d) The reasonable cost of any study, analysis, engineering report, 
test, project, or similar matter prepared on behalf of a party may be 
awarded, to the extent that the charge for the service does not exceed 
the prevailing rate for similar services, and the study or other matter 
was necessary for preparation of the applicant's case.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]

[[Page 172]]



Sec.  18.8  Rulemaking on maximum rates for attorney fees.

    (a) If warranted by an increase in the cost of living or by special 
circumstances (such as limited availability of attorneys qualified to 
handle certain types of proceedings), the Department may adopt 
regulations providing that attorney fees may be awarded at a rate higher 
than the ceiling set forth in Sec.  18.7(b) in some or all of the types 
of proceedings covered by this part. The Department will conduct any 
rulemaking proceedings for this purpose under the informal rulemaking 
procedures of the Administrative Procedure Act.
    (b) Any person may file with the Department a petition for 
rulemaking to increase the maximum rate for attorney fees. The petition 
should be sent to the General Counsel, Department of Commerce, 14th 
Street and Constitution Avenue, Room 5870, Washington, D.C. 20230. The 
petition should identify the rate the petitioner believes the Department 
should establish and the types of proceedings in which the rate should 
be used. It should also explain fully the reasons why higher rate is 
warranted. The Department will respond to the petition within 60 days 
after it is filed, by initiating a rulemaking proceeding, denying the 
petition, or taking other appropriate action.



Sec.  18.9  Awards against other agencies.

    If an applicant is entitled to an award because it prevailed over 
another agency of the United States that participated in a proceeding 
before the Department and took a position that was not substantially 
justified, the award or an appropriate portion of the award shall be 
made against that agency.



Sec.  18.10  Delegations of authority.

    The Secretary delegates to the General Counsel the authority to take 
final action on matters pertaining to the Act.

                  Information Required from Applicants



Sec.  18.11  Contents of application.

    (a) An application for an award of fees and expenses under the Act 
shall identify the applicant and the proceeding for which an award is 
sought. The application shall show that the applicant has prevailed and 
identify the position of the Department or other agency in the 
proceeding that the applicant alleges was not substantially justified. 
Unless the applicant is an individual, the application shall also state 
the number of employees of the applicant and describe briefly the type 
and purpose of its organization or business.
    (b) The application shall also include a statement that the 
applicant's net worth does not exceed $2 million (if an individual) or 
$7 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)) and 
includes a copy of its charter or articles of incorporation.
    (c) The application shall state the amount of fees and expenses for 
which an award is sought.
    (d) The application may also include any other matters that the 
applicant wishes the adjudicative officer to consider in determining 
whether and in what amount an award should be made.
    (e) The application shall be signed by the applicant or an 
authorized officer or attorney of the applicant. It shall also contain 
or be accompanied by a written verification under oath or

[[Page 173]]

under penalty of perjury that the information provided in the 
application is true and correct.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.12  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.  18.5(f) of this part) when the proceeding was 
initiated. Unless regulations issued by a component of the Department 
establish particular requirements, the exhibit may be in any form 
convenient to the applicant that provides full disclosure of the 
applicant's and its affiliates' assets and liabilities and is sufficient 
to determine whether the applicant qualifies under the standards in this 
part. The adjudicative officer may require an applicant to file 
additional information to determine its eligibility for an award.
    (b) Ordinarily, the net worth exhibit will be included in the public 
record of the proceeding. However, an applicant that objects to public 
disclosure of information in any portion of the exhibit and believes 
there are legal grounds for withholding it from disclosure may submit 
that portion of the exhibit directly to the adjudicative officer in a 
sealed envelope labeled ``Confidential Financial Information,'' 
accompanied by a motion to withhold the information from public 
disclosure. The motion shall describe the information sought to be 
withheld and explain, in detail, why it falls within one or more of the 
specific exemptions from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552(b)(1)-(9), why public disclosure of the 
information would adeversely affect the applicant, and why disclosure is 
not required in the public interest. The material in question shall be 
served on counsel representing the agency against which the applicant 
seeks an award, but need not be served on any other party to the 
proceeding. If the adjudicative officer finds that the information 
should not be withheld from disclosure, it shall be placed in the public 
record of the proceeding. Otherwise, any request to inspect or copy the 
exhibit shall be disposed of in accordance with the Department's 
established procedures under the Freedom of Information Act (15 CFR Part 
4).

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.13  Documentation of fees and expenses.

    The application shall be accompanied by full documentation of the 
fees and expenses, including the cost of any study, analysis, 
engineering report, test, project, or similar matter for which an award 
is sought. A separate itemized statement shall be submitted for each 
professional firm or individual whose services are covered by the 
application, showing the hours spent in connection with the proceeding 
by each individual, a description of the specific services performed, 
the rate at which each fee has been computed, any expenses for which 
reimbursement is sought, the total amount claimed, and the total amount 
paid or payable by the applicant or by any other person or entity for 
the services provided. The adjudicative officer may require the 
applicant to provide vouchers, receipts, or other substantiation for any 
expenses claimed.



Sec.  18.14  When an application may be filed.

    (a) An application may be filed whenever the applicant has prevailed 
in the proceeding or in a significant and discrete substantive portion 
of the proceeding, but in no case later than 30 days after the 
Department's final disposition of the proceeding.
    (b) For purposes of this rule, final disposition means the date on 
which a decision or order disposing of the merits of the proceeding or 
any other complete resolution of the proceeding, such as a settlement or 
voluntary dismissal, becomes final and unappealable, both within the 
agency and to the courts.
    (c) 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.

[[Page 174]]

When the United States appeals the underlying merits of an adversary 
adjudication to a court, no decision on an application for fees and 
other expenses in connection with that adversary adjudication shall be 
made until a final and unreviewable decision is rendered by the court on 
the appeal or until the underlying merits of the case have been finally 
determined pursuant to the appeal.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]

                 Procedures for Considering Applications



Sec.  18.15  Filing and service of documents.

    Any application for an award or other pleading or document related 
to an application shall be filed and served on all parties to the 
proceeding in the same manner as other pleadings in the proceeding, 
except as provided in Sec.  18.12(b) for confidential financial 
information.



Sec.  18.16  Answer to application.

    (a) Within 30 calendar days after service of an application, counsel 
representing the agency against which an award is sought may file an 
answer to the application. Unless agency counsel requests an extension 
of time for filing (an extension for an additional 30 days is available 
as a matter of right) or files a statement of intent to negotiate under 
paragraph (b) of this section, failure to file an answer within the 30 
calendar day period may be treated as a consent to the award requested.
    (b) If agency counsel and the applicant believe that the issues in 
the fee application can be settled, they may jointly file a statement of 
their intent to negotiate a settlement. The filing of this statement 
shall extend the time for filing an answer for an additional 30 days, 
and further extensions may be granted by the adjudicative officer upon 
request by agency counsel and the applicant.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of the agency 
counsel's position. If the answer is based on any alleged facts not 
already in the record of the proceeding, agency counsel shall include 
with the answer either supporting affidavits or a request for further 
proceedings under Sec.  18.20.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.17  Reply.

    Within 15 calendar days after service of an answer, the applicant 
may file a reply. If the reply is based on any alleged facts not already 
in the record of the proceeding, the applicant shall include with the 
reply either supporting affidavits or a request for further proceedings 
under Sec.  18.20.



Sec.  18.18  Comments by other parties.

    Any party to a proceeding other than the applicant and the agency 
counsel may file comments on an application within 30 calendar days 
after it is served or on an answer within 15 calendar days after it is 
served. A commenting party may not participate further in proceedings on 
the application unless the adjudicative officer determines that the 
public interest requires such participation in order to permit full 
exploration of matters raised in the comments.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.19  Settlement.

    The applicant and agency counsel may agree on a proposed settlement 
of the award before final action on the application, either in 
connection with a settlement of the underlying proceeding, or after the 
underlying proceeding has been concluded, in accordance with the 
component agency's standard settlement procedure. If a prevailing party 
and agency counsel agree on a proposed settlement of an award before an 
application has been filed, the application shall be filed with the 
proposed settlement.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.20  Further proceedings.

    (a) Ordinarily, the determination of an award will be made on the 
basis of the written record. However, on request of either the applicant 
or agency counsel, or on his or her own initiative,

[[Page 175]]

the adjudicative officer may order further proceedings, such as an 
informal conference, oral argument, additional written submissions or, 
as to issues other than substantial justification (such as the 
applicant's eligibility or substantiation of fees and expenses), 
pertinent discovery or an evidentiary hearing. Such further proceedings 
shall be held only when necessary for full and fair resolution of the 
issues arising from the application, and shall be conducted as promptly 
as possible. Whether or not the position of the agency was substantially 
justified shall be determined on the basis of the administrative record, 
as a whole, which is made in the adversary adjudication for which fees 
and other expenses are sought.
    (b) A request that the adjudicative officer order further 
proceedings under this section shall specifically identify the 
information sought or the disputed issues and shall explain why the 
additional proceedings are necessary to resolve the issues.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.21  Decision.

    The adjudicative officer shall issue an initial decision on the 
application within 30 calendar days after completion of proceedings on 
the application. The initial decision of the adjudicative officer 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 
Department's position was substantially justified, whether the applicant 
unduly protracted the proceedings, or whether special circumstances make 
an award unjust. If the applicant has sought an award against more than 
one agency, the decision shall allocate responsibility for payment of 
any award made among the agencies, and shall explain the reasons for the 
allocation made.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.22  Agency review.

    Either the applicant or agency counsel may file a petition for 
review of the initial decision on the fee application, or the Department 
may decide to review the decision on its own initiative. The petition 
must be filed with the General Counsel, Office of the Assistant General 
Counsel for Administration, Rm. 5882, U.S. Department of Commerce, 14th 
Street and Pennsylvania Avenue NW., Washington, DC 20230, not later than 
30 calendar days after the initial decision is issued. For purposes of 
this section, a document will be considered filed with the General 
Counsel as of the date of the postmark (or for government penalty mail, 
as shown by a certificate of mailing), if mailed, or if not mailed, as 
of the date actually delivered to the Office of General Counsel. A 
petition for review must be accompanied by a full written statement in 
support thereof, including a precise statement of why the petitioner 
believes the initial decision should be reversed or modified, and proof 
of service upon all parties. A response to the petition may be filed by 
another party to the proceeding and must be filed with the General 
Counsel at the above address not more than 30 calendar days after the 
date of service of the petition for review. The General Counsel may 
request any further submissions deemed helpful in resolving the petition 
for review. If neither the applicant nor agency counsel seeks review and 
the Department does not take review on its own initiative, the initial 
decision on the application shall become a final decision of the 
Department 30 calendar days after it is issued. Whether to review a 
decision is a matter within the discretion of the General Counsel. If 
review is taken, the General Counsel will issue the Department's final 
decision on the application or remand the application to the 
adjudicative officer for further proceedings. The standard of review 
exercised by the General Counsel shall be that which was required for 
the highest level of Departmental review which could have been exercised 
on the underlying covered proceeding.

[53 FR 6799, Mar. 3, 1988]

[[Page 176]]



Sec.  18.23  Judicial review.

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



Sec.  18.24  Payment of award.

    An applicant seeking payment of an award by the Department shall 
submit a copy of the final decision granting the award, accompanied by a 
certification that the applicant will not seek review of the decision in 
the United States courts to the General Counsel, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Room 5870, 
Washington, D.C. 20230. The Department will pay the amount awarded to 
the applicant within 60 calendar days, unless judicial review of the 
award or of the underlying decision of the adversary adjudication has 
been sought by the applicant or any other party to the proceeding.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6800, Mar. 3, 1988]



PART 19_COMMERCE DEBT COLLECTION--Table of Contents



                      Subpart A_General Provisions

Sec.
19.1 What definitions apply to the regulations in this part?
19.2 Why did the Commerce Department issue these regulations and what do 
          they cover?
19.3 Do these regulations adopt the Federal Claims Collection Standards 
          (FCCS)?

             Subpart B_Procedures to Collect Commerce Debts

19.4 What notice will Commerce entities send to a debtor when collecting 
          a Commerce debt?
19.5 How will Commerce entities add interest, penalty charges, and 
          administrative costs to a Commerce debt?
19.6 When will Commerce entities allow a debtor to pay a Commerce debt 
          in installments instead of one lump sum?
19.7 When will Commerce entities compromise a Commerce debt?
19.8 When will Commerce entities suspend or terminate debt collection on 
          a Commerce debt?
19.9 When will Commerce entities transfer a Commerce debt to the 
          Treasury Department's Bureau of the Fiscal Service for 
          collection?
19.10 How will Commerce entities use administrative offset (offset of 
          non-tax Federal payments) to collect a Commerce debt?
19.11 How will Commerce entities use tax refund offset to collect a 
          Commerce debt?
19.12 How will Commerce entities offset a Federal employee's salary to 
          collect a Commerce debt?
19.13 How will Commerce entities use administrative wage garnishment to 
          collect a Commerce debt from a debtor's wages?
19.14 How will Commerce entities report Commerce debts to credit 
          bureaus?
19.15 How will Commerce entities refer Commerce debts to private 
          collection agencies?
19.16 When will Commerce entities refer Commerce debts to the Department 
          of Justice?
19.17 Will a debtor who owes a Commerce or other Federal agency debt, 
          and persons controlled by or controlling such debtors, be 
          ineligible for Federal loan assistance, grants, cooperative 
          agreements, or other sources of Federal funds or for Federal 
          licenses, permits, or privileges?
19.18 How does a debtor request a special review based on a change in 
          circumstances such as catastrophic illness, divorce, death, or 
          disability?
19.19 Will Commerce entities issue a refund if money is erroneously 
          collected on a Commerce debt?

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

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

    Authority: 31 U.S.C. 3701, et seq.

    Source: 81 FR 12811, Mar. 11, 2016, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  19.1  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

[[Page 177]]

debt owed by the person. The term ``administrative offset'' can include, 
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 Bureau of the Fiscal 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.
    Bureau of the Fiscal Service means the Bureau of the Fiscal 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.
    Commerce debt means a debt owed to a Commerce entity by a person.
    Commerce Department means the United States Department of Commerce.
    Commerce entity means a component of the Commerce Department, 
including offices or bureaus. Commerce offices currently include the 
Office of the Secretary of Commerce, and the Office of Inspector 
General. Commerce bureaus currently include the Bureau of Industry and 
Security, the Economics and Statistics Administration (including the 
Bureau of Economic Analysis, and the Bureau of the Census), the Economic 
Development Administration, the International Trade Administration, the 
Minority Business Development Agency, the National Oceanic and 
Atmospheric Administration, the National Telecommunications and 
Information Administration, the U.S. Patent and Trademark Office, and 
the Technology Administration (including the National Institute of 
Standards and Technology, and the National Technical Information 
Service).
    Creditor agency means any Federal agency that is owed a debt.
    Day means calendar day except when express reference is made to 
business day, which reference shall mean Monday through Friday. For 
purposes of time computation, the last day of the period provided will 
be included in the calculation unless that day is a Saturday, a Sunday, 
or a Federal legal holiday; in which case, the next business day will be 
included.
    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'' can include a Commerce debt but 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 Commerce debt means a delinquent debt owed to a Commerce 
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 
Commerce Department or other Federal agency, including a current member 
of the uniformed services, including the Army, Navy, Air Force, Marine 
Corps, Coast Guard, Commissioned Corps of the National Oceanic and 
Atmospheric Administration, and Commissioned Corps of the Public Health 
Service, including the National Guard and the reserve forces of the 
uniformed services.
    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.
    Payment agency or Federal payment agency means any Federal agency 
that transmits payment requests in the form of certified payment 
vouchers, or

[[Page 178]]

other similar forms, to a disbursing official for disbursement. The 
payment agency may be the agency that employs the debtor. In some cases, 
the Commerce 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 under 5 CFR part 5514 by deductions(s) at one or more officially 
established pay intervals from the current pay account of an employee 
without his or her consent.
    Secretary means the Secretary of Commerce.
    Tax refund offset is defined in 31 CFR 285.2(a).



Sec.  19.2  Why did the Commerce Department issue these regulations and
what do they cover?

    (a) Scope. This part provides procedures for the collection of 
Commerce Department debts. This part also provides procedures for 
collection of other debts owed to the United States when a request for 
offset of a payment for which Commerce Department is the payment agency 
is received by Commerce Department from another agency (for example, 
when a Commerce Department employee owes a debt to the United States 
Department of Education).
    (b) Applicability. (1) This part applies to Commerce Department when 
collecting a Commerce Department debt, to persons who owe Commerce 
Department debts, to persons controlled by or controlling persons who 
owe Federal agency debts, and to Federal agencies requesting offset of a 
payment issued by Commerce Department as a payment agency (including 
salary payments to Commerce 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 
section 900.3 of the FCCS, unless the debt is returned by the Department 
of Justice to Commerce Department for handling.
    (3) 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 Commerce entities to recover travel advances by offset 
of up to 100 percent 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 Commerce 
Department enforcement policies differ from the provisions of this part, 
those provisions of law, other regulations, and Commerce Department 
enforcement policies apply to the remission or mitigation of fines, 
penalties, and forfeitures, and to debts arising under the tariff laws 
of the United States, rather than the provisions of this part.
    (c) Additional policies and procedures. Commerce 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, subject to the approval of Deputy Chief 
Financial Officer.
    (d) Duplication not required. Nothing in this part requires a 
Commerce entity to duplicate notices or administrative proceedings 
required by contract, this part, or other laws or regulations, including 
but not limited to those required by financial assistance awards such as 
grants, cooperative agreements, loans or loan guarantees.
    (e) Use of multiple collection remedies allowed. Commerce 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 and appropriate collection remedies. These remedies are not 
listed in any prescribed order to provide Commerce entities with 
flexibility in determining which remedies will be most efficient in 
collecting the particular debt.

[[Page 179]]



Sec.  19.3  Do these regulations adopt the Federal Claims Collection
Standards (FCCS)?

    This part adopts and incorporates all provisions of the FCCS (31 CFR 
Chapter IX parts 900-904). This part also supplements the FCCS by 
prescribing procedures consistent with the FCCS, as necessary and 
appropriate for Commerce Department operations.



             Subpart B_Procedures To Collect Commerce Debts



Sec.  19.4  What notice will Commerce entities send to a debtor when 
collecting a Commerce debt?

    (a) Notice requirements. Commerce entities shall aggressively 
collect Commerce debts. Commerce 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 Commerce debt. The notice(s) 
shall be sent to the debtor at the most current address of the debtor in 
the records of the Commerce entity collecting the Commerce debt. 
Generally, before starting the collection actions described in 
Sec. Sec.  19.5 and 19.9 through 19.17 of this part, Commerce entities 
will send no more than two written notices to the debtor. The notice(s) 
explain why the Commerce debt is owed, the amount of the Commerce debt, 
how a debtor may pay the Commerce debt or make alternate repayment 
arrangements, how a debtor may review non-privileged documents related 
to the Commerce debt, how a debtor may dispute the Commerce debt, the 
collection remedies available to Commerce entities if the debtor refuses 
or otherwise fails to pay the Commerce debt, and other consequences to 
the debtor if the Commerce 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 Commerce debt, and the facts giving 
rise to the Commerce debt;
    (2) How interest, penalties, and administrative costs are added to 
the Commerce 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.  19.5 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 Commerce entity's willingness to discuss alternative payment 
arrangements and how the debtor may enter into a written agreement to 
repay the Commerce debt under terms acceptable to the Commerce entity 
(see Sec.  19.6 of this part);
    (5) The name, address, and telephone number of a contact person or 
office within the Commerce entity;
    (6) The Commerce entity's intention to enforce collection by taking 
one or more of the following actions if the debtor fails to pay or 
otherwise resolve the Commerce debt:
    (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.  19.10 through 19.12 of this part);
    (ii) Private collection agency. Refer the Commerce debt to a private 
collection agency (see Sec.  19.15 of this part);
    (iii) Credit bureau reporting. Report the Commerce debt to a credit 
bureau (see Sec.  19.14 of this part);
    (iv) Administrative wage garnishment. Garnish the individual 
debtor's wages through administrative wage garnishment (see Sec.  19.13 
of this part);
    (v) Litigation. Refer the Commerce debt to the Department of Justice 
to initiate litigation to collect the Commerce debt (see Sec.  19.16 of 
this part);
    (vi) Treasury Department's Bureau of the Fiscal Service. Refer the 
Commerce debt to the Bureau of the Fiscal Service for collection (see 
Sec.  19.9 of this part);
    (7) That Commerce debts over 120 days delinquent must be referred to 
the Bureau of the Fiscal Service for the collection actions described in 
paragraph (a)(6) of this section (see Sec.  19.9 of this part);
    (8) How the debtor may inspect and copy non-privileged records 
related to the Commerce debt;
    (9) How the debtor may request a review of the Commerce entity's 
determination that the debtor owes a Commerce debt and present evidence 
that

[[Page 180]]

the Commerce debt is not delinquent or legally enforceable (see 
Sec. Sec.  19.10(c) and 19.11(c) of this part);
    (10) How a debtor who is an individual may request a hearing if the 
Commerce entity intends to garnish the debtor's private sector (i.e., 
non-Federal) wages (see Sec.  1 9.13(a) of this part), including:
    (i) The method and time period for requesting a hearing;
    (ii) That a request for a hearing, timely filed on or before the 
15th business day following the date of the mailing of the notice, will 
stay the commencement of administrative wage garnishment, but not 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 an individual and a Federal employee 
subject to Federal salary offset may request a hearing (see Sec.  
19.12(e) of this part), including:
    (i) The method and time period for requesting a hearing;
    (ii) That a request for a hearing, timely filed on or before the 
15th day following receipt of the notice, will stay the commencement of 
salary offset, but not other collection procedures;
    (iii) The name and address of the office to which the request for a 
hearing should be sent;
    (iv) That the Commerce entity will refer the Commerce debt to the 
debtor's employing agency or to the Bureau of the Fiscal 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 Commerce 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 Commerce 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 Commerce debt, if 
applicable. See, for example, Sec. Sec.  19.5 and 19.12(f) of this part.
    (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 rights and remedies, if any, 
available to the debtor under programmatic statutory or regulatory 
authority under which the Commerce debt arose.
    (15) That certain debtors and, if applicable, persons controlled by 
or controlling such debtors, may be ineligible for Federal Government 
loans, guaranties and insurance, grants, cooperative agreements or other 
sources of Federal funds (see 28 U.S.C. 3201(e); 31 U.S.C. 3720B, 31 CFR 
285.13, and Sec.  19.17(a) of this part);
    (16) If applicable, the Commerce entity's intention to deny, suspend 
or revoke licenses, permits or privileges (see Sec.  19.17(b) of this 
part); and
    (17) That the debtor should advise the Commerce entity of a 
bankruptcy proceeding of the debtor or another person liable for the 
Commerce debt being collected.
    (b) Exceptions to notice requirements. A Commerce entity may omit 
from a notice to a debtor one or more of the provisions contained in 
paragraphs (a)(6) through (17) of this section if the Commerce 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 Commerce debt.
    (c) Respond to debtors; comply with FCCS. Commerce 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.

[[Page 181]]



Sec.  19.5  How will Commerce entities add interest, penalty charges,
and administrative costs to a Commerce debt?

    (a) Assessment and notice. Commerce entities shall assess interest, 
penalties and administrative costs on Commerce debts in accordance with 
the provisions of 31 U.S.C. 3717 and 31 CFR 901.9. Interest shall be 
charged in accordance with the requirements of 31 U.S.C. 3717(a). 
Penalties shall accrue at a rate of not more than 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 Commerce entity collecting the debt, as directed by 
the Office of the Deputy Chief Financial Officer. Commerce entities may 
have additional policies regarding how interest, penalties, and 
administrative costs are assessed on particular types of debts, subject 
to the approval of the Deputy Chief Financial Officer. Commerce entities 
are required to explain in the notice to the debtor described in Sec.  
19.4 of this part how interest, penalties, costs, and other charges are 
assessed, unless the requirements are included in a contract or other 
legally binding agreement.
    (b) Waiver of interest, penalties, and administrative costs. Unless 
otherwise required by law or contract, Commerce entities may not charge 
interest if the amount due on the Commerce debt is paid within 30 days 
after the date from which the interest accrues. See 31 U.S.C. 3717(d). 
Commerce entities may, with legal counsel approval, waive interest, 
penalties, and administrative costs, or any portion thereof, when it 
would be against equity and good conscience or not in the United States' 
best interest to collect such charges, in accordance with Commerce 
guidelines for such waivers. (See Commerce Department Credit and Debt 
Management Operating Standards and Procedures Handbook, available at 
http://www.osec.doc.gov /ofm/credit /cover.html.)
    (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). Commerce entities may 
suspend accrual of any or all of these charges when accrual would be 
against equity and good conscience or not in the United States' best 
interest, in accordance with Commerce guidelines for such waivers. (See 
Commerce Department Credit and Debt Management Operating Standards and 
Procedures Handbook, available at http://www.osec.doc.gov /ofm/
credit.cover .html.)



Sec.  19.6  When will Commerce entities allow a debtor to pay a Commerce
debt in installments instead of one lump sum?

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



Sec.  19.7  When will Commerce entities compromise a Commerce debt?

    If a Commerce entity cannot collect the full amount of a Commerce 
debt, the Commerce entity may, with legal counsel approval, compromise 
the Commerce debt in accordance with the provisions of 31 CFR part 902 
and the Commerce entity's policies and procedures. (See Commerce 
Department Credit and Debt Management Operating Standards and Procedures 
Handbook, available at http://www.osec.doc.gov /ofm/credit.cover .html.)



Sec.  19.8  When will Commerce entities suspend or terminate debt collection
on a Commerce debt?

    If, after pursuing all appropriate means of collection, a Commerce 
entity determines that a Commerce debt is uncollectible, the Commerce 
entity may, with legal counsel approval, suspend or terminate debt 
collection activity in accordance with the provisions of 31 CFR part 903 
and the Commerce entity's policies and procedures. Termination of debt 
collection activity by a Commerce entity does not discharge the 
indebtedness. (See Commerce Department Credit and Debt Management 
Operating Standards and Procedures Handbook, available at http://
www.osec.doc.gov /ofm/credit/cover.html.)

[[Page 182]]



Sec.  19.9  When will Commerce entities transfer a Commerce debt to the
Treasury Department's Bureau of the Fiscal Service for collection?

    (a) Commerce entities will transfer any Commerce debt that is more 
than 120 days delinquent to the Bureau of the Fiscal Service for debt 
collection services, a process known as ``cross-servicing.'' See 31 
U.S.C. 3711(g), 31 CFR 285.12, and 31 U.S.C. 3716(c)(6). Commerce 
entities may transfer Commerce debts delinquent 120 days or less to the 
Bureau of the Fiscal Service in accordance with the procedures described 
in 31 CFR 285.12. The Bureau of the Fiscal Service takes appropriate 
action to collect or compromise the transferred Commerce debt, or to 
suspend or terminate collection action thereon, in accordance with the 
statutory and regulatory requirements and authorities applicable to the 
Commerce debt and the collection action to be taken. See 31 CFR 
285.12(b) and 285.12(c)(2). Appropriate action can include, but is not 
limited to, contact with the debtor, referral of the Commerce debt to 
the Treasury Offset Program, private collection agencies or the 
Department of Justice, reporting of the Commerce debt to credit bureaus, 
and administrative wage garnishment.
    (b) At least sixty (60) days prior to transferring a Commerce debt 
to the Bureau of the Fiscal Service, Commerce entities will send notice 
to the debtor as required by Sec.  19.4 of this part. Commerce entities 
will certify to the Bureau of the Fiscal Service, in writing, that the 
Commerce debt is valid, delinquent, legally enforceable, and that there 
are no legal bars to collection. In addition, Commerce 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 Bureau of the Fiscal 
Service uses the Treasury Offset Program to collect Commerce 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 
Bureau of the Fiscal 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 
Bureau of the Fiscal 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 Bureau of the 
Fiscal 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.  19.10  How will Commerce entities use administrative offset
(offset of non-tax Federal payments) to collect a Commerce debt?

    (a) Centralized administrative offset through the Treasury Offset 
Program. (1) In most cases, the Bureau of the Fiscal Service uses the 
Treasury Offset Program to collect Commerce debts by the offset of 
Federal payments. See Sec.  19.9(c) of this part. If not already 
transferred to the Bureau of the Fiscal Service under Sec.  19.9 of this 
part, Commerce entities will refer Commerce debt over 120 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). Commerce entities may refer to the 
Treasury Offset Program for offset any Commerce debt that has been 
delinquent for 120 days or less.
    (2) At least sixty (60) days prior to referring a Commerce debt to 
the Treasury Offset Program, in accordance with paragraph (a)(1) of this 
section, Commerce entities will send notice to the debtor in accordance 
with the requirements of Sec.  19.4 of this part. Commerce entities will 
certify to the Bureau of the Fiscal Service, in writing, that the 
Commerce debt is valid, delinquent, legally enforceable, and that there 
are no

[[Page 183]]

legal bars to collection by offset. In addition, Commerce entities will 
certify their compliance with the requirements described in this part.
    (b) Non-centralized administrative offset for Commerce debts. (1) 
When centralized administrative offset through the Treasury Offset 
Program is not available or appropriate, Commerce entities may collect 
past-due, legally enforceable Commerce debts through non-centralized 
administrative offset. See 31 CFR 901.3(c). In these cases, Commerce 
entities may offset a payment internally or make an offset request 
directly to a Federal payment agency. If the Federal payment agency is 
another Commerce entity, the Commerce entity making the request shall do 
so through the Deputy Chief Financial Officer as described in Sec.  
19.20(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, 
Commerce entities will send notice to the debtor in accordance with the 
requirements of Sec.  19.4 of this part. When referring a Commerce debt 
for offset under this paragraph (b), Commerce entities making the 
request will certify, in writing, that the Commerce debt is valid, 
delinquent, legally enforceable, and that there are no legal bars to 
collection by offset. In addition, Commerce 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.  19.4 of 
this part shall explain to the debtor how to request an administrative 
review of a Commerce entity's determination that the debtor owes a 
Commerce debt and how to present evidence that the Commerce debt is not 
delinquent or legally enforceable. In addition to challenging the 
existence and amount of the Commerce debt, the debtor may seek a review 
of the terms of repayment. In most cases, Commerce entities will provide 
the debtor with a ``paper hearing'' based upon a review of the written 
record, including documentation provided by the debtor. Commerce 
entities shall provide the debtor with a reasonable opportunity for an 
oral hearing when the debtor requests reconsideration of the Commerce 
debt and the Commerce entity determines that the question of the 
indebtedness cannot be resolved by review of the documentary evidence, 
for example, when the validity of the Commerce 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 Commerce entities should carefully document all 
significant matters discussed at the hearing. Commerce entities may 
suspend collection through administrative offset and/or other collection 
actions pending the resolution of a debtor's dispute.
    (d) Procedures for expedited offset. Under the circumstances 
described in 31 CFR 901.3(b)(4)(iii), Commerce entities may, with legal 
counsel approval, effect an offset against a payment to be made to the 
debtor prior to sending a notice to the debtor, as described in Sec.  
19.4 of this part, or completing the procedures described in paragraph 
(b)(2) and (c) of this section. Commerce 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. (See Commerce Department Credit and Debt Management 
Operating Standards and Procedures Handbook, available at http://
www.osec.doc.gov /ofm/credit.cover .html.)



Sec.  19.11  How will Commerce entities use tax refund offset to collect
a Commerce debt?

    (a) Tax refund offset. In most cases, the Bureau of the Fiscal 
Service uses the Treasury Offset Program to collect Commerce debts by 
the offset of tax refunds and other Federal payments. See Sec.  19.9(c) 
of this part. If not already transferred to the Bureau of the Fiscal 
Service under Sec.  19.9 of this part, Commerce entities will refer to 
the Treasury Offset Program any past-due, legally enforceable Commerce 
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 Commerce 
debt to the Treasury Offset Program, Commerce entities will send notice 
to the

[[Page 184]]

debtor in accordance with the requirements of Sec.  19.4 of this part. 
Commerce entities will certify to the Bureau of the Fiscal Service's 
Treasury Offset Program, in writing, that the Commerce debt is past due 
and legally enforceable in the amount submitted and that the Commerce 
entities have made reasonable efforts to obtain payment of the Commerce 
debt as described in 31 CFR 285.2(d). In addition, Commerce 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.  19.4 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.  19.10(c) of this part. Commerce entities may suspend 
collection through tax refund offset and/or other collection actions 
pending the resolution of the debtor's dispute.



Sec.  19.12  How will Commerce entities offset a Federal employee's salary
to collect a Commerce debt?

    (a) Federal salary offset. (1) Salary offset is used to collect 
debts owed to the United States by Commerce Department and other Federal 
employees. If a Federal employee owes a Commerce debt, Commerce entities 
may offset the employee's Federal salary to collect the Commerce debt in 
the manner described in this section. For information on how a Federal 
agency other than a Commerce entity may collect debt from the salary of 
a Commerce Department employee, see Sec. Sec.  19.20 and 19.21, subpart 
C, of this part.
    (2) Nothing in this part requires a Commerce entity to collect a 
Commerce 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) Commerce entities may use the administrative wage garnishment 
procedure described in Sec.  19.13 of this part to collect a Commerce 
debt from an individual's non-Federal wages.
    (b) Centralized salary offset through the Treasury Offset Program. 
As described in Sec.  19.9(a) of this part, Commerce entities will refer 
Commerce debts to the Bureau of the Fiscal Service for collection by 
administrative offset, including salary offset, through the Treasury 
Offset Program. When possible, Commerce entities should attempt salary 
offset through the Treasury Offset Program before applying the 
procedures in paragraph (c) of this section. See 5 CFR 550.1108 and 
550.1109.
    (c) Non-centralized salary offset for Commerce debts. When 
centralized salary offset through the Treasury Offset Program is not 
available or appropriate, Commerce entities may collect delinquent 
Commerce debts through non-centralized salary offset. See 5 CFR 
550.1109. In these cases, Commerce 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 Commerce debt owed by a 
Federal employee. If the Federal payment agency is another Commerce 
entity, the Commerce entity making the request shall do so through the 
Deputy Chief Financial Officer as described in Sec.  19.20(c) of this 
part. At least thirty (30) days prior to offsetting internally or 
requesting a Federal agency to offset a salary payment, Commerce 
entities will send notice to the debtor in accordance with the 
requirements of Sec.  19.4 of this part. When referring a Commerce debt 
for offset, Commerce entities will certify to the payment agency, in 
writing, that the Commerce debt is valid, delinquent and legally 
enforceable in the amount stated, and there are no legal bars to 
collection by salary offset. In addition, Commerce 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. Commerce entities are not 
required to provide prior notice to an employee when the following 
adjustments are made by a Commerce entity to a Commerce employee's pay:

[[Page 185]]

    (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 Commerce 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 Commerce debt will be 
collected by means of salary offset may request a hearing concerning the 
existence or amount of the Commerce 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.  19.4. See Sec.  19.4(a)(11). The request must be received by the 
designated office on or before the 15th 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. See 31 CFR 901.3(a)(7).
    (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, 
Commerce 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. Commerce entities must obtain the services of 
a hearing official who is not under the supervision or control of the 
Secretary. Commerce entities may contact the Deputy Chief Financial 
Officer as described in Sec.  19.20(c) of this part or an agent of any 
Commerce 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 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;

[[Page 186]]

    (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. See 31 CFR 901.3(a)(7).
    (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 
Commerce debt as described in the notice of intent to offset. If the 
Commerce 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. Commerce entities will have the initial burden 
to prove the existence and amount of the Commerce debt. Thereafter, if 
the employee disputes the existence or amount of the Commerce debt, the 
employee must prove by a preponderance of the evidence that no such 
Commerce debt exists or that the amount of the Commerce 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 Commerce 
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. See 31 CFR 901.3(a)(7).
    (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 Commerce 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 Commerce entity shall waive 
interest and penalties applied to the Commerce 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 Commerce 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. Commerce 
entities may grant such waivers when it would be against equity and good 
conscience or not in the United States' best interest to collect such 
Commerce debts, in accordance with those authorities, 5 CFR 
550.1102(b)(2), and Commerce policies and procedures. (See Commerce 
Department Credit and Debt Management Operating Standards and Procedures 
Handbook, available at http://www.osec.doc.gov /ofm/credit/cover .html.)
    (g) Salary offset process--(1) Determination of disposable pay. The 
Deputy Chief Financial Officer will consult with the appropriate 
Commerce entity payroll office to determine the amount of a Commerce 
Department employee's disposable pay (as defined in Sec.  19.1 of this 
part) and will implement salary offset when requested to do so by a 
Commerce entity, as described in paragraph (c) of this section, or 
another agency, as described in Sec.  19.20 of this part. If the debtor 
is not employed by Commerce Department, the agency employing the

[[Page 187]]

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 Commerce debt is equal to or less than 15 
percent of the disposable pay, such Commerce 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 Commerce 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 
Commerce entity has requested salary offset, the payment agency must 
certify the total amount of its collection and notify the Commerce 
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 Commerce debt, the amount of the Commerce debt, 
and that the Commerce entity has complied with the provisions of this 
section. Commerce 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, 
Commerce 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 Commerce debt. Generally, Commerce entities will 
collect such monies through the Treasury Offset Program as described in 
Sec.  19.9(c) of this part.
    (3) When an employee transfers to another agency, Commerce entities 
should resume collection with the employee's new payment agency in order 
to continue salary offset.



Sec.  19.13  How will Commerce entities use administrative wage 
garnishment to collect a Commerce debt from a debtor's wages?

    (a) Commerce entities are authorized to collect Commerce debts from 
an individual 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). Commerce entities may 
use administrative wage garnishment to collect a delinquent Commerce 
debt unless the debtor is making timely payments under an agreement to 
pay the Commerce debt in installments (see Sec.  19.6 of this part). At 
least thirty (30) days prior to initiating an administrative wage 
garnishment, Commerce entities will send notice to the debtor in 
accordance with the requirements of Sec.  19.4 of this part, including 
the requirements of Sec.  19.4(a)(10) of this part. For Commerce debts 
referred to the Bureau of the Fiscal Service under Sec.  19.9 of this 
part, Commerce entities may authorize the Bureau of the Fiscal Service 
to send a notice informing the debtor that administrative wage 
garnishment will be

[[Page 188]]

initiated and how the debtor may request a hearing as described in Sec.  
19.4(a)(10) of this part. If a debtor makes a timely request for 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). 
Even if a debtor's hearing request is not timely, Commerce 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 Commerce entities collect Commerce debts from the 
salaries of Federal employees (see Sec.  19.12 of this part).



Sec.  19.14  How will Commerce entities report Commerce debts to credit
bureaus?

    Commerce entities shall report delinquent Commerce 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 Non-tax Receivables.'' For 
additional information, see Bureau of the Fiscal Service's ``Guide to 
the Federal Credit Bureau Program,'' available at https://
www.fiscal.treasury .gov/fsreports/fs_ reference.htm. At least sixty 
(60) days prior to reporting a delinquent Commerce debt to a consumer 
reporting agency, Commerce entities will send notice to the debtor in 
accordance with the requirements of Sec.  19.4 of this part. Commerce 
entities may authorize the Bureau of the Fiscal Service to report to 
credit bureaus those delinquent Commerce debts that have been 
transferred to the Bureau of the Fiscal Service under Sec.  19.9 of this 
part.



Sec.  19.15  How will Commerce entities refer Commerce debts to private
collection agencies?

    Commerce entities will transfer delinquent Commerce debts to the 
Bureau of the Fiscal Service to obtain debt collection services provided 
by private collection agencies. See Sec.  19.9 of this part.



Sec.  19.16  When will Commerce entities refer Commerce debts to the
Department of Justice?

    (a) Compromise or suspension or termination of collection activity. 
Commerce entities shall refer Commerce 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 Commerce debt or suspension or termination of collection activity. See 
Sec. Sec.  19.7 and 19.8 of this part; 31 CFR 902.1; 31 CFR 903.1.
    (b) Litigation. Commerce entities shall promptly refer to the 
Department of Justice for litigation delinquent Commerce 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. 
Commerce entities may authorize the Bureau of the Fiscal Service to 
refer to the Department of Justice for litigation those delinquent 
Commerce debts that have been transferred to the Bureau of the Fiscal 
Service under Sec.  19.9 of this part.



Sec.  19.17  Will a debtor who owes a Commerce or other Federal agency
debt, and persons controlled by or controlling such debtors, be ineligible
for Federal loan assistance, grants, cooperative agreements, or other 
sources of Federal funds or for Federal licenses, permits, or 
privileges?

    (a) Delinquent debtors are ineligible for and barred from obtaining 
Federal loans or loan insurance or guaranties. As required by 31 U.S.C. 
3720B and 31 CFR 901.6, Commerce 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. Commerce 
Department may issue standards under which Commerce Department may 
determine that persons controlled by or controlling such delinquent 
debtors are similarly ineligible in accordance with 31 CFR 285.13(c)(2). 
This prohibition does not apply to disaster loans. Commerce entities may 
extend credit after the delinquency has been resolved. See 31 CFR 
285.13. Waivers of ineligibility may be granted by the

[[Page 189]]

Secretary or designee on a person by person basis in accordance with 31 
CFR 285.13(g). However, such authority may not be delegated below the 
Deputy Chief Financial Officer.
    (b) A debtor who has a judgment lien against the debtor's property 
for a debt to the United States is not eligible to receive grants, loans 
or funds directly or indirectly from the United States until the 
judgment is paid in full or otherwise satisfied. This prohibition does 
not apply to funds to which the debtor is entitled as beneficiary. 
Commerce Department may promulgate regulations to allow for waivers of 
this ineligibility. See 28 U.S.C. 3201(e).
    (c) Suspension or revocation of eligibility for licenses, permits, 
or privileges. Unless prohibited by law, Commerce entities with the 
authority to do so under the circumstances should deny, suspend or 
revoke licenses, permits, or other privileges for any inexcusable or 
willful failure of a debtor to pay a debt. The Commerce entity 
responsible for distributing the licenses, permits, or other privileges 
will establish policies and procedures governing suspension and 
revocation for delinquent debtors. If applicable, Commerce entities will 
advise the debtor in the notice required by Sec.  19.4 of this part of 
the Commerce entities' ability to deny, suspend or revoke licenses, 
permits or privileges. See Sec.  19.4(a)(16) of this part.
    (d) To the extent that a person delinquent on a Commerce debt is not 
otherwise barred under Sec.  19.17(a) and Sec.  19.17 (c) of this part 
from becoming or remaining a recipient of a Commerce Department grant or 
cooperative agreement, it is Commerce Department policy that no award of 
Federal funds shall be made to a Commerce Department grant or 
cooperative agreement applicant who has an outstanding delinquent 
Commerce debt until:
    (1) The delinquent Commerce debt is paid in full,
    (2) A negotiated repayment schedule acceptable to Commerce 
Department is established and at least one payment is received, or
    (3) Other arrangements satisfactory to Commerce Department are made.



Sec.  19.18  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 Commerce 
debt may, at any time, request a special review by the applicable 
Commerce 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 (e.g., 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;
    (7) Exceptional expenses, if any; and
    (8) Any additional materials and information that the Commerce 
entity may request relating to ability or inability to pay the amount(s) 
currently required.
    (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 Commerce 
entity collecting the Commerce debt, with supporting documents, showing 
why the current offset, garnishment or repayment schedule imposes an 
extreme financial hardship on the debtor. The Commerce 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 Commerce entity shall notify the 
debtor in writing of such determination, including, if appropriate, a 
revised offset, garnishment, or payment schedule. If

[[Page 190]]

the special review results in a revised offset, garnishment, or 
repayment schedule, the Commerce entity will notify the appropriate 
Federal agency or other persons about the new terms.



Sec.  19.19  Will Commerce entities issue a refund if money is erroneously
collected on a Commerce debt?

    Commerce entities shall promptly refund to a debtor any amount 
collected on a Commerce debt when the Commerce 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 Commerce Department Payments To 
              Collect Debts Owed to Other Federal Agencies



Sec.  19.20  How do other Federal agencies use the offset process to collect
debts from payments issued by a Commerce entity?

    (a) Offset of Commerce entity payments to collect debts owed to 
other Federal agencies. (1) In most cases, Federal agencies submit debts 
to the Treasury Offset Program to collect delinquent debts from payments 
issued by Commerce 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 Commerce entity (when acting 
as a ``payment agency'') to collect a debt owed to such agency by 
offsetting funds payable to a debtor by the Commerce entity, including 
salary payments issued to Commerce entity employees. This section and 
Sec.  19.21 of this subpart C apply when a Federal agency asks a 
Commerce entity to offset a payment issued by the Commerce entity to a 
person who owes a debt to the United States.
    (2) This subpart C does not apply to Commerce debts. See Sec. Sec.  
19.10 through 19.12 of this part for offset procedures applicable to 
Commerce debts.
    (3) This subpart C does not apply to the collection of non-Commerce 
debts through tax refund offset. See 31 CFR 285.2 for tax refund offset 
procedures.
    (b) Administrative offset (including salary offset); certification. 
A Commerce entity will initiate a requested offset 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 Department of Commerce, 
ATTN: Deputy Chief Financial Officer, 1401 Constitution Avenue NW., Room 
D200, Washington, DC 20230. The Deputy Chief Financial Officer will 
forward the request to the appropriate Commerce entity for processing in 
accordance with this subpart C.
    (d) Incomplete certification. A Commerce 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 
Commerce entity.
    (e) Review. A Commerce 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 Commerce entities will not comply with offset request. A 
Commerce entity will comply with the offset request of another agency 
unless the Commerce 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 Commerce 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

[[Page 191]]

should be collected by offset simultaneously.
    (h) Priority of debts owed to Commerce entity. For purposes of this 
section, debts owed to a Commerce entity generally take precedence over 
debts owed to other agencies. The Commerce 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 Commerce entity. The Commerce 
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.  19.21  What does a Commerce entity do upon receipt of a request to 
offset the salary of a Commerce entity employee to collect a debt owed by
the employee to another Federal agency?

    (a) Notice to the Commerce employee. When a Commerce entity receives 
proper certification of a debt owed by one of its employees, the 
Commerce entity will begin deductions from the employee's pay at the 
next officially established pay interval. The Commerce 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 Commerce employee's salary. The amount 
deducted under Sec.  19.20(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 percent of the debtor's disposable pay. Deductions shall continue 
until the Commerce 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.  19.12(g) (salary offset process).
    (c) When the debtor is no longer employed by the Commerce entity--
(1) Offset of final and subsequent payments. If a Commerce entity 
employee retires or resigns or if his or her employment ends before 
collection of the debt is complete, the Commerce entity will continue to 
offset, under 31 U.S.C. 3716, up to 100 percent of an employee's 
subsequent payments until the debt is paid or otherwise resolved. Such 
payments include a debtor's final salary payment, lump-sum leave 
payment, and other payments payable to the debtor by the Commerce 
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 Commerce entity before the debt is paid in full, the Commerce entity 
will certify to the creditor agency the total amount of its collection. 
If the Commerce 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 Commerce 
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.  19.9(c) of this part.
    (3) Notice to the debtor. The Commerce 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 Commerce entity will notify 
the creditor agency and will certify the total amount of its collection 
on the debt. The Commerce 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 Commerce 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.

[[Page 192]]

    (e) Request for hearing official. A Commerce entity will provide a 
hearing official upon the creditor agency's request with respect to a 
Commerce entity employee. See 5 CFR 550.1107(a).



PART 20_NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS OR ACTIVITIES
RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                            Subpart A_General

Sec.
20.1 The purpose of DOC's age discrimination regulations.
20.2 Programs or activities to which these regulations apply.
20.3 Definitions.

         Subpart B_Standards for Determining Age Discrimination

20.4 Rules against age discrimination.
20.5 Exceptions to the rules.
20.6 Burden of proof.

              Subpart C_Responsibilities of DOC Recipients

20.7 General responsibilities.
20.8 Notice to subrecipients.
20.9 Information requirements.

    Subpart D_Investigation, Conciliation, and Enforcement Procedures

20.10 Compliance reviews.
20.11 Complaints.
20.12 Mediation.
20.13 Investigation.
20.14 Prohibition against intimidation or retaliation.
20.15 Compliance procedure.
20.16 Hearings, decisions, post-termination proceedings.
20.17 Remedial action by recipients.
20.18 Alternative funds disbursal procedure.
20.19 Private lawsuits after exhaustion of administrative remedies.

    Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 
sec. 6101 et seq. and the government-wide regulations implementing the 
Act, 45 CFR Part 90.

    Source: 51 FR 28926, Aug. 13, 1986, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 20 appear at 68 FR 
51355, Aug. 26, 2003.



                            Subpart A_General



Sec.  20.1  The purpose of DOC's age discrimination regulations.

    The purpose of these regulations is to set out DOC'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 or activities, 
and recipients of Federal funds, to continue to use age distinctions and 
factors other than age which meet the requirements of the Act and its 
implementing regulations.



Sec.  20.2  Programs or activities to which these regulations apply.

    (a) The Act and these regulations apply to each DOC recipient and to 
each program or activity operated by the recipient which receives 
Federal financial assistance provided by any entity of DOC.
    (b) The Act and these regulations 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 which:
    (i) Provides benefits or assistance to persons based on age; or
    (ii) Establishes criteria for participation in age-related terms; or
    (iii) Describes intended beneficiaries or target groups in age-
related terms.
    (2) Any employment practice or any employer, employment agency, 
labor organization, or any labor-management joint apprenticeship 
training program, except for any program or activity receiving Federal 
financial assistance for public service employment.



Sec.  20.3  Definitions.

    As used in these regulations, the following terms are defined as 
follows:
    (a) Act means the Age Discrimination Act of 1975, as amended (Title 
III of Pub. L. 94-135).
    (b) Action means any act, activity, policy, rule, standard, or 
method of administration; or the use of any policy,

[[Page 193]]

rule, standard, or method of administration.
    (c) Age means how old a person is, or the number of years from the 
date of a person's birth.
    (d) Age distinction means any action using age or an age-related 
term.
    (e) Age-related term means a word or words which necessarily imply a 
particular age or range of ages (for example: ``children,'' ``adult,'' 
``older persons,'' but not ``student'').
    (f) Agency means a Federal department or agency that is empowered to 
extend financial assistance.
    (g) DOC means the U.S. Department of Commerce.
    (h) 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 
the agency provides or otherwise makes available 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 of 
property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced considerations; 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.
    (i) Normal operation means the operation of a program or activity 
without significant changes that would impair its ability to meet its 
objectives.
    (j) Program or activity means all of the operations of any entity 
described in paragraphs (j)(1) through (4) of this section, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (j)(1),(2), or (3) of this section.
    (k) Recipient means any State or its political subdivision, any 
instrumentality of a State or its political sub-division, 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.
    (l) Secretary means the Secretary of Commerce or his or her 
designee.
    (m) 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.
    (n) 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.
    (o) United States means the fifty States, the District of Columbia, 
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the 
Canal

[[Page 194]]

Zone, the Northern Marianas, and the territories and possessions of the 
United States.

[51 FR 28926, Aug. 13, 1986, as amended at 68 FR 51354, Aug. 26, 2003]



         Subpart B_Standards for Determining Age Discrimination



Sec.  20.4  Rules against age discrimination.

    The rules stated in this section are limited by the exceptions 
contained in Sec.  20.5.
    (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 which 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) The specific forms of age discrimination listed in paragraph (b) 
of this section do not necessarily constitute a complete list.
    (d) If a recipient operating 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.  20.5.



Sec.  20.5  Exceptions to the rules.

    (a) Normal operations or statutory objective of any program or 
activity. A recipient is permitted to take an action otherwise 
prohibited by Sec.  20.4 if the action reasonably considers age as a 
factor necessary to the normal operation or the achievement of any 
statutory objective of a program or activity. An action meets this 
standard if:
    (1) Age is used as a measure or approximation of one or more other 
characteristics; and
    (2) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective or the program or activity; and
    (3) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (4) The other characteristic(s) are impractical to measure directly 
on an individual bases.
    (b) Reasonable factors other than age. A recipient is permitted to 
take an action otherwise prohibited by Sec.  20.4 which 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.  20.6  Burden of proof.

    The burden of proving that an age distinction or other action falls 
within the exceptions outlined in Sec.  20.5 is on the recipient of 
Federal financial assistance.



              Subpart C_Responsibilities of DOC Recipients



Sec.  20.7  General responsibilities.

    Each DOC recipient has primary responsibility to ensure that its 
programs or activities are in compliance with the Act, the general 
regulations, and these regulations, and shall take steps to eliminate 
violation of the Act.
    (a) Each DOC recipient will provide an assurance that the program or 
activity for which it is receiving Federal financial assistance will be 
conducted in compliance with all requirements for the Act and these and 
other DOC regulations. A recipient also has responsibility to maintain 
records, provide information, and to afford DOC

[[Page 195]]

reasonable access to its records and facilities to the extent necessary 
to determine whether it is in compliance with the Act and these 
regulations.
    (b) Recipient assessment of age distinctions. (1) To assess the 
recipient's compliance with the Act, DOC may, as part of a compliance 
review under Sec.  20.10 or a complaint investigation under Sec.  20.11, 
require a recipient employing the equivalent or 15 or more employees, to 
complete, in a manner specified by the responsible Department official, 
a written self-evaluation of any age distinction imposed in its program 
or activity receiving Federal financial assistance from DOC.
    (2) Whenever an assessment indicates a violation of the Act and the 
DOC regulations, the recipient shall take corrective action.



Sec.  20.8  Notice to subrecipients.

    Where a recipient passes on Federal financial assistant from DOC to 
subrecipients, the recipient shall give subrecipients written notice of 
their obligations under the Act and these regulations.



Sec.  20.9  Information requirements.

    Upon DOC's request, each recipient shall provide access and make 
information available for DOC to determine whether the recipient is 
complying with the Act and these regulations.



    Subpart D_Investigation, Conciliation, and Enforcement Procedures



Sec.  20.10  Compliance reviews.

    (a) DOC 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. DOC may conduct such review 
even in the absence of a complaint against a recipient. The review may 
be as comprehensive as necessary to determine whether a violation of the 
Act and these regulations has occurred.
    (b) If a compliance review of pre-award review indicates a violation 
of the Act or these regulations, DOC will attempt to achieve voluntary 
compliance with the Act. If voluntary compliance cannot be achieved, DOC 
will arrange for enforcement as described in Sec.  20.15.



Sec.  20.11  Complaints.

    (a) Any person, individually, or as a member of a class, or on 
behalf of others, may file a complaint with DOC 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, DOC may 
extend this time limit.
    (b) DOC will attempt to facilitate the filing of complaints wherever 
possible, including taking the following measures:
    (1) Accepting as a sufficient complaint, any written statement 
which: identifies the parties involved 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;
    (3) Considering as the filing date, the date on which a complaint is 
sufficient to be processed;
    (4) Notifiying the complainant and the recipient of their rights and 
obligations under the compliant procedure, including the right to have a 
representative at all stages of the process;
    (5) Notifying the complainant and the recipient (or their 
representatives) of their right to contact DOC for information and 
assistance regarding the complaint resolution process.
    (c) DOC will return to the complainant any complaint outside the 
jurisdiction of these regulations, and will state the reason(s) why it 
is outside the jurisdiction of these regulations.



Sec.  20.12  Mediation.

    (a) DOC will refer to a mediation service designated by the 
Secretary all sufficient complaints that:
    (1) Fall within the jurisdiction of the Act and these regulations, 
unless the

[[Page 196]]

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 to 
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 DOC. DOC will take no further action on the complaint 
unless the complainant or the recipient fails to comply with the 
agreement.
    (d) The mediator is required to protect the confidentiality of all 
information obtained in the course of the mediation process. No mediator 
shall testify in any adjudicative proceeding, produce any document, or 
otherwise disclose any information obtained, in the course of the 
mediation process without prior approval of the head or the mediation 
service.
    (e) The mediation will proceed for a maximum of 60 days after a 
complaint is filed with DOC. Mediation ends if:
    (1) 60 days elapse from the time DOC receives the complaint; or
    (2) Prior to the end of that 60-day period, an agreement is reached; 
or
    (3) Prior to the end of that 60-day period, the mediator determines 
that an agreement cannot be reached.
    (f) The mediator shall return unresolved complaints to DOC.



Sec.  20.13  Investigation.

    (a) Informal investigation:
    (1) DOC will investigate complaints that are unresolved after 
mediation or are reopended because of a violation of a mediation 
agreement.
    (2) As part of the initial investigation, DOC will use informal 
factfinding 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. DOC may seek the assistance of any involved State agency.
    (3) DOC will put any agreement in writing and have it signed by the 
parties and an authorized offical at DOC.
    (4) The settlement shall not affect the operation of any other 
enforcement effort of DOC, including compliance reviews and 
investigation or other complaints which may involve the recipient.
    (5) The settlement is not a finding of discrimination against a 
recipient.
    (b) Formal investigation: If DOC 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, DOC will attempt to obtain 
voluntary compliance. If DOC cannot obtain voluntary compliance, it will 
begin enforcement as described in Sec.  8a.15.



Sec.  20.14  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 DOC's investigation, conciliation, and enforcement process.



Sec.  20.15  Compliance procedure.

    (a) DOC may enforce the Act and these regulations by:
    (1) Terminating the Federal financial assistance to the recipient 
under the program or activity found to have 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. If a case is settled during 
mediation, or prior to hearing, Federal financial assistance to the 
program or activity will not be terminated.
    (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.

[[Page 197]]

    (ii) Use of any requirement of or referral to any Federal, State, or 
local government agency that will have the effect of correcting a 
violation of the Act or these regulations.
    (b) DOC will limit any termination under this section to the 
particular recipient and particular program or activity or part of such 
program or activity DOC finds in violation of these regulations. DOC 
will not base any part of a termination on a finding with respect to any 
program or activity of the recipient which does not receive Federal 
financial assistance from DOC.
    (c) DOC will take no action under paragraph (a) until:
    (1) The head of the organization providing the financial assistance 
has advised the recipient of its failure to comply with the Act 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 the Congress having legislative jurisdiction over the program or 
activity involved. The Secretary will file a report whenever any action 
is taken under paragraph (a).
    (d) DOC also may defer granting new Federal financial assistance to 
a recipient when a hearing under Sec.  20.16 is initiated.
    (1) New Federal financial assistance from DOC includes all 
assistance for which DOC 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 DOC does not include increases in funding as a result of changed 
computation of formula awards or assistance approved prior to the 
beginning of a hearing under Sec.  20.16.
    (2) DOC will not begin a deferral until the recipient has received a 
notice of an opportunity for a hearing under Sec.  20.16. DOC 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 head of the 
organization providing Federal financial assistance. DOC 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) DOC will limit any deferral to the particular recipient and 
particular program or activity or part of such program or activity DOC 
finds in violation of these regulations. DOC will not base any part of a 
deferral on a finding with respect to any program or activity of the 
recipient which does not, and would not in connection with the new 
funds, receive Federal financial assistance for DOC.



Sec.  20.16  Hearings, decisions, post-termination proceedings.

    Certain DOC procedural provisions applicable to Title VI of the 
Civil Rights Act of 1964 apply to DOC enforcement of these regulations. 
They are found in 15 CFR Part 8, Sec.  8.12 and Sec.  8.13.



Sec.  20.17  Remedial action by recipients.

    (a) Where DOC finds that a recipient has discriminated on the basis 
of age, the recipient shall take any remedial action that DOC may 
require to overcome the effects of the discrimination. If another 
recipient exercises control over the recipient that has discriminated, 
DOC may require both recipients to take remedial action.
    (b) 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.  20.18  Alternative funds disbursal procedure.

    (a) When, under the provisions of these regulations, DOC terminates 
the funding of a recipient, the Secretary may, using undisbursed funds 
from the terminated award, make a new award to an alternate recipient, 
i.e. 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

[[Page 198]]

    (2) The ability to achieve the goals of the Federal statute 
authorizing the Federal financial assistance.



Sec.  20.19  Private lawsuits after 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 DOC has made no finding with regard to the complaint; or
    (2) DOC issues any finding in favor of the recipient.
    (b) If DOC fails to make a finding within 180 days or issues a 
finding in favor of recipient, DOC shall:
    (1) Promptly advise the complainant of this fact; and
    (2) Advise the complainant of his or her right to bring civil action 
for injunctive relief; and
    (3) Inform the complainant that:
    (i) The complainant may bring a civil action only in a United States 
district court for the district in which the recipient is located or 
transacts business;
    (ii) A complainant prevailing in a civil action has the right to be 
awarded the costs of the action, including reasonable attorney's fees, 
but that the complainant must demand these costs in the complaint;
    (iii) Before commencing the action, the complainant shall give 30 
days notice by registered mail to the Secretary, the Attorney General of 
the United States, and the recipient;
    (iv) The notice shall contain 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) 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.

                         PARTS 21	22 [RESERVED]



PART 23_USE OF PENALTY MAIL IN THE LOCATION AND RECOVERY OF MISSING
CHILDREN--Table of Contents



Sec.
23.1 Purpose.
23.2 Contact person.
23.3 Plan.
23.4 Cost and percentage estimates.
23.5 Report to the Office of Juvenile Justice and Delinquency 
          Prevention.
23.6 Definitions.
23.7 Notice to Department of Commerce organizational units of 
          implementation and procedures.

    Authority: 39 U.S.C. 3220(a)(2); 5 U.S.C. 301.

    Source: 51 FR 46614, Dec. 24, 1986, unless otherwise noted.



Sec.  23.1  Purpose.

    These regulations are intended to comply with 39 U.S.C. 3220(a)(2), 
and the Office of Juvenile Justice and Delinquency Prevention (OJJDP) 
guidelines (50 FR 46622), to assist in the location and recovery of 
missing children through the use of penalty mail.



Sec.  23.2  Contact person.

    Tim Coss, Office of Administrative Services Operations, U.S. 
Department of Commerce (H2063), 14th and Constitution Ave., NW., 
Washington, DC 20230, Telephone (202) 377-2108.



Sec.  23.3  Plan.

    (a) The Department of Commerce will supplement and expand the 
national effort to assist in the location and recovery of missing 
children through the economical use of missing children information in 
domestic penalty mail directed to the public and Federal employees.
    (b) The Department of Commerce may include, on or inside authorized 
types of penalty mail, pictures and biographical data related to missing 
children, provided such use is determined to be cost effective. The 
authorized types of penalty mail include:
    (1) All envelopes; and
    (2) Self-mailer publications (newsletters, bulletins, etc.) with a 
shelf-life of no more than 90 days.
    (c) The manner in which pictures and biographical data may be used 
includes:

[[Page 199]]

    (1) Printing on envelopes at the time they are initially printed 
with the United States Postal Service (USPS) required postal code 
identification;
    (2) Printed inserts that are placed in envelopes along with other 
mailing material;
    (3) Stickers that are printed and placed on envelopes prior to 
mailing; and
    (4) Printing as part of the content of self-mailers such as bureau 
newsletters, bulletins, etc.
    (d) Missing children information will not be placed on letter-size 
envelopes in the areas described as the ``Penalty Indicia Area,'' ``OCR 
Read Area,'' ``Bar Code Read Area,'' and ``Return Address Area'' per 
Appendix A of the OJJDP guidelines.
    (e) The National Center for Missing and Exploited Children (National 
Center) will be the sole source from which the Department of Commerce 
will obtain the camera-ready and other photographic and biographical 
materials for use by organizational units. Photographs which were 
reasonably current as of the time of the child's disappearance shall be 
the only acceptable form of visual media or pictorial likeness used on 
or in penalty mail.
    (f) The Department of Commerce will remove all printed penalty mail 
envelopes and other materials from circulation or other use (i.e., use 
or destroy) within 90 days of notification by the National Center of the 
need to withdraw penalty mail envelopes and other materials related to a 
particular child from circulation. The Department of Commerce will not 
include missing children information on blank pages or covers of items 
such as those to be included in the Superintendent of Documents' Sales 
Program, or to be distributed to Depository Libraries, as such material 
generally could not be withdrawn from use within 90 days of 
notification. The National Center will be responsible for immediately 
notifying the Department Contact Person, in writing, of the need to 
withdraw from circulation penalty mail envelopes and other materials 
related to a particular child.
    (g) The Department of Commerce will give priority:
    (1) To penalty mail that is addressed to the public for receipt in 
the United States, its territories and possessions; and
    (2) To inter- and intra-agency publications and other media that 
will be widely disseminated to and viewed by Federal employees.
    (h) All suggestions and/or recommendations for innovative, cost-
effective techniques should be forwarded to the Department Contact 
Person. The Department Contact Person shall conduct biannual meetings of 
departmental representatives to discuss the current plan and 
recommendations for future plans.
    (i) This shall be the sole regulation implementing this program for 
the Department of Commerce.



Sec.  23.4  Cost and percentage estimates.

    It is estimated that this program will cost the Department of 
Commerce $39,530 in the first year. It is the Department of Commerce's 
estimate that 9% of its penalty mail will transmit missing children 
photographs and information when the program is fully implemented.



Sec.  23.5  Report to the Office of Juvenile Justice and Delinquency 
Prevention.

    The Department of Commerce will compile and submit a consolidated 
report to OJJDP, by June 30, 1987, on its experience in implementation 
of 39 U.S.C. 3220(a) (2), the OJJDP guidelines, and the Department of 
Commerce's regulation. This report will cover the period from December 
24, 1986 through March 31, 1987, and provide detail on:
    (a) The Department of Commerce's experience in implementation 
(including problems encountered), successful and/or innovative methods 
adopted to use missing children photographs and information on or in 
penalty mail, the estimated number of pieces of penalty mail containing 
such information, and the percentage of total penalty mail directed to 
the public which included missing children information.
    (b) The estimated total cost to implement the program, with 
supporting detail, and

[[Page 200]]

    (c) Recommendations for changes in the program to make it more 
effective.



Sec.  23.6  Definitions.

    (a) Operating units. Bureaus and other organizational entities 
outside the Office of the Secretary charged with carrying out specified 
substantive functions (i.e., programs).
    (b) Organizational units. The organizational units within the 
Department of Commerce are:

Office of the Secretary
Bureau of Economic Analysis
Economic Development Administration
Bureau of the Census
International Trade Administration
Minority Business Development Agency
National Bureau of Standards
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
National Technical Information Service
Patent and Trademark Office
United States Travel and Tourism Administration



Sec.  23.7  Notice to Department of Commerce organizational units of
implementation and procedures.

    Following are roles and responsibilities for the program within the 
Department of Commerce.
    (a) The Department Contact Person shall:
    (1) Serve as the Department of Commerce's sole representative for 
ordering materials, including camera-ready negatives, from the National 
Center,
    (2) Serve as the Department of Commerce's sole supplier of materials 
to Operating Units,
    (3) Maintain a current list of personnel within each Operating Unit 
who are authorized to order materials,
    (4) Notify Operating Units whenever permission to use information on 
a missing child has been withdrawn,
    (5) Ensure that only current missing children materials are 
distributed to Operating Units, and that only those requests from 
authorized departmental representatives are filled,
    (6) Prepare all required departmental reports on the program,
    (7) Promulgate any departmentwide operating instructions deemed 
appropriate for the program, and
    (8) Chair biannual meetings of departmental representatives to 
discuss the program and identify additional opportunities to use the 
missing children data with penalty mail.
    (b) The Head of each Operating Unit (and for the Office of the 
Secretary, the Director of the Office of Administrative Services 
Operations), or his/her representative, shall:
    (1) Designate a single person to act as the Operating Unit's 
representative to the Department for requesting and controlling missing 
children materials and receiving notification to withdraw materials from 
use (an alternative may be designated to act in the representative's 
absence),
    (2) Provide the Department Contact Person with the name, title, 
telephone number, and room number of the Operating Unit's representative 
for the program (and also for the alternate, if one is designated), and 
notify the Department of changes when they occur,
    (3) Ensure that the shelf-life of printed penalty mail materials 
containing missing children information is limited to a maximum of three 
months,
    (4) Ensure that information on a child is not used once permission 
has been withdrawn and the shelf-life for the material would keep the 
information available for greater than 90 days after the date that 
permission to use it was withdrawn,
    (5) Direct that the Operating Unit representative (or alternate) 
order missing children information, as appropriate, only from the 
Department Contact Person,
    (6) Comply with policies, procedures, and operating instructions 
issued by the Department,
    (7) Maintain necessary information to prepare required reports and 
submit them in accordance with requirements,
    (8) Provide only current camera-ready and other photographic and 
biographical materials to printers, including those at the 
Administrative Support Centers, and
    (9) Otherwise determine and control the use of missing children 
materials and information by the Operating Unit.
    (c) The Director of each Administrative Support Center, or his/her 
representatives, shall:
    (1) Cooperate with serviced Operating Units to promote the use of 
missing children information on penalty mail,

[[Page 201]]

    (2) As directed by an Operating Unit, utilize camera-ready and other 
photographic and biographical material provided by the Operating Unit in 
preparation of material for use with penalty mail, and
    (3) Assure that any printing performed or procured under its 
direction is in accordance with the type of material and the manner of 
presentation as prescribed in this regulation.

                           PART 24 [RESERVED]



PART 25_PROGRAM--Table of Contents



                          Fraud Civil Remedies

Sec.
25.1 Basis and purpose.
25.2 Definitions.
25.3 Basis for civil penalties and assessments.
25.4 Investigation.
25.5 Review by the reviewing official.
25.6 Prerequisites for issuing a complaint.
25.7 Complaint.
25.8 Service of complaint.
25.9 Answer.
25.10 Default upon failure to file an answer.
25.11 Referral of complaint and answer to the ALJ.
25.12 Notice of hearing.
25.13 Parties to the hearing.
25.14 Separation of functions.
25.15 Ex parte contacts.
25.16 Disqualification of reviewing official or ALJ.
25.17 Rights of parties.
25.18 Authority of the ALJ.
25.19 Prehearing conferences.
25.20 Disclosure of documents.
25.21 Discovery.
25.22 Exchange of witness lists, statements, and exhibits.
25.23 Subpoena for attendance at hearing.
25.24 Protective order.
25.25 Fees.
25.26 Form, filing and service of papers.
25.27 Computation of time.
25.28 Motions.
25.29 Sanctions.
25.30 The hearing and burden of proof.
25.31 Determining the amount of penalties and assessments.
25.32 Location of hearing.
25.33 Witnesses.
25.34 Evidence.
25.35 The record.
25.36 Post-hearing briefs.
25.37 Initial decision.
25.38 Reconsideration of initial decision.
25.39 Appeal to authority head.
25.40 Stays ordered by the Department of Justice.
25.41 Stay pending appeal.
25.42 Judicial review.
25.43 Collection of civil penalties and assessments.
25.44 Right to administrative offset.
25.45 Deposit in Treasury of United States.
25.46 Compromise or settlement.
25.47 Limitations.

    Authority: Secs. 6101-6104, Pub. L. 99-509, 100 Stat. 1874 (31 
U.S.C. 3801-3812); Sec. 4, as amended, and sec. 5, Pub. L. 101-410, 104 
Stat. 890 (28 U.S.C. 2461 note); Pub. L. 104-134, 110 Stat. 1321, 28 
U.S.C. 2461 note.

    Source: 55 FR 47854, Nov. 16, 1990, unless otherwise noted.

                          Fraud Civil Remedies



Sec.  25.1  Basis and purpose.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, Public Law 99-509, section 6101-6104, 100 Stat. 1874 (October 
21, 1986), to be codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the 
statute requires each authority head to promulgate regulations necessary 
to implement 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.  25.2  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 Commerce.
    Authority head means the Secretary of the Department of Commerce, or 
designee.
    Benefit means, except as the context otherwise requires, anything of 
value, including but not limited to any advantage, preference, 
privilege, license, permit, favorable decision, ruling, status, or loan 
guarantee.
    Claim means any request, demand, or submission--

[[Page 202]]

    (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.
    Complaint means the administrative complaint served by the reviewing 
official on the respondent under Sec.  25.7.
    Department means the Department of Commerce.
    Government means the United States Government.
    Individual means a natural person.
    Initial decision means the written decision of the ALJ required by 
Sec. Sec.  25.10 or 25.37, and includes a revised initial decision 
issued following a remand or a motion for reconsideration.
    Investigating official means the Inspector General of the Department 
of Commerce or an officer or employee of the Office of the Inspector 
General designated by the Inspector General and serving in a position 
for which the rate of basic pay is not less than the minimum rate of 
basic pay for grade GS-16 under the General Schedule.
    Knows or has reason to know, means that a person, with respect to a 
claim or statement--
    (a) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (b) Acts in deliberative ignorance of the truth or falsity of the 
claim or statement; or
    (c) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    Makes, wherever it appears, shall include the terms presents, 
submits, and causes to be made, presented, or submitted. As the context 
requires, making or made, shall likewise include the corresponding forms 
of such terms.
    Person means any individual, partnership, corporation, association, 
or private organization and includes the plural of that term.
    Representative means any attorney who is a member in good standing 
of the bar of any State, Territory, or possession of the United States 
or of the District of Columbia or the Commonwealth of Puerto Rico.
    Respondent means any person alleged in a complaint under Sec.  25.7 
to be liable for a civil penalty or assessment under Sec.  25.3.
    Reviewing official means the General Counsel of the Department or 
his or her designee who is serving in a position for which the rate of 
basic pay is not less than the minimum rate of basic pay for grade GS-16 
under the General Schedule.
    Statement means any representation, certification, affirmation, 
document, record, or accounting or bookkeeping entry made--
    (a) With respect to a claim or to obtain the approval or payment of 
a claim (including relating to eligibility to make a claim); or
    (b) With respect to (including relating to eligibility for)--
    (1) A contract with, or a bid or proposal for a contract with; or
    (2) A grant, loan, or benefit from,

the authority, or any State, political subdivision of a State, or other 
party, if the United States Government provides any portion of the money 
or property under such contract or for such grant, loan, or benefit, or 
if the Government will reimburse such State, political subdivision, or 
party for any portion of the money or property under such contract or 
for such grant, loan, or benefit.

[[Page 203]]



Sec.  25.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Any person who makes a claim that the person knows 
or has reason to know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes, or is supported by, any written statement which 
asserts a material fact which is false, fictitious, or fraudulent;
    (iii) Includes, or is supported by, any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed, shall be subject, in addition to 
any other remedy that may be prescribed by law, to a civil penalty of 
not more than $5,000 for each such claim made on or before October 23, 
1996, and of not more than $5,500 for each such claim made after October 
23, 1996.
    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (3) A claim shall be considered made to the authority, recipient, or 
party when such claim is actually made to an agent, fiscal intermediary, 
or other entity, including any State or political subdivision thereof, 
acting for or on behalf of the authority, recipient, or party.
    (4) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has made payment (including transferred 
property or provided services) or a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of the section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statements. (1) Any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (ii) Contains, or is accompanied by, an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $5,000 for each 
such statement made on or before October 23, 1996, and of not more than 
$5,500 for each such statement made after October 23, 1996.
    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (3) A statement shall be considered made to the authority when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any State or political subdivision thereof, acting for 
or on behalf of the authority.
    (c) No proof of specific intent to defraud is required to establish 
liability under this section.
    (d) In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held liable for a civil penalty.
    (e) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provide services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.

[55 FR 47854, Nov. 16, 1990, as amended at 61 FR 55094, Oct. 24, 1996]



Sec.  25.4  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

[[Page 204]]

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



Sec.  25.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec.  25.4(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec.  25.3, the 
reviewing official shall transmit to the Attorney General a written 
notice of the reviewing official's intention to issue a complaint under 
Sec.  25.7.
    (b) Such notice shall include--
    (1) A statement of the reviewing official's reasons for issuing a 
complaint;
    (2) A statement specifying the evidence that supports the 
allegations of liability;
    (3) A description of the claims or statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money, or the value of property, 
services, or other benefits, requested or demanded in violation of Sec.  
25.3 of this part;
    (5) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    (6) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments. 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.  25.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec.  25.7 
only if--
    (1) The Department of Justice approved the issuance of a complaint 
in a written statement described in 31 U.S.C. 3803(b)(1), and
    (2) In the case of allegations of liability under Sec.  25.3(a) with 
respect to a claim, the reviewing official determines that, with respect 
to such claim or a group of related claims submitted at the same time 
such claim is submitted (as defined in paragraph (b) of this section), 
the amount of money, or the value of property or services, demanded or 
requested in violation of Sec.  25.3(a) does not exceed $150,000.
    (b) For the purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    (c) Nothing in this section shall be construed to limit the 
reviewing official's authority to join in a single complaint against a 
person claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.



Sec.  25.7  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with 31

[[Page 205]]

U.S.C. 3803(b)(1), the reviewing official may serve a complaint on the 
respondent, as provided in Sec.  25.8.
    (b) The complaint shall state--
    (1) The allegations of liability against the respondent, 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 
respondent may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the respondent's right to request a 
hearing by filing an answer and to be represented by a representative; 
and
    (4) That failure to file an answer within 30 days of service of the 
complaint will result in the imposition of the maximum amount of 
penalties and assessments without right to appeal.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the respondent with a copy of these regulations.



Sec.  25.8  Service of complaint.

    (a) Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure.
    (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 acknowledgment of the respondent or his or her 
representative.



Sec.  25.9  Answer.

    (a) The respondent 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 respondent--
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the respondent intends to rely;
    (3) May state any reasons why the respondent contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address, and telephone number of the 
person authorized by the respondent to act as respondent's 
representative, if any.



Sec.  25.10  Default upon failure to file an answer.

    (a) If the respondent does not file an answer within the time 
prescribed in Sec.  25.9(a), the reviewing official may refer the 
complaint to the ALJ along with the proof of service, as provided in 
Sec.  25.8(b).
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on the respondent in the manner prescribed in Sec.  25.8, a notice that 
an initial decision will be issued under this section.
    (c) The ALJ shall assume the facts alleged in the complaint to be 
true and, if such facts establish liability under Sec.  25.3, 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 respondent 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 binding upon the 
parties 30 days after it is issued.
    (e) If, before such an initial decision becomes final, the 
respondent files motion with the ALJ seeking to reopen on the grounds 
that extraordinary circumstances prevented the respondent from filing an 
answer, the initial decision shall be stayed pending the ALJ's decision 
on the motion.
    (f) If, on such motion, the respondent can demonstrate extraordinary 
circumstances excusing the failure to file a timely answer, the ALJ 
shall withdraw the initial decision in paragraph (c) of this section, if 
such a decision has been issued, and shall grant the respondent an 
opportunity to answer the complaint.

[[Page 206]]

    (g) A decision of the ALJ denying a respondent's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec.  25.38.
    (h) The respondent 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 respondent files a timely notice of appeal with the 
authority head, the ALJ shall forward the record of the proceeding to 
the authority head.
    (j) The authority head shall decide expeditiously whether 
extraordinary circumstances excuse the respondent's failure to file a 
timely answer based solely on the record before the ALJ.
    (k) If the authority head decides that extraordinary circumstances 
excused the respondent's failure to file a timely answer, the authority 
head shall remand the case of the ALJ with instructions to grant the 
respondent an opportunity to answer.
    (l) If the authority head decides that the respondent'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.  25.11  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.  25.12  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the respondent in the manner 
prescribed by Sec.  25.8. At the same time, the ALJ shall send a copy of 
such notice to the representative for the Government.
    (b) Such notice shall include--
    (1) The tentative time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of 
the Government and of the respondent, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec.  25.13  Parties to the hearing.

    (a) The parties to the hearing shall be the respondent 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.  25.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the authority who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case--
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the authority head, except as a witness or a 
representative in public proceedings; or
    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to, or subject to the 
supervision or direction of, the investigating official or the reviewing 
official.
    (c) The reviewing official shall, after consulting with the 
Inspector General, designate the representative for the Government, who 
shall be an attorney with either the Office of General Counsel or the 
Office of the Inspector General. The reviewing official's decision is 
final.



Sec.  25.15  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

[[Page 207]]

routine questions concerning administrative functions or procedures.



Sec.  25.16  Disqualification of reviewing official or ALJ.

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



Sec.  25.17  Rights of parties.

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



Sec.  25.18  Authority of the ALJ.

    (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is made.
    (b) The ALJ has the authority to--
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.
    (c) The ALJ does not have the authority to find Federal statutes or 
regulations invalid.

[[Page 208]]



Sec.  25.19  Prehearing conferences.

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



Sec.  25.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the respondent 
may review any relevant and material documents, transcripts, records, 
and other materials that related to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec.  25.4(b) are based, unless such 
documents are subject to a privilege under Federal law. Upon payment of 
fees for duplication, the respondent may obtain copies of such 
documents.
    (b) Upon written request to the reviewing official, the respondent 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the reviewing 
official as described in Sec.  25.5 is not discoverable under any 
circumstances.
    (d) The respondents may file a motion to compel dosclosure 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.  25.9.



Sec.  25.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purpose of this section and Sec. Sec.  25.22 and 25.23, 
the term ``documents'' includes information, documents, reports, 
answers, records, accounts, papers, and other data and documentary 
evidence. Nothing contained herein shall be interpreted to require the 
creation of a document.
    (c) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ shall regulate the timing of 
discovery.
    (d) Motions for discovery. (1) A party seeking discovery may file a 
motion with the ALJ. Such a motion shall be accompanied by a copy of the 
requested discovery, or in the case of depositions, a summary of the 
scope of the proposed deposition.
    (2) Within two days of service, a party may file an opposition to 
the motion and/or a motion for protective order as provided in Sec.  
25.34.
    (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;

[[Page 209]]

    (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.  25.24.
    (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.  25.8.
    (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.  25.22  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.  25.33(b). At the time the above documents are exchanged, any party 
that intends to rely on the transcript of deposition testimony in lieu 
of live testimony at the hearing, if permitted by the ALJ, shall provide 
each party with a copy of the specific pages of the transcript it 
intends to introduce into evidence.
    (b) If a party objects, the ALJ shall not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
or any exhibit not provided to the opposing party as provided above 
unless the ALJ finds good cause for the failure or that there is no 
prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ, 
documents exchanged in accordance with paragraph (a) of this section 
shall be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec.  25.23  Subpoena for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request 
therefore not less than 15 days before the date fixed for the hearing 
unless otherwise allowed by the ALJ for good cause shown: Such request 
shall specify any documents to be produced and shall designate the 
witnesses and describe the address and location thereof with sufficient 
particularity to permit such witnesses to be found.
    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec.  25.8. 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.  25.24  Protective order.

    (a) A party of a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person

[[Page 210]]

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 direct by the 
ALJ.



Sec.  25.25  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 Department of 
Commerce, a check for witness fees and mileage need not accompany the 
subpoena.



Sec.  25.26  Form, filing and service of papers.

    (a) Form. (1) Documents filed with the ALJ shall include an original 
and one copy.
    (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 of the person on whose 
behalf the paper was filed, or his or her representative.
    (4) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (b) Service. A party filing a document with the ALJ shall, at the 
time of filing, serve a copy of such document on every other party. 
Service upon any party of any document other than the complaint or 
notice of hearing shall be made by deliverying or mailing a copy to the 
party's last known address. When a party is represented by a 
representative, service shall be made upon such representative in lieu 
of the actual party.
    (c) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.



Sec.  25.27  Computation of time.

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



Sec.  25.28  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.

[[Page 211]]

    (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.  25.29  Sanctions.

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



Sec.  25.30  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the respondent is liable for a civil penalty or 
assessment under Sec.  25.3 and, if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) The authority shall prove respondent's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The respondent shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    (d) The hearing shall be open to the public unless otherwise ordered 
by the ALJ for good cause shown.



Sec.  25.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the authority head, upon appeal, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Because of the intangible costs 
of fraud, the expense of investigating such conduct, and the need to 
deter others who might be similarly tempted ordinarily double 
assessment, in lieu of damages, and a significant civil penalty should 
be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the authority head in determining the 
amount of penalties and assessments to impose with respect to the 
misconduct (i.e., the false, fictitious, or fraudulent claims or 
statements) charged in the complaint:

[[Page 212]]

    (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 respondent's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation;
    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon national 
defense, public health or safety, or public confidence in the management 
of Government programs and operations, including particularly the impact 
on the intended beneficiaries of such program;
    (8) Whether the respondent has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the respondent attempted to conceal the misconduct;
    (10) The degree to which the respondent has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
respondent, the extent to which the respondent's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the respondent cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the respondent assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the respondent's sophistication with respect to it, including the extent 
of the respondent's prior participation in the program or in similar 
transactions;
    (15) Whether the respondent 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 respondent 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.  25.32  Location of hearing.

    (a) The hearing may be held--
    (1) In any judicial district of the United States in which the 
respondent 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 respondent and 
the ALJ.
    (b) Each party shall have the opportunity to present arguments with 
respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered 
by the ALJ.



Sec.  25.33  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 statements 
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.  
25.22(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

[[Page 213]]

may be required for a full and true disclosure of the facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceeding without regard to the scope of his or 
her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination shall be 
conducted in the manner of direct examination and may proceed by leading 
questions only if the witness is a hostile witness, an adverse party or 
a witness identified with an adverse party.
    (f) Upon motion of any party, the ALJ shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses. This rule 
does not authorize exclusion of--
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party designated by the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.



Sec.  25.34  Evidence.

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ shall not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence where appropriate, e.g., to exclude unreliable 
evidence.
    (c) The ALJ shall exclude irrelevant and inmaterial 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.  25.24.



Sec.  25.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
authority head.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec.  25.24.



Sec.  25.36  Post-hearing briefs.

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



Sec.  25.37  Initial decision.

    (a) The ALJ shall issue an initial decision based only on the 
record, which shall contain findings of fact, conclusions of law, and 
the amount of any penalties and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues:
    (1) Whether the claims or statements identified in the complaint, or 
any portions thereof, violate Sec.  25.3.
    (2) If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec.  25.31.

[[Page 214]]

    (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 as the same time 
serve all respondents with a statement describing the right of any 
respondent 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.  25.38  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail, 
receipt will be presumed to be five days from the date of mailing in the 
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration, the initial 
decision shall constitute the final decision of the authority head and 
shall be final and binding on the parties 30 days after the ALJ denies 
the motion, unless the initial decision is timely appealed to the 
authority head in accordance with Sec.  25.39.
    (g) If the ALJ issues a revised initial decision, that decision 
shall constitute the final decision of the authority head and shall be 
final and binding on the parties 30 days after it is issued, unless it 
is timely appealed to the authority head in accordance with Sec.  25.39.



Sec.  25.39  Appeal to authority head.

    (a) Any respondent 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.  25.38 has expired.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal must be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) If no motion for reconsideration is timely filed, a notice of 
appeal must be filed within 30 days after the ALJ issues the initial 
decision.
    (4) The authority head may extend the initial 30 day period for an 
additional 30 days if the respondent files with the authority head a 
request for an extension within the initial 30 day period and shows good 
cause.
    (c) If the respondent files a timely notice of appeal with the 
authority head, the ALJ shall forward the record of the proceeding to 
the authority head.
    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (e) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the authority 
head.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the authority head shall not 
consider

[[Page 215]]

any objection that was not raised before the ALJ unless a demonstration 
is made of extraordinary circumstances causing the failure to raise the 
objection.
    (i) If any party demonstrates to the satisfaction of the authority 
head that additional evidence not presented at such hearing is material 
and that there was reasonable grounds for the failure to present such 
evidence at such hearing, the authority head shall remand the matter to 
the ALJ for consideration of such additional evidence.
    (j) The authority head may affirm, reduce, reverse, compromise, 
remand, or settle any penalty or assessment determined by the ALJ in any 
initial decision.
    (k) The authority head shall promptly serve each party to the appeal 
with a copy of the decision of the authority head and a statement 
describing the right of any person determined to be liable for a penalty 
or assessment to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a respondent has exhausted all administrative remedies under 
this part and within 60 days after the date on which the authority head 
serves the respondent with a copy of the authority head's decision, a 
determination that a respondent is liable under Sec.  25.3 is final and 
is not subject to judicial review.



Sec.  25.40  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 and it shall be resumed only upon receipt of the written 
authorization of the Attorney General.



Sec.  25.41  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.  25.42  Judicial review.

    Section 3805 of title 31, United States Code, authorized 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.  25.43  Collection of civil penalties and assessments.

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



Sec.  25.44  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. Sec.  25.42 and 25.43, 
or any amount agreed upon in a compromise or settlement under Sec.  
25.46, 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 respondent.



Sec.  25.45  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.  25.46  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. If the designated 
representative of the Government is not with the Office of General 
Counsel, the representative shall forward all settlement offers to

[[Page 216]]

the reviewing official and cannot negotiate a compromise or settlement 
with the respondent except as directed by the reviewing official.
    (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.  25.42 or during the pendency of any action to collect 
penalties and assessments under Sec.  25.43.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec.  25.42 or of any action to recover penalties and assessments under 
31 U.S.C. 3806.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the authority head, or the Attorney General, as 
appropriate. The reviewing official may recommend settlement terms to 
the authority head, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing.



Sec.  25.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec.  25.8 within 6 years after the 
date on which such claim or statement is made.
    (b) If the respondent fails to file a timely answer, service of a 
notice under Sec.  25.10(b) shall be deemed a notice of hearing for 
purposes of this section.
    (c) The statute of limitations may be extended by agreement of the 
parties.

                           PART 26 [RESERVED]



PART 27_PROTECTION OF HUMAN SUBJECTS--Table of Contents



Sec.
27.101 To what does this policy apply?
27.102 Definitions for purposes of this policy.
27.103 Assuring compliance with this policy--research conducted or 
          supported by any Federal department or agency.
27.104 Exempt research.
27.105-27.106 [Reserved]
27.107 IRB membership.
27.108 IRB functions and operations.
27.109 IRB review of research.
27.110 Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
27.111 Criteria for IRB approval of research.
27.112 Review by institution.
27.113 Suspension or termination of IRB approval of research.
27.114 Cooperative research.
27.115 IRB records.
27.116 General requirements for informed consent.
27.117 Documentation of informed consent.
27.118 Applications and proposals lacking definite plans for involvement 
          of human subjects.
27.119 Research undertaken without the intention of involving human 
          subjects.
27.120 Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal department 
          or agency.
27.121 [Reserved]
27.122 Use of Federal funds.
27.123 Early termination of research support: Evaluation of applications 
          and proposals.
27.124 Conditions.

    Authority: 5 U.S.C. 301; 42 U.S.C. 300v-1(b).

    Source: 82 FR 7270, Jan. 19, 2017, unless otherwise noted.



Sec.  27.101  To what does this policy apply?

    (a) Except as detailed in Sec.  27.104, this policy applies to all 
research involving human subjects conducted, supported, or otherwise 
subject to regulation by any Federal department or agency that takes 
appropriate administrative action to make the policy applicable to such 
research. This includes research conducted by Federal civilian employees 
or military personnel, except that each department or agency head may 
adopt such procedural modifications as may be appropriate from an 
administrative standpoint. It also includes research conducted, 
supported, or otherwise subject to regulation by the Federal Government 
outside the United States. Institutions that are engaged in research 
described in this paragraph and institutional review boards (IRBs) 
reviewing research that is subject to this policy must comply with this 
policy.
    (b) [Reserved]
    (c) Department or agency heads retain final judgment as to whether a 
particular activity is covered by this

[[Page 217]]

policy and this judgment shall be exercised consistent with the ethical 
principles of the Belmont Report.\62\
---------------------------------------------------------------------------

    \62\ The National Commission for the Protection of Human Subjects of 
Biomedical and Behavioral Research.- Belmont Report. Washington, DC: 
U.S. Department of Health and Human Services. 1979.
---------------------------------------------------------------------------

    (d) Department or agency heads may require that specific research 
activities or classes of research activities conducted, supported, or 
otherwise subject to regulation by the Federal department or agency but 
not otherwise covered by this policy comply with some or all of the 
requirements of this policy.
    (e) Compliance with this policy requires compliance with pertinent 
federal laws or regulations that provide additional protections for 
human subjects.
    (f) This policy does not affect any state or local laws or 
regulations (including tribal law passed by the official governing body 
of an American Indian or Alaska Native tribe) that may otherwise be 
applicable and that provide additional protections for human subjects.
    (g) This policy does not affect any foreign laws or regulations that 
may otherwise be applicable and that provide additional protections to 
human subjects of research.
    (h) When research covered by this policy takes place in foreign 
countries, procedures normally followed in the foreign countries to 
protect human subjects may differ from those set forth in this policy. 
In these circumstances, if a department or agency head determines that 
the procedures prescribed by the institution afford protections that are 
at least equivalent to those provided in this policy, the department or 
agency head may approve the substitution of the foreign procedures in 
lieu of the procedural requirements provided in this policy. Except when 
otherwise required by statute, Executive Order, or the department or 
agency head, notices of these actions as they occur will be published in 
the Federal Register or will be otherwise published as provided in 
department or agency procedures.
    (i) Unless otherwise required by law, department or agency heads may 
waive the applicability of some or all of the provisions of this policy 
to specific research activities or classes of research activities 
otherwise covered by this policy, provided the alternative procedures to 
be followed are consistent with the principles of the Belmont 
Report.\63\ Except when otherwise required by statute or Executive 
Order, the department or agency head shall forward advance notices of 
these actions to the Office for Human Research Protections, Department 
of Health and Human Services (HHS), or any successor office, or to the 
equivalent office within the appropriate Federal department or agency, 
and shall also publish them in the Federal Register or in such other 
manner as provided in department or agency procedures. The waiver notice 
must include a statement that identifies the conditions under which the 
waiver will be applied and a justification as to why the waiver is 
appropriate for the research, including how the decision is consistent 
with the principles of the Belmont Report.
---------------------------------------------------------------------------

    \63\ Id.
---------------------------------------------------------------------------

    (j) Federal guidance on the requirements of this policy shall be 
issued only after consultation, for the purpose of harmonization (to the 
extent appropriate), with other Federal departments and agencies that 
have adopted this policy, unless such consultation is not feasible.
    (k) [Reserved]
    (l) Compliance dates and transition provisions:
    (1) Pre-2018 Requirements. For purposes of this section, the pre-
2018 Requirements means this subpart as published in the 2016 edition of 
the Code of Federal Regulations.
    (2) 2018 Requirements. For purposes of this section, the 2018 
Requirements means the Federal Policy for the Protection of Human 
Subjects requirements contained in this part. The general compliance 
date for the 2018 Requirements is January 21, 2019. The compliance date 
for Sec.  27.114(b) (cooperative research) of the 2018 Requirements is 
January 20, 2020.
    (3) Research subject to pre-2018 requirements. The pre-2018 
Requirements shall apply to the following research, unless

[[Page 218]]

the research is transitioning to comply with the 2018 Requirements in 
accordance with paragraph (l)(4) of this section:
    (i) Research initially approved by an IRB under the pre-2018 
Requirements before January 21, 2019;
    (ii) Research for which IRB review was waived pursuant to Sec.  
27.101(i) of the pre-2018 Requirements before January 21, 2019; and
    (iii) Research for which a determination was made that the research 
was exempt under Sec.  27.101(b) of the pre-2018 Requirements before 
January 21, 2019.
    (4) Transitioning research. If, on or after July 19, 2018, an 
institution planning or engaged in research otherwise covered by 
paragraph (l)(3) of this section determines that such research instead 
will transition to comply with the 2018 Requirements, the institution or 
an IRB must document and date such determination.
    (i) If the determination to transition is documented between July 
19, 2018, and January 20, 2019, the research shall:
    (A) Beginning on the date of such documentation through January 20, 
2019, comply with the pre-2018 Requirements, except that the research 
shall comply with the following:
    (1) Section 27.102(l) of the 2018 Requirements (definition of 
research) (instead of Sec.  27.102(d) of the pre-2018 Requirements);
    (2) Section 27.103(d) of the 2018 Requirements (revised 
certification requirement that eliminates IRB review of application or 
proposal) (instead of Sec.  27.103(f) of the pre-2018 Requirements); and
    (3) Section 27.109(f)(1)(i) and (iii) of the 2018 Requirements 
(exceptions to mandated continuing review) (instead of Sec.  27.103(b), 
as related to the requirement for continuing review, and in addition to 
Sec.  27.109, of the pre-2018 Requirements); and
    (B) Beginning on January 21, 2019, comply with the 2018 
Requirements.
    (ii) If the determination to transition is documented on or after 
January 21, 2019, the research shall, beginning on the date of such 
documentation, comply with the 2018 Requirements.
    (5) Research subject to 2018 Requirements. The 2018 Requirements 
shall apply to the following research:
    (i) Research initially approved by an IRB on or after January 21, 
2019;
    (ii) Research for which IRB review is waived pursuant to paragraph 
(i) of this section on or after January 21, 2019; and
    (iii) Research for which a determination is made that the research 
is exempt on or after January 21, 2019.
    (m) Severability: Any provision of this part held to be invalid or 
unenforceable by its terms, or as applied to any person or circumstance, 
shall be construed so as to continue to give maximum effect to the 
provision permitted by law, unless such holding shall be one of utter 
invalidity or unenforceability, in which event the provision shall be 
severable from this part and shall not affect the remainder thereof or 
the application of the provision to other persons not similarly situated 
or to other dissimilar circumstances.

[82 FR 7270, Jan. 19, 2017, as amended at 83 FR 28512, June 19, 2018]



Sec.  27.102  Definitions for purposes of this policy.

    (a) Certification means the official notification by the institution 
to the supporting Federal department or agency component, in accordance 
with the requirements of this policy, that a research project or 
activity involving human subjects has been reviewed and approved by an 
IRB in accordance with an approved assurance.
    (b) Clinical trial means a research study in which one or more human 
subjects are prospectively assigned to one or more interventions (which 
may include placebo or other control) to evaluate the effects of the 
interventions on biomedical or behavioral health-related outcomes.
    (c) Department or agency head means the head of any Federal 
department or agency, for example, the Secretary of HHS, and any other 
officer or employee of any Federal department or agency to whom the 
authority provided by these regulations to the department or agency head 
has been delegated.
    (d) Federal department or agency refers to a federal department or 
agency (the

[[Page 219]]

department or agency itself rather than its bureaus, offices or 
divisions) that takes appropriate administrative action to make this 
policy applicable to the research involving human subjects it conducts, 
supports, or otherwise regulates (e.g., the U.S. Department of Health 
and Human Services, the U.S. Department of Defense, or the Central 
Intelligence Agency).
    (e)(1) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research:
    (i) Obtains information or biospecimens through intervention or 
interaction with the individual, and uses, studies, or analyzes the 
information or biospecimens; or (ii) Obtains, uses, studies, analyzes, 
or generates identifiable private information or identifiable 
biospecimens.
    (2) Intervention includes both physical procedures by which 
information or biospecimens are gathered (e.g., venipuncture) and 
manipulations of the subject or the subject's environment that are 
performed for research purposes.
    (3) Interaction includes communication or interpersonal contact 
between investigator and subject.
    (4) Private information includes information about behavior that 
occurs in a context in which an individual can reasonably expect that no 
observation or recording is taking place, and information that has been 
provided for specific purposes by an individual and that the individual 
can reasonably expect will not be made public (e.g., a medical record).
    (5) Identifiable private information is private information for 
which the identity of the subject is or may readily be ascertained by 
the investigator or associated with the information.
    (6) An identifiable biospecimen is a biospecimen for which the 
identity of the subject is or may readily be ascertained by the 
investigator or associated with the biospecimen.
    (7) Federal departments or agencies implementing this policy shall:
    (i) Upon consultation with appropriate experts (including experts in 
data matching and re-identification), reexamine the meaning of 
``identifiable private information,'' as defined in paragraph (e)(5) of 
this section, and ``identifiable biospecimen,'' as defined in paragraph 
(e)(6) of this section. This reexamination shall take place within 1 
year and regularly thereafter (at least every 4 years). This process 
will be conducted by collaboration among the Federal departments and 
agencies implementing this policy. If appropriate and permitted by law, 
such Federal departments and agencies may alter the interpretation of 
these terms, including through the use of guidance.
    (ii) Upon consultation with appropriate experts, assess whether 
there are analytic technologies or techniques that should be considered 
by investigators to generate ``identifiable private information,'' as 
defined in paragraph (e)(5) of this section, or an ``identifiable 
biospecimen,'' as defined in paragraph (e)(6) of this section. This 
assessment shall take place within 1 year and regularly thereafter (at 
least every 4 years). This process will be conducted by collaboration 
among the Federal departments and agencies implementing this policy. Any 
such technologies or techniques will be included on a list of 
technologies or techniques that produce identifiable private information 
or identifiable biospecimens. This list will be published in the Federal 
Register after notice and an opportunity for public comment. The 
Secretary, HHS, shall maintain the list on a publicly accessible Web 
site.
    (f) Institution means any public or private entity, or department or 
agency (including federal, state, and other agencies).
    (g) IRB means an institutional review board established in accord 
with and for the purposes expressed in this policy.
    (h) IRB approval means the determination of the IRB that the 
research has been reviewed and may be conducted at an institution within 
the constraints set forth by the IRB and by other institutional and 
federal requirements.
    (i) Legally authorized representative means an individual or 
judicial or other body authorized under applicable law to consent on 
behalf of a prospective subject to the subject's participation in the 
procedure(s) involved in the research. If there is no applicable law

[[Page 220]]

addressing this issue, legally authorized representative means an 
individual recognized by institutional policy as acceptable for 
providing consent in the nonresearch context on behalf of the 
prospective subject to the subject's participation in the procedure(s) 
involved in the research.
    (j) Minimal risk means that the probability and magnitude of harm or 
discomfort anticipated in the research are not greater in and of 
themselves than those ordinarily encountered in daily life or during the 
performance of routine physical or psychological examinations or tests.
    (k) Public health authority means an agency or authority of the 
United States, a state, a territory, a political subdivision of a state 
or territory, an Indian tribe, or a foreign government, or a person or 
entity acting under a grant of authority from or contract with such 
public agency, including the employees or agents of such public agency 
or its contractors or persons or entities to whom it has granted 
authority, that is responsible for public health matters as part of its 
official mandate.
    (l) Research means a systematic investigation, including research 
development, testing, and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities that meet this definition 
constitute research for purposes of this policy, whether or not they are 
conducted or supported under a program that is considered research for 
other purposes. For example, some demonstration and service programs may 
include research activities. For purposes of this part, the following 
activities are deemed not to be research:
    (1) Scholarly and journalistic activities (e.g., oral history, 
journalism, biography, literary criticism, legal research, and 
historical scholarship), including the collection and use of 
information, that focus directly on the specific individuals about whom 
the information is collected.
    (2) Public health surveillance activities, including the collection 
and testing of information or biospecimens, conducted, supported, 
requested, ordered, required, or authorized by a public health 
authority. Such activities are limited to those necessary to allow a 
public health authority to identify, monitor, assess, or investigate 
potential public health signals, onsets of disease outbreaks, or 
conditions of public health importance (including trends, signals, risk 
factors, patterns in diseases, or increases in injuries from using 
consumer products). Such activities include those associated with 
providing timely situational awareness and priority setting during the 
course of an event or crisis that threatens public health (including 
natural or man-made disasters).
    (3) Collection and analysis of information, biospecimens, or records 
by or for a criminal justice agency for activities authorized by law or 
court order solely for criminal justice or criminal investigative 
purposes.
    (4) Authorized operational activities (as determined by each agency) 
in support of intelligence, homeland security, defense, or other 
national security missions.
    (m) Written, or in writing, for purposes of this part, refers to 
writing on a tangible medium (e.g., paper) or in an electronic format.



Sec.  27.103  Assuring compliance with this policy--research conducted or
supported by any Federal department or agency.

    (a) Each institution engaged in research that is covered by this 
policy, with the exception of research eligible for exemption under 
Sec.  27.104, and that is conducted or supported by a Federal department 
or agency, shall provide written assurance satisfactory to the 
department or agency head that it will comply with the requirements of 
this policy. In lieu of requiring submission of an assurance, individual 
department or agency heads shall accept the existence of a current 
assurance, appropriate for the research in question, on file with the 
Office for Human Research Protections, HHS, or any successor office, and 
approved for Federal-wide use by that office. When the existence of an 
HHS-approved assurance is accepted in lieu of requiring submission of an 
assurance, reports (except certification) required by this policy to be 
made to department and agency heads shall also be made to the Office

[[Page 221]]

for Human Research Protections, HHS, or any successor office. Federal 
departments and agencies will conduct or support research covered by 
this policy only if the institution has provided an assurance that it 
will comply with the requirements of this policy, as provided in this 
section, and only if the institution has certified to the department or 
agency head that the research has been reviewed and approved by an IRB 
(if such certification is required by Sec.  27.103(d)).
    (b) The assurance shall be executed by an individual authorized to 
act for the institution and to assume on behalf of the institution the 
obligations imposed by this policy and shall be filed in such form and 
manner as the department or agency head prescribes.
    (c) The department or agency head may limit the period during which 
any assurance shall remain effective or otherwise condition or restrict 
the assurance.
    (d) Certification is required when the research is supported by a 
Federal department or agency and not otherwise waived under Sec.  
27.101(i) or exempted under Sec.  27.104. For such research, 
institutions shall certify that each proposed research study covered by 
the assurance and this section has been reviewed and approved by the 
IRB. Such certification must be submitted as prescribed by the Federal 
department or agency component supporting the research. Under no 
condition shall research covered by this section be initiated prior to 
receipt of the certification that the research has been reviewed and 
approved by the IRB.
    (e) For nonexempt research involving human subjects covered by this 
policy (or exempt research for which limited IRB review takes place 
pursuant to Sec.  27.104(d)(2)(iii), (d)(3)(i)(C), or (d)(7) or (8)) 
that takes place at an institution in which IRB oversight is conducted 
by an IRB that is not operated by the institution, the institution and 
the organization operating the IRB shall document the institution's 
reliance on the IRB for oversight of the research and the 
responsibilities that each entity will undertake to ensure compliance 
with the requirements of this policy (e.g., in a written agreement 
between the institution and the IRB, by implementation of an 
institution-wide policy directive providing the allocation of 
responsibilities between the institution and an IRB that is not 
affiliated with the institution, or as set forth in a research 
protocol).

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec.  27.104  Exempt research.

    (a) Unless otherwise required by law or by department or agency 
heads, research activities in which the only involvement of human 
subjects will be in one or more of the categories in paragraph (d) of 
this section are exempt from the requirements of this policy, except 
that such activities must comply with the requirements of this section 
and as specified in each category.
    (b) Use of the exemption categories for research subject to the 
requirements of subparts B, C, and D: Application of the exemption 
categories to research subject to the requirements of 45 CFR part 46, 
subparts B, C, and D, is as follows:
    (1) Subpart B. Each of the exemptions at this section may be applied 
to research subject to subpart B if the conditions of the exemption are 
met.
    (2) Subpart C. The exemptions at this section do not apply to 
research subject to subpart C, except for research aimed at involving a 
broader subject population that only incidentally includes prisoners.
    (3) Subpart D. The exemptions at paragraphs (d)(1), (4), (5), (6), 
(7), and (8) of this section may be applied to research subject to 
subpart D if the conditions of the exemption are met. Paragraphs 
(d)(2)(i) and (ii) of this section only may apply to research subject to 
subpart D involving educational tests or the observation of public 
behavior when the investigator(s) do not participate in the activities 
being observed. Paragraph (d)(2)(iii) of this section may not be applied 
to research subject to subpart D.
    (c) [Reserved]
    (d) Except as described in paragraph (a) of this section, the 
following categories of human subjects research are exempt from this 
policy:

[[Page 222]]

    (1) Research, conducted in established or commonly accepted 
educational settings, that specifically involves normal educational 
practices that are not likely to adversely impact students' opportunity 
to learn required educational content or the assessment of educators who 
provide instruction. This includes most research on regular and special 
education instructional strategies, and research on the effectiveness of 
or the comparison among instructional techniques, curricula, or 
classroom management methods.
    (2) Research that only includes interactions involving educational 
tests (cognitive, diagnostic, aptitude, achievement), survey procedures, 
interview procedures, or observation of public behavior (including 
visual or auditory recording) if at least one of the following criteria 
is met:
    (i) The information obtained is recorded by the investigator in such 
a manner that the identity of the human subjects cannot readily be 
ascertained, directly or through identifiers linked to the subjects;
    (ii) Any disclosure of the human subjects' responses outside the 
research would not reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, educational advancement, or reputation; or
    (iii) The information obtained is recorded by the investigator in 
such a manner that the identity of the human subjects can readily be 
ascertained, directly or through identifiers linked to the subjects, and 
an IRB conducts a limited IRB review to make the determination required 
by Sec.  27.111(a)(7).
    (3)(i) Research involving benign behavioral interventions in 
conjunction with the collection of information from an adult subject 
through verbal or written responses (including data entry) or 
audiovisual recording if the subject prospectively agrees to the 
intervention and information collection and at least one of the 
following criteria is met:
    (A) The information obtained is recorded by the investigator in such 
a manner that the identity of the human subjects cannot readily be 
ascertained, directly or through identifiers linked to the subjects;
    (B) Any disclosure of the human subjects' responses outside the 
research would not reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, educational advancement, or reputation; or
    (C) The information obtained is recorded by the investigator in such 
a manner that the identity of the human subjects can readily be 
ascertained, directly or through identifiers linked to the subjects, and 
an IRB conducts a limited IRB review to make the determination required 
by Sec.  27.111(a)(7).
    (ii) For the purpose of this provision, benign behavioral 
interventions are brief in duration, harmless, painless, not physically 
invasive, not likely to have a significant adverse lasting impact on the 
subjects, and the investigator has no reason to think the subjects will 
find the interventions offensive or embarrassing. Provided all such 
criteria are met, examples of such benign behavioral interventions would 
include having the subjects play an online game, having them solve 
puzzles under various noise conditions, or having them decide how to 
allocate a nominal amount of received cash between themselves and 
someone else.
    (iii) If the research involves deceiving the subjects regarding the 
nature or purposes of the research, this exemption is not applicable 
unless the subject authorizes the deception through a prospective 
agreement to participate in research in circumstances in which the 
subject is informed that he or she will be unaware of or misled 
regarding the nature or purposes of the research.
    (4) Secondary research for which consent is not required: Secondary 
research uses of identifiable private information or identifiable 
biospecimens, if at least one of the following criteria is met:
    (i) The identifiable private information or identifiable 
biospecimens are publicly available;
    (ii) Information, which may include information about biospecimens, 
is recorded by the investigator in such a manner that the identity of 
the human

[[Page 223]]

subjects cannot readily be ascertained directly or through identifiers 
linked to the subjects, the investigator does not contact the subjects, 
and the investigator will not re-identify subjects;
    (iii) The research involves only information collection and analysis 
involving the investigator's use of identifiable health information when 
that use is regulated under 45 CFR parts 160 and 164, subparts A and E, 
for the purposes of ``health care operations'' or ``research'' as those 
terms are defined at 45 CFR 164.501 or for ``public health activities 
and purposes'' as described under 45 CFR 164.512(b); or
    (iv) The research is conducted by, or on behalf of, a Federal 
department or agency using government-generated or government-collected 
information obtained for nonresearch activities, if the research 
generates identifiable private information that is or will be maintained 
on information technology that is subject to and in compliance with 
section 208(b) of the E-Government Act of 2002, 44 U.S.C. 3501 note, if 
all of the identifiable private information collected, used, or 
generated as part of the activity will be maintained in systems of 
records subject to the Privacy Act of 1974, 5 U.S.C. 552a, and, if 
applicable, the information used in the research was collected subject 
to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
    (5) Research and demonstration projects that are conducted or 
supported by a Federal department or agency, or otherwise subject to the 
approval of department or agency heads (or the approval of the heads of 
bureaus or other subordinate agencies that have been delegated authority 
to conduct the research and demonstration projects), and that are 
designed to study, evaluate, improve, or otherwise examine public 
benefit or service programs, including procedures for obtaining benefits 
or services under those programs, possible changes in or alternatives to 
those programs or procedures, or possible changes in methods or levels 
of payment for benefits or services under those programs. Such projects 
include, but are not limited to, internal studies by Federal employees, 
and studies under contracts or consulting arrangements, cooperative 
agreements, or grants. Exempt projects also include waivers of otherwise 
mandatory requirements using authorities such as sections 1115 and 1115A 
of the Social Security Act, as amended.
    (i) Each Federal department or agency conducting or supporting the 
research and demonstration projects must establish, on a publicly 
accessible Federal Web site or in such other manner as the department or 
agency head may determine, a list of the research and demonstration 
projects that the Federal department or agency conducts or supports 
under this provision. The research or demonstration project must be 
published on this list prior to commencing the research involving human 
subjects.
    (ii) [Reserved]
    (6) Taste and food quality evaluation and consumer acceptance 
studies:
    (i) If wholesome foods without additives are consumed, or
    (ii) If a food is consumed that contains a food ingredient at or 
below the level and for a use found to be safe, or agricultural chemical 
or environmental contaminant at or below the level found to be safe, by 
the Food and Drug Administration or approved by the Environmental 
Protection Agency or the Food Safety and Inspection Service of the U.S. 
Department of Agriculture.
    (7) Storage or maintenance for secondary research for which broad 
consent is required: Storage or maintenance of identifiable private 
information or identifiable biospecimens for potential secondary 
research use if an IRB conducts a limited IRB review and makes the 
determinations required by Sec.  27.111(a)(8).
    (8) Secondary research for which broad consent is required: Research 
involving the use of identifiable private information or identifiable 
biospecimens for secondary research use, if the following criteria are 
met:
    (i) Broad consent for the storage, maintenance, and secondary 
research use of the identifiable private information or identifiable 
biospecimens was obtained in accordance with Sec.  27.116(a)(1) through 
(4), (a)(6), and (d);
    (ii) Documentation of informed consent or waiver of documentation of

[[Page 224]]

consent was obtained in accordance with Sec.  27.117;
    (iii) An IRB conducts a limited IRB review and makes the 
determination required by Sec.  27.111(a)(7) and makes the determination 
that the research to be conducted is within the scope of the broad 
consent referenced in paragraph (d)(8)(i) of this section; and (iv) The 
investigator does not include returning individual research results to 
subjects as part of the study plan. This provision does not prevent an 
investigator from abiding by any legal requirements to return individual 
research results.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec. Sec.  27.105-27.106  [Reserved]



Sec.  27.107  IRB membership.

    (a) Each IRB shall have at least five members, with varying 
backgrounds to promote complete and adequate review of research 
activities commonly conducted by the institution. The IRB shall be 
sufficiently qualified through the experience and expertise of its 
members (professional competence), and the diversity of its members, 
including race, gender, and cultural backgrounds and sensitivity to such 
issues as community attitudes, to promote respect for its advice and 
counsel in safeguarding the rights and welfare of human subjects. The 
IRB shall be able to ascertain the acceptability of proposed research in 
terms of institutional commitments (including policies and resources) 
and regulations, applicable law, and standards of professional conduct 
and practice. The IRB shall therefore include persons knowledgeable in 
these areas. If an IRB regularly reviews research that involves a 
category of subjects that is vulnerable to coercion or undue influence, 
such as children, prisoners, individuals with impaired decision-making 
capacity, or economically or educationally disadvantaged persons, 
consideration shall be given to the inclusion of one or more individuals 
who are knowledgeable about and experienced in working with these 
categories of subjects.
    (b) Each IRB shall include at least one member whose primary 
concerns are in scientific areas and at least one member whose primary 
concerns are in nonscientific areas.
    (c) Each IRB shall include at least one member who is not otherwise 
affiliated with the institution and who is not part of the immediate 
family of a person who is affiliated with the institution.
    (d) No IRB may have a member participate in the IRB's initial or 
continuing review of any project in which the member has a conflicting 
interest, except to provide information requested by the IRB.
    (e) An IRB may, in its discretion, invite individuals with 
competence in special areas to assist in the review of issues that 
require expertise beyond or in addition to that available on the IRB. 
These individuals may not vote with the IRB.



Sec.  27.108  IRB functions and operations.

    (a) In order to fulfill the requirements of this policy each IRB 
shall:
    (1) Have access to meeting space and sufficient staff to support the 
IRB's review and recordkeeping duties;
    (2) Prepare and maintain a current list of the IRB members 
identified by name; earned degrees; representative capacity; indications 
of experience such as board certifications or licenses sufficient to 
describe each member's chief anticipated contributions to IRB 
deliberations; and any employment or other relationship between each 
member and the institution, for example, full-time employee, part-time 
employee, member of governing panel or board, stockholder, paid or 
unpaid consultant;
    (3) Establish and follow written procedures for:
    (i) Conducting its initial and continuing review of research and for 
reporting its findings and actions to the investigator and the 
institution;
    (ii) Determining which projects require review more often than 
annually and which projects need verification from sources other than 
the investigators that no material changes have occurred since previous 
IRB review; and
    (iii) Ensuring prompt reporting to the IRB of proposed changes in a 
research activity, and for ensuring that investigators will conduct the 
research activity in accordance with the terms

[[Page 225]]

of the IRB approval until any proposed changes have been reviewed and 
approved by the IRB, except when necessary to eliminate apparent 
immediate hazards to the subject.
    (4) Establish and follow written procedures for ensuring prompt 
reporting to the IRB; appropriate institutional officials; the 
department or agency head; and the Office for Human Research 
Protections, HHS, or any successor office, or the equivalent office 
within the appropriate Federal department or agency of
    (i) Any unanticipated problems involving risks to subjects or others 
or any serious or continuing noncompliance with this policy or the 
requirements or determinations of the IRB; and
    (ii) Any suspension or termination of IRB approval.
    (b) Except when an expedited review procedure is used (as described 
in Sec.  27.110), an IRB must review proposed research at convened 
meetings at which a majority of the members of the IRB are present, 
including at least one member whose primary concerns are in 
nonscientific areas. In order for the research to be approved, it shall 
receive the approval of a majority of those members present at the 
meeting.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec.  27.109  IRB review of research.

    (a) An IRB shall review and have authority to approve, require 
modifications in (to secure approval), or disapprove all research 
activities covered by this policy, including exempt research activities 
under Sec.  27.104 for which limited IRB review is a condition of 
exemption (under Sec.  27.104(d)(2)(iii), (d)(3)(i)(C), and (d)(7), and 
(8)).
    (b) An IRB shall require that information given to subjects (or 
legally authorized representatives, when appropriate) as part of 
informed consent is in accordance with Sec.  27.116. The IRB may require 
that information, in addition to that specifically mentioned in Sec.  
27.116, be given to the subjects when in the IRB's judgment the 
information would meaningfully add to the protection of the rights and 
welfare of subjects.
    (c) An IRB shall require documentation of informed consent or may 
waive documentation in accordance with Sec.  27.117.
    (d) An IRB shall notify investigators and the institution in writing 
of its decision to approve or disapprove the proposed research activity, 
or of modifications required to secure IRB approval of the research 
activity. If the IRB decides to disapprove a research activity, it shall 
include in its written notification a statement of the reasons for its 
decision and give the investigator an opportunity to respond in person 
or in writing.
    (e) An IRB shall conduct continuing review of research requiring 
review by the convened IRB at intervals appropriate to the degree of 
risk, not less than once per year, except as described in Sec.  
27.109(f).
    (f)(1) Unless an IRB determines otherwise, continuing review of 
research is not required in the following circumstances:
    (i) Research eligible for expedited review in accordance with Sec.  
27.110;
    (ii) Research reviewed by the IRB in accordance with the limited IRB 
review described in Sec.  27.104(d)(2)(iii), (d)(3)(i)(C), or (d)(7) or 
(8);
    (iii) Research that has progressed to the point that it involves 
only one or both of the following, which are part of the IRB-approved 
study:
    (A) Data analysis, including analysis of identifiable private 
information or identifiable biospecimens, or
    (B) Accessing follow-up clinical data from procedures that subjects 
would undergo as part of clinical care.
    (2) [Reserved]
    (g) An IRB shall have authority to observe or have a third party 
observe the consent process and the research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec.  27.110  Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in approved
research.

    (a) The Secretary of HHS has established, and published as a Notice 
in the Federal Register, a list of categories of research that may be 
reviewed by the IRB through an expedited review

[[Page 226]]

procedure. The Secretary will evaluate the list at least every 8 years 
and amend it, as appropriate, after consultation with other federal 
departments and agencies and after publication in the Federal Register 
for public comment. A copy of the list is available from the Office for 
Human Research Protections, HHS, or any successor office.
    (b)(1) An IRB may use the expedited review procedure to review the 
following:
    (i) Some or all of the research appearing on the list described in 
paragraph (a) of this section, unless the reviewer determines that the 
study involves more than minimal risk;
    (ii) Minor changes in previously approved research during the period 
for which approval is authorized; or
    (iii) Research for which limited IRB review is a condition of 
exemption under Sec.  27.104(d)(2)(iii), (d)(3)(i)(C), and (d)(7) and 
(8).
    (2) Under an expedited review procedure, the review may be carried 
out by the IRB chairperson or by one or more experienced reviewers 
designated by the chairperson from among members of the IRB. In 
reviewing the research, the reviewers may exercise all of the 
authorities of the IRB except that the reviewers may not disapprove the 
research. A research activity may be disapproved only after review in 
accordance with the nonexpedited procedure set forth in Sec.  27.108(b).
    (c) Each IRB that uses an expedited review procedure shall adopt a 
method for keeping all members advised of research proposals that have 
been approved under the procedure.
    (d) The department or agency head may restrict, suspend, terminate, 
or choose not to authorize an institution's or IRB's use of the 
expedited review procedure.



Sec.  27.111  Criteria for IRB approval of research.

    (a) In order to approve research covered by this policy the IRB 
shall determine that all of the following requirements are satisfied:
    (1) Risks to subjects are minimized:
    (i) By using procedures that are consistent with sound research 
design and that do not unnecessarily expose subjects to risk, and
    (ii) Whenever appropriate, by using procedures already being 
performed on the subjects for diagnostic or treatment purposes.
    (2) Risks to subjects are reasonable in relation to anticipated 
benefits, if any, to subjects, and the importance of the knowledge that 
may reasonably be expected to result. In evaluating risks and benefits, 
the IRB should consider only those risks and benefits that may result 
from the research (as distinguished from risks and benefits of therapies 
subjects would receive even if not participating in the research). The 
IRB should not consider possible long-range effects of applying 
knowledge gained in the research (e.g., the possible effects of the 
research on public policy) as among those research risks that fall 
within the purview of its responsibility.
    (3) Selection of subjects is equitable. In making this assessment 
the IRB should take into account the purposes of the research and the 
setting in which the research will be conducted. The IRB should be 
particularly cognizant of the special problems of research that involves 
a category of subjects who are vulnerable to coercion or undue 
influence, such as children, prisoners, individuals with impaired 
decision-making capacity, or economically or educationally disadvantaged 
persons.
    (4) Informed consent will be sought from each prospective subject or 
the subject's legally authorized representative, in accordance with, and 
to the extent required by, Sec.  27.116.
    (5) Informed consent will be appropriately documented or 
appropriately waived in accordance with Sec.  27.117.
    (6) When appropriate, the research plan makes adequate provision for 
monitoring the data collected to ensure the safety of subjects.
    (7) When appropriate, there are adequate provisions to protect the 
privacy of subjects and to maintain the confidentiality of data.
    (i) The Secretary of HHS will, after consultation with the Office of 
Management and Budget's privacy office and other Federal departments and 
agencies that have adopted this policy,

[[Page 227]]

issue guidance to assist IRBs in assessing what provisions are adequate 
to protect the privacy of subjects and to maintain the confidentiality 
of data.
    (ii) [Reserved]
    (8) For purposes of conducting the limited IRB review required by 
Sec.  27.104(d)(7)), the IRB need not make the determinations at 
paragraphs (a)(1) through (7) of this section, and shall make the 
following determinations:
    (i) Broad consent for storage, maintenance, and secondary research 
use of identifiable private information or identifiable biospecimens is 
obtained in accordance with the requirements of Sec.  27.116(a)(1)-(4), 
(a)(6), and (d);
    (ii) Broad consent is appropriately documented or waiver of 
documentation is appropriate, in accordance with Sec.  27.117; and
    (iii) If there is a change made for research purposes in the way the 
identifiable private information or identifiable biospecimens are stored 
or maintained, there are adequate provisions to protect the privacy of 
subjects and to maintain the confidentiality of data.
    (b) When some or all of the subjects are likely to be vulnerable to 
coercion or undue influence, such as children, prisoners, individuals 
with impaired decision-making capacity, or economically or educationally 
disadvantaged persons, additional safeguards have been included in the 
study to protect the rights and welfare of these subjects.



Sec.  27.112  Review by Institution

    Research covered by this policy that has been approved by an IRB may 
be subject to further appropriate review and approval or disapproval by 
officials of the institution. However, those officials may not approve 
the research if it has not been approved by an IRB.



Sec.  27.113  Suspension or Termination of IRB Approval of Research.

    An IRB shall have authority to suspend or terminate approval of 
research that is not being conducted in accordance with the IRB's 
requirements or that has been associated with unexpected serious harm to 
subjects. Any suspension or termination of approval shall include a 
statement of the reasons for the IRB's action and shall be reported 
promptly to the investigator, appropriate institutional officials, and 
the department or agency head.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec.  27.114  Cooperative Research.

    (a) Cooperative research projects are those projects covered by this 
policy that involve more than one institution. In the conduct of 
cooperative research projects, each institution is responsible for 
safeguarding the rights and welfare of human subjects and for complying 
with this policy.
    (b)(1) Any institution located in the United States that is engaged 
in cooperative research must rely upon approval by a single IRB for that 
portion of the research that is conducted in the United States. The 
reviewing IRB will be identified by the Federal department or agency 
supporting or conducting the research or proposed by the lead 
institution subject to the acceptance of the Federal department or 
agency supporting the research.
    (2) The following research is not subject to this provision:
    (i) Cooperative research for which more than single IRB review is 
required by law (including tribal law passed by the official governing 
body of an American Indian or Alaska Native tribe); or
    (ii) Research for which any Federal department or agency supporting 
or conducting the research determines and documents that the use of a 
single IRB is not appropriate for the particular context.
    (c) For research not subject to paragraph (b) of this section, an 
institution participating in a cooperative project may enter into a 
joint review arrangement, rely on the review of another IRB, or make 
similar arrangements for avoiding duplication of effort.



Sec.  27.115  IRB Records.

    (a) An institution, or when appropriate an IRB, shall prepare and 
maintain adequate documentation of IRB activities, including the 
following:
    (1) Copies of all research proposals reviewed, scientific 
evaluations, if any, that accompany the proposals, approved sample 
consent forms, progress

[[Page 228]]

reports submitted by investigators, and reports of injuries to subjects.
    (2) Minutes of IRB meetings, which shall be in sufficient detail to 
show attendance at the meetings; actions taken by the IRB; the vote on 
these actions including the number of members voting for, against, and 
abstaining; the basis for requiring changes in or disapproving research; 
and a written summary of the discussion of controverted issues and their 
resolution.
    (3) Records of continuing review activities, including the rationale 
for conducting continuing review of research that otherwise would not 
require continuing review as described in Sec.  27.109(f)(1).
    (4) Copies of all correspondence between the IRB and the 
investigators.
    (5) A list of IRB members in the same detail as described in Sec.  
27.108(a)(2).
    (6) Written procedures for the IRB in the same detail as described 
in Sec.  27.108(a)(3) and (4).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec.  27.116(c)(5).
    (8) The rationale for an expedited reviewer's determination under 
Sec.  27.110(b)(1)(i) that research appearing on the expedited review 
list described in Sec.  27.110(a) is more than minimal risk.
    (9) Documentation specifying the responsibilities that an 
institution and an organization operating an IRB each will undertake to 
ensure compliance with the requirements of this policy, as described in 
Sec.  27.103(e).
    (b) The records required by this policy shall be retained for at 
least 3 years, and records relating to research that is conducted shall 
be retained for at least 3 years after completion of the research. The 
institution or IRB may maintain the records in printed form, or 
electronically. All records shall be accessible for inspection and 
copying by authorized representatives of the Federal department or 
agency at reasonable times and in a reasonable manner.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec.  27.116  General Requirements for Informed Consent.

    (a) General. General requirements for informed consent, whether 
written or oral, are set forth in this paragraph and apply to consent 
obtained in accordance with the requirements set forth in paragraphs (b) 
through (d) of this section. Broad consent may be obtained in lieu of 
informed consent obtained in accordance with paragraphs (b) and (c) of 
this section only with respect to the storage, maintenance, and 
secondary research uses of identifiable private information and 
identifiable biospecimens. Waiver or alteration of consent in research 
involving public benefit and service programs conducted by or subject to 
the approval of state or local officials is described in paragraph (e) 
of this section. General waiver or alteration of informed consent is 
described in paragraph (f) of this section. Except as provided elsewhere 
in this policy:
    (1) Before involving a human subject in research covered by this 
policy, an investigator shall obtain the legally effective informed 
consent of the subject or the subject's legally authorized 
representative.
    (2) An investigator shall seek informed consent only under 
circumstances that provide the prospective subject or the legally 
authorized representative sufficient opportunity to discuss and consider 
whether or not to participate and that minimize the possibility of 
coercion or undue influence.
    (3) The information that is given to the subject or the legally 
authorized representative shall be in language understandable to the 
subject or the legally authorized representative.
    (4) The prospective subject or the legally authorized representative 
must be provided with the information that a reasonable person would 
want to have in order to make an informed decision about whether to 
participate, and an opportunity to discuss that information.
    (5) Except for broad consent obtained in accordance with paragraph 
(d) of this section:
    (i) Informed consent must begin with a concise and focused 
presentation of the key information that is most likely to assist a 
prospective subject or legally authorized representative in 
understanding the reasons why one might or might not want to participate 
in the

[[Page 229]]

research. This part of the informed consent must be organized and 
presented in a way that facilitates comprehension.
    (ii) Informed consent as a whole must present information in 
sufficient detail relating to the research, and must be organized and 
presented in a way that does not merely provide lists of isolated facts, 
but rather facilitates the prospective subject's or legally authorized 
representative's understanding of the reasons why one might or might not 
want to participate.
    (6) No informed consent may include any exculpatory language through 
which the subject or the legally authorized representative is made to 
waive or appear to waive any of the subject's legal rights, or releases 
or appears to release the investigator, the sponsor, the institution, or 
its agents from liability for negligence.
    (b) Basic elements of informed consent. Except as provided in 
paragraph (d), (e), or (f) of this section, in seeking informed consent 
the following information shall be provided to each subject or the 
legally authorized representative:
    (1) A statement that the study involves research, an explanation of 
the purposes of the research and the expected duration of the subject's 
participation, a description of the procedures to be followed, and 
identification of any procedures that are experimental;
    (2) A description of any reasonably foreseeable risks or discomforts 
to the subject;
    (3) A description of any benefits to the subject or to others that 
may reasonably be expected from the research;
    (4) A disclosure of appropriate alternative procedures or courses of 
treatment, if any, that might be advantageous to the subject;
    (5) A statement describing the extent, if any, to which 
confidentiality of records identifying the subject will be maintained;
    (6) For research involving more than minimal risk, an explanation as 
to whether any compensation and an explanation as to whether any medical 
treatments are available if injury occurs and, if so, what they consist 
of, or where further information may be obtained;
    (7) An explanation of whom to contact for answers to pertinent 
questions about the research and research subjects' rights, and whom to 
contact in the event of a research-related injury to the subject;
    (8) A statement that participation is voluntary, refusal to 
participate will involve no penalty or loss of benefits to which the 
subject is otherwise entitled, and the subject may discontinue 
participation at any time without penalty or loss of benefits to which 
the subject is otherwise entitled; and
    (9) One of the following statements about any research that involves 
the collection of identifiable private information or identifiable 
biospecimens:
    (i) A statement that identifiers might be removed from the 
identifiable private information or identifiable biospecimens and that, 
after such removal, the information or biospecimens could be used for 
future research studies or distributed to another investigator for 
future research studies without additional informed consent from the 
subject or the legally authorized representative, if this might be a 
possibility; or
    (ii) A statement that the subject's information or biospecimens 
collected as part of the research, even if identifiers are removed, will 
not be used or distributed for future research studies.
    (c) Additional elements of informed consent. Except as provided in 
paragraph (d), (e), or (f) of this section, one or more of the following 
elements of information, when appropriate, shall also be provided to 
each subject or the legally authorized representative:
    (1) A statement that the particular treatment or procedure may 
involve risks to the subject (or to the embryo or fetus, if the subject 
is or may become pregnant) that are currently unforeseeable;
    (2) Anticipated circumstances under which the subject's 
participation may be terminated by the investigator without regard to 
the subject's or the legally authorized representative's consent;
    (3) Any additional costs to the subject that may result from 
participation in the research;
    (4) The consequences of a subject's decision to withdraw from the 
research

[[Page 230]]

and procedures for orderly termination of participation by the subject;
    (5) A statement that significant new findings developed during the 
course of the research that may relate to the subject's willingness to 
continue participation will be provided to the subject;
    (6) The approximate number of subjects involved in the study;
    (7) A statement that the subject's biospecimens (even if identifiers 
are removed) may be used for commercial profit and whether the subject 
will or will not share in this commercial profit;
    (8) A statement regarding whether clinically relevant research 
results, including individual research results, will be disclosed to 
subjects, and if so, under what conditions; and
    (9) For research involving biospecimens, whether the research will 
(if known) or might include whole genome sequencing (i.e., sequencing of 
a human germline or somatic specimen with the intent to generate the 
genome or exome sequence of that specimen).
    (d) Elements of broad consent for the storage, maintenance, and 
secondary research use of identifiable private information or 
identifiable biospecimens. Broad consent for the storage, maintenance, 
and secondary research use of identifiable private information or 
identifiable biospecimens (collected for either research studies other 
than the proposed research or nonresearch purposes) is permitted as an 
alternative to the informed consent requirements in paragraphs (b) and 
(c) of this section. If the subject or the legally authorized 
representative is asked to provide broad consent, the following shall be 
provided to each subject or the subject's legally authorized 
representative:
    (1) The information required in paragraphs (b)(2), (b)(3), (b)(5), 
and (b)(8) and, when appropriate, (c)(7) and (9) of this section;
    (2) A general description of the types of research that may be 
conducted with the identifiable private information or identifiable 
biospecimens. This description must include sufficient information such 
that a reasonable person would expect that the broad consent would 
permit the types of research conducted;
    (3) A description of the identifiable private information or 
identifiable biospecimens that might be used in research, whether 
sharing of identifiable private information or identifiable biospecimens 
might occur, and the types of institutions or researchers that might 
conduct research with the identifiable private information or 
identifiable biospecimens;
    (4) A description of the period of time that the identifiable 
private information or identifiable biospecimens may be stored and 
maintained (which period of time could be indefinite), and a description 
of the period of time that the identifiable private information or 
identifiable biospecimens may be used for research purposes (which 
period of time could be indefinite);
    (5) Unless the subject or legally authorized representative will be 
provided details about specific research studies, a statement that they 
will not be informed of the details of any specific research studies 
that might be conducted using the subject's identifiable private 
information or identifiable biospecimens, including the purposes of the 
research, and that they might have chosen not to consent to some of 
those specific research studies;
    (6) Unless it is known that clinically relevant research results, 
including individual research results, will be disclosed to the subject 
in all circumstances, a statement that such results may not be disclosed 
to the subject; and
    (7) An explanation of whom to contact for answers to questions about 
the subject's rights and about storage and use of the subject's 
identifiable private information or identifiable biospecimens, and whom 
to contact in the event of a research-related harm.
    (e) Waiver or alteration of consent in research involving public 
benefit and service programs conducted by or subject to the approval of 
state or local officials--(1) Waiver. An IRB may waive the requirement 
to obtain informed consent for research under paragraphs (a) through (c) 
of this section, provided the IRB satisfies the requirements of 
paragraph (e)(3) of this section. If an individual was asked to provide 
broad consent for

[[Page 231]]

the storage, maintenance, and secondary research use of identifiable 
private information or identifiable biospecimens in accordance with the 
requirements at paragraph (d) of this section, and refused to consent, 
an IRB cannot waive consent for the storage, maintenance, or secondary 
research use of the identifiable private information or identifiable 
biospecimens.
    (2) Alteration. An IRB may approve a consent procedure that omits 
some, or alters some or all, of the elements of informed consent set 
forth in paragraphs (b) and (c) of this section provided the IRB 
satisfies the requirements of paragraph (e)(3) of this section. An IRB 
may not omit or alter any of the requirements described in paragraph (a) 
of this section. If a broad consent procedure is used, an IRB may not 
omit or alter any of the elements required under paragraph (d) of this 
section.
    (3) Requirements for waiver and alteration. In order for an IRB to 
waive or alter consent as described in this subsection, the IRB must 
find and document that:
    (i) The research or demonstration project is to be conducted by or 
subject to the approval of state or local government officials and is 
designed to study, evaluate, or otherwise examine:
    (A) Public benefit or service programs;
    (B) Procedures for obtaining benefits or services under those 
programs;
    (C) Possible changes in or alternatives to those programs or 
procedures; or
    (D) Possible changes in methods or levels of payment for benefits or 
services under those programs; and
    (ii) The research could not practicably be carried out without the 
waiver or alteration.
    (f) General waiver or alteration of consent--(1) Waiver. An IRB may 
waive the requirement to obtain informed consent for research under 
paragraphs (a) through (c) of this section, provided the IRB satisfies 
the requirements of paragraph (f)(3) of this section. If an individual 
was asked to provide broad consent for the storage, maintenance, and 
secondary research use of identifiable private information or 
identifiable biospecimens in accordance with the requirements at 
paragraph (d) of this section, and refused to consent, an IRB cannot 
waive consent for the storage, maintenance, or secondary research use of 
the identifiable private information or identifiable biospecimens.
    (2) Alteration. An IRB may approve a consent procedure that omits 
some, or alters some or all, of the elements of informed consent set 
forth in paragraphs (b) and (c) of this section provided the IRB 
satisfies the requirements of paragraph (f)(3) of this section. An IRB 
may not omit or alter any of the requirements described in paragraph (a) 
of this section. If a broad consent procedure is used, an IRB may not 
omit or alter any of the elements required under paragraph (d) of this 
section.
    (3) Requirements for waiver and alteration. In order for an IRB to 
waive or alter consent as described in this subsection, the IRB must 
find and document that:
    (i) The research involves no more than minimal risk to the subjects;
    (ii) The research could not practicably be carried out without the 
requested waiver or alteration;
    (iii) If the research involves using identifiable private 
information or identifiable biospecimens, the research could not 
practicably be carried out without using such information or 
biospecimens in an identifiable format;
    (iv) The waiver or alteration will not adversely affect the rights 
and welfare of the subjects; and
    (v) Whenever appropriate, the subjects or legally authorized 
representatives will be provided with additional pertinent information 
after participation.
    (g) Screening, recruiting, or determining eligibility. An IRB may 
approve a research proposal in which an investigator will obtain 
information or biospecimens for the purpose of screening, recruiting, or 
determining the eligibility of prospective subjects without the informed 
consent of the prospective subject or the subject's legally authorized 
representative, if either of the following conditions are met:

[[Page 232]]

    (1) The investigator will obtain information through oral or written 
communication with the prospective subject or legally authorized 
representative, or
    (2) The investigator will obtain identifiable private information or 
identifiable biospecimens by accessing records or stored identifiable 
biospecimens.
    (h) Posting of clinical trial consent form. (1) For each clinical 
trial conducted or supported by a Federal department or agency, one IRB-
approved informed consent form used to enroll subjects must be posted by 
the awardee or the Federal department or agency component conducting the 
trial on a publicly available Federal Web site that will be established 
as a repository for such informed consent forms.
    (2) If the Federal department or agency supporting or conducting the 
clinical trial determines that certain information should not be made 
publicly available on a Federal Web site (e.g. confidential commercial 
information), such Federal department or agency may permit or require 
redactions to the information posted.
    (3) The informed consent form must be posted on the Federal Web site 
after the clinical trial is closed to recruitment, and no later than 60 
days after the last study visit by any subject, as required by the 
protocol.
    (i) Preemption. The informed consent requirements in this policy are 
not intended to preempt any applicable Federal, state, or local laws 
(including tribal laws passed by the official governing body of an 
American Indian or Alaska Native tribe) that require additional 
information to be disclosed in order for informed consent to be legally 
effective.
    (j) Emergency medical care. Nothing in this policy is intended to 
limit the authority of a physician to provide emergency medical care, to 
the extent the physician is permitted to do so under applicable Federal, 
state, or local law (including tribal law passed by the official 
governing body of an American Indian or Alaska Native tribe).

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec.  27.117  Documentation of informed consent.

    (a) Except as provided in paragraph (c) of this section, informed 
consent shall be documented by the use of a written informed consent 
form approved by the IRB and signed (including in an electronic format) 
by the subject or the subject's legally authorized representative. A 
written copy shall be given to the person signing the informed consent 
form.
    (b) Except as provided in paragraph (c) of this section, the 
informed consent form may be either of the following:
    (1) A written informed consent form that meets the requirements of 
Sec.  27.116. The investigator shall give either the subject or the 
subject's legally authorized representative adequate opportunity to read 
the informed consent form before it is signed; alternatively, this form 
may be read to the subject or the subject's legally authorized 
representative.
    (2) A short form written informed consent form stating that the 
elements of informed consent required by Sec.  27.116 have been 
presented orally to the subject or the subject's legally authorized 
representative, and that the key information required by Sec.  
27.116(a)(5)(i) was presented first to the subject, before other 
information, if any, was provided. The IRB shall approve a written 
summary of what is to be said to the subject or the legally authorized 
representative. When this method is used, there shall be a witness to 
the oral presentation. Only the short form itself is to be signed by the 
subject or the subject's legally authorized representative. However, the 
witness shall sign both the short form and a copy of the summary, and 
the person actually obtaining consent shall sign a copy of the summary. 
A copy of the summary shall be given to the subject or the subject's 
legally authorized representative, in addition to a copy of the short 
form.
    (c)(1) An IRB may waive the requirement for the investigator to 
obtain a signed informed consent form for some or all subjects if it 
finds any of the following:
    (i) That the only record linking the subject and the research would 
be the

[[Page 233]]

informed consent form and the principal risk would be potential harm 
resulting from a breach of confidentiality. Each subject (or legally 
authorized representative) will be asked whether the subject wants 
documentation linking the subject with the research, and the subject's 
wishes will govern;
    (ii) That the research presents no more than minimal risk of harm to 
subjects and involves no procedures for which written consent is 
normally required outside of the research context; or
    (iii) If the subjects or legally authorized representatives are 
members of a distinct cultural group or community in which signing forms 
is not the norm, that the research presents no more than minimal risk of 
harm to subjects and provided there is an appropriate alternative 
mechanism for documenting that informed consent was obtained.
    (2) In cases in which the documentation requirement is waived, the 
IRB may require the investigator to provide subjects or legally 
authorized representatives with a written statement regarding the 
research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec.  27.118  Applications and proposals lacking definite plans for 
involvement of human subjects.

    Certain types of applications for grants, cooperative agreements, or 
contracts are submitted to Federal departments or agencies with the 
knowledge that subjects may be involved within the period of support, 
but definite plans would not normally be set forth in the application or 
proposal. These include activities such as institutional type grants 
when selection of specific projects is the institution's responsibility; 
research training grants in which the activities involving subjects 
remain to be selected; and projects in which human subjects' involvement 
will depend upon completion of instruments, prior animal studies, or 
purification of compounds. Except for research waived under Sec.  
27.101(i) or exempted under Sec.  27.104, no human subjects may be 
involved in any project supported by these awards until the project has 
been reviewed and approved by the IRB, as provided in this policy, and 
certification submitted, by the institution, to the Federal department 
or agency component supporting the research.



Sec.  27.119  Research undertaken without the intention of involving 
human subjects.

    Except for research waived under Sec.  27.101(i) or exempted under 
Sec.  27.104, in the event research is undertaken without the intention 
of involving human subjects, but it is later proposed to involve human 
subjects in the research, the research shall first be reviewed and 
approved by an IRB, as provided in this policy, a certification 
submitted by the institution to the Federal department or agency 
component supporting the research, and final approval given to the 
proposed change by the Federal department or agency component.



Sec.  27.120  Evaluation and disposition of applications and proposals
for research to be conducted or supported by a Federal department or
agency.

    (a) The department or agency head will evaluate all applications and 
proposals involving human subjects submitted to the Federal department 
or agency through such officers and employees of the Federal department 
or agency and such experts and consultants as the department or agency 
head determines to be appropriate. This evaluation will take into 
consideration the risks to the subjects, the adequacy of protection 
against these risks, the potential benefits of the research to the 
subjects and others, and the importance of the knowledge gained or to be 
gained.
    (b) On the basis of this evaluation, the department or agency head 
may approve or disapprove the application or proposal, or enter into 
negotiations to develop an approvable one.



Sec.  27.121  [Reserved]



Sec.  27.122  Use of Federal funds.

    Federal funds administered by a Federal department or agency may not 
be expended for research involving human subjects unless the 
requirements of this policy have been satisfied.

[[Page 234]]



Sec.  27.123  Early termination of research support: Evaluation of 
applications and proposals.

    (a) The department or agency head may require that Federal 
department or agency support for any project be terminated or suspended 
in the manner prescribed in applicable program requirements, when the 
department or agency head finds an institution has materially failed to 
comply with the terms of this policy.
    (b) In making decisions about supporting or approving applications 
or proposals covered by this policy the department or agency head may 
take into account, in addition to all other eligibility requirements and 
program criteria, factors such as whether the applicant has been subject 
to a termination or suspension under paragraph (a) of this section and 
whether the applicant or the person or persons who would direct or has/
have directed the scientific and technical aspects of an activity has/
have, in the judgment of the department or agency head, materially 
failed to discharge responsibility for the protection of the rights and 
welfare of human subjects (whether or not the research was subject to 
federal regulation).



Sec.  27.124  Conditions.

    With respect to any research project or any class of research 
projects the department or agency head of either the conducting or the 
supporting Federal department or agency may impose additional conditions 
prior to or at the time of approval when in the judgment of the 
department or agency head additional conditions are necessary for the 
protection of human subjects.



PART 28_NEW RESTRICTIONS ON LOBBYING--Table of Contents



                            Subpart A_General

Sec.
28.100 Conditions on use of funds.
28.105 Definitions.
28.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

28.200 Agency and legislative liaison.
28.205 Professional and technical services.
28.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

28.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

28.400 Penalties.
28.405 Penalty procedures.
28.410 Enforcement.

                          Subpart E_Exemptions

28.500 Secretary of Defense.

                        Subpart F_Agency Reports

28.600 Semi-annual compilation.
28.605 Inspector General report.

Appendix A to Part 28--Certification Regarding Lobbying
Appendix B to Part 28--Disclosure Form To Report Lobbying

    Authority: Sec. 319, Pub. L. 101-121 (31 U.S.C. 1352; 5 U.S.C. 301; 
Sec. 4, as amended, and sec. 5, Pub. L. 101-410, 104 Stat. 890 (28 
U.S.C. 2461 note); Pub. L. 104-134, 110 Stat. 1321, 28 U.S.C. 2461 note.

    Source: 55 FR 6737, 6748, 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.  28.100  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

[[Page 235]]

not make, any payment prohibited by paragraph (a) of this section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in Appendix B, if such person has 
made or has agreed to make any payment using nonappropriated funds (to 
include profits from any covered Federal action), which would be 
prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in Appendix A, whether that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in Appendix B, if that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.



Sec.  28.105  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.

[[Page 236]]

    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer or employee for 
work that is not furnished to, not funded by, or not furnished in 
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as 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.  28.110  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

[[Page 237]]

    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000,

unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraphs (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraphs (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,

shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraphs 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (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.  28.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec.  
28.100 (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

[[Page 238]]

qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Public Law 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec.  28.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
28.100(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.  28.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.

[[Page 239]]



            Subpart C_Activities by Other Than Own Employees



Sec.  28.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
28.100 (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.  28.110 (a) and (b) regarding 
filing a disclosure form by each person, if required, shall not apply 
with respect to professional or technical services rendered directly in 
the preparation, submission, or negotiation of any commitment providing 
for the United States to insure or guarantee a loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting or a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                   Subpart D_Penalties and Enforcement



Sec.  28.400  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 made on or before October 23, 1996, 
and of not less than $11,000 and not more than $110,000 for each such 
expenditure made after October 23, 1996.
    (b) Any person who fails to file or amend the disclosure form (see 
Appendix B of this part) 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 occurring on or before October 
23, 1996, and of not less than $11,000 and not more than $110,000 for 
each such failure occurring after October 23, 1996.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil

[[Page 240]]

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 for each such offense committed on or before October 23, 
1996, and $11,000 for each such offense committed after October 23, 
1996. Second and subsequent offenses by persons shall be subject to an 
appropriate civil penalty between $10,000 and $100,000 for each such 
offense committed on or before October 23, 1996, and between $11,000 and 
$110,000 for each such offense committed after October 23, 1996, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.

[55 FR 6737, 6748, Feb. 26, 1990, as amended at 61 FR 55095, Oct. 24, 
1996]



Sec.  28.405  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.  28.410  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.  28.500  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.  28.600  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

[[Page 241]]

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.  28.605  Inspector General report.

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



      Sec. Appendix A to Part 28--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 occurring on or before October 23, 1996, 
and of not less than $11,000 and not more than

[[Page 242]]

$110,000 for each such failure occurring after October 23, 1996.

            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 occurring on or before October 23, 1996, 
and of not less than $11,000 and not more than $110,000 for each such 
failure occurring after October 23, 1996.

[55 FR 6737, 6748, Feb. 26, 1990, as amended at 61 FR 55095, Oct. 24, 
1996]

[[Page 243]]



     Sec. Appendix B to Part 28--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC20SE91.001


[[Page 244]]


[GRAPHIC] [TIFF OMITTED] TC20SE91.002


[[Page 245]]


[GRAPHIC] [TIFF OMITTED] TC20SE91.003



PART 29_PROCEDURES FOR GUIDANCE DOCUMENTS--Table of Contents



Sec.
29.1 Definitions.
29.2 Procedures for issuing guidance documents.
29.3 Public petition for withdrawal or modification.
29.4 General provisions.

    Authority: 15 U.S.C. 1512.

    Source: 85 FR 60695, Sept. 28, 2020, unless otherwise noted.



Sec.  29.1  Definitions.

    As used in this part:
    Administrator means the Administrator of the Office of Management 
and

[[Page 246]]

Budget's Office of Information and Regulatory Affairs (OIRA).
    Department means the Department of Commerce including any of its 
component bureaus and agencies.
    Guidance document means a Department statement of general 
applicability, intended to have future effect on the behavior of 
regulated parties, that sets forth a policy on a statutory, regulatory, 
or technical issue, or an interpretation of a statute or regulation, but 
does not include the following:
    (1) Rules promulgated pursuant to notice and comment under 5 U.S.C. 
553, or similar statutory provisions;
    (2) Rules exempt from rulemaking requirements under 5 U.S.C. 553(a);
    (3) Rules of Department organization, procedure, or practice;
    (4) Decisions of Department adjudications under 5 U.S.C. 554, or 
similar statutory provisions;
    (5) Internal guidance directed to the Department that is not 
intended to have substantial future effect on the behavior of regulated 
parties; or
    (6) Internal executive legal advice or legal opinions addressed to 
executive branch officials.
    Pre-enforcement ruling means a formal written communication by the 
Department in response to an inquiry from a person concerning compliance 
with legal requirements that interprets the law or applies the law to a 
specific set of facts supplied by the person. The term includes informal 
guidance under section 213 of the Small Business Regulatory Enforcement 
Fairness Act of 1996, Public Law 104-121 (Title II), as amended, letter 
rulings, advisory opinions, and no-action letters.
    Secretary means the Secretary of Commerce.
    Significant guidance document means a guidance document deemed to be 
significant by OIRA because it may reasonably be anticipated to:
    (1) Lead to an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public health 
or safety, or State, local, or tribal governments or communities;
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, loan programs, or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles of Executive 
Order 12866.



Sec.  29.2  Procedures for issuing guidance documents.

    (a) The Department will indicate prominently that each guidance 
document does not bind the public, except as authorized by law or as 
incorporated into a contract.
    (b) The Department will comply with Executive Orders 12866, 13563, 
13609, 13771 and 13777 in issuing guidance documents.
    (c)(1) For a significant guidance document, as determined by the 
Administrator unless the Department and the Administrator agree that 
exigency, safety, health, or other compelling cause warrants an 
exception from some or all requirements, the Department will:
    (i) Provide a period of public notice and comment of at least 30 
days before issuance of a final guidance document, and a public response 
from the Department to major concerns raised in comments, except when 
the Department for good cause finds (and incorporates such finding and a 
brief statement of reasons therefor into the guidance document) that 
notice and public comment thereon are impracticable, unnecessary, or 
contrary to the public interest;
    (ii) Seek approval on a non-delegable basis by the Secretary or by a 
Department component head appointed by the President, before issuance; 
and
    (iii) Submit the significant guidance document for review by OIRA 
under Executive Order 12866 before issuance.
    (2) This section does not apply to pre-enforcement rulings.
    (3) This section does not apply to any document that falls within a 
class which the Administrator or the Administrator's designee has 
determined is exempt from consideration as significant guidance 
documents.

[[Page 247]]



Sec.  29.3  Public petition for withdrawal or modification.

    (a) The public may petition for withdrawal or modification of a 
particular guidance document by submitting such petition through the 
designated website: Department of Commerce: www.commerce.gov/guidance; 
Bureau of Economic Analysis (BEA): www.bea.gov/guidance; Bureau of 
Industry and Security (BIS): www.bis.doc.gov/guidance; U.S. Census 
Bureau: www.census.gov/guidance; Economic Development Administration: 
www.eda.gov/guidance; International Trade Administration (ITA): 
www.trade.gov/guidance; Minority Business Development Agency (MBDA): 
www.mbda.gov/guidance; National Institute of Standards and Technology 
(NIST): www.nist.gov/guidance; National Oceanic and Atmospheric 
Administration (NOAA): www.noaa.gov/guidance; National Technical 
Information Service (NTIS): www.ntis.gov/guidance; National 
Telecommunications and Information Administration (NTIA): 
www.ntia.doc.gov/guidance; and U.S. Patent and Trademark Office (USPTO): 
www.uspto.gov/guidance.
    (b) The Department or the relevant individual bureau will provide a 
response to such petition within 90 days of receipt of the petition.



Sec.  29.4  General provisions.

    Notwithstanding any other provision in this part, nothing in this 
part shall apply:
    (a) To any action that pertains to foreign or military affairs, or 
to a national security or homeland security function of the United 
States (other than guidance documents involving procurement or the 
import or export of articles and services subject to the Department's 
jurisdiction);
    (b) To any action related to a criminal investigation or 
prosecution, including undercover operations, or any civil enforcement 
action or related to a criminal investigation or prosecution, including 
undercover operations, or any civil enforcement action or related 
investigation by the Department of Justice, including any action related 
to a civil investigative demand under 18 U.S.C. 1968;
    (c) To any investigation of misconduct by a Department employee or 
any disciplinary, corrective, or employment action taken against a 
Department employee;
    (d) To any document or information that is exempt from disclosure 
under the Freedom of Information Act (FOIA), 5 U.S.C. 552(b); or
    (e) In any other circumstance or proceeding to which application of 
this section, or any part of this part, would, in the judgment of the 
Secretary, undermine the national security.

[[Page 249]]

     Subtitle B--Regulations Relating to Commerce and Foreign Trade

[[Page 251]]



         CHAPTER I--BUREAU OF THE CENSUS, DEPARTMENT OF COMMERCE




  --------------------------------------------------------------------
Part                                                                Page
30              Foreign trade regulations...................         253
40              Training of foreign participants in census 
                    procedures and general statistics.......         300
50              Special services and studies by the Bureau 
                    of the Census...........................         302
60              Public information..........................         306
70              Cutoff dates for recognition of boundary 
                    changes for the 2010 Census.............         306
80              Furnishing personal census data from census 
                    of population schedules.................         307
90              Procedure for challenging population 
                    estimates...............................         309
100             Seal........................................         311
101             Release of decennial census population 
                    information.............................         311
102-199

[Reserved]

[[Page 253]]



PART 30_FOREIGN TRADE REGULATIONS--Table of Contents



                     Subpart A_General Requirements

Sec.
30.1 Purpose and definitions.
30.2 General requirements for filing Electronic Export Information 
          (EEI).
30.3 Electronic Export Information filer requirements, parties to export 
          transactions, and responsibilities of parties to export 
          transactions.
30.4 Electronic Export Information filing procedures, deadlines, and 
          certification statements.
30.5 Electronic Export Information filing processes and standards.
30.6 Electronic Export Information data elements.
30.7 Annotating the bill of lading, air waybill, or other commercial 
          loading documents with the proof of filing citations, and 
          exemption legends.
30.8 Time and place for presenting proof of filing citations and 
          exemption legends.
30.9 Transmitting and correcting Electronic Export Information.
30.10 Retention of export information and authority to require 
          production of documents.
30.11-30.14 [Reserved]

           Subpart B_Export Control and Licensing Requirements

30.15 Introduction.
30.16 Export Administration Regulations.
30.17 Customs and Border Protection regulations.
30.18 Department of State regulations.
30.19 Other Federal agency regulations.
30.20-30.24 [Reserved]

       Subpart C_Special Provisions and Specific-Type Transactions

30.25 Values for certain types of transactions.
30.26 Reporting of vessels, aircraft, cargo vans, and other carriers and 
          containers.
30.27 Return of exported cargo to the United States prior to reaching 
          its final destination.
30.28 Split shipments.
30.29 Reporting of repairs and replacements.
30.30-30.34 [Reserved]

Subpart D_Exemptions From the Requirements for the Filing of Electronic 
                           Export Information

30.35 Procedure for shipments exempt from filing requirements.
30.36 Exemption for shipments destined to Canada.
30.37 Miscellaneous exemptions.
30.38 Exemption from the requirements for reporting complete commodity 
          information.
30.39 Special exemptions for shipments to the U.S. Armed Services.
30.40 Special exemptions for certain shipments to U.S. government 
          agencies and employees.
30.41-30.44 [Reserved]

                     Subpart E_Manifest Requirements

30.45 Manifest requirements.
30.46-30.49 [Reserved]

                      Subpart F_Import Requirements

30.50 General requirements for filing import entries.
30.51 Statistical information required for import entries.
30.52 Foreign Trade Zones.
30.53 Import of goods returned for repair.
30.54 Special provisions for imports from Canada.
30.55 Confidential information, import entries, and withdrawals.
30.56-30.59 [Reserved]

               Subpart G_General Administrative Provisions

30.60 Confidentiality of Electronic Export Information.
30.61 Statistical classification schedules.
30.62 Emergency exceptions.
30.63 Office of Management and Budget control numbers assigned pursuant 
          to the Paperwork Reduction Act.
30.64-30.69 [Reserved]

                           Subpart H_Penalties

30.70 Violation of the Clean Diamond Trade Act.
30.71 False or fraudulent reporting on or misuse of the Automated Export 
          System.
30.72 Civil penalty procedures.
30.73 Enforcement.
30.74 Voluntary self-disclosure.
30.75-30.99 [Reserved]

Appendix A To Part 30--Sample for Power of Attorney and Written 
          Authorization
Appendix B To Part 30--AES Filing Citation, Exemption and Exclusion 
          Legends

    Authority: 5 U.S.C. 301; 13 U.S.C. 301-307; Reorganization plan No. 
5 of 1990 (3 CFR 1949-1953 Comp., p.1004); Department of Commerce 
Organization Order No. 35-2A, July 22, 1987, as amended and No. 35-2B, 
December 20, 1996, as amended; Public Law 107-228, 116 Stat. 1350.

    Source: 73 FR 31555, June 2, 2008, unless otherwise noted.

[[Page 254]]



                     Subpart A_General Requirements



Sec.  30.1  Purpose and definitions.

    (a) This part sets forth the Foreign Trade Regulations (FTR) as 
required under the provisions of Title 13, United States Code (U.S.C.), 
Chapter 9, section 301. These regulations are revised pursuant to 
provisions of the Foreign Relations Authorization Act, Public Law 107-
228 (the Act). This Act authorizes the Secretary of Commerce, with the 
concurrence of the Secretary of State and the Secretary of Homeland 
Security, to publish regulations mandating that all persons who are 
required to file export information under Chapter 9 of 13 U.S.C., file 
such information through the Automated Export System (AES) for all 
shipments where a Shipper's Export Declaration (SED) was previously 
required. The law further authorizes the Secretary of Commerce to issue 
regulations regarding imposition of civil and criminal penalties for 
violations of the provisions of the Act and these regulations.
    (b) Electronic filing through the AES strengthens the U.S. 
government's ability to prevent the export of certain items to 
unauthorized destinations and/or end users because the AES aids in 
targeting, identifying, and when necessary confiscating suspicious or 
illegal shipments prior to exportation.
    (c) Definitions used in the FTR. As used in this part, the following 
definitions apply:
    AES applicant. The USPPI or authorized agent who reports export 
information electronically to the AES, or through AESDirect.
    AESDirect. An Internet portal within the Automated Commercial 
Environment that allows USPPIs and authorized agents to transmit EEI to 
the AES. All regulatory requirements pertaining to the AES also apply to 
AESDirect.
    AES downtime filing citation. A statement used in place of a proof 
of filing citation when the AES or AESDirect are inoperable.
    Air waybill. The shipping document used for the transportation of 
air freight includes conditions, limitations of liability, shipping 
instructions, description of commodity, and applicable transportation 
charges. It is generally similar to a straight non-negotiable bill of 
lading and is used for similar purposes.
    Annotation. An explanatory note (e.g., proof of filing citation, 
postdeparture filing citation, AES downtime filing citation, exemption 
or exclusion legend) on the bill of lading, air waybill, export shipping 
instructions, other commercial loading documents or electronic 
equivalent.
    Authorized agent. An individual or legal entity physically located 
in or otherwise under the jurisdiction of the United States that has 
obtained power of attorney or written authorization from a USPPI or FPPI 
to act on its behalf, and for purposes of this part, to complete and 
file the EEI.
    Automated Broker Interface (ABI). A CBP system through which an 
importer or licensed customs broker can electronically file entry and 
entry summary data on goods imported into the United States.
    Automated Commercial Environment (ACE). A CBP authorized electronic 
data interchange system for processing import and export data.
    Automated Export System (AES). The system for collecting EEI (or any 
successor to the Shipper's Export Declaration) from persons exporting 
goods from the United States, Puerto Rico, or the U.S. Virgin Islands; 
between Puerto Rico and the United States; and to the U.S. Virgin 
Islands from the United States or Puerto Rico. The AES is currently 
accessed through the Automated Commercial Environment.
    Automated Export System Trade Interface Requirements (AESTIR). The 
document that describes the technical and operational requirements of 
the AES. The AESTIR presents record formats and other reference 
information used in the AES.
    Bill of Lading (BL). A document that establishes the terms of a 
contract under which freight is to be moved between specified points for 
a specified charge. It is issued by the carrier based on instructions 
provided by the shipper or its authorized agent. It may serve as a 
document of title, a contract of carriage, and a receipt for goods.
    Bond. An instrument used by CBP as security to ensure the payment of 
duties, taxes and fees and/or compliance

[[Page 255]]

with certain requirements such as the submission of manifest 
information.
    Bonded warehouse. An approved private warehouse used for the storage 
of goods until duties or taxes are paid and the goods are properly 
released by CBP. Bonds must be posted by the warehouse proprietor and by 
the importer to indemnify the government if the goods are released 
improperly.
    Booking. A reservation made with a carrier for a shipment of goods 
on a specific voyage, flight, truck or train.
    Bureau of Industry and Security (BIS). This bureau within the U.S. 
Department of Commerce is concerned with the advancement of U.S. 
national security, foreign policy, and economic interests. The BIS is 
responsible for regulating the export of sensitive goods and 
technologies; enforcing export control, antiboycott, and public safety 
laws; cooperating with and assisting other countries on export control 
and strategic trade issues; and assisting U.S. industry to comply with 
international arms control agreements.
    Buyer. The principal in the export transaction that purchases the 
commodities for delivery to the ultimate consignee. The buyer and 
ultimate consignee may be the same.
    Cargo. Goods being transported.
    Carnet. An international customs document that allows the carnet 
holder to import into the United States or export to foreign countries 
certain goods on a temporary basis without the payment of duties.
    Carrier. An individual or legal entity in the business of 
transporting passengers or goods. Airlines, trucking companies, railroad 
companies, shipping lines, pipeline companies, slot charterers, and Non-
Vessel Operating Common Carriers (NVOCCs) are all examples of carriers.
    Civil penalty. A monetary penalty imposed on a USPPI, authorized 
agent, FPPI, carrier, or other party to the transaction for violating 
the FTR, including failing to file export information, filing false or 
misleading information, filing information late, and/or using the AES to 
further any illegal activity, and/or violating any other regulations of 
this part.
    Commerce Control List (CCL). A list of items found in Supplement No. 
1 to Part 774 of the EAR. Supplement No. 2 to Part 774 of the EAR 
contains the General Technology and Software Notes relevant to entries 
contained in the CCL.
    Commercial loading document. A document that establishes the terms 
of a contract between a shipper and a transportation company under which 
freight is to be moved between points for a specific charge. It is 
usually prepared by the shipper, the shipper's agent or the carrier and 
serves as a contract of carriage. Examples of commercial loading 
documents include the air waybill, ocean bill of lading, truck bill, 
rail bill of lading, and U.S. Postal Service customs declaration form.
    Compliance alert. An electronic response sent to the filer by the 
AES when the shipment was not reported in accordance with this part 
(e.g., late filing). The filer is required to review their filing 
practices and take steps to conform with export reporting requirements.
    Consignee. The person or entity named in a freight contract, a 
contract of carriage that designates to whom goods have been consigned, 
and that has the legal right to claim the goods at the destination.
    Consignment. Delivery of goods from a USPPI (the consignor) to an 
agent (consignee) under agreement that the agent sells the goods for the 
account of the USPPI.
    Container. The term container shall mean an article of transport 
equipment (lift-van, movable tank or other similar structure):
    (i) Fully or partially enclosed to constitute a compartment intended 
for containing goods;
    (ii) Of a permanent character and accordingly strong enough to be 
suitable for repeated use;
    (iii) Specially designed to facilitate the carriage of goods, by one 
or more modes of transport, without intermediate reloading;
    (iv) Designed for ready handling, particularly when being 
transferred from one mode of transport to another;
    (v) Designed to be easy to fill and to empty; and
    (vi) Having an internal volume of one cubic meter or more; the term 
``container'' shall include the accessories

[[Page 256]]

and equipment of the container, appropriate for the type concerned, 
provided that such accessories and equipment are carried with the 
container. The term ``container'' shall not include vehicles, 
accessories or spare parts of vehicles, or packaging. Demountable bodies 
are to be treated as containers.
    Controlling agency. The agency responsible for the license 
determination on specified goods exported from the United States.
    Cost of goods sold. Cost of goods is the sum of expenses incurred in 
the USPPI acquisition or production of the goods.
    Country of origin. The country where the goods were mined, grown, or 
manufactured or where each foreign material used or incorporated in a 
good underwent a change in tariff classification indicating a 
substantial transformation under the applicable rule of origin for the 
good. The country of origin for U.S. imports are reported in terms of 
the International Standards Organization (ISO) codes designated in the 
Schedule C, Classification of Country and Territory Designations.
    Country of ultimate destination. The country where the goods are to 
be consumed, further processed, stored, or manufactured, as known to the 
USPPI at the time of export. (See Sec.  30.6(a)(5).
    Criminal penalty. For the purpose of this part, a penalty imposed 
for knowingly or willfully violating the FTR, including failing to file 
export information, filing false or misleading information, filing 
information late, and/or using the AES to further illegal activity. The 
criminal penalty includes fines, imprisonment, and/or forfeiture.
    Customs broker. An individual or entity licensed to enter and clear 
imported goods through CBP for another individual or entity.
    Destination. The foreign location to which a shipment is consigned.
    Diplomatic pouch. Any properly identified and sealed pouch, package, 
envelope, bag, or other container that is used to transport official 
correspondence, documents, and articles intended for official use, 
between embassies, legations, or consulates, and the foreign office of 
any government.
    Distributor. An agent who sells directly for a supplier and 
maintains an inventory of the supplier's products.
    Domestic goods. Goods that are grown, produced, or manufactured in 
the United States, or previously imported goods that have undergone 
substantial transformation in the United States, including changes made 
in a U.S. FTZ, from the form in which they were imported, or that have 
been substantially enhanced in value or improved in condition by further 
processing or manufacturing in the United States.
    Drayage. The charge made for hauling freight, carts, drays, or 
trucks.
    Dun & Bradstreet Number (DUNS). The DUNS Number is a unique 9-digit 
identification sequence that provides identifiers to single business 
entities while linking corporate family structures together.
    Dunnage. Materials placed around cargo to prevent shifting or damage 
while in transit.
    Duty. A charge imposed on the import of goods. Duties are generally 
based on the value of the goods (ad valorem duties), some other factor, 
such as weight or quantity (specific duties), or a combination of value 
and other factors (compound duties).
    Electronic CBP Form 214 Admissions (e214). An automated CBP 
mechanism that allows importers, brokers, and zone operators to report 
FTZ admission information electronically via the CBP's Automated Broker 
Interface. The e214 is the electronic mechanism that replaced the Census 
Bureau's Automated Foreign Trade Zone Reporting Program (AFTZRP).
    Electronic Export Information (EEI). The electronic export data as 
filed in the AES. This is the electronic equivalent of the export data 
formerly collected on the Shipper's Export Declaration (SED) and now 
mandated to be filed through the AES or AESDirect.
    Employer identification number (EIN). The USPPI's Internal Revenue 
Service (IRS) EIN is the 9-digit numerical code as reported on the 
Employer's Quarterly Federal Tax Return, Treasury Form 941.
    End user. The person abroad that receives and ultimately uses the 
exported or reexported items. The end user is not an authorized agent or 
intermediary, but may be the FPPI or ultimate consignee.

[[Page 257]]

    Enhancement. A change or modification to goods that increases their 
value or improves their condition.
    Entry number. Consists of a three-position entry filer code and a 
seven-position transaction code, plus a check digit assigned by the 
entry filer as a tracking number for goods entered into the United 
States.
    Equipment number. The identification number for shipping equipment, 
such as container or igloo (Unit Load Device (ULD)) number, truck 
license number, or rail car number.
    Exclusions. Transactions outside of the scope of the FTR that are 
excluded from the requirement of filing EEI.
    Exemption. A specific reason as cited within this part that 
eliminates the requirement for filing EEI.
    Exemption legend. A notation placed on the bill of lading, air 
waybill, export shipping instructions, or other commercial loading 
document that describes the basis for not filing EEI for an export 
transaction. The exemption legend shall reference the number of the 
section or provision in the FTR where the particular exemption is 
provided (See appendix B to this part).
    Export. To send or transport goods out of a country.
    Export Administration Regulations (EAR). Regulations administered by 
the BIS that, among other things, provide specific instructions on the 
use and types of export licenses required for certain commodities, 
software, and technology. These regulations are located in 15 CFR parts 
730 through 774.
    Export control. Governmental control of exports for statistical or 
strategic and short supply or national security purposes, and/or for 
foreign policy purposes.
    Export Control Classification Number (ECCN). The number used to 
identify items on the CCL, Supplement No. 1 to Part 774 of the EAR. The 
ECCN consists of a set of digits and a letter. Items that are not 
classified under an ECCN are designated ``EAR99.'' Section 738.2 of the 
EAR describes the ECCN format.
    Export license. A controlling agency's document authorizing export 
of particular goods in specific quantities or values to a particular 
destination. Issuing agencies include, but are not limited to, the U.S. 
State Department; the BIS; the Bureau of Alcohol, Tobacco, and Firearms; 
and the Drug Enforcement Administration permit to export.
    Export statistics. The measure of quantity and value of goods 
(except for shipments to U.S. military forces overseas) moving out of 
the United States to foreign countries, whether such goods are exported 
from within the Customs territory of the United States, a CBP bonded 
warehouse, or a U.S. Foreign Trade Zone (FTZ).
    Fatal error message. An electronic response sent to the filer by the 
AES when invalid or missing data has been encountered, the EEI has been 
rejected, and the information is not on file in the AES.
    Filer. The USPPI or authorized agent (of either the USPPI or FPPI) 
who has been approved to file EEI.
    Filer ID. The Employer Identification Number or Dun & Bradstreet 
Number of the company or individual filing the export information in the 
Automated Export System.
    Filing electronic export information. The act of entering the EEI in 
the AES.
    Foreign entity. A person that temporarily enters into the United 
States and purchases or obtains goods for export. This person does not 
physically maintain an office or residence in the United States. This is 
a special class of USPPI.
    Foreign goods. Goods that were originally grown, produced, or 
manufactured in a foreign country, then subsequently entered into the 
United States, admitted to a U.S. FTZ, or entered into a CBP bonded 
warehouse, but not substantially transformed in form or condition by 
further processing or manufacturing in the United States, U.S. FTZs, 
Puerto Rico, or the U.S. Virgin Islands.
    Foreign port of unlading. The port in a foreign country where the 
goods are removed from the exporting carrier. The foreign port does not 
have to be located in the country of destination. The foreign port of 
unlading shall be reported in terms of the Schedule K, ``Classification 
of CBP Foreign Ports by Geographic Trade Area and Country.''

[[Page 258]]

    Foreign Principal Party in Interest (FPPI). The party abroad who 
purchases the goods for export or to whom final delivery or end-use of 
the goods will be made. This party may be the Ultimate Consignee.
    Foreign Trade Zone (FTZ). Specially licensed commercial and 
industrial areas in or near ports of entry where foreign and domestic 
goods, including raw materials, components, and finished goods, may be 
brought in without being subject to payment of customs duties. Goods 
brought into these zones may be stored, sold, exhibited, repacked, 
assembled, sorted, graded, cleaned, manufactured, or otherwise 
manipulated prior to reexport or entry into the country's customs 
territory.
    Forwarding agent. The person in the United States who is authorized 
by the principal party in interest to facilitate the movement of the 
cargo from the United States to the foreign destination and/or prepare 
and file the required documentation.
    Goods. Merchandise, supplies, raw materials, and products or any 
other item identified by a Harmonized Tariff System (HTS) code.
    Harmonized system. A method of classifying goods for international 
trade developed by the Customs Cooperation Council (now the World 
Customs Organization).
    Harmonized Tariff Schedule of the United States Annotated (HTSUSA). 
An organized listing of goods and their duty rates, developed by the 
U.S. International Trade Commission, as the basis for classifying 
imported products.
    Household goods. Usual and reasonable kinds and quantities of 
personal property necessary and appropriate for use by the USPPI in the 
USPPI's dwelling in a foreign country that are shipped under a bill of 
lading or an air waybill and are not intended for sale.
    Imports. All goods physically brought into the United States, 
including:
    (1) Goods of foreign origin, and
    (2) Goods of domestic origin returned to the United States without 
substantial transformation affecting a change in tariff classification 
under an applicable rule of origin.
    Inbond. A procedure administered by CBP under which goods are 
transported or warehoused under CBP supervision until the goods are 
either formally entered into the customs territory of the United States 
and duties are paid, or until they are exported from the United States. 
The procedure is so named because the cargo moves under a bond 
(financial liability assured by the principal on the bond) from the 
gateway seaport, airport, or land border port and remains ``inbond'' 
until CBP releases the cargo at the inland Customs point or at the port 
of export.
    Inland freight. The cost to ship goods between points inland and the 
seaport, airport, or land border port of exportation, other than 
baggage, express mail, or regular mail.
    Intermediate consignee. The person or entity in the foreign country 
who acts as an agent for the principal party in interest with the 
purpose of effecting delivery of items to the ultimate consignee. The 
intermediate consignee may be a bank, forwarding agent, or other person 
who acts as an agent for a principal party in interest.
    Internal Transaction Number (ITN). The AES generated number assigned 
to a shipment confirming that an EEI transaction was accepted and is on 
file in the AES.
    International Standards Organization (ISO) Country Codes. The 2-
position alphabetic ISO code for countries used to identify countries 
for which shipments are reportable.
    International Traffic in Arms Regulations (ITAR). Regulations 
administered by the Directorate of Defense Trade Controls within the 
U.S. State Department that provide for the control of the export and 
temporary import of defense articles and defense services. These 
regulations are located in 22 CFR 120-130.
    International waters. Waters located outside the U.S. territorial 
sea, which extends 12 nautical miles measured from the baselines of the 
United States, and outside the territory of any foreign country, 
including the territorial waters thereof. Note that vessels, platforms, 
buoys, undersea systems, and other similar structures that are located 
in international waters, but are attached permanently or temporarily to 
a country's continental shelf, are considered to be within the territory 
of that country.

[[Page 259]]

    Interplant correspondence. Records or documents from a U.S. firm to 
its subsidiary or affiliate, whether in the United States or overseas.
    In-transit. Goods shipped through the United States, Puerto Rico, or 
the U.S. Virgin Islands from one foreign country or area to another 
foreign country or area without entering the consumption channels of the 
United States.
    Issued banknote. A promissory note intended to circulate as money, 
usually printed on paper or plastic, issued by a bank with a specific 
denomination, payable to an individual, entity or the bearer.
    Kimberley Process Certificate (KPC). A forgery resistant document 
used to certify the origin of rough diamonds from sources which are free 
of conflict.
    License applicant. The person who applies for an export or reexport 
license. (For example, obtaining a license for commodities, software, or 
technology that are listed on the CCL.)
    License exception. An authorization that allows a USPPI or other 
appropriate party to export or reexport under stated conditions, items 
subject to the EAR that would otherwise require a license under the EAR. 
The BIS License Exceptions are currently contained in Part 740 of the 
EAR (15 CFR part 740).
    Manifest. A collection of documents, including forms, such as the 
cargo declaration and annotated bills of lading, that lists and 
describes the cargo contents of a carrier, container, or warehouse. 
Carriers required to file manifests with CBP Port Director must include 
an AES filing citation, or exemption or exclusion legend for all cargo 
being transported.
    Mass-market software. Software that is produced in large numbers and 
made available to the public. It does not include software that is 
customized for a specific user.
    Merchandise. Goods, wares, and chattels of every description, and 
includes merchandise the exportation of which is prohibited, and 
monetary instruments as defined in 31 U.S.C. 5312.
    Method of transportation. The method by which goods are exported 
from the United States by way of seaports, airports, or land border 
crossing points. Methods of transportation include vessel, air, truck, 
rail, mail or other. Method of transportation is synonymous with mode of 
transportation.
    North American Free Trade Agreement (NAFTA). The formal agreement, 
or treaty, among Canada, Mexico, and the United States to promote trade 
amongst the three countries. It includes measures for the elimination of 
tariffs and nontariff barriers to trade, as well as numerous specific 
provisions concerning the conduct of trade and investment.
    Office of Foreign Assets Control (OFAC). An agency within the U.S. 
Department of the Treasury that administers and enforces economic and 
trade sanctions based on U.S. foreign policy and national security goals 
against targeted foreign countries, terrorists, international narcotics 
traffickers, and those engaged in activities related to the 
proliferation of weapons of mass destruction. The OFAC acts under 
Presidential wartime and national emergency powers, as well as authority 
granted by specific legislation, to impose controls on transactions and 
freeze foreign assets under U.S. jurisdiction.
    Order party. The person in the United States that conducts the 
direct negotiations or correspondence with the foreign purchaser or 
ultimate consignee and who, as a result of these negotiations, receives 
the order from the FPPI. If a U.S. order party directly arranges for the 
sale and export of goods to the FPPI, the U.S. order party shall be 
listed as the USPPI in the EEI.
    Packing list. A list showing the number and kinds of items being 
shipped, as well as other information needed for transportation 
purposes.
    Partnership agencies. U.S. government agencies that have statistical 
and analytical reporting and/or monitoring and enforcement 
responsibilities related to AES postdeparture filing privileges.
    Party ID type. Identifies whether the Party ID is an EIN, DUNS, or 
Foreign Entity reported to the AES, for example, E = EIN, D = DUNS, T = 
Foreign Entity.
    Person. Any natural person, corporation partnership or other legal 
entity of any kind, domestic or foreign.

[[Page 260]]

    Port of export. The port of export is the U.S. Customs and Border 
Protection (CBP) seaport or airport where the goods are loaded on the 
aircraft or vessel that is taking the goods out of the United States, or 
the CBP port where exports by overland transportation cross the U.S. 
border into Canada or Mexico. For EEI reporting purposes only, for goods 
loaded aboard an aircraft or vessel that stops at several ports before 
clearing to the foreign country, the port of export is the first CBP 
port where the goods were loaded. For goods off-loaded from the original 
conveyance to another conveyance (even if the aircraft or vessel belongs 
to the same carrier) at any of the ports, the port where the goods were 
loaded on the last conveyance before going foreign is the port of 
export. The port of export is reported in terms of Schedule D, 
``Classification of CBP Districts and Ports.'' Use port code 8000 for 
shipments by mail.
    Postdeparture filing. The privilege granted to approved USPPIs for 
their EEI to be filed up to five (5) calendar days after the date of 
export.
    Postdeparture filing citation. A notation placed on the bill of 
lading, air waybill, export shipping instructions, or other commercial 
loading documents that states that the EEI will be filed after departure 
of the carrier. (See appendix B of this part.)
    Power of attorney. A legal authorization, in writing, from a USPPI 
or FPPI stating that an agent has authority to act as the principal 
party's true and lawful agent for purposes of preparing and filing the 
EEI in accordance with the laws and regulations of the United States. 
(See Appendix A of this part.)
    Primary benefit. Receiving the majority payment or exchange of item 
of value or other legal consideration resulting from an export trade 
transaction; usually monetary.
    Principal parties in interest. Those persons in a transaction that 
receive the primary benefit, monetary or otherwise, from the 
transaction. Generally, the principals in a transaction are the seller 
and the buyer. In most cases, the forwarding or other agent is not a 
principal party in interest.
    Proof of filing citation. A notation on the bill of lading, air 
waybill, export shipping instructions, other commercial loading document 
or electronic equivalent, usually for carrier use, that provides 
evidence that the EEI has been filed and accepted in the AES.
    Related party transaction. A transaction involving trade between a 
USPPI and an ultimate consignee where either party owns directly or 
indirectly 10 percent or more of the other party.
    Remission. The cancellation or release from a penalty, including 
fines, and/or forfeiture, under this part.
    Retention. The necessary act of keeping all documentation pertaining 
to an export transaction for a period of at least five years for an EEI 
filing, or a time frame designated by the controlling agency for 
licensed shipments, whichever is longer.
    Routed export transaction. A transaction in which the FPPI 
authorizes a U.S. agent to facilitate export of items from the United 
States on its behalf and prepare and file the EEI.
    Schedule B. The Statistical Classification of Domestic and Foreign 
Commodities Exported from the United States. These 10-digit commodity 
classification numbers are administered by the Census Bureau and cover 
everything from live animals and food products to computers and 
airplanes. It should also be noted that all import and export codes used 
by the United States are based on the Harmonized Tariff System.
    Schedule C. The Classification of Country and Territory 
Designations. The Schedule C provides a list of country of origin codes. 
The country of origin is reported in terms of the International 
Standards Organization codes.
    Schedule D. The Classification of CBP districts and ports. The 
Schedule D provides a list of CBP districts and ports and the 
corresponding numeric codes used in compiling U.S. foreign trade 
statistics.
    Schedule K. The Classification of Foreign Ports by Geographic Trade 
Area and Country. The Schedule K lists the major seaports of the world 
that directly handle waterborne shipments in the foreign trade of the 
United States, and includes numeric codes to identify

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these ports. This schedule is maintained by the U.S. Army Corps of 
Engineers.
    Seller. A principal in the transaction, usually the manufacturer, 
producer, wholesaler, or distributor of the goods, that receives the 
monetary benefit or other consideration for the exported goods.
    Service center. A company, entity, or organization that has been 
certified and approved to facilitate the transmission of EEI to the AES.
    Shipment. All goods being sent from one USPPI to one consignee 
located in a single country of destination on a single conveyance and on 
the same day. Except as noted in Sec.  30.2(a)(1)(iv), the EEI shall be 
filed when the value of the goods is over $2,500 per Schedule B or 
HTSUSA commodity classification code.
    Shipment Reference Number (SRN). A unique identification number 
assigned to the shipment by the filer for reference purposes. The reuse 
of the SRN is prohibited.
    Shipper's Export Declaration (SED). The Department of Commerce paper 
form used under the Foreign Trade Statistics Regulations to collect 
information from an entity exporting from the United States. This form 
was used for compiling the official U.S. export statistics for the 
United States and for export control purposes. The SED became obsolete 
on October 1, 2008, with the implementation of the Foreign Trade 
Regulations (FTR) and has been superseded by the EEI filed in the AES or 
through the AESDirect.
    Shipping documents. Documents that include but are not limited to 
commercial invoices, export shipping instructions, packing lists, bill 
of ladings and air waybills.
    Shipping weight. The total weight of a shipment in kilograms 
including goods and packaging.
    Split shipment. A shipment covered by a single EEI record booked for 
export on one conveyance, that is divided by the exporting carrier prior 
to export where the cargo is sent on two or more of the same conveyances 
of the same carrier leaving from the same port of export within 24 hours 
by vessel or 7 days by air, truck or rail.
    Subzone. A special purpose foreign trade zone established as part of 
a foreign trade zone project with a limited purpose that cannot be 
accommodated within an existing zone. Subzones are often established to 
serve the needs of a specific company and may be located within an 
existing facility of the company.
    Tariff schedule. A comprehensive list or schedule of goods with 
applicable duty rates to be paid or charged for each listed article as 
it enters or leaves a country.
    Transmitting electronic export information. The act of sending the 
completed EEI to the AES.
    Transportation Reference Number (TRN). A reservation number assigned 
by the carrier to hold space on the carrier for cargo being shipped. It 
is the booking number for vessel shipments, the master air waybill 
number for air shipments, the bill of lading number for rail shipments, 
and the freight or pro bill for truck shipments.
    Transshipment. The transfer of merchandise from the country or 
countries of origin through an intermediary country or countries to the 
country of ultimate destination.
    Ultimate consignee. The person, party, or designee that is located 
abroad and actually receives the export shipment. This party may be the 
end user or the FPPI.
    United States Munitions List (USML). Articles and services 
designated for defense purposes under the ITAR and specified in 22 CFR 
121.
    Unlading. The physical removal of cargo from an aircraft, truck, 
rail, or vessel.
    U.S. Customs and Border Protection (CBP). The border agency within 
the Department of Homeland Security (DHS) charged with the management, 
control, and protection of our Nation's borders at and between the 
official ports of entry of the United States.
    U.S. Immigration and Customs Enforcement (ICE). An agency within the 
DHS that is responsible for enforcing customs, immigration and related 
laws and investigating violations of laws to secure the Nation's 
borders.
    U.S. Postal Service customs declaration form. The shipping document, 
or its electronic equivalent, that a mailer

[[Page 262]]

prepares to declare the contents for the purposes of domestic and 
foreign customs authorizations and other relevant government agencies. 
For more information, please see Mailing Standards of the United States 
Postal Service, International Mail Manual, section 123.
    U.S. principal party in interest (USPPI). The person or legal entity 
in the United States that receives the primary benefit, monetary or 
otherwise, from the export transaction. Generally, that person or entity 
is the U.S. seller, manufacturer, or order party, or the foreign entity 
while in the United States when purchasing or obtaining the goods for 
export.
    Value. The selling price (or the cost if the goods are not sold) in 
U.S. dollars, plus inland or domestic freight, insurance, and other 
charges to the U.S. seaport, airport, or land border port of export. 
Cost of goods is the sum of expenses incurred in the USPPI's acquisition 
or production of the goods. (See Sec.  30.6(a)(17)).
    Vehicle Identification Number (VIN). A number issued by the 
manufacturer and used for the identification of a self-propelled 
vehicle.
    Verify message. An electronic response sent to the filer by the AES 
when an unlikely condition is found.
    Violation of the FTR. Failure of the USPPI, FPPI, authorized agent 
of the USPPI, FPPI, carrier, or other party to the transaction to comply 
with the requirements set forth in 15 CFR 30, for each export shipment.
    Voided Kimberley Process Certificate. A Kimberley Process 
Certificate intended to be used for the exportation of rough diamonds 
from the United States that has been cancelled for reasons such as loss 
or error.
    Voluntary Self-Disclosure (VSD). A narrative account with supporting 
documentation that sufficiently describes suspected violations of the 
FTR. A VSD reflects due diligence in detecting, and correcting potential 
violation(s) when required information was not reported or when 
incorrect information was provided that violates the FTR.
    Warning message. An electronic response sent to the filer by the AES 
when certain incomplete and conflicting data reporting conditions are 
encountered.
    Wholesaler/distributor. An agent who sells directly for a supplier 
and maintains an inventory of the supplier's products.
    Written authorization. An authorization, in writing, by the USPPI or 
FPPI stating that the agent has authority to act as the USPPI's or 
FPPI's true and lawful agent for purposes of preparing and filing the 
EEI in accordance with the laws and regulations of the United States. 
(See Appendix A of this part.)
    Zone admission number. A unique and sequential number assigned by a 
FTZ operator or user for shipments admitted to a zone.

[73 FR 31555, June 2, 2008, as amended at 74 FR 38916, Aug. 5, 2009; 78 
FR 16373, Mar. 14, 2013; 82 FR 18388, Apr. 19, 2017; 82 FR 43843, Sept. 
20, 2017; 83 FR 17751, Apr. 24, 2018]



Sec.  30.2  General requirements for filing Electronic Export Information
(EEI).

    (a) Filing requirements. (1) The EEI shall be filed through the AES 
by the United States Principal Party In Interest (USPPI), the USPPI's 
authorized agent, or the authorized U.S. agent of the Foreign Principal 
Party In Interest (FPPI) for all exports of physical goods, including 
shipments moving pursuant to orders received over the Internet. The 
Automated Export System (AES) is the electronic system for collecting 
Shipper's Export Declaration (SED) (or any successor document) 
information from persons exporting goods from the United States, Puerto 
Rico, Foreign Trade Zones (FTZs) located in the United States or Puerto 
Rico, the U.S. Virgin Islands, between Puerto Rico and the United 
States, and to the U.S. Virgin Islands from the United States or Puerto 
Rico. Exceptions, exclusions, and exemptions to this requirement are 
provided for in paragraph (d) of this section and Subpart D of this 
part. References to the AES also shall apply to AESDirect unless 
otherwise specified. For purposes of the regulations in this part, the 
SED information shall be referred to as EEI. Filing through the AES 
shall be done in accordance with the definitions, specifications, and 
requirements of the regulations in this part for all export

[[Page 263]]

shipments, except as specifically excluded in Sec.  30.2(d) or exempted 
in Subpart D of this part, when shipped as follows:
    (i) To foreign countries or areas, including free (foreign trade) 
zones located therein (see Sec.  30.36 for exemptions for shipments from 
the United States to Canada) from any of the following:
    (A) The United States, including the 50 states and the District of 
Columbia.
    (B) Puerto Rico.
    (C) FTZs located in the United States or Puerto Rico.
    (D) The U.S. Virgin Islands.
    (ii) Between any of the following nonforeign areas including goods 
previously admitted to customs warehouses or FTZs and moving under a 
U.S. Customs and Border Protection (CBP) bond:
    (A) To Puerto Rico from the United States.
    (B) To the United States from Puerto Rico.
    (C) To the U.S. Virgin Islands from the United States or Puerto 
Rico.
    (iii) The EEI shall be filed for goods moving as described in 
paragraphs (a)(1)(i) and (ii) of this section by any mode of 
transportation. (Instructions for filing EEI for vessels, aircraft, 
railway cars, and other carriers when sold while outside the areas 
described in paragraphs (a)(1)(i) and (ii) are covered in Sec.  30.26.)
    (iv) Notwithstanding exemptions in Subpart D, EEI shall be filed for 
the following types of export shipments, regardless of value:
    (A) Requiring a Department of Commerce, Bureau of Industry and 
Security (BIS) license or requiring reporting under the Export 
Administration Regulations (15 CFR 758.1(b)).
    (B) Requiring a Department of State, Directorate of Defense Trade 
Controls (DDTC) license under the International Traffic in Arms 
Regulations (ITAR) (22 CFR Parts 120 through 130).
    (C) Subject to the ITAR, but exempt from license requirements, 
except as noted by the ITAR.
    (D) Requiring a Department of Justice, Drug Enforcement 
Administration (DEA) export permit (21 CFR 1312).
    (E) Requiring a general or specific export license issued by the 
U.S. Nuclear Regulatory Commission under 10 CFR part 110.
    (F) Requiring an export license issued by any other federal 
government agency.
    (G) Classified as rough diamonds under 6-digit HS subheadings 
7102.10, 7102.21, and 7102.31.
    (H) Used self-propelled vehicles as defined in 19 CFR 192.1 of U.S. 
Customs and Border Protection regulations, except as noted in CBP 
regulations.

    Note to paragraph (a)(1)(iv): For the filing requirement for exports 
destined for a country in Country Group E:1 or E:2 as set forth in the 
Supplement No. 1 to 15 CFR part 740, see FTR Sec.  30.16.

    (2) Filing methods. The USPPI has four means for filing EEI: use 
AESDirect; develop AES software using the AESTIR (see www.cbp.gov/xp/
cgov/trade /automated/aes/tech_ docs/aestir/); purchase software 
developed by certified vendors using the AESTIR; or use an authorized 
agent. An FPPI can only use an authorized agent in a routed transaction.
    (b) General requirements--(1) The EEI shall be filed prior to 
exportation (see Sec.  30.4) unless the USPPI has been approved to 
submit export data on a postdeparture basis (see Sec.  30.5(c)). 
Shipments requiring a license or license exemption may be filed 
postdeparture only when the appropriate licensing agency has granted the 
USPPI authorization. See Subpart B of this part.
    (2) Specific data elements required for EEI filing are contained in 
Sec.  30.6.
    (3) The AES downtime procedures provide uniform instructions for 
processing export transactions when the government's AES or AESDirect is 
unavailable for transmission. (See Sec.  30.4(b)(1) and (4)).
    (4) Instructions for particular types of transactions and exemptions 
from these requirements are found in Subparts C and D of this part.
    (5) The EEI is required to be filed in the AES prior to export for 
shipments by vessel going directly to the countries identified in U.S. 
Customs and Border Protection regulations 19 CFR 4.75(c) and by aircraft 
going directly or indirectly to those countries. (See U.S. Customs and 
Border Protection regulations 19 CFR 122.74(b)(2).)

[[Page 264]]

    (c) Application and certification process. The USPPI or authorized 
agent will either submit an ACE Exporter Account Application or a Letter 
of Intent based on their transmission method and, as a result, may be 
subject to the certification process.
    (1) AESDirect. USPPIs or authorized agents who choose to file via 
the AESDirect shall complete an online ACE Exporter Account Application. 
In addition, once the ACE Exporter Account is created, all users must 
agree to the AES Certification Statements prior to filing through 
AESDirect.
    (2) Methods other than AESDirect. USPPIs or authorized agents who 
choose to file by a means other than AESDirect shall submit a Letter of 
Intent to CBP and may be required to complete the certification process.
    (i) Certification. A two-part communication test to ascertain 
whether the system is capable of both transmitting data to and receiving 
responses from the AES. CBP client representatives make the sole 
determination as to whether or not the system of the self-programming 
filer, service center, or software vendor passes certification.
    (ii) Parties requiring certification:
    (A) Self-programming USPPIs or authorized agents;
    (B) Service centers; and
    (C) Software vendors who develop AES software.
    (d) Exclusions from filing EEI. The following types of transactions 
are outside the scope of this part and shall be excluded from EEI 
filing.
    (1) Goods shipped under CBP bond through the United States, Puerto 
Rico, or the U.S. Virgin Islands from one foreign country or area to 
another where such goods do not enter the consumption channels of the 
United States.
    (2) Except Puerto Rico and the U.S. Virgin Islands, goods shipped 
from the U.S. territories and goods shipped between the United States 
and these territories do not require EEI filing. However, goods 
transiting U.S. territories to foreign destinations require EEI filing.
    (3) Electronic transmissions and intangible transfers. (See Subpart 
B of this part for export control requirements for these types of 
transactions.)
    (4) Goods shipped to Guantanamo Bay Naval Base in Cuba from the 
United States, Puerto Rico, or the U.S. Virgin Islands and from 
Guantanamo Bay Naval Base to the United States, Puerto Rico, or the U.S. 
Virgin Islands. (See Sec.  30.39 for filing requirements for shipments 
exported to the U.S. Armed Services.)
    (5) Goods licensed by a U.S. federal government agency where the 
country of ultimate destination is the United States or goods destined 
to international waters where the person(s) or entity assuming control 
of the item(s) is a citizen or permanent resident alien of the United 
States or a juridical entity organized under the laws of the United 
States or a jurisdiction within the United States.
    (e) Penalties. Failure of the USPPI, the authorized agent of either 
the USPPI or the FPPI, the exporting carrier, or any other person 
subject thereto to comply with any of the requirements of the 
regulations in this part renders such persons subject to the penalties 
provided for in Subpart H of this part.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16375, Mar. 14, 2013; 82 
FR 18389, Apr. 19, 2017]



Sec.  30.3  Electronic Export Information filer requirements, parties to
export transactions, and responsibilities of parties to export transactions.

    (a) General requirements. The filer of EEI for export transactions 
is either the USPPI, or the U.S. authorized agent. All EEI submitted to 
the AES shall be complete, correct, and based on personal knowledge of 
the facts stated or on information furnished by the parties to the 
export transaction. The filer shall be physically located in the United 
States at the time of filing, have an EIN or DUNS and be certified to 
report in the AES. In the event that the filer does not have an EIN or 
DUNS, the filer must obtain an EIN from the Internal Revenue Service. 
The filer is responsible for the truth, accuracy, and completeness of 
the EEI, except insofar as that party can demonstrate that it reasonably 
relied on information furnished by other responsible persons 
participating in the

[[Page 265]]

transaction. All parties involved in export transactions, including U.S. 
authorized agents, should be aware that invoices and other commercial 
documents may not necessarily contain all the information needed to 
prepare the EEI. The parties shall ensure that all information needed 
for reporting to the AES, including correct export licensing 
information, is provided to the U.S. authorized agent for the purpose of 
correctly preparing the EEI.
    (b) Parties to the export transaction--(1) Principal parties in 
interest. Those persons in a transaction that receive the primary 
benefit, monetary or otherwise, are considered principal parties to the 
transaction. Generally, the principal parties in interest in a 
transaction are the seller and buyer. In most cases, the forwarding or 
other agent is not a principal party in interest.
    (2) USPPI. For purposes of filing EEI, the USPPI is the person or 
legal entity in the United States that receives the primary benefit, 
monetary or otherwise, from the transaction. Generally, that person or 
entity is the U.S. seller, manufacturer, order party, or foreign entity 
if in the United States at the time goods are purchased or obtained for 
export. The foreign entity shall be listed as the USPPI if it is in the 
United States when the items are purchased or obtained for export. The 
foreign entity shall then follow the provisions for filing the EEI 
specified in Sec. Sec.  30.3 and 30.6 pertaining to the USPPI.
    (i) If a U.S. manufacturer sells goods directly to an entity in a 
foreign area, the U.S. manufacturer shall be listed as the USPPI in the 
EEI.
    (ii) If a U.S. manufacturer sells goods, as a domestic sale, to a 
U.S. buyer (wholesaler/distributor) and that U.S. buyer sells the goods 
for export to a FPPI, the U.S. buyer (wholesaler/distributor) shall be 
listed as the USPPI in the EEI.
    (iii) If a U.S. order party directly arranges for the sale and 
export of goods to the FPPI, the U.S. order party shall be listed as the 
USPPI in the EEI.
    (iv) If a customs broker is listed as the importer of record when 
entering goods into the United States for immediate consumption or 
warehousing entry, the customs broker may be listed as the USPPI in the 
EEI if the goods are subsequently exported without change or 
enhancement.
    (v) If a foreign person is listed as the importer of record when 
entering goods into the United States for immediate consumption or 
warehousing entry, the customs broker who entered the goods, may be 
listed as the USPPI in the EEI if the goods are subsequently exported 
without change or enhancement.
    (3) Authorized agent. The agent shall be authorized by the USPPI or, 
in the case of a routed export transaction, the agent shall be 
authorized by the FPPI to prepare and file the EEI. In a routed export 
transaction, the authorized agent can be the ``exporter'' for export 
control purposes as defined in 15 CFR 772.1 of the U.S. Department of 
Commerce EAR. However, the authorized agent shall not be shown as the 
USPPI in the EEI unless the agent acts as a USPPI in the export 
transaction as defined in paragraphs (b)(2)(iii), (iv), and (v) of this 
section.
    (4) Carrier. A carrier is an individual or legal entity in the 
business of transporting passengers or goods. Airlines, trucking 
companies, railroad companies, shipping lines, and pipeline companies 
are all examples of carriers.
    (c) General responsibilities of parties in export transactions--(1) 
USPPI responsibilities. (i) The USPPI can prepare and file the EEI 
itself, or it can authorize an agent to prepare and file the EEI on its 
behalf. If the USPPI prepares the EEI itself, the USPPI is responsible 
for the accuracy and timely transmission of all the export information 
reported to the AES.
    (ii) When the USPPI authorizes an agent to file the EEI on its 
behalf, the USPPI is responsible for:
    (A) Providing the authorized agent with accurate and timely export 
information necessary to file the EEI.
    (B) Providing the authorized agent with a power of attorney or 
written authorization to file the EEI (see paragraph (f) of this section 
for written authorization requirements for agents).
    (C) Retaining documentation to support the information provided to 
the authorized agent for filing the EEI, as specified in Sec.  30.10.
    (2) Authorized agent responsibilities. The agent, when authorized by 
a USPPI to prepare and file the EEI for

[[Page 266]]

an export transaction, is responsible for performing the following 
activities:
    (i) Accurate preparation and timely filing of the EEI based on 
information received from the USPPI and other parties involved in the 
transaction.
    (ii) Obtaining a power of attorney or written authorization from the 
USPPI to file the EEI.
    (iii) Retaining documentation to support the information reported to 
the AES, as specified in Sec.  30.10.
    (iv) Upon request, providing the USPPI with a copy of the export 
information filed in a mutually agreed upon format.
    (3) Carrier responsibilities. (i) The carrier must not load or move 
cargo unless the required documentation, from the USPPI or authorized 
agent, contains the required AES proof of filing, postdeparture, 
downtime, exclusion or exemption citations. This information must be 
cited on the first page of the bill of lading, air waybill, or other 
commercial loading documents.
    (ii) The carrier must annotate the AES proof of filing, 
postdeparture, downtime, exclusion or exemption citations on the 
carrier's outbound manifest when required.
    (iii) The carrier is responsible for presenting the required AES 
proof of filing, postdeparture, downtime, exclusion or exemption 
citations to the CBP Port Director at the port of export as stated in 
Subpart E of this part. Such presentation shall be without material 
change or amendment of the proof of filing, postdeparture, downtime, 
exclusion or exemption citation.
    (iv) The carrier shall notify the USPPI or the authorized agent of 
changes to the transportation data, and the USPPI or the authorized 
agent shall electronically transmit the corrections, cancellations, or 
amendments as soon as the corrections are known in accordance with Sec.  
30.9. Manifest amendments must be made in accordance with CBP 
regulations.
    (v) Retain documents pertaining to the export shipment as specified 
in Sec.  30.10.
    (d) Filer responsibilities. Responsibilities of USPPIs and 
authorized agents filing EEI are as follows:
    (1) Filing complete and accurate information (see Sec.  30.4 for a 
delineation of filing responsibilities of USPPIs and authorized agents).
    (2) Filing information in a timely manner in accordance with the 
provisions and requirements contained in this part.
    (3) Responding to fatal errors, warning, verify and reminder 
messages, and compliance alerts generated by the AES in accordance with 
provisions and requirements contained in this part.
    (4) Providing the exporting carrier with the required proof of 
filing citations or exemption legends in accordance with provisions 
contained in this part.
    (5) Promptly filing corrections or cancellations to EEI in 
accordance with provisions contained in Sec.  30.9.
    (6) Retaining all necessary and proper documentation related to EEI 
transactions in accordance with provisions contained in this part (see 
Sec.  30.10 for specific requirements for retaining and producing 
documentation for export shipments).
    (e) Responsibilities of parties in a routed export transaction. The 
Census Bureau recognizes ``routed export transactions'' as a subset of 
export transactions. A routed export transaction is a transaction in 
which the FPPI authorizes a U.S. agent to facilitate the export of items 
from the United States and to prepare and file EEI.
    (1) USPPI responsibilities. In a routed export transaction, the FPPI 
may authorize or agree to allow the USPPI to prepare and file the EEI. 
If the FPPI agrees to allow the USPPI to file the EEI, the FPPI must 
provide a written authorization to the USPPI assuming the responsibility 
for filing. The USPPI may authorize an agent to file the EEI on its 
behalf. If the USPPI or its agent prepares and files the EEI, it shall 
retain documentation to support the EEI filed. If the FPPI agrees to 
allow the USPPI to file EEI, the filing of the export transaction shall 
be treated as a routed export transaction. If the FPPI authorizes an 
agent to prepare and file the EEI, the USPPI shall retain documentation 
to support the information provided to the agent for preparing the EEI 
as specified in Sec.  30.10 and provide the agent with the following 
information to assist in preparing the EEI:
    (i) Name and address of the USPPI.

[[Page 267]]

    (ii) USPPI's EIN or DUNS
    (iii) State of origin (State).
    (iv) FTZ if applicable.
    (v) Commercial description of commodities.
    (vi) Origin of goods indicator: Domestic (D) or Foreign (F).
    (vii) Schedule B or HTSUSA, Classification Commodity Code.
    (viii) Quantities/units of measure.
    (ix) Value.
    (x) Export Control Classification Number (ECCN) or sufficient 
technical information to determine the ECCN.
    (xi) All licensing information necessary to file the EEI for 
commodities where the Department of State, the Department of Commerce, 
or other U.S. government agency issues a license for the commodities 
being exported, or the merchandise is being exported under a license 
exemption or license exception.
    (xii) Any information that it knows will affect the determination of 
license authorization (see Subpart B of this part for additional 
information on licensing requirements).

    Note to paragraph (e)(1) of this section: For items in paragraph (e) 
(1) (ix), (x),(xi) and (xii) of this section, where the FPPI has assumed 
responsibility for determining and obtaining license authority see 
requirements set forth in 15 CFR 758.3 of the EAR.

    (2) Authorized agent responsibilities. In a routed export 
transaction, if an authorized agent is preparing and filing the EEI on 
behalf of the FPPI, the authorized agent must obtain a power of attorney 
or written authorization from the FPPI and prepare and file the EEI 
based on information obtained from the USPPI or other parties involved 
in the transaction. The authorized agent shall be responsible for filing 
EEI accurately and timely in accordance with the FTR. Upon request, the 
authorized agent will provide the USPPI with a copy of the power of 
attorney or written authorization from the FPPI. The authorized agent 
shall also retain documentation to support the EEI reported through the 
AES. The authorized agent shall upon request, provide the USPPI with the 
data elements in paragraphs (e)(1)(i) through (xii) of this section, the 
date of export as submitted through the AES, the filer name, and the 
ITN. The authorized agent shall provide the following information 
through the AES:
    (i) Date of export.
    (ii) Transportation Reference Number.
    (iii) Ultimate consignee.
    (iv) Intermediate consignee, if applicable.
    (v) Authorized agent name and address.
    (vi) EIN or DUNS of the authorized agent.
    (vii) Country of ultimate destination.
    (viii) Method of transportation.
    (ix) Carrier identification and conveyance name.
    (x) Port of export.
    (xi) Foreign port of unlading.
    (xii) Shipping weight.
    (xiii) ECCN.
    (xiv) License or license exemption information.
    (xv) Ultimate consignee type.

    Note to paragraph (e)(2) of this section: For items in paragraphs 
(e)(2)(xiii) and (xiv) of this section, where the FPPI has assumed 
responsibility for determining and obtaining license authority, see 
requirements set forth in 15 CFR 758.3 of the EAR.

    (f) Authorizing an agent. In a power of attorney or other written 
authorization, authority is conferred upon an agent to perform certain 
specified acts or kinds of acts on behalf of a principal (see 15 CFR 
758.1(h) of the EAR). In cases where an authorized agent is filing EEI 
to the AES, the agent shall obtain a power of attorney or written 
authorization from a principal party in interest to file the information 
on its behalf. A power of attorney or written authorization should 
specify the responsibilities of the parties with particularity and 
should state that the agent has authority to act on behalf of a 
principal party in interest as its true and lawful agent for purposes of 
creating and filing EEI in accordance with the laws and regulations of 
the United States. In routed export transactions the USPPI is not 
required to provide an agent of the FPPI with a power of attorney or 
written authorization.
    Note to Sec.  30.3: The EAR defines the ``exporter'' as the person 
in the United States who has the authority of a principal party in 
interest to determine and control the sending of items out of the United 
States (see 15 CFR 772 of the EAR). For statistical purposes

[[Page 268]]

``exporter'' is not defined in the FTR. Instead, however, the USPPI is 
defined in the FTR.


For purposes of licensing responsibility under the EAR, the U.S. agent 
of the FPPI may be the ``exporter'' or applicant on the license in 
certain routed export transactions (see 15 CFR 758.3 of the EAR). 
Therefore, due to the differences in export reporting requirements among 
Federal agencies, conformity of documentation is not required in the 
FTR.

[73 FR 31555, June 2, 2008, as amended at 74 FR 38916, Aug. 5, 2009; 78 
FR 16375, Mar. 14, 2013; 82 FR 18389, Apr. 19, 2017; 82 FR 43843, Sept 
20, 2017]



Sec.  30.4  Electronic Export Information filing procedures, deadlines,
and certification statements.

    Two electronic filing options (predeparture and postdeparture) for 
transmitting EEI are available to the USPPI or authorized agent. The 
electronic postdeparture filing takes into account that complete 
information concerning export shipments may not always be available 
prior to exportation and accommodates these circumstances by providing, 
when authorized, for filing of EEI after departure. For example, for 
exports of seasonal and agricultural commodities, only estimated 
quantities, values, and consignees may be known prior to exportation. 
The procedures for obtaining certification as an AES filer and for 
applying for authorization to file on a postdeparture basis are 
described in Sec.  30.5.
    (a) EEI transmitted predeparture. The EEI shall always be 
transmitted prior to departure for the following types of shipments:
    (1) Used self-propelled vehicles as defined in 19 CFR 192.1 of U.S. 
Customs and Border Protection regulations.
    (2) Essential and precursor chemicals requiring a permit from the 
DEA;
    (3) Shipments defined as ``sensitive'' by Executive Order;
    (4) Shipments where a U.S. government agency requires predeparture 
filing;
    (5) Shipments defined as ``routed export transactions'' (see Sec.  
30.3(e));
    (6) Shipments where complete outbound manifests are required prior 
to clearing vessels going directly to the countries identified in U.S. 
Customs and Border Protection regulations 19 CFR 4.75(c) and aircraft 
going directly or indirectly to those countries. (See U.S. Customs and 
Border Protection regulation 19 CFR 122.74(b)(2));
    (7) Items identified on the USML of the ITAR (22 CFR 121);
    (8) Shipments that require a license from the BIS and exports listed 
under BIS's grounds for denial of postdeparture filing status (see 15 
CFR 758.2);
    (9) Shipments that require a license from the Nuclear Regulatory 
Commission.
    (10) Shipments of rough diamonds classified under HS subheadings 
7102.10, 7102.21, and 7102.31 and exported (reexported) in accordance 
with the Kimberley Process; and
    (11) Shipments for which the USPPI has not been approved for 
postdeparture filing.
    (b) Filing deadlines for EEI transmitted predeparture. The USPPI or 
the authorized agent shall file the required EEI and have received the 
AES ITN no later than the time period specified as follows:
    (1) For USML shipments, refer to the ITAR (22 CFR 123.22(b)(1)) for 
specific requirements concerning predeparture filing time frames. In 
addition, if a filer is unable to acquire an ITN because the AES or 
AESDirect is not operating, the filer shall not export until the AES is 
operating and an ITN is acquired. The downtime filing citation is not to 
be used when the filer's system is down or experiencing delays.
    (2) For non-USML shipments, except shipments between the United 
States and Puerto Rico, file the EEI and provide the ITN as follows (See 
Sec.  30.4(b)(3), for filing timeframes for shipments between the United 
States and Puerto Rico):
    (i) For vessel cargo, the USPPI or the authorized agent shall file 
the EEI required by Sec.  30.6 and provide the filing citation or 
exemption legend to the exporting carrier twenty-four hours prior to 
loading cargo on the vessel at the U.S. port where the cargo is laden.
    (ii) For air cargo, including cargo being transported by Air Express 
Couriers, the USPPI or the authorized

[[Page 269]]

agent shall file the EEI required by Sec.  30.6 and provide the filing 
citation or exemption legend to the exporting carrier no later than two 
(2) hours prior to the scheduled departure time of the aircraft.
    (iii) For truck cargo, including cargo departing by Express 
Consignment Couriers, the USPPI or the authorized agent shall file the 
EEI required by Sec.  30.6 and provide the filing citation or exemption 
legend to the exporting carrier no later than one (1) hour prior to the 
arrival of the truck at the United States border to go foreign.
    (iv) For rail cargo, the USPPI or the authorized agent shall file 
the EEI required by Sec.  30.6 and provide the filing citation or 
exemption legend to the exporting carrier no later than two (2) hours 
prior to the time the train arrives at the U.S. border to go foreign.
    (v) For mail, the USPPI or the authorized agent shall file the EEI 
as required by Sec.  30.6 and provide the proof of filing citation, 
postdeparture filing citation, AES downtime filing citation, exemption 
or exclusion legend to the U.S. Postal Service no later than two (2) 
hours prior to exportation.
    (vi) For all other modes, the USPPI or the authorized agent shall 
file the required EEI no later than two (2) hours prior to exportation.
    (3) For shipments between the United States and Puerto Rico, the 
USPPI or authorized agent shall provide the proof of filing citation, 
postdeparture filing citation, AES downtime filing citation, exemption 
or exclusion legend to the exporting carrier by the time the shipment 
arrives at the port of unlading.
    (4) For non-USML shipments when the AES or AESDirect is unavailable, 
use the following instructions:
    (i) If the participant's AES is unavailable, the filer must delay 
the export of the goods or find an alternative filing method;
    (ii) If AES or AESDirect is unavailable, the goods may be exported 
and the filer must:
    (A) Provide the appropriate downtime filing citation as described in 
Sec.  30.7(b) and appendix B of this part; and
    (B) Report the EEI at the first opportunity AES or AESDirect is 
available.
    (5) For used self-propelled vehicles as defined in 19 CFR 192.1 of 
U.S. Customs and Border Protection regulations, the USPPI or the 
authorized agent shall file the EEI as required by Sec.  30.6 and 
provide the filing citation to the CBP at least 72 hours prior to 
export. The filer must also provide the carrier with the filing citation 
as required by paragraph (b) of this section.
    (c) EEI transmitted postdeparture--(1) Postdeparture filing 
procedures. Postdeparture filing is only available for approved USPPIs. 
For all methods of transportation other than pipeline, approved USPPIs 
or their authorized agent may file data elements required in accordance 
with Sec.  30.6 no later than five (5) calendar days after the date of 
exportation, except for shipments where predeparture filing is 
specifically required.
    (2) Pipeline filing procedures. USPPIs or authorized agents may file 
data elements required by Sec.  30.6 no later than four (4) calendar 
days following the end of the month. The operator of a pipeline may 
transport goods to a foreign country without the prior filing of the 
proof of filing citation, exemption, or exclusion legend, on the 
condition that within four (4) calendar days following the end of each 
calendar month the operator will deliver to the CBP Port Director the 
proof of filing citation, exemption, or exclusion legend covering all 
exports through the pipeline to each consignee during the month.
    (d) Proof of filing citation and exemption and exclusion legends. 
The USPPI or the authorized agent shall provide the exporting carrier 
with the proof of filing citation and exemption and exclusion legends as 
described in Sec.  30.7.
    (e) Collection of KPCs and voided KPCs. Any voided KPC must be faxed 
by the voiding party to the Census Bureau on (800) 457-7328, or provided 
by other methods as permitted by the Census Bureau, immediately upon 
voiding. The collection of KPCs, including voided KPCs, is performed 
pursuant to the Clean Diamond Trade Act, Public Law 108-19, 19 U.S.C. 
Section 3901 et seq.

[[Page 270]]

(CDTA), and Executive Order 13312, and not Title 13, U.S.C.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16376, Mar. 14, 2013; 82 
FR 18390, Apr. 19, 2017; 82 FR 43843, Sept. 20, 2017; 83 FR 17751, Apr. 
24, 2018]



Sec.  30.5  Electronic Export Information filing processes and standards.

    (a)-(b) [Reserved]
    (c) Postdeparture filing approval process. Postdeparture filing is a 
privilege granted to approved USPPIs for their EEI to be filed up to 
five (5) calendar days after the date of export. The USPPI or its 
authorized agent may not transmit EEI postdeparture for certain types of 
shipments that are identified in Sec.  30.4(a). The USPPI may apply for 
postdeparture filing privileges by submitting a postdeparture filing 
application at www.census.gov/aes. An authorized agent may not apply on 
behalf of a USPPI. The Census Bureau will distribute the applications 
submitted by USPPI's who are applying for postdeparture to the CBP and 
the other federal government partnership agencies for their review and 
approval. Failure to meet the standards of the Census Bureau, CBP or any 
of the partnership agencies is reason for denial of the AES applicant 
for postdeparture filing privileges. Each partnership agency will 
develop its own internal postdeparture filing acceptance standards, and 
each agency will notify the Census Bureau of the USPPI's success or 
failure to meet that agency's acceptance standards. Any partnership 
agency may require additional information from USPPIs that are applying 
for postdeparture filing. The Census Bureau will notify the USPPI of the 
decision to either deny or approve its application for postdeparture 
filing privileges within ninety (90) calendar days of receipt of the 
postdeparture filing application by the Census Bureau.
    (1) Grounds for denial of postdeparture filing status. The Census 
Bureau may deny a USPPI's application for postdeparture filing 
privileges for any of the following reasons:
    (i) There is no history of filing for the USPPI through the AES.
    (ii) The USPPI's volume of EEI reported through the AES does not 
warrant participation in postdeparture filing.
    (iii) The USPPI or its authorized agent has failed to submit EEI 
through the AES in a timely and accurate manner.
    (iv) The USPPI has a history of noncompliance with the Census Bureau 
export regulations contained in this part.
    (v) The USPPI has been indicted, convicted, or is currently under 
investigation for a felony involving a violation of federal export laws 
or regulations and the Census Bureau has evidence of probable cause 
supporting such violation, or the USPPI is in violation of Census Bureau 
export regulations contained in this part.
    (vi) The USPPI has made or caused to be made in the LOI a false or 
misleading statement or omission with respect to any material fact.
    (vii) The USPPI would pose a significant threat to national security 
interests such that its participation in postdeparture filing should be 
denied.
    (viii) The USPPI has multiple violations of either the EAR (15 CFR 
730 through 774) or the ITAR (22 CFR 120 through 130) within the last 
three (3) years.
    (ix) The USPPI fails to demonstrate the ability to meet the AES 
predeparture filing requirements.
    (2) Notice of denial. A USPPI denied postdeparture filing privileges 
by other agencies shall contact those agencies regarding the specific 
reason(s) for nonselection and for their appeal procedures. A USPPI 
denied postdeparture filing status by the Census Bureau will be provided 
with a specific reason for nonselection and a Census Bureau point of 
contact in an electronic notification letter. A USPPI may appeal the 
Census Bureau's nonselection decision by following the appeal procedure 
and reapplication procedure provided in paragraph (c)(5) of this 
section.
    (3) Revocation of postdeparture filing privileges--(i) Revocation by 
the Census Bureau. The Census Bureau may revoke postdeparture filing 
privileges of an approved USPPI for the following reasons:
    (A) The USPPI's volume of EEI reported in the AES does not warrant 
continued participation in postdeparture filing;

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    (B) The USPPI or its authorized agent has failed to submit EEI 
through the AES in a timely and accurate manner;
    (C) The USPPI has made or caused to be made in the LOI a false or 
misleading statement or omission with respect to material fact;
    (D) The USPPI submitting the LOI has been indicted, convicted, or is 
currently under investigation for a felony involving a violation of 
federal export laws or regulations and the Census Bureau has evidence of 
probable cause supporting such violation, or the AES applicant is in 
violation of export rules and regulations contained in this part;
    (E) The USPPI has failed to comply with existing export regulations 
or has failed to pay any outstanding penalties assessed in connection 
with such noncompliance; or
    (F) The USPPI would pose a significant threat to national security 
interests such that its continued participation in postdeparture filing 
should be terminated.
    (G) The USPPI or its authorized agent files postdeparture for 
commodities that are identified in Sec.  30.4(a).
    (ii) Revocation by other agencies. Any of the other agencies may 
revoke a USPPI's postdeparture filing privileges with respect to 
transactions subject to the jurisdiction of that agency. When doing so, 
the agency shall notify both the Census Bureau and the USPPI whose 
authorization is being revoked.
    (4) Notice of revocation. Approved postdeparture filing USPPIs whose 
postdeparture filing privileges have been revoked by other agencies 
shall contact those agencies for their specific revocation and appeal 
procedures. When the Census Bureau makes a determination to revoke an 
approved USPPI's postdeparture filing privileges, the USPPI will be 
notified electronically of the reason(s) for the decision. In most 
cases, the revocation shall become effective when the USPPI has either 
exhausted all appeal procedures, or thirty (30) calendar days after 
receipt of the notice of revocation, if no appeal is filed. However, in 
cases judged to affect national security, revocations shall become 
effective immediately upon notification.
    (5) Appeal procedure. Any USPPI whose request for postdeparture 
filing privileges has been denied by the Census Bureau or whose 
postdeparture filing privileges have been revoked by the Census Bureau 
may appeal the decision by filing an appeal within thirty (30) calendar 
days of receipt of the notice of decision. Appeals should be addressed 
to the Chief, Foreign Trade Division, U.S. Census Bureau, Washington, DC 
20233-6700. The Census Bureau will issue a written decision to the USPPI 
within thirty (30) calendar days from the date of receipt of the appeal 
by the Census Bureau. If a written decision is not issued within thirty 
(30) calendar days, the Census Bureau will forward to the USPPI a notice 
of extension within that time period. The USPPI will be provided with 
the reasons for the extension of this time period and an expected date 
of decision. The USPPIs who have had their postdeparture filing status 
denied or revoked may not reapply for this privilege for one year 
following written notification of the denial or revocation.
    (d) Electronic Export Information filing standards. The data 
elements required for filing EEI are contained in Sec.  30.6. When 
filing EEI, the USPPI or authorized agent shall comply with the data 
transmission procedures determined by CBP and the Census Bureau and 
shall agree to stay in complete compliance with all export rules and 
regulations in this part. Failure of the USPPI or the authorized agent 
of either the USPPI or FPPI to comply with these requirements 
constitutes a violation of the regulations in this part, and renders 
such principal party or the authorized agent subject to the penalties 
provided for in Subpart H of this part. In the case of AESDirect, when 
submitting a registration form to AESDirect, the registering company is 
certifying that it will be in compliance with all applicable export 
rules and regulations. This includes complying with the following 
security requirements:
    (1) AESDirect user names and passwords are to be kept secure by the 
account administrator and not disclosed to any unauthorized user or any 
persons outside the registered company.
    (2) Registered companies are responsible for those persons having a 
user

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name and password. If an employee with a user name and password leaves 
the company or otherwise is no longer an authorized user, the company 
shall immediately deactivate that username in the system to ensure the 
integrity and confidentiality of Title 13 data.
    (e) Monitoring the filing of EEI. The USPPI's or the authorized 
agent's AES filings will be monitored and reviewed for quality, 
timeliness, and coverage. The Census Bureau will provide performance 
reports to USPPIs and authorized agents who file EEI. The Census Bureau 
will take appropriate action to correct specific situations where the 
USPPI or authorized agent fails to maintain acceptable levels of data 
quality, timeliness, or coverage.
    (f) Support. The Census Bureau provides online services that allow 
the USPPI and the authorized agent to seek assistance pertaining to the 
AES and this part. For AES assistance, filers may send an email to 
[email protected]. For FTR assistance, filers may send an email to 
[email protected].

[73 FR 31555, June 2, 2008, as amended at 78 FR 16376, Mar. 14, 2013; 82 
FR 18390, Apr. 19, 2017]



Sec.  30.6  Electronic Export Information data elements.

    The information specified in this section is required for EEI 
transmitted to the AES. The data elements identified as ``mandatory'' 
shall be reported for each transaction. The data elements identified as 
``conditional'' shall be reported if they are required for or apply to 
the specific shipment. The data elements identified as ``optional'' may 
be reported at the discretion of the USPPI or the authorized agent. 
Additional data elements may be required to be reported in the AES in 
accordance with other federal agencies' regulations. Refer to the other 
agencies' regulations for reporting requirements.
    (a) Mandatory data elements are as follows:
    (1) USPPI. The person or legal entity in the United States that 
receives the primary benefit, monetary or otherwise, from the export 
transaction. Generally, that person or entity is the U.S. seller, 
manufacturer, or order party, or the foreign entity while in the United 
States when purchasing or obtaining the goods for export. The name, 
address, identification number, and contact information of the USPPI 
shall be reported to the AES as follows:
    (i) Name of the USPPI. In all export transactions, the name listed 
in the USPPI field in the EEI shall be the USPPI in the transaction. 
(See Sec.  30.1 for the definition of the USPPI and Sec.  30.3 for 
details on the USPPI's reporting responsibilities.)
    (ii) Address of the USPPI. In all EEI filings, the USPPI shall 
report the address or location (no post office box number) from which 
the goods actually begin the journey to the port of export even if the 
USPPI does not own/lease the facility. For example, the EEI covering 
goods laden aboard a truck at a warehouse in Georgia for transport to 
Florida for loading onto a vessel for export to a foreign country shall 
show the address of the warehouse in Georgia. For shipments with 
multiple origins, report the address from which the commodity with the 
greatest value begins its export journey. If such information is not 
known, report the address in the state where the commodities are 
consolidated for export.
    (iii) USPPI identification number. Report the EIN or DUNS number of 
the USPPI. If the USPPI has only one EIN, report that EIN. If the USPPI 
has more than one EIN, report the EIN that the USPPI uses to report 
employee wages and withholdings, not an EIN used to report only company 
earnings or receipts. Use of another company's EIN is prohibited. The 
appropriate Party ID Type code shall be reported to the AES. If a 
foreign entity is in the United States at the time goods are purchased 
or obtained for export, the foreign entity is the USPPI. In such 
situations, when the foreign entity does not have an EIN, the authorized 
agent shall report a border crossing number, passport number, or any 
number assigned by CBP on behalf of the foreign entity.
    (iv) USPPI contact information. The person who has the most 
knowledge regarding the specific shipment or related export controls.
    (2) Date of export. The date of export is the date when goods are 
scheduled to

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leave the port of export on the exporting carrier that is taking the 
goods out of the United States.
    (3) Ultimate consignee. The ultimate consignee is the person, party, 
or designee that is located abroad and actually receives the export 
shipment. The name and address of the ultimate consignee, whether by 
sale in the United States or abroad or by consignment, shall be reported 
in the EEI. The ultimate consignee as known at the time of export shall 
be reported. For shipments requiring an export license including 
shipments to international waters, the ultimate consignee reported in 
the AES shall be the person so designated on the export license or 
authorized to be the ultimate consignee under the applicable license 
exemption or exception in conformance with the EAR or ITAR, as 
applicable. For goods sold en route, report the appropriate ``To be Sold 
En Route'' indicator in the EEI, and report corrected information as 
soon as it is known (see Sec.  30.9 for procedures on correcting AES 
information).
    (4) U.S. state of origin. The U.S. state of origin is the 2-
character postal code for the state in which the goods begin their 
journey to the port of export. For example, a shipment covering goods 
laden aboard a truck at a warehouse in Georgia for transport to Florida 
for loading onto a vessel for export to a foreign country shall show 
Georgia as the state of origin. The U.S. state of origin may be 
different from the U.S. state where the goods were produced, mined, or 
grown. For shipments of multi-state origin, reported as a single 
shipment, report the U.S. state of the commodity with the greatest 
value. If such information is not known, report the state in which the 
commodities are consolidated for export.
    (5) Country of ultimate destination. The country of ultimate 
destination is the country in which goods are to be consumed, further 
processed, stored, or manufactured, as known to the USPPI at the time of 
export. The country of ultimate destination is the code issued by the 
ISO.
    (i) Shipments under an export license. For shipments under an export 
license issued by the Department of State, Directorate of Defense Trade 
Controls (DDTC), or the Department of Commerce, Bureau of Industry and 
Security (BIS), the country of ultimate destination shall conform to the 
country of ultimate destination as shown on the license. In the case of 
a DDTC or BIS license, the country of ultimate destination is the 
country specified with respect to the end user, which may also be the 
ultimate consignee. For goods licensed by other government agencies, 
refer to the agencies' specific requirements for providing country of 
ultimate destination information.
    (ii) Shipments not moving under an export license. The country of 
ultimate destination is the country known to the USPPI or U.S. 
authorized agent at the time of exportation. The country to which the 
goods are being shipped is not the country of ultimate destination if 
the USPPI or U.S. authorized agent has knowledge, at the time the goods 
leave the United States, that they are intended for reexport or 
transshipment in the form received to another known country. For goods 
shipped to Canada, Mexico, Panama, Hong Kong, Belgium, United Arab 
Emirates, The Netherlands, or Singapore, special care should be 
exercised before reporting these countries as the ultimate destinations 
because these are countries through which goods from the United States 
are frequently transshipped. If the USPPI or U.S. authorized agent does 
not know the ultimate destination of the goods, the country of ultimate 
destination to be shown is the last country, as known to the USPPI or 
U.S. authorized agent at the time the goods leave the United States, to 
which the goods are to be shipped in their present form. (For 
instructions as to the reporting of country of ultimate destination for 
vessels sold or transferred from the United States to foreign ownership, 
see Sec.  30.26). In addition, the following types of shipments must be 
reported as follows:
    (A) Department of State, DDTC, license exemption. The country of 
ultimate destination is the country specified with respect to the end 
user as noted in the ITAR (22 CFR 123.9(a)).
    (B) Department of Commerce, BIS, license exception. The country of 
ultimate destination is the country of the

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end user as defined in 15 CFR 772.1 of the Export Administration 
Regulations (EAR).
    (C) For shipments to international waters. The country of ultimate 
destination is the nationality of the person(s) or entity assuming 
control of the good(s) exported to international waters.
    (iii) For goods to be sold en route, report the country of the first 
port of call and then report corrected information as soon as it is 
known.
    (6) Method of transportation. The method of transportation is the 
means by which the goods are exported from the United States.
    (i) Conveyances exported under their own power. The mode of 
transportation for aircraft, vessels, or locomotives (railroad stock) 
transferring ownership or title and moving out of the United States 
under its own power is the mode of transportation by which the 
conveyance moves out of the United States.
    (ii) Exports through Canada, Mexico, or other foreign countries for 
transshipment to another destination. For transshipments through Canada, 
Mexico, or another foreign country, the mode of transportation is the 
mode of the carrier transporting the goods out of the United States.
    (7) Conveyance name/carrier name. The conveyance name/carrier name 
is the name of the conveyance/carrier transporting the goods out of the 
United States as known at the time of exportation. For exports by sea, 
the conveyance name is the vessel name. For exports by air, rail, or 
truck, the carrier name is that which corresponds to the carrier 
identification as specified in paragraph (a)(8) of this section. Terms, 
such as airplane, train, rail, truck, vessel, barge, or international 
footbridge are not acceptable. For shipments by other methods of 
transportation, including mail, fixed methods (pipeline), the 
conveyance/carrier name is not required.
    (8) Carrier identification. The carrier identification is the 
Standard Carrier Alpha Code (SCAC) for vessel, rail, and truck shipments 
or the International Air Transport Association (IATA) code for air 
shipments. The carrier identification specifies the carrier that 
transports the goods out of the United States. The carrier transporting 
the goods to the port of export and the carrier transporting the goods 
out of the United States may be different. For vessel shipments, report 
the carrier identification code of the party whose booking number was 
reported in the AES. For transshipments through Canada, Mexico, or 
another foreign country, the carrier identification is that of the 
carrier that transports the goods out of the United States. For modes 
other than vessel, air, rail and truck valid methods of transportation, 
including but not limited to mail, fixed transport (pipeline), and 
passenger hand carried, the carrier identification is not required. The 
National Motor Freight Traffic Association (NMFTA) issues and maintains 
the SCAC. (See www.nmfta.org.) The IATA issues and maintains the IATA 
codes. (See www.census.gov/trade for a list of IATA codes.)
    (9) Port of export. The port of export is the U.S. Customs and 
Border Protection (CBP) seaport or airport where the goods are loaded on 
the carrier that is taking the goods out of the United States, or the 
CBP port where exports by overland transportation cross the U.S. border 
into Canada or Mexico. For EEI reporting purposes only, for goods loaded 
aboard a conveyance (aircraft or vessel) that stops at several ports 
before clearing to the foreign country, the port of export is the first 
port where the goods were loaded on this conveyance. For goods off-
loaded from the original conveyance to another conveyance (even if the 
aircraft or vessel belongs to the same carrier) at any of the ports, the 
port where the goods were loaded on the last conveyance before going 
foreign is the port of export. The port of export shall be reported in 
terms of Schedule D, ``Classification of CBP Districts and Ports.'' Use 
port code 8000 for shipments by mail.
    (10) Related party indicator. Used to indicate when a transaction 
involving trade between a USPPI and an ultimate consignee where either 
party owns directly or indirectly 10 percent or more of the other party.
    (11) Domestic or foreign indicator. Indicates if the goods exported 
are of domestic or foreign origin. Report foreign

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goods as a separate line item from domestic goods even if the commodity 
classification number is the same.
    (12) Commodity classification number. Report the 10-digit commodity 
classification number as provided in Schedule B, Statistical 
Classification of Domestic and Foreign Commodities Exported from the 
United States in the EEI. The 10-digit commodity classification number 
provided in the Harmonized Tariff Schedule of the United States (HTSUSA) 
may be reported in lieu of the Schedule B commodity classification 
number except as noted in the headnotes of the HTSUSA. The HTSUSA is a 
global classification system used to describe most world trade in goods. 
Furnishing the correct Schedule B or HTSUSA number does not relieve the 
USPPI or the authorized agent of furnishing a complete and accurate 
commodity description. When reporting the Schedule B number or HTSUSA 
number, the decimals shall be omitted. (See http://www.census.gov/trade 
for a list of Schedule B classification numbers.)
    (13) Commodity description. Report the description of the goods 
shipped in English in sufficient detail to permit verification of the 
Schedule B or HTSUSA number. Clearly and fully state the name of the 
commodity in terms that can be identified or associated with the 
language used in Schedule B or HTSUSA (usually the commercial name of 
the commodity), and any and all characteristics of the commodity that 
distinguish it from commodities of the same name covered by other 
Schedule B or HTSUSA classifications. If the shipment requires a 
license, the description reported in the EEI shall conform with that 
shown on the license. If the shipment qualifies for a license exemption, 
the description shall be sufficient to ensure compliance with that 
license exemption. However, where the description on the license does 
not state all of the characteristics of the commodity that are needed to 
completely verify the commodity classification number, as described in 
this paragraph, report the missing characteristics, as well as the 
description shown on the license, in the commodity description field of 
the EEI.
    (14) Primary unit of measure. The unit of measure shall correspond 
to the primary quantity as prescribed in the Schedule B or HTSUSA. If 
neither Schedule B nor HTSUSA specifies a unit of measure for the item, 
an ``X'' is required in the unit of measure field.
    (15) Primary quantity. The quantity is the total number of units 
that correspond to the first unit of measure specified in the Schedule B 
or HTSUSA. Where the unit of measure is in terms of weight (grams, 
kilograms, metric tons, etc.), the quantity reflects the net weight, not 
including the weight of barrels, boxes, or other bulky coverings, and 
not including salt or pickle in the case of salted or pickled fish or 
meats. For a few commodities where ``content grams'' or ``content 
kilograms'' or some similar weight unit is specified in Schedule B or 
HTSUSA, the quantity may be less than the net weight. The quantity is 
reported as a whole unit only, without commas or decimals. If the 
quantity contains a fraction of a whole unit, round fractions of one-
half unit or more up and fractions of less than one-half unit down to 
the nearest whole unit. (For example, where the unit for a given 
commodity is in terms of ``tons,'' a net quantity of 8.4 tons would be 
reported as 8 for the quantity. If the quantity is less than one unit, 
the quantity is 1.)
    (16) Shipping weight. The shipping weight is the weight in 
kilograms, which includes the weight of the commodity, as well as the 
weight of normal packaging, such as boxes, crates, barrels, etc. The 
shipping weight is required for exports by air, vessel, rail, and truck, 
and required for exports of household goods transported by all methods. 
For exports (except household goods) by mail, fixed transport 
(pipeline), or other valid methods, the shipping weight is not required 
and shall be reported as zero. For containerized cargo in lift vans, 
cargo vans, or similar substantial outer containers, the weight of such 
containers is not included in the shipping weight. If the shipping 
weight is not available for each Schedule B or HTSUSA item included in 
one or more containers, the approximate shipping weight for each item is 
estimated and reported. The

[[Page 276]]

total of these estimated weights equals the actual shipping weight of 
the entire container or containers.
    (17) Value. In general, the value to be reported in the EEI shall be 
the value of the goods at the U.S. port of export in U.S. dollars. The 
value shall be the selling price (or the cost, if the goods are not 
sold), plus inland or domestic freight, insurance, and other charges to 
the U.S. seaport, airport, or land border port of export. Cost of goods 
is the sum of expenses incurred in the USPPI's acquisition or production 
of the goods. Report the value to the nearest dollar, omit cents. 
Fractions of a dollar less than 50 cents should be ignored, and 
fractions of 50 cents or more should be rounded up to the next dollar.
    (i) Selling price. The selling price for goods exported pursuant to 
sale, and the value to be reported in the EEI, is the USPPI's price to 
the FPPI (the foreign buyer). Deduct from the selling price any 
unconditional discounts, but do not deduct discounts that are 
conditional upon a particular act or performance on the part of the 
foreign buyer. For goods shipped on consignment without a sale actually 
having been made at the time of export, the selling price to be reported 
in the EEI is the market value at the time of export at the U.S. port.
    (ii) Adjustments. When necessary, make the following adjustments to 
obtain the value.
    (A) Where goods are sold at a point other than the port of export, 
freight, insurance, and other charges required in moving the goods from 
their U.S. point of origin to the exporting carrier at the port of 
export or border crossing point shall be added to the selling price (as 
defined in paragraph (a)(17)(i) of this section) for purposes of 
reporting the value in the EEI.
    (B) Where the actual amount of freight, insurance, and other 
domestic costs is not available, an estimate of the domestic costs shall 
be made and added to the cost of the goods or selling price to derive 
the value to be reported in the EEI. Add the estimated domestic costs to 
the cost or selling price of the goods to obtain the value to be 
reported in the EEI.
    (C) Where goods are sold at a ``delivered'' price to the foreign 
destination, the cost of loading the goods on the exporting carrier, if 
any, and freight, insurance, and other costs beyond the port of export 
shall be subtracted from the selling price for purposes of reporting 
value in the EEI. If the actual amount of such costs is not available, 
an estimate of the costs should be subtracted from the selling price.
    (D) Costs added to or subtracted from the selling price in 
accordance with the instructions in this paragraph (a)(17)(ii) should 
not be shown separately in the EEI, but the value reported should be the 
value after making such adjustments, where required, to arrive at the 
value of the goods at the U.S. port of export.
    (iii) Exclusions. Exclude the following from the selling price of 
goods exported.
    (A) Commissions to be paid by the USPPI to its agent abroad or 
commissions to be deducted from the selling price by the USPPI's agent 
abroad.
    (B) The cost of loading goods on the exporting carrier at the port 
of export.
    (C) Freight, insurance, and any other charges or transportation 
costs beyond the port of export.
    (D) Any duties, taxes, or other assessments imposed by foreign 
countries.
    (iv) For definitions of the value to be reported in the EEI for 
special types of transactions where goods are not being exported 
pursuant to commercial sales, or where subsidies, government financing 
or participation, or other unusual conditions are involved, see Subpart 
C of this part.
    (18) Export information code. A code that identifies the type of 
export shipment or condition of the exported items (e.g., goods donated 
for relief or charity, impelled shipments, shipments under the Foreign 
Military Sales program, household goods, and all other shipments).
    (19) Shipment Reference Number (SRN). A unique identification number 
assigned by the filer that allows for the identification of the shipment 
in the filer's system. The reuse of the SRN is prohibited.
    (20) Line number. A number that identifies the specific commodity 
line item within a shipment.

[[Page 277]]

    (21) Hazardous material indicator. An indicator that identifies 
whether the shipment is hazardous as defined by the Department of 
Transportation.
    (22) Inbond code. The code indicating whether the shipment is being 
transported under bond.
    (23) License code/license exemption code. The code that identifies 
the commodity as having a federal government agency requirement for a 
license, permit, authorization, license exception or exemption or that 
no license is required.
    (24) Routed export transaction indicator. An indicator that 
identifies that the shipment is a routed export transaction as defined 
in Sec.  30.3.
    (25) Shipment filing action request indicator. An indicator that 
allows the filer to add, change, replace, or cancel an export shipment 
transaction.
    (26) Line item filing action request indicator. An indicator that 
allows the filer to add, change, or delete a commodity line within an 
export shipment transaction.
    (27) Filing option indicator. An indicator of whether the filer is 
reporting export information predeparture or postdeparture. See Sec.  
30.4 for more information on EEI filing options.
    (28) Ultimate consignee type. Provide the business function of the 
ultimate consignee that most often applies. If more than one type 
applies to the ultimate consignee, report the type that applies most 
often. For purposes of this paragraph, the ultimate consignee will be 
designated as a Direct Consumer, Government Entity, Reseller, or Other/
Unknown, defined as follows:
    (i) Direct Consumer--a non-government institution, enterprise, or 
company that will consume or use the exported good as a consumable, for 
its own internal processes, as an input to the production of another 
good or as machinery or equipment that is part of a manufacturing 
process or a provision of services and will not resell or distribute the 
good.
    (ii) Government Entity--a government-owned or government-controlled 
agency, institution, enterprise, or company.
    (iii) Reseller--a non-government reseller, retailer, wholesaler, 
distributor, distribution center or trading company.
    (iv) Other/Unknown--an entity that is not a Direct Consumer, 
Government Entity or Reseller, as defined above, or whose ultimate 
consignee type is not known at the time of export.
    (b) Conditional data elements are as follows:
    (1) Authorized agent and authorized agent identification. The 
authorized agent is the person or entity in the United States who is 
authorized by the USPPI or the FPPI to prepare and file the EEI or the 
person or entity, if any, named on the export license. If an authorized 
agent is used, the following information shall be provided to the AES:
    (i) U.S. Authorized agent's identification number. Report the U.S. 
authorized agent's own EIN or DUNS for the first shipment and for each 
subsequent shipment. Use of another company's or individual's EIN or 
other identification number is prohibited. The party ID type of agent 
identification (E = EIN, D = DUNS) shall be indicated.
    (ii) Name of the authorized agent. Report the name of the authorized 
agent. (See Sec.  30.3 for details on the specific reporting 
responsibilities of authorized agents and Subpart B of this part for 
export control licensing requirements for authorized agents.)
    (iii) Address of the authorized agent. Report the address or 
location (no post office box number) of the authorized agent. The 
authorized agent's address shall be reported with the initial shipment. 
Subsequent shipments may be identified by the agent's identification 
number.
    (iv) Contact information. Report the contact name and telephone 
number.
    (2) Intermediate consignee. The name and address of the intermediate 
consignee (if any) shall be reported. The intermediate consignee acts in 
a foreign country as an agent for the principal party in interest or the 
ultimate consignee for the purpose of effecting delivery of the export 
shipment to the ultimate consignee. The intermediate consignee is the 
person named as such on the export license or authorized to act as such 
under the applicable general license and in conformity with the EAR.

[[Page 278]]

    (3) FTZ identifier. If goods are removed from a FTZ and not entered 
for consumption, report the FTZ identifier. This is the unique 7-digit 
alphanumeric identifier assigned by the Foreign Trade Zone Board that 
identifies the FTZ, subzone or site from which goods are withdrawn for 
export.
    (4) Foreign port of unlading. The foreign port of unlading is the 
foreign port in the country where the goods are removed from the 
exporting carrier. The foreign port does not have to be located in the 
country of destination. For exports by sea to foreign countries, not 
including Puerto Rico, the foreign port of unlading is the code in terms 
of Schedule K, Classification of Foreign Ports by Geographic Trade Area 
and Country. For exports by sea or air between the United States and 
Puerto Rico, the foreign port of unlading is the code in terms of 
Schedule D, Classification of CBP Districts and Ports. The foreign port 
of unlading is not required for exports by other modes of 
transportation, including rail, truck, mail, fixed (pipeline), or air 
(unless between the U.S. and Puerto Rico).
    (5) Export license number/CFR citation/KPC number. License number, 
permit number, citation, or authorization number assigned by the 
Department of Commerce, BIS; Department of State, DDTC; Department of 
the Treasury, OFAC; Department of Justice, DEA; Nuclear Regulatory 
Commission; or any other federal government agency.
    (6) Export Control Classification Number (ECCN). The number used to 
identify items on the CCL, Supplement No. 1 to Part 774 of the EAR. The 
ECCN consists of a set of digits and a letter. Items that are not 
classified under an ECCN are designated ``EAR99''.
    (7) Secondary unit of measure. The unit of measure that corresponds 
to the secondary quantity as prescribed in the Schedule B or HTSUSA. If 
neither Schedule B nor HTSUSA specifies a secondary unit of measure for 
the item, the unit of measure is not required.
    (8) Secondary quantity. The total number of units that correspond to 
the secondary unit of measure, if any, specified in the Schedule B or 
HTSUSA. See the definition of primary quantity for specific instructions 
on reporting the quantity as a weight and whole unit, rounding 
fractions.
    (9) Vehicle Identification Number (VIN)/Product ID. The 
identification number found on the reported used vehicle. For used self-
propelled vehicles that do not have a VIN, the Product ID is reported. 
``Used'' vehicle refers to any self-propelled vehicle where the 
equitable or legal title to which has been transferred by a 
manufacturer, distributor, or dealer to an ultimate purchaser. See U.S. 
Customs and Border Protection regulations 19 CFR 192.1 for more 
information on exports of used vehicles.
    (10) Vehicle ID qualifier. The qualifier that identifies the type of 
used vehicle number reported. The valid codes are V for VIN and P for 
Product ID.
    (11) Vehicle title number. The number issued by the Motor Vehicle 
Administration.
    (12) Vehicle title state code. The 2-character postal code for the 
state or territory that issued the vehicle title.
    (13) Entry number. The entry number must be reported for goods that 
are entered in lieu of being transported under bond for which the 
importer of record is a foreign entity or, for reexports of goods 
withdrawn from a FTZ for which a NAFTA deferred duty claim (entry type 
08) could have been made, but that the importer elected to enter for 
consumption under CBP entry type 06. For goods imported into the United 
States for export to a third country of ultimate destination, where the 
importer of record on the entry is a foreign entity, the USPPI will be 
the authorized agent designated by the foreign importer for service of 
process. The USPPI, in this circumstance, is required to report the 
import entry number.
    (14) Transportation Reference Number (TRN). The TRN is as follows:
    (i) Vessel shipments. Report the booking number for vessel 
shipments. The booking number is the reservation number assigned by the 
carrier to hold space on the vessel for cargo being exported. The TRN is 
required for all vessel shipments.
    (ii) Air shipments. Report the master air waybill number for air 
shipments. The air waybill number is the reservation number assigned by 
the carrier to hold space on the aircraft for cargo

[[Page 279]]

being exported. The TRN is optional for air shipments.
    (iii) Rail shipments. Report the bill of lading (BL) number for rail 
shipments. The BL number is the reservation number assigned by the 
carrier to hold space on the rail car for cargo being exported. The TRN 
is optional for rail shipments.
    (iv) Truck shipments. Report the freight or pro bill number for 
truck shipments. The freight or pro bill number is the number assigned 
by the carrier to hold space on the truck for cargo being exported. The 
freight or pro bill number correlates to a bill of lading number, air 
waybill number or trip number for multimodal shipments. The TRN is 
optional for truck shipments.
    (15) License value. For shipments requiring an export license, 
report the value designated on the export license that corresponds to 
the commodity being exported.
    (16) Department of State requirements. (i) Directorate of Defense 
Trade Controls (DDTC) registration number. The number assigned by the 
DDTC to persons who are required to register per part 122 of the ITAR 
(22 CFR parts 120 through 130), and have an authorization (license or 
exemption) from DDTC to export the article.
    (ii) DDTC Significant Military Equipment (SME) indicator. A term 
used to designate articles on the USML (22 CFR part 121) for which 
special export controls are warranted because of their capacity for 
substantial military utility or capability. See Sec.  120.7 of the ITAR 
22 CFR parts 120 through 130 for a definition of SME and Sec.  121.1 for 
items designated as SME articles.
    (iii) DDTC eligible party certification indicator. Certification by 
the U.S. exporter that the exporter is an eligible party to participate 
in defense trade. See 22 CFR 120.1(c). This certification is required 
only when an exemption is claimed.
    (iv) DDTC United States Munitions List (USML) category code. The 
USML category of the article being exported (22 CFR part 121).
    (v) DDTC Unit of Measure (UOM). This unit of measure is the UOM 
covering the article being shipped as described on the export 
authorization or declared under an ITAR exemption.
    (vi) DDTC quantity. This quantity is the number of articles being 
shipped. The quantity is the total number of units that corresponds to 
the DDTC UOM code.
    (vii) DDTC exemption number. The exemption number is the specific 
citation from the ITAR (22 CFR parts 120 through 130) that exempts the 
shipment from the requirements for a license or other written 
authorization from DDTC.
    (viii) DDTC export license line number. The line number of the State 
Department export license that corresponds to the article being 
exported.
    (17) Kimberley Process Certificate (KPC) number. The unique 
identifying number on the KPC issued by the United States Kimberley 
Process Authority that must accompany all export shipments of rough 
diamonds. Rough diamonds are classified under 6-digit HS subheadings 
7102.10, 7102.21, and 7102.31. Enter the KPC number in the license 
number field excluding the 2-digit ISO country code for the United 
States.
    (c) Optional data elements:
    (1) Seal number. The security seal number placed on the equipment or 
container.
    (2) Equipment number. Report the identification number for the 
shipping equipment, such as container or igloo number (Unit Load Device 
(ULD)), truck license number, rail car number, or container number for 
containerized vessel cargo.
    (3) Original ITN. The ITN associated with a previously filed 
shipment that is replaced or divided and for which additional 
shipment(s) must be filed. The original ITN field can be used in certain 
scenarios, such as, but not limited to, shipments sold en route or cargo 
split by the carrier where the succeeding parts of the shipment are not 
exported within the timeframes specified in Sec.  30.28.

[73 FR 31555, June 2, 2008, as amended at 74 FR 38916, Aug. 5, 2009; 78 
FR 16376, Mar. 14, 2013; 82 FR 18390, Apr. 19, 2017; 82 FR 43843, Sept. 
20, 2017]

[[Page 280]]



Sec.  30.7  Annotating the bill of lading, air waybill, or other 
commercial loading documents with proof of filing citations, and exemption 
legends.

    (a) Items identified on the USML shall meet the predeparture 
reporting requirements identified in the ITAR (22 CFR 120 through 130) 
for the U.S. State Department requirements concerning the time and place 
of filing. For USML shipments, the proof of filing citations shall 
include the statement in ``AES,'' followed by the returned confirmation 
number provided by the AES when the transmission is accepted, referred 
to as the ITN.
    (b) For shipments other than USML, the USPPI or the authorized agent 
is responsible for annotating the proper proof of filing citation or 
exemption legend on the first page of the bill of lading, air waybill, 
export shipping instructions or other commercial loading documents. The 
USPPI or the authorized agent must provide the proof of filing citation 
or exemption legend to the exporting carrier. The carrier must annotate 
the proof of filing citation, exemption or exclusion legends on the 
carrier's outbound manifest when required. The carrier is responsible 
for presenting the appropriate proof of filing citation or exemption 
legend to CBP Port Director at the port of export as stated in subpart E 
of this part. Such presentation shall be without material change or 
amendment of the proof of filing citation, postdeparture filing 
citation, AES downtime filing citation, or exemption legend as provided 
to the carrier by the USPPI or the authorized agent. The proof of filing 
citation will identify that the export information has been accepted as 
transmitted. The postdeparture filing citation, AES downtime filing 
citation, or exemption legend will identify that no filing is required 
prior to export. The proof of filing citations, postdeparture filing 
citations, or exemption legends shall appear on the bill of lading, air 
waybill or other commercial loading documentation and shall be clearly 
visible. The AES filing citation, exemption or exclusion legends are 
provided for in appendix B of this part. The exporting carrier shall 
annotate the manifest or other carrier documentation with the AES filing 
citations, exemption or exclusions legends.
    (c) Exports of rough diamonds classified under HS subheadings 
7102.10, 7102.21, and 7102.31 require the proof of filing citation, as 
stated in paragraph (b) of this section, to be indicated on the 
Kimberley Process Certificate (KPC). In addition, the KPC must be faxed 
by the USPPI or U.S. authorized agent to the Census Bureau on (800) 457-
7328, or provided by other methods as permitted by the Census Bureau, 
immediately after export of the shipment from the United States.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16378, Mar. 14, 2013; 82 
FR 43843, Sept. 20, 2017; 83 FR 17751, Apr. 24, 2018]



Sec.  30.8  Time and place for presenting proof of filing citations and
exemption legends.

    The following conditions govern the time and place to present proof 
of filing citations, postdeparture filing citations, AES downtime filing 
citation, exemption, or exclusion legends. The USPPI or the authorized 
agent is required to deliver the proof of filing citations, 
postdeparture filing citations, AES downtime filing citations, 
exemption, or exclusion legends required in Sec.  30.7 to the exporting 
carrier. See appendix B of this part for the properly formatted proof of 
filing citations, exemption, or exclusion legends. Failure of the USPPI 
or the authorized agent of either the USPPI or FPPI to comply with these 
requirements constitutes a violation of the regulations in this part and 
renders such principal party or the authorized agent subject to the 
penalties provided for in subpart H of this part.
    (a) Mail exports. The proof of filing citation, postdeparture filing 
citation, AES downtime filing citation, exemption and/or exclusion 
legend for items exported by mail as required in Sec.  30.4(b) shall be 
annotated on the appropriate U.S. Postal Service customs declaration 
form (and/or its electronic equivalent) and presented with the packages 
at the time of mailing. The Postal Service is required to deliver the 
proof of filing citation, postdeparture filing citation, AES downtime 
filing citation, exemption or exclusion legend prior to export.

[[Page 281]]

    (b) Pipeline exports. The proof of filing citations or exemption and 
exclusion legends for items being sent by pipeline shall be presented to 
the operator of a pipeline no later than four calendar days after the 
close of the month. See Sec.  30.4(c)(2) for requirements for the filing 
of export information by pipeline carriers.
    (c) Exports by other methods of transportation. For exports sent 
other than by mail or pipeline, the USPPI or the authorized agent is 
required to deliver the proof of filing citations and/or exemption and 
exclusion legends to the exporting carrier in accord with the time 
periods set forth in Sec.  30.4(b).

[78 FR 16378, Mar. 14, 2013, as amended at 82 FR 18391, Apr. 19, 2017; 
82 FR 43843, Sept. 20, 2017]



Sec.  30.9  Transmitting and correcting Electronic Export Information.

    (a) The USPPI or the authorized filing agent is responsible for 
electronically transmitting accurate EEI as known at the time of filing 
in the AES and transmitting any changes to that information as soon as 
they are known. Corrections, cancellations, or amendments to that 
information shall be electronically identified and transmitted to the 
AES for all required fields as soon as possible. The provisions of this 
paragraph relating to the reporting of corrections, cancellations, or 
amendments to EEI, shall not be construed as a relaxation of the 
requirements of the rules and regulations pertaining to the preparation 
and filing of EEI. Failure to correct the EEI is a violation of the 
provisions of this part.
    (b) For shipments where the USPPI or the authorized agent has 
received an error message from AES, the corrections shall take place as 
required. Fatal error messages are sent to filers when EEI is not 
accepted in the AES and update rejected messages are sent when a 
correction is not accepted in the AES. Fatal errors must be corrected 
and EEI resubmitted prior to export for shipments filed predeparture and 
for post-departure shipments but not later than five (5) calendar days 
after the date of export. Failure to respond to fatal error messages for 
shipments filed predeparture prior to export of the cargo subjects the 
principal party or authorized agent to penalties provided for in Subpart 
H of this part. Failing to transmit corrections to the AES constitutes a 
violation of the regulations in this part and renders such principal 
party or authorized agent subject to the penalties provided for in 
Subpart H of this part. Update rejected messages must be corrected as 
soon as possible. For EEI that generates a warning message, the 
correction shall be made within four (4) calendar days of receipt of the 
original transmission. For EEI that generates a verify message, the 
correction, when warranted, shall be made within four (4) calendar days 
of receipt of the message. A compliance alert indicates that the 
shipment was not reported in accordance with the FTR. The USPPI or the 
authorized agent is required to review its filing practices and take 
required corrective actions to conform with export reporting 
requirements.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16378, Mar. 14, 2013]



Sec.  30.10  Retention of export information and the authority to require
production of documents.

    (a) Retention of export information. All parties to the export 
transaction (owners and operators of export carriers, USPPIs, FPPIs and/
or authorized agents) shall retain documents pertaining to the export 
shipment for five years from the date of export. If the Department of 
State or other regulatory agency has recordkeeping requirements for 
exports that exceed the retention period specified in this part, then 
those requirements prevail. The USPPI or the authorized agent of the 
USPPI or FPPI may request a copy of the electronic record or submission 
from the Census Bureau as provided for in Subpart G of this part. The 
Census Bureau's retention and maintenance of AES records does not 
relieve filers from requirements in Sec.  30.10.
    (b) Authority to require production of documents. For purposes of 
verifying the completeness and accuracy of information reported as 
required under Sec.  30.6, and for other purposes under the regulations 
in this part, all parties to the export transaction (owners and 
operators of the exporting carriers, USPPIs, FPPIs, and/or authorized

[[Page 282]]

agents) shall provide upon request to the Census Bureau, CBP, ICE, BIS 
and other participating agencies EEI, shipping documents, invoices, 
orders, packing lists, and correspondence as well as any other relevant 
information bearing upon a specific export transaction at anytime within 
the five year time period.
    Note to Sec.  30.10: Section 1252(b)(2) of Public Law 106-113, 
Proliferation Prevention Enhancement Act of 1999, required the 
Department of Commerce to print and maintain on file a paper copy or 
other acceptable back-up record of the individual's submission at a 
location selected by the Secretary of Commerce. The Census Bureau will 
maintain a data base of EEI filed in AES to ensure that requirements of 
Public Law 106-113 are met and that all filers can obtain a validated 
record of their submissions.

[73 FR 31555, June 2, 2008, as amended at 82 FR 18391, Apr. 19, 2017]



Sec. Sec.  30.11-30.14  [Reserved]



           Subpart B_Export Control and Licensing Requirements



Sec.  30.15  Introduction.

    (a) For export shipments to foreign countries, the EEI is used both 
for statistical and for export control purposes. All parties to an 
export transaction must comply with all relevant export control 
regulations, as well as the requirements of the statistical regulations 
of this part. For convenience, references to provisions of the EAR, 
ITAR, CBP, and OFAC regulations that affect the statistical reporting 
requirements of this part have been incorporated into this part. For 
regulations and information concerning other agencies that exercise 
export control and licensing authority for particular types of commodity 
shipments, a USPPI, its authorized agent, or other party to the 
transaction shall consult the appropriate agency regulations.
    (b) In addition to the reporting requirements set forth in Sec.  
30.6, further information may be required for export control purposes by 
the regulations of CBP, BIS, State Department, or the U.S. Postal 
Service under particular circumstances.
    (c) This part requires the retention of documents or records 
pertaining to a shipment for five years from the date of export. All 
records concerning license exceptions or license exemptions shall be 
retained in the format (including electronic or hard copy) required by 
the controlling agency's regulations. For information on recordkeeping 
retention requirements exceeding the requirements of this part, refer to 
the regulations of the agency exercising export control authority for 
the specific shipment.
    (d) In accordance with the provisions of Subpart G of this part, 
information from the EEI is used solely for official purposes, as 
authorized by the Secretary of Commerce, and any unauthorized use is not 
permitted.



Sec.  30.16  Export Administration Regulations.

    The Export Administration Regulations (EAR) issued by the U.S. 
Department of Commerce, BIS, contain additional reporting requirements 
pertaining to EEI (see 15 CFR parts 730-774).
    (a) The EAR requires that export information be filed for shipments 
from U.S. Possessions to foreign countries or areas. (see 15 CFR 
758.1(b) and 772.1, definition of the United States.)
    (b) Requirements to place certain export control information in the 
EEI are found in the EAR. (See 15 CFR 758.1(g) and 15 CFR 758.2).
    (c) Requirements to place certain export control information on 
export control documents for shipments exempt from AES filing 
requirements. (See 15 CFR 758.1(d)).
    (d) A shipment destined for a country listed in Country Group E:1 or 
E:2 as set forth in Supplement No. 1 to 15 CFR part 740 shall require 
EEI filings regardless of value unless such shipment is eligible for an 
exemption in Sec.  30.37(y) and does not require a license by BIS or any 
other Federal Government Agency.
    (e) Goods licensed by BIS where the country of ultimate destination 
is the United States or goods destined to international waters where the 
person(s) or entity assuming control of the item(s) is a citizen or 
permanent resident alien of the United States or a juridical entity 
organized under the

[[Page 283]]

laws of the United States or a jurisdiction within the United States 
shall be excluded from EEI filing.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16379, Mar. 14, 2013; 82 
FR 18391, Apr. 19, 2017]



Sec.  30.17  Customs and Border Protection regulations.

    Refer to the DHS's CBP regulations, 19 CFR 192, for information 
referencing the advanced electronic submission of cargo information on 
exports for screening and targeting purposes pursuant to the Trade Act 
of 2002. The regulations also prohibit postdeparture filing of export 
information for certain shipments, and contain other regulatory 
provisions affecting the reporting of EEI. CBP's regulations can be 
obtained from the U.S. Government Printing Office's Web site at 
www.gpoaccess.gov.



Sec.  30.18  Department of State regulations.

    (a) The USPPI or the authorized agent shall file export information, 
as required, for items on the USML of the International Traffic in Arms 
Regulations (ITAR) (22 CFR part 121). Information for items identified 
on the USML, including those exported under an export license or license 
exemption, shall be filed prior to export. Items identified on the USML, 
including those exported under an export license or license exemption, 
ultimately destined to a location in the United States are not required 
to be reported in the AES.
    (b) Refer to the ITAR 22 CFR 120-130 for requirements regarding 
information required for electronically reporting export information for 
USML shipments and filing time requirements.
    (c) Department of State regulations can be found at http://
www.state.gov.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16379, Mar. 14, 2013]



Sec.  30.19  Other Federal agency regulations.

    Other Federal agencies have requirements regarding the reporting of 
certain types of export transactions. The USPPIs and/or authorized 
agents are responsible for adhering to these requirements.



Sec. Sec.  30.20-30.24  [Reserved]



       Subpart C_Special Provisions and Specific-Type Transactions



Sec.  30.25  Values for certain types of transactions.

    Special procedures govern the values to be reported for shipments of 
the following unusual types:
    (a) Subsidized exports of agricultural products. Where provision is 
made for the payment to the USPPI for the exportation of agricultural 
commodities under a program of the Department of Agriculture, the value 
required to be reported for EEI is the selling price paid by the foreign 
buyer minus the subsidy.
    (b) General Services Administration (GSA) exports of excess personal 
property. For exports of GSA excess personal property, the value to be 
shown in the EEI will be ``fair market value,'' plus charges when 
applicable, at which the property was transferred to GSA by the holding 
agency. These charges include packing, rehabilitation, inland freight, 
or drayage. The estimated ``fair market value'' may be zero, or it may 
be a percentage of the original or estimated acquisition costs. (Bill of 
lading, air waybill, and other commercial loading documents for such 
shipments will bear the notation ``Excess Personal Property, GSA 
Regulations 1-III, 303.03.'')
    (c) Goods rejected after entry. For imported goods that are cleared 
by CBP but subsequently rejected, an EEI must be filed to export the 
goods. The value to be reported in the AES is the declared import value 
of the goods.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16379, Mar. 14, 2013]



Sec.  30.26  Reporting of vessels, aircraft, cargo vans, and other carriers
and containers.

    (a) Export information shall be filed in the AES for all vessels, 
locomotives, aircraft, rail cars, trucks, other vehicles, trailers, 
pallets, cargo vans, lift vans, or similar shipping containers when 
these items are moving as goods pursuant to sale or other transfer from 
ownership in the United States to ownership abroad. If the vessel, car, 
aircraft, locomotive, rail car, vehicle, or shipping container is 
outside Customs

[[Page 284]]

territory of the United States at the time of sale or transfer to 
foreign ownership, EEI shall be reported identifying the last port of 
clearance or departure from the United States prior to sale or transfer. 
The date of export shall be the date of sale.
    (b) The country of destination to be shown in the EEI for vessels 
sold foreign is the country of new ownership. The country for which the 
vessel clears, or the country of registry of the vessel, should not be 
reported as the country of destination in the EEI unless such country is 
the country of new ownership.

[78 FR 16379, Mar. 14, 2013]



Sec.  30.27  Return of exported cargo to the United States prior to 
reaching its final destination.

    When goods reported as exported from the United States are not 
exported or are returned without having been entered into a foreign 
destination, the filer shall cancel the EEI.



Sec.  30.28  Split shipments.

    A split shipment is a shipment covered by a single EEI record booked 
for export on one conveyance that is divided for shipment on more than 
one conveyance by the exporting carrier prior to export. The exporting 
carrier must file the manifest in accordance with CBP regulations 
indicating that the cargo was sent on two or more of the same type of 
conveyance of the same carrier leaving from the same port of export 
within 24 hours by vessel or 7 days by air, truck, or rail. For the 
succeeding parts of the shipment that are exported within the time 
frames specified above, a new EEI record will not be required. However, 
for the succeeding parts of the shipment that are not exported within 
the time frames specified above, a new EEI record must be filed and 
amendments must be made to the original EEI record. If a new EEI record 
is required, the original ITN data element may be used. The following 
procedures apply for split shipments:
    (a) The carrier shall submit the manifest to the CBP Port Director 
with the manifest covering the conveyance on which the first part of the 
split shipment is exported and shall make no changes to the EEI. 
However, the manifest shall show in the ``number of packages'' column 
the actual portion of the declared total quantity being carried and 
shall carry a notation to indicate ``Split Shipment'' e.g., ``3 of 10--
Split Shipment.'' All associated manifests with the notation ``Split 
Shipment'' will have identical ITNs if exported within 24 hours by 
vessel or 7 days by air, truck, or rail.
    (b) On each subsequent manifest covering a conveyance on which any 
part of a split shipment is exported, a prominent notation ``SPLIT 
SHIPMENT'', e.g. ``4 of 10--Split shipment'' shall be made on the 
manifest for identification. On the last shipment, the notation shall 
read ``SPLIT SHIPMENT, FINAL, e.g., ``10 of 10 Split Shipment, 
Final''.'' Each subsequent manifest covering a part of a split shipment 
shall also show in the ``number of packages'' column only the goods 
carried on that particular conveyance and a reference to the total 
number originally declared for export (for example, 5 of 11, or 5/11). 
Immediately following the line showing the portion of the split shipment 
carried on that conveyance, a notation will be made showing the bill of 
lading number, air waybill number, or other commercial loading documents 
shown in the original EEI and the portions of the originally declared 
total carried on each previous conveyance, together with the number and 
date of each such previous conveyance.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16379, Mar. 14, 2013; 82 
FR 18391, Apr. 19, 2017]



Sec.  30.29  Reporting of repairs and replacements.

    These guidelines will govern the reporting of the following:
    (a) The return of goods previously imported only for repair and 
alteration.
    (1) The return of goods not licensed by a U.S. Government agency and 
not subject to the ITAR, temporarily imported for repair and 
alternation, and declared as such on importation shall have Schedule B 
number 9801.10.0000. The value shall only include parts and labor. The 
value of the original product shall not be included. If the value of

[[Page 285]]

the parts and labor is over $2,500, then EEI must be filed.
    (2) The return of goods licensed by a U.S. Government agency or 
subject to the ITAR, temporarily imported for repair or alteration, and 
declared as such on importation shall have Schedule B number 
9801.10.0000. In the value field, report the value of the parts and 
labor. In the license value field, report the value designated on the 
export license that corresponds to the commodity being exported if 
required by the licensing agency. EEI must be filed regardless of value.
    (b) Goods that are covered under warranty. (1) Goods that are 
reexported after repair under warranty shall follow the procedures in 
paragraph (a)(1) or (2) of this section as appropriate. It is 
recommended that the bill of lading, air waybill, or other loading 
documents include the statement, ``This product was repaired under 
warranty.''
    (2) Goods that are replaced under warranty at no charge to the 
customer shall include the statement, ``Product replaced under warranty, 
value for EEI purposes'' on the bill of lading, air waybill, or other 
commercial loading documents. Place the notation below the proof of 
filing citation, postdeparture filing citation, AES downtime filing 
citation, exemption or exclusion legend on the commercial loading 
documents. Report the Schedule B number or Harmonized Tariff Schedule of 
the United States Annotated (HTSUSA) commodity classification number of 
the replacement parts. For goods not licensed by a U.S. Government 
agency, report the value of the replacement parts in accordance with 
Sec.  30.6(a)(17). For goods licensed by a U.S. Government agency, 
report the value and license value in accordance with Sec.  30.6(a)(17) 
and Sec.  30.6(b)(15) respectively.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16380, Mar. 14, 2013; 82 
FR 18391, Apr. 19, 2017]



Sec. Sec.  30.30-30.34  [Reserved]



Subpart D_Exemptions From the Requirements for the Filing of Electronic 
                           Export Information



Sec.  30.35  Procedure for shipments exempt from filing requirements.

    Except as noted in Sec.  30.2(a)(1)(iv), where an exemption from the 
filing requirement is provided in this subpart, a legend describing the 
basis for the exemption shall be made on the first page of the bill of 
lading, air waybill, or other commercial loading document, and on the 
carrier's outbound manifest. The exemption legend shall reference the 
number of the section or provision in this part where the particular 
exemption is provided (see appendix B of this part).

[82 FR 43843, Sept. 20, 2017]



Sec.  30.36  Exemption for shipments destined to Canada.

    (a) Except as noted in Sec.  30.2(a)(1)(iv), and in paragraph (b) of 
this section, shipments originating in the United States where the 
country of ultimate destination is Canada are exempt from the EEI 
reporting requirements of this part.
    (b) This exemption does not apply to the following types of export 
shipments (These shipments shall be reported in the same manner as for 
all other exports, except household goods, which require limited 
reporting):
    (1) Sent for storage in Canada, but ultimately destined for third 
countries.
    (2) Exports moving from the United States through Canada to a third 
destination.
    (3) Requiring a Department of State, DDTC, export license under the 
ITAR (22 CFR 120-130).
    (4) Requiring a Department of Commerce, Bureau of Industry and 
Security, license or requiring reporting under the Export Administration 
Regulations (15 CFR 758.1(b)).
    (5) Subject to the ITAR, but exempt from license requirements.
    (6) Classified as rough diamonds under the 6-digit HS subheadings 
(7102.10, 7102.21, or 7102.31).
    (7) Used self-propelled vehicles as defined in 19 CFR 192.1 of U.S. 
Customs

[[Page 286]]

and Border Protection regulations, regardless of value or country of 
destination.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16380, Mar. 14, 2013; 82 
FR 18391, Apr. 19, 2017]



Sec.  30.37  Miscellaneous exemptions.

    Except as noted in Sec.  30.2(a)(1)(iv), filing EEI is not required 
for the following kinds of shipments. However, the Census Bureau has the 
authority to periodically require the reporting of shipments that are 
normally exempt from filing.
    (a) Exports of commodities where the value of the commodities 
shipped from one USPPI to one consignee on a single exporting 
conveyance, classified under an individual Schedule B number or HTSUSA 
commodity classification code is $2,500 or less. This exemption applies 
to individual Schedule B numbers or HTSUSA commodity classification 
codes regardless of the total shipment value. In instances where a 
shipment contains a mixture of individual Schedule B numbers or HTSUSA 
commodity classification codes valued at $2,500 or less and individual 
Schedule B numbers or HTSUSA commodity classification codes valued over 
$2,500, only those Schedule B numbers or HTSUSA commodity classification 
codes valued over $2,500 are required to be reported. If the filer 
reports multiple items of the same Schedule B number or HTSUSA commodity 
classification code, this exemption only applies if the total value of 
exports for the Schedule B number or HTSUSA commodity classification 
code is $2,500 or less. Items of domestic and foreign origin under the 
same commodity classification number must be reported separately and EEI 
filing is required when either is over $2,500. For the reporting of 
household goods see Sec.  30.38. Note: this exemption does not apply to 
the export of vehicles. The export information for vehicles must be 
filed in AES regardless of value or country of destination.
    (b) Tools of trade and their containers that are usual and 
reasonable kinds and quantities of commodities and software intended for 
use by individual USPPIs or by employees or representatives of the 
exporting company in furthering the enterprises and undertakings of the 
USPPI abroad. Commodities and software eligible for this exemption are 
those that do not require an export license or that are exported as 
tools of the trade under a license exception of the EAR (15 CFR 740.9), 
and are subject to the following provisions:
    (1) Are owned by the individual USPPI or exporting company.
    (2) Accompany the individual USPPI, employee, or representative of 
the exporting company.
    (3) Are necessary and appropriate and intended for the personal and/
or business use of the individual USPPI, employee, or representative of 
the company or business.
    (4) Are not for sale.
    (5) Are returned to the United States no later than one (1) year 
from the date of export.
    (6) Are not shipped under a bill of lading or an air waybill.
    (c) Shipments from one point in the United States to another point 
in the United States by routes passing through Canada or Mexico.
    (d) Shipments from one point in Canada or Mexico to another point in 
the same country by routes through the United States.
    (e) [Reserved]
    (f) Exports of technology and software as defined in 15 CFR 772 of 
the EAR that do not require an export license are exempt from filing 
requirements. However, EEI is required for mass-market software. For 
purposes of this part, mass-market software is defined as software that 
is generally available to the public by being sold at retail selling 
points, or directly from the software developer or supplier, by means of 
over-the-counter transactions, mail-order transactions, telephone 
transactions, or electronic mail-order transactions, and designed for 
installation by the user without further substantial technical support 
by the developer or supplier.
    (g) Shipments of books, maps, charts, pamphlets, and similar 
articles to foreign libraries, government establishments, or similar 
institutions.
    (h) Shipments as authorized under License Exception GFT for gift 
parcels and humanitarian donations (15 CFR 740.12(a) and (b)).

[[Page 287]]

    (i) Diplomatic pouches and their contents.
    (j) Human remains and accompanying appropriate receptacles and 
flowers.
    (k) Shipments of interplant correspondence, executed invoices and 
other documents, and other shipments of company business records from a 
U.S. firm to its subsidiary or affiliate. This excludes highly technical 
plans, correspondence, etc. that could be licensed.
    (l) Shipments of pets as baggage, accompanied or unaccompanied, of 
persons leaving the United States, including members of crews on vessels 
and aircraft.
    (m) Carriers' stores, not shipped under a bill of lading or an air 
waybill (including goods carried in ships aboard carriers for sale to 
passengers), supplies, and equipment for departing vessels, planes, or 
other carriers, including usual and reasonable kinds and quantities of 
bunker fuel, deck engine and steward department stores, provisions and 
supplies, medicinal and surgical supplies, food stores, slop chest 
articles, and saloon stores or supplies for use or consumption on board 
and not intended for unlading in a foreign country, and including usual 
and reasonable kinds and quantities of equipment and spare parts for 
permanent use on the carrier when necessary for proper operation of such 
carrier and not intended for unlading in a foreign country. Hay, straw, 
feed, and other appurtenances necessary to the care and feeding of 
livestock while en route to a foreign destination are considered part of 
carriers' stores of carrying vessels, trains, planes, etc.
    (n) Dunnage, not shipped under a bill of lading or an air waybill, 
of usual and reasonable kinds and quantities necessary and appropriate 
to stow or secure cargo on the outgoing or any immediate return voyage 
of an exporting carrier, when exported solely for use as dunnage and not 
intended for unlading in a foreign country.
    (o) Shipments of aircraft parts and equipment; food, saloon, slop 
chest, and related stores; and provisions and supplies for use on 
aircraft by a U.S. airline to its own installations, aircraft, and 
agents abroad, under EAR License Exception AVS for aircraft and vessels 
(see 15 CFR 740.15(c)).
    (p) Filing EEI is not required for the following types of 
commodities when they are not shipped as cargo under a bill of lading or 
an air waybill and do not require an export license, but the USPPI shall 
be prepared to make an oral declaration to CBP Port Director, when 
required: baggage and personal effects, accompanied or unaccompanied, of 
persons leaving the United States, including members of crews on vessels 
and aircraft.
    (q) Temporary exports, except those that require licensing, whether 
shipped or hand carried, (e.g., carnet) that are exported from and 
returned to the United States in less than one year (12 months) from the 
date of export.
    (r) Goods previously imported under a Temporary Import Bond for 
return in the same condition as when imported including: Goods for 
testing, experimentation, or demonstration; goods imported for 
exhibition; samples and models imported for review or for taking orders; 
goods imported for participation in races or contests, and animals 
imported for breeding or exhibition; and goods imported for use by 
representatives of foreign governments or international organizations or 
by members of the armed forces of a foreign country. Goods that were 
imported under bond for processing and reexportation are not covered by 
this exemption.
    (s) Issued banknotes and securities, and coins in circulation 
exported as evidence of financial claims. The EEI must be filed for 
unissued bank notes and securities and coins not in circulation (such as 
banknotes printed in the United States and exported in fulfillment of 
the printing contract, or as parts of collections), which should be 
reported at their commercial or current value.
    (t) Documents used in international transactions, documents moving 
out of the United States to facilitate international transactions 
including airline tickets, internal revenue stamps, liquor stamps, and 
advertising literature. Exports of such documents in fulfillment of a 
contract for their production, however, are not exempt and

[[Page 288]]

must be reported at the transaction value for their production.
    (u) Exports of technical data and defense service exemptions as 
cited in 22 CFR 123.22(b)(3)(iii) of the ITAR.
    (v) Vessels, locomotives, aircraft, rail cars, trucks, other 
vehicles, trailers, pallets, cargo vans, lift vans, or similar shipping 
containers not considered ``shipped'' in terms of the regulations in 
this part, when they are moving, either loaded or empty, without 
transfer of ownership or title, in their capacity as carriers of goods 
or as instruments of such carriers.
    (w) Shipments to Army Post Office, Diplomatic Post Office, Fleet 
Post Office.
    (x) Shipments exported under license exception Baggage (BAG) (15 CFR 
740.14).
    (y) The following types of shipments destined for a country listed 
in Country Group E:1 or E:2 as set forth in Supplement No. 1 to 15 CFR 
part 740 are not required to be filed in the AES:
    (1) Shipments of published books, software, maps, charts, pamphlets, 
or any other similar media available for general distribution, as 
described in 15 CFR 734.7 to foreign libraries, or similar institutions.
    (2) Shipments to U.S. government agencies and employees that are 
lawfully exported under License Exception GOV (15 CFR 740.11(b)(2)(i) or 
(ii)) valued at $2500 or less per Schedule B Number.
    (3) Personal effects as described in 15 CFR 740.14(b)(1) being 
lawfully exported under License Exception BAG (15 CFR 740.14).
    (4) Individual gift parcels and humanitarian donations being 
lawfully exported under License Exception GFT (15 CFR 740.12(a) and 
(b)).
    (5) Vessels and aircraft lawfully leaving the United States for 
temporary sojourn to or in a Country Group E:1 or E:2 country under 
License Exception AVS (15 CFR 740.15).
    (6) Tools of trade that will be used by a person traveling to a 
Country Group E:1 or E:2 destination, that will be returned to the 
United States within one year and that are lawfully being exported to a 
Country Group E:1 or E:2 destination under License Exception BAG (15 CFR 
740.14) or License Exception TMP (15 CFR 740.9(a)).

[73 FR 31555, June 2, 2008, as amended at 78 FR 16380, Mar. 14, 2013; 79 
FR 54589, Sept. 12, 2014; 82 FR 18392, Apr. 19, 2017]



Sec.  30.38  Exemption from the requirements for reporting complete 
commodity information.

    Except as noted in Sec.  30.2(a)(1)(iv), report EEI for household 
goods. Household goods are usual and reasonable kinds and quantities of 
personal property necessary and appropriate for use by the USPPI in the 
USPPI's dwelling in a foreign country. Household goods include, but are 
not limited to items such as furniture, large and small appliances, 
kitchenware, electronics, toys, bicycles, clothing, personal adornments, 
and associated containers. These goods should be for use by the USPPI, 
not intended for sale; and shipped under a bill of lading or an air 
waybill. In such cases, Schedule B or HTSUSA commodity classification 
codes and domestic/foreign indicator shall not be required.

[78 FR 16381, Mar. 14, 2013]



Sec.  30.39  Special exemptions for shipments to the U.S. Armed Services.

    Except as noted in Sec.  30.2 (a)(1)(iv), filing of EEI is not 
required for any and all commodities, whether shipped commercially or 
through government channels, consigned to the U.S. Armed Services for 
their exclusive use, including shipments to armed services exchange 
systems. This exemption does not apply to articles that are on the USML 
and thus controlled by the ITAR and/or shipments that are not consigned 
to the U.S. Armed Services, regardless of whether they may be for their 
ultimate and exclusive use.

[78 FR 16381, Mar. 14, 2013]



Sec.  30.40  Special exemptions for certain shipments to U.S. government
agencies and employees.

    Except as noted in Sec.  30.2(a)(1)(iv), filing EEI is not required 
for the following types of shipments to U.S. government agencies and 
employees:
    (a) Office furniture, office equipment, and office supplies shipped 
to and for

[[Page 289]]

the exclusive use of U.S. government offices.
    (b) Household goods and personal property shipped to and for the 
exclusive and personal use of U.S. government employees.
    (c) Food, medicines, and related items and other commissary supplies 
shipped to U.S. government offices or employees for the exclusive use of 
such employees, or to U.S. government employee cooperatives or other 
associations for subsequent sale or other distribution to such 
employees.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16381, Mar. 14, 2013]



Sec. Sec.  30.41-30.44  [Reserved]



                     Subpart E_Manifest Requirements



Sec.  30.45  Manifest requirements

    (a) File the manifest in accordance with Customs and Border 
Protections (CBP) regulations.
    (1) Vessels. Vessels transporting goods as specified shall file a 
complete manifest, or electronic equivalent.
    (i) Bunker fuel. The manifest (including vessels taking bunker fuel 
to be laden aboard vessels on the high seas) clearing for foreign 
countries shall show the quantities and values of bunker fuel taken 
aboard at that port for fueling use of the vessel, apart from such 
quantities as may have been laden on vessels as cargo.
    (ii) Coal and fuel oil. The quantity of coal shall be reported in 
metric tons (1000 kgs or 2240 pounds), and the quantity of fuel oil 
shall be reported in barrels of 158.98 liters (42 gallons). Fuel oil 
shall be described in such manner as to identify diesel oil as 
distinguished from other types of fuel oil.
    (2)-(3) [Reserved]
    (4) Carriers not required to file manifests. Carriers allowed to 
file incomplete manifests under applicable CBP regulations are required, 
upon request, to present to the CBP Port Director the proof of filing 
citation, exemption or exclusion legends for each shipment, prior to 
departure of the vessel, aircraft, train, truck or other means of 
conveyance.
    (5) Penalties. Failure of the carrier to file a manifest as required 
constitutes a violation of the regulations in this part and renders such 
carrier subject to the penalties provided for in Subpart H of this part.
    (b) Exempt items. For any item for which EEI is not required by the 
regulations in this part, a notation on the manifest shall be made by 
the carrier as to the basis for the exemption. In cases where a manifest 
is not required and EEI is not required, an oral declaration to the CBP 
Port Director shall be made as to the basis for the exemption.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16381, Mar. 14, 2013; 82 
FR 18392, Apr. 19, 2017]



Sec. Sec.  30.46-30.49  [Reserved]



                      Subpart F_Import Requirements



Sec.  30.50  General requirements for filing import entries.

    Electronic entry summary filing through the Automated Commercial 
Environment (ACE), paper import entry summaries (CBP-7501), or paper 
record of vessel foreign repair or equipment purchase (CBP-226) shall be 
completed by the importer of record or its licensed customs broker and 
filed directly with CBP in accordance with 19 CFR parts 1-199. 
Information on all mail and informal entries required for statistical 
and CBP purposes shall be reported, including value not subject to duty. 
Upon request, the importer of record or the importer's licensed customs 
broker shall provide the Census Bureau with information or documentation 
necessary to verify the accuracy of the reported information, or to 
resolve problems regarding the reported import transaction received by 
the Census Bureau.
    (a) Import information for statistical purposes shall be filed for 
goods shipped as follows:
    (1) Entering the United States from foreign countries.
    (2) Admitted to U.S. FTZs.
    (3) From the U.S. Virgin Islands.
    (4) From other nonforeign areas (except Puerto Rico).
    (b) Sources for collecting import statistics include the following:
    (1) CBP's ABI Program (see 19 CFR Subpart A, Part 143).

[[Page 290]]

    (2) CBP-7501 paper entry summaries required for individual 
transactions (see 19 CFR Subpart B, Part 142).
    (3) CBP-226, Record of Vessel Foreign Repair or Equipment Purchase 
(see 19 CFR 4.7 and 4.14).
    (4) CBP-214, Application for Foreign Trade Zone Admission and/or 
Status Designation (Statistical copy).
    (5) Electronic CBP Form 214 Admissions (e214).
    (c) The Kimberley Process Certificate (KPC) for all imports of rough 
diamonds classified under HS subheadings 7102.10, 7102.21, 7102.31 must 
be faxed by the importer or customs broker to the Census Bureau on (800) 
457-7328, or provided by other methods as permitted by the Census 
Bureau, immediately after entry of the shipment in the United States.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16382, Mar. 14, 2013; 82 
FR 18392, Apr. 19, 2017; 83 FR 17751, Apr. 24, 2018]



Sec.  30.51  Statistical information required for import entries.

    The information required for statistical purposes is, in most cases, 
also required by CBP regulations for other purposes. Refer to CBP Web 
site at http://www.cbp.gov to download ``Instructions for Preparation of 
CBP-7501,'' for completing the paper entry summary documentation (CBP-
7501). Refer to the Customs and Trade Automated Interface Requirements 
for instructions on submitting an ABI electronic record, or instructions 
for completing CBP-226 for declaring any equipment, repair parts, 
materials purchased, or expense for repairs incurred outside of the 
United States.



Sec.  30.52  Foreign Trade Zones (FTZ).

    When goods are withdrawn from a FTZ for export to a foreign country, 
the export shall be reported in accordance with Sec.  30.2. Foreign 
goods admitted into FTZs shall be reported as a general import. 
Statistical requirements for zone admissions are provided to the Census 
Bureau via CBP's Automated Broker Interface (ABI) electronic 214 (e214) 
program or the CBP Form 214A Application for Foreign Trade Zone 
Admission and/or Status Designation. Refer to CBP Web site at 
www.cbp.gov to download the ``Foreign Trade Zone Manual'' where 
instructions for completing the paper CBP Form 214A documents are 
provided in Appendix C. When goods are withdrawn for domestic 
consumption or entry into a bonded warehouse, the withdrawal shall be 
reported on CBP 7501 or through the ABI in accordance with CBP 
regulations. The instructions and definitions for completing the e214 
are provided in 19 CFR 146. The following data items are required to be 
filed on the 214A, for statistical purposes:

    (a) Zone Number and Location (Address)
    (b) Port Code
    (c) Importing Vessel and Flag/Other Carrier
    (d) Export Date
    (e) Import Date
    (f) Zone Admission Number
    (g) U.S. Port of Unlading
    (h) In-bond Carrier
    (i) Foreign Port of Lading
    (j) Bill of Lading/AWB Number
    (k) Number of Packages & Country of Origin
    (l) Description of Merchandise
    (m) HTSUSA Number
    (n) Quantity (HTSUSA)
    (o) Gross Weight
    (p) Separate Value and Aggregate Charges
    (q) Status Designation

[78 FR 16382, Mar. 14, 2014]



Sec.  30.53  Import of goods returned for repair.

    Import entries covering U.S. goods imported temporarily to be 
repaired, altered, or processed under Harmonized Tariff Schedule of the 
United States Annotated (HTSUSA) commodity classification code 
9801.00.1012, and foreign goods imported temporarily to be repaired or 
altered under the HTSUSA commodity classification code 9813.00.0540 are 
required to show the following statement: ``Imported for Repair and 
Reexport'' on CBP Form 7501 or its electronic equivalent. When the goods 
are subsequently exported, file according to the instructions provided 
in Sec.  30.29.

[82 FR 18392, Apr. 19, 2017]

[[Page 291]]



Sec.  30.54  Special provisions for imports from Canada.

    (a) When certain softwood lumber products described under HTSUSA 
subheadings 4407.1001, 4409.1010, 4409.1090, and 4409.1020 are imported 
from Canada, import entry records are required to show a valid Canadian 
region of manufacture code. The Canadian region of manufacture is 
determined on a first mill basis (the point at which the item was first 
manufactured into a covered lumber product). Canadian region of 
manufacture is the first region where the subject goods underwent a 
change in tariff classification to the tariff classes cited in this 
paragraph. The Canadian region code should be transmitted in the 
electronic ABI summaries. The Canadian region of manufacture code should 
replace the region of origin code on CBP-7501, entry summary form. These 
requirements apply only for imports of certain softwood lumber products 
for which the region of origin is Canada.
    (b) All other imports from Canada, including certain softwood lumber 
products not covered in paragraph (a) of this section, will require the 
two letter designation of the Canadian province of origin to be reported 
on U.S. entry summary records. This information is required only for 
U.S. imports that under applicable CBP rules of origin are determined to 
originate in Canada. For nonmanufactured goods determined to be of 
Canadian origin, the province of origin is defined as the region where 
the exported goods were originally grown, mined, or otherwise produced. 
For goods of Canadian origin that are manufactured or assembled in 
Canada, with the exception of the certain softwood lumber products 
described in paragraph (a) of this section, the region of origin is that 
in which the final manufacture or assembly is performed prior to 
exporting that good to the United States. In cases where the region in 
which the goods were manufactured, assembled, grown, mined, or otherwise 
produced is unknown, the province in which the Canadian vendor is 
located can be reported. For those reporting on paper forms the region 
of origin code replaces the country of origin code on CBP Form 7501, 
entry summary form.
    (c) All electronic ABI entry summaries for imports originating in 
Canada also require the Canadian region of origin code to be transmitted 
for each entry summary line item.
    (d) The region of origin code replaces the region of origin code 
only for imports that have been determined, under applicable CBP rules, 
to originate in Canada. Valid Canadian region/territory codes are:

XA--Alberta
XB--New Brunswick
XD--British Columbia Coastal
XE--British Columbia Interior
XM--Manitoba
XN--Nova Scotia
XO--Ontario
XP--Prince Edward Island
XQ--Quebec
XS--Saskatchewan
XT--Northwest Territories
XV--Nunavut
XW--Newfoundland
XY--Yukon

[73 FR 31555, June 2, 2008, as amended at 78 FR 16382, Mar. 14, 2013]



Sec.  30.55  Confidential information, import entries, and withdrawals.

    The contents of the statistical copies of import entries and 
withdrawals on file with the Census Bureau are treated as confidential 
and will not be released without authorization by CBP, in accordance 
with 19 CFR 103.5 relating to the copies on file in CBP offices. The 
importer or import broker must provide the Census Bureau with 
information or documentation necessary to verify the accuracy or resolve 
problems regarding the reported import transaction.
    (a) The basic responsibility for obtaining and providing the 
information required by the general statistical headnotes of the HTSUSA 
rests with the person filing the import entry. This is provided for in 
section 484(a) of the Tariff Act, 19 CFR 141.61(e) of CBP regulations, 
and Sec.  30.50 of this subpart. CBP Regulations 19 CFR 141.61(a) 
specify that the entry summary data clearly set forth all information 
required.
    (b) 19 CFR 141.61(e) of CBP regulations provides that penalty 
procedures relating to erroneous statistical information shall not be 
invoked against any person who attempts to comply

[[Page 292]]

with the statistical requirements of the General Statistical Notes of 
the HTSUSA. However, in those instances where there is evidence that 
statistical suffixes are misstated to avoid quota action, or a 
misstatement of facts is made to avoid import controls or restrictions 
related to specific commodities, the importer or its licensed broker 
should be aware that the appropriate actions will be taken under 19 
U.S.C. 1592, as amended.



Sec. Sec.  30.56-30.59  [Reserved]



               Subpart G_General Administrative Provisions



Sec.  30.60  Confidentiality of Electronic Export Information.

    (a) The Electronic Export Information (EEI) collected and accessed 
by the Census Bureau under 15 CFR Part 30 is confidential, to be used 
solely for official purposes as authorized by the Secretary of Commerce. 
The collection of EEI by the Department of Commerce has been approved by 
the Office of Management and Budget (OMB). The information collected is 
used by the Census Bureau for statistical purposes. In addition, EEI is 
used by federal government agencies, such as the Department of State, 
Immigration and Customs Enforcement, and Customs and Border Protection 
(CBP) for export control; by other federal government agencies such as 
the Bureau of Economic Analysis, Bureau of Labor Statistics, and Bureau 
of Transportation Statistics for statistical purposes; and by other 
federal agencies as authorized by the Secretary of Commerce or the 
Census Bureau Director consistent with the agencies' statutory or legal 
authorities as provided for in paragraph (e) of this section. Absent 
such authorization, information collected pursuant to this Part shall 
not be disclosed to anyone by any officer, employee, contractor, agent 
of the federal government or other parties with access to the EEI other 
than to the USPPI or the authorized agent of the USPPI. Such disclosure 
shall be limited to that information provided by each party pursuant to 
this Part.
    (b) Viewing and using EEI for official purposes. (1) The EEI may be 
viewed and used by federal agencies authorized to use export data for 
official purposes as defined to include, but not limited to:
    (i) Improving compliance with U.S. export laws and regulations;
    (ii) Detecting and preventing violations of export, census, customs, 
homeland security, national resource and other laws, regulations and 
treaties;
    (iii) Analysis to assess threats to U.S. and international security 
such as money laundering, and other potential violations of U.S. and 
foreign criminal laws;
    (iv) Enforcement of U.S. export-related laws and regulations;
    (v) Investigation and prosecution of possible violations of U.S. 
export-related laws and regulations;
    (vi) Proof of export for enforcement of laws relating to exemption 
from or refund, drawback or other return of taxes, duties, fees or other 
charges;
    (vii) Analyzing the impact of proposed and implemented trade 
agreeements and fulfilling U.S. obligations under such agreements; and
    (viii) Preparation of statistics.
    (2) The Census Bureau may provide the EEI to the USPPI or authorized 
agent, for compliance and audit purposes. Such disclosure shall be 
limited to that information provided to the AES by the USPPI or the 
authorized agent.
    (c) Supplying EEI for nonofficial purposes. The official report of 
the EEI submitted to the U.S. government shall not be disclosed by the 
USPPI, the authorized agent, or representative of the USPPI for 
``nonofficial purposes,'' either in whole or in part, or in any form 
including but not limited to electronic transmission, paper printout, or 
certified reproduction. ``Nonofficial purposes'' are defined to include 
but not limited to providing the official EEI:
    (1) In support of claims for exemption from Federal or state 
taxation, except as related to paragraph (b)(1)(vi) of this section;
    (2) To the U.S. Internal Revenue Service for purposes not related to 
export control or compliance;
    (3) To state and local government agencies, and nongovernmental 
entities or individuals for any purpose; and

[[Page 293]]

    (4) To foreign entities or foreign governments for any purpose.
    (d) Ocean manifest data can be made public under provision of CBP 
regulations. For information appearing on the outward manifest, 19 CFR 
103.31 allows a shipper (or their authorized employee or official) to 
submit a certification for confidential treatment of the shipper's name 
and address.
    (e) Determination by the Secretary of Commerce. Under 13 U.S.C. 
301(g), the EEI collected and accessed by the Census Bureau is exempt 
from public disclosure unless the Secretary or delegate determines that 
such exemption would be contrary to the national interest. The Secretary 
or delegate may make such information available, if he or she determines 
it is in the national interest, taking such safeguards and precautions 
to limit dissemination as deemed appropriate under the circumstances. In 
determining whether it is contrary to the national interest to apply the 
exemption, the maintenance of confidentiality and national security 
shall be considered as important elements of national interest. The 
unauthorized disclosure of confidential EEI granted under a National 
Interest Determination renders such persons subject to the civil 
penalties provided for in Subpart H of this part.
    (f) Penalties. Disclosure of confidential EEI by any officer, 
employee, contractor, or agent of the federal government, except as 
provided for in paragraphs (b) and (e) of this section renders such 
persons subject to the civil penalties.

    Note to Sec.  30.60: Kimberley Process Certificates (KPCs), 
including voided KPCs, provided to the Census Bureau pursuant to the 
Clean Diamond Trade Act, Executive Order 13312, and this part are not 
considered EEI and are not confidential under Title 13. KPCs and voided 
KPCs may be protected from public disclosure by the Privacy Act or other 
applicable nondisclosure statutes.

[79 FR 49660, Aug. 22, 2014, as amended at 83 FR 17751, Apr. 24, 2018]



Sec.  30.61  Statistical classification schedules.

    The following statistical classification schedules are referenced in 
this part. These schedules, may be accessed through the Census Bureau's 
Web site at http://www.census.gov/trade.
    (a) Schedule B--Statistical Classification for Domestic and Foreign 
Commodities Exported from the United States, shows the detailed 
commodity classification requirements and 10-digit statistical reporting 
numbers to be used in preparing EEI, as required by these regulations.
    (b) Harmonized Tariff Schedules of the United States Annotated for 
Statistical Reporting, shows the 10-digit statistical reporting number 
to be used in preparing import entries and withdrawal forms.
    (c) Schedule C--Classification of Country and Territory Designations 
for U.S. Foreign Trade Statistics.
    (d) Schedule D--Classification of CBP Districts and Ports.
    (e) Schedule K--Classification of Foreign Ports by Geographic Trade 
Area and Country.
    (f) International Air Transport Association (IATA)--Code of the 
carrier for air shipments. These are the air carrier codes to be used in 
reporting EEI, as required by the regulations in this part.
    (g) Standard Carrier Alpha Code (SCAC)--Classification of the 
carrier for vessel, rail and truck shipments, showing the carrier codes 
necessary to prepare EEI, as required by the regulations in this part.



Sec.  30.62  Emergency exceptions.

    The Census Bureau and CBP may jointly authorize the postponement of 
or exception to the requirements of the regulations in this Part as 
warranted by the circumstances in individual cases of emergency where 
strict enforcement of the regulations would create a hardship. In cases 
where export control requirements also are involved, the concurrence of 
the regulatory agency and CBP also will be obtained.



Sec.  30.63  Office of Management and Budget control numbers assigned
pursuant to the Paperwork Reduction Act.

    (a) Purpose. This subpart will comply with the requirements of the 
Paperwork Reduction Act (PRA), 44 U.S.C. 3507(f), which requires that 
agencies display a current control number assigned by the Director of 
OMB for each

[[Page 294]]

agency information collection requirement.
    (b) Display.

------------------------------------------------------------------------
                                                            Current OMB
      15 CFR section where identified and described         control No.
------------------------------------------------------------------------
Sec.  Sec.   30.1 through 30.99.........................       0607-0152
------------------------------------------------------------------------



Sec. Sec.  30.64-30.69  [Reserved]



                           Subpart H_Penalties



Sec.  30.70  Violation of the Clean Diamond Trade Act.

    Section 8(c) of the Clean Diamond Trade Act (CDTA) authorizes U.S. 
Customs and Border Protection (CBP) and U.S. Immigration and Customs 
Enforcement (ICE) to enforce the laws and regulations governing exports 
of rough diamonds. The Treasury Department's Office of Foreign Assets 
Control (OFAC) also has enforcement authority pursuant to section 5(a) 
of the CDTA, Executive Order 13312, and Rough Diamonds Control 
Regulations (31 CFR part 592). CBP, ICE, and OFAC are authorized to 
enforce provisions of the CDTA providing the following civil and 
criminal penalties:
    (a) Civil penalties. A civil penalty not to exceed $10,000 may be 
imposed on any person who violates, or attempts to violate, any order or 
regulation issued under the Act.
    (b) Criminal penalties. For the willful violation or attempted 
violation of any license, order, or regulation issued under the Act, a 
fine not to exceed $50,000, shall be imposed upon conviction or:
    (1) If a natural person, imprisoned for not more than ten years, or 
both;
    (2) If an officer, director, or agent of any corporation, who 
willfully participates in such violation, imprisoned for not more than 
ten years, or both.

[73 FR 31555, June 2, 2008, as amended at 83 FR 17751, Apr. 24, 2018]



Sec.  30.71  False or fraudulent reporting on or misuse of the Automated 
Export System.

    (a) Criminal penalties--(1) Failure to file; submission of false or 
misleading information. Any person, including USPPIs, authorized agents 
or carriers, who knowingly fails to file or knowingly submits, directly 
or indirectly, to the U.S. Government, false or misleading export 
information through the AES, shall be subject to a fine not to exceed 
$10,000 or imprisonment for not more than five years, or both, for each 
violation.
    (2) Furtherance of illegal activities. Any person, including USPPIs, 
authorized agents or carriers, who knowingly reports, directly or 
indirectly, to the U.S. Government any information through or otherwise 
uses the AES to further any illegal activity shall be subject to a fine 
not to exceed $10,000 or imprisonment for not more than five years, or 
both, for each violation.
    (3) Forfeiture penalties. Any person who is convicted under this 
subpart shall, in addition to any other penalty, be subject to 
forfeiting to the United States:
    (i) Any of that person's interest in, security of, claim against, or 
property or contractual rights of any kind in the goods or tangible 
items that were the subject of the violation.
    (ii) Any of that person's interest in, security of, claim against, 
or property or contractual rights of any kind in tangible property that 
was used in the export or attempt to export that was the subject of the 
violation.
    (iii) Any of that person's property constituting, or derived from, 
any proceeds obtained directly or indirectly as a result of this 
violation.
    (4) Exemption. The criminal fines provided for in this subpart are 
exempt from the provisions of 18 U.S.C. 3571.
    (b) Civil penalties--(1) Failure to file violations. A failure to 
file violation occurs if the government discovers that there is no AES 
record for an export transaction by the applicable period prescribed in 
Sec.  30.4 of this part. Any AES record filed later than ten (10) 
calendar days after the due date will also be considered a failure to 
file regardless of whether the violation was or was not discovered by 
the government. A civil penalty not to exceed $10,000 may be imposed for 
a failure to file violation.
    (2) Late filing violations. A late filing violation occurs when an 
AES record is filed after the applicable period prescribed in Sec.  30.4 
of this part. A civil penalty not to exceed $1,100 for each day of 
delinquency, but not more than $10,000

[[Page 295]]

per violation, may be imposed for failure to file timely export 
information or reports in connection with the exportation or 
transportation of cargo. (See 19 CFR part 192)
    (3) Filing false/misleading information, furtherance of illegal 
activities and penalties for other violations. A civil penalty not to 
exceed $10,000 per violation may be imposed for each violation of 
provisions of this part other than any violation encompassed by 
paragraph (b)(1) or (b)(2) of this section. Such penalty may be in 
addition to any other penalty imposed by law.
    (4) Forfeiture penalties. In addition to any other civil penalties 
specified in this section, any property involved in a violation may be 
subject to forfeiture under applicable law.

    Note to paragraph (b): The Civil Monetary Penalties; Adjustment for 
Inflation Final Rule effective December 14, 2004, adjusted the penalty 
in Title 13, Chapter 9, Section 304, United States Code from $1,000 to 
$10,000 to $1,100 to $10,000.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16382, Mar. 14, 2013]



Sec.  30.72  Civil penalty procedures.

    (a) General. Whenever a civil penalty is sought for a violation of 
this part, the charged party is entitled to receive a formal complaint 
specifying the charges and, at his or her request, to contest the 
charges in a hearing before an administrative law judge. Any such 
hearing shall be conducted in accordance with 5 U.S.C. 556 and 557.
    (b) Applicable law for delegated function. If, pursuant to 13 U.S.C. 
306, the Secretary delegates functions addressed in this part to another 
agency, the provisions of law of that agency relating to penalty 
assessment, remission or mitigation of such penalties, collection of 
such penalties, and limitations of action and compromise of claims shall 
apply.
    (c) Commencement of civil actions. If any person fails to pay a 
civil penalty imposed under this subpart, the Secretary may request the 
Attorney General to commence a civil action in an appropriate district 
court of the United States to recover the amount imposed (plus interest 
at currently prevailing rates from the date of the final order). No such 
action may be commenced more than five years after the date the order 
imposing the civil penalty becomes final. In such action, the validity, 
amount, and appropriateness of such penalty shall not be subject to 
review.
    (d) Remission and mitigation. Any penalties imposed under Sec.  
30.71(b)(1) and (b)(2) may be remitted or mitigated, if:
    (1) The penalties were incurred without willful negligence or fraud; 
or
    (2) Other circumstances exist that justify a remission or 
mitigation.
    (e) Deposit of payments in General Fund of the Treasury. Any amount 
paid in satisfaction of a civil penalty imposed under this subpart shall 
be deposited into the general fund of the Treasury and credited as 
miscellaneous receipts, other than a payment to remit a forfeiture which 
shall be deposited into the Treasury Forfeiture fund.



Sec.  30.73  Enforcement.

    (a) Department of Commerce. The BIS's OEE may conduct investigations 
pursuant to this part. In conducting investigations, BIS may, to the 
extent necessary or appropriate to the enforcement of this part, 
exercise such authorities as are conferred upon BIS by other laws of the 
United States, subject, as appropriate, to policies and procedures 
approved by the Attorney General.
    (b) Department of Homeland Security (DHS). ICE and CBP may enforce 
the provisions of this part and ICE, as assisted by CBP may conduct 
investigations under this part.



Sec.  30.74  Voluntary self-disclosure.

    (a) General policy. The Census Bureau strongly encourages disclosure 
of any violation or suspected violation of the FTR. Voluntary self-
disclosure is a mitigating factor in determining what administrative 
sanctions, if any, will be sought. The Secretary of Commerce has 
delegated all enforcement authority under 13 U.S.C. Chapter 9, to the 
BIS and the DHS.
    (b) Limitations. (1) The provisions of this section apply only when 
information is provided to the Census Bureau for its review in 
determining whether to seek administrative action for violations of the 
FTR.

[[Page 296]]

    (2) The provisions of this section apply only when information is 
received by the Census Bureau for review prior to the time that the 
Census Bureau, or any other agency of the United States Government, has 
learned the same or substantially similar information from another 
source and has commenced an investigation or inquiry in connection with 
that information.
    (3) While voluntary self-disclosure is a mitigating factor in 
determining what corrective actions will be required by the Census 
Bureau and/or whether the violation will be referred to the BIS to 
determine what administrative sanctions, if any, will be sought, it is a 
factor that is considered together with all other factors in a case. The 
weight given to voluntary self-disclosure is within the discretion of 
the Census Bureau and the BIS, and the mitigating effect of voluntary 
self-disclosure may be outweighed by aggravating factors. Voluntary 
self-disclosure does not prevent transactions from being referred to the 
Department of Justice (DOJ) for criminal prosecution. In such a case, 
the BIS or the DHS would notify the DOJ of the voluntary self-
disclosure, but the consideration of that factor is within the 
discretion of the DOJ.
    (4) Any person, including USPPIs, authorized agents, or carriers, 
will not be deemed to have made a voluntary self-disclosure under this 
section unless the individual making the disclosure did so with the full 
knowledge and authorization of senior management.
    (5) The provisions of this section do not, nor should they be relied 
on to, create, confer, or grant any rights, benefits, privileges, or 
protection enforceable at law or in equity by any person, business, or 
entity in any civil, criminal, administrative, or other matter.
    (c) Information to be provided--(1) General. Any person disclosing 
information that constitutes a voluntary self-disclosure should, in the 
manner outlined below, if a violation is suspected or a violation is 
discovered, conduct a thorough review of all export transactions for the 
past five years where violations of the FTR are suspected and notify the 
Census Bureau as soon as possible.
    (2) Initial notification. (i) The initial notification must be in 
writing and be sent to the address in paragraph (c)(5) of this section. 
The notification must include the name of the person making the 
disclosure and a brief description of the suspected violations. The 
notification should describe the general nature, circumstances, and 
extent of the violations. If the person making the disclosure 
subsequently completes the narrative account required by paragraph 
(c)(3) of this section, the disclosure will be deemed to have been made 
on the date of the initial notification for purposes of paragraph (b)(2) 
of this section.
    (ii) Disclosure of suspected violations that involve export of items 
controlled, licensed, or otherwise subject to the jurisdiction by a 
department or agency of the federal government should be made to the 
appropriate federal department or agency.
    (3) Narrative account. After the initial notification, a thorough 
review should be conducted of all export transactions where possible 
violations of the FTR are suspected. The Census Bureau recommends that 
the review cover a period of five years prior to the date of the initial 
notification. If the review goes back less than five years, there is a 
risk that violations may not be discovered that later could become the 
subject of an investigation. Any violations not voluntarily disclosed do 
not receive consideration under this section. However, the failure to 
make such disclosures will not be treated as a separate violation unless 
some other section of the FTR or other provision of law requires 
disclosure. Upon completion of the review, the Census Bureau should be 
furnished with a narrative account that sufficiently describes the 
suspected violations so that their nature and gravity can be assessed. 
The narrative account should also describe the nature of the review 
conducted and measures that may have been taken to minimize the 
likelihood that violations will occur in the future. The narrative 
account should include:
    (i) The kind of violation involved, for example, failure to file 
EEI, failure to correct fatal errors, failure to file timely 
corrections;
    (ii) Describe all data required to be reported under the FTR that 
was either not reported or reported incorrectly;

[[Page 297]]

    (iii) An explanation of when and how the violations occurred;
    (iv) The complete identities and addresses of all individuals and 
organizations, whether foreign or domestic, involved in the activities 
giving rise to the violations;
    (v) A description of any mitigating circumstances;
    (vi) Corrective measures taken; and
    (vii) ITNs of the missed and/or corrected shipments.
    (4) Electronic export information. Report all data required under 
the FTR that was not reported. Report corrections for all data reported 
incorrectly. All reporting of unreported data or corrections to 
previously reported data shall be made through the AES.
    (5) Where to make voluntary self-disclosures. With the exception of 
voluntary disclosures of manifest violations under paragraph (c) of this 
section, the information constituting a Voluntary Self-Disclosure or any 
other correspondence pertaining to a Voluntary Self-Disclosure may be 
submitted to: Chief, International Trade Management Division, U.S. 
Census Bureau, 4600 Silver Hill Road, Washington, DC 20233. Additional 
instructions are found at www.census.gov/trade.
    (d) Action by the Census Bureau. After the Census Bureau has been 
provided with the required narrative, it will promptly notify CBP, ICE, 
and the OEE of the voluntary disclosure, acknowledge the disclosure by 
letter, provide the person making the disclosure with a point of 
contact, and take whatever additional action, including further 
investigation, it deems appropriate. As quickly as the facts and 
circumstances of a given case permit, the Census Bureau may take any of 
the following actions:
    (1) Inform the person or company making the voluntary self-
disclosure of the action to be taken.
    (2) Issue a warning letter or letter setting forth corrective 
measures required.
    (3) Refer the matter, if necessary, to the OEE for the appropriate 
action.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16382, Mar. 14, 2013; 82 
FR 18392, Apr. 19, 2017]



Sec. Sec.  30.75-30.99  [Reserved]



[[Page 298]]



  Sec. Appendix A to Part 30--Sample for Power of Attorney and Written 
                              Authorization
[GRAPHIC] [TIFF OMITTED] TR02JN08.000


[[Page 299]]


[GRAPHIC] [TIFF OMITTED] TR02JN08.001



Sec. Appendix B to Part 30--AES Filing Citation, Exemption and Exclusion 
                                 Legends

 
 
 
I. Proof of Filing Citation............  AES ITN
                                         Example: AES X20170101987654
II. Postdeparture Citation--USPPI,       AESPOST USPPI EIN Date of
 USPPI is filing the EEI.                 Export (mm/dd/yyyy)
                                         Example: AESPOST 12345678912 01/
                                          01/2017
III. Postdeparture Citation--Agent,      AESPOST USPPI EIN--Filer ID
 Agent is filing the EEI.                 Date of Export (mm/dd/yyyy)
                                         Example: AESPOST 12345678912--
                                          987654321 01/01/2017
IV. AES downtime Filing Citation--Use    AESDOWN Filer ID Date of Export
 only when AES or AES Direct is           (mm/dd/yyyy)
 unavailable.                            Example: AESDOWN 123456789 01/
                                          01/2017
V. Exemption for Shipments to Canada...  NOEEI Sec.   30.36
VI. Exemption for Low-Value Shipments..  NOEEI Sec.   30.37(a)
VII. Miscellaneous Exemption Statements  NOEEI Sec.   30.37 (site
 are found in 15 CFR part 30, subpart     corresponding alphabet)
 D, Sec.   30.37(b) through (y).
VIII. Special Exemption for Shipments    NOEEI Sec.   30.39
 to the U.S. Armed Forces.
IX. Special Exemptions for Certain       NOEEI Sec.   30.40 (site
 Shipments to U.S. Government Agencies    corresponding alphabet)
 and Employees (Exemption Statements
 are found in 15 CFR part 30, subpart
 D, Sec.   30.40(a) through (c).

[[Page 300]]

 
X. Split Shipments Split Shipments       AES ITN SS
 should be referenced as such on the     Example: AES X20170101987654 SS
 manifest in accordance with provisions
 contained in Sec.   30.28, Split
 Shipments. The notation should be
 easily identifiable on the manifest.
 It is preferable to include a
 reference to a split shipment in the
 exemption statements cited in the
 example, the notation SS should be
 included at the end of the appropriate
 exemption statement.
 


[82 FR 43844, Sept. 20, 2017]



PART 40_TRAINING OF FOREIGN PARTICIPANTS IN CENSUS PROCEDURES AND 
GENERAL STATISTICS--Table of Contents



Sec.
40.1 Type of grant.
40.2 Qualifications.
40.3 Cooperation with bilateral technical assistance programs of the 
          United States.
40.4 Administrative provisions on selection of participants and funding 
          of costs.
40.5 Other cooperative arrangements.

    Authority: 5 U.S.C. 301; 22 U.S.C. 1456; 31 U.S.C. 686. Memorandum 
of Agreement between the Department of Commerce and the Foreign 
Operations Administration Concerning Foreign Technical Assistance Work, 
signed June 10, 1954.

    Source: 28 FR 119, Jan. 4, 1963, unless otherwise noted.



Sec.  40.1  Type of grant.

    Training grants will be awarded by the Agency for International 
Development (AID), in its capacity as the bilateral technical assistance 
agency for the United States Government, to foreign participants for 
training, observation, and research in the fields of censuses and 
statistics at the Bureau of the Census. In compliance with the needs of 
the participants and consistent with resources of the Bureau, training 
programs will be developed along the lines of a combined interne-
training and/or training-in research types, and may include any or all 
of the following:
    (a) Conference courses designed to provide the trainee with adequate 
background information on (1) organization and administration of the 
United States Bureau of the Census, (2) subject-matter areas for which 
the Bureau of the Census collects and compiles statistical information, 
(3) nature and scope of the major statistical programs maintained by 
other federal government agencies, (4) techniques and scope of the 
periodic censuses and statistical surveys, and statistical compilations 
undertaken by the Bureau of the Census, and (5) relation of censuses to 
other statistical data collected and analyzed by U.S. agencies.
    (b) Seminars laboratory exercises and observation of work in the 
Census Bureau and other agencies with specific applicability to the 
participant such as (1) development of census and survey questionnaires, 
(2) methods of field and mail enumeration, (3) procedures for editing 
and coding statistical forms, (4) use of office machines, 
electromechanical tabulation equipment, and automatic data processing 
systems for mass processing of statistical data, (5) definitions and 
scope of the subject matters involved in the censuses and statistical 
programs of the Bureau of the Census, (6) classification of industrial 
and business establishments, (7) classification of imports and exports, 
(8) techniques of making intercensal estimates of population, (9) 
sampling techniques and quality control procedures, (10) analyses and 
publication of data, and development of certain indexes; and (11) other 
topics, particularly in the development of new statistical programs and 
techniques.
    (c) Formal courses at a college or university to supplement the 
seminars, conference-courses, and individual statistical projects 
developed, presented, or assigned by the Bureau; or enrolled

[[Page 301]]

on a full-time basis in a college or university to obtain the 
appropriate academic background for further work in the field of 
statistics in accordance with needs of participants and/or the program 
requirements of their countries.
    (d) Observation trips to various academic institutions with 
recognized statistical activities, to private marketing and research 
agencies, to regional field offices of the Bureau, to the government 
statistical agencies of Canada, and to such activities that will 
supplement or illustrate the application and end use of statistical 
data.
    (e) Case study workshops on selected census and statistical 
activities presented at the Bureau, in other locations in the United 
States, or outside the continental limits of the United States.
    (f) Such field training, special research, or university program as 
appears advisable to the Director of the Bureau of the Census in 
accordance with the technical needs of the participants.



Sec.  40.2  Qualifications.

    (a) To be eligible for a training grant at the Bureau of the Census 
the applicant must be:
    (1) A bona-fide citizen of a country with whom the United States has 
proper diplomatic arrangements for such training programs.
    (2) Able to speak, read, write, and understand the English language.
    (3) Sponsored by his government either directly with the United 
States or through a public international agency.
    (4) Physically able to undertake the activities incident to the 
course of training and free from communicable diseases.
    (b) [Reserved]



Sec.  40.3  Cooperation with bilateral technical assistance programs
of the United States.

    In compliance with the provisions contained in the Memorandum of 
Agreement executed between the Department of Commerce and the Foreign 
Operations Administration (now AID) on June 10, 1954, the Bureau of the 
Census is authorized within its areas of competence and available 
resources to continue its training of foreign nationals under the 
general guidance of the Department of Commerce and in cooperation with 
the bilateral technical assistance programs of the United States 
Government.



Sec.  40.4  Administrative provisions on selection of participants 
and funding of costs.

    (a) Within the framework of the aforementioned Memorandum of 
Agreement, the Bureau of the Census will arrange at the request and 
expense of the Agency for International Development, a program for 
technical training of foreign participants in censuses and statistics. 
The Bureau of the Census will be furnished biographic materials, 
information about the training objectives including, where appropriate, 
each participant's education and experience, type of training desired, 
present and future positions with descriptions of duties, and the terms 
of the training project for each participant or group as far in advance 
of his arrival in the United States as possible.
    (b) The Bureau reserves the right to accept, based on biographical 
information to be furnished in advance, only those participants whom it 
finds qualified to make satisfactory use of its training facilities and 
resources. The Bureau would prefer to develop programs for foreign 
participants with substantive experience in the statistical activities 
of their home country.
    (c) Arrangements for security clearances, insurance, orientation, 
international travel, housing, and other administrative responsibilities 
will be the responsibility of AID under the provisions of the Memorandum 
of Agreement (Reference: Appendix II, Training of Foreign Nationals).



Sec.  40.5  Other cooperative arrangements.

    The Bureau of the Census also undertakes the training of foreign 
nationals proposed through the Department of State under the 
International Exchange Service (IES) or under the sponsorship of public 
international agencies.

[[Page 302]]



PART 50_SPECIAL SERVICES AND STUDIES BY THE BUREAU OF THE CENSUS-
-Table of Contents



Sec.
50.1 General.
50.5 Fee structure for age search and citizenship information.
50.10 Fee structure for special population censuses.
50.30 Fee structure for foreign trade and shipping statistics.
50.40 Fee structure for statistics for city blocks in the 1980 Census of 
          Population and Housing.
50.50 Request for certification.
50.60 Request for certification.

    Authority: 15 U.S.C. 1525-1527 and 13 U.S.C. 3 and 8.



Sec.  50.1  General.

    (a) Fee structure for age search and citizenship service, special 
population censuses, and for foreign trade and shipping statistics.
    (b) In accordance with the provisions of the acts authorizing the 
Department of Commerce to make special statistical surveys and studies, 
and to perform other specified services upon the payment of the cost 
thereof, the following fee structure is hereby established. No 
transcript of any record will be furnished under authority of these acts 
which would violate existing or future acts requiring that information 
furnished be held confidential.
    (c) Requests for age search and citizenship service should be 
addressed to the Personal Census Search Unit, Data Preparation Division, 
Bureau of the Census, P.O. Box 1545, Jeffersonville, Indiana 47131. 
Application forms may be obtained at Department of Commerce field 
offices or Social Security offices or by writing to the Jeffersonville, 
Indiana office.
    (d) If a search is unsuccessful and additional information for a 
further search is requested by the Census Bureau, such information must 
be received within 90 days of the request or the case will be considered 
closed. Additional information received after 90 days must be 
accompanied by a new fee and will be considered a new request.

(15 U.S.C. 1526 and 13 U.S.C. 8)

[36 FR 905, Jan. 20, 1971, as amended at 49 FR 3980, Feb. 1, 1984; 56 FR 
35815, July 29, 1991; 68 FR 42586, July 18, 2003]



Sec.  50.5  Fee structure for age search and citizenship information.

------------------------------------------------------------------------
                        Type of service                            Fee
------------------------------------------------------------------------
Searches of one census for one person and one transcript.......   $65.00
Each additional copy of census transcript......................     2.00
\1\ Each full schedule requested...............................   10.00
------------------------------------------------------------------------
\1\ The $10.00 for each full schedule requested is in addition to the
  $65.00 transcript fee.

    Note: An additional charge of $20.00 per case is charged for 
expedited requests requiring search results within one day.

[69 FR 45580, July 30, 2004]



Sec.  50.10  Fee structure for special population censuses.

    The Bureau of the Census is authorized to conduct special population 
censuses at the request of and at the expense of the community 
concerned. To obtain a special population census, an authorized official 
of the community should write a letter to the Associate Director for 
Demographic Fields, Bureau of the Census, Washington, D.C. 20233, 
requesting detailed information and stating the approximate present 
population. The Associate Director will reply giving an estimate of the 
cost and other pertinent information. Title 13, United State Code, 
section 196, Special Censuses, requires payment to the Bureau of the 
actual or estimated cost of each such special census.

[47 FR 18, Jan. 4, 1982]



Sec.  50.30  Fee structure for foreign trade and shipping statistics.

    (a) The Bureau of the Census is willing to furnish on a cost basis 
foreign trade and shipping statistics provided there is no serious 
interruption of the Bureau's regular work program.
    (b) In instances where information requested is not shown separately 
or not summarized in the form desired, it is necessary to conduct a 
prelimary investigation at the requestor's expense to determine whether 
the information can be compiled from the basic records and what the 
total cost will be. The

[[Page 303]]

preliminary investigation normally costs $250 but may be more depending 
on the circumstances. The total cost of the final report generally 
ranges from $500 to several thousand dollars for data covering a 12-
month period.
    (c) Upon receipt of a request, information will be furnished as to 
whether the statistics are available and if so, the cost; or that a 
preliminary investigation must be conducted. When an investigation is 
completed, information will be furnished as to the cost of preparing the 
material, or as to the reason if the statistics cannot be compiled from 
our basic records.

(15 U.S.C. 1526 and 13 U.S.C. 8)

[28 FR 120, Jan. 4, 1963, as amended at 49 FR 3980, Feb. 1, 1984]



Sec.  50.40  Fee structure for statistics for city blocks in the 1980
Census of Population and Housing.

    (a) As part of the regular program of the 1980 census, the Census 
Bureau will publish printed reports containing certain summary 
population and housing statistics for each city block, drawn from the 
subjects which are being covered on a 100-percent basis. For these 
subjects, a substantial amount of additional data by block will be 
available on computer tape.
    (b) The 1980 block data under the regular program will be prepared 
for:
    (1) Each urbanized area in the United States. An urbanized area is 
delineated by the Census Bureau in each standard metropolitan 
statistical area and generally consists of a city or group of contiguous 
cities with a 1970 population of 50,000 or more, together with adjacent 
densely populated land (i.e., land having a population density of at 
least 1,000 persons per square mile).
    (2) And, outside urbanized areas, for each incorporated place (such 
as a city or village) that was reported as having 10,000 or more 
inhabitants in:
    (i) The 1970 census, or
    (ii) The 1973, 1975, or 1976 official population estimates published 
by the Bureau, or
    (iii) A special census conducted by the Bureau on or before December 
31, 1977.
    (c) Outside the above-mentioned urbanized areas and places, State 
and local government authorities will be able to contract with the 
Bureau of the Census to produce block data for their areas. In 
undertaking this contract, the requesting authority will be required to 
pay a fee, supply certain maps, and meet certain time deadlines as 
follows:
    (1) Fee: (i) Population size:

------------------------------------------------------------------------
                                                                Fee per
                                                                  area
------------------------------------------------------------------------
Under 2,500..................................................       $500
2,500 to 4,999...............................................        600
5,000 to 9,999...............................................        700
------------------------------------------------------------------------

    (ii) The final fee will be based upon the 1980 census population 
counts. A refund or additional charge will be made if the contracting 
area is in a different population size group as a result of the census.
    (iii) The cost for an area with a population of 10,000 or more will 
be determined on an individual basis.
    (iv) Multiple area contracts may be negotiated at a savings.
    (v) The fee is based on estimated 1980 costs. If the 1980 cost 
exceeds the estimated cost, an additional fee may be requested from the 
contracting area. If actual costs are less than the estimated cost, a 
refund may be made.
    (vi) Any incorporated place which contracts for block statistics and 
which reaches a population of 10,000 or more in the 1980 census will 
have the fee completely refunded, as the place will then be considered 
to be part of the regular block statistics program.
    (vii) If the area submits maps which are not adequate for the 
Bureau's purposes (see Maps, below) and therefore have to be redrafted 
by the Bureau, a surcharge of $300 per map sheet requiring revision will 
be applied to the fee for the particular area.
    (2) Maps: (i) In order for the Bureau to provide data on a block-by-
block basis, it must have a map which clearly delineates each block. The 
contracting government authority must supply such maps. A copy of the 
specifications for preparing the block maps will be provided upon 
request and, in any event, will accompany the copy of the contract which 
is sent to the government authority for signature.
    (ii) The maps must be furnished to the Census Bureau within 30 
calendar

[[Page 304]]

days after the government authority signs the contract.
    (iii) The Bureau will review the maps and, if revision is necessary, 
return them within 30 calendar days to the government authority.
    (iv) Within 30 calendar days thereafter, the revised maps must be 
transmitted to the Bureau and, if they are still inadequate and must 
therefore be redrafted by the Bureau, the above-mentioned surcharge of 
$300 per map sheet requiring revision will be imposed.
    (3) Timing: (i) The contract must be signed, and a downpayment of 
$250 per area made, by April 1, 1978. A check or money order should be 
made payable to ``Commerce--Census.''
    (ii) If an area decides to withdraw after signing a contract and 
making a downpayment, the cost of work performed to date will be 
deducted from the refund.
    (iii) The balance of the fee must be mailed to the Bureau by January 
1, 1980.
    (d) In consideration of the fees paid and maps supplied, the Bureau 
will:
    (1) Identify the individual blocks in its records and tabulations.
    (2) Make available the block data for the particular area in the 
same manner as for areas in the regular block statistics program (i.e., 
both in terms of printed reports and computer summary tapes). Two copies 
of the printed report (including the printed maps) which contain the 
block statistics for the particular area will be furnished to the 
contracting government authority.
    (e) Requests for participation in the contract block statistics 
program or for further information should be addressed to the Director, 
Bureau of the Census, Washington, DC 20233.

[43 FR 3903, Jan. 30, 1978; 43 FR 59835, Dec. 22, 1978]



Sec.  50.50  Request for certification.

    (a) Upon request, the Census Bureau certifies certain statistical 
materials (such as the population and housing unit counts of government 
entities, published tabulations, maps, and other documents). The Census 
Bureau charges customers a preset fee for this service according to the 
kind of certification requested (either an impressed document or an 
attestation) and the level of difficulty involved in compiling it (easy, 
moderate, or difficult, determined according to the resources expended) 
as well as the set cost of the data product (e.g., report or map) to be 
certified. Certification prices are shown in the following table:

                     Price by Type of Certification
------------------------------------------------------------------------
                                                               Estimated
                                                   Estimated    time to
                     Product                         price     complete
                                                              (in hours)
------------------------------------------------------------------------
Impress-easy.....................................     $70.00         1.5
Impress-medium...................................     110.00         3
Impress-difficult................................     150.00         4.5
Attestation-easy.................................     160.00         3
Attestation-medium...............................     200.00         4.5
Attestation-difficult............................     240.00         6
------------------------------------------------------------------------

    (b) There are two forms of certification available: Impressed 
Documents and Attestation.
    (1) Impressed documents. An impressed document is one that is 
certified by impressing the Census Bureau seal on the document itself. 
The Census Bureau act, Title 13, United States Code, Section 3, provides 
that the seal of the Census Bureau shall be affixed to all documents 
authenticated by the Census Bureau and that judicial notice shall be 
taken of the seal. This process attests that the document on which the 
seal is impressed is a true and accurate copy of a Census Bureau record.
    (2) Attestation. Attestation is a more formal process of 
certification. It consists of a signed statement by a Census Bureau 
official that the document is authentic and produced or published by the 
agency, followed by a signed statement of another Census Bureau official 
witnessing the authority of the first.
    (c) Requests for certification should be submitted on Form BC-
1868(EF), Request for Official Certification, to the Census Bureau by 
fax, (301) 457-4714 or by e-mail, [email protected]. Form BC-1868(EF) 
is available on the Census Bureau's Web site at: http://www.census.gov/
mso /www/certification/. A letter request--without Form BC-1868(EF)--
will be accepted only if it contains the information necessary to 
complete a Form BC-1868(EF). No certification request will be processed 
without payment of the required fee.

[67 FR 54951, Aug. 27, 2002]

[[Page 305]]



Sec.  50.60  Request for certification.

    (a) Certification process. Upon request, the Census Bureau certifies 
population and housing counts of standard governmental units to reflect 
boundary updates, including new incorporations, annexations, mergers, 
and so forth. The Census Bureau will produce a certificate, that is, a 
signed statement by a Census Bureau official attesting to the 
authenticity of the certified Census 2000 population and housing counts 
to reflect updates to the legal boundaries of governmental units after 
those in effect for Census 2000. This service will be a permanent 
process, but one that will be temporarily suspended during future 
decennial censuses. Typically, the Census Bureau will suspend this 
service, and direct its resources to the decennial census, for a total 
of five years--the two years preceding the decennial census, the 
decennial census year, and the two years following it. The Census Bureau 
will issue notices in the Federal Register announcing when it suspends 
and, in turn, resumes, the service.
    (1) The Census Bureau charges customers a preset fee for this 
service according to the amount of work involved in compiling the 
population and housing counts, as determined by the resources expended 
to meet customer requirements and the set cost of the product (one 
certificate). Certification fees may increase somewhat if the customer 
requests additional original certificates. Each additional certificate 
costs $35.00. Certification prices are shown in the following table:

                      Description and Estimated Fee
------------------------------------------------------------------------
      Standard governmental units                 Estimated fee
------------------------------------------------------------------------
Annual Certification...................  $693 to $1,799.
Expedited Certification................  1,530 to 9,075.
------------------------------------------------------------------------

    (2) [Reserved]
    (b) Description of certification types. The Census Bureau will 
process requests for population certificates for standard governmental 
units, in accordance with the Census Bureau's annual certification 
schedule or under an expedited certification arrangement. The boundaries 
for standard governmental units are regularly and customarily updated 
between decennial censuses by the Census Bureau's geographic support 
system. These governmental units include a variety of legally defined 
general- and special-purpose governmental units, including counties and 
statistically equivalent entities, minor civil divisions, incorporated 
places, consolidated cities, federally recognized American Indian 
reservations, and school districts. A complete list of entities is 
defined in paragraph (c) of this section.
    (1) Annual certification. Annual population and housing 
certification is available around October 1 of each calendar year to new 
or existing governmental units that report legal boundary updates in the 
Census Bureau's annual Boundary and Annexation Survey. In accordance 
with reporting requirements of this survey, the legally effective dates 
of the boundary updates may not be later than January 1 of the calendar 
year. These certifications are available through September of the 
following year.
    (i) The annual certification service also is available to standard 
governmental units that are not in the Boundary and Annexation Survey of 
that year. Governmental units electing participation in this service 
must draft the legal boundary updates upon Census Bureau-supplied maps. 
The legally effective dates of the boundaries may not be later than 
January 1 of the calendar year. The Census Bureau must receive the 
census maps annotated with the legally certified boundaries and 
associated address ranges by April 1 of the same calendar year. The 
Census Bureau will determine that the legal boundary updates are 
acceptable by verifying that the information is complete, legible, and 
usable, and that the legal boundaries on the maps have been attested by 
the governmental unit as submitted in accordance with state law or 
tribal authority.
    (ii) [Reserved]
    (2) Expedited certification. (i) Expedited certification will be 
available where the customer requests any of the following:
    (A) Certification of boundary updates legally effective after 
January 1 of the current calendar year; or

[[Page 306]]

    (B) Certification of boundary updates reported to the Census Bureau 
after April 1 of the current calendar year; or
    (C) Certification of boundary updates by the Census Bureau before 
October 1 of the current calendar year.
    (ii) Governmental units electing participation in this service must 
draft the legal boundary updates upon Census Bureau-supplied maps. To 
allow sufficient processing time, the Census Bureau must receive 
acceptable census maps annotated with the legally certified boundaries 
and associated address ranges no later than three months before the date 
requested by the customer to receive the population certificate. The 
Census Bureau will determine that the legal boundary updates are 
acceptable by verifying that the information is complete, legible, and 
usable and that the legal boundaries on the maps have been attested as 
submitted in accordance with state law or tribal authority.
    (c) List of standard governmental units. The following is a list of 
the standard governmental units eligible for the Geographically Updated 
Population Certification Program:
    (1) Federally recognized American Indian reservations and off-
reservation trust land entities [tribal government]; this includes a 
reservation designated as a colony, community, Indian community, Indian 
village, pueblo, rancheria, reservation, reserve, and village.
    (2) Counties and statistically equivalent entities, including the 
following: counties in 48 states; boroughs, municipalities, and census 
areas in Alaska [state official]; parishes in Louisiana; and municipios 
in Puerto Rico.
    (3) Minor civil divisions as recognized in Census 2000 in the 
following 28 states: Arkansas, Connecticut, Illinois, Indiana, Iowa, 
Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, 
Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, 
North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South 
Dakota, Vermont, Virginia, West Virginia, and Wisconsin.
    (4) Incorporated places, including the following: boroughs in 
Connecticut, New Jersey, and Pennsylvania; cities in 49 states and the 
District of Columbia; cities, boroughs, and municipalities in Alaska; 
towns in 30 states (excluding towns in New England, New York, and 
Wisconsin, which are minor civil divisions); and villages in 20 states.
    (5) Consolidated cities.
    (6) School districts.
    (d) Non-standard certifications. Certifications for population and 
housing counts of non-standard geographic areas or of individual census 
blocks are not currently available under this program but will be 
announced under a separate notice at a later date.
    (e) Submitting certification requests. Submit requests for 
certifications on Form BC-1869(EF), Request for Geographically Updated 
Official Population Certification, to the Census Bureau by fax, (301) 
457-4714, or by e-mail, [email protected]. Form BC-1869(EF) will be 
available on the Census Bureau's Web site at: http://www.census.gov/mso 
/www/certification/. A letter or e-mail communication requesting the 
service without Form BC-1869(EF) will be accepted only if it contains 
the information necessary to complete a Form BC-1869(EF).

[67 FR 72096, Dec. 4, 2002]



PART 60_PUBLIC INFORMATION--Table of Contents



    Authority: 5 U.S.C. 301, 552, 553, Reorganization Plan No. 5 of 
1950; 31 U.S.C. 3717.



Sec.  60.1  Public information.

    The rules and procedures regarding public access to the records of 
the Bureau of the Census are found at 15 CFR part 4.

[57 FR 40841, Sept. 8, 1992]



PART 70_CUTOFF DATES FOR RECOGNITION OF BOUNDARY CHANGES FOR THE
2010 CENSUS--Table of Contents



Sec.
70.1 Cutoff dates and effect on enumeration and data tabulation.
70.2 ``Municipality'' and ``county subdivision'' defined for census 
          purposes.
70.3 Effect of boundary changes occurring or reported after the cutoff 
          dates.


[[Page 307]]


    Authority: 13 U.S.C. 4 and Department of Commerce Organization Order 
35-2A (40 FR 42765).

    Source: 51 FR 24653, July 8, 1986, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 70 appear at 63 FR 
10303, Mar. 3, 1998, and at 73 FR 46553, Aug. 11, 2008.



Sec.  70.1  Cutoff dates and effect on enumeration and data tabulation.

    For the tabulation and publication of data from the 2010 Census of 
Population and Housing, the Bureau of the Census will recognize only 
those boundaries legally in effect on January 1, 2010 that have been 
reported officially to the Bureau of the Census no later than March 1, 
2010. The Bureau of the Census enumerates respondents on the date of the 
decennial census as residing within the legal limits of municipalities, 
county subdivisions, counties, States, and equivalent areas as those 
limits exist on January 1, 2010.



Sec.  70.2  ``Municipality'' and ``county subdivision'' defined for
census purposes.

    For the purposes of this part, the Bureau of the Census defines 
``municipalities'' and ``county subdivisions'' to include the areas 
identified as incorporated places (such as cities and villages) and 
minor civil divisions (such as townships and magisterial districts). A 
more complete description appears on pages A-12 and A-13 of Appendix A, 
Census 2000 Geographic Terms and Concepts.

[51 FR 24653, July 8, 1986, as amended at 63 FR 10303, Mar. 3, 1998; 73 
FR 46553, Aug. 11, 2008]



Sec.  70.3  Effect of boundary changes occurring or reported after 
the cutoff dates.

    The Bureau of the Census will not recognize changes in boundaries 
that become effective after January 1, 2010 in taking the 2010 Decennial 
Census; the Bureau of the Census will enumerate the residents of any 
area that are transferred to another jurisdiction after that date and 
report them for the 2010 Census as residents of the area in which they 
resided on January 1, 2010. The Bureau of the Census will not recognize 
in the data tabulations prepared for the 2010 census changes occurring 
on or before January 1, 2010, but not submitted officially to the Bureau 
of the Census until after March 1, 2010 except as necessary to conduct 
decennial census operations.



PART 80_FURNISHING PERSONAL CENSUS DATA FROM CENSUS OF POPULATION 
SCHEDULES--Table of Contents



Sec.
80.1 General requirements.
80.2 Rules pertaining to records of the living.
80.3 Rules applicable to deceased persons and estates.
80.4 Signature of persons unable to sign their name.
80.5 Detrimental use of information.
80.6 False statements.

    Authority: Sec. 1, Pub. L. 83-1158, 68 Stat. 1013 (13 U.S.C. 8).



Sec.  80.1  General requirements.

    (a) Data from records of decennial census of population 
questionnaires pertaining to an individual will be released only in 
accordance with these rules.
    (b) Census information contains only the responses recorded by the 
Census enumerator; no changes of any of these entries have been or can 
be made.
    (c) Requests for information from decennial census of population 
records (herein ``Census Information'') should be made available on Form 
BC-600, which is available from offices at the Census Bureau in 
Suitland, Maryland 20233, and Jeffersonville, Indiana 47131; all county 
courthouses; Social Security Administration field offices; post offices; 
and Immigration and Naturalization Service offices. A letter request--
without Form BC-600--will be accepted only if it contains the 
information necessary to complete a Form BC-600. No application will be 
processed without payment of the required fee as set forth in 15 CFR 
50.5.
    (d) The Bureau may require verification of the identity of the 
applicant requesting Census information and it may require the applicant 
to submit the following notarized statement:

    I, ____________________ (Printed name), do hereby certify that I am 
the individual to

[[Page 308]]

whom the requested record pertains or that I am within the class of 
persons authorized to act on his behalf in accordance with 15 CFR, Part 
80.
 (Signature)____________________________________________________________

                                              (Date)____________________
In the County of________________________________________________________
State of________________________________________________________________
On this ______ day of ________, 19____, ____________________ (Name of 
individual) who is personally known to me, did appear before me and sign 
the above certificate.
 (Signature)____________________________________________________________

                                              (Date)____________________
(S) My commission expires_______________________________________________

    (e) Except as otherwise provided, Census information will be 
provided only to the individual to whom the record pertains. It will 
include the names of the subject and the head of the household, the 
relationship of the subject to the head of the household, and the 
subject's age and birthplace.
    (f) Similar Census information pertaining to other members of a 
household will be furnished only upon written authorization of the 
individual whose record is requested, except as provided in Sec.  80.3.
    (g) Census information will not be furnished to another person 
unless the person to whom the information relates authorizes such 
release in the space provided on the Form BC-600.

(Approved by the Office of Management and Budget under control number 
0607-0117)

[40 FR 53232, Nov. 17, 1975, as amended at 48 FR 56744, Dec. 23, 1983; 
68 FR 42586, July 18, 2003]



Sec.  80.2  Rules pertaining to records of the living.

    (a) An individual who has attained age 18 may request his or her own 
Census information.
    (b) A parent may request Census information for and in behalf of a 
child who has not reached age 18. The request must be signed by one of 
the parents.
    (c) A legal guardian may obtain Census information relating to a 
ward by submitting a certified copy of the order of guardianship 
appointment.

(Approved by the Office of Management and Budget under control number 
0607-0117)

[40 FR 53232, Nov. 17, 1975, as amended at 48 FR 56744, Dec. 23, 1983]



Sec.  80.3  Rules applicable to deceased persons and estates.

    (a) Census information relating to a deceased person may be released 
only to a parent, child, grandchild, brother, sister, spouse, insurance 
beneficiary, or the executor or administrator of a deceased person's 
estate. The request must be signed by a person entitled to receive the 
information as provided herein, state the relationship of the applicant 
to the deceased, and include a certified copy of the death certificate 
or other adequate proof of death. The request of an executor or 
administrator must be accompanied by a certified copy of the court order 
of appointment.
    (b) Except for a spouse, a person related to the deceased person 
through marriage, such as an in-law relationship, is not eligible to 
request Census information on the deceased, whether or not the applicant 
was a member of the household of the deceased.

(Approved by the Office of Management and Budget under control number 
0607-0117)

[40 FR 53232, Nov. 17, 1975, as amended at 48 FR 56744, Dec. 23, 1983]



Sec.  80.4  Signature of persons unable to sign their name.

    A person requesting Census information who is unable to sign his or 
her name shall make an ``X'' mark where signature is required, and the 
mark must be witnessed by two persons who know the applicant. They must 
also sign the application certifying the applicant's identity. In the 
case of such persons who are unable to make an ``X'' mark, Census 
information can be released upon receipt of a physician's sworn 
statement verifying the disability and the written request of a parent, 
brother, sister, child or a spouse.

(Approved by the Office of Management and Budget under control number 
0607-0117)

[40 FR 53232, Nov. 17, 1975, as amended at 48 FR 56744, Dec. 23, 1983]



Sec.  80.5  Detrimental use of information.

    Section 8 of Title 13, United States Code requires that,

In no case shall information furnished under the authority of this 
section be used to the

[[Page 309]]

detriment of the persons to whom such information relates.

[40 FR 53232, Nov. 17, 1975]



Sec.  80.6  False statements.

    Any false statement or forgery on the application or supporting 
papers required to obtain Census information is punishable by a fine 
and/or imprisonment pursuant to section 1001 of Title 18 of the United 
States Code.

(Approved by the Office of Management and Budget under control number 
0607-0117)

[40 FR 53232, Nov. 17, 1975, as amended at 48 FR 56744, Dec. 23, 1983]



PART 90_PROCEDURE FOR CHALLENGING POPULATION ESTIMATES--Table of Contents



Sec.
90.1 Scope and applicability.
90.2 Policy of the Census Bureau.
90.3 Definitions.
90.4 General.
90.5 Who may file a challenge.
90.6 When a challenge may be filed.
90.7 Where to file a challenge.
90.8 Evidence required.
90.9 Review of challenge.

    Authority: 13 U.S.C. 4 and 181.

    Source: 78 FR 259, Jan. 3, 2013, unless otherwise noted.



Sec.  90.1  Scope and applicability.

    Between decennial censuses, the Census Bureau annually prepares 
statistical estimates of the number of people residing in states and 
their governmental units. In general, these estimates are developed by 
updating the population counts produced in the most recent decennial 
census with demographic components of change data and/or other 
indicators of population change. These rules prescribe the 
administrative procedure available to governmental units to request a 
challenge to the most current of these estimates.



Sec.  90.2  Policy of the Census Bureau.

    It is the policy of the Census Bureau to provide the most accurate 
population estimates possible given the constraints of time, money, and 
available statistical techniques. It is also the policy of the Census 
Bureau to provide governmental units the opportunity to seek a review 
and provide additional data to these estimates and to present evidence 
relating to the accuracy of the estimates.



Sec.  90.3  Definitions.

    As used in this part (except where the context clearly indicates 
otherwise) the following definitions shall apply:
    (a) Census Bureau means the U.S. Census Bureau, Department of 
Commerce.
    (b) Population Estimates Challenge means, in accordance with this 
part, the process a governmental unit may use to provide additional 
input data for the Census Bureau's population estimate and the 
submission of substantive documentation in support thereof.
    (c) Director means Director of the Census Bureau, or an individual 
designated by the Director to perform under this part.
    (d) Population estimate means a statistically developed calculation 
of the number of people living in a governmental unit to update the 
preceding census or earlier estimate.
    (e) A governmental unit means the government of a county, 
municipality, township, incorporated place, or other minor civil 
division, which is a unit of general-purpose government below the State.
    (f) A non-functioning county or statistical equivalent means a sub-
state entity that does not function as an active general-purpose 
governmental unit. This situation exists in Connecticut, Rhode Island, 
for selected counties in Massachusetts, and for the Census Areas in 
Alaska.
    (g) For the purposes of this program, an eligible governmental unit 
also includes the District of Columbia and non-functioning counties or 
statistical equivalents represented by a FSCPE member agency.



Sec.  90.4  General.

    This part provides a procedure for a governmental unit to request a 
challenge of a population estimate of the Census Bureau. The Census 
Bureau, upon receipt of the appropriate documentation, will attempt to 
resolve the estimate with the governmental unit.

[[Page 310]]



Sec.  90.5  Who may file a challenge.

    A request for a challenge of a population estimate generated by the 
Census Bureau may be filed only by the chief executive officer or 
highest elected official of a governmental unit. In those instances 
where the FSCPE member agency represents a non-functioning county or 
statistical equivalent, the governor will serve as the chief executive 
officer or highest elected official.



Sec.  90.6  When a challenge may be filed.

    (a) A request for a challenge to a population estimate may be filed 
any time up to 90 days after the release of the estimate by the Census 
Bureau. Publication by the Census Bureau on its Web site 
(www.census.gov) shall constitute release. Documentation requesting a 
challenge of any estimate may also be filed any time up to 90 days after 
the date the Census Bureau, on its own initiative, revises that 
estimate.
    (b) If, however, a governmental unit has a sufficiently meritorious 
reason for not filing in a timely manner, the Census Bureau has the 
discretion to accept the late request.



Sec.  90.7  Where to file a challenge.

    A request for a population estimate challenge must be prepared in 
writing by the governmental unit and filed with the Chief, Population 
Division, Census Bureau, Room 5H174, Mail Stop 8800, Washington, DC 
20233. The governmental unit must designate a contact person who can be 
reached by telephone during normal business hours should questions arise 
with regard to the submitted materials.



Sec.  90.8  Evidence required.

    (a) The governmental unit shall provide whatever evidence it has 
relevant to the request at the time of filing. The Census Bureau may 
request further evidence when necessary. The evidence submitted must be 
consistent with the criteria, standards, and regular processes the 
Census Bureau employs to generate the population estimate. The Census 
Bureau has revised the challenge process to no longer accept estimates 
developed from methods different from those used by the Census Bureau. 
In the revised challenge process, the Census Bureau will only accept a 
challenge when the evidence provided identifies the use of incorrect 
data, processes, or calculations in the estimates.
    (b) For counties and statistical equivalents, the Census Bureau uses 
a cohort-component of change method to produce population estimates. 
Each year, the components of change are updated. These components 
include births, deaths, migration, and change in the group quarters 
population. The Census Bureau will consider a challenge based on 
additional information on one or more of the components of change or 
about the group quarters population in a locality.
    (c) For minor civil divisions and incorporated places, the Census 
Bureau uses a housing unit method to distribute the county population. 
The components in this method include housing units, occupancy rates, 
and persons per household plus an estimate of the population in group 
quarters. The Census Bureau will consider a challenge based on data 
related to changes in an area's housing stock, such as data on 
demolitions, condemned units, uninhabitable units, building permits, or 
mobile home placements or other comparable housing inventory based data. 
The Census Bureau will also consider a challenge based on additional 
information about the group quarters population in a locality.
    (d) The Census Bureau will also provide a guide on its Web site as a 
reference for governmental units to use in developing their data as 
evidence to support a challenge to the population estimate. In addition, 
a governmental unit may address any additional questions by contacting 
the Census Bureau at the address provided in Sec.  90.7.



Sec.  90.9  Review of challenge.

    The Chief, Population Division, Census Bureau, or the Chief's 
designee shall review the evidence provided with the request for the 
population estimate challenge, shall work with the governmental unit to 
verify the data provided by the governmental unit, and evaluate the data 
to resolve the issues raised by the governmental unit. Thereafter, the

[[Page 311]]

Census Bureau shall respond in writing with a decision to accept or deny 
the challenge. In the event that the Census Bureau finds that the 
population estimate should be updated, it will also post the revised 
estimate on the Census Bureau's Web site (www.census.gov).



PART 100_SEAL--Table of Contents



Sec.
100.1 Authority.
100.2 Description.
100.3 Custody.

    Authority: R.S. 161, as amended, sec. 3, 68 Stat. 1012, as amended 
(5 U.S.C. 301, 13 U.S.C. 3).

    Source: 25 FR 2163, Mar. 16, 1960, unless otherwise noted. 
Redesignated at 50 FR 23947, June 7, 1985.



Sec.  100.1  Authority.

    Pursuant to section 3 of Title 13, United States Code, the Bureau of 
the Census official seal and design thereof, which accompanies and is 
made a part of this document, is hereby approved.



Sec.  100.2  Description.

    Seal: On a shield an open book beneath which is a lamp of knowledge 
emitting rays above in base two crossed quills. Around the whole a 
wreath of single leaves, surrounded by an outer band bearing between two 
stars the words ``U.S. Department of Commerce'' in the upper portion and 
``Bureau of the Census'' in the lower portion, the lettering concentric 
with an inner beaded rim and an outer dentilated rim.



Sec.  100.3  Custody.

    The seal shall remain in the custody of the Director, Bureau of the 
Census or such officer or employee of the Bureau as he designates and 
shall be affixed to all certificates and attestations that may be 
required from the Bureau.
[GRAPHIC] [TIFF OMITTED] TC20SE91.004



PART 101_RELEASE OF DECENNIAL CENSUS POPULATION INFORMATION-
-Table of Contents



    Authority: 5 U.S.C. 301; 13 U.S.C. 4, 141, 195; 15 U.S.C. 1512.



Sec.  101.1  Report of tabulations of population to states and localities 
pursuant to 13 U.S.C. 141(c).

    (a)(1) The Secretary of Commerce shall make the final determination 
regarding the methodology to be used in calculating the tabulations of 
population reported to States and localities pursuant to 13 U.S.C. 
141(c). The determination of the Secretary will be published in the 
Federal Register.
    (2) The Secretary shall not make the determination specified in 
paragraph (a)(1) of this section until after he or she receives the 
recommendation of the Director of the Census, together with the report 
of the Executive Steering Committee for A.C.E. Policy, in accordance 
with paragraph (b)(1) of this section.
    (b)(1) The Executive Steering Committee for A.C.E. Policy shall 
prepare a written report to the Director of the Census analyzing the 
methodologies that may be used in making the tabulations of population 
reported to States and localities pursuant to 13 U.S.C. 141(c), and the 
factors relevant to the possible choices of methodology. The Director of 
the Census will forward the Executive Steering Committee for

[[Page 312]]

A.C.E. Policy report and his or her recommendation on methodology, if 
any, to the Secretary of Commerce.
    (2) The recommendation of the Director of the Census, together with 
report of the Executive Steering Committee for A.C.E. Policy described 
in paragraph (b)(1) of this section, shall be released to the public at 
the same time it is delivered to the Secretary. This release to the 
public shall include, but is not limited to, posting of the report on 
the Bureau of the Census website and publication of the report in the 
Federal Register.
    (3) The Executive Steering Committee for A.C.E. Policy is composed 
of the following employees of the Bureau of the Census:
    (i) Deputy Director and Chief Operating Officer;
    (ii) Principal Associate Director and Chief Financial Officer;
    (iii) Principal Associate Director for Programs;
    (iv) Associate Director for Decennial Census (Chair);
    (v) Assistant Director for Decennial Census;
    (vi) Associate Director for Demographic Programs;
    (vii) Associate Director for Methodology and Standards;
    (viii) Chief; Planning, Research, and Evaluation Division;
    (ix) Chief; Decennial Management Division;
    (x) Chief; Decennial Statistical Studies Division;
    (xi) Chief; Population Division; and
    (xii) Senior Mathematical Statistician.

[66 FR 11232, Feb. 23, 2001]

                        PARTS 102	199 [RESERVED]

[[Page 313]]



 CHAPTER II--NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY, DEPARTMENT 
                               OF COMMERCE




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

                   SUBCHAPTER A--MEASUREMENT SERVICES
Part                                                                Page
200             Policies, services, procedures, and fees....         315
               SUBCHAPTER B--STANDARD REFERENCE MATERIALS
230             Standard reference materials................         324
              SUBCHAPTER C--TRANSCRIPT SERVICES [RESERVED]
                   SUBCHAPTER D--STANDARDS FOR BARRELS
240             Barrels and other containers for lime.......         326
241             Barrels for fruits, vegetables and other dry 
                    commodities, and for cranberries........         328
            SUBCHAPTER E--FELLOWSHIPS AND RESEARCH ASSOCIATES
255             Fellowships in laboratory standardization 
                    and testing for qualified citizens of 
                    other American Republics................         333

[[Page 314]]

256             Research Associate Program..................         334
         SUBCHAPTER F--REGULATIONS GOVERNING TRAFFIC AND CONDUCT
265             Regulations governing traffic and conduct on 
                    the grounds of the National Institute of 
                    Standards & Technology, Gaithersburg, 
                    Maryland, and Boulder and Fort Collins, 
                    Colorado................................         336
            SUBCHAPTER G--NATIONAL CONSTRUCTION SAFETY TEAMS
270             National construction safety teams..........         340
     SUBCHAPTER H--MARKING OF TOY, LOOK-ALIKE AND IMITATION FIREARMS
272             Marking of toy, look-alike and imitation 
                    firearms................................         352
       SUBCHAPTER I--METRIC CONVERSION POLICY FOR FEDERAL AGENCIES
273             Metric conversion policy for Federal 
                    agencies................................         354
           SUBCHAPTER J--ACCREDITATION AND ASSESSMENT PROGRAMS
280             Fastener quality............................         356
285             National Voluntary Laboratory Accreditation 
                    Program.................................         371
286             National Voluntary Conformity Assessment 
                    System Evaluation (NVCASE) Program......         376
287             Guidance on Federal conformity assessment...         379
                 SUBCHAPTER K--NIST EXTRAMURAL PROGRAMS
290             Regional Centers for the Transfer of 
                    Manufacturing Technology................         382
291             Manufacturing extension partnership; 
                    environmental projects..................         386
292             Manufacturing extension partnership; 
                    infrastructure development projects.....         395
295             Advanced Technology Program.................         402
296             Technology Innovation Program...............         411
297-299

[Reserved]

[[Page 315]]



                    SUBCHAPTER A_MEASUREMENT SERVICES





PART 200_POLICIES, SERVICES, PROCEDURES, AND FEES--Table of Contents



Sec.
200.100 Statutory functions.
200.101 Measurement research.
200.102 Types of calibration and test services.
200.103 Consulting and advisory services.
200.104 Standard reference materials.
200.105 Standard reference data.
200.106 Publications.
200.107 WWV-WWVH-WWVB broadcasts.
200.108 Request procedure.
200.109 Shipping, insurance, and risk of loss.
200.110 Priorities and time of completion.
200.111 Witnessing of operations.
200.112 Reports.
200.113 Use of results or reports.
200.114 Fees and bills.
200.115 Description of services and list of fees, incorporation by 
          reference.

    Authority: Sec. 9, 31 Stat. 1450, as amended; 15 U.S.C. 277. 
Interprets or applies sec. 7, 31 Stat. 1450; 15 U.S.C. 275a.

    Source: 45 FR 55166, Aug. 19, 1980, unless otherwise noted.



Sec.  200.100  Statutory functions.

    (a) The National Institute of Standards & Technology (NIST) has been 
assigned the following functions (15 U.S.C. 271 et seq.):
    (1) The custody, maintenance, and development of the national 
standards of measurement, and the provision of means and methods for 
making measurements consistent with those standards, including the 
comparison of standards used in scientific investigations, engineering, 
manufacturing, commerce, and educational institutions with the standards 
adopted or recognized by the Government.
    (2) The determination of physical constants and properties of 
materials when such data are of great importance to scientific or 
manufacturing interests and are not to be obtained with sufficient 
accuracy elsewhere.
    (3) The development of methods for testing materials, mechanisms, 
and structures, and the testing of materials, supplies, and equipment, 
including items purchased for use of Government departments and 
independent establishments.
    (4) Cooperation with other governmental agencies and with private 
organizations in the establishment of standard practices, incorporated 
in codes and specifications.
    (5) Advisory service to Government agencies on scientific and 
technical problems.
    (6) Invention and development of devices to serve special needs of 
the Government.
    (b) The calibration and testing activities of NIST stem from the 
functions in paragraphs (a) (1) and (3) of this section. NIST provides 
the central basis within the United States for a complete and consistent 
system of measurement; coordinates that system, and the measurement 
systems of other nations; and furnishes essential services leading to 
accurate and uniform physical measurements throughout this Nation's 
scientific community, industry, and commerce.
    (c) The provision of standard reference materials for sale to the 
public is assigned to the Office of Standard Reference Materials of the 
National Measurement Laboratory, NIST. That Office evaluates the 
requirements of science and industry for carefully characterized 
reference materials, stimulates efforts of NIST to develop methods for 
production of needed reference materials and directs their production 
and distribution. For further information on standard reference 
materials see Subchapter B, Chapter II, Part 230, of this title.



Sec.  200.101  Measurement research.

    (a) The NIST staff continually reviews the advances in science and 
the trends in technology, examines the measurement potentialities of 
newly discovered physical phenomena, and uses these to devise and 
improve standards, measuring devices, and measurement techniques. As new 
requirements appear, there are continual shifts of program emphasis to 
meet the most urgent needs for the measurement of additional quantities, 
extended ranges, or improved accuracies.
    (b) The basic research and development activities of NIST are 
primarily

[[Page 316]]

funded by direct appropriations, and are aimed at meeting broad general 
needs. NIST may also undertake investigations or developments to meet 
some specialized physical measurement problem of another Government 
agency, industrial group, or manufacturing firm, using funds supplied by 
the requesting organization.



Sec.  200.102  Types of calibration and test services.

    (a) NIST has developed instrumentation and techniques for realizing 
standards for the seven base units of the International System of Units, 
as agreed upon by the General Conference of Weights and Measures. 
Reference standards have been established not only for these seven base 
units, but also for many derived quantities and their multiples and 
submultiples. Such reference standards, or equivalent working standards, 
are used to calibrate laboratory and plant standards for other 
organizations. Accuracy is maintained by stability checks, by comparison 
with the standards of other national and international laboratories, and 
by the exploration of alternative techniques as a means of reducing 
possible systematic error.
    (b) Calibrations for many types of instruments and ranges of 
physical quantities are described in the NIST Special Publication 250 
(SP 250). (See Sec.  200.115 for details relating to the description of 
service items and listing of fees.)
    (c) In recent years NIST has offered to the public new measurement 
services called measurement assurance programs. These programs are 
designed for laboratories whose measurement process involves the 
calibration of other standards. A measurement assurance program is a 
measurement quality control process. By use of carefully designed 
redundant measurements and measurements made on NIST transport standards 
a total uncertainty of the laboratories measurement process can be 
determined by NIST. The results of these tests are then reported to the 
customer as uncertainties of the customer's measurements relative to 
national standards.
    (d) Special measurements not listed in SP 250 may be made upon 
request. These might involve unusual physical quantities, upper or lower 
extremes of range, higher levels of accuracy, fast response speeds, 
short durations, broader ranges of associated parameters, or special 
environmental conditions. Such inquiries should describe clearly the 
measurement desired. Indication of the scientific or economic basis for 
the requirements to be satisfied will be helpful in determining future 
NIST programs. Fees for work accepted will be based upon actual costs 
incurred.
    (e) The principal emphasis of NIST is on those calibrations and 
other tests requiring such accuracy as can be obtained only by direct 
comparison with its standards.
    (f) Other services which may be obtained include:
    (1) Tests of measuring instruments to determine compliance with 
specifications or claims, when the evaluation is critical in national 
scientific or technical operations, and when suitable facilities are not 
available elsewhere; and
    (2) Referee tests in important cases when clients are unable to 
agree upon the method of measurement, the results of tests, or the 
interpretation of these results, but have agreed in advance in writing 
to accept and abide by the findings of NIST.
    (g) NIST reserves the right to decline any request for services if 
the work would interfere with other activities deemed by the Director to 
be of greater importance. In general, measurement services are not 
provided when available from commercial laboratories.
    (h) Suggestions will be offered on measurement techniques and on 
other sources of assistance on calibration or measurement problems when 
the equipment and personnel of NIST are unable to undertake the work. 
The National Conference of Standards Laboratories issues a Directory of 
Standards Laboratories in the United States which perform calibration 
work (obtainable from NCSL Secretariat, c/o National Institute of 
Standards & Technology, Boulder, CO 80303). Those laboratories which 
perform testing are listed in the ASTM Directory of Testing 
Laboratories, Commercial and Institutional. (Directory available from 
the

[[Page 317]]

Amercian Society for Testing and Materials, 1916 Race Street, 
Philadelphia, PA 19103.) Similar listings appear in buyer's guides for 
commercial products and in technical journals concerned with physical 
measurement.



Sec.  200.103  Consulting and advisory services.

    (a) In areas of its special competence, NIST offers consulting and 
advisory services on various problems related to measurement, e.g., 
details of design and construction, operational aspects, unusual or 
extreme conditions, methods of statistical control of the measurement 
process, automated acquisition of laboratory data, and data reduction 
and analysis by computer. Brief consultation may be obtained at no 
charge; the fee for extended effort will be based upon actual costs 
incurred. The services outlined in this paragraph do not include 
services in connection with legal proceedings not involving the United 
States as a named party, nor to testimony or the production of data, 
information, or records in such legal proceedings which is governed by 
the policies and procedures set forth in Subchapter H, Chapter II, Part 
275, of this title.
    (b) To enhance the competence of standards laboratory personnel, 
NIST conducts at irregular intervals several group seminars on the 
precision measurement of specific types of physical quantities, offering 
the opportunity of laboratory observation and informal discussion. A 
brochure describing the current series of seminars can be obtained by 
writing the Office of Measurement Services, National Institute of 
Standards & Technology, Washington, DC 20234.



Sec.  200.104  Standard reference materials.

    Often the performance of a device or structure can be evaluated at 
the user's laboratory by comparing its response to unknown materials 
with its response to a stable, homogeneous reference specimen which has 
been well-characterized with regard to the physical or chemical property 
being measured. For information regarding carefully characterized 
materials see Subchapter B, Chapter II, Part 230, of this title. The 
Office of Standard Reference Materials in the NIST National Measurement 
Laboratory administers a program to provide many types of well-
characterized materials that are needed to calibrate a measurement 
system or to produce scientific data that can be readily referred to a 
common base. NIST SP 260 is a catalog of Standard Reference Materials 
available from NIST.



Sec.  200.105  Standard reference data.

    Data on the physical and chemical properties of the large variety of 
substances used in science and technology need to be compiled and 
evaluated for application in research, development, engineering design, 
and commerce. The Office of Standard Reference Data (OSRD) in the NIST 
National Measurement Laboratory provides coordination of and access to a 
number of governmental and nongovernmental data centers throughout this 
country and the world which are responsive to user needs for data. The 
OSRD's present program is assembled under a series of tasks which 
include data for application in energy, environment and health, 
industrial process design, materials durability, and resource recovery. 
The subject data are disseminated as hard-copy information in the 
Journal of Physical and Chemical Reference Data, published jointly with 
the American Chemical Society and the American Institute of Physics, in 
the National Standard Reference Data System reports as the NSRDS-NIST 
series, and as NIST special reports. Magnetic tapes of data on selected 
topics are also issued through the OSRD and the National Technical 
Information Service. A newsletter, ``Reference Data Report,'' is issued 
bimonthly describing current activities. Information concerning the 
above is available upon request from the OSRD.



Sec.  200.106  Publications.

    Publications provide the primary means of communicating the results 
of the NIST programs and services to its varied technical audiences, as 
well as to the general public. NIST issues some fifteen categories of 
publications including three periodicals, ten non-periodicals series, 
interagency reports, and

[[Page 318]]

papers in the journals and books of professional organizations, 
technological associations, and commercial publications. The calibration 
services, standard reference materials and related measurement services 
along with changes and fees are published in two Special Publications 
(SP's) and their supplements. These are SP 250 ``Calibration and Related 
Measurement Services of the National Institute of Standards & 
Technology'' \1\ and SP 260 ``NIST Standard Reference Materials 
Catalog.'' \1\ A complete catalog of all publications by NIST authors is 
issued annually as a supplement to SP 305 ``Publications of the National 
Institute of Standards & Technology.'' Announcements and listings of 
recent NIST publications and services are published in each issue of the 
bimonthly ``NIST Journal of Research'' \2\ and the NIST monthly 
magazine, ``Dimensions/NIST'' \2\. Complete citations to NIST 
publications, along with information on availability are published 
bimonthly in the ``NIST Publications Newsletter'', available free from 
the Technical Information and Publications Division, National Institute 
of Standards & Technology, Washington, DC 20234. NIST publications are 
also announced (with abstracts) in ``Government Reports Announcements 
and Index'' published every two weeks by the National Technical 
Information Service (NTIS), Springfield, Virginia 22161 \3\. NTIS also 
sells microfiche copies of all NIST GPO-published documents, as well as 
paper copy and microfiche versions of NIST Interagency Reports.
---------------------------------------------------------------------------

    \1\ Single copies available free from the National Institute of 
Standards & Technology, Washington, DC 20234.
    \2\ For sale by the Superintendent of Documents, U.S. Government 
Printing Office, Washington, DC 20402, for a subscription price. The 
annual subscription price for the NIST Journal of Research on the date 
of the publication of these regulations is $13.00 and for Dimensions/
NIST it is $11.00. Prices, however, for these publications are subject 
to change without notice.
    \3\ The annual subscription rate at the date of the publication of 
these regulations for this service is $275.00, North American Continent, 
$375.00 all others.
---------------------------------------------------------------------------



Sec.  200.107  WWV-WWVH-WWVB broadcasts.

    (a) Technical services. The NIST radio stations WWV at Fort Collins, 
Colorado, and WWVH on the island of Kauai, Hawaii, broadcast a number of 
technical services continuously night and day. These services are:
    (1) Standard radio frequencies, 2.5, 5, 10, 15, and 20, MHz (WWV) 
and 2.5, 5, 10, and 15 MHz (WWVH); (2) standard time signals; (3) time 
intervals; (4) UTI corrections; (5) standard audio frequencies; (6) 
standard musical pitch; (7) a slow time code; (8) Omega Navigation 
System status reports; (9) geophysical alerts; and (10) marine storm 
warnings. NIST also broadcasts time and frequency signals from its low 
frequency station, WWVB, also located at Fort Collins, Colorado.
    (2) [Reserved]
    (b) Time announcements. Once per minute voice announcements are made 
from WWV and WWVH. The two stations are distinguished by a female voice 
from WWVH and a male voice from WWV. The WWVH announcement occurs first, 
at 15 seconds before the minute, while the WWV announcement occurs at 
7\1/2\ seconds before the minute. Coordinated Universal Time (UTC) is 
used in these announcements.
    (c) Time corrections. The UTC time scale operates on atomic 
frequency, but by means of step adjustments is made to approximate the 
astronomical UTI scale. It may disagree from UTI by as much as 0.9 
second before step adjustments of exactly 1 second are made. These 
adjustments, or leap seconds are required about once per year and will 
usually be made on December 31 or June 30. For those who need 
astronomical time more accurately than 0.9 second, a correction to UTC 
is encoded by the use of double ticks after the start of each minute. 
The first through the eighth seconds ticks will indicate a ``plus'' 
correction, and from the ninth through the 16th a ``minus'' correction. 
The correction is determined by counting the number of double ticks. For 
example, if the first, second, and third ticks are doubled, the 
correction is ``plus'' 0.3 second. If the ninth, 10th, 11th, and 12th 
ticks are doubled, the correction is ``minus'' 0.4 second.

[[Page 319]]

    (d) Standard time intervals. An audio pulse (5 cycles of 1000 Hz on 
WWV and 6 cycles of 1200 Hz on WWVH), resembling the ticking of a clock, 
occurs each second of the minute except on the 29th and 59th seconds. 
Each of these 5-millisecond second pulses occur within a 40-millisecond 
period, wherein all other modulation (voice or tone) is removed from the 
carrier. These pulses begin 10 milliseconds after the modulation 
interruption. A long pulse (0.8 second) marks the beginning of each 
minute.
    (e) Standard frequencies. All carrier and audio frequencies occur at 
their nominal values according to the International System of Units 
(SI). For periods of 45-second duration, either 500-Hz or 600-Hz audio 
tones are broadcast in alternate minutes during most of each hour. A 
440-Hz tone, the musical pitch A above middle C, is broadcast once per 
hour near the beginning of the hour.
    (f) Accuracy and stability. The time and frequency broadcasts are 
controlled by the NIST atomic frequency standards, which realize the 
internationally defined cesium resonance frequency with an accuracy of 1 
part in 10 \13\. The frequencies transmitted by WWV and WWVH are held 
stable to better than 2 parts in 10 \11\ at all 
times. Deviations at WWV are normally less than 1 part in 10 \12\ from 
day to day. Incremental frequency adjustments not exceeding 1 part in 10 
\12\ are made at WWV and WWVH as necessary. Changes in the propagation 
medium (causing Doppler effect, diurnal shifts, etc.) result in 
fluctuations in the carrier frequencies as received which may be very 
much greater than the uncertainties described above.
    (g) Slow time code. A modified IRIG H time code occurs continuously 
on a 100-Hz subcarrier. The format is 1 pulse per second with a 1-minute 
time frame. It gives day of the year, hours, and minutes in binary coded 
decimal form.
    (h) Omega announcements. Omega Navigation System status reports are 
broadcast in voice from WWV at 16 minutes after the hour and from WWVH 
at 47 minutes after the hour. The international Omega Navigation System 
is a very low frequency (VLF) radio navigation aid operating in the 10 
to 14 kHz frequency band. Eight stations are in operation around the 
world. Omega, like other radio navigation systems, is subject to signal 
degradation caused by ionospheric disturbances at high latitudes. The 
Omega announcements on WWV and WWVH are given to provide users with 
immediate notification of such events and other information on the 
status of the Omega system.
    (i) Geophysical alerts. These occur in voice at the 18th minute of 
each hour from WWV. They point out outstanding events which are in 
process, followed by a summary of selected solar and geophysical events 
in the past 24 hours and a forecast for the next 24 hours. They are 
provided by the Space Environment Laboratory, National Oceanic and 
Atmospheric Administration, Boulder, CO 80303.
    (j) Marine storm information. Weather information about major storms 
in the Atlantic and eastern North Pacific are broadcast in voice from 
WWV at 8, 9, and 10 minutes after each hour. Similar storm warnings 
covering the eastern and central North Pacific are given from WWVH at 
48, 49, and 50 minutes after each hour. An additional segment (at 11 
minutes after the hour on WWV and at 51 minutes on WWVH) may be used 
when there are unusually widespread storm conditions. The brief messages 
are designed to tell mariners of storm threats in their areas. If there 
are no warnings in the designated areas, the broadcasts will so 
indicate. The ocean areas involved are those for which the U.S. has 
warning responsibility under international agreement. The regular times 
of issue by the National Weather Service are 0500, 1100, 1700, and 2300 
UTC for WWV and 0000, 0600, 1200, and 1800 UTC for WWVH. These 
broadcasts are updated effective with the next scheduled announcement 
following the time of issue.
    (k) ``Silent'' periods. These are periods with no tone modulation 
during which the carrier, seconds ticks, minute time announcements, and 
100 Hz modified IRIG H time code continue. They occur during the 16th 
through the 20th minute on WWVH and the 46th through the 51st minute on 
WWV.
    (l) WWVB. This station (antenna coordinates 40[deg]40[min]28.3[sec] 
N., 105[deg]02[min]39.5[sec] W.; radiated power 12 kw.) broadcasts on 60

[[Page 320]]

kHz. Its time scale is the same as for WWV and WWVH, and its frequency 
accuracy and stability are the same. Its entire format consists of a 1 
pulse per second special binary time code giving minutes, hours, days, 
and the correction between its UTC time scale and UTI astronomical time. 
Identification of WWVB is made by its unique time code and a 45[deg] 
carrier phase shift which occurs for the period between 10 minutes and 
15 minutes after each hour. The useful coverage area of WWVB is within 
the continental United States. Propagation fluctuations are much less 
with WWVB than with high-frequency reception, permitting frequency 
comparisons to be made to a few parts in 10 \11\ per day.
    (m) Special Publication 432. This publication describes in detail 
the standard frequency and time service of NIST. Single copies may be 
obtained at no charge upon request from the National Institute of 
Standards & Technology, Time & Frequency Services Group, 524.06, 
Boulder, CO 80303. Quantities may be obtained from the Superintendent of 
Documents, U.S. Government Printing Office, Washington, DC 20402, at a 
nominal charge per copy.



Sec.  200.108  Request procedure.

    (a) A formal purchase order for the calibration or test should be 
sent before or at the time the instrument or standard is shipped. The 
purchase order should provide clear identification of the apparatus 
being submitted, and give separate instructions for return shipment, 
mailing of report, and billing. If a customer wishes to minimize the 
time during which the equipment is out of service, the customer can 
usually arrange to be notified of the scheduled test date to allow 
timely shipment. (See Sec.  200.110.) Requests from Federal agencies, or 
from State agencies, for calibrations or tests on material to be used on 
private or Federal contract work should be accompanied either by 
purchase order or by letter or document authorizing the cost of the work 
to be billed to the agency.
    (b) The submission of a purchase order for measurement services 
under this subchapter shall be understood as constituting an agreement 
on the part of the customer to be bound by the restrictions on the use 
of results as set forth in Sec.  200.113 of this part. Acceptance of 
purchase orders does not imply acceptance of any provisions set forth in 
the order contrary to the policy, practice, or regulations of NIST or 
the U.S. Government. (A statement to the effect that NIST is an agency 
of the U.S. Government should satisfy other Government agencies with 
regard to compliance with Government regulations and Executive orders.)
    (c) A test number will be assigned by NIST to each instrument or 
group of similar instruments or standards when the order is accepted. 
This test number should be referred to in all subsequent communications. 
Also, each instrument in a group must be uniquely identified, usually by 
the manufacturer's name and instrument serial number. When the serial 
number is lacking, an alternative identifying mark should be provided. 
If none is found, NIST will mark the piece with an NIST identification 
number. If the apparatus submitted has been previously calibrated by 
NIST, the serial number or identifying mark should be given on the new 
order, so that a continuing record of stability history can be 
established.
    (d) Inquiries for measurement services should be directed to the 
NIST address listed in the various sections of the Appendix to SP 250.



Sec.  200.109  Shipping, insurance, and risk of loss.

    (a) Shipment of apparatus to NIST for calibration or other test 
should be made only after the customer has accepted the estimate of cost 
and the tentative scheduling. Repairs and adjustments on apparatus 
submitted should be attended to by the owner, since NIST will not 
undertake them except by special arrangement. Apparatus not in good 
condition will not be calibrated. If defects are found after calibration 
has begun, the effort may be terminated, a report issued summarizing 
such information as has been found, and a fee charged in accordance with 
the amount of work done.
    (b) The customer should pack apparatus sent to NIST so as to 
minimize the likelihood of damage in shipment and handling. Suggestions 
on packing and shipping are made in some sections

[[Page 321]]

of SP 250. In every case, the sender should consider the nature of the 
apparatus, pack it accordingly, and clearly label shipments containing 
fragile instruments or materials, such as glass and the like.
    (c) To minimize damage during shipment resulting from inadequate 
packing, the use of strong reusable containers is recommended. As an aid 
in preventing loss of such containers, the customer's name should be 
legibly and permanently marked on the outside. In order to prolong the 
container's use the notation ``REUSABLE CONTAINER, DO NOT DESTROY'' 
should be marked on the outside.
    (d) Shipping and insurance coverage instructions should be clearly 
and legibly shown on the purchase order for the calibration or test. The 
customer must pay shipping charges to and from NIST; shipments from NIST 
will be made collect. The method of return transportation should be 
stated, and it is recommeded that return shipments be insured, since 
NIST will not assume liability for their loss or damage. For long-
distance shipping it is found that air express and air freight provide 
an advantage in reduction of time in transit. If return shipment by 
parcel post is requested or is a suitable mode of transportation, 
shipments will be prepaid by NIST, but without covering insurance. When 
no shipping or insurance instructions are furnished, return shipment 
will be made by common carrier collect, but uninsured.
    (e) NIST will not be responsible for the risk of loss or damage to 
any item during shipment to or from NIST. Any arrangements for insurance 
covering this risk must be made by the customer. Return shipment will be 
made by NIST as indicated in paragraph (d) of this section. The purchase 
order should always show the value of the equipment, and if transit 
insurance is carried by the customer, this fact should be stated.
    (f) The risk of loss or damage in handling or testing of any item by 
NIST must be assumed by the customer, except when it is determined by 
NIST that such loss or damage was occasioned solely by the negligence of 
NIST personnel.
    (g) When a test number has been assigned prior to shipment to NIST, 
this number should be clearly marked on the shipping container. When a 
test number has not been assigned, an invoice, copy of the purchase 
order, or letter should be enclosed in the shipment to insure proper 
identification. The original purchase order should be forwarded as 
appropriate to:

Office of Measurement Services, National Institute of Standards & 
Technology, Washington, DC 20234; or to Measurement Services Clerk, 
National Institute of Standards & Technology, Boulder, CO 80303.

    (h) The calibrations listed in SP 250 are performed at Boulder, 
Colorado and Gaithersburg, Maryland.



Sec.  200.110  Priorities and time of completion.

    Schedule work assignments for calibrations and other tests will 
generally be made in the order in which confirmed requests are received. 
However, Government work may be given priority. On the regular services, 
the workload is usually such that the turn-around interval, between the 
date a customer's apparatus is received and the date it is prepared for 
return shipment, will be not more than 45 days. Some types of 
instruments may require considerably longer, particularly if their 
abnormal behavior requires reruns to check reliability. The customer who 
can spare the instrument for only a short time can usually arrange by 
letter or telephone call for shipping it to NIST just as the assigned 
starting date approaches. A notice will be sent acknowledging receipt of 
the customer's standard and/or purchase order. If both a confirmed 
purchase order (or equivalent) and the apparatus have been received, 
estimates of the completion date and the calibration fee will be sent 
upon request.



Sec.  200.111  Witnessing of operations.

    NIST welcomes scientists and engineers who may wish to visit its 
laboratories and discuss its methods. Ordinarily visitors will not be 
permitted to witness the actual carrying out of highly precise 
measurements because their presence introduces distraction that may lead 
to errors or delays. This policy may be waived in those cases

[[Page 322]]

where NIST determines that the visitor can be of service in setting up 
apparatus of a new or unusual nature, in the case of referee tests, or 
in other cases in which the legal validity of the result may require the 
presence of duly authorized witnesses.



Sec.  200.112  Reports.

    (a) Results of calibrations and other tests are issued to the 
customer as formal reports entitled, ``National Institute of Standards & 
Technology Report of Calibration,'' ``National Institute of Standards & 
Technology Report of Test,'' or ``National Institute of Standards & 
Technology Report of Analysis,'' as appropriate. Copies are not supplied 
to other parties except under applicable Federal law. Whenever formal 
certification is required by law, or to meet special conditions adjudged 
by NIST to warrant it, a letter will be provided certifying that the 
particular item was received and calibrated or tested, and identifying 
the report containing the results.
    (b) NIST reports of calibration generally include in sentence form a 
statement of the uncertainty attached to the numerical values reported. 
Limits of uncertainty usually comprise an estimate of systematic error 
plus a value of imprecision. Details on how these estimates are arrived 
at are in many cases included in the calibration report. Additional 
information may be found in SP 250.
    (c) The NIST practice is to express data given in calibration or 
test reports in the SI or International System of Units. The 
International System of Units (SI) was defined and given official status 
by the 11th General Conference of Weights and Measures, 1960. A complete 
listing of SI units is presented in detail in NIST SP 330. The NIST will 
express data in SI units unless this makes communication excessively 
complicated. For example, commercial gage designations, commonly used 
items identified by nominal dimensions, or other commercial 
nomenclatures or devices (such as drill sizes, or commercial standards 
for weights and measures) expressed in customary units are an exception 
from this practice. However, even in such instances, when practical and 
meaningful, SI and customary units may be given in parallel. Users of 
NIST calibration services may specify the units to be used in the 
calibration, especially for commercial devices and standards using 
customary units or units having some legal definition.



Sec.  200.113  Use of results or reports.

    (a) As the national standards laboratory of the United States, NIST 
maintains and establishes the primary standards from which measurements 
in science and industry ultimately derive. It is therefore sometimes 
desirable for manufacturers or users of measurement standards to make 
appropriate reference to the relationship of their calibrations to NIST 
calibrations. The following considerations must be borne in mind, and 
shall be understood as constituting an agreement on the part of the NIST 
customer to be bound thereby in making reference to NIST calibration and 
test reports.
    (b) The results of calibrations and tests performed by NIST are 
intended solely for the use of the organization requesting them, and 
apply only to a particular device or specimen at the time of its test. 
The results shall not be used to indicate or imply that they are 
applicable to other similar items. In addition, such results must not be 
used to indicate or imply that NIST approves, recommends, or endorses 
the manufacturer, the supplier, or the user of such devices or 
specimens, or that NIST in any way ``guarantees'' the later performance 
of items after calibration or test.
    (c) NIST declares it to be in the national interest that it maintain 
an impartial position with respect to any commercial product. 
Advertising the findings on a single instrument could be misinterpreted 
as an indication of performance of other instruments of identical or 
similar type. There will be no objection, however, to a statement that 
the manufacturer's primary standards have been periodically calibrated 
by NIST, if this is actually the case, or that the customer might 
arrange to have NIST calibrate the item purchased from the manufacturer.
    (d) NIST does not approve, recommend, or endorse any proprietary 
product or proprietary material. No

[[Page 323]]

reference shall be made to NIST, or to reports or results furnished by 
NIST in any advertising or sales promotion which would indicate or imply 
that NIST approves, recommends, or endorses any proprietary product or 
proprietary material, or which has as its purpose an intent to cause 
directly or indirectly the advertised product to be used or purchased 
because of NIST test reports or results.

In its own activities as a scientific institution, NIST uses many 
different materials, products, types of equipment, and services. This 
use does not imply that NIST has given them a preferential position or a 
formal endorsement. Therefore, NIST discourages references, either in 
advertising or in the scientific literature, which identify it as a user 
of any proprietary product, material, or service. Occasionally, 
effective communication of results by NIST to the scientific community 
requires that a proprietary instrument, product, or material be 
identified in an NIST publication. Reference in an NIST publication, 
report, or other document to a proprietary item does not constitute 
endorsement or approval of that item and such reference should not be 
used in any way apart from the context of the NIST publication, report, 
or document without the advance express written consent of NIST.



Sec.  200.114  Fees and bills.

    (a) In accordance with 15 U.S.C. 271 et seq., fees are charged for 
all measurement services performed by NIST, unless waived by the 
Director, or the Director's designee, when deemed to be in the interest 
of the Government. The above-mentioned statutes authorize the issuance 
from time to time of appropriate regulations regarding the payment of 
fees, the limits of tolerance on standards submitted for verification, 
and related matters.
    (b) The minimum fee for any service request accepted by NIST is $10, 
unless otherwise indicated in SP 250. If apparatus is returned without 
testing, a minimum charge of $10 may be made to cover handling. Charges 
commensurate with the work performed will be assessed for calibrations 
which cannot be completed because of faulty operation of the customer's 
device. Fees for calibrations or tests include the cost of preparation 
of an NIST report. Remittances should be made payable to the National 
Institute of Standards & Technology.



Sec.  200.115  Description of services and list of fees, incorporation
by reference.

    (a) NIST Special Publication 250, ``Calibration and Related 
Measurement Services of the National Institute of Standards & 
Technology'' is hereby incorporated by reference, pursuant to 5 U.S.C. 
552(a)(1) and 1 CFR Part 51. SP 250 states the authority under which 
NIST performs various types of measurement services including 
calibrations and tests and charges fees therefor, states the general 
conditions under which the public may secure such services, decribes 
these services in considerable detail, and lists the fees to be charged, 
and sets out the instructions for requesting them in an appendix which 
is reviewed, revised and reissued semi-annually (December and June). The 
Director, Office of the Federal Register, approved the incorporation by 
reference on December 28, 1967.
    (b) SP 250 is available at the following places:
    (1) Superintendent of Documents, Government Printing Office, 
Washington, DC 20402.
    (2) Technical Information and Publications Division, National 
Institute of Standards & Technology, Washington, DC 20234.
    (3) District Offices of the U.S. Department of Commerce.
    (4) Federal Depository Libraries.
    (c) Revisions of SP 250 will be issued from time to time by the 
National Institute of Standards & Technology, Washington, DC 20234.
    (d) Further information concerning policies, procedures, services, 
and fees may be obtained by writing the Office of Measurement Services, 
National Institute of Standards & Technology, Washington, DC 20234.

[[Page 324]]



                SUBCHAPTER B_STANDARD REFERENCE MATERIALS





PART 230_STANDARD REFERENCE MATERIALS--Table of Contents



                      Subpart A_General Information

Sec.
230.1 Introduction.
230.2 Identification of Standard Reference Materials.
230.3 New Standard Reference Materials.

                      Subpart B_Purchase Procedure

230.4 Ordering.
230.5 Terms and shipping.
230.6 Standard Reference Materials out of stock.

           Subpart C_Description of Services and List of Fees

230.7 Description of services and list of fees, incorporation by 
          reference.

    Authority: Sec. 9, 31 Stat. 1450, as amended; 15 U.S.C. 277. 
Interprets and applies sec. 7, 70 Stat. 959; 15 U.S.C. 275a.

    Source: 41 FR 8472, Feb. 27, 1976, unless otherwise noted.



                      Subpart A_General Information



Sec.  230.1  Introduction.

    This part states the procedure for ordering Standard Reference 
Materials (SRM's) issued by the National Institute of Standards & 
Technology. SRM's are used to calibrate measurement systems, evaluate 
measurement methods, or produce scientific data that can be referred to 
a common base. NIST Special Publication 260, ``Catalog of NIST Standard 
Reference Materials,'' lists and describes the SRM's issued by NIST. SP 
260 is periodically revised to include new SRM's and eliminate those 
that have been discontinued. Between editions of SP 260, supplements are 
issued that list new or renewal SRM's not listed in SP 260. In addition, 
these supplements list the fees charged for available SRM's.

[41 FR 8472, Feb. 27, 1976, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  230.2  Identification of Standard Reference Materials.

    The SRM's are listed by category in SP 260 and by sequential number 
in the supplements. The number uniquely identifies a particular SRM. 
Renewals are indicated by the addition of a letter to the original 
number. Thus, 11a is the first, 11b the second, and 11c the third 
renewal of SRM 11, Basic Open-Hearth Steel, 0.2 percent carbon. In this 
way, a particular number or number and letter always represent a 
material of fixed or approximately fixed composition.



Sec.  230.3  New Standard Reference Materials.

    When new SRM's or renewals of old ones are issued, announcements are 
made in SP 260, its supplement, and in scientific and trade journals.



                      Subpart B_Purchase Procedure



Sec.  230.4  Ordering.

    Orders should be addressed to the Office of Standard Reference 
Materials, National Institute of Standards & Technology, Washington, DC 
20234. Orders should give the amount (number of units), catalog number 
and name of the standard requested. For example: 1 each, SRM 11h, Basic 
Open-Hearth Steel, 0.2 percent C. These materials are distributed only 
in the units listed.

[41 FR 8472, Feb. 27, 1976, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  230.5  Terms and shipping.

    (a) Prices are given in the SP 260 supplement. These prices are 
subject to revision and orders will be billed for prices in effect at 
the time of shipment. No discounts are given on purchases of SRM's.
    (b) Payment need not accompany a purchase order. Payment is due 
within 30 days of receipt of an invoice.
    (c) SRM's are shipped in the most expeditious manner that complies 
with transportation and postal laws and regulations.

[[Page 325]]



Sec.  230.6  Standard Reference Materials out of stock.

    Orders for out-of-stock SRM's will be returned with information as 
to future availability.



           Subpart C_Description of Services and List of Fees



Sec.  230.7  Description of services and list of fees, incorporation
by reference.

    (a) The text of NIST Special Publication 260, ``Catalog of NIST 
Standard Reference Materials,'' and its supplement are hereby 
incorporated by reference pursuant to 5 U.S.C. 552(a)(1) and 1 CFR Part 
51.
    (b) SP 260 describes the SRM's that are available and states the 
procedure for ordering the materials. SP 260 is available at the 
following places:

Superintendent of Documents, Government Printing Office, Washington, DC 
20402.

Office of Standard Reference Materials, National Institute of Standards 
& Technology, Washington, DC 20234.

    (c) Supplements are issued when needed to reflect additions, 
deletions, and corrections to SP 260, and to list fees charged for the 
SRM's. Supplements are available from the Office of Standard Reference 
Materials, National Institute of Standards & Technology, Washington, DC 
20234.

[41 FR 8472, Feb. 27, 1976, as amended at 55 FR 38315, Sept. 11, 1990]



               SUBCHAPTER C_TRANSCRIPT SERVICES [RESERVED]



[[Page 326]]



                   SUBCHAPTER D_STANDARDS FOR BARRELS





PART 240_BARRELS AND OTHER CONTAINERS FOR LIME--Table of Contents



Sec.
240.1 Title of act.
240.2 Application.
240.3 Permissible sizes.
240.4 Definitions.
240.5 Required marking.
240.6 Tolerances.

    Authority: Sec. 4, 39 Stat. 531; 15 U.S.C. 240.

    Source: 13 FR 8372, Dec. 28, 1948, unless otherwise noted.



Sec.  240.1  Title of act.

    The act, ``Pub. L. 228, 64th Congress,'' approved August 23, 1916 
(39 Stat. 530; 15 U.S.C. 237-242), entitled ``An Act to standardize lime 
barrels,'' shall be known and referred to as the ``Standard Lime-Barrel 
Act.''



Sec.  240.2  Application.

    The rules and regulations in this part are to be understood and 
construed to apply to lime in barrels, or other containers packed, sold, 
or offered for sale for shipment from any State or Territory or the 
District of Columbia to any other State or Territory or the District of 
Columbia; and to lime in containers of less capacity than the standard 
small barrel sold in interstate or foreign commerce; and to lime 
imported in barrels from a foreign country and sold or offered for sale; 
also to lime not in barrels or containers of less capacity than the 
standard small barrel, sold, charged for, or purported to be delivered 
as a large or small barrel or a fractional part of said small barrel of 
lime, from any State or Territory or the District of Columbia to any 
other State or Territory or the District of Columbia.



Sec.  240.3  Permissible sizes.

    Lime in barrels shall be packed only in barrels containing 280 
pounds or 180 pounds, net weight. For the purposes of this section the 
word ``barrel'' is defined as a cylindrical or approximately cylindrical 
vessel, cask or drum.

(Sec. 2, 39 Stat. 530; 15 U.S.C. 238)



Sec.  240.4  Definitions.

    (a) The term container of less capacity than the standard small 
barrel, as mentioned in section 3 of the law and as used in the rules 
and regulations in this part, is defined as any container not in barrel 
form containing therein a net weight of lime of less than 180 pounds.
    (b) The term label as used in the rules and regulations in this part 
is defined as any printed, pictorial, or other matter upon the surface 
of a barrel or other container of lime subject to the provisions of this 
act, or upon cloth or paper or the like which is permanently affixed to 
it by pasting or in a similar manner.
    (c) The term tag is defined as a tough and strong strip of cloth or 
paper or the like, bearing any printed, pictorial, or other matter, 
which is loose at one end and which is secured to a container of lime 
subject to the provisions of the act.

(Sec. 3, 39 Stat. 530; 15 U.S.C. 239)



Sec.  240.5  Required marking.

    (a) The lettering required upon barrels of lime by section 2 of the 
law shall be as follows: The statement of net weight shall be in 
boldface capital letters and figures at least 1 inch in height and not 
expanded or condensed; it shall be clear, legible, and permanent, and so 
placed with reference to the other lettering that it is conspicuous. The 
name of the manufacturer of the lime and where manufactured, and, if 
imported, the name of the country from which it is imported, shall be in 
boldface letters at least one-half inch in height and not expanded or 
condensed, and shall be clear, legible, conspicuous, and permanent. None 
of these letters and figures shall be superimposed upon each other, nor 
shall any other characters be superimposed upon the required lettering 
or otherwise obscure it. All the above statements shall form parts of 
the principal label.
    (b) The information required upon containers of lime of less 
capacity than the standard small barrel by section 3 of the law shall be 
included in a label:

[[Page 327]]

Provided, however, That in order to allow the utilization of second-hand 
or returnable bags made of cloth, burlap, or the like, such information 
may be upon a tag firmly attached to the container in a prominent and 
conspicuous position. In case a tag is used to give the required 
information there must not be any label or another tag upon the 
container which bears any statement having reference to lime, or any 
statement of weight whatever, which is not identical with the 
information upon the tag mentioned above; if a container is to be 
utilized which bears any such inaccurate information upon a label, such 
container shall be turned inside out or such information shall be 
obliterated in so far as it is inaccurate by blotting out the letters or 
figures; or if such inaccurate information is upon a tag, by removing 
such tag.
    (c) If the required lettering is upon a label, the statement of net 
weight shall be in bold-face capital letters and figures at least three-
fourths inch in height and not expanded or condensed; it shall be clear, 
legible, and permanent, and so placed with reference to the other 
lettering that it is conspicuous. The word ``net'' shall form part of 
the statement of weight. The name of the manufacturer of the lime and 
the name of the brand, if any, under which it is sold, and, if imported, 
the name of the country from which it is imported, shall be in bold face 
letters at least one-half inch in height and not expanded or condensed, 
and shall be clear, legible, conspicuous, and permanent. None of these 
letters and figures shall be superimposed upon each other, nor shall any 
other characters be superimposed upon the required lettering or 
otherwise obscure it. All the above statements shall form parts of the 
principal label.
    (d) If the required lettering is upon a tag, the statement of net 
weight shall be in bold-face capital letters and figures not less than 
one-half the height of the largest letters or figures used upon such 
tag: Provided, however, That in every case they shall be not less than 
one-eighth inch in height (12-point capitals), and not expanded or 
condensed. The word ``net'' shall form part of the statement of weight. 
The statement shall be clear, legible, and permanent, and so placed with 
reference to the other lettering that it is conspicuous. The name of the 
manufacturer of the lime, and the name of the brand, if any, under which 
it sold, and, if imported, the name of the country from which it is 
imported, shall be in bold-face letters and figures not less than one-
eighth inch in height (12-point capitals), and not expanded or 
condensed, and shall be clear, legible, conspicuous, and permanent. None 
of these letters and figures shall be superimposed upon each other nor 
shall any other characters be superimposed upon the required lettering 
or otherwise obscure it. All the above statements shall be included upon 
the same side of the tag.
    (e) In case the lime is actually packed in barrels or in containers 
of less capacity than the standard small barrel by some person other 
than the manufacturer of the lime, the information mentioned above must 
be given in the manner there described, and in addition there must be a 
statement to this effect: ``Packed by ____________________'' (giving the 
name and address of the packer). This statement shall be in letters not 
smaller than is specified for the general statement required in the case 
of barrels and containers of less capacity than the standard small 
barrel, respectively (see paragraphs (a) and (b) of this section); it 
shall not be obscured and shall form part of the principal label or be 
upon the same side of the tag as in those cases provided.
    (f) In the case of all lime sold in barrels, the actual place of 
manufacture of the lime shall be stated on the barrel. In general, this 
will be the name of the post office nearest or most accessible to the 
plant. However, when the actual place of manufacture of the lime and the 
offices of the company are separated but are within the boundaries of 
the same county of a State, or when, though not within the boundaries of 
the same county they are so close together that the post-office address 
of the offices represents substantially and to all intents and purposes 
the actual place of manufacture of the lime, then the post-office 
address of the offices of the company will be sufficient: Provided, 
however, That the address given

[[Page 328]]

shall always correctly show the State in which the lime is actually 
manufactured.
    (g) More than one place of manufacture of a manufacturer shall not 
be shown on the same barrel unless the one at which the particular lime 
in question is manufactured is pointed out.
    (h) If the location of the home offices is stated and this is not 
the place of manufacture within the meaning of the above definition, an 
additional statement must be included to this effect: ``Manufactured at 
____________________'' (giving the location of the plant).

(Secs. 2, 3, 39 Stat. 530; 15 U.S.C. 238, 239)



Sec.  240.6  Tolerances.

    (a) When lime is packed in barrels the tolerance to be allowed on 
the large barrel or the small barrel of lime shall be 5 pounds in excess 
or in deficiency on any individual barrel: Provided, however, That the 
average error on 10 barrels of the same nominal weight and packed by the 
same manufacturer shall in no case be greater than 2 pounds in excess or 
in deficiency. In case all the barrels available are not weighed, those 
which are weighed shall be selected at random.
    (b) When lime is packed in containers of less capacity than the 
standard small barrel, the tolerance to be allowed in excess or in 
deficiency on individual containers of various weights, shall be the 
values given in the column headed ``Tolerance on individual package,'' 
of the following table: Provided, however, That the average error on 10 
containers of the same nominal weight and packed by the same 
manufacturer shall in no case be greater than the values given in the 
column headed ``Tolerance on average weight,'' of the following table. 
In case all the containers available are not weighed, those which are 
weighed shall be selected at random.

------------------------------------------------------------------------
                                                   Tolerance
                                                      on       Tolerance
               Weight of packaged                 individual  on average
                                                    package     weight
                                                   (pounds)    (pounds)
------------------------------------------------------------------------
Not greater than 50 lbs.........................      1\1/2\       \5/8\
More than 50 lb. and not greater than 100 lbs...           2       \3/4\
More than 100 lb. and not greater than 150 lb...           3      1\1/4\
More than 150 lb. and less than 180 lb..........           4      1\1/2\
------------------------------------------------------------------------

    (c) When lime in bulk is sold, charged for, or purported to be 
delivered as a definite number of large or small barrels, the tolerance 
to be allowed in excess or in deficiency on such amounts of lime shall 
be 15 pounds per 1,800 pounds (10 small barrels), or 25 pounds per 2,800 
pounds (10 large barrels).



PART 241_BARRELS FOR FRUITS, VEGETABLES AND OTHER DRY COMMODITIES, AND
FOR CRANBERRIES--Table of Contents



Sec.
241.1 Capacities.
241.2 Legal standard barrels.
241.3 Application of tolerance for ``distance between heads.''
241.4 Application of tolerance for ``diameter of head.''
241.5 Standard dimensions.
241.6 Classes of barrels for tolerance application.
241.7 Tolerances to be allowed.

    Authority: Sec. 3, 38 Stat. 1187; 15 U.S.C. 236.

    Source: 13 FR 8373, Dec. 28, 1948, unless otherwise noted.
    Note: The rules and regulations in this part refer entirely to 
individual barrels, and no separate tolerance has been placed on the 
average content of a number of barrels taken at random from a shipment. 
It is not believed that barrels can be so made as to take advantage of 
the tolerances, and, of course, no attempt should be made to do this. It 
is, therefore, expected that as many barrels will be above as below the 
standard capacity.



Sec.  241.1  Capacities.

    (a) The capacities of the standard barrel for fruits, vegetables, 
and other dry commodities, other than cranberries, and its subdivisions, 
are as follows:

------------------------------------------------------------------------
                                            Cubic    Bushels     Quarts
                  Size                     inches      \1\        \1\
------------------------------------------------------------------------
Barrel..................................     7,056      3.281        105
\3/4\ barrel............................     5,292       2.46    78\3/4\
\1/2\ barrel............................     3,528      1.641    52\1/2\
\1/3\ barrel............................     2,352      1.094        35
------------------------------------------------------------------------
\1\ Struck measure.


[[Page 329]]

    (b) The capacities of the standard cranberry barrel and its 
subdivisions are as follows:

------------------------------------------------------------------------
                                            Cubic    Bushels     Quarts
                  Size                     inches      \1\        \1\
------------------------------------------------------------------------
Cranberry barrel........................     5,826      2.709  86\45/64\
\3/4\ cranberry barrel..................   4,369.5      2.032   65\1/64\
\1/2\ cranberry barrel..................     2,913      1.355  43\11/32\
\1/3\ cranberry barrel..................     1,942       .903  28\29/32\
------------------------------------------------------------------------
\1\ Struck measure.


(Sec. 1, 38 Stat. 1186; 15 U.S.C. 234)



Sec.  241.2  Legal standard barrels.

    (a) Any barrel having the dimensions specified for a standard barrel 
for fruits, vegetables, and other dry commodities, other than 
cranberries, in section 1 of the standard-barrel law, or any barrel or a 
subdivision thereof having the contents specified in section 1 of the 
standard-barrel law and in Sec.  241.1(a) regardless of its form or 
dimensions, is a legal standard barrel for fruits, vegetables, or other 
dry commodities other than cranberries, or a legal subdivision thereof. 
No other barrel or subdivision in barrel form is a legal container for 
fruits, vegetables, or other dry commodities other than cranberries.
    (b) Any barrel having the dimensions specified for a standard barrel 
for cranberries in section 1 of the standard-barrel law, or any 
subdivision thereof having the contents specified in Sec.  241.1(b), 
regardless of its form or dimensions, is a legal standard barrel for 
cranberries or a legal subdivision thereof. No other barrel or 
subdivision in barrel form is a legal container for cranberries.

(Sec. 1, 38 Stat. 1186; 15 U.S.C. 234)



Sec.  241.3  Application of tolerance for ``distance between heads.''

    The tolerance established in this part for the dimension specified 
as ``distance between heads'' shall be applied as follows on the various 
types of barrels in use:
    (a) When a barrel or subdivision thereof has two heads, the 
tolerance shall be applied to the distance between the inside surfaces 
of the heads and perpendicular to them.
    (b) When a barrel or subdivision thereof has but one head and a 
croze ring or other means for the insertion of a head, such as an inside 
hoop, etc., at the opposite end, the tolerance shall be applied to the 
distance from the inside surface of the bottom head and perpendicular to 
it to the inside edge of the croze ring, or to a point where the inside 
surface of a head would come were such head inserted in the barrel.
    (c) When a barrel or subdivision thereof has but one head and no 
croze ring or other means for the insertion of a head, such as an inside 
hoop, etc., at the opposite end, the tolerance shall be applied to the 
distance from the inside surface of the bottom head and perpendicular to 
it to a point 1\1/8\ inches from the opposite end of the staves in the 
case of a barrel or a \3/4\ barrel, and to a point 1 inch or \7/8\ inch 
from the opposite end of the staves in the case of the \1/2\ barrel and 
\1/3\ barrel, respectively. When a barrel or subdivision thereof has 
been manufactured with but one head and no croze ring or other means for 
the insertion of a head at the opposite end, and it is desired to insert 
a second head, the croze ring shall be so cut that the inside edge shall 
not be more than 1\1/8\ inches from the end of the staves in the case of 
a barrel or \3/4\ barrel or not more than 1 inch or \7/8\ inch from the 
end of the staves in the case of the \1/2\ barrel and \1/3\ barrel, 
respectively, or the other means shall be so adjusted that the inside 
surface of the head when inserted shall not exceed these distances from 
the end of the staves.



Sec.  241.4  Application of tolerance for ``diameter of head.''

    (a) The tolerance established in this part for the dimension 
specified as ``diameter of head'' shall be applied to the diameter of 
the head over all, including the part which fits into the croze ring of 
the completed barrel.
    (b) The tolerance established in this part for the dimension 
specified as ``effective diameter of head'' shall be applied as follows 
on the various types of barrels and subdivisions in use;
    (1) When a barrel or subdivision thereof has two heads, the 
tolerance shall be applied to the mean of the average diameters from 
inside to inside of staves at the inner edges of the heads.
    (2) When a barrel or subdivision thereof has but one head and a 
croze

[[Page 330]]

ring or other means for the insertion of a head at the opposite end, the 
tolerance shall be applied to the mean of the average diameters, one 
taken from inside to inside of staves at the inner edge of the head, the 
other from inside to inside of staves at the inner edge of the croze 
ring, or from inside to inside of staves at a point where the inside 
surface of a head would come were such head inserted in the barrel.
    (3) When a barrel or subdivision thereof has but one head and no 
croze ring or other means for the insertion of a head at the opposite 
end, the tolerance shall be applied to the mean of the average 
diameters, one taken from inside to inside of staves at the inner edge 
of the head, the other taken from inside to inside of staves at a point 
1\1/8\ inches from the end of the staves in the case of a barrel or \3/
4\ barrel, or at a point 1 inch or \7/8\ inch from the end of the staves 
in the case of a \1/2\ barrel or \1/3\ barrel, respectively.
    (c) The standard allowance for depth of croze ring shall be \3/16\ 
inch. Therefore, the standard ``effective diameter of head'' in the case 
of the standard barrel is 16\3/4\ inches and in the case of the standard 
cranberry barrel is 15\7/8\ inches.



Sec.  241.5  Standard dimensions.

    Whenever in the rules and regulations in this part the error on a 
dimension is mentioned, this error shall be determined by taking the 
difference between the actual measured dimension and the standard 
dimension. The error is an error in excess and is to be preceded by a 
plus sign when the measured dimension is greater than the standard 
dimension. The error is an error in deficiency and is to be preceded by 
a minus sign when the measured dimension is less than the standard 
dimension.
    (a) The standard dimensions of a barrel for fruits, vegetables, and 
other dry commodities other than cranberries, and of a barrel for 
cranberries, with which the actual measured dimensions are to be 
compared, are as follows:

------------------------------------------------------------------------
                                               Barrel for
                                                 fruits,
                                               vegetables,
                                              and other dry   Barrel for
                 Dimensions                    commodities   cranberries
                                               other than      (inches)
                                               cranberries
                                                (inches)
------------------------------------------------------------------------
Diameter of head...........................         17\1/8\     16\1/4\
Effective diameter of head (see Sec.                16\3/4\     15\7/8\
 241.4)....................................
Distance between heads.....................              26     25\1/4\
Circumference of bulge, outside measurement              64     58\1/2\
Length of stave............................         28\1/2\     28\1/2\
------------------------------------------------------------------------

    (b) In the case of all subdivisions of the barrel for fruits, 
vegetables, and other dry commodities other than cranberries, and all 
subdivisions of the barrel for cranberries, the following dimensions are 
hereby standardized for the purpose of the application of tolerances, 
and the actual measured dimensions are to be compared with these:

Subdivisions of Barrel for Fruits, Vegetables, and Other Dry Commodities
                         Other Than Cranberries
------------------------------------------------------------------------
                                           \3/4\      \1/2\      \1/3\
               Dimensions                  barrel     barrel     barrel
                                          (inches)   (inches)   (inches)
------------------------------------------------------------------------
Effective diameter of head (see Sec.       15\1/4\    13\3/8\    11\5/8\
 241.4)................................
Distance between heads.................    23\1/2\    20\1/2\         18
Circumference of bulge, outside            58\1/2\    51\1/2\    45\1/4\
 measurement...........................
------------------------------------------------------------------------
                 Subdivisions of Barrel for Cranberries
------------------------------------------------------------------------
Effective diameter of head (see Sec.       14\3/8\    12\5/8\         11
 241.4)................................
Distance between heads.................         23         20    17\1/2\
Circumference of bulge, outside            53\3/8\         47    41\3/8\
 measurement...........................
------------------------------------------------------------------------


(Sec. 1, 38 Stat. 1186; 15 U.S.C. 234)



Sec.  241.6  Classes of barrels for tolerance application.

    For the purpose of the application of tolerances, barrels for 
fruits, vegetables, and other dry commodities other than cranberries, 
are hereby divided into two classes as follows:
    (a) Class 1 shall include (1) all barrels no dimension of which is 
in error by more than the following amounts, and (2) all barrels one or 
more of the dimensions of which are in error by more than the following 
amounts, and which in addition have no dimension in error in the 
opposite direction:

------------------------------------------------------------------------
                                                                Error,
                                                                inches
------------------------------------------------------------------------
Effective diameter of head..................................       \1/4\
Distance between heads......................................       \1/4\

[[Page 331]]

 
Circumference of bulge, outside measurement.................      1\1/2\
------------------------------------------------------------------------

    (b) Class 2 shall include all barrels at least one dimension of 
which is in error by more than the amounts given above, but which in 
addition have at least one dimension in error in the opposite direction. 
(This class includes all barrels mentioned in section 1 of the law in 
the proviso reading: ``Provided, That any barrel of a different form 
having a capacity of seven thousand and fifty-six cubic inches shall be 
a standard barrel.'')

(Sec. 1, 38 Stat. 1186; 15 U.S.C. 234)



Sec.  241.7  Tolerances to be allowed.

    (a) The tolerances to be allowed in excess or in deficiency on the 
dimensions of all barrels of Class 1 shall be as follows:

------------------------------------------------------------------------
                                                               Tolerance
                                                                inches
------------------------------------------------------------------------
Diameter of head............................................       \1/4\
Effective diameter of head..................................       \1/4\
Distance between heads......................................       \1/4\
Circumference of bulge, outside measurement.................      1\1/2\
Length of stave.............................................       \1/2\
------------------------------------------------------------------------

    (1) If no dimension of a barrel of Class 1 is in error by more than 
the tolerance given above, then the barrel is within the tolerance 
allowed.
    (2) If one or more of the dimensions of a barrel of Class 1 is in 
error by more than the tolerance given above, then the barrel is not 
within the tolerance allowed.
    (b) The tolerance to be allowed in excess or in deficiency on all 
barrels of Class 2 shall be 1\1/2\ inches (1.5) inches, and this 
tolerance is to be applied to the result obtained by the application of 
the following rule:
    (1) Having determined the errors of each dimension and given to each 
its proper sign (see Sec.  241.4), add the errors on the effective 
diameter of head and the distance between heads algebraically and 
multiply the result by 1.67 (or \5/3\). Then add this result to the 
error on the circumference of bulge algebraically. If the result 
obtained is not greater than the tolerance given above, then the barrel 
is within the tolerance allowed; if the result is greater than this 
tolerance, then the barrel is not within the tolerance allowed.

    Note: To find the algebraic sum of a number of quantities having 
different signs, first add all those having one sign; then add all those 
having the opposite sign; then subtract the smaller sum from the larger, 
giving this result the sign of the larger quantity.

    (2) [Reserved]
    (c) The tolerance to be allowed in excess or in deficiency on the 
dimensions of all barrels for cranberries shall be as follows:

------------------------------------------------------------------------
                                                              Tolerance,
                                                                inches
------------------------------------------------------------------------
Diameter of head............................................       \1/4\
Effective diameter of head..................................       \1/4\
Distance between heads......................................       \1/4\
Circumference of bulge, outside measurement.................      1\3/8\
Length of stave.............................................       \1/2\
------------------------------------------------------------------------

    (1) If no dimension of a barrel for cranberries is in error by more 
than the tolerance given above, then the barrel is within the tolerance 
allowed.
    (2) If one or more of the dimensions of a barrel for cranberries is 
in error by more than the tolerance given above, then the barrel is not 
within the tolerance allowed.
    (d) The tolerances to be allowed in excess or in deficiency on all 
subdivisions of the standard barrel for fruits, vegetables, and other 
dry commodities other than cranberries, and on all subdivisions of the 
standard barrel for cranberries, shall be the values given in the 
following table, and these tolerances are to be applied to the result 
obtained by the application of the following rule:
    (1) Having determined the errors on each dimension and given to each 
its proper sign (see Sec.  241.5), add the errors on the effective 
diameter of head and the distance between heads algebraically and 
multiply the result by 1.67 (or \5/3\). Then add this result to the 
error on the circumference of bulge algebraically. If the result 
obtained is not greater than the tolerance given in the following table 
for the proper subdivision, then the barrel is within the tolerance 
allowed; if the result is greater than this tolerance, then the barrel 
is not within the tolerance allowed.

[[Page 332]]



------------------------------------------------------------------------
                                                     Tolerance
                                         -------------------------------
                                            For fruits,
           Size of subdivision              vegetables,         For
                                           and other dry    cranberries
                                            commodities      (inches)
                                             (inches)
------------------------------------------------------------------------
\3/4\ barrel............................  1\3/8\ (1.375)   1\1/4\ (1.25)
\1/2\ barrel............................   1\1/4\ (1.25)  1\1/8\ (1.125)
\1/3\ barrel............................  1\1/8\ (1.125)        1 (1.00)
------------------------------------------------------------------------
 


[[Page 333]]



            SUBCHAPTER E_FELLOWSHIPS AND RESEARCH ASSOCIATES





PART 255_FELLOWSHIPS IN LABORATORY STANDARDIZATION AND TESTING FOR
QUALIFIED CITIZENS OF OTHER AMERICAN REPUBLICS--Table of Contents



Sec.
255.1 Type of fellowships.
255.2 Qualifications.
255.3 Award of fellowships.
255.4 Allowances and expenses.
255.5 Progress reports.
255.6 Duration of fellowships.
255.7 Official notification.

    Authority: R.S. 161; sec. 1, 53 Stat. 1290; 22 U.S.C. 501.

    Source: 13 FR 8374, Dec. 28, 1948, unless otherwise noted.



Sec.  255.1  Type of fellowships.

    Fellowships shall be of the combined intern-training and training-
in-research type, and may include any or all of the following courses:
    (a) Orientation courses consisting of lectures and conferences at 
the National Institute of Standards & Technology pertaining to 
laboratory standardization and testing.
    (b) Practical laboratory training in various branches of physics, 
chemistry, and engineering research, under the direction of the National 
Institute of Standards & Technology, which will include the usual 
subdivisions of physics (weights and measures, heat, optics, mechanics, 
atomic physics, electrical measurements and radio) and also technologic 
applications in research and testing on metals, rubber, leather, paper, 
textiles, plastics, and clay and silicate products.
    (c) Observation and study in such other laboratories within the 
continental United States as may be selected by the Director of the 
National Institute of Standards & Technology.
    (d) Courses of instruction or research assignments supplementing the 
practical laboratory training, in universities or colleges selected by 
the Director of the National Institute of Standards & Technology.

[13 FR 8374, Dec. 28, 1948, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  255.2  Qualifications.

    Each applicant selected for a fellowship shall be:
    (a) A citizen of an American republic other than the United States;
    (b) In possession of a certificate of medical examination issued by 
a licensed physician within 60 days of the date of application, 
describing the applicant's physical condition and stating that he is 
free from any communicable disease, physical deformity or disability 
that would interfere with the proper pursuit of training, research, or 
any other activity or work incident to the fellowship;
    (c) Able to speak, read, write and understand the English language;
    (d) Of good moral character and possessing intellectual ability and 
suitable personal qualities; and
    (e) In possession of acceptable evidence that he has successfully 
completed the equivalent of a four-year university course in a 
recognized university, college or other institution of learning, with 
some training or experience in the field of activity which he desires to 
pursue. Equivalent experience may be substituted for the university 
training in the case of candidates who are otherwise specially well 
qualified.



Sec.  255.3  Award of fellowships.

    Fellowships shall be awarded by the Director of the National 
Institute of Standards & Technology, with the approval of the Secretary 
of Commerce and the Secretary of State, or the duly authorized 
representative of the Secretary of State. Applications shall be 
transmitted to the Secretary of State by the government of the American 
republic of which the applicant is a citizen through the American 
diplomatic mission accredited to that government.

[13 FR 8374, Dec. 28, 1948, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  255.4  Allowances and expenses.

    Allowances and expenses shall be as provided in State Department 
regulations given in 22 CFR Part 61, and as

[[Page 334]]

provided in Department of Commerce Administrative Order No. 202-3. \1\
---------------------------------------------------------------------------

    \1\ Not filed with the Office of the Federal Register.
---------------------------------------------------------------------------



Sec.  255.5  Progress reports.

    Applicants awarded fellowships under the regulations in this part 
shall submit written reports of progress in training and research at 
such intervals as the Director of the National Institute of Standards & 
Technology may determine.

[13 FR 8374, Dec. 28, 1948, as amended at 55 FR 38316, Sept. 18, 1990]



Sec.  255.6  Duration of fellowships.

    Fellowships may be awarded for periods of varying length, not 
exceeding one 12-month period of actual training and research and may be 
extended for not exceeding the same periods in the manner prescribed 
under Sec.  255.3 and subject to the availability of appropriations. 
Fellowships may be cancelled for cause by the Director of the National 
Institute of Standards & Technology, with the approval of the Secretary 
of Commerce and the Secretary of State, or the duly authorized 
representative of the Secretary of State.

[13 FR 8374, Dec. 28, 1948, as amended at 55 FR 38316, Sept. 18, 1990]



Sec.  255.7  Official notification.

    Each applicant selected by the Director of the National Institute of 
Standards & Technology and approved by the Secretary of Commerce and the 
Secretary of State, or the duly authorized representative of the 
Secretary of State, shall be notified of his award through diplomatic 
channels. The notification shall state the duration and type of 
fellowship, outline the program of training and research, and state the 
allowances authorized: Provided, however, That the Director of the 
National Institute of Standards & Technology may subsequently amend the 
program and duration of the fellowship if in his opinion such action 
would be in the interest of obtaining training and research better 
suited to the needs and capabilities of the fellow than those prescribed 
in the notification. The amount originally authorized for monthly 
allowances and other expenses may also be amended, if necessary, with 
the approval of the Secretary of Commerce and the Secretary of State, or 
the duly authorized representative of the Secretary of State.

[13 FR 8374, Dec. 28, 1948, as amended at 55 FR 38316, Sept. 18, 1990]



PART 256_RESEARCH ASSOCIATE PROGRAM--Table of Contents



Sec.
256.1 Introduction.
256.2 The Research Associate Program.
256.3 Procedure.
256.4 Qualifications.
256.5 Duration of projects.
256.6 Information concerning the Research Associate Program.

    Authority: 27 Stat. 395, 31 Stat. 1039; 20 U.S.C. 91.

    Source: 32 FR 10252, July 12, 1967, unless otherwise noted.



Sec.  256.1  Introduction.

    This part states policies and procedures concerning the Research 
Associate Program at the National Institute of Standards & Technology. 
In the exercise of its functions as a major scientific agency of the 
Federal Government, the National Institute of Standards & Technology may 
make its facilities available to persons other than Bureau employees to 
work with scientists and engineers in collaborative research aimed at 
furthering the Nation's scientific, industrial, and economic growth. 
Such cooperative programs may be sponsored by professional, technical, 
or industrial organizations or associations. Such participants, when so 
sponsored, are designated ``Research Associates''.



Sec.  256.2  The Research Associate Program.

    The Bureau provides its facilities, scientific competence, and 
technical supervision for defined scientific or technical research by a 
Research Associate when such research is complementary to and compatible 
with scientific or technical research being performed or to be 
undertaken by NIST under its statutory mission and authority. The 
Sponsors pay the salaries

[[Page 335]]

of their Research Associates and Sponsor-furnished technical assistants 
and secretaries of the Research Associates, if any, their travel costs, 
and other related expenses. Additionally, Sponsors reimburse NIST for 
the cost of research equipment, services, or materials obtained for the 
Research Associate.

[32 FR 10252, July 12, 1967, as amended at 40 FR 50707, Oct. 31, 1975]



Sec.  256.3  Procedure.

    Arrangements for collaborative research by NIST with a Research 
Associate generally begin through discussions or correspondence between 
NIST scientists and representatives of potential sponsoring companies, 
trade associations or professional organizations. These preliminary 
steps are followed by the consummation of a Memorandum of Agreement 
which is signed by NIST, the sponsoring organization and the Research 
Associate. The agreement sets out the respective responsibilities and 
obligations of all parties.



Sec.  256.4  Qualifications.

    Each candidate selected to serve as a Research Associate must be 
determined to be scientifically qualified by the Sponsor and by the 
NIST, and found by NIST to be of good moral character and to possess 
suitable personal qualities.



Sec.  256.5  Duration of projects.

    The work of a Research Associate is generally conducted on a full-
time basis. Typically, Research Associates are in residence at NIST for 
6 to 18 months; longer-term programs may be carried on by a succession 
of Research Associates. Agreements provide for cancellation by any of 
the parties.



Sec.  256.6  Information concerning the Research Associate Program.

    Information concerning the Research Associate Program may be 
obtained from the Industrial Liaison Officer, National Institute of 
Standards & Technology, Washington, DC 20234.

[40 FR 50707, Oct. 31, 1975]

[[Page 336]]



         SUBCHAPTER F_REGULATIONS GOVERNING TRAFFIC AND CONDUCT





 PART 265_REGULATIONS GOVERNING TRAFFIC AND CONDUCT ON THE GROUNDS 
 OF THE NATIONAL INSTITUTE OF STANDARDS & TECHNOLOGY, GAITHERSBURG,
 MARYLAND, AND BOULDER AND FORT COLLINS, COLORADO--Table of Contents



                            Subpart A_General

Sec.
265.1 Definitions.
265.2 Applicability.
265.3 Compliance with directions.
265.4 Making or giving of false reports.
265.5 Laws of Maryland and Colorado applicable.

               Subpart B_Traffic and Vehicular Regulations

265.11 Inspection of license and registration.
265.12 Speeding or reckless driving.
265.13 Emergency vehicles.
265.14 Signs.
265.15 Right-of-way in crosswalks.
265.16 Parking.
265.17 Parking permits.
265.18 Prohibited servicing of vehicles.
265.19 Unattended vehicles.
265.20 Towing of improperly parked vehicles.
265.21 Improper use of roads as thoroughfares.
265.22 Bicycle traffic.

                     Subpart C_Buildings and Grounds

265.31 Closing the site.
265.32 Trespassing.
265.33 Preservation of property.
265.34 Conformity with posted signs.
265.35 Nuisances.
265.36 Intoxicating beverages.
265.37 Narcotics and other drugs.
265.38 Intoxication or other impairment of function.
265.39 Weapons and explosives.
265.40 Nondiscrimination.
265.41 Gambling.
265.42 Photography for advertising or commercial purposes; advertising 
          and soliciting.
265.43 Pets and other animals.

                           Subpart D_Penalties

265.51 Penalties--other laws.

    Authority: Sec. 9, 31 Stat. 1450, as amended (15 U.S.C. 277). 
Applies sec. 1, 72 Stat 1711, as amended, (15 U.S.C. 278e(b)).

    Source: 39 FR 41170, Nov. 25, 1974, unless otherwise noted.



                            Subpart A_General



Sec.  265.1  Definitions.

    As used in this part:
    (a) Site means those grounds and facilities of the National 
Institute of Standards & Technology, Department of Commerce located in 
Montgomery County, Maryland, and in Boulder and Larimer Counties, 
Colorado, over which the Federal Government has acquired concurrent 
jurisdiction in accordance with appropriate authority.
    (b) Uniformed guard means a designated employee appointed by the 
Director for purposes of carrying out the authority of a U.S. Special 
Policeman, as provided by 40 U.S.C. 318.
    (c) Director means the Director of the National Institute of 
Standards & Technology.

[39 FR 41170, Nov. 25, 1974, as amended at 41 FR 51787, Nov. 24, 1976; 
55 FR 38316, Sept. 18, 1990]



Sec.  265.2  Applicability.

    The regulations in this part establish rules with respect to the 
parking and operation of motor vehicles and other activities and conduct 
on the site. These regulations are intended to supplement the rules and 
regulations regarding conduct in Part O of Subtitle A of this title and 
in other officially issued orders and regulations of the Department of 
Commerce and the National Institute of Standards & Technology

[39 FR 41170, Nov. 25, 1974, as amended at 55 FR 38316, Sept. 18, 1990]



Sec.  265.3  Compliance with directions.

    No person shall fail or refuse to comply with any lawful order or 
direction of a uniformed guard in connection with the control or 
regulation of traffic and parking or other conduct on the site.

[[Page 337]]



Sec.  265.4  Making or giving of false reports.

    No person shall knowingly give any false or fictitious report or 
information to any authorized person investigating an accident or 
apparent violation of law or these regulations. Nothing in this section 
shall affect the applicability of 18 U.S.C. 1001 regarding false, 
fictitious or fraudulent statements or entries.



Sec.  265.5  Laws of Maryland and Colorado applicable.

    Unless otherwise specifically provided herein, the laws of the State 
of Maryland and of the State of Colorado shall be applicable to the site 
located within those respective States. The applicability of State laws 
shall not, however, affect or abrogate any other Federal law or 
regulation applicable under the circumstances.



               Subpart B_Traffic and Vehicular Regulations



Sec.  265.11  Inspection of license and registration.

    No person may operate any motor vehicle on the site unless he holds 
a current operator's license, nor may he, if operating a motor vehicle 
on the site, refuse to exhibit for inspection, upon request of a 
uniformed guard, his operator's license or proof of registration of the 
vehicle under his control at time of operation.



Sec.  265.12  Speeding or reckless driving.

    (a) No person shall drive a motor vehicle on the site at a speed 
greater than or in a manner other than is reasonable and prudent for the 
particular location, given the conditions of traffic, weather, and road 
surface and having regard to the actual and potential hazards existing.
    (b) Except when a special hazard exists that requires lower speed 
for compliance with paragraph (a) of this section, the speed limit on 
the site is 25 m.p.h., unless another speed limit has been duly posted, 
and no person shall drive a motor vehicle on the site in excess of the 
speed limit.



Sec.  265.13  Emergency vehicles.

    No person shall fail or refuse to yield the right-of-way to an 
emergency vehicle when operating with siren or flashing lights.



Sec.  265.14  Signs.

    Every driver shall comply with all posted traffic and parking signs.



Sec.  265.15  Right-of-way in crosswalks.

    No person shall fail or refuse to yield the right-of-way to a 
pedestrian or bicyclist crossing a street in a marked crosswalk.



Sec.  265.16  Parking.

    No person, unless otherwise authorized by a posted traffic sign or 
directed by a uniformed guard, shall stand or park a motor vehicle:
    (a) On a sidewalk;
    (b) Within an intersection or within a crosswalk;
    (c) Within 15 feet of a fire hydrant, 5 feet of a driveway or 30 
feet of a stop sign or traffic control device;
    (d) At any place which would result in the vehicle being double 
parked;
    (e) At curbs painted yellow;
    (f) In a direction facing on-coming traffic;
    (g) In a manner which would obstruct traffic;
    (h) In a parking space marked as not intended for his use;
    (i) Where directed not to do so by a uniformed guard;
    (j) Except in an area specifically designated for parking or 
standing;
    (k) Except within a single space marked for such purposes, when 
parking or standing in an area with marked spaces;
    (l) At any place in violation of any posted sign; or
    (m) In excess of 24 hours, unless permission has been granted by the 
Physical Security office.



Sec.  265.17  Parking permits.

    No person, except visitors, shall park a motor vehicle on the site 
without having a valid parking permit displayed on such motor vehicle in 
compliance with instructions of the issuing

[[Page 338]]

authority. Such permits may be revoked by the issuing authority for 
violation of any of the provisions of this part.



Sec.  265.18  Prohibited servicing of vehicles.

    No person shall make nonemergency repairs on privately owned 
vehicles on the site.



Sec.  265.19  Unattended vehicles.

    No person shall leave a motor vehicle unattended on the site with 
the engine running or a key in the ignition switch or the vehicle not 
effectively braked.



Sec.  265.20  Towing of improperly parked vehicles.

    Any motor vehicle that is parked in violation of these regulations 
may be towed away or otherwise moved if a determination is made by a 
uniformed guard that it is a nuisance or hazard. A reasonable amount for 
the moving service and for the storage of the vehicle, if any, may be 
charged, and the vehicle is subject to a lien for that charge.



Sec.  265.21  Improper use of roads as thoroughfares.

    Except as otherwise provided herein, no person shall drive a motor 
vehicle or bicycle onto the site for the sole purpose of using the roads 
of the site as a thoroughfare between roads bordering the site. This 
section shall not apply to bicyclists using officially approved bike 
paths on the site.



Sec.  265.22  Bicycle traffic.

    No person shall ride a bicycle other than in a manner exercising due 
caution for pedestrian and other traffic. No person shall ride a bicycle 
on sidewalks or inside any building, nor shall any person park a bicycle 
on sidewalks or inside any building nor in a roadway or parking lot, 
provided, however, that these parking restrictions shall not apply to 
bicycles parked at bicycle racks located in these areas.



                     Subpart C_Buildings and Grounds



Sec.  265.31  Closing the site.

    As determined by the Director (Director, NIST Boulder Laboratories, 
for sites in Colorado), the site may be closed to the public in 
emergency situations and at such other times as may be necessary for the 
orderly conduct of the Government's business. At such times no person 
shall enter the site except authorized individuals, who may be required 
to sign a register and display identification when requested by a 
uniformed guard.

[39 FR 41170, Nov. 25, 1974, as amended at 56 FR 66969, Dec. 27, 1991]



Sec.  265.32  Trespassing.

    No person shall come onto the site other than in pursuance of 
official government business or other properly authorized activities.



Sec.  265.33  Preservation of property.

    No person shall, without authorization, willfully destroy, damage, 
or deface any building, sign, equipment, marker, or structure, tree, 
flower, lawn, or other public property on the site.



Sec.  265.34  Conformity with posted signs.

    No person shall fail or refuse to comply with officially posted 
signs of a prohibitory nature or with directions of a uniformed guard.



Sec.  265.35  Nuisances.

    (a) No person shall willfully disrupt the conduct of official 
business on the site, or engage in disorderly conduct; nor shall any 
person unreasonably obstruct the usual use of entrances, foyers, 
lobbies, corridors, offices, elevators, stairways, parking lots, 
sidewalks, or roads.
    (b) No person shall litter or dispose of rubbish except in a 
receptacle provided for that purpose; nor shall any person throw 
articles of any kind from a building or from a motor vehicle or bicycle.



Sec.  265.36  Intoxicating beverages.

    Except as expressly authorized by the Director, the consumption or 
use on the site of intoxicating beverages is prohibited.



Sec.  265.37  Narcotics and other drugs.

    The possession, sale, consumption, or use on the site of narcotic or 
other

[[Page 339]]

drugs illegal under the laws of the State in which the particular site 
is situated is prohibited. The provisions of this section are not 
intended to preclude the applicability of any State or local laws and 
regulations with respect to the possession, sale, consumption, or use of 
narcotic or other drugs.



Sec.  265.38  Intoxication or other impairment of function.

    No person shall enter or remain on the site while noticeably 
impaired by the use of intoxicating beverages or narcotics or other 
drugs, and any such person found on the site in such a state of 
impairment may be removed from the site.



Sec.  265.39  Weapons and explosives.

    Except in connection with the conduct of official business on the 
site, no person other than uniformed guards specifically authorized, or 
other Federal, State, or local law enforcement officials so authorized, 
shall carry, transport, or otherwise possess on the site, firearms 
whether loaded or not, other dangerous or deadly weapons or materials, 
or explosives, either openly or concealed, without the written 
permission of the Director or his designee.



Sec.  265.40  Nondiscrimination.

    No person shall discriminate against any other person because of 
race, creed, color, sex, or national origin, in furnishing, or by 
refusing to furnish to such person the use of any facility of a public 
nature, including all services, privileges, accommodations, and 
activities provided thereby on the site.



Sec.  265.41  Gambling.

    No person shall participate on the site in games for money or other 
property, or in the operation of gambling devices, the conduct of 
lotteries or pools, or in the selling or purchasing of numbers tickets, 
or the taking or placing of bets.



Sec.  265.42  Photography for advertising or commercial purposes;
advertising and soliciting.

    (a) Except as otherwise provided herein or where security 
regulations would preclude, photographs may be taken in entrances, 
lobbies, foyers, corridors, and auditoriums without prior approval. 
Photography for advertising and commercial purposes may be conducted 
only with the written permission of the Chief, Public Affairs Division 
of the National Institute of Standards and Technology (Public Affairs 
Officer for Boulder for sites in Colorado,) provided, however, that this 
shall not apply to photography for purposes of civic promotion.
    (b) Commercial advertisements and other material which are not 
directly pertinent or applicable to NIST employees but which 
nevertheless may be of interest or benefit to them may, with the 
approval of the Director of Administration (Executive Office, Boulder, 
for sites in Colorado), be placed in an appropriate location and made 
available to employees who visit that area. Except with approval as 
provided herein, no person shall distribute commercial advertising 
literature or engage in commercial soliciting on the site.

[39 FR 41170, Nov. 25, 1974, as amended at 55 FR 38316, Sept. 18, 1990; 
56 FR 66969, Dec. 27, 1991]



Sec.  265.43  Pets and other animals.

    Except in connection with the conduct of official business on the 
site or with the approval of the Associate Director for Administration 
(Executive Officer, IBS/Boulder, for sites in Colorado), no person shall 
bring upon the site any cat, dog, or other animal, provided, however, 
that blind persons may have the use of seeing eye dogs.



                           Subpart D_Penalties



Sec.  265.51  Penalties--other laws.

    Except with respect to the laws of the State of Maryland and the 
State of Colorado assimilated by Sec.  265.5 or otherwise, whoever shall 
be found guilty of violating these regulations 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). Except as expressly provided in this part, nothing 
contained in these regulations shall be construed to abrogate any other 
Federal laws or regulations, or any State and local laws and regulations 
applicable to the area in which the site is situated.

[[Page 340]]



             SUBCHAPTER G_NATIONAL CONSTRUCTION SAFETY TEAMS





PART 270_NATIONAL CONSTRUCTION SAFETY TEAMS--Table of Contents



                            Subpart A_General

Sec.
270.1 Description of rule; purpose; applicability.
270.2 Definitions used in this part.

             Subpart B_Establishment and Deployment of Teams

270.100 General.
270.101 Preliminary reconnaissance.
270.102 Conditions for establishment and deployment of a Team.
270.103 Publication in the Federal Register.
270.104 Size and composition of a Team.
270.105 Duties of a Team.
270.106 Conflicts of interest related to service on a Team.

                        Subpart C_Investigations

270.200 Technical conduct of investigation.
270.201 Priority of investigation.
270.202 Coordination with search and rescue efforts.
270.203 Coordination with Federal, State, and local entities.
270.204 Provision of additional resources and services needed by a Team.
270.205 Reports.
270.206 Public briefings and requests for information.

 Subpart D_Collection and Preservation of Evidence; Information Created 
       Pursuant to an Investigation; and Protection of Information

270.300 Scope.
270.301 Policy.

                         Collection of Evidence

270.310 Evidence collected by investigation participants who are not 
          NIST employees.
270.311 Collection of evidence.
270.312 Voluntary submission of evidence.
270.313 Requests for evidence.
270.314 Negotiations.
270.315 Subpoenas.
270.316 Public hearings.

                          Entry and Inspection

270.320 Entry and inspection of site where a building failure has 
          occurred.
270.321 Entry and inspection of property where building components, 
          materials, artifacts, and records with respect to a building 
          failure are located.
270.322 Voluntary permission to enter and inspect property where 
          building components, materials, artifacts, and records with 
          respect to a building failure are located.
270.323 Requests for permission to enter and inspect property where 
          building components, materials, artifacts, and records with 
          respect to a building failure are located.
270.324 Negotiations.
270.325 Notice of authority to enter and inspect property where building 
          components, materials, artifacts, and records with respect to 
          a building failure are located.

                        Preservation of Evidence

270.330 Moving and preserving evidence.

            Information Created Pursuant to an Investigation

270.340 Information created by investigation participants who are not 
          NIST employees.

                        Protection of Information

270.350 Freedom of Information Act.
270.351 Protection of voluntarily submitted information.
270.352 Public safety information

    Authority: Pub. L. 107-231, 116 Stat. 1471 (15 U.S.C. 7301 et seq.).

    Source: 68 FR 4694, Jan. 30, 2003, unless otherwise noted.



                            Subpart A_General



Sec.  270.1  Description of rule; purpose; applicability.

    (a) The National Construction Safety Team Act (the Act) (Pub. L. 
107-231) provides for the establishment of investigative teams to assess 
building performance and emergency response and evacuation procedures in 
the wake of any building failure that has resulted in substantial loss 
of life or that posed significant potential of substantial loss of life.
    (b)(1) The purpose of the Act is to provide for the establishment of 
investigative teams to assess building performance and emergency 
response and evacuation procedures in the wake of any building failure 
that has resulted

[[Page 341]]

in substantial loss of life or that posed significant potential of 
substantial loss of life. The role of NIST in implementing the Act is to 
understand the factors contributing to the building failure and to 
develop recommendations for improving national building and fire model 
codes, standards, and practices. To do this, the Teams produce technical 
reports containing data, findings, and recommendations for consideration 
by private sector bodies responsible for the affected national building 
and fire model code, standard, or practice. While NIST is an active 
participant in many of these organizations, NIST's recommendations are 
one of many factors considered by these bodies. NIST is not now and will 
not become a participant in the processes and adoption of practices, 
standards, or codes by state or local regulatory authorities.
    (2) It is not NIST's role to determine whether a failed building 
resulted from a criminal act, violated any applicable federal 
requirements or state or local code or regulatory requirements, or to 
determine any culpability associated therewith. These are matters for 
other federal, state, or local authorities, who enforce their 
regulations.
    (c) This part is applicable to the establishment and deployment of 
Teams and the conduct of investigations under the Act.

[68 FR 4694, Jan. 30, 2003, as amended at 68 FR 66704, Nov. 28, 2003; 69 
FR 33571, June 16, 2004]



Sec.  270.2  Definitions used in this part.

    The following definitions are applicable to this part:
    Act. The National Construction Safety Team Act (Pub. L. 107-231, 116 
Stat. 1471).
    Advisory Committee. The National Construction Safety Team Advisory 
Committee.
    Credentials. Credentials issued by the Director, identifying a 
person as a member of a National Construction Safety Team, including 
photo identification and other materials, including badges, deemed 
appropriate by the Director.
    Director. The Director of the National Institute of Standards and 
Technology.
    Evidence. Any document, record, book, artifact, building component, 
material, witness testimony, or physical evidence collected pursuant to 
an investigation.
    General Counsel. The General Counsel of the U.S. Department of 
Commerce.
    Investigation participant. Any person participating in an 
investigation under the Act, including all Team members, other NIST 
employees participating in the investigation, private sector experts, 
university experts, representatives of professional organizations, 
employees of other Federal, state, or local government entities, and 
other contractors.
    Lead Investigator. A Team member who is a NIST employee and is 
designated by the Director to lead a Team.
    NIST. The National Institute of Standards and Technology.
    Team. A team established by the Director and deployed to conduct an 
investigation under the Act.

[68 FR 4694, Jan. 30, 2003, as amended at 68 FR 66704, Nov. 28, 2003]



             Subpart B_Establishment and Deployment of Teams

    Source: 68 FR 66704, Nov. 28, 2003, unless otherwise noted.



Sec.  270.100  General.

    (a) Based on prior NIST experience, NIST expects that the Director 
will establish and deploy a Team to conduct an investigation at a 
frequency of approximately once per year or less.
    (b) For purposes of this part, a building failure may involve one or 
more of the following: structural system, fire protection (active or 
passive) system, air-handling system, and building control system. Teams 
established under the Act and this part will investigate these technical 
causes of building failures and will also investigate the technical 
aspects of evacuation and emergency response procedures, including 
multiple-occupant behavior or evacuation (egress or access) system, 
emergency response system, and emergency communication system.
    (c) For purposes of this part, the number of fatalities considered 
to be

[[Page 342]]

``substantial'' will depend on the nature of the event, its impact, its 
unusual or unforeseen character, historical norms, and other pertinent 
factors.

[68 FR 66704, Nov. 28, 2003, as amended at 69 FR 33571, June 16, 2004]



Sec.  270.101  Preliminary reconnaissance.

    (a) To the extent the Director deems it appropriate, the Director 
may conduct a preliminary reconnaissance at the site of a building 
failure. The Director may establish and deploy a Team to conduct the 
preliminary reconnaissance, as described in Sec.  270.102 of this 
subpart, or may have information gathered at the site of a building 
failure without establishing a Team.
    (b) If the Director establishes and deploys a Team to conduct the 
preliminary reconnaissance, the Team shall perform all duties pursuant 
to section 2(b)(2) of the Act, and may perform all activities that Teams 
are authorized to perform under the Act and these procedures, including 
gathering and preserving evidence. At the completion of the preliminary 
reconnaissance, the Team will report its findings to the Director in a 
timely manner. The Director may either determine that the Team should 
conduct further investigation, or may direct the Team to prepare its 
public report immediately.
    (c) If the preliminary reconnaissance is conducted without the 
establishment of a Team, the leader of the initial assessment will 
report his/her findings to the Director in a timely manner. The Director 
will decide whether to establish a Team and conduct an investigation 
using the criteria established in Sec.  270.102 of this subpart.



Sec.  270.102  Conditions for establishment and deployment of a Team.

    (a) The Director may establish a Team for deployment after an event 
that caused the failure of a building or buildings that resulted in 
substantial loss of life or posed significant potential for substantial 
loss of life. The Director will determine the following prior to 
deploying a Team:
    (1) The event was any of the following:
    (i) A major failure of one or more buildings or types of buildings 
due to an extreme natural event (earthquake, hurricane, tornado, flood, 
etc.);
    (ii) A fire that resulted in a building failure of the building of 
origin and/or spread beyond the building of origin.
    (iii) A major building failure at significantly less than its design 
basis, during construction, or while in active use; or
    (iv) An act of terrorism or other event resulting in a Presidential 
declaration of disaster and activation of the National Response Plan; 
and
    (2) A fact-finding investigation of the building performance and 
emergency response and evacuation procedures will likely result in 
significant and new knowledge or building code revision recommendations 
needed to reduce or mitigate public risk and economic losses from future 
building failures.
    (b) In making the determinations pursuant to paragraph (a) of this 
section, the Director will consider the following:
    (1) Whether sufficient financial and personnel resources are 
available to conduct an investigation; and
    (2) Whether an investigation of the building failure warrants the 
advanced capabilities and experiences of a Team; and
    (3) If the technical cause of the failure is readily apparent, 
whether an investigation is likely to result in relevant knowledge other 
than reaffirmation of the technical cause; and
    (4) Whether deployment of a Team will substantially duplicate local 
or state resources equal in investigatory and analytical capability and 
quality to a Team; and
    (5) Recommendations resulting from a preliminary reconnaissance of 
the site of the building failure.
    (c) To the maximum extent practicable, the Director will establish 
and deploy a Team within 48 hours after such an event.

[68 FR 66704, Nov. 28, 2003, as amended at 69 FR 33571, June 16, 2004]



Sec.  270.103  Publication in the Federal Register.

    The Director will promptly publish in the Federal Register notice of 
the establishment of each Team.

[[Page 343]]



Sec.  270.104  Size and composition of a Team.

    (a) Size of a Team. The size of a Team will depend upon the likely 
scope and complexity of the investigation. A Team may consist of five or 
less members if the investigation is narrowly focused, or a Team may 
consist of twenty or more members divided into groups if the breadth of 
the investigation spans a number of technical issues. In addition, Teams 
may be supported by others at NIST, in other federal agencies, and in 
the private sector, who may conduct supporting experiments, analysis, 
interviews witnesses, and/or examine the response of first responders, 
occupants, etc.
    (b) Composition of a Team. (1) A Team will be composed of 
individuals selected by the Director and led by a Lead Investigator 
designated by the Director.
    (2) The Lead Investigator will be a NIST employee, selected based on 
his/her technical qualifications, ability to mobilize and lead a multi-
disciplinary investigative team, and ability to deal with sensitive 
issues and the media.
    (3) Team members will include at least one employee of NIST and will 
include experts who are not employees of NIST, who may include private 
sector experts, university experts, representatives of professional 
organizations with appropriate expertise, and appropriate Federal, 
State, or local officials.
    (4) Team members who are not Federal employees will be Federal 
Government contractors.
    (5) Teams may include members who are experts in one or more of the 
following disciplines: civil, structural, mechanical, electrical, fire, 
forensic, safety, architectural, and materials engineering, and 
specialists in emergency response, human behavior, and evacuation.
    (c) Duration of a Team. A Team's term will end 3 months after the 
Team's final public report is published, but the term may be extended or 
terminated earlier by the Director.

[68 FR 66704, Nov. 28, 2003, as amended at 69 FR 33571, June 16, 2004]



Sec.  270.105  Duties of a Team.

    (a) A Team's Lead Investigator will organize, conduct, and control 
all technical aspects of the investigation, up to and including the 
completion of the final investigation public report and any subsequent 
actions that may be required. The Lead Investigator has the 
responsibility and authority to supervise and coordinate all resources 
and activities of NIST personnel involved in the investigation. The Lead 
Investigator may be the Contracting Officer's Technical Representative 
(COTR) on any contract for service on the Team or in support of the 
Team; while the COTR remains the technical representative of the 
Contracting Officer for purposes of contract administration, the Lead 
Investigator will oversee all NIST personnel acting as COTRs for 
contracts for service on the Team or in support of the Team. The Lead 
Investigator's duties will terminate upon termination of the Team. The 
Lead Investigator will keep the Director and the NCST Advisory Committee 
informed about the status of investigations.
    (b) A Team will:
    (1) Establish the likely technical cause or causes of the building 
failure;
    (2) Evaluate the technical aspects of evacuation and emergency 
response procedures;
    (3) Recommend, as necessary, specific improvements to building 
standards, codes, and practices based on the findings made pursuant to 
paragraphs (b)(1) and (b)(2) of this section;
    (4) Recommend any research and other appropriate actions needed to 
improve the structural safety of buildings, and improve evacuation and 
emergency response procedures, based on the findings of the 
investigation; and
    (5) Not later than 90 days after completing an investigation, issue 
a public report in accordance with Sec.  270.205 of this subpart.
    (c) In performing these duties, a Team will:
    (1) Not interfere unnecessarily with services provided by the owner 
or operator of the buildings, building components, materials, artifacts, 
property, records, or facility;

[[Page 344]]

    (2) Preserve evidence related to the building failure consistent 
with the ongoing needs of the investigation;
    (3) Preserve evidence related to a criminal act that may have caused 
the building failure;
    (4) Not impede and coordinate its investigation with any search and 
rescue efforts being undertaken at the site of the building failure;
    (5) Coordinate its investigation with qualified researchers who are 
conducting engineering or scientific research (including social science) 
relating to the building failure;
    (6) Cooperate with State and local authorities carrying out any 
activities related to a Team's investigation;
    (d) In performing these duties, in a manner consistent with the 
procedures set forth in this part, a Team may:
    (1) Enter property where a building failure being investigated has 
occurred and take necessary, appropriate, and reasonable action to carry 
out the duties described in paragraph (b) of this section;
    (2) Inspect any record, process, or facility related to the 
investigation during reasonable hours;
    (3) Inspect and test any building components, materials, and 
artifacts related to the building failure; and
    (4) Move records, components, materials, and artifacts related to 
the building failure.



Sec.  270.106  Conflicts of interest related to service on a Team.

    (a) Team members who are not Federal employees will be Federal 
Government contractors.
    (b) Contracts between NIST and Team members will include appropriate 
provisions to ensure that potential conflicts of interest that arise 
prior to award or during the contract are identified and resolved.



                        Subpart C_Investigations

    Source: 68 FR 66704, Nov. 28, 2003, unless otherwise noted.



Sec.  270.200  Technical conduct of investigation.

    (a) Preliminary reconnaissance. (1) An initial assessment of the 
event, including an initial site reconnaissance, if deemed appropriate 
by the Director, will be conducted. This assessment will be done within 
a few hours of the event, if possible. The Director may establish and 
deploy a Team to conduct the preliminary reconnaissance, using the 
criteria established in Sec.  270.102 of this part, or may have 
information gathered at the site of a building failure without 
establishing a Team.
    (2) If the Director establishes and deploys a Team to conduct the 
preliminary reconnaissance, the Team shall perform all duties pursuant 
to section 2(b)(2) of the Act, and may perform all activities that Teams 
are authorized to perform under the Act and these procedures, with a 
focus on gathering and preserving evidence, inspecting the site of the 
building failure, and interviewing of eyewitnesses, survivors, and first 
responders. Collections of evidence by a Team established for 
preliminary reconnaissance are investigatory in nature and will not be 
considered research for any purpose. At the completion of the 
preliminary reconnaissance, the Team will report its findings to the 
Director in a timely manner. The Director may either determine that the 
Team should conduct further investigation, or may direct the Team to 
immediately prepare the public report as required by section 8 of the 
Act.
    (3) If the preliminary reconnaissance is conducted without the 
establishment of a Team, the leader of the initial assessment will 
report his/her findings to the Director in a timely manner. The Director 
will decide whether to establish a team and conduct an investigation 
using the criteria established in Sec.  270.102 of this part.
    (b) Investigation plan. (1) If the Director establishes a Team 
without ordering preliminary reconnaissance, establishes a Team after 
preliminary reconnaissance, or establishes a Team to conduct preliminary 
reconnaissance and subsequently determines that further investigation is 
necessary prior to preparing the public report required by section 8 of 
the Act, the Director, or his/her designee, will formulate a plan that 
includes:
    (i) A brief description of the building failure;

[[Page 345]]

    (ii) The criteria upon which the decision to conduct the 
investigation was based;
    (iii) Supporting effort(s) by other organizations either in place or 
expected in the future;
    (iv) Identification of the Lead Investigator and Team members;
    (v) The technical investigation plan;
    (vi) Site, community, and local, state, and Federal agency liaison 
status; and
    (vii) Estimated duration and cost.
    (2) To the extent practicable, the Director will include the most 
appropriate expertise on each Team from within NIST, other government 
agencies, and the private sector. The NCST Advisory Committee may be 
convened as soon as feasible following the launch of an investigation to 
provide the Director the benefit of its advice on investigation Team 
activities.
    (c) Investigation. (1) The duration of an investigation that 
proceeds beyond preliminary reconnaissance will be as little as a few 
months to as long as a few years depending on the complexity of the 
event.
    (2) Tasks that may be completed during investigations that proceed 
beyond preliminary reconnaissance include:
    (i) Consult with experts in building design and construction, fire 
protection engineering, emergency evacuation, and members of other 
investigation teams involved in the event to identify technical issues 
and major hypotheses requiring investigation.
    (ii) Collect data from the building(s) owner and occupants, local 
authorities, and contractors and suppliers. Such data will include 
relevant building and fire protection documents, records, video and 
photographic data, field data, and data from interviews and other oral 
and written accounts from building occupants, emergency responders, and 
other witnesses.
    (iii) Collect and analyze physical evidence, including material 
samples and other forensic evidence, to the extent they are available.
    (iv) Determine the conditions in the building(s) prior to the event, 
which may include the materials of construction and contents; the 
location, size, and condition of all openings that may have affected 
egress, entry, and fire conditions (if applicable); the installed 
security and/or fire protection systems (if applicable); the number of 
occupants and their approximate locations at the time of the event.
    (v) Reconstruct the event within the building(s) using computer 
models to identify the most probable technical cause (or causes) of the 
failure and the uncertainty(ies) associated with it (them). Such models 
may include initial damage, blast effects, pre-existing deficiencies and 
phenomena such as fire spread, smoke movement, tenability, occupant 
behavior and response, evacuation issues, cooperation of security and 
fire protection systems, and building collapse.
    (vi) Conduct small and full-scale experiments to provide additional 
data and verify the computer models being used.
    (vii) Examine the impact of alternate building/system/equipment 
design and use on the survivability of the building and its occupants.
    (viii) Analyze emergency evacuation and occupant responses to better 
understand the actions of the first responders and the impediments to 
safe egress encountered by the occupants.
    (ix) Analyze the relevant building practices, including code 
adoption and enforcement practices, to determine the extent to which the 
circumstances that led to this building failure have regional or 
national implications.
    (x) Identify specific areas in building and fire codes, standards, 
and building practices that may warrant revisions based on investigation 
findings.
    (xi) Identify research and other appropriate actions required to 
help prevent future building failures.
    (d) If a disaster site contains multiple building failures, the 
Director will narrow the scope of the investigation plan taking into 
account available financial and personnel resources, and giving priority 
to failures offering the most opportunity to advance the safety of 
building codes. The Director may consider the capabilities of NIST in 
establishing priorities.

[68 FR 66704, Nov. 28, 2003, as amended at 69 FR 33571, June 16, 2004]

[[Page 346]]



Sec.  270.201  Priority of investigation.

    (a) General. Except as provided in this section, a Team 
investigation will have priority over any other investigation of any 
other Federal agency.
    (b) Criminal acts. (1) If the Attorney General, in consultation with 
the Director, determines, and notifies the Director that circumstances 
reasonably indicate that the building failure being investigated by a 
Team may have been caused by a criminal act, the Team will relinquish 
investigative priority to the appropriate law enforcement agency.
    (2) If a criminal investigation of the building failure being 
investigated by a Team is initiated at the state or local level, the 
Team will relinquish investigative priority to the appropriate law 
enforcement agency.
    (3) The relinquishment of investigative priority by the Team will 
not otherwise affect the authority of the Team to continue its 
investigation under the Act.
    (c) National Transportation Safety Board. If the National 
Transportation Safety Board is conducting an investigation related to an 
investigation of a Team, the National Transportation Safety Board 
investigation will have priority over the Team investigation. Such 
priority will not otherwise affect the authority of the Team to continue 
its investigation under the Act.
    (d) Although NIST will share any evidence of criminal activity that 
it obtains in the course of an investigation under the Act with the 
appropriate law enforcement agency, NIST will not participate in the 
investigation of any potential criminal activity.



Sec.  270.202  Coordination with search and rescue efforts.

    NIST will coordinate its investigation with any search and rescue or 
search and recovery efforts being undertaken at the site of the building 
failure, including FEMA urban search and rescue teams, local emergency 
management agencies, and local emergency response groups. Upon arrival 
at a disaster site, the Lead Investigator will identify the lead of the 
search and rescue operations and will work closely with that person to 
ensure coordination of efforts.

[68 FR 66704, Nov. 28, 2003, as amended at 69 FR 33571, June 16, 2004]



Sec.  270.203  Coordination with Federal, State, and local entities.

    NIST will enter into Memoranda of Understanding with Federal, State, 
and local entities, as appropriate, to ensure the coordination of 
investigations.



Sec.  270.204  Provision of additional resources and services needed 
by a Team.

    The Director will determine the appropriate resources that a Team 
will require to carry out its investigation and will ensure that those 
resources are available to the Team.



Sec.  270.205  Reports.

    (a) Not later than 90 days after completing an investigation, a Team 
shall issue a public report which includes:
    (1) An analysis of the likely technical cause or causes of the 
building failure investigated;
    (2) Any technical recommendations for changes to or the 
establishment of evacuation or emergency response procedures;
    (3) Any recommended specific improvements to building standards, 
codes, and practices; and
    (4) Recommendations for research and other appropriate actions 
needed to help prevent future building failures.
    (b) A Team that is directed to prepare its public report immediately 
after conducting a preliminary reconnaissance will issue a public report 
not later than 90 days after completion of the preliminary 
reconnaissance. The public report will be in accordance with paragraph 
(a) of this section, but will be summary in nature.
    (c) A Team that continues to conduct an investigation after 
conducting a preliminary reconnaissance will issue a public report not 
later than 90 days after completing the investigation in accordance with 
paragraph (a) of this section.

[[Page 347]]



Sec.  270.206  Public briefings and requests for information.

    (a) NIST will establish methods to provide updates to the public on 
its planning and progress of an investigation. Methods may include:
    (1) A public Web site;
    (2) Mailing lists, to include an emphasis on e-mail;
    (3) Semi-annual written progress reports;
    (4) Media briefings; and
    (5) Public meetings.
    (b) Requests for information on the plans and conduct of an 
investigation should be submitted to the NIST Public and Business 
Affairs Division.



 Subpart D_Collection and Preservation of Evidence; Information Created 
       Pursuant to an Investigation; and Protection of Information



Sec.  270.300  Scope.

    During the course of an investigation conducted pursuant to the Act, 
evidence will be collected, and information will be created by the Team, 
NIST, and other investigation participants. This subpart sets forth the 
policy and procedures for the collection, preservation, and protection 
of evidence obtained and information created pursuant to an 
investigation.



Sec.  270.301  Policy.

    Evidence collected and information created by Team members and all 
other investigation participants will be collected, preserved, and 
protected in accordance with the procedures set forth in this subpart.

                         Collection of Evidence



Sec.  270.310  Evidence collected by investigation participants who are
not NIST employees.

    Upon receipt of evidence pursuant to an investigation under the Act, 
each investigation participant who is not a NIST employee shall:
    (a) As soon as practicable, transfer the original evidence to NIST, 
and retain a copy of the evidence only if necessary to carry out their 
duties under the investigation; and
    (b) For any evidence that cannot reasonably be duplicated, retain 
the evidence in accordance with NIST procedures for preserving evidence 
as described in Sec.  270.330 of this subpart, and upon completion of 
the duties for which retention of the evidence is necessary, transfer 
the evidence to NIST.

[68 FR 4694, Jan. 30, 2003, as amended at 68 FR 24345, May 7, 2003]



Sec.  270.311  Collection of evidence.

    (a) In the course of an investigation, evidence normally will be 
collected following the procedures described in Sec. Sec.  270.312 
through 270.315 of this subpart.
    (b) Upon a written showing by the Lead Investigator of urgent and 
compelling reasons to believe that evidence may be destroyed, or that a 
witness may become unavailable, were the procedures described in 
Sec. Sec.  270.312 through 270.314 of this subpart followed, the 
Director, with the concurrence of the General Counsel, may immediately 
issue a subpoena for such evidence or testimony, pursuant to Sec.  
270.315 of this subpart.



Sec.  270.312  Voluntary submission of evidence.

    After the Director establishes and deploys a Team, members of the 
public are encouraged to voluntarily submit to the Team non-privileged 
evidence that is relevant to the subject matter of the pending 
investigation.

[68 FR 4694, Jan. 30, 2003, as amended at 68 FR 24345, May 7, 2003]



Sec.  270.313  Requests for evidence.

    (a) After the Director establishes and deploys a Team, the Lead 
Investigator, or their designee, may request the testimony of any person 
by deposition, upon oral examination or written questions, and may 
request documents or other physical evidence without seeking prior 
approval of the Director.
    (b) Requests for responses to written questions will be made in 
writing and shall include:
    (1) A statement that the request is made to gather evidence 
necessary to an investigation being conducted under the Act;

[[Page 348]]

    (2) Identification of the person whose responses are sought;
    (3) Contact information for the person to whom the responses should 
be submitted;
    (4) The date and time by which the responses are requested;
    (5) A statement that the questions for which responses are sought 
are attached; and
    (6) Contact information for the person to whom questions or problems 
regarding the request should be addressed.
    (c) Requests for documents or other physical evidence will be made 
in writing and shall include:
    (1) A statement that the request is made to gather evidence 
necessary to an investigation being conducted under the Act;
    (2) A description of the documents or other physical evidence 
sought;
    (3) Identification of the person or persons to whom the request is 
made;
    (4) A request that each person to whom the request is directed 
produce and permit inspection and copying of the documents and physical 
evidence in the possession, custody, or control of that person at a 
specific time and place; and
    (5) Contact information for the person to whom questions or problems 
regarding the request should be addressed.
    (d) Requests for witness testimony will be made in writing and shall 
include:
    (1) The name of the person whose testimony is requested;
    (2) The date, time, and place of the deposition;
    (3) A statement that the person whose testimony is requested may be 
accompanied by an attorney; and
    (4) Contact information for the person to whom questions or problems 
regarding the request should be addressed.
    (e) Collections of evidence under paragraphs (b), (c), and (d) of 
this section are investigatory in nature and will not be considered 
research for any purpose.

[68 FR 4694, Jan. 30, 2003, as amended at 68 FR 66707, Nov. 28, 2003]



Sec.  270.314  Negotiations.

    The Lead Investigator may enter into discussions with appropriate 
parties to address problems identified with the submission of evidence 
requested pursuant to Sec.  270.313 of this subpart. Should negotiations 
fail to result in the submission of such evidence, a subpoena may be 
issued pursuant to Sec.  270.315.

[68 FR 4694, Jan. 30, 2003, as amended at 68 FR 24345, May 7, 2003]



Sec.  270.315  Subpoenas.

    (a) General. Subpoenas requiring the attendance of witnesses or the 
production of documentary or physical evidence for the purpose of taking 
depositions or at a hearing may be issued only under the signature of 
the Director with the concurrence of the General Counsel, but may be 
served by any person designated by the Counsel for NIST on behalf of the 
Director.
    (b) Determination whether to issue a subpoena. In determining 
whether to issue a subpoena, the Director will consider the following 
factors:
    (1) Whether the testimony, documentary, or physical evidence is 
required for an investigation being conducted pursuant to the Act;
    (2) Whether the evidence sought is relevant to the purpose of the 
investigation;
    (3) Whether NIST already has the evidence in its possession; and
    (4) Whether the evidence required is described with specificity.
    (c) Contents of a subpoena. A subpoena issued by the Director will 
contain the following:
    (1) A statement that the subpoena is issued by the Director pursuant 
to section 5 of the Act;
    (2) A description of the documents or physical evidence or the 
subject matter of the testimony required by the subpoena;
    (3) A command that each person to whom it is directed attend and 
give testimony or produce and permit inspection and copying of 
designated books, documents or physical evidence in the possession, 
custody or control of that person at a time and place specified in the 
subpoena;

[[Page 349]]

    (4) A statement that any person whose testimony is required by the 
subpoena may be accompanied by an attorney; and
    (5) The signature of the Director.
    (d) Service of a subpoena. Service of a subpoena will be effected:
    (1) By personal service upon the person or agent of the person whose 
testimony is required or who is in charge of the documentary or physical 
evidence required; or
    (2) By certified mail, return receipt requested, or delivery to the 
last known residence or business address of such person or agent; or
    (3) Where personal service, mailing, or delivery has been 
unsuccessful, service may also be effected by publication in the Federal 
Register.
    (e) Witness fees. Witnesses will be entitled to the same fees and 
mileage as are paid to witnesses in the courts of the United States.
    (f) Failure to obey a subpoena. If a person disobeys a subpoena 
issued by the Director under the Act, the Attorney General, acting on 
behalf of the Director, may bring civil action in a district court of 
the United States to enforce the subpoena. The court may punish a 
failure to obey an order of the court to comply with the subpoena as a 
contempt of court.

[68 FR 4694, Jan. 30, 2003, as amended at 68 FR 24345, May 7, 2003; 68 
FR 66707, Nov. 28, 2003]



Sec.  270.316  Public hearings.

    (a) During the course of an investigation by a Team, if the Director 
considers it to be in the public interest, NIST may hold a public 
hearing for the purposes of gathering testimony from witnesses and 
informing the public on the progress of the investigation.
    (b) Should NIST plan to hold a public hearing, NIST will publish a 
notice in the Federal Register, setting forth the date, time, and place 
of the hearing, and procedures for members of the public wishing to 
speak at the hearing. In addition, witnesses may be subpoenaed to 
provide testimony at a public hearing, in accordance with Sec.  270.315 
of this subpart.
    (c) The Director, or his designee, will preside over any public 
hearing held pursuant to this section.

                          Entry and Inspection



Sec.  270.320  Entry and inspection of site where a building failure
has occurred.

    When the Director establishes and deploys a Team, the Team members 
will be issued notices of inspection authority to enter and inspect the 
site where the building failure has occurred.



Sec.  270.321  Entry and inspection of property where building components,
materials, artifacts, and records with respect to a building failure 
are located.

    (a) In the course of an investigation, entry and inspection of 
property where building components, materials, artifacts and records 
with respect to a building failure are located normally will be 
conducted following the procedures described in Sec. Sec.  270.322 
through 270.325 of this subpart.
    (b) Upon a written showing by the Lead Investigator of urgent and 
compelling reasons to believe that building components, materials, 
artifacts or records located on a particular property may be destroyed 
were the procedures described in Sec. Sec.  270.322 through 270.324 of 
this subpart followed, the Director, with the concurrence of the General 
Counsel may immediately issue a notice of inspection authority for such 
property, pursuant to Sec.  270.325 of this subpart.



Sec.  270.322  Voluntary permission to enter and inspect property where
building components, materials, artifacts, and records with respect to a 
building failure are located.

    After the Director establishes and deploys a Team, members of the 
public are encouraged to voluntarily permit Team members to enter 
property where building components, materials, artifacts, and records 
with respect to the building failure are located, and take action 
necessary, appropriate, and reasonable in light of the nature of the 
property to be inspected and to carry out the duties of the Team.

[[Page 350]]



Sec.  270.323  Requests for permission to enter and inspect property
where building components, materials, artifacts, and records with respect 
to a building failure are located.

    (a) After the Director establishes and deploys a Team, the Lead 
Investigator or their designee may request permission to enter and 
inspect property where building components, materials, artifacts, and 
records with respect to a building failure are located, and take action 
necessary, appropriate, and reasonable in light of the nature of the 
property to be inspected and to carry out the duties of the Team.
    (b) Requests for permission to enter and inspect such property will 
be made in writing and shall include:
    (1) The name and title of the building owner, operator, or agent in 
charge of the building;
    (2) If appropriate, the name of the building to be inspected;
    (3) The address of the building to be inspected;
    (4) The date and time of the inspection;
    (5) If appropriate, a description of particular items to be 
inspected; and
    (6) Contact information for the person to whom questions or problems 
regarding the request should be addressed.



Sec.  270.324  Negotiations.

    The Lead Investigator may enter into discussions with appropriate 
parties to address problems identified with the goal of obtaining the 
permission requested pursuant to Sec.  270.323 of this subpart.



Sec.  270.325  Notice of authority to enter and inspect property where
building components, materials, artifacts, and records with respect to
a building failure are located.

    (a) General. In investigating a building failure pursuant to the 
Act, any member of a Team, or any other person authorized by the 
Director to support a Team, on display of written notice of inspection 
authority provided by the Director with concurrence of the General 
Counsel and appropriate credentials, may
    (1) Enter property where a building failure being investigated has 
occurred, or where building components, materials, and artifacts with 
respect to the building failure are located, and take action necessary, 
appropriate, and reasonable in light of the nature of the property to be 
inspected and to carry out the duties of the Team;
    (2) During reasonable hours, inspect any record (including any 
design, construction, or maintenance record), process, or facility 
related to the investigation;
    (3) Inspect and test any building components, materials, and 
artifacts related to the building failure; and
    (4) Move any record, component, material and artifact as provided by 
this part.
    (b) Conduct of inspection, test, or other action. An inspection, 
test, or other action taken by a Team pursuant to section 4 of the Act 
will be conducted in a way that does not interfere unnecessarily with 
services provided by the owner or operator of the building components, 
materials, or artifacts, property, records, process, or facility, and to 
the maximum extent feasible, preserves evidence related to the building 
failure, consistent with the ongoing needs of the investigation.
    (c) Determination whether to issue a notice of inspection authority. 
In determining whether to issue a notice of inspection authority, the 
Director will consider whether the specific entry and inspection is 
reasonable and necessary for the Team to carry out its duties under the 
Act.
    (d) Notice of inspection authority. Notice of inspection authority 
will be made in writing and shall include:
    (1) A statement that the notice of inspection authority is issued 
pursuant to section 4 of the Act;
    (2) The name and title of the building owner, operator, or agent in 
charge of the building;
    (3) If appropriate, the name of the building to be inspected;
    (4) The address of the building to be inspected;
    (5) The date and time of the inspection;
    (6) If appropriate, a description of particular items to be 
inspected; and
    (7) The signature of the Director.
    (e) Refusal of entry on to property. If upon being presented with a 
notice of inspection by any member of a Team,

[[Page 351]]

or any other person authorized by the Director, the owner, operator, or 
agent in charge of the building or property being inspected refuses to 
allow entry or inspection, the Director may seek the assistance of the 
Department of Justice to obtain a warrant or other authorized judicial 
order enabling entry on to the property.

                        Preservation of Evidence



Sec.  270.330  Moving and preserving evidence.

    (a) A Team and NIST will take all necessary steps in moving and 
preserving evidence obtained during the course of an investigation under 
the Act to ensure that such evidence is preserved.
    (b) In collecting and preserving evidence in the course of an 
investigation under the Act, a Team and NIST will:
    (1) Maintain records to ensure that each piece of evidence is 
identified as to its source;
    (2) Maintain and document an appropriate chain of custody for each 
piece of evidence;
    (3) Use appropriate means to preserve each piece of evidence; and
    (4) Ensure that each piece of evidence is kept in a suitably secure 
facility.
    (c) If a Federal law enforcement agency suspects and notifies the 
Director that a building failure being investigated by a Team under the 
Act may have been caused by a criminal act, the Team, in consultation 
with the Federal law enforcement agency, will take necessary actions to 
ensure that evidence of the criminal act is preserved and that the 
original evidence or copies, as appropriate, are turned over to the 
appropriate law enforcement authorities.

            Information Created Pursuant to an Investigation



Sec.  270.340  Information created by investigation participants who 
are not NIST employees.

    Unless requested sooner by the Lead Investigator, at the conclusion 
of an investigation, each investigation participant who is not a NIST 
employee shall transfer any original information they created pursuant 
to the investigation to NIST. An investigation participant may retain a 
copy of the information for their records but may not use the 
information for purposes other than the investigation, nor may they 
release, reproduce, distribute, or publish any information first 
developed pursuant to the investigation, nor authorize others to do so, 
without the written permission of the Director or their designee. 
Pursuant to 15 U.S.C. 281a, no such information may be admitted or used 
as evidence in any suit or action for damages arising out of any matter 
related to the investigation.

                        Protection of Information



Sec.  270.350  Freedom of Information Act.

    As permitted by section 7(b) of the Act, the following information 
will not be released:
    (a) Information described by section 552(b) of Title 5, United 
States Code, or protected from disclosure by any other law of the United 
States; and
    (b) Copies of evidence collected, information created, or other 
investigation documents submitted or received by NIST, a Team, or any 
other investigation participant, until the final investigation report is 
issued.



Sec.  270.351  Protection of voluntarily submitted information.

    Notwithstanding any other provision of law, a Team, NIST, any 
investigation participant, and any agency receiving information from a 
Team, NIST, or any other investigation participant, will not disclose 
voluntarily provided safety-related information if that information is 
not directly related to the building failure being investigated and the 
Director finds that the disclosure of the information would inhibit the 
voluntary provision of that type of information.



Sec.  270.352  Public safety information.

    A Team, NIST, and any other investigation participant will not 
publicly release any information it receives in the course of an 
investigation under the Act if the Director finds that the disclosure 
might jeopardize public safety.

[[Page 352]]



     SUBCHAPTER H_MARKING OF TOY, LOOK-ALIKE, AND IMITATION FIREARMS





PART 272_MARKING OF TOY, LOOK-ALIKE AND IMITATION FIREARMS-
-Table of Contents



Sec.
272.1 Applicability.
272.2 Prohibitions.
272.3 Approved markings.
272.4 Waiver.
272.5 Preemption.

    Authority: Section 4 of the Federal Energy Management Improvement 
Act of 1988, 15 U.S.C. 5001.

    Source: 54 FR 19358, May 5, 1989, unless otherwise noted. 
Redesignated at 78 FR 4765, Jan. 23, 2013.



Sec.  272.1  Applicability.

    This part applies to toy, look-alike, and imitation firearms 
(``devices'') having the appearance, shape, and/or configuration of a 
firearm and produced or manufactured and entered into commerce on or 
after May 5, 1989, including devices modelled on real firearms 
manufactured, designed, and produced since 1898. This part does not 
apply to:
    (a) Non-firing collector replica antique firearms, which look 
authentic and may be a scale model but are not intended as toys modelled 
on real firearms designed, manufactured, and produced prior to 1898;
    (b) Traditional B-B, paint-ball, or pellet-firing air guns that 
expel a projectile through the force of compressed air, compressed gas 
or mechanical spring action, or any combination thereof, as described in 
American Society for Testing and Materials standard F 589-85, Standard 
Consumer Safety Specification for Non-Powder Guns, June 28, 1985. This 
incorporation by reference was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies 
may be obtained from the IHS Inc., 15 Inverness Way East, Englewood, CO 
80112, www.global.ihs.com, Phone: 800.854.7179 or 303.397.7956, Fax: 
303.397.2740, Email: [email protected]. A copy is available for inspection 
in the Office of the Chief Counsel for NIST, National Institute of 
Standards and Technology, Telephone: (301) 975-2803, or at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal_register/code_of_federal_regulations/
ibr_locations.html.
    (c) Decorative, ornamental, and miniature objects having the 
appearance, shape and/or configuration of a firearm, including those 
intended to be displayed on a desk or worn on bracelets, necklaces, key 
chains, and so on, provided that the objects measure no more than 
thirty-eight (38) millimeters in height by seventy (70) millimeters in 
length, the length measurement excluding any gun stock length 
measurement.

[57 FR 48453, Oct. 26, 1992, as amended at 69 FR 18803, Apr. 9, 2004. 
Redesignated and amended at 78 FR 4765, Jan. 23, 2013]



Sec.  272.2  Prohibitions.

    No person shall manufacture, enter into commerce, ship, transport, 
or receive any toy, look-alike, or imitation firearm (``device'') 
covered by this part as set forth in Sec.  272.1 unless such device 
contains, or has affixed to it, one of the markings set forth in Sec.  
272.3, or unless this prohibition has been waived by Sec.  272.4.

[78 FR 4765, Jan. 23, 2013]



Sec.  272.3  Approved markings.

    The following markings are approved by the Secretary of Commerce:
    (a) A blaze orange (Fed-Std-595B 12199) or orange color brighter 
than that specified by the federal standard color number, solid plug 
permanently affixed to the muzzle end of the barrel as an integral part 
of the entire device and recessed no more than 6 millimeters from the 
muzzle end of the barrel.
    (b) A blaze orange (Fed-Std-595B 12199) or orange color brighter 
than that specified by the Federal Standard color number, marking 
permanently affixed to the exterior surface of the barrel, covering the 
circumference of

[[Page 353]]

the barrel from the muzzle end for a depth of at least 6 millimeters.
    (c) Construction of the device entirely of transparent or 
translucent materials which permits unmistakable observation of the 
device's complete contents.
    (d) Coloration of the entire exterior surface of the device in 
white, bright red, bright orange, bright yellow, bright green, bright 
blue, bright pink, or bright purple, either singly or as the predominant 
color in combination with other colors in any pattern.
    (e) This incorporation by reference was approved by the Director of 
the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 
51. Copies of Federal Standard 595B, December 1989, color number 12199 
(Fed-Std-595B 12199), may be obtained from the General Services 
Administration at General Services Administration, Federal Acquisition 
Service, FAS Office of General Supplies and Services, Engineering and 
Cataloging Division (QSDEC) Arlington, VA 22202 or at the General 
Services Administration Web site at: http://apps.fas.gsa.gov /pub/
fedspecs/. A copy may be inspected in the Office of the Chief Counsel 
for NIST, National Institute of Standards and Technology, Telephone: 
(301) 975-2803 or at the National Archives and Records Administration 
(NARA). For information on the availability of this material at NARA, 
call 202-741-6030, or go to: http://www.archives.gov/federal_register/
code_of_federal_regulations/ibr_locations.html.

[54 FR 19358, May 5, 1989, as amended at 57 FR 48454, Oct. 26, 1992; 69 
FR 18803, Apr. 9, 2004. Redesignated and amended at 78 FR 4765, Jan. 23, 
2013]



Sec.  272.4  Waiver.

    The prohibitions set forth in Sec.  272.2 may be waived for any toy, 
look-alike or imitation firearm that will be used only in the 
theatrical, movie or television industry. A request for such a waiver 
should be made, in writing, to the Chief Counsel for NIST, National 
Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 1052, 
Gaithersburg, Maryland 20899-1052. The request must include a sworn 
affidavit which states that the toy, look-alike, or imitation firearm 
will be used only in the theatrical, movie or television industry. A 
sample of the item must be included with the request.

[78 FR 4765, Jan. 23, 2013]



Sec.  272.5  Preemption.

    In accordance with section 4(g) of the Federal Energy Management 
Improvement Act of 1988 (15 U.S.C. 5001(g)), the provisions of section 
4(a) of that Act and the provisions of this part supersede any provision 
of State or local laws or ordinances which provides for markings or 
identification inconsistent with the provisions of section 4 of that Act 
or the provisions of this part.

[54 FR 19358, May 5, 1989. Redesignated at 78 FR 4765, Jan. 23, 2013]

[[Page 354]]



       SUBCHAPTER I_METRIC CONVERSION POLICY FOR FEDERAL AGENCIES





PART 273_METRIC CONVERSION POLICY FOR FEDERAL AGENCIES--Table of Contents



Sec.
273.1 Purpose.
273.2 Definition.
273.3 General policy.
273.4 Guidelines.
273.5 Recommendations for agency organization.
273.6 Reporting requirement.
273.7-1170.199 [Reserved]

    Authority: 15 U.S.C. 1512 and 3710, 15 U.S.C. 205a, DOO 30-2A.

    Source: 56 FR 160, Jan. 2, 1991, unless otherwise noted. 
Redesignated at 56 FR 41283, Aug. 20, 1991, and further redesignated at 
78 FR 4766, Jan. 23, 2013.



Sec.  273.1  Purpose.

    To provide policy direction for Federal agencies in their transition 
to use of the metric system of measurement.



Sec.  273.2  Definition.

    Metric system means the International System of Units (SI) 
established by the General Conference of Weights and Measures in 1960, 
as interpreted or modified from time to time for the United States by 
the Secretary of Commerce under the authority of the Metric Conversion 
Act of 1975 and the Metric Education Act of 1978.
    Other business-related activities means measurement sensitive 
commercial or business directed transactions or programs, i.e., standard 
or specification development, publications, or agency statements of 
general applicability and future effect designed to implement, 
interpret, or prescribe law or policy or describing the procedure or 
practice requirements of an agency. ``Measurement sensitive'' means the 
choice of measurement unit is a critical component of the activity, 
i.e., an agency rule/regulation to collect samples or measure something 
at specific distances or to specific depths, specifications requiring 
intake or discharge of a product to certain volumes or flow rates, 
guidelines for clearances between objects for safety, security or 
environmental purposes, etc.



Sec.  273.3  General policy.

    The Omnibus Trade and Competitiveness Act of 1988 (Pub. L. 100-418, 
section 5164) amended the Metric Conversion Act of 1975 to, among other 
things, require that each Federal agency, by a date certain and to the 
extent economically feasible by the end of the fiscal year 1992, use the 
metric system of measurement in its procurements, grants, and other 
business-related activities, except to the extent that such use is 
impractical or is likely to cause significant inefficiencies or loss of 
markets to United States firms, such as when foreign competitors are 
producting competing products in non-metric units.
    (a) The Director of the National Institute of Standards and 
Technology will assist in coordinating the efforts of Federal agencies 
in meeting their obligations under the Metric Conversion Act, as 
amended.
    (b) Federal agencies shall coordinate and plan for the use of the 
metric system in their procurements, grants and other business-related 
activities consistent with the requirements of the Metric Conversion 
Act, as amended. Federal agencies shall encourage and support an 
environment which will facilitate the transition process. When taking 
initiatives, they shall give due consideration to known effects of their 
actions on State and local governments and the private sector, paying 
particular attention to effects on small business.
    (c) Each Federal agency shall be responsible for developing plans, 
establishing necessary organizational structure, and allocating 
appropriate resources to carry out this policy.

[56 FR 160, Jan. 2, 1991. Redesignated at 56 FR 41283, Aug. 20, 1991, 
and further redesignated and amended at 78 FR 4766, Jan. 23, 2013]



Sec.  273.4  Guidelines.

    Each agency shall:
    (a) Establish plans and dates for use of the metric system in 
procurements, grants and other business-related activities;

[[Page 355]]

    (b) Coordinate metric transition plans with other Federal agencies, 
State and local governments and the private sector;
    (c) Require maximum practical use of metric in areas where Federal 
procurement and activity represents a predominant influence on industry 
standards (e.g.: weapon systems or space exploration). Strongly 
encourage metrication in industry standards where Federal procurement 
and activity is not the predominant influence, consistent with the legal 
status of the metric system as the preferred system of weights and 
measures for United States trade and commerce;
    (d) Assist in resolving metric-related problems brought to the 
attention of the agency that are associated with agency actions, 
activities or programs undertaken in compliance with these guidelines or 
other laws or regulations;
    (e) Identify measurement-sensitive agency policies and procedures 
and ensure that regulations, standards, specifications, procurement 
policies and appropriate legislative proposals are updated to remove 
barriers to transition to the metric system;
    (f) Consider cost effects of metric use in setting agency policies, 
programs and actions and determine criteria for the assessment of their 
economic feasibility. Such criteria should appropriately weigh both 
agency costs and national economic benefits related to changing to the 
use of metric;
    (g) Provide for full public involvement and timely information about 
significant metrication policies, programs and actions;
    (h) Seek out ways to increase understanding of the metric system of 
measurement through educational information and guidance and in agency 
publications;
    (i) Consider, particularly, the effects of agency metric policies 
and practices on small business; and
    (j) Consistent with the Federal Acquisition Regulation System (48 
CFR), accept, without prejudice, products and services dimensioned in 
metric when they are offered at competitive prices and meet the needs of 
the Government, and ensure that acquisition planning considers metric 
requirements.



Sec.  273.5  Recommendations for agency organization.

    Each agency shall:
    (a) Participate, as appropriate, in the Interagency Council on 
Metric Policy (ICMP), and/or its working committee, the Metrication 
Operating Committee (MOC), in coordinating and providing policy guidance 
for the U.S. Government's transtion to use of the metric system.
    (b) Designate a senior policy official to be responsible for agency 
metric policy and to represent the agency on the ICMP.
    (c) Designate an appropriate official to represent the agency on the 
Metrication Operating Committee (MOC), an interagency committee 
reporting to the ICMP.
    (d) Maintain liaison with private sector groups (such as the 
American National Metric Council and the U.S Metric Association) that 
are involved in planning for or coordinating National transition to the 
metric system.
    (e) Provide for internal guidelines, training and documentation to 
assure employee awareness and understanding of agency metric policies 
and programs.



Sec.  273.6  Reporting requirement.

    Each Federal agency shall, as part of its annual budget submission 
each fiscal year, report to the Congress on the metric implementation 
actions it has taken during the previous fiscal year. The report will 
include the agency's implementation plans, with a current timetable for 
the agency's transition to the metric system, as well as actions planned 
for the budget year involved to implement fully the metric system, in 
accordance with this policy. Reporting shall cease for an agency in the 
fiscal year after it has fully implemented metric usage, as prescribed 
by the Metric Conversion Act (15 U.S.C. 205b(2).)



Sec. Sec.  273.7-273.199  [Reserved]

[[Page 356]]



           SUBCHAPTER J_ACCREDITATION AND ASSESSMENT PROGRAMS





PART 280_FASTENER QUALITY--Table of Contents



                            Subpart A_General

Sec.
280.1 Description of rule/Delegation of authority.
280.2 Definitions used in this subpart.

     Subpart B_Petitions, Affirmations, and Laboratory Accreditation

280.101 Petitions for approval of documents.
280.102 Affirmations.
280.103 Laboratory accreditation.

                          Subpart C_Enforcement

280.200 Scope.
280.201 Violations.
280.202 Penalties, remedies, and sanctions.
280.203 Administrative enforcement proceedings.
280.204 Institution of administrative enforcement proceedings.
280.205 Representation.
280.206 Filing and service of papers other than charging letter.
280.207 Answer and demand for hearing.
280.208 Default.
280.209 Summary decision.
280.210 Discovery.
280.211 Subpoenas.
280.212 Matter protected against disclosure.
280.213 Prehearing conference.
280.214 Hearings.
280.215 Interlocutory review of rulings.
280.216 Proceeding without a hearing.
280.217 Procedural stipulations; extension of time.
280.218 Decision of the administrative law judge.
280.219 Settlement.
280.220 Reopening.
280.221 Record for decision and availability of documents.
280.222 Appeals.

                     Subpart D_Recordal of Insignia

280.300 Recorded insignia required prior to offer for sale.

                         The Written Application

280.310 Application for insignia.
280.311 Review of the application.
280.312 Certificate of recordal.
280.313 Recordal of additional insignia.

                        Post-Recordal Maintenance

280.320 Maintenance of the certificate of recordal.
280.321 Notification of changes of address.
280.322 Transfer or amendment of the certificate of recordal.
280.323 Transfer or assignment of the trademark registration or recorded 
          insignia.
280.324 Change in status of trademark registration or amendment of the 
          trademark.
280.325 Cumulative listing of recordal information.
280.326 Records and files of the United States Patent and Trademark 
          Office.

    Authority: 15 U.S.C. 5401 et seq.; Pub. L. 101-592, 104 Stat. 2943, 
as amended by Pub. L. 104-113, 110 Stat. 775; Pub. L. 105-234, 112 Stat. 
1536; and Pub. L. 106-34, 113 Stat. 118.

    Source: 61 FR 50558, Sept. 26, 1996, unless otherwise noted.



                            Subpart A_General



Sec.  280.1  Description of rule/Delegation of authority.

    (a) Description of rule. The Fastener Quality Act (the Act) (15 
U.S.C. 5401 et seq., as amended by Public Law 104-113, Public Law 105-
234, and Public Law 106-34):
    (1) Protects against the sale of mismarked, misrepresented, and 
counterfeit fasteners; and
    (2) Eliminates unnecessary requirements.
    (b) Delegations of authority. The Director, National Institute of 
Standards and Technology has authority to promulgate regulations in this 
part regarding certification and accreditation. The Secretary of 
Commerce has delegated concurrent authority to amend the regulations 
regarding enforcement of the Act, as contained in subpart C of this 
part, to the Under Secretary for Export Administration. The Secretary of 
Commerce has also delegated concurrent authority to amend the 
regulations regarding record of insignia, as contained in subpart D of 
this part, to the Under Secretary for Intellectual Property and Director 
of the United States Patent and Trademark Office.

[65 FR 39801, June 28, 2000]

[[Page 357]]



Sec.  280.2  Definitions used in this subpart.

    In addition to the definitions provided in 15 U.S.C. 5402, the 
following definitions are applicable to this part:
    Abandonment of the Application. The application for registration of 
a trademark on the Principal Register is no longer pending at the United 
States Patent and Trademark Office.
    Act. The Fastener Quality Act (15 U.S.C. 5401 et seq., as amended by 
Pub. L. 104-113, Pub. L. 105-234, and Public Law 106-34).
    Administrative law judge (ALJ). The person authorized to conduct 
hearings in administrative enforcement proceedings brought under the 
Act.
    Assistant Secretary. The Assistant Secretary for Export Enforcement, 
Bureau of Export Administration.
    Department. The United States Department of Commerce, specifically, 
the Bureau of Export Administration, NIST and the Patent and Trademark 
Office.
    Director, NIST. The Director of the National Institute of Standards 
and Technology.
    Director, USPTO. The Under Secretary for Intellectual Property and 
Director of the United States Patent and Trademark Office.
    Fastener Insignia Register. The register of recorded fastener 
insignias maintained by the Director.
    Final decision. A decision or order assessing a civil penalty or 
otherwise disposing of or dismissing a case, which is not subject to 
further review under this part, but which is subject to collection 
proceedings or judicial review in an appropriate Federal district court 
as authorized by law.
    Initial decision. A decision of the administrative law judge which 
is subject to review by the Under Secretary for Export Administration, 
but which becomes the final decision of the Department in the absence of 
such an appeal.
    Party. The Department and any person named as a respondent under 
this part.
    Principal Register. The register of trademarks established under 15 
U.S.C. 1051.
    Respondent. Any person named as the subject of a charging letter, 
proposed charging letter, or other order proposed or issued under this 
part.
    Revisions includes changes made to existing ISO/IEC Guides or other 
documents, and redesignations of those Guides or documents.
    Under Secretary. The Under Secretary for Export Administration, 
United States Department of Commerce.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39801, 
June 28, 2000]



     Subpart B_Petitions, Affirmations, and Laboratory Accreditation

    Source: 65 FR 39801, June 28, 2000, unless otherwise noted.



Sec.  280.101  Petitions for approval of documents.

    (a) Certification. (1) A person publishing a document setting forth 
guidance or requirements for the certification of manufacturing systems 
as fastener quality assurance systems by an accredited third party may 
petition the Director, NIST, to approve such document for use as 
described in section 3(7)(B)(iii)(I) of the Act (15 U.S.C. 
5402(7)(B)(iii)(I)).
    (2) Petitions should be submitted to: FQA Document Certification, 
NIST, 100 Bureau Drive, Gaithersburg, MD 20899.
    (3) The Director, NIST, shall approve such petition if the document 
provides equal or greater rigor and reliability as compared to ISO/IEC 
Guide 62, including revisions from time to time. A petition shall 
contain sufficient information to allow the Director, NIST, to make this 
determination.
    (b) Accreditation. (1) A person publishing a document setting forth 
guidance or requirements for the approval of accreditation bodies to 
accredit third parties described in paragraph (a) of this section may 
petition the Director, NIST, to approve such document for use as 
described in section 3(7)(B)(iii)(I) of the Act (15 U.S.C. 
5402(7)(B)(iii)(I)).
    (2) Petitions should be submitted to: FQA Document Certifications, 
NIST, 100 Bureau Drive, Gaithersburg, MD 20899.
    (3) The Director, NIST, shall approve such petition if the document 
provides equal or greater rigor and reliability as

[[Page 358]]

compared to ISO/IEC Guide 61, including revisions from time to time. A 
petition shall contain sufficient information to allow the Director, 
NIST, to make this determination.
    (c) Laboratory accreditation. (1) A person publishing a document 
setting forth guidance or requirements for the accreditation of 
laboratories may petition the Director, NIST, to approve such document 
for use as described in section 3(1)(A) of the Act (15 U.S.C. 
5402(1)(A)).
    (2) Petitions should be submitted to: FQA Document Certifications, 
NIST, 100 Bureau Drive, Gaithersburg, MD 20899.
    (3) The Director, NIST, shall approve such petition if the document 
provides equal or greater rigor and reliability as compared to ISO/IEC 
Guide 25, including revisions from time to time. A petition shall 
contain sufficient information to allow the Director, NIST, to make this 
determination.
    (d) Approval of accreditation bodies. (1) A person publishing a 
document setting forth guidance or requirements for the approval of 
accreditation bodies to accredit laboratories may petition the Director, 
NIST, to approve such document for use as described in section 3(1)(B) 
of the Act (15 U.S.C. 5402(1)(B)).
    (2) Petitions should be submitted to: FQA Document Certifications, 
NIST, 100 Bureau Drive, Gaithersburg, MD 20899.
    (3) The Director, NIST, shall approve such petition if the document 
provides equal or greater rigor and reliability as compared to ISO/IEC 
Guide 58, including revisions from time to time. A petition shall 
contain sufficient information to allow the Director, NIST, to make this 
determination.
    (e) Electronic copies of ISO/IEC Guides may be purchased through the 
American National Standards Institute (ANSI), Internet: http://
www.ansi.org. Copies of the relevant ISO/IEC Guides are available for 
inspection in the U.S. Department of Commerce Reading Room, 14th Street 
and Constitution Avenue, NW, Washington, DC 20230, Room B-399.



Sec.  280.102  Affirmations.

    (a)(1) An accreditation body accrediting third parties who certify 
manufacturing systems as fastener quality assurance systems as described 
in section 3(7)(B)(iii)(I) of the Act (15 U.S.C. 5402(7)(B)(iii)(I)) 
shall affirm to the Director, NIST, that it meets the requirements of 
ISO/IEC Guide 61 (or another document approved by the Director, NIST, 
under section 10(b) of the Act (15 U.S.C. 5411a(b)) and Sec.  280.101(a) 
of this part), including revisions from time to time.
    (2) An accreditation body accrediting laboratories as described in 
section 3(1)(B) of the Act (15 U.S.C. 5402(1)(B)) shall affirm to the 
Director, NIST, that it meets the requirements of ISO/IEC Guide 58 (or 
another document approved by the Director, NIST, under section 10(d) of 
the Act (15 U.S.C. 5411a(d)) and Sec.  280.101(d) of this part), 
including revisions from time to time.
    (b) An affirmation required under paragraph (a)(1) or (a)(2) of this 
section shall take the form of a self-declaration that the accreditation 
body meets the requirements of the applicable Guide, signed by an 
authorized representative of the accreditation body. No supporting 
documentation is required.
    (c) Affirmations should be submitted to: FQA Document 
Certifications, NIST, 100 Bureau Drive, Gaithersburg, MD 20899.
    (d) Any affirmation submitted in accordance with this section shall 
be considered to be a continuous affirmation that the accreditation body 
meets the requirements of the applicable Guide, unless and until the 
affirmation is withdrawn by the accreditation body.



Sec.  280.103  Laboratory accreditation.

    A laboratory may be accredited by any laboratory accreditation 
program that may be established by any entity or entities, which have 
affirmed to the Director, NIST, under Sec.  280.102 of this subpart, or 
by the National Voluntary Laboratory Accreditation Program for 
fasteners, established by the Director, NIST, under part 285 of this 
chapter.



                          Subpart C_Enforcement

    Source: 61 FR 50558, Sept. 26, 1996, unless otherwise noted. 
Redesignated at 65 FR 39802, June 28, 2000.

[[Page 359]]



Sec.  280.200  Scope.

    Section 280.201 of this part specifies that failure to take any 
action required by or taking any action prohibited by this part 
constitutes a violation of this part. Section 280.202 describes the 
penalties that may be imposed for violations of this part. Sections 
280.204 through 280.222 establish the procedures for imposing 
administrative penalties for violations of this part.

[65 FR 39802, June 28, 2000]



Sec.  280.201  Violations.

    (a) Engaging in prohibited conduct. No person may engage in any 
conduct prohibited by or contrary to, or refrain from engaging in any 
action required by the Act, this part, or any order issued thereunder.
    (b) Sale of fasteners. It shall be unlawful for a manufacturer or 
distributor, in conjunction with the sale or offer for sale of fasteners 
from a single lot, to knowingly misrepresent or falsify--
    (1) The record of conformance for the lot of fasteners;
    (2) The identification, characteristics, properties, mechanical or 
performance marks, chemistry, or strength of the lot of fasteners; or
    (3) The manufacturers' insignia.
    (c) Manufacturers' insignia. Unless the specifications provide 
otherwise, fasteners that are required by the applicable consensus 
standard or standards to bear an insignia identifying their manufacturer 
shall not be offered for sale or sold in commerce unless
    (1) The fasteners bear such insignia; and
    (2) The manufacturer has complied with the insignia recordation 
requirements established under 15 U.S.C. 5407(b).

[61 FR 50558, Sept. 26, 1996, as amended at 63 FR 18275, Apr. 14, 1998; 
63 FR 34965, June 26, 1998; 63 FR 51526, Sept. 28, 1998. Redesignated 
and amended at 65 FR 39802, June 28, 2000]



Sec.  280.202  Penalties, remedies, and sanctions.

    (a) Civil remedies. The Attorney General may bring an action in an 
appropriate United States district court for declaratory and injunctive 
relief against any person who violates the Act or any regulation issued 
thereunder. Such action may not be brought more than 10 years after the 
cause of action accrues.
    (b) Civil penalties. Any person who is determined, after notice and 
opportunity for a hearing, to have violated the Act or any regulation 
issued thereunder shall be liable to the United States for a civil 
penalty of not more than $25,000 for each violation.
    (c) Criminal penalties. (1) Whoever knowingly certifies, marks, 
offers for sale, or sells a fastener in violation of the Act or a 
regulation issued thereunder shall be fined under title 18, United 
States Code, or imprisoned not more than 5 years, or both.
    (2) Whoever intentionally fails to maintain records relating to a 
fastener in violation of the Act or a regulation issued thereunder shall 
be fined under title 18, United States Code, or imprisoned not more than 
five years or both.
    (3) Whoever negligently fails to maintain records relating to a 
fastener in violation of the Act or a regulation issued thereunder shall 
be fined under title 18, United States Code, or imprisoned not more than 
two years or both.



Sec.  280.203  Administrative enforcement proceedings.

    Sections 280.204 through 280.222 set forth the procedures for 
imposing administrative penalties for violations of the Act and this 
part.

[65 FR 39802, June 28, 2000]



Sec.  280.204  Institution of administrative enforcement proceedings.

    (a) Charging letters. The Director of the Office of Export 
Enforcement (OEE) may begin administrative enforcement proceedings under 
this part by issuing a charging letter. The charging letter shall 
constitute the formal complaint and will state that there is reason to 
believe that a violation of this part has occurred. It will set forth 
the essential facts about each alleged violation, refer to the specific 
regulatory or other provisions involved, and give notice of the 
sanctions available under the Act and this part. The charging letter 
will inform the respondent that failure to answer the charges as 
provided in Sec.  280.207 of this part will be treated as a default 
under

[[Page 360]]

Sec.  280.208 of this part, that the respondent is entitled to a hearing 
if a written demand for one is requested with the answer, and that the 
respondent may be represented by counsel, or by other authorized 
representative. A copy of the charging letter shall be filed with the 
administrative law judge, which filing shall toll the running of the 
applicable statute of limitations. Charging letters may be amended or 
supplemented at any time before an answer is filed, or, with permission 
of the administrative law judge, afterwards. The Department may 
unilaterally withdraw charging letters at any time, by notifying the 
respondent and the administrative law judge.
    (b) Notice of issuance of charging letter instituting administrative 
enforcement proceeding. A respondent shall be notified of the issuance 
of a charging letter, or any amendment or supplement thereto:
    (1) By mailing a copy by registered or certified mail addressed to 
the respondent at the respondent's last known address;
    (2) By leaving a copy with the respondent or with an officer, a 
managing or general agent, or any other agent authorized by appointment 
or by law to receive service of process for the respondent; or
    (3) By leaving a copy with a person of suitable age and discretion 
who resides at the respondent's last known dwelling.
    (4) Delivery of a copy of the charging letter, if made in the manner 
described in paragraph (b)(2) or (3) of this section, shall be evidenced 
by a certificate of service signed by the person making such service, 
stating the method of service and the identity of the person with whom 
the charging letter was left. The certificate of service shall be filed 
with the administrative law judge.
    (c) Date. The date of service of notice of the issuance of a 
charging letter instituting an administrative enforcement proceeding, or 
service of notice of the issuance of a supplement or amendment to a 
charging letter, is the date of its delivery, or of its attempted 
delivery if delivery is refused.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
June 28, 2000]



Sec.  280.205  Representation.

    A respondent individual may appear and participate in person, a 
corporation by a duly authorized officer or employee, and a partnership 
by a partner. If a respondent is represented by counsel, counsel shall 
be a member in good standing of the bar of any State, Commonwealth or 
Territory of the United States, or of the District of Columbia, or be 
licensed to practice law in the country in which counsel resides if not 
the United States. A respondent personally, or through counsel or other 
representative who has the power of attorney to represent the 
respondent, shall file a notice of appearance with the administrative 
law judge. The Department will be represented by the Office of Chief 
Counsel for Export Administration, U.S. Department of Commerce.



Sec.  280.206  Filing and service of papers other than charging letter.

    (a) Filing. All papers to be filed shall be addressed to ``FQA 
Administrative Enforcement Proceedings,'' at the address set forth in 
the charging letter, or such other place as the administrative law judge 
may designate. Filing by United States mail, first class postage 
prepaid, by express or equivalent parcel delivery service, or by hand 
delivery, is acceptable. Filing by mail from a foreign country shall be 
by airmail. In addition, the administrative law judge may authorize 
filing of papers by facsimile or other electronic means, provided that a 
hard copy of any such paper is subsequently filed. A copy of each paper 
filed shall be simultaneously served on each party.
    (b) Service. Service shall be made by personal delivery or by 
mailing one copy of each paper to each party in the proceeding. Service 
by delivery service or facsimile, in the manner set forth in paragraph 
(a) of this section, is acceptable. Service on the Department shall be 
addressed to the Chief Counsel for Export Administration, Room H-3839, 
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington, DC 20230. Service on a respondent shall be to the address to 
which the charging letter was sent or to such other address as 
respondent

[[Page 361]]

may provide. When a party has appeared by counsel or other 
representative, service on counsel or other representative shall 
constitute service on that party.
    (c) Date. The date of filing or service is the day when the papers 
are deposited in the mail or are delivered in person, by delivery 
service, or by facsimile.
    (d) Certificate of service. A certificate of service signed by the 
party making service, stating the date and manner of service, shall 
accompany every paper, other than the charging letter, filed and served 
on parties.
    (e) Computing period of time. In computing any period of time 
prescribed or allowed by this part or by order of the administrative law 
judge or the Under Secretary, the day of the act, event, or default from 
which the designated period of time begins to run is not to be included. 
The last day of the period so computed is to be included unless it is a 
Saturday, a Sunday, or a legal holiday (as defined in Rule 6(a) of the 
Federal Rules of Civil Procedure), in which case the period runs until 
the end of the next day which is neither a Saturday, a Sunday, nor a 
legal holiday. Intermediate Saturdays, Sundays, and legal holidays are 
excluded from the computation when the period of time prescribed or 
allowed is seven days or less.



Sec.  280.207  Answer and demand for hearing.

    (a) When to answer. The respondent must answer the charging letter 
within 30 days after being served with notice of the issuance of a 
charging letter instituting an administrative enforcement proceeding, or 
within 30 days of notice of any supplement or amendment to a charging 
letter, unless time is extended under Sec.  280.217 of this part.
    (b) Contents of answer. The answer must be responsive to the 
charging letter and must fully set forth the nature of the respondent's 
defense or defenses. The answer must admit or deny specifically each 
separate allegation of the charging letter; if the respondent is without 
knowledge, the answer must so state and will operate as a denial. 
Failure to deny or controvert a particular allegation will be deemed an 
admission of that allegation. The answer must also set forth any 
additional or new matter the respondent believes supports a defense or 
claim of mitigation. Any defense or partial defense not specifically set 
forth in the answer shall be deemed waived, and evidence thereon may be 
refused, except for good cause shown.
    (c) Demand for hearing. If the respondent desires a hearing, a 
written demand for one must be submitted with the answer. Any demand by 
the Department for a hearing must be filed with the administrative law 
judge within 30 days after service of the answer. Failure to make a 
timely written demand for a hearing shall be deemed a waiver of the 
party's right to a hearing, except for good cause shown. If no party 
demands a hearing, the matter will go forward in accordance with the 
procedures set forth in Sec.  280.216 of this part.
    (d) English language required. The answer, all other papers, and all 
documentary evidence must be submitted in English, or translations into 
English must be filed and served at the same time.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
June 28, 2000]



Sec.  280.208  Default.

    (a) General. Failure of the respondent to file an answer within the 
time provided constitutes a waiver of the respondent's right to appear 
and contest the allegations in the charging letter. In such event, the 
administrative law judge, on the Department's motion and without further 
notice to the respondent, shall find the facts to be as alleged in the 
charging letter and render an initial decision containing findings of 
fact and appropriate conclusions of law and issue an initial decision 
and order imposing appropriate sanctions. The decision and order may be 
appealed to the Under Secretary in accordance with the applicable 
procedures set forth in Sec.  280.222 of this part.
    (b) Petition to set aside default--(1) Procedure. Upon petition 
filed by a respondent against whom a default order has been issued, 
which petition is accompanied by an answer meeting the requirements of 
280.207(b) of this part, the Under Secretary may, after giving all 
parties an opportunity to comment,

[[Page 362]]

and for good cause shown, set aside the default and vacate the order 
entered thereon and remand the matter to the administrative law judge 
for further proceedings.
    (2) Time limits. A petition under this section must be made within 
one year of the date of entry of the order which the petition seeks to 
have vacated.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
39803, June 28, 2000]



Sec.  280.209  Summary decision.

    At any time after a proceeding has been initiated, a party may move 
for a summary decision disposing of some or all of the issues. The 
administrative law judge may render an initial decision and issue an 
order if the entire record shows, as to the issue(s) under 
consideration:
    (a) That there is no genuine issue as to any material fact; and
    (b) That the moving party is entitled to a summary decision as a 
matter of law.



Sec.  280.210  Discovery.

    (a) General. The parties are encouraged to engage in voluntary 
discovery regarding any matter, not privileged, which is relevant to the 
subject matter of the pending proceeding. The provisions of the Federal 
Rules of Civil Procedure relating to discovery apply to the extent 
consistent with this part and except as otherwise provided by the 
administrative law judge or by waiver or agreement of the parties. The 
administrative law judge may make any order which justice requires to 
protect a party or person from annoyance, embarrassment, oppression, or 
undue burden or expense. These orders may include limitations on the 
scope, method, time and place of discovery, and provisions for 
protecting the confidentiality of classified or otherwise sensitive 
information.
    (b) Interrogatories and requests for admission or production of 
documents. A party may serve on any party interrogatories, requests for 
admission, or requests for production of documents for inspection and 
copying, and a party concerned may apply to the administrative law judge 
for such enforcement or protective order as that party deems warranted 
with respect to such discovery. The service of a discovery request shall 
be made at least 20 days before the scheduled date of the hearing unless 
the administrative law judge specifies a shorter time period. Copies of 
interrogatories, requests for admission and requests for production of 
documents and responses thereto shall be served on all parties, and a 
copy of the certificate of service shall be filed with the 
administrative law judge. Matters of fact or law of which admission is 
requested shall be deemed admitted unless, within a period designated in 
the request (at least 10 days after service, or within such additional 
time as the administrative law judge may allow), the party to whom the 
request is directed serves upon the requesting party a sworn statement 
either denying specifically the matters of which admission is requested 
or setting forth in detail the reasons why the party to whom the request 
is directed cannot truthfully either admit or deny such matters.
    (c) Depositions. Upon application of a party and for good cause 
shown, the administrative law judge may order the taking of the 
testimony of any person by deposition and the production of specified 
documents or materials by the person at the deposition. The application 
shall state the purpose of the deposition and set forth the facts sought 
to be established through the deposition.
    (d) Enforcement. The administrative law judge may order a party to 
answer designated questions, to produce specified documents or things or 
to take any other action in response to a proper discovery request. If a 
party does not comply with such an order, the administrative law judge 
may make a determination or enter any order in the proceeding as the ALJ 
deems reasonable and appropriate. The ALJ may strike related charges or 
defenses in whole or in part or may take particular facts relating to 
the discovery request to which the party failed or refused to respond as 
being established for purposes of the proceeding in accordance with the 
contentions of the party seeking discovery. In addition, enforcement by 
a district court of the United States

[[Page 363]]

may be sought under 15 U.S.C. 5408(b)(6).

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
June 28, 2000]



Sec.  280.211  Subpoenas.

    (a) Issuance. Upon the application of any party, supported by a 
satisfactory showing that there is substantial reason to believe that 
the evidence would not otherwise be available, the administrative law 
judge may issue subpoenas requiring the attendance and testimony of 
witnesses and the production of such books, records or other documentary 
or physical evidence for the purpose of the hearing, as the ALJ deems 
relevant and material to the proceedings, and reasonable in scope. 
Witnesses summoned shall be paid the same fees and mileage that are paid 
to witnesses in the courts of the United States. In case of contempt or 
refusal to obey a subpoena served upon any person pursuant to this 
paragraph, the district court of the United States for any district in 
which such person is found, resides, or transacts business, upon 
application by the United States and after notice to such person, shall 
have jurisdiction to issue an order requiring such person to appear and 
give testimony before the administrative law judge or to appear and 
produce documents before the administrative law judge, or both, and any 
failure to obey such order of the court may be punished by such court as 
contempt thereof.
    (b) Service. Subpoenas issued by the administrative law judge may be 
served in any of the methods set forth in Sec.  280.206(b) of this part.
    (c) Timing. Applications for subpoenas must be submitted at least 10 
days before the scheduled hearing or deposition, unless the 
administrative law judge determines, for good cause shown, that 
extraordinary circumstances warrant a shorter time.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
June 28, 2000]



Sec.  280.212  Matter protected against disclosure.

    (a) Protective measures. The administrative law judge may limit 
discovery or introduction of evidence or issue such protective or other 
orders as in the ALJ's judgment may be needed to prevent undue 
disclosure of classified or sensitive documents or information. Where 
the administrative law judge determines that documents containing the 
classified or sensitive matter need to be made available to a party to 
avoid prejudice, the ALJ may direct that an unclassified and/or 
nonsensitive summary or extract of the documents be prepared. The 
administrative law judge may compare the extract or summary with the 
original to ensure that it is supported by the source document and that 
it omits only so much as must remain undisclosed. The summary or extract 
may be admitted as evidence in the record.
    (b) Arrangements for access. If the administrative law judge 
determines that this procedure is unsatisfactory and that classified or 
otherwise sensitive matter must form part of the record in order to 
avoid prejudice to a party, the administrative law judge may provide the 
parties an opportunity to make arrangements that permit a party or a 
representative to have access to such matter without compromising 
sensitive information. Such arrangements may include obtaining security 
clearances or giving counsel for a party access to sensitive information 
and documents subject to assurances against further disclosure, 
including a protective order, if necessary.



Sec.  280.213  Prehearing conference.

    (a) The administrative law judge, on his or her own motion or on 
request of a party, may direct the parties to participate in a 
prehearing conference, either in person or by telephone, to consider:
    (1) Simplification of issues;
    (2) The necessity or desirability of amendments to pleadings;
    (3) Obtaining stipulations of fact and of documents to avoid 
unnecessary proof; or
    (4) Such other matters as may expedite the disposition of the 
proceedings.
    (b) The administrative law judge may order the conference 
proceedings to be recorded electronically or taken by a reporter, 
transcribed and filed with the ALJ.

[[Page 364]]

    (c) If a prehearing conference is impracticable, the administrative 
law judge may direct the parties to correspond with the ALJ to achieve 
the purposes of such a conference.
    (d) The administrative law judge will prepare a summary of any 
actions agreed on or taken pursuant to this section. The summary will 
include any written stipulations or agreements made by the parties.



Sec.  280.214  Hearings.

    (a) Scheduling. The administrative law judge, by agreement with the 
parties or upon notice to all parties of not less than 30 days, will 
schedule a hearing. All hearings will be held in Washington, DC., unless 
the administrative law judge determines, for good cause shown, that 
another location would better serve the interests of justice.
    (b) Hearing procedure. Hearings will be conducted in a fair and 
impartial manner by the administrative law judge, who may limit 
attendance at any hearing or portion thereof to the parties, their 
representatives and witnesses if the administrative law judge deems this 
necessary or advisable in order to protect sensitive matter (see Sec.  
280.212 of this part) from improper disclosure. The rules of evidence 
prevailing in courts of law do not apply, and all evidentiary material 
deemed by the administrative law judge to be relevant and material to 
the proceeding and not unduly repetitious will be received and given 
appropriate weight.
    (c) Testimony and record. Witnesses will testify under oath or 
affirmation. A verbatim record of the hearing and of any other oral 
proceedings will be taken by reporter or by electronic recording, 
transcribed and filed with the administrative law judge. A respondent 
may examine the transcript and may obtain a copy by paying any 
applicable costs. Upon such terms as the administrative law judge deems 
just, the ALJ may direct that the testimony of any person be taken by 
deposition and may admit an affidavit or declaration as evidence, 
provided that any affidavits or declarations have been filed and served 
on the parties sufficiently in advance of the hearing to permit a party 
to file and serve an objection thereto on the grounds that it is 
necessary that the affiant or declarant testify at the hearing and be 
subject to cross-examination.
    (d) Failure to appear. If a party fails to appear in person or by 
counsel at a scheduled hearing, the hearing may nevertheless proceed, 
and that party's failure to appear will not affect the validity of the 
hearing or any proceedings or action taken thereafter.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
June 28, 2000]



Sec.  280.215  Interlocutory review of rulings.

    (a) At the request of a party, or on the administrative law judge's 
own initiative, the administrative law judge may certify to the Under 
Secretary for review a ruling that does not finally dispose of a 
proceeding, if the administrative law judge determines that immediate 
review may hasten or facilitate the final disposition of the matter.
    (b) Upon certification to the Under Secretary of the interlocutory 
ruling for review, the parties will have 10 days to file and serve 
briefs stating their positions, and five days to file and serve replies, 
following which the Under Secretary will decide the matter promptly.



Sec.  280.216  Proceeding without a hearing.

    If the parties have waived a hearing, the case will be decided on 
the record by the administrative law judge. Proceeding without a hearing 
does not relieve the parties from the necessity of proving the facts 
supporting their charges or defenses. Affidavits or declarations, 
depositions, admissions, answers to interrogatories and stipulations may 
supplement other documentary evidence in the record. The administrative 
law judge will give each party reasonable opportunity to file rebuttal 
evidence.



Sec.  280.217  Procedural stipulations; extension of time.

    (a) Procedural stipulations. Unless otherwise ordered, a written 
stipulation agreed to by all parties and filed with the administrative 
law judge will modify any procedures established by this part.

[[Page 365]]

    (b) Extension of time. (1) The parties may extend any applicable 
time limitation, by stipulation filed with the administrative law judge 
before the time limitation expires.
    (2) The administrative law judge may, on the judge's own initiative 
or upon application by any party, either before or after the expiration 
of any applicable time limitation, extend the time within which to file 
and serve an answer to a charging letter or do any other act required by 
this part.



Sec.  280.218  Decision of the administrative law judge.

    (a) Predecisional matters. Except for default proceedings under 
Sec.  280.208 of this part, the administrative law judge will give the 
parties reasonable opportunity to submit the following, which will be 
made a part of the record:
    (1) Exceptions to any ruling by the judge or to the admissibility of 
evidence proffered at the hearing;
    (2) Proposed findings of fact and conclusions of law;
    (3) Supporting legal arguments for the exceptions and proposed 
findings and conclusions submitted; and
    (4) A proposed order.
    (b) Decision and order. After considering the entire record in the 
proceeding, the administrative law judge will issue a written initial 
decision. The decision will include findings of fact, conclusions of 
law, and findings as to whether there has been a violation of the Act, 
this part, or any order issued thereunder. If the administrative law 
judge finds that the evidence of record is insufficient to sustain a 
finding that a violation has occurred with respect to one or more 
charges, the ALJ shall order dismissal of the charges in whole or in 
part, as appropriate. If the administrative law judge finds that one or 
more violations have been committed, the ALJ may issue an order imposing 
administrative sanctions, as provided in this part. The decision and 
order shall be served on each party, and shall become effective as the 
final decision of the Department 30 days after service, unless an appeal 
is filed in accordance with Sec.  280.222 of this part. In determining 
the amount of any civil penalty the ALJ shall consider the nature, 
circumstances and gravity of the violation and, with respect to the 
person found to have committed the violation, the degree of culpability, 
any history of prior violations, the effect on ability to continue to do 
business, any good faith attempt to achieve compliance, ability to pay 
the penalty, and such other matters as justice may require.
    (c) Suspension of sanctions. Any order imposing administrative 
sanctions may provide for the suspension of the sanction imposed, in 
whole or in part and on such terms of probation or other conditions as 
the administrative law judge or the Under Secretary may specify. Any 
suspension order may be modified or revoked by the signing official upon 
application by the Department showing a violation of the probationary 
terms or other conditions, after service on the respondent of notice of 
the application in accordance with the service provisions of Sec.  
280.206 of this part, and with such opportunity for response as the 
responsible signing official in his/her discretion may allow. A copy of 
any order modifying or revoking the suspension shall also be served on 
the respondent in accordance with the provisions of Sec.  280.607 of 
this part.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
39803, June 28, 2000]



Sec.  280.219  Settlement.

    (a) Cases may be settled before service of a charging letter. In 
cases in which settlement is reached before service of a charging 
letter, a proposed charging letter will be prepared, and a settlement 
proposal consisting of a settlement agreement and order will be 
submitted to the Assistant Secretary for approval and signature. If the 
Assistant Secretary does not approve the proposal, he/she will notify 
the parties and the case will proceed as though no settlement proposal 
had been made. If the Assistant Secretary approves the proposal, he/she 
will issue an appropriate order, and no action will be required by the 
administrative law judge.
    (b) Cases may also be settled after service of a charging letter. 
(1) If the case is pending before the administrative law judge, the ALJ 
shall stay the proceedings for a reasonable period of time, usually not 
to exceed 30 days,

[[Page 366]]

upon notification by the parties that they have entered into good faith 
settlement negotiations. The administrative law judge may, in his/her 
discretion, grant additional stays. If settlement is reached, a proposal 
will be submitted to the Assistant Secretary for approval and signature. 
If the Assistant Secretary approves the proposal, he/she will issue an 
appropriate order, and notify the administrative law judge that the case 
is withdrawn from adjudication. If the Assistant Secretary does not 
approve the proposal, he/she will notify the parties and the case will 
proceed to adjudication by the administrative law judge as though no 
settlement proposal had been made.
    (2) If the case is pending before the Under Secretary under Sec.  
280.222 of this part, the parties may submit a settlement proposal to 
the Under Secretary for approval and signature. If the Under Secretary 
approves the proposal, he/she will issue an appropriate order. If the 
Under Secretary does not approve the proposal, the case will proceed to 
final decision in accordance with Section 280.623 of this part, as 
appropriate.
    (c) Any order disposing of a case by settlement may suspend the 
administrative sanction imposed, in whole or in part, on such terms of 
probation or other conditions as the signing official may specify. Any 
such suspension may be modified or revoked by the signing official, in 
accordance with the procedures set forth in Sec.  280.218(c) of this 
part.
    (d) Any respondent who agrees to an order imposing any 
administrative sanction does so solely for the purpose of resolving the 
claims in the administrative enforcement proceeding brought under this 
part. This reflects the fact that the Department has neither the 
authority nor the responsibility for instituting, conducting, settling, 
or otherwise disposing of criminal proceedings. That authority and 
responsibility is vested in the Attorney General and the Department of 
Justice.
    (e) Cases that are settled may not be reopened or appealed.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
39803, June 28, 2000]



Sec.  280.220  Reopening.

    The respondent may petition the administrative law judge within one 
year of the date of the final decision, except where the decision arises 
from a default judgment or from a settlement, to reopen an 
administrative enforcement proceeding to receive any relevant and 
material evidence which was unknown or unobtainable at the time the 
proceeding was held. The petition must include a summary of such 
evidence, the reasons why it is deemed relevant and material, and the 
reasons why it could not have been presented at the time the proceedings 
were held. The administrative law judge will grant or deny the petition 
after providing other parties reasonable opportunity to comment. If the 
proceeding is reopened, the administrative law judge may make such 
arrangements as the ALJ deems appropriate for receiving the new evidence 
and completing the record. The administrative law judge will then issue 
a new initial decision and order, and the case will proceed to final 
decision and order in accordance with Sec.  280.222 of this part.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
39803, June 28, 2000]



Sec.  280.221  Record for decision and availability of documents.

    (a) General. The transcript of hearings, exhibits, rulings, orders, 
all papers and requests filed in the proceedings and, for purposes of 
any appeal under Sec.  280.222 of this part, the decision of the 
administrative law judge and such submissions as are provided for by 
Sec.  280.623 of this part, will constitute the record and the exclusive 
basis for decision. When a case is settled after the service of a 
charging letter, the record will consist of any and all of the 
foregoing, as well as the settlement agreement and the order. When a 
case is settled before service of a charging letter, the record will 
consist of the proposed charging letter, the settlement agreement and 
the order.
    (b) Restricted access. On the administrative law judge's own motion, 
or on the motion of any party, the administrative law judge may direct 
that there be a restricted access portion of the record for any material 
in the record to

[[Page 367]]

which public access is restricted by law or by the terms of a protective 
order entered in the proceedings. A party seeking to restrict access to 
any portion of the record is responsible for submitting, at the time 
specified in paragraph (c)(2) of this section, a version of the document 
proposed for public availability that reflects the requested deletion. 
The restricted access portion of the record will be placed in a separate 
file and the file will be clearly marked to avoid improper disclosure 
and to identify it as a portion of the official record in the 
proceedings. The administrative law judge may act at any time to permit 
material that becomes declassified or unrestricted through passage of 
time to be transferred to the unrestricted access portion of the record.
    (c) Availability of documents--(1) Scope. All charging letters, 
answers, initial decisions, and orders disposing of a case will be made 
available for public inspection in the BXA Freedom of Information 
Records Inspection Facility, U.S. Department of Commerce, Room H-6624, 
14th Street and Pennsylvania Avenue, NW, Washington, DC 20230. The 
complete record for decision, as defined in paragraphs (a) and (b) of 
this section will be made available on request.
    (2) Timing. Documents are available immediately upon filing, except 
for any portion of the record for which a request for segregation is 
made. Parties that seek to restrict access to any portion of the record 
under paragraph (b) of this section must make such a request, together 
with the reasons supporting the claim of confidentiality, simultaneously 
with the submission of material for the record.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
39803, June 28, 2000]



Sec.  280.222  Appeals.

    (a) Grounds. A party may appeal to the Under Secretary from an order 
disposing of a proceeding or an order denying a petition to set aside a 
default or a petition for reopening, on the grounds:
    (1) That a necessary finding of fact is omitted, erroneous or 
unsupported by substantial evidence of record;
    (2) That a necessary legal conclusion or finding is contrary to law;
    (3) That prejudicial procedural error occurred; or
    (4) That the decision or the extent of sanctions is arbitrary, 
capricious or an abuse of discretion. The appeal must specify the 
grounds on which the appeal is based and the provisions of the order 
from which the appeal is taken.
    (b) Filing of appeal. An appeal from an order must be filed with the 
Office of the Under Secretary for Export Administration, Bureau of 
Export Administration, U.S. Department of Commerce, Room H-3898, 14th 
Street and Constitution Avenue, NW., Washington, DC 20230, within 30 
days after service of the order appealed from. If the Under Secretary 
cannot act on an appeal for any reason, the Under Secretary will 
designate another Department of Commerce official to receive and act on 
the appeal.
    (c) Effect of appeal. The filing of an appeal shall not stay the 
operation of any order, unless the order by its express terms so 
provides or unless the Under Secretary, upon application by a party and 
with opportunity for response, grants a stay.
    (d) Appeal procedure. The Under Secretary normally will not hold 
hearings or entertain oral argument on appeals. A full written statement 
in support of the appeal must be filed with the appeal and be 
simultaneously served on all parties, who shall have 30 days from 
service to file a reply. At his/her discretion, the Under Secretary may 
accept new submissions, but will not ordinarily accept those submissions 
filed more than 30 days after the filing of the reply to the appellant's 
first submission.
    (e) Decisions. The decision will be in writing and will be 
accompanied by an order signed by the Under Secretary giving effect to 
the decision. The order may either dispose of the case by affirming, 
modifying or reversing the order of the administrative law judge or may 
refer the case back to the administrative law judge for further 
proceedings.
    (f) Delivery. The final decision and implementing order shall be 
served on

[[Page 368]]

the parties and will be publicly available in accordance with Sec.  
280.221 of this part.
    (g) Judicial review. The charged party may appeal the Under 
Secretary's written order within 30 days to the appropriate United 
States District Court pursuant to section 9(b)(3) of the Act (15 U.S.C. 
5408(b)(3)) by filing a notice of appeal in such court within 30 days 
from the date of such order and by simultaneously sending a copy of such 
notice by certified mail to the Chief Counsel for Export Administration, 
Room H-3839, U.S. Department of Commerce, 14th Street and Constitution 
Avenue, NW., Washington, DC 20230. The findings and order of the Under 
Secretary shall be set aside by such court if they are found to be 
unsupported by substantial evidence, as provided in section 706(2) of 
title 5 United States Code.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
June 28, 2000]



                     Subpart D_Recordal of Insignia



Sec.  280.300  Recorded insignia required prior to offer for sale.

    Unless the specifications provide otherwise, if a fastener is 
required by the applicable consensus standard(s) to bear an insignia 
identifying its manufacturer, the manufacturer must:
    (a) Record the insignia with the U.S. Patent and Trademark Office 
prior to any sale or offer for sale of the fastener; and
    (b) Apply the insignia to any fastener that is sold or offered for 
sale. The insignia must be readable, and must be applied using the 
method for applying a permanent insignia that is provided for in the 
applicable consensus standard(s), or, if the applicable consensus 
standard(s) do(es) not specify a method for applying a permanent 
insignia, through any means of imprinting a permanent impression.

[65 FR 39803, June 28, 2000]

                         The Written Application



Sec.  280.310  Application for insignia.

    (a) Each manufacturer must submit a written application for recordal 
of an insignia on the Fastener Insignia Register along with the 
prescribed fee. The application must be in a form prescribed by the 
Director, USPTO.
    (b) The written application must be in the English language and must 
include the following:
    (1) The name of the manufacturer;
    (2) The address of the manufacturer;
    (3) The entity, domicile, and state of incorporation, if applicable, 
of the manufacturer;
    (4) Either:
    (i) A request for recordal and issuance of a unique alphanumeric 
designation by the Director, USPTO, or
    (ii) A request for recordal of a trademark, which is the subject of 
either a duly filed application or a registration for fasteners in the 
name of the manufacturer in the U.S. Patent and Trademark Office on the 
Principal Register, indicating the application serial number or 
registration number and accompanied by a copy of the drawing that was 
included with the application for trademark registration, or a copy of 
the registration;
    (5) A statement that the manufacturer will comply with the 
applicable provisions of the Fastener Quality Act;
    (6) A statement that the applicant for recordal is a 
``manufacturer'' as that term is defined in 15 U.S.C. 5402;
    (7) A statement that the person signing the application on behalf of 
the manufacturer has personal knowledge of the facts relevant to the 
application and that the person possesses the authority to act on behalf 
of the manufacturer;
    (8) A verification stating that the person signing declares under 
penalty of perjury under the laws of the United States of America that 
the information and statements included in the application are true and 
correct; and
    (9) The application fee.
    (c) A manufacturer may designate only one trademark for recordal on 
the Fastener Insignia Register in a single application. The trademark 
application or registration that forms the basis for the fastener 
recordal must be in active status, that is, a pending application or a 
registration which is not expired, or canceled, at the time of the 
application for recordal.
    (d) Applications and other documents should be addressed to: 
Director,

[[Page 369]]

United States Patent and Trademark Office, ATTN: FQA, 600 Dulany Street, 
MDE-10A71, Alexandria, VA 22314-5793.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39803, 
June 28, 2000; 70 FR 50181, Aug. 26, 2005; 72 FR 30704, June 4, 2007]



Sec.  280.311  Review of the application.

    The Director, USPTO, will review the application for compliance with 
Sec.  280.310. If the application does not contain one or more of the 
elements required by Sec.  280.310, the Director, USPTO, will not issue 
a certificate of recordal, and will return the papers and fees. The 
Director, USPTO, will notify the applicant for recordal of any defect in 
the application. Applications for recordal of an insignia may be re-
submitted to the Director, USPTO, at any time.

[65 FR 39803, June 28, 2000]



Sec.  280.312  Certificate of recordal.

    (a) If the application complies with the requirements of Sec.  
280.310, the Director, USPTO, shall accept the application and issue a 
certificate of recordal. Such certificate shall be issued in the name of 
the United States of America, under the seal of the United States Patent 
and Trademark Office, and a record shall be kept in the United States 
Patent and Trademark Office. The certificate of recordal shall display 
the recorded insignia of the manufacturer, and state the name, address, 
legal entity and domicile of the manufacturer, as well as the date of 
issuance of such certificate.
    (b) Certificates that were issued prior to June 8, 1999, shall 
remain in active status and may be maintained in accordance with the 
provisions of Sec.  280.320 of this subpart, but only if:
    (1) The certificate is held by a manufacturer, and
    (2) The fasteners associated with the certificate are fasteners that 
must bear an insignia pursuant to 15 U.S.C. 5407.

[65 FR 39803, June 28, 2000]



Sec.  280.313  Recordal of additional insignia.

    (a) A manufacturer to whom the Director, USPTO, has issued an 
alphanumeric designation may apply for recordal of its trademark for 
fasteners if the trademark is the subject of a duly filed application or 
is registered in the United States Patent and Trademark Office on the 
Principal Register. Upon recordal, either the alphanumeric designation 
or the trademark, or both, may be used as recorded insignias.
    (b) A manufacturer for whom the Director, USPTO, has recorded a 
trademark as its fastener insignia may apply for issuance and recordal 
of an alphanumeric designation as a fastener insignia. Upon recordal, 
either the alphanumeric designation or the trademark, or both, may be 
used as recorded insignias.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39803, 
June 28, 2000]

                        Post-Recordal Maintenance



Sec.  280.320  Maintenance of the certificate of recordal.

    (a) Certificates of recordal remain in an active status for five 
years and may be maintained in an active status for subsequent five-year 
periods running consecutively from the date of issuance of the 
certificate of recordal upon compliance with the requirements of 
paragraph (c) of this section.
    (b) Maintenance applications shall be required only if the holder of 
the certificate of recordal is a manufacturer at the time the 
maintenance application is required.
    (c) Certificates of recordal will be designated as inactive unless, 
within six months prior to the expiration of each five-year period 
running consecutively from the date of issuance, the certificate holder 
files the prescribed maintenance fee and the maintenance application. 
The maintenance application must be in the English language and must 
include the following:
    (1) The name of the manufacturer;
    (2) The address of the manufacturer;
    (3) The entity, domicile, and state of incorporation, if applicable, 
of the manufacturer;
    (4) A copy of manufacturer's certificate of recordal;
    (5) A statement that the manufacturer will comply with the 
applicable provisions of the Fastener Quality Act;
    (6) A statement that the applicant for recordal is a 
``manufacturer'' as that term is defined in 15 U.S.C. 5402;

[[Page 370]]

    (7) A statement that the person signing the application on behalf of 
the manufacturer has knowledge of the facts relevant to the application 
and that the person possesses the authority to act on behalf of the 
manufacturer;
    (8) A verification stating that the person signing declares under 
penalty of perjury under the laws of the United States of America that 
the information and statements included in the application are true and 
correct; and
    (9) The maintenance application fee.
    (d) Where no maintenance application is timely filed, a certificate 
of recordal will be designated inactive. However, such certificate may 
be designated active if the certificate holder files the prescribed 
maintenance fee and application and the additional surcharge within six 
months following the expiration of the certificate of recordal.
    (e) After the six-month period following the expiration of the 
certificate of recordal, the certificate of recordal shall be deemed 
active only if the certificate holder files a new application for 
recordal with the prescribed fee for obtaining a fastener insignia and 
attaches a copy of the expired certificate of recordal.
    (f) A separate maintenance application and fee must be filed and 
paid for each recorded insignia.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39803, 
39804, June 28, 2000]



Sec.  280.321  Notification of changes of address.

    The applicant for recordal or the holder of a certificate of 
recordal shall notify the Director, USPTO, of any change of address or 
change of name no later than six months after the change. The holder 
must do so whether the certificate of recordal is in an active or 
inactive status.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39803, 
39804, June 28, 2000]



Sec.  280.322  Transfer or amendment of the certificate of recordal.

    (a) The certificate of recordal cannot be transferred or assigned.
    (b) The certificate of recordal may be amended only to show a change 
of name or change of address.

[61 FR 50558, Sept. 26, 1996. Redesignated at 65 FR 39803, June 28, 
2000]



Sec.  280.323  Transfer or assignment of the trademark registration or
recorded insignia.

    (a) A trademark application or registration which forms the basis of 
a fastener recordal may be transferred or assigned. Any transfer or 
assignment of such an application or registration must be recorded in 
the United States Patent and Trademark Office within three months of the 
transfer or assignment. A copy of such transfer or assignment must also 
be sent to: Director, United States Patent and Trademark Office, ATTN: 
FQA, 600 Dulany Street, MDE-10A71, Alexandria, VA 22314-5793.
    (b) Upon transfer or assignment of a trademark application or 
registration which forms the basis of a certificate of recordal, the 
Director, USPTO, shall designate the certificate of recordal as 
inactive. The certificate of recordal shall be deemed inactive as of the 
effective date of the transfer or assignment. Certificates of recordal 
designated inactive due to transfer or assignment of a trademark 
application or registration cannot be reactivated.
    (c) An assigned trademark application or registration may form the 
basis for a new application for recordal of a fastener insignia.
    (d) A fastener insignia consisting of an alphanumeric designation 
issued by the Director, USPTO, can be transferred or assigned.
    (e) Upon transfer or assignment of an alphanumeric designation, the 
Director, USPTO, shall designate such alphanumeric designation as 
inactive. The alphanumeric designation shall be deemed inactive as of 
the effective date of the transfer or assignment. Alphanumeric 
designations which are designated inactive due to transfer or assignment 
may be reactivated upon application by the assignee of such alphanumeric 
designation. Such application must meet all the requirements of Sec.  
280.310 and must include a copy of the

[[Page 371]]

pertinent portions of the document assigning rights in the alphanumeric 
designation. Such application must be filed within six months of the 
date of assignment.
    (f) An alphanumeric designation that is reactivated after it has 
been transferred or assigned shall remain in active status until the 
expiration of the five year period that began upon the issuance of the 
alphanumeric designation to its original owner.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39803, 
39804, June 28, 2000; 72 FR 30704, June 4, 2007]



Sec.  280.324  Change in status of trademark registration or amendment
of the trademark.

    (a) The Director, USPTO, shall designate the certificate of recordal 
as inactive, upon:
    (1) Issuance of a final decision on appeal which refuses 
registration of the application which formed the basis for the 
certificate of recordal;
    (2) Abandonment of the application which formed the basis for the 
certificate of recordal;
    (3) Cancellation or expiration of the trademark registration which 
formed the basis of the certificate of recordal; or
    (4) An amendment of the mark in a trademark application or 
registration that forms the basis for a certificate of recordal. The 
certificate of recordal shall become inactive as of the date the 
amendment is filed. A new application for recordal of the amended 
trademark application or registration may be submitted to the 
Commissioner at any time.
    (b) Certificates of recordal designated inactive due to 
cancellation, expiration, or amendment of the trademark registration, or 
abandonment or amendment of the trademark application, cannot be 
reactivated.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39803, 
39804, June 28, 2000]



Sec.  280.325  Cumulative listing of recordal information.

    The Director, USPTO, shall maintain a record of the names, current 
addresses, and legal entities of all recorded manufacturers and their 
recorded insignia.

[65 FR 39804, June 28, 2000]



Sec.  280.326  Records and files of the United States Patent and
Trademark Office.

    The records relating to fastener insignia shall be open to public 
inspection. Copies of any such records may be obtained upon request and 
payment of the fee set by the Director, USPTO.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39803, 
39804, June 28, 2000]



PART 285_NATIONAL VOLUNTARY LABORATORY ACCREDITATION PROGRAM-
-Table of Contents



Sec.
285.1 Purpose.
285.2 Confidentiality.
285.3 Referencing NVLAP accreditation.
285.4 Establishment of laboratory accreditation programs (LAPs) within 
          NVLAP.
285.5 Termination of a LAP.
285.6 Application for accreditation.
285.7 Assessment.
285.8 Proficiency testing.
285.9 Granting accreditation.
285.10 Renewal of accreditation.
285.11 Changes to scopes of accreditation.
285.12 Monitoring visits.
285.13 Denial, suspension, revocation or termination of accreditation.
285.14 Criteria for accreditation.
285.15 Obtaining documents.
285.16 Incorporation by reference.

    Authority: 15 U.S.C. 272 et seq.

    Source: 66 FR 29221, May 30, 2001, unless otherwise noted.



Sec.  285.1  Purpose.

    The purpose of this part is to set out procedures and general 
requirements under which the National Voluntary Laboratory Accreditation 
Program (NVLAP) operates as an unbiased third party to accredit both 
testing and calibration laboratories. Supplementary technical and 
administrative requirements are provided in supporting handbooks and 
documents as needed, depending on the criteria established for specific 
Laboratory Accreditation Programs (LAPs).

[85 FR 60060, Sept. 24, 2020]

[[Page 372]]



Sec.  285.2  Confidentiality.

    To the extent permitted by applicable laws, NVLAP will protect the 
confidentiality of all information obtained relating to the application, 
on-site assessment, proficiency testing, evaluation, and accreditation 
of laboratories.



Sec.  285.3  Referencing NVLAP accreditation.

    The term NVLAP (represented by the NVLAP logo) is a federally 
registered certification mark of the National Institute of Standards and 
Technology and the federal government, who retain exclusive rights to 
control the use thereof. Permission to use the term and/or logo is 
granted to NVLAP-accredited laboratories for the limited purposes of 
announcing their accredited status, and for use on reports that describe 
only testing and calibration within the scope of accreditation. NIST 
reserves the right to control the quality of the use of the term NVLAP 
and of the logo itself.



Sec.  285.4  Establishment of laboratory accreditation programs (LAPs)
within NVLAP.

    NVLAP establishes LAPs in response to legislative actions or to 
requests from private sector entities and government agencies. For 
legislatively mandated LAPs, NVLAP shall establish the LAP. For requests 
from private sector entities and government agencies, the Chief of NVLAP 
shall analyze each request, and, after consultation with interested 
parties through public workshops or other means to ensure open 
participation, shall establish the requested LAP, if the Chief of NVLAP 
determines there is need for the requested LAP.

[66 FR 29221, May 30, 2001, as amended at 76 FR 78815, Dec. 20, 2011]



Sec.  285.5  Termination of a LAP.

    (a) The Chief of NVLAP may terminate a LAP when he/she determines 
that a need no longer exists to accredit laboratories for the services 
covered under the scope of the LAP. In the event that the Chief of NVLAP 
proposes to terminate a LAP, a notice will be published in the Federal 
Register setting forth the basis for that determination.
    (b) When a LAP is terminated, NVLAP will no longer grant or renew 
accreditations following the effective date of termination. 
Accreditations previously granted shall remain effective until their 
expiration date unless terminated voluntarily by the laboratory or 
revoked by NVLAP. Technical expertise will be maintained by NVLAP while 
any accreditation remains effective.



Sec.  285.6  Application for accreditation.

    A laboratory may apply for accreditation in any of the established 
LAPs. The applicant laboratory shall provide a completed application to 
NVLAP, pay all required fees and agree to certain conditions as set 
forth in the NVLAP Application for Accreditation, and provide management 
system documentation to NVLAP (or a designated NVLAP assessor) prior to 
the assessment process.

[85 FR 60060, Sept. 24, 2020]



Sec.  285.7  Assessment.

    (a) Frequency and scheduling. Before initial accreditation, during 
the first renewal year, and every two years thereafter, an on-site 
assessment of each laboratory is conducted to determine compliance with 
the NVLAP criteria.
    (b) Assessors. NVLAP shall select qualified assessors to evaluate 
all information collected from an applicant laboratory pursuant to Sec.  
285.6 of this part and to conduct the assessment on its behalf at the 
laboratory and any other sites where activities to be covered by the 
accreditation are performed.
    (c) Conduct of assessment. (1) Assessors use checklists provided by 
NVLAP so that each laboratory receives an assessment comparable to that 
received by others.
    (2) During the assessment, the assessor meets with management and 
laboratory personnel, examines the quality system, reviews staff 
information, examines equipment and facilities, observes demonstrations 
of testing or calibrations, and examines tests or calibration reports.

[[Page 373]]

    (3) The assessor reviews laboratory records including resumes, job 
descriptions of key personnel, training, and competency evaluations for 
all staff members who routinely perform, or affect the quality of the 
testing or calibration for which accreditation is sought. The assessor 
need not be given information which violates individual privacy, such as 
salary, medical information, or performance reviews outside the scope of 
the accreditation program. The staff information may be kept in the 
laboratory's official personnel folders or separate folders that contain 
only the information that the NVLAP assessor needs to review.
    (4) At the conclusion of the assessment, the assessor conducts an 
exit briefing to discuss observations and any nonconformities with the 
authorized representative who signed the NVLAP application and other 
responsible laboratory staff.
    (d) Assessment report. At the exit briefing, the assessor submits a 
written report on the compliance of the laboratory with the 
accreditation requirements, together with the completed checklists, 
where appropriate.
    (e) Deficiency notification and resolution. (1) Laboratories are 
informed of nonconformities during the on-site assessment, and 
nonconformities are documented in the assessment report (see paragraph 
(d) of this section).
    (2) A laboratory shall, within thirty days of the date of the 
assessment report, provide documentation that the specified 
nonconformities have either been corrected and/or a plan of corrective 
actions as described in the NVLAP handbooks.
    (3) If substantial nonconformities have been cited, NVLAP may 
require an additional on-site assessment, at additional cost to the 
laboratory, prior to granting accreditation. All nonconformities and 
resolutions will be subject to thorough review and evaluation prior to 
an accreditation decision.
    (4) After the assessor submits their final report, NVLAP reviews the 
report and the laboratory's response to determine if the laboratory has 
met all of the on-site assessment requirements.

[66 FR 29221, May 30, 2001, as amended at 85 FR 60060, Sept. 24, 2020]



Sec.  285.8  Proficiency testing.

    (a) Proficiency testing requirements. Proficiency testing undertaken 
to meet the criteria for NVLAP accreditation shall be consistent with 
the provisions contained in NIST Handbook 150, NVLAP Procedures and 
General Requirements (incorporated by reference, see Sec.  285.16), 
where applicable, including revisions from time to time. Laboratories 
must participate in proficiency testing as specified for each LAP in the 
NVLAP program handbooks.
    (b) Analysis and reporting. Proficiency testing results are analyzed 
by NVLAP and results of the analysis are made known to the participants. 
Any result not meeting the criteria specified in the NVLAP LAP program 
handbook is identified as a nonconformity.
    (c) Proficiency testing nonconformities. (1) Unsatisfactory 
participation in any proficiency testing program is a technical 
nonconformity which must be resolved in order to obtain initial 
accreditation or maintain accreditation.
    (2) Proficiency testing nonconformities are defined as, but not 
limited to, one or more of the following:
    (i) Failure to meet specified proficiency testing performance 
requirements prescribed by NVLAP;
    (ii) Failure to participate in a regularly scheduled ``round'' of 
proficiency testing for which the laboratory has received instructions 
and/or materials;
    (iii) Failure to submit laboratory control data as required; or
    (iv) Failure to produce acceptable test or calibration results when 
using NIST Standard Reference Materials or special artifacts whose 
properties are well-characterized and known to NIST/NVLAP.
    (3) NVLAP will notify the laboratory of proficiency testing 
nonconformities and actions to be taken to resolve the nonconformities. 
Denial or suspension of accreditation will result from failure to 
resolve nonconformities.

[85 FR 60060, Sept. 24, 2020]

[[Page 374]]



Sec.  285.9  Granting accreditation.

    (a) The Chief of NVLAP is responsible for all NVLAP accreditation 
actions, including granting, denying, renewing, suspending, and revoking 
any NVLAP accreditation.
    (b) Initial accreditation is granted when a laboratory has met all 
NVLAP requirements. One of four accreditation renewal dates (January 1, 
April 1, July 1, or October 1) is assigned to the laboratory and is 
usually retained as long as the laboratory remains in the program. 
Initial accreditation is granted for a period of one year; accreditation 
expires and is renewable on the assigned date.
    (c) Renewal dates may be reassigned to provide benefits to the 
laboratory and/or NVLAP. If a renewal date is changed, the laboratory 
will be notified in writing of the change and any related adjustment in 
fees.
    (d) When accreditation is granted, NVLAP shall provide to the 
laboratory a Certificate of Accreditation and a Scope of Accreditation,



Sec.  285.10  Renewal of accreditation.

    (a) An accredited laboratory must submit both its application for 
renewal and fees to NVLAP prior to expiration of the laboratory's 
current accreditation to avoid a lapse in accreditation.
    (b) On-site assessments of currently accredited laboratories are 
performed in accordance with the procedures in Sec.  285.7. If 
nonconformities are found during the assessment of an accredited 
laboratory, the laboratory must follow the procedures set forth in Sec.  
285.7(e)(2) or face possible suspension or revocation of accreditation.

[66 FR 29221, May 30, 2001, as amended at 85 FR 60060, Sept. 24, 2020]



Sec.  285.11  Changes to scope of accreditation.

    A laboratory may request in writing changes to its Scope of 
Accreditation. If the laboratory requests additions to its Scope, it 
must meet all NVLAP criteria for the additional tests or calibrations, 
types of tests or calibrations, or standards. The need for an additional 
on-site assessment and/or proficiency testing will be determined on a 
case-by-case basis.



Sec.  285.12  Monitoring visits.

    (a) In addition to regularly scheduled assessments, monitoring 
visits may be conducted by NVLAP at any time during the accreditation 
period. They may occur for cause or on a random selection basis. While 
most monitoring visits will be scheduled in advance with the laboratory, 
NVLAP may conduct unannounced monitoring visits.
    (b) The scope of a monitoring visit may range from checking a few 
designated items to a complete review. The assessors may review 
nonconformity resolutions, verify reported changes in the laboratory's 
personnel, facilities or operations, or evaluate proficiency testing 
activities, when appropriate.

[85 FR 60060, Sept. 24, 2020]



Sec.  285.13  Denial, suspension, revocation, or termination of
accreditation.

    (a) A laboratory may at any time voluntarily terminate its 
participation and responsibilities as an accredited laboratory by 
advising NVLAP in writing of its desire to do so.
    (b) If NVLAP finds that an accredited laboratory does not meet all 
NVLAP requirements, has violated the terms of its accreditation, or does 
not continue to comply with the provisions of these procedures, NVLAP 
may suspend the laboratory's accreditation, or advise of NVLAP's intent 
to revoke accreditation.
    (1) If a laboratory's accreditation is suspended, NVLAP shall notify 
the laboratory of that action stating the reasons for and conditions of 
the suspension and specifying the action(s) the laboratory must take to 
have its accreditation reinstated. Conditions of suspension will include 
prohibiting the laboratory from using the NVLAP logo on its test or 
calibration reports, correspondence, or advertising during the 
suspension period in the area(s) affected by the suspension.
    (2) NVLAP will not require a suspended laboratory to return its 
Certificate and Scope of Accreditation, but the laboratory must refrain 
from using the NVLAP logo in the area(s) affected

[[Page 375]]

until such time as the problem(s) leading to the suspension has been 
resolved. When accreditation is reinstated, NVLAP will authorize the 
laboratory to resume testing or calibration activities in the previously 
suspended area(s) as an accredited laboratory.
    (c) If NVLAP proposes to deny or revoke accreditation of a 
laboratory, NVLAP shall inform the laboratory of the reasons for the 
proposed denial or revocation and the procedure for appealing such a 
decision.
    (1) The laboratory will have thirty days from the date of receipt of 
the proposed denial or revocation letter to appeal the decision to the 
Director of NIST. If the laboratory appeals the decision to the Director 
of NIST, the proposed denial or revocation will be stayed pending the 
outcome of the appeal. The proposed denial or revocation will become 
final through the issuance of a written decision to the laboratory in 
the event that the laboratory does not appeal the proposed denial or 
revocation within the thirty-day period.
    (2) If accreditation is revoked, the laboratory may be given the 
option of voluntarily terminating the accreditation.
    (3) A laboratory whose accreditation has been revoked must cease use 
of the NVLAP logo on any of its reports, correspondence, or advertising 
related to the area(s) affected by the revocation. If the revocation is 
total, NVLAP will instruct the laboratory to return its Certificate and 
Scope of Accreditation and to remove the NVLAP logo from all test or 
calibration reports, correspondence, or advertising. If the revocation 
affects only some, but not all of the items listed on a laboratory's 
Scope of Accreditation, NVLAP will issue a revised Scope that excludes 
the revoked area(s) in order that the laboratory might continue 
operations in accredited areas.
    (d) A laboratory whose accreditation has been voluntarily 
terminated, denied or revoked, may reapply and be accredited if the 
laboratory:
    (1) Completes the assessment and evaluation process; and
    (2) Meets the NVLAP conditions and criteria for accreditation.



Sec.  285.14  Criteria for accreditation.

    The requirements for laboratories to be recognized by the National 
Voluntary Laboratory Accreditation Program as competent to carry out 
tests and/or calibrations are contained in NIST Handbook 150, NVLAP 
Procedures and General Requirements (incorporated by reference, see 
Sec.  285.16).

[85 FR 60061, Sept. 24, 2020]



Sec.  285.15  Obtaining documents.

    (a) Application forms, NVLAP handbooks, and other NVLAP documents 
and information may be obtained by contacting the NVLAP, National 
Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 2140, 
Gaithersburg, Maryland 20899-2140; phone: 301-975-4016; fax: 301-926-
2884; e-mail: [email protected].
    (b) Copies of all ISO/IEC documents are available for purchase from 
the American National Standards Institute's eStandards Store at http://
webstore.ansi.org. You may inspect copies of all applicable ISO/IEC 
documents at the National Voluntary Laboratory Accreditation Program, 
National Institute of Standards and Technology, 100 Bureau Drive, Room 
B119, Gaithersburg, MD. For access to the NIST campus, please contact 
NVLAP by phone at 301-975-4016 or by email at [email protected] to obtain 
instructions for visitor registration.

[66 FR 29221, May 30, 2001, as amended at 72 FR 36347, July 3, 2007; 85 
FR 60061, Sept. 24, 2020]



Sec.  285.16  Incorporation by reference.

    Certain material is incorporated by reference into this part with 
the approval of the Director of the Federal Register under 5 U.S.C. 
552(a) and 1 CFR part 51. All approved material is available for 
inspection at National Institute of Standards and Technology, National 
Voluntary Laboratory Accreditation Program (NVLAP), National Institute 
of Standards and Technology, 100 Bureau Drive, Room B119, Gaithersburg, 
MD and is available from the source(s) listed in the following 
paragraph(s). It is also available for inspection at the National 
Archives and Records Administration (NARA). For

[[Page 376]]

access to the NIST campus, please contact NVLAP by phone at 301-975-4016 
or by email at [email protected] to obtain instructions for visitor 
registration. For information on the availability of this material at 
NARA, email [email protected] or go to www.archives.gov/federal-
register/cfr/ibr-locations.html.
    (a) National Institute of Standards and Technology (NIST), U.S. 
Department of Commerce, 100 Bureau Drive, Room B119, Gaithersburg, MD, 
301-975-4016 [email protected], www.nist.gov/publications/.
    (1) NIST Handbook 150, National Voluntary Laboratory Accreditation 
Program Procedures (NVLAP) and General Requirements, authored by Dana S. 
Leaman and Bethany Hackett, 2020 Edition, August 2020, 2020 (NVLAP 
Procedures and General Requirements) https://nvlpubs.nist.gov /nistpubs/
hb/2020/NIST .HB.150-2020.pdf; into Sec. Sec.  285.8(a) and Sec.  
285.14.
    (2) [Reserved]
    (b) [Reserved]

[85 FR 60061, Sept. 24, 2020]



PART 286_NATIONAL VOLUNTARY CONFORMITY ASSESSMENT SYSTEM EVALUATION 
(NVCASE) PROGRAM--Table of Contents



Sec.
286.1 Purpose.
286.2 Scope.
286.3 Objective.
286.4 Implementation.
286.5 Program requirements.
286.6 Public consultation.
286.7 Evaluation process.
286.8 Confidentiality of information.
286.9 Maintaining recognized status.
286.10 Appeal.
286.11 Listings.
286.12 Terminations.

    Authority: 15 U.S.C. 272 et seq.

    Source: 59 FR 19131, Apr. 22, 1994, unless otherwise noted.



Sec.  286.1  Purpose.

    The purpose of this program is to enable U.S. industry to satisfy 
mandated foreign technical requirements using the results of U.S.-based 
conformity assessment programs that perform technical evaluations 
comparable in their rigor to practices in the receiving country. Under 
this program, the Department of Commerce, acting through the National 
Institute of Standards and Technology, evaluates U.S.-based conformity 
assessment bodies in order to be able to give assurances to a foreign 
government that qualifying bodies meet that government's requirements 
and can provide results that are acceptable to that government. The 
program is intended to provide a technically-based U.S. approval process 
for U.S. industry to gain foreign market access; the acceptability of 
conformity assessment results to the relevant foreign government will be 
a matter for agreement between the two governments.



Sec.  286.2  Scope.

    (a) For purposes of this program, conformity assessment consists of 
product sample testing, product certification, and quality system 
registration. Associated activities can be classified by level:
    (1) Conformity level: This level encompasses comparing a product, 
process, service, or system with a standard or specification. As 
appropriate, the evaluating body can be a testing laboratory, product 
certifier or certification body, or quality system registrar.
    (2) Accreditation level: This level encompasses the evaluation of a 
testing laboratory, a certification body, or a quality system registrar 
by an independent body--an accreditation body--based on requirements for 
the acceptance of these bodies, and the granting of accreditation to 
those which meet the established requirements.
    (3) Recognition level: This level encompasses the evaluation of an 
accreditation body based on requirements for its acceptance, and the 
recognition by the evaluating body of the accreditation body which 
satisfies the established requirements.
    (b) NIST operates the NVCASE program as follows:
    (1) Conformity level: Under this program NIST accepts requests for 
evaluations of U.S. bodies involved in activities related to conformity 
assessment. NIST does not perform conformity assessments as part of the 
program and therefore does not accept requests for such evaluations.

[[Page 377]]

    (2) Accreditation level: NIST accepts requests for accreditation of 
conformity assessment bodies only when (i) directed by U.S. law; (ii) 
requested by another U.S. government agency; or (iii) requested to 
respond to a specific U.S. industrial or technical need, relative to a 
mandatory foreign technical requirement, if it has been determined after 
public consultation that (A) there is no satisfactory accreditation 
alternative available and the private sector has declined to make 
acceptable accreditation available, and (B) there is evidence that 
significant public disadvantage would result from the absence of any 
alternative.
    (3) Recognition level: NIST accepts requests for recognition of 
bodies that accredit testing laboratories, certification bodies, and 
quality system registrars when (i) directed by U.S. law; (ii) requested 
by another U.S. government agency; or (iii) requested to respond to a 
specific U.S. industrial or technical need relative to a mandatory 
foreign technical requirement if it has been determined after public 
consultation that (A) there is no suitable alternative available and (B) 
there is evidence that significant public disadvantage would result from 
the absence of any alternative.



Sec.  286.3  Objective.

    The objective of the program is to identify the activities of 
requesting U.S.-based conformity assessment bodies that have been 
evaluated as meeting requirements established for their acceptance by 
foreign governments. The evaluations may be provided by NIST or by 
bodies recognized by NIST for this purpose under the scope of this 
program.



Sec.  286.4  Implementation.

    The program is operated on a cost reimbursable basis. It is open for 
voluntary participation by any U.S.-based body that conducts activities 
related to conformity assessment falling within the program's scope. A 
common procedural approach is followed in responding to a request to 
participate. (See Sec.  286.7 Evaluation process.) All evaluation 
activities rely on the use of generic program requirements based on 
standards and guides for the operation and acceptance of activities 
related to conformity assessment. Specific criteria for use in each 
evaluation are derived from the program requirements, as appropriate, 
for the mandated foreign technical requirements specified in the request 
to participate. A request involving a foreign technical requirement not 
previously addressed by NVCASE will result in an announcement of NIST's 
intent to develop evaluation criteria specific to the relevant 
requirements. NIST will contact all cognizant and interested federal 
agencies to coordinate appropriate actions and procedures.



Sec.  286.5  Program requirements.

    NIST provides and maintains documented generic requirements to be 
applied in evaluations related to accreditation and recognition within 
the scope of the program. Available documentation is provided on request 
to prospective program participants and other interested parties. 
Generic requirements are developed with public input and are based on 
guides for the acceptance of conformity assessment activities issued by 
such international organizations as the International Organization for 
Standardization and the International Electrotechnical Commission. NIST 
also provides and maintains documented criteria provided in response to 
requests for evaluations specific to mandated foreign technical 
requirements. Criteria are developed with public input derived from the 
application and interpretation of generic program requirements in 
relation to specified mandated requirements. Both documented generic 
requirements and specific criteria are developed and maintained with 
input from the public.



Sec.  286.6  Public consultation.

    NIST relies on substantial advice and technical assistance from all 
parties interested in program requirements and related specific 
criteria. Interested U.S. government agencies are routinely to be 
informed of prospective NVCASE actions, and advice is sought from those 
agencies on any actions of mutual interest. In preparing program 
documentation, input is also sought from workshops announced in the 
Federal Register and open tothe general

[[Page 378]]

public and other public means to identify appropriate standards and 
guides and to develop and maintain generic requirements, based on the 
identified standards and guides. Where relevant Federal advisory 
committees are available, their advice may also be sought. Similar 
procedures will be followed with respect to each request for evaluation 
which necessitates the development of criteria, derived from the generic 
requirements, specific to mandated foreign technical requirements.



Sec.  286.7  Evaluation process.

    (a) Each applicant requesting to be evaluated under NVCASE is 
expected to initiate the process and assume designated responsibilities 
as NIST proceeds with its evaluation:
    (1) Application. The applicant completes and submit a request to be 
evaluated.
    (2) Fee. The applicant submits a partial payment with the 
application and agrees to submit the remaining balance based on 
evaluation costs as a condition for satisfactory completion of the 
process.
    (3) Documentation. The applicant operates a system and procedures 
that meet the applicable generic requirements and specific criteria. 
Relevant documentation submitted with the application is reviewed by 
NIST.
    (4) On-site assessment. The applicant and NIST cooperate in the 
scheduling and conduct of all necessary on-site evaluations, including 
the resolution of any deficiencies cited.
    (5) Final review. The applicant provides any supplementary materials 
requested by NIST, then NIST completes the review and decides on 
appropriate action.
    (b) NIST may take one of the following actions with regard to an 
applicant:
    (1) Certificate. If an applicant fully demonstrates conformity with 
all program requirements and specific criteria, NIST issues a 
certificate documenting this finding. Each certificate is accompanied by 
a document describing the specific scope of the accreditation or 
recognition.
    (2) Denial. If an applicant cannot demonstrate conformity with all 
program requirements and specific criteria, NIST may deny award of the 
certificate. An applicant who has failed to complete the evaluation 
satisfactorily may reapply when prepared to demonstrate full conformance 
with program requirements.



Sec.  286.8  Confidentiality of information.

    All information collected relative to an applicant during an 
evaluation is maintained as confidential. Information is released only 
as required under the terms of the Freedom of Information Act or other 
legal requirement, subject to the rules of the Department of Commerce 
for such disclosure as found in 15 CFR part 4.



Sec.  286.9  Maintaining recognized status.

    Each program participant remaining in the program shall continuously 
meet all program requirements and cooperate with NIST in the conduct of 
all surveillance and reassessment activities. Participants shall 
reimburse NIST for expenses incurred for these purposes.



Sec.  286.10  Appeal.

    Any applicant or other affected party may appeal to the NIST 
Director any action taken under the program. When appropriate, the 
Director may seek an independent review by the Deputy Chief Counsel.



Sec.  286.11  Listings.

    (a) NIST maintains lists of all bodies holding current NIST program 
certificates, together with the assessment areas for which they are 
issued.
    (b) NIST also maintains lists of those qualified conformity 
assessment bodies that are currently accredited by bodies recognized by 
NIST, along with the activities of the assessment bodies within the 
scope of the NIST recognition program.
    (c) The lists are made available to the public through various 
media, e.g., printed directories, electronic bulletin boards, or other 
means to ensure accessibility by all potential users.
    (d) With respect to the lists specified in paragraph (a) and (b) of 
this section, NIST may delist any body if it determines the action to be 
in the public interest.

[[Page 379]]



Sec.  286.12  Terminations.

    (a) Voluntary termination. Any participant may voluntarily terminate 
participation at any time by written notification to NIST.
    (b) Involuntary termination. If a participant does not continue to 
meet all program requirements, or if NIST determines it to be necessary 
in the public interest, NIST may withdraw that participant's 
certificate. A body that has had its status as a certificate holder 
terminated may reapply when prepared to demonstrate full conformance 
with program requirements.



PART 287_GUIDANCE ON FEDERAL CONFORMITY ASSESSMENT--Table of Contents



Sec.
287.1 Purpose and scope of this part.
287.2 Definitions.
287.3 Responsibilities of the National Institute of Standards and 
          Technology.
287.4 Responsibilities of Federal agencies.
287.5 Responsibilities of Agency Standards Executives.

    Authority: 15 U.S.C. 272.

    Source: 85 FR 60905, Sept. 29, 2020, unless otherwise noted.



Sec.  287.1  Purpose and scope of this part.

    (a) This part outlines Federal agencies' responsibilities for using 
conformity assessment to meet respective agency requirements in an 
efficient and cost-effective manner for the agency and its stakeholders. 
To reduce unnecessary complexity and make productive use of Federal 
resources, this part emphasizes that agencies should consider 
coordinating conformity assessment activities with those of other 
appropriate government agencies (Federal, State, and local) and with 
those in the private sector.
    (b) Using conformity assessment in a manner consistent with this 
part supports U.S. Government efforts to meet trade obligations and 
demonstrate good regulatory practices, which reduces unnecessary 
obstacles to international trade and improves market access for products 
and services.
    (c) This part applies to all agencies which set policy for, manage, 
operate, or use conformity assessment. This part does not preempt the 
agencies' authority and responsibility to make decisions authorized by 
statute or required to meet regulatory, procurement, or programmatic 
objectives and requirements. These decision-making activities include: 
determining the level of acceptable regulatory or procurement risk; 
setting the level of protection; balancing risk, cost, and availability 
of technology and technical resources (where statutes permit) in 
establishing regulatory, procurement, and program requirements.
    (d) Each agency retains broad discretion in its selection and use of 
conformity assessment activities and may elect not to use or recognize 
alternative conformity assessment approaches if the agency deems the 
alternatives to be inappropriate, inadequate, or inconsistent with 
statutory criteria or programmatic objectives and requirements. Nothing 
contained in this part shall give any party any claim or cause of action 
against the Federal Government or any agency thereof. Each agency 
remains responsible for representation of the agency's views on 
conformity assessment in matters under its jurisdiction. Each agency 
also remains the primary point of contact for information on the 
agency's regulatory, procurement, or programmatic conformity assessment 
actions.



Sec.  287.2  Definitions.

    For the purposes of this part:
    Agency means any Executive Department, independent commission, 
board, bureau, office, government-owned or controlled corporation, or 
other establishment of the Federal Government. It also includes any 
regulatory commission or board, except for independent regulatory 
commissions insofar as they are subject to separate statutory 
requirements regarding policy setting, management, operation, and use of 
conformity assessment. It does not include the legislative or judicial 
branches of the Federal Government.
    Agency Standards Executive means an official designated by an agency 
as its representative on the Interagency Committee for Standards Policy 
(ICSP) and delegated the responsibility for agency implementation of 
Office of

[[Page 380]]

Management and Budget (OMB) Circular A-119 and the guidance in this 
part.
    Conformity assessment is a demonstration, whether directly or 
indirectly, that specified requirements relating to a product, process, 
system, person, or body are fulfilled. Requirements for products, 
services, systems, persons, and organizations are those defined by law 
or regulation, by an agency in regulatory or procurement actions, or an 
agency programmatic policy. Conformity assessment does not include 
mandatory administrative procedures (such as registration notification) 
for granting permission for a good or service to be produced, marketed, 
or used for a stated purpose or under stated conditions. Conformity 
assessment related terminology and concepts, including a discussion of 
the value and benefits of conformity assessment, are contained in NIST 
Special Publication 2000-01, ABCs of Conformity Assessment (2018) found 
free of charge at: https://doi.org/10.6028 /NIST.SP.2000-01 and NIST 
Special Publication 2000-02, Conformity Assessment Considerations for 
Federal Agencies, found at: https://doi.org/10.6028 /NIST.SP.2000-02. 
The definitions of conformity assessment related terminology included in 
these documents are based on voluntary consensus standards. See OMB 
Circular A-119 for a description of voluntary consensus standards and 
recommendations for their development and use by Federal agencies.



Sec.  287.3  Responsibilities of the National Institute of Standards
and Technology.

    (a) Coordinate issues related to agency conformity assessment 
program development, use, and implementation and issue guidance, 
training material, and other material to assist Federal agencies in 
understanding and applying conformity assessment to meet their 
requirements. Material is available at https://www.standards.gov.
    (b) Chair the Interagency Committee on Standards Policy (ICSP); 
encourage participation in the ICSP; as well as provide resource support 
to the ICSP and its working groups related to conformity assessment 
issues, as needed.
    (c) Work with agencies through the ICSP and other means to 
coordinate Federal, State, and local conformity assessment activities 
with private sector conformity assessment activities.
    (d) Participate in the development of voluntary consensus standards, 
recommendations, and guidelines related to conformity assessment to 
ensure that Federal viewpoints are represented.
    (e) Increase awareness of the importance of public and private 
sector conformity assessment through development and publication of 
conformity assessment resources. Material is available at https://
www.standards.gov.
    (f) To the extent that resources are available and upon request by a 
state government agency, work with that state agency to reduce 
duplication and complexity in state conformity assessment activities.
    (g) Review, within five years from October 29, 2020, the 
effectiveness of the guidance in this part and recommend modifications 
to the Secretary as needed.



Sec.  287.4  Responsibilities of Federal agencies.

    Each agency should:
    (a) Implement the policies contained in the guidance in this part. 
Agencies may rely on NIST Special Publication 2000-02 Conformity 
Assessment Considerations for Federal Agencies found free of charge at 
https://doi.org/10.6028 /NIST.SP.2000-02.
    (b) Develop and implement conformity assessment in a manner that 
meets regulatory, procurement, and programmatic objectives; reduces 
unnecessary complexity for stakeholders; makes productive use of Federal 
resources; and meets international trade agreement obligations.
    (c) Provide a rationale for its use of specified conformity 
assessment in rulemaking, procurement actions, and agency programs to 
the extent feasible. Further, when notice and comment rulemaking is 
otherwise required, each agency should provide the opportunity for 
public comment on the rationale for the agency's conformity assessment 
decision.
    (d) Work with other Federal agencies to avoid unnecessary 
duplication and complexity in Federal conformity assessment activities.

[[Page 381]]

    (e) Consider leveraging the activities and results of other 
governmental agency and private sector programs in lieu of creating 
government-unique programs or to enhance the effectiveness of proposed 
new and existing conformity assessment.
    (f) Give a preference for using voluntary consensus standards, 
guides, and recommendations related to conformity assessment in agency 
operations. Each agency retains responsibility for determining which, if 
any, of these documents are relevant to its needs. See OMB Circular A-
119 for a description of voluntary consensus standards and 
recommendations for their development and use by Federal agencies.
    (g) Participate, as needed, representing agency and Federal 
viewpoints, in efforts to develop voluntary consensus standards, 
guideline, and recommendations related to conformity assessment.
    (h) Participate, as needed, representing agency and Federal 
viewpoints in efforts designed to improve coordination among 
governmental and private sector conformity assessment activities.
    (i) Work with NIST, other Federal agencies, ICSP members, and the 
private sector to coordinate U.S. conformity assessment needs, 
practices, and requirements in support of the efforts of the U.S. 
Government and U.S. industry to increase international trade of U.S. 
products and services.
    (j) Assign an Agency Standards Executive the responsibility for 
coordinating agency-wide implementation of the guidance in this part who 
is situated in the agency's organizational structure such that the 
Agency Standards Executive is kept regularly apprised of the agency's 
regulatory, procurement, and other mission-related activities, and has 
sufficient authority within the agency to ensure implementation of the 
guidance in this part.



Sec.  287.5  Responsibilities of Agency Standards Executives.

    Each Agency Standards Executive should:
    (a) Carry out the duties in OMB Circular A-119 related to conformity 
assessment activities.
    (b) Encourage effective use of agency conformity assessment related 
resources.
    (c) Provide ongoing assistance and policy guidance to the agency on 
significant issues in conformity assessment.
    (d) Contribute to the development and dissemination of:
    (1) Internal agency policies related to conformity assessment 
issues; and
    (2) Agency positions on conformity assessment related issues that 
are in the public interest.
    (e) Work with other parts of the agency to develop and implement 
improvements in agency conformity assessment activities.
    (f) Participate in the Interagency Committee on Standards Policy 
(ICSP) as the agency representative and member.
    (g) Promote agency participation in ICSP working groups related to 
conformity assessment issues, as needed.
    (h) Encourage agency participation in efforts related to the 
development of voluntary consensus standards, recommendations, and 
guidelines related to conformity assessment consistent with agency 
missions, authorities, priorities, and resources.
    (i) Establish an ongoing process for reviewing the agency's 
conformity assessment programs and identify areas where efficiencies can 
be achieved through coordination within the agency and among other 
agencies and private sector conformity assessment activities.

[[Page 382]]



                  SUBCHAPTER K_NIST EXTRAMURAL PROGRAMS





PART 290_REGIONAL CENTERS FOR THE TRANSFER OF MANUFACTURING TECHNOLOGY-
-Table of Contents



Sec.
290.1 Purpose.
290.2 Definitions.
290.3 Program description.
290.4 Terms and schedule of financial assistance.
290.5 Basic proposal qualifications.
290.6 Proposal evaluation and selection criteria.
290.7 Proposal selection process.
290.8 Reviews of centers.
290.9 Intellectual property rights.

    Authority: 15 U.S.C. 278k.

    Source: 55 FR 38275, Sept. 17, 1990, unless otherwise noted.



Sec.  290.1  Purpose.

    This rule provides policy for a program to establish Regional 
Centers for the Transfer of Manufacturing Technology as well as the 
prescribed policies and procedures to insure the fair, equitable and 
uniform treatment of proposals for assistance. In addition, the rule 
provides general guidelines for the management of the program by the 
National Institute of Standards and Technology, as well as criteria for 
the evaluation of the Centers, throughout the lifecycle of financial 
assistance to the Centers by the National Institute of Standards and 
Technology.



Sec.  290.2  Definitions.

    (a) The phrase advanced manufacturing technology refers to new 
technologies which have recently been developed, or are currently under 
development, for use in product or part design, fabrication, assembly, 
quality control, or improving production efficiency.
    (b) The term Center or Regional Center means a NIST-established 
Regional Center for the Transfer of Manufacturing Technology described 
under these procedures.
    (c) The term operating award means a cooperative agreement which 
provides funding and technical assistance to a Center for purposes set 
forth in Sec.  290.3 of these procedures.
    (d) The term Director means the Director of the National Institute 
of Standards and Technology.
    (e) The term NIST means the National Institute of Standards and 
Technology, U.S. Department of Commerce.
    (f) The term Program or Centers Program means the NIST program for 
establishment of, support for, and cooperative interaction with Regional 
Centers for the Transfer of Manufacturing Technology.
    (g) The term qualified proposal means a proposal submitted by a 
nonprofit organization which meets the basic requirements set forth in 
Sec.  290.5 of these procedures.
    (h) The term Secretary means the Secretary of Commerce.
    (i) The term target firm means those firms best able to absorb 
advanced manufacturing technologies and techniques, especially those 
developed at NIST, and which are already well prepared in an 
operational, management and financial sensse to improve the levels of 
technology they employ.



Sec.  290.3  Program description.

    (a) The Secretary, acting through the Director, shall provide 
technical and financial assistance for the creation and support of 
Regional Centers for the Transfer of Manufacturing Technology. Each 
Center shall be affiliated with a U.S.-based nonprofit institution or 
organization which has submitted a qualified proposal for a Center 
Operating Award under these procedures. Support may be provided for a 
period not to exceed six years. The Centers work with industry, 
universities, nonprofit economic development organizations and state 
governments to transfer advanced manufacturing technologies, processes, 
and methods as defined in Sec.  290.2 to small and medium sized firms. 
These technology transfer efforts focus on the continuous and 
incremental improvement of the target firms. The advanced manufacturing 
technology which is the focus of the Centers is the subject of research 
in NIST's Automated Manufacturing Research Facility (AMRF). The core of 
AMRF research has principally been

[[Page 383]]

applied in discrete part manufacturing, including electronics, 
composites, plastics, and metal parts fabrication and assembly. Centers 
will be afforded the opportunity for interaction with the AMRF and will 
be given access to reasearch projects and results to strengthen their 
technology transfer. Where elements of a solution are available from an 
existing source, they should be employed. Where private-sector 
consultants who can meet the needs of a small- or medium-sized 
manufacturer are available, they should handle the task. Each Center 
should bring to bear the technology expertise described in Sec.  
290.3(d) to assist small- and medium-sized manufacturing firms in 
adopting advanced manufacturing technology.
    (b) Program objective. The objective of the NIST Manufacturing 
Technology Centers is to enhance productivity and technological 
performance in United States manufacturing. This will be accomplished 
through:
    (1) The transfer of manufacturing technology and techniques 
developed at NIST to Centers and, through them, to manufacturing 
companies throughout the United States;
    (2) The participation of individuals from industry, universities, 
State governments, other Federal agencies, and, when appropriate, NIST 
in cooperative technology transfer activities;
    (3) Efforts to make new manufacturing technology and processes 
usable by United States-based small- and medium-sized companies;
    (4) The active dissemination of scientific, engineering, technical, 
and management information about manufacturing to industrial firms, 
including small- and medium-sized manufacturing companies; and
    (5) The utilization, when appropriate, of the expertise and 
capability that exists in Federal laboratories other than NIST.
    (c) Center activities. The activities of the Centers shall include:
    (1) The establishment of automated manufacturing systems and other 
advanced production technologies based on research by NIST and other 
Federal laboratories for the purpose of demonstrations and technology 
transfer;
    (2) The active transfer and dissemination of research findings and 
Center expertise to a wide range of companies and enterprises, 
particularly small- and medium-sized manufacturers; and
    (3) Loans, on a selective, short-term basis, of items of advanced 
manufacturing equipment to small manufacturing firms with less than 100 
employees.
    (d) Center organization and operation. Each Center will be organized 
to transfer advanced manufacturing technology to small and medium sized 
manufacturers located in its service region. Regional Centers will be 
established and operated via cooperative agreements between NIST and the 
award-receiving organizations. Individual awards shall be decided on the 
basis of merit review, geographical diversity, and the availability of 
funding.
    (e) Leverage. The Centers program must concentrate on approaches 
which can be applied to other companies, in other regions, or by other 
organizations. The lessons learned in assisting a particular target firm 
should be documented in order to facilitate the use of those lessons by 
other target firms. A Center should build on unique solutions developed 
for a single company to develop techniques of broad applicability. It 
should seek wide implementation with well-developed mechanisms for 
distribution of results. Leverage is the principle of developing less 
resource-intensive methods of delivering technologies (as when a Center 
staff person has the same impact on ten firms as was formerly obtained 
with the resources used for one, or when a project once done by the 
Center can be carried out for dozens of companies by the private sector 
or a state or local organization.) Leverage does not imply a larger non-
federal funding match (that is, greater expenditure of non-federal 
dollars for each federal dollar) but rather a greater impact per dollar.
    (f) Regional impact. A new Center should not begin by spreading its 
resources too thinly over too large a geographic area. It should 
concentrate first on establishing its structure, operating style, and 
client base within a manageable service area.

[[Page 384]]



Sec.  290.4  Terms and schedule of financial assistance.

    The Secretary may provide up to 50 percent of the capital and annual 
operating and maintenance funds required to establish and support an MEP 
Center.

[82 FR 28995, June 27, 2017]



Sec.  290.5  Basic proposal qualifications.

    (a) NIST shall designate each proposal which satisfies the 
qualifications criteria below as ``qualified proposal'' and subject the 
qualified proposals to a merit review. Applications which do not meet 
the requirements of this section will not receive further consideration.
    (1) Qualified organizations. Any nonprofit institution, or group 
thereof, or consortium of nonprofit institutions, including entities 
which already exist or may be incorporated specifically to manage the 
Center.
    (2) Proposal format. Proposals for Center Operating Awards shall:
    (i) Be submitted with a Standard Form 424 to the above address;
    (ii) Not exceed 25 typewritten pages in length for the basic 
proposal document (which must include the information requirements of 
paragraph (a)(3) of this section); it may be accompanied by additional 
appendices of relevant supplementary attachments and tabular material. 
Basic proposal documents which exceed 25 pages in length will not be 
qualified for further review.
    (3) Proposal requirements. In order to be considered for a Center 
Operating Award, proposals must contain:
    (i) A plan for the allocation of intellectual property rights 
associated with any invention or copyright which may result from the 
involvement in the Center's technology transfer or research activities 
consistent with the conditions of Sec.  290.9;
    (ii) A statement which provides adequate assurances that the host 
organization will contribute 50 percent or more of the proposed Center's 
capital and annual operating and maintenance costs for the first three 
years and an increasing share for each of the following three additional 
years. Applicants should provide evidence that the proposed Center will 
be self-supporting after six years.
    (iii) A statement describing linkages to industry, government, and 
educational organizations within its service region.
    (iv) A statement defining the initial service region including a 
statement of the constituency to be served and the level of service to 
be provided, as well as outyear plans.
    (v) A statement agreeing to focus the mission of the Center on 
technology transfer activities and not to exclude companies based on 
state boundaries.
    (vi) A proposed plan for the annual evaluation of the success of the 
Center by the Program, including appropriate criteria for consideration, 
and weighting of those criteria.
    (vii) A plan to focus the Center's technology emphasis on areas 
consistent with NIST technology research programs and organizational 
expertise.
    (viii) A description of the planned Center sufficient to permit NIST 
to evaluate the proposal in accordance with Sec.  290.6 of these 
procedures.
    (b) [Reserved]



Sec.  290.6  Proposal evaluation and selection criteria.

    (a) In making a decision whether to provide financial support, NIST 
shall review and evaluate all qualified proposals in accordance with the 
following criteria, assigning equal weight to each of the four 
categories.
    (1) Identification of target firms in proposed region. Does the 
proposal define an appropriate service region with a large enough 
population of target firms of small- and medium-sized manufacturers 
which the applicant understands and can serve, and which is not 
presently served by an existing Center?
    (i) Market analysis. Demonstrated understanding of the service 
region's manufacturing base, including business size, industry types, 
product mix, and technology requirements.
    (ii) Geographical location. Physical size, concentration of 
industry, and economic significance of the service region's 
manufacturing base. Geographical diversity of Centers will be a factor 
in evaluation of proposals; a proposal for a Center located near an 
existing Center may be considered only if

[[Page 385]]

the proposal is unusually strong and the population of manufacturers and 
the technology to be addressed justify it.
    (2) Technology resources. Does the proposal assure strength in 
technical personnel and programmatic resources, full-time staff, 
facilities, equipment, and linkages to external sources of technology to 
develop and transfer technologies related to NIST research results and 
expertise in the technical areas noted in these procedures?
    (3) Technology delivery mechanisms. Does the proposal clearly and 
sharply define an effective methodology for delivering advanced 
manufacturing technology to small- and medium-sized manufacturers?
    (i) Linkages. Development of effective partnerships or linkages to 
third parties such as industry, universities, nonprofit economic 
organizations, and state governments who will amplify the Center's 
technology delivery to reach a large number of clients in its service 
region.
    (ii) Program leverage. Provision of an effective strategy to amplify 
the Center's technology delivery approaches to achieve the proposed 
objectives as described in Sec.  290.3(e).
    (4) Management and financial plan. Does the proposal define a 
management structure and assure management personnel to carry out 
development and operation of an effective Center?
    (i) Organizational structure. Completeness and appropriateness of 
the organizational structure, and its focus on the mission of the 
Center. Assurance of full-time top management of the Center.
    (ii) Program management. Effectiveness of the planned methodology of 
program management.
    (iii) Internal evaluation. Effectiveness of the planned continuous 
internal evaluation of program activities.
    (iv) Plans for financial matching. Demonstrated stability and 
duration of the applicant's funding commitments as well as the 
percentage of operating and capital costs guaranteed by the applicant. 
Identification of matching fund sources and the general terms of the 
funding commitments. Evidence of the applicant's ability to become self-
sustaining in six years.
    (v) Budget. Suitability and focus of the applicant's detailed one-
year budget and six-year budget outline.



Sec.  290.7  Proposal selection process.

    Upon the availability of funding to solicit applications to 
establish a new Manufacturing Extension Partnership (MEP) Center or to 
operate a pre-existing MEP Center, the Director shall publish a notice 
of funding opportunity on www.Grants.gov requesting submission of 
competitive proposals from eligible organizations.

[86 FR 56183, Oct. 8, 2021]



Sec.  290.8  Reviews of centers.

    (a) Overview. Each Center will be reviewed at least annually, and at 
the end of its third year of operation according to the procedures and 
criteria set out below. There will be regular management interaction 
with NIST and the other Centers for the purpose of evaluation and 
program shaping. Centers are encouraged to try new approaches, must 
evaluate their effectiveness, and abandon or adjust those which do not 
have the desired impact.
    (b) Annual reviews of centers. Centers will be reviewed annually as 
part of the funding renewal process using the criteria set out in Sec.  
290.8(d). The funding level at which a Center is renewed is contingent 
upon a positive program evaluation and will depend upon the availability 
of federal funds and on the Center's ability to obtain suitable match, 
as well as on the budgetary requirements of its proposed program. 
Centers must continue to demonstrate that they will be self-supporting 
after six years.
    (c) Third year review of centers. Each host receiving a Center 
Operating Award under these procedures shall be evaluated during its 
third year of operation by a Merit Review Panel appointed by the 
Secretary of Commerce. Each such Merit Review Panel shall be composed of 
private experts, none of whom shall be connected with the involved 
Center, and Federal officials. An official of NIST shall chair the 
panel. Each Merit Review Panel shall measure the involved Center's 
performance against the criteria set out in Sec.  290.8(d). The 
Secretary shall not provide funding for the fourth through the sixth

[[Page 386]]

years of such Center's operation unless the evaluation is positive on 
all grounds. As a condition of receiving continuing funding, the Center 
must show evidence at the third year review that they are making 
substantial progress toward self-sufficiency. If the evaluation is 
positive and funds are available, the Secretary of Commerce may provide 
continued funding through the sixth year at declining levels, which are 
designed to insure that the Center no longer needs financial support 
from NIST by the seventh year. In no event shall funding for a Center be 
provided by the NIST Manufacturing Technology Centers Program after the 
sixth year of support.
    (d) Criteria for annual and third year reviews. Centers will be 
evaluated under the following criteria in each of the annual reviews, as 
well as the third year review:
    (1) The program objectives specified in Sec.  290.3(b) of these 
procedures;
    (2) Funds-matching performance;
    (3) The extent to which the target firms have successfully 
implemented recently developed or currently developed advanced 
manufacturing technology and techniques transferred by the Center;
    (4) The extent to which successes are properly documented and there 
has been further leveraging or use of a particular advanced 
manufacturing technology or process;
    (5) The degree to which there is successful operation of a network, 
or technology delivery mechanism, involving the sharing or dissemination 
of information related to manufacturing technologies among industry, 
universities, nonprofit economic development organizations and state 
governments.
    (6) The extent to which the Center can increasingly develop 
continuing resources--both technological and financial--such that the 
Centers are finally financially self-sufficient.



Sec.  290.9  Intellectual property rights.

    (a) Awards under the Program will follow the policies and procedures 
on ownership to inventions made under grants and cooperative agreements 
that are set out in Public Law 96-517 (35 U.S.C. chapter 18), the 
Presidential Memorandum on Government Patent Policy to the Heads of 
Executive Departments and Agencies Dated February 18, 1983, and part 401 
of title 37 of the Code of Federal Regulations, as appropriate. These 
policies and procedures generally require the Government to grant to 
Centers selected for funding the right to elect to obtain title to any 
invention made in the course of the conduct of research under an award, 
subject to the reservation of a Government license.
    (b) Except as otherwise specifically provided for in an Award, 
Centers selected for funding under the Program may establish claim to 
copyright subsisting in any data first produced in the performance of 
the award. When claim is made to copyright, the funding recipient shall 
affix the applicable copyright notice of 17 U.S.C. 401 or 402 and 
acknowledgment of Government sponsorship to the data when and if the 
data are delivered to the Government, are published, or are deposited 
for registration as a published work in the U.S. Copyright Office. For 
data other than computer software, the funding recipient shall grant to 
the Government, and others acting on its behalf, a paid up, 
nonexclusive, irrevocable, worldwide license for all such data to 
reproduce, prepare derivative works, distribute copies to the public, 
and perform publicly and display publicly, by or on behalf of the 
Government. For computer software, the funding recipient shall grant to 
the Government, and others acting on its behalf, a paid up, 
nonexclusive, irrevocable, worldwide license for all such computer 
software to reproduce, prepare derivative works, distribute copies to 
the public, and perform publicly and display publicly, by or on behalf 
of the Government.



PART 291_MANUFACTURING EXTENSION PARTNERSHIP; ENVIRONMENTAL PROJECTS-
-Table of Contents



Sec.
291.1 Program description.
291.2 Environmental integration projects.
291.3 Environmental tools and techniques projects.
291.4 National industry-specific pollution prevention and environmental 
          compliance resource centers.
291.5 Proposal selection process.

[[Page 387]]

291.6 Additional requirements; Federal policies and procedures.

    Authority: 15 U.S.C. Sec.  272(b)(1) and (c)(3) and Sec.  2781.

    Source: 60 FR 4082, Jan. 20, 1995, unless otherwise noted.



Sec.  291.1  Program description.

    (a) In accordance with the provisions of the National Institute of 
Standards and Technology Act (15 U.S.C. Sec.  272(b)(1) and (c)(3) and 
Sec.  2781), as amended, NIST will provide financial assistance to 
integrate environmentally-related services and resources into the 
national manufacturing extension system. This assistance will be 
provided by NIST often in cooperation with the EPA. Under the NIST 
Manufacturing Extension Partnership (MEP), NIST will periodically make 
merit-based awards to existing MEP manufacturing extension affiliates 
for integration of environmental services into extension centers and to 
non-profit organizations for development of environmentally-related 
tools and techniques. In addition, NIST will initiate pilot centers 
providing environmental information for specific industrial sectors to 
be specified in solicitations. MEP assumes a broad definition of 
manufacturing, and recognizes a wide range of technology and concepts, 
including durable goods production; chemical, biotechnology, and other 
materials processing; electronic component and system fabrication; and 
engineering services associated with manufacturing, as lying within the 
definition of manufacturing.
    (b) Announcements of solicitations. Announcements of solicitations 
will be made in the Commerce Business Daily. Specific information on the 
level of funding available and the deadline for proposals will be 
contained in that announcement. In addition, any specific industry 
sectors or types of tools and techniques to be focused on will be 
specified in the announcement.
    (c) Proposal workshops. Prior to an announcement of solicitation, 
NIST may announce opportunities for potential applicants to learn about 
these projects through workshops. The time and place of the workshop(s) 
will be contained in a Commerce Business Daily announcement.
    (d) Indirect costs. The total dollar amount of the indirect costs 
proposed in an application under this program must not exceed the 
indirect cost rate negotiated and approved by a cognizant Federal agency 
prior to the proposed effective date of the award or 100 percent of the 
total proposed direct costs dollar amount in the application, whichever 
is less.
    (e) Proposal format. The Proposal must not exceed 20 typewritten 
pages in length for integration proposals. Proposals for tools and 
techniques projects and national information centers must not exceed 30 
pages in length. The proposal must contain both technical and cost 
information. The Proposal page count shall include every page, including 
pages that contain words, table of contents, executive summary, 
management information and qualifications, resumes, figures, tables, and 
pictures. All proposals shall be printed such that pages are single-
sided, with no more than fifty-five (55) lines per page. Use 21.6 x 27.9 
cm (8\1/2\ x 11) paper or A4 metric paper. Use an 
easy-to-read font of not more than about 5 characters per cm (fixed 
pitch font of 12 or fewer characters per inch or proportional font of 
point size 10 or larger). Smaller type may be used in figures and 
tables, but must be clearly legible. Margins on all sides (top, bottom, 
left and right) must be at least 2.5 cm. (1). The applicant 
may submit a separately bound document of appendices, containing letters 
of support for the Basic Proposal. The basic proposal should be self-
contained and not rely on the appendices for meeting criteria. Excess 
pages in the Proposal will not be considered in the evaluation. 
Applicants must submit one signed original plus six copies of the 
proposal along with Standard Form 424, 424A (Rev 4/92) and Form CD-511.
    (f) Content of basic proposal. The Basic Proposal must, at a 
minimum, include the following:
    (1) An executive summary summarizing the planned project consistent 
with the Evaluation Criteria stated in this notice.
    (2) A description of the planned project sufficient to permit 
evaluation of the proposal in accordance with the

[[Page 388]]

proposal Evaluation Criteria stated in this notice.
    (3) A budget for the project which identifies all sources of funds 
and which breaks out planned expenditures by both activity and object 
class (e.g., personnel, travel, etc.).
    (4) A description of the qualifications of key personnel who will be 
assigned to work on the proposed project.
    (5) A statement of work that discusses the specific tasks to be 
carried out, including a schedule of measurable events and milestones.
    (6) A Standard Form 424, 424A (Rev 4-92) prescribed by the 
applicable OMB circular and Form CD-511, Certification Regarding 
Debarment, Suspension and Other Responsibility Matters; Drug-Free 
Workplace Requirements and Lobbying. SF-424, 424A (Rev 4-92) and Form 
CD-511 will not be considered part of the page count of the Basic 
Proposal.
    (7) The application requirements and the standard form requirements 
have been approved by OMB (OMB Control Number 0693-0010, 0348-0043 and 
0348-0044).
    (g) Applicable federal and departmental guidance. This includes: 
Administrative Requirements, Cost Principles, and Audits. [Dependent 
upon type of Recipient organization: nonprofit, for-profit, state/local 
government, or educational institution]
    (1) Nonprofit organizations.
    (i) OMB Circular A-110--Uniform Administrative Requirements of 
Grants and Agreements with Institutions of Higher Education, Hospitals, 
and Other Nonprofit Organizations.
    (ii) OMB Circular A-122--Cost Principles for Nonprofit 
Organizations.
    (iii) 15 CFR part 29b--Audit Requirements for Institutions of Higher 
Education and Other Nonprofit Organizations [implements OMB Circular A-
133--Audits for Institutions of Higher Education and Other Nonprofit 
Organizations].
    (2) State/local governments.
    (i) 15 CFR part 24--Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments.
    (ii) OMB Circular A-87--Cost Principles for State and Local 
Governments.
    (iii) 15 CFR part 29a--Audit Requirements for State and Local 
Governments [implements OMB Circular A-128--Audit of State and Local 
Governments].
    (3) Educational institutions.
    (i) OMB Circular A-110--Administrative Requirements for Grants and 
Agreements with Institutions of Higher Education, Hospitals, and Other 
Nonprofit Organizations.
    (ii) OMB Circular A-21--Cost Principles for Educational 
Institutions.
    (iii) 15 CFR part 29b--Audit Requirements for Institutions of Higher 
Education and Other Nonprofit Organizations [implements OMB Circular A-
133--Audits for Institutions of Higher Education and Other Nonprofit 
Organizations].



Sec.  291.2  Environmental integration projects.

    (a) Eligibility criteria. Eligible applicants for these projects are 
manufacturing extension centers or state technology extension programs 
which at the time of solicitation have grants, cooperative agreements or 
contracts with the NIST Manufacturing Extension Partnership. Only one 
proposal per organization per solicitation is permitted in this 
category.
    (b) Project objective. The purpose of these projects is to support 
the integration of environmentally-focused technical assistance, and 
especially pollution prevention assistance, for smaller manufacturers 
into the broader services provided by existing MEP manufacturing 
extension centers. Proposers are free to structure their project in 
whatever way will be most effective and efficient in increasing the 
ability of the center to deliver high quality environmental and 
pollution prevention technical assistance (either directly or in 
partnership with other organizations). Following are some examples of 
purposes for which these funds could be used. This list is by no means 
meant to be all inclusive. A center might propose a set of actions 
encompassing several of these examples as well as others.
    (1) Environmental needs assessment. Detailed assessment of the 
environmentally-related technical assistance needs of manufacturers 
within the

[[Page 389]]

state or region of the manufacturing extension center. This would be 
done as part of a broader plan to incorporate environmentally related 
services into the services of the manufacturing extension center. The 
center might propose to document its process and findings so that other 
centers may learn from its work.
    (2) Partnership with another organization. The center might propose 
to partner with an existing organization which is providing 
environmentally-focused technical assistance to manufacturers. The 
partnership would lead to greater integration of service delivery 
through joint technical assistance projects and joint training.
    (3) Accessing private-sector environmental resources. The center 
might propose to increase it's ability to access environmental technical 
services for smaller manufacturers from environmental consultants or 
environmental firms.
    (4) Training of field engineers/agents in environmental topics. 
Funding for training which empowers the field engineer/agent with the 
knowledge needed to recognize potential environmental, and especially 
pollution prevention, problems and opportunities. In addition, training 
might be funded which empowers the field engineer/agent with the 
knowledge needed to make appropriate recommendations for solutions or 
appropriate referrals to other sources of information or expertise. The 
over-arching goal is for the field engineer/agent to enable the 
manufacturer to be both environmentally clean and competitive.
    (5) Access to environmentally related information or expertise. A 
center might propose to fund access to databases or other sources of 
environmentally-related information or expertise which might be 
necessary to augment the environmentally focused activities of the 
manufacturing extension center.
    (6) Addition of environmentally focused staff. It may be necessary 
for manufacturing extension centers to have an environmental program 
manager or lead field engineer/agent with environmental training and 
experience. Funds could be requested to hire this person. However, the 
proposer would have to demonstrate a clear and reasonable plan for 
providing for the support of this person after the funds provided under 
this project are exhausted since no commitment is being made to on-going 
funding.
    (c) Award period. Projects initiated under this category may be 
carried out over multiple years. The proposer should include optional 
second and third years in their proposal. Proposals selected for award 
may receive one, two or three years of funding from currently available 
funds at the discretion of DOC. If an application is selected for 
funding, DOC has no obligation to provide any additional future funding 
in connection with that award. A separate cooperative agreement will be 
written with winning applicants. Renewal of an award to increase funding 
or extend the period of performance is at the total discretion of DOC. 
It is anticipated that successful projects will be given the opportunity 
to roll the funding for these efforts into the base funding for the 
extension center. Such a roll-over will be based on a performance review 
and the availability of funds.
    (d) Matching requirements. No matching funds are required for these 
proposals. However, the presence of matching funds (cash and in-kind) 
will be considered in the evaluation under the Financial Plan criteria.
    (e) Environmental integration projects evaluation criteria. In most 
solicitations, preference will be given to projects which are focused on 
a single industry sector. This is desired to build on the expertise and 
resources which are being built in tools and resources projects in these 
industry sectors. Industry focus will be specified in the solicitation 
announcement. However, actual services need not be limited exclusively 
to this sector. In addition preference may be given to extension centers 
which do not have extensive environmentally-related services already in 
place. In addition to these preferences, the criteria for selection of 
awards will be as follows in descending order of importance:
    (1) Demonstrated commitment to incorporating environmentally related 
services.

[[Page 390]]

The extension center must demonstrate its commitment to incorporate 
environmentally-related technical services into its overall 
manufacturing extension services even after funding for this project is 
exhausted. It is not the objective of this effort to establish 
completely autonomous environmentally focused extension centers. Rather, 
the goal is to ensure that such services are integrated directly with 
general manufacturing extension services focused on competitiveness. The 
center must demonstrate that such integration will take place. Factors 
that may be considered include: The amount of matching funds devoted to 
the efforts proposed as demonstration of the center's commitment to the 
activity; indication that environmental services are a significant 
aspect of the organization's long range planning; strength of commitment 
and plans for continuing service beyond funding which might be awarded 
through this project; the degree to which environmental services will 
become an integral part of each field engineers' portfolio of services; 
the level of current or planned education and training of staff on 
relevant environmental issues; and the extent of environmentally related 
information and expert resources which will be easily accessible by 
field engineers.
    (2) Demonstrated understanding of the environmentally related 
technical assistance needs of manufacturers in the target population. 
Target population must be clearly defined. The manufacturing center must 
demonstrate that it understands the populations environmentally related 
needs or include a coherent methodology for identifying those needs. The 
proposal should show that the efforts being proposed will enable the 
center to better meet those needs. Factors that may be considered 
include: A clear definition of the target population, its size and 
demographic characteristics; demonstrated understanding of the target 
population's environmental technical assistance needs or a plan to 
develop this understanding; and appropriateness of the size of the 
target population and the anticipated impact for the proposed 
expenditure.
    (3) Coordination with other relevant organizations. Wherever 
possible the project should be coordinated with and leverage other 
organizations which are providing high quality environmentally-related 
services to manufacturers in the same target population or which have 
relevant resources which can be of assistance in the proposed effort. If 
no such organizations exist, the proposal should build the case that 
there are no such organizations. Applicants will need to describe how 
they will coordinate to allow for increased economies of scale and to 
avoid duplication of services in providing assistance to small and 
medium-sized manufacturers. Factors that may be considered include: 
Demonstrated understanding of existing organizations and resources 
relevant for providing technology assistance related services to the 
target population; adequate linkages and partnerships with existing 
organizations and clear definition of those organizations' roles in the 
proposed activities; and that the proposed activity does not duplicate 
existing services or resources.
    (4) Program evaluation: The applicant should specify plans for 
evaluation of the effectiveness of the proposed program and for ensuring 
continuous improvement of program activities. Factors that may be 
considered include: Thoroughness of evaluation plans, including internal 
evaluation for management control, external evaluation for assessing 
outcomes of the activity, and ``customer satisfaction'' measures of 
performance.
    (5) Management experience and plans. Applicants should specify plans 
for proper organization, staffing, and management of the implementation 
process. Factors that may be considered include: Appropriateness and 
authority of the governing or managing organization to conduct the 
proposed activities; qualifications of the project team and its 
leadership to conduct the proposed activity; soundness of any staffing 
plans, including recruitment, selection, training, and continuing 
professional development; appropriateness of the organizational approach 
for carrying out the proposed activity; evidence of involvement and 
support by private industry.

[[Page 391]]

    (6) Financial plan: Applicants should show the relevance and cost 
effectiveness of the financial plan for meeting the objectives of the 
project; the firmness and level of the applicant's total financial 
support for the project; and a plan to maintain the program after the 
cooperative agreement has expired. Factors that may be considered 
include: Reasonableness of the budget both in income and expenses; 
strength of commitment and amount of the proposer's cost share, if any; 
effectiveness of management plans for control of budget; appropriateness 
of matching contributions; and plans for maintaining the program after 
the cooperative agreement has expired.



Sec.  291.3  Environmental tools and techniques projects.

    (a) Eligibility criteria. Eligible applicants for these projects 
include all nonprofit organizations including universities, community 
colleges, state governments, state technology programs and independent 
nonprofit organizations. Organizations may submit multiple proposals 
under this category in each solicitation for unique projects.
    (b) Project objective. The purpose of these projects is to support 
the initial development and implementation of tools or techniques which 
will aide manufacturing extension organizations in providing 
environmentally-related services to smaller manufacturers and which may 
also be of direct use by the smaller manufacturers themselves. Specific 
industry sectors to be addressed and sub-categories of tools and 
techniques may be specified in solicitations. These sectors or sub-
categories will be specified in the solicitation announcement. Examples 
of tools and techniques include, but are not limited to, manufacturing 
assessment tools, environmental benchmarking tools, training delivery 
programs, electronically accessible environmental information resources, 
environmental demonstration facilities, software tools, etc. Projects 
must be completed within the scope of the effort proposed and should not 
require on-going federal support.
    (c) Award period. Projects initiated under this category may be 
carried out over up to three years. Proposals selected for award will 
receive all funding from currently available funds. If an application is 
selected for funding, DOC has no obligation to provide any additional 
future funding in connection with that award. Renewal of an award to 
increase funding or extend the period of performance is at the total 
discretion of DOC.
    (d) Matching requirements. No matching funds are required for these 
proposals. However, the presence of matching funds (cash and in-kind) 
will be considered in the evaluation under the Financial Plan criteria.
    (e) Environmental tools and techniques projects evaluation criteria. 
Proposals from applicants will be evaluated and rated on the basis of 
the following criteria listed in descending order of importance:
    (1) Demonstrated understanding of the environmentally-related 
technical assistance needs of manufacturers and technical assistance 
providers in the target population. Target population must be clearly 
defined. The proposal must demonstrate that it understands the 
population's environmentally related tool or technique needs. The 
proposal should show that the efforts being proposed meet the needs 
identified. Factors that may be considered include: A clear definition 
of the target population, size and demographic distribution; 
demonstrated understanding of the target population's environmental 
tools or techniques needs; and appropriateness of the size of the target 
population and the anticipated impact for the proposed expenditure.
    (2) Technology and information sources. The proposal must delineate 
the sources of technology and/or information which will be used to 
create the tool or resource. Sources may include those internal to the 
center (including staff expertise) or from other organizations. Factors 
that may be considered include: Strength of core competency in the 
proposed area of activity; and demonstrated access to relevant technical 
or information sources external to the organization.
    (3) Degree of integration with the manufacturing extension 
partnership. The proposal must demonstrate that the tool or resource 
will be integrated into

[[Page 392]]

and will be of service to the NIST Manufacturing Extension Centers. 
Factors that may be considered include: Ability to access the tool or 
resource especially for MEP extension centers; methodology for 
disseminating or promoting use of the tool or technique especially 
within the MEP system; and demonstrated interest in using the tool or 
technique especially by MEP extension centers.
    (4) Coordination with other relevant organizations. Wherever 
possible the project should be coordinated with and leverage other 
organizations which are developing or have expertise on similar tools or 
techniques. If no such organizations exist, the proposal should show 
that this the case. Applicants will need to describe how they will 
coordinate to allow for increased economies of scale and to avoid 
duplication. Factors that may be considered include: Demonstrated 
understanding of existing organizations and resources relevant to the 
proposed project; Adequate linkages and partnerships with existing 
organizations and clear definition of those organizations' roles in the 
proposed activities; and that the proposed activity does not duplicate 
existing services or resources.
    (5) Program evaluation. The applicant should specify plans for 
evaluation of the effectiveness of the proposed tool or technique and 
for ensuring continuous improvement of the tool. Factors that may be 
considered include: Thoroughness of evaluation plans, including internal 
evaluation for management control, external evaluation for assessing 
outcomes of the activity, and ``customer satisfaction'' measures of 
performance.
    (6) Management experience and plans. Applicants should specify plans 
for proper organization, staffing, and management of the implementation 
process. Factors that may be considered include: Appropriateness and 
authority of the governing or managing organization to conduct the 
proposed activities; qualifications of the project team and its 
leadership to conduct the proposed activity; soundness of any staffing 
plans, including recruitment, selection, training, and continuing 
professional development; and appropriateness of the organizational 
approach for carrying out the proposed activity.
    (7) Financial plan: Applicants should show the relevance and cost 
effectiveness of the financial plan for meeting the objectives of the 
project; the firmness and level of the applicant's total financial 
support for the project; and a plan to maintain the program after the 
cooperative agreement has expired. Factors that may be considerable 
include: Reasonableness of the budget, both in income and expenses; 
strength of commitment and amount of the proposers's cost share, if any; 
effectiveness of management plans for control of budget appropriateness 
of matching contributions; and plan for maintaining the program after 
the cooperative agreement has expired.



Sec.  291.4  National industry-specific pollution prevention and
environmental compliance resource centers.

    (a) Eligibility criteria. Eligible applicants for these projects 
include all nonprofit organizations including universities, community 
colleges, state governments, state technology programs and independent 
nonprofit organizations. Only one proposal per organization is permitted 
in this category.
    (b) Project objective. These centers will provide easy access to 
relevant, current, reliable and comprehensive information on pollution 
prevention opportunities, regulatory compliance and technologies and 
techniques for reducing pollution in the most competitive manner for a 
specific industry sector or industrial process. The sector or industrial 
process to be addressed will be specified in the solicitation. The 
center will enhance the ability of small businesses to implement risk 
based pollution prevention alternatives to increase competitiveness and 
reduce adverse environmental impacts. The center should use existing 
resources, information and expertise and will avoid duplication of 
existing efforts. The information provided by the center will create 
links between relevant EPA Pollution Prevention programs, EPA and other 
technical information, NIST manufacturing extension efforts, EPA 
regulation and guidance, and state requirements. The center will 
emphasize

[[Page 393]]

pollution prevention methods as the principal means to both comply with 
government regulations and enhance competitiveness.
    (c) Project goal. To improve the environmental and competitive 
performance of smaller manufacturers by:
    (1) Enhancing the national capability to provide pollution 
prevention and regulatory requirements information (federal, state and 
local) to specific industries.
    (2) Providing easy access to relevant and reliable information and 
tools on pollution prevention technologies and techniques that achieve 
manufacturing efficiency and enhanced competitiveness with reduced 
environmental impact.
    (3) Providing easy access to relevant and reliable information and 
tools to enable specific industries to achieve the continued 
environmental improvement to meet or exceed compliance requirements.
    (d) Project customers. (1) The customers for this center will be the 
businesses in the industrial sector or businesses which use the 
industrial process specified as the focus for the solicitation. In 
addition, consultants providing services to those businesses, the NIST 
Manufacturing Extension Centers, and federal state and local programs 
providing technical, pollution prevention and compliance assistance.
    (2) The center should assist the customer in choosing the most cost- 
effective, environmentally sound options or practices that enhance the 
company's competitiveness. Assistance must be accessible to all 
interested customers. The center, wherever feasible, shall use existing 
materials and information to enhance and develop the services to its 
customers. The centers should rarely, if ever, perform research, but 
should find and assimilate data and information produced by other 
sources. The center should not duplicate any existing distribution 
system. The center should distribute and provide information, but should 
not directly provide on-site assistance to customers. Rather, referrals 
to local technical assistance organizations should be given when 
appropriate. Information would likely be available through multiple 
avenues such as phone, fax, electronically accessible data bases, 
printed material, networks of technical experts, etc.
    (e) Award period. The pilot initiated under this category may be 
carried out over multiple years. The proposers should include optional 
second and third years in their proposal. Proposals selected for award 
may receive one, two or three years of funding from currently available 
finds at the discretion of DOC. If an application is selected for 
funding, DOC has no obligation to provide any additional future funding 
in connection with that award. Renewal of an award to increase funding 
or extend the period of performance is at the total discretion of DOC. 
Successful centers may be given an opportunity to receive continuing 
funding as a NIST manufacturing center after the expiration of their 
initial cooperative agreement. Such a roll-over will be based upon the 
performance of the center and availability of funding.
    (f) Matching requirements. A matching contribution from each 
applicant will be required. NIST may provide financial support up to 50% 
of the total budget for the project. The applicant's share of the budget 
may include dollar contributions from state, county, industrial or other 
non-federal sources and non-federal in-kind contributions necessary and 
reasonable for proper accomplishment of project objectives.
    (g) Resource center evaluation criteria. Proposals from applicants 
will be evaluated and rated on the basis of the following criteria 
listed in descending order of importance:
    (1) Demonstrated understanding of the environmentally-related 
information needs of manufacturers and technical assistance providers in 
the target population. Understanding the environmentally-related needs 
of the target population (i.e., customers) is absolutely critical to the 
success of such a resource center. Factors that may be considered 
include: A clear definition of the target population, size and 
demographic distribution; demonstrated understanding of the target 
population's environmentally-related information needs or a clear plan 
for identifying those customer needs; and methodologies for continually 
improving

[[Page 394]]

the understanding of the target population's environmentally-related 
information needs.
    (2) Delivery mechanisms. The proposal must set forth clearly 
defined, effective mechanisms for delivery of services to target 
population. Factors that may be considered include: Potential 
effectiveness and efficiency of proposed delivery systems; and 
demonstrated capacity to form the effective linkages and partnerships 
necessary for success of the proposed activity.
    (3) Technology and information sources. The proposal must delineate 
the sources of information which will be used to create the 
informational foundation of the resource center. Sources may include 
those internal to the Center (including staff expertise), but it is 
expected that many sources will be external. Factors that may be 
considered include: Strength of core competency in the proposed area of 
activity; demonstrated access to relevant technical or information 
sources external to the organization.
    (4) Degree of integration with the manufacturing extension 
partnership and other technical assistance providers. The proposal must 
demonstrate that the source center will be integrated into the system of 
services provided by the NIST Manufacturing Extension Partnership and 
other technical assistance providers. Factors that may be considered 
include: Ability of the target population including MEP Extension 
Centers to access the resource center; and methodology for disseminating 
or promoting use of the resource center especially within the MEP 
system.
    (5) Coordination with other relevant organizations. Wherever 
possible the project should be coordinated with and leverage other 
organizations which are developing or have expertise on similar tools or 
techniques. If no such organizations exist, the proposal should show 
that this is the case. Applicants will need to describe how they will 
coordinate to allow for increased economies of scale and to avoid 
duplication. Factors that may be considered include: Demonstrated 
understanding of existing organizations and resources relevant to the 
proposed project; and adequate linkages and partnerships with existing 
organizations and clear definition of those organizations' roles in the 
proposed activities.
    (6) Program evaluation. The applicant should specify plans for 
evaluation of the effectiveness of the proposed resource center and for 
ensuring continuous improvement. Factors that may be considered include: 
Thoroughness of evaluation plans, including internal evaluation for 
management control, external evaluation for assessing outcomes of the 
activity, and ``customer satisfaction'' measures of performance; and the 
proposer's plan must include documentation, analysis of the results, and 
must show how the results can be used in improving the resource center.
    (7) Management experience and Plans. Applicants should specify Plans 
for proper organization, staffing, and management of the implementation 
process. Factors that may be considered include: Appropriateness and 
authority of the governing or managing organization to conduct the 
proposed activities; qualifications and experience of the project team 
and its leadership to conduct the proposed activity; soundness of any 
staffing plans, including recruitment, selection, training, and 
continuing professional development; and appropriateness of the 
organizational approach for carrying out the proposed activity.
    (8) Financial plan. Applicants should show the relevance and cost 
effectiveness of the financial plan for meeting the objectives of the 
project; the firmness and level of the applicant's total financial 
support for the project; and a plan to maintain the program after the 
cooperative agreement has expired. Factors that may be considered 
include: Reasonableness of the budget, both in income and expenses; 
strength of commitment and amount of the proposer's cost share; 
effectiveness of management plans for control of the budget; and 
appropriateness of matching contributions.



Sec.  291.5  Proposal selection process.

    The proposal evaluation and selection process will consist of three 
principal phases: Proposal qualification; proposal review and selection 
of finalists; and award determination.

[[Page 395]]

    (a) Proposal qualification. All proposals will be reviewed by NIST 
to assure compliance with the proposal content and other basic 
provisions of this notice. Proposals which satisfy these requirements 
will be designated qualified proposals; all others will be disqualified 
at this phase of the evaluation and selection process.
    (b) Proposal review and selection of finalists. NIST will appoint an 
evaluation panel composed of NIST and in some cases other federal 
employees to review and evaluate all qualified proposals in accordance 
with the evaluation criteria and values set forth in this notice. A site 
visit may be required to make full evaluation of a proposal. From the 
qualified proposals, a group of finalists will be numerically ranked and 
recommended for award based on this review.
    (c) Award determination. The Director of the NIST, or her/his 
designee, shall select awardees based on total evaluation scores, 
geographic distribution, and the availability of funds. All three 
factors will be considered in making an award. Upon the final award 
decision, a notification will be made to each of the proposing 
organizations.



Sec.  291.6  Additional requirements; Federal policies and procedures.

    Recipients and subrecipients are subject to all Federal laws and 
Federal and Department of Commerce policies, regulations, and procedures 
applicable to Federal financial assistance awards.



PART 292_MANUFACTURING EXTENSION PARTNERSHIP; INFRASTRUCTURE DEVELOPMENT
PROJECTS--Table of Contents



Sec.
292.1 Program description.
292.2 Training development and deployment projects.
292.3 Technical tools, techniques, practices, and analyses projects.
292.4 Information infrastructure projects.
292.5 Proposal selection process.
292.6 Additional requirements.

    Authority: 15 U.S.C. 272 (b)(1) and (c)(3) and 278l.

    Source: 60 FR 44751, Aug. 29, 1995, unless otherwise noted.



Sec.  292.1  Program description.

    (a) Purpose. In accordance with the provisions of the National 
Institute of Standards and Technology Act (15 U.S.C. 272 (b)(1) and 
(c)(3) and 278l), as amended, NIST will provide financial assistance to 
develop the infrastructure of the national manufacturing extension 
system. Under the NIST Manufacturing Extension Partnership (MEP), NIST 
will periodically make merit-based awards to develop and deploy training 
capability and technical tools, techniques, practices, and analyses. In 
addition, NIST will develop and implement information infrastructure 
services and pilots. MEP assumes a broad definition of manufacturing, 
and recognizes a wide range of technology and concepts, including 
durable goods production; chemical, biotechnology, and other materials 
processing; electronic component and system fabrication; and engineering 
services associated with manufacturing, as lying within the definition 
of manufacturing.
    (b) Announcements of solicitations. Announcements of solicitations 
will be made in the Commerce Business Daily. Specific information on the 
level of funding available and the deadline for proposals will be 
contained in that announcement. In addition, any specific industry 
sectors or types of tools and techniques to be focused on will be 
specified in the announcement, as well as any further definition of the 
selection criteria.
    (c) Proposal workshops. Prior to an announcement of solicitation, 
NIST may announce opportunities for potential applicants to learn about 
these projects through workshops. The time and place of the workshop(s) 
will be contained in a Commerce Business Daily announcement.
    (d) Indirect costs. The total dollar amount of the indirect costs 
proposed in an application under this program must not exceed the 
indirect cost rate negotiated and approved by a cognizant Federal agency 
prior to the proposed effective date of the award or 100 percent of the 
total proposed direct costs dollar amount in the application, whichever 
is less.
    (e) Proposal format. The proposal must contain both technical and 
cost

[[Page 396]]

information. The proposal page count shall include every page, including 
pages that contain words, table of contents, executive summary, 
management information and qualifications, resumes, figures, tables, and 
pictures. All proposals shall be printed such that pages are single-
sided, with no more than fifty-five (55) lines per page. Use 21.6 x 27.9 
cm (8\1/2\ x 11) paper or A4 metric paper. Use an 
easy-to-read font of not more than about 5 characters per cm (fixed 
pitch font of 12 or fewer characters per inch or proportional font of 
point size 10 or larger). Smaller type may be used in figures and 
tables, but must be clearly legible. Margins on all sides (top, bottom, 
left and right) must be at lease 2.5 cm. (1). Length 
limitations for proposals will be specified in solicitations. The 
applicant may submit a separately bound document of appendices, 
containing letters of support for the proposal. The proposal should be 
self-contained and not rely on the appendices for meeting criteria. 
Excess pages in the proposal will not be considered in the evaluation. 
Applicants must submit one signed original plus six copies of the 
proposal and Standard Form 424, 424A, and 424B (Rev 4/92), Standard Form 
LLL, and Form CD-511. Applicants for whom the submission of six copies 
presents financial hardship may submit one original and two copies of 
the application.
    (f) Content of proposal. (1) The proposal must, at a minimum, 
include the following:
    (i) An executive summary summarizing the planned project consistent 
with the Evaluation Criteria stated in this part.
    (ii) A description of the planned project sufficient to permit 
evaluation of the proposal in accordance with the proposal Evaluation 
Criteria stated in this part.
    (iii) A budget for the project which identifies all sources of funds 
and which breaks out planned expenditures by both activity and object 
class (e.g., personnel, travel, etc.).
    (iv) A description of the qualifications of key personnel who will 
be assigned to work on the proposed project.
    (v) A statement of work that discusses the specific tasks to be 
carried out, including a schedule of measurable events and milestones.
    (vi) A completed Standard Form 424, 424A, and 424B (Rev 4-92) 
prescribed by the applicable OMB circular, Standard Form LLL, and Form 
CD-511, Certification Regarding Debarment, Suspension and Other 
Responsibility Matters; Drug-Free Workplace Requirements and Lobbying. 
SF-424, 424A, 424B (Rev 4-92), SF-LLL, and Form CD-511 will not be 
considered part of the page count of the proposal.
    (2) The application requirements and the standard form requirements 
have been approved by OMB (OMB Control Number 0693-0005, 0348-0043 and 
0348-0044).
    (g) Applicable federal and departmental guidance. The Administrative 
Requirements, Cost Principles, and Audits are dependent upon type of 
Recipient organization as follows:
    (1) Nonprofit organizations. (i) OMB Circular A-110--Uniform 
Administrative Requirements for Grants and Agreements with Institutions 
of Higher Education, Hospitals, and Other Nonprofit Organizations.
    (ii) OMB Circular A-122--Cost Principles for Nonprofit 
Organizations.
    (iii) 15 CFR Part 29b--Audit Requirements for Institutions of Higher 
Education and Other Nonprofit Organizations (implements OMB Circular A-
133--Audits for Institutions of Higher Education and Other Nonprofit 
Organizations).
    (2) State/local governments. (i) 15 CFR Part 24--Uniform 
Administrative Requirements for Grants and Cooperative Agreements to 
State and Local Governments.
    (ii) OMB Circular A-87--Cost Principles for State and Local 
Governments.
    (iii) 15 CFR Part 29a--Audit Requirements for State and Local 
Governments (implements OMB Circular A-128--Audit of State and Local 
Governments).
    (3) Educational institutions. (i) OMB Circular A-110--Administrative 
Requirements for Grants and Agreements with Institutions of Higher 
Education, Hospitals, and Other Nonprofit Organizations.
    (ii) OMB Circular A-21--Cost Principles for Educational 
Institutions.

[[Page 397]]

    (iii) 15 CFR Part 29b--Audit Requirements for Institutions of Higher 
Education and Other Nonprofit Organizations (implements OMB Circular A-
133--Audits for Institutions of Higher Education and Other Nonprofit 
Organizations).
    (4) For-profit organizations. (i) OMB Circular A-110--Administrative 
Requirements for Grants and Agreements with Institutions of Higher 
Education, Hospitals, and Other Nonprofit Organizations.
    (ii) 48 CFR Part 31--Federal Acquisition Regulation, Contract Cost 
Principles and Procedures.
    (iii) 15 CFR Part 29b--Audit Requirements for Institutions of Higher 
Education and Other Nonprofit Organizations (implements OMB Circular A-
133).
    (h) Availability of forms and circulars. (1) Copies of forms 
referenced in this part may be obtained from the Manufacturing Extension 
Partnership, National Institute of Standards and Technology, Room C121, 
Building 301, Gaithersburg, MD 20899.
    (2) Copies of OMB Circulars may be obtained from the Office of 
Administration, Publications Office, 725 17th St., NW, Room 2200, New 
Executive Office Building, Washington, DC 20503.



Sec.  292.2  Training development and deployment projects.

    (a) Eligibility criteria. In general, eligible applicants for these 
projects include all for-profit and nonprofit organizations including 
universities, community colleges, state governments, state technology 
programs and independent nonprofit organizations. However, specific 
limitations on eligibility may be specified in solicitations. 
Organizations may submit multiple proposals under this category in each 
solicitation for unique projects.
    (b) Project objective. The purpose of these projects is to support 
the development and deployment of training programs which will aid 
manufacturing extension organizations in providing services to smaller 
manufacturers. While primarily directed toward the field agents/
engineers of the extension organizations, the training may also be of 
direct use by the smaller manufacturers themselves. Specific industry 
sectors to be addressed and sub-categories of training may be specified 
in solicitations. Examples of training topic areas include, but are not 
limited to, manufacturing assessment functions, business systems 
management, quality assurance assistance, and financial management 
activities. Examples of training program deployment include, but are not 
limited to, organization and conduct of training courses, development 
and conduct of train-the-trainer courses, preparations and delivery of 
distance learning activities, and preparation of self-learning and 
technical-guideline materials. Projects must be completed within the 
scope of the effort proposed and should not require on-going federal 
support.
    (c) Award period. Projects initiated under this category may be 
carried out over a period of up to three years. If an application is 
selected for funding, DOC has no obligation to provide any additional 
future funding in connection with that award. Renewal of an award to 
increase funding or extend the period of performance is at the total 
discretion of DOC.
    (d) Matching requirements. Matching fund requirements for these 
proposals will be specified in solicitations including the breakdown of 
cash and in-kind requirements. For those projects not requiring matching 
funds, the presence of match will be considered in the evaluation under 
the Financial Plan criteria.
    (e) Training development and deployment projects evaluation 
criteria. Proposals will be evaluated and rated on the basis of the 
following criteria listed in descending order of importance:
    (1) Demonstration that the proposed project will meet the training 
needs of technical assistance providers and manufacturers in the target 
population. The target population must be clearly defined and the 
proposal must demonstrate that it understands the population's training 
needs within the proposed project area. The proposal should show that 
the efforts being proposed meet the needs identified. Factors that may 
be considered include: A clear definition of the target population, size 
and demographic distribution; demonstrated understanding of the target

[[Page 398]]

population's training needs; and appropriateness of the size of the 
target population and the anticipated impact for the proposed 
expenditure.
    (2) Development/deployment methodology and use of appropriate 
technology and information sources. The proposal must describe the 
technical plan for the development or deployment of the training, 
including the project activities to be used in the training development/
deployment and the sources of technology and/or information which will 
be used to create or deploy the training activity. Sources may include 
those internal to the proposer or from other organizations. Factors that 
may be considered include: Adequacy of the proposed technical plan; 
strength of core competency in the proposed area of activity; and 
demonstrated access to relevant technical or information sources 
external to the organization.
    (3) Delivery and implementation mechanisms. The proposal must set 
forth clearly defined, effective mechanisms for delivery and/or 
implementation of proposed services to the target population. The 
proposal also must demonstrate that training activities will be 
integrated into and will be of service to the NIST Manufacturing 
Extension Centers. Factors that may be considered include: Ease of 
access to the training activity especially for MEP extension centers; 
methodology for disseminating or promoting involvement in the training 
especially within the MEP system; and demonstrated interest in the 
training activity especially by MEP extension centers.
    (4) Coordination with other relevant organizations. Wherever 
possible the project should be coordinated with and leverage other 
organizations which are developing or have expertise with similar 
training. If no such organizations exist, the proposal should show that 
this is the case. Applicants will need to describe how they will 
coordinate to allow for increased economies of scale and to avoid 
duplication. Factors that may be considered include: Demonstrated 
understanding of existing organizations and resources relevant to the 
proposed project; adequate linkages and partnerships with existing 
organizations and clear definition of those organizations' roles in the 
proposed activities; and that the proposed activity does not duplicate 
existing services or resources.
    (5) Program evaluation. The applicant should specify plans for 
evaluation of the effectiveness of the proposed training activity and 
for ensuring continuous improvement of the training. Factors that may be 
considered include: Thoroughness of evaluation plans, including internal 
evaluation for management control, external evaluation for assessing 
outcomes of the activity, and ``customer satisfaction'' measures of 
performance.
    (6) Management and organizational experience and plans. Applicants 
should specify plans for proper organization, staffing, and management 
of the implementation process. Factors that may be considered include: 
Appropriateness and authority of the governing or managing organization 
to conduct the proposed activities; qualifications of the project team 
and its leadership to conduct the proposed activity; soundness of any 
staffing plans, including recruitment, selection, training, and 
continuing professional development; and appropriateness of the 
organizational approach for carrying out the proposed activity.
    (7) Financial plan. Applicants should show the relevance and cost 
effectiveness of the financial plan for meeting the objectives of the 
project; the firmness and level of the applicant's total financial 
support for the project; and a plan to maintain the program after the 
cooperative agreement has expired. Factors that may be considered 
include: Reasonableness of the budget, both in income and expenses; 
strength of commitment and amount of the proposer's cost share, if any; 
effectiveness of management plans for control of budget; appropriateness 
of matching contributions; and plan for maintaining the program after 
the cooperative agreement has expired.



Sec.  292.3  Technical tools, techniques, practices, and analyses projects.

    (a) Eligibility criteria. In general, eligible applicants for these 
projects include all for profit and nonprofit organizations including 
universities, community colleges, state governments,

[[Page 399]]

state technology programs and independent nonprofit organizations. 
However, specific limitations on eligibility may be specified in 
solicitations. Organizations may submit multiple proposals under this 
category in each solicitation for unique projects.
    (b) Project objective. The purpose of these projects is to support 
the initial development, implementation, and analysis of tools, 
techniques, and practices which will aid manufacturing extension 
organizations in providing services to smaller manufacturers and which 
may also be of direct use by the smaller manufacturers themselves. 
Specific industry sectors to be addressed and sub-categories of tools, 
techniques, practices, and analyses may be specified in solicitations. 
Examples of tools, techniques, and practices include, but are not 
limited to, manufacturing assessment tools, benchmarking tools, business 
systems management tools, quality assurance assistance tools, financial 
management tools, software tools, practices for partnering, techniques 
for urban or rural firms, and comparative analysis of assessment 
methods. Projects must be completed within the scope of the effort 
proposed and should not require on-going federal support.
    (c) Award period. Projects initiated under this category may be 
carried out over a period of up to three years. If an application is 
selected for funding, DOC has no obligation to provide any additional 
future funding in connection with that award. Renewal of an award to 
increase funding or extend the period of performance is at the total 
discretion of DOC.
    (d) Matching requirements. Matching fund requirements for these 
proposals will be specified in solicitations including the breakdown of 
cash and in-kind requirements. For those projects not requiring matching 
funds, the presence of match will be considered in the evaluation under 
the Financial Plan criteria.
    (e) Tools, techniques, practices, and analyses projects evaluation 
criteria. Proposals from applicants will be evaluated and rated on the 
basis of the following criteria listed in descending order of 
importance:
    (1) Demonstration that the proposed project will meet the technical 
assistance needs of technical assistance providers and manufacturers in 
the target population. Target population must be clearly defined. The 
proposal must demonstrate that it understands the population's tool or 
technique needs within the proposed project area. The proposal should 
show that the efforts being proposed meet the needs identified. Factors 
that may be considered include: A clear definition of the target 
population, size and demographic distribution; demonstrated 
understanding of the target population's tools or technique needs; and 
appropriateness of the size of the target population and the anticipated 
impact for the proposed expenditure.
    (2) Development methodology and use of appropriate technology and 
information sources. The proposal must describe the technical plan for 
the development of the tool or resource, including the project 
activities to be used in the tool/resource development and the sources 
of technology and/or information which will be used to create the tool 
or resource. Sources may include those internal to the proposer or from 
other organizations. Factors that may be considered include: Adequacy of 
the proposed technical plan; strength of core competency in the proposed 
area of activity; and demonstrated access to relevant technical or 
information sources external to the organization.
    (3) Degree of integration with the manufacturing extension 
partnership. The proposal must demonstrate that the tool or resource 
will be integrated into and will be of service to the NIST Manufacturing 
Extension Centers. Factors that may be considered include: Ability to 
access the tool or resource especially for MEP extension centers; 
methodology for disseminating or promoting use of the tool or technique 
especially within the MEP system; and demonstrated interest in using the 
tool or technique especially by MEP extension centers.
    (4) Coordination with other relevant organizations. Wherever 
possible the project should be coordinated with and leverage other 
organizations which are developing or have expertise on similar

[[Page 400]]

tools, techniques, practices, or analyses. If no such organizations 
exist, the proposal should show that this is the case. Applicants will 
need to describe how they will coordinate to allow for increased 
economies of scale and to avoid duplication. Factors that may be 
considered include: Demonstrated understanding of existing organizations 
and resources relevant to the proposed project; adequate linkages and 
partnerships with existing organizations and clear definition of those 
organizations' roles in the proposed activities; and that the proposed 
activity does not duplicate existing services or resources.
    (5) Program evaluation. The applicant should specify plans for 
evaluation of the effectiveness of the proposed tool or technique and 
for ensuring continuous improvement of the tool. Factors that may be 
considered include: Thoroughness of evaluation plans, including internal 
evaluation for management control, external evaluation for assessing 
outcomes of the activity, and ``customer satisfaction'' measures of 
performance.
    (6) Management experience and plans. Applicants should specify plans 
for proper organization, staffing, and management of the implementation 
process. Factors that may be considered include: Appropriateness and 
authority of the governing or managing organization to conduct the 
proposed activities; qualifications of the project team and its 
leadership to conduct the proposed activity; soundness of any staffing 
plans, including recruitment, selection, training, and continuing 
professional development; and appropriateness of the organizational 
approach for carrying out the proposed activity.
    (7) Financial plan. Applicants should show the relevance and cost 
effectiveness of the financial plan for meeting the objectives of the 
project; the firmness and level of the applicant's total financial 
support for the project; and a plan to maintain the program after the 
cooperative agreement has expired. Factors that may be considered 
include: Reasonableness of the budget, both in income and expenses; 
strength of commitment and amount of the proposer's cost share, if any; 
effectiveness of management plans for control of budget; appropriateness 
of matching contributions; and plan for maintaining the program after 
the cooperative agreement has expired.



Sec.  292.4  Information infrastructure projects.

    (a) Eligibility criteria. In general, eligible applicants for these 
projects include all for profit and nonprofit organizations including 
universities, community colleges, state governments, state technology 
programs and independent nonprofit organizations. However, specific 
limitations on eligibility may be specified in solicitations. 
Organizations may submit multiple proposals under this category in each 
solicitation for unique projects.
    (b) Project objective. The purpose of these projects is to support 
and act as a catalyst for the development and implementation of 
information infrastructure services and pilots. These projects will aid 
manufacturing extension organizations and smaller manufacturers in 
accessing the technical information they need or will accelerate the 
rate of adoption of electronic commerce. Specific industry sectors to be 
addressed or subcategories of information infrastructure projects 
include, but are not limited to, pilot demonstration of electronic data 
interchange in a supplier chain, implementation of an electronic 
information service for field engineers at MEP extension centers, and 
industry specific electronic information services for MEP centers and 
smaller manufacturers.
    (c) Award period. Projects initiated under this category may be 
carried out over a period of up to three years. If an application is 
selected for funding, DOC has no obligation to provide any additional 
future funding in connection with that award. Renewal of an award to 
increase funding or extend the period of performance is at the total 
discretion of DOC.
    (d) Matching requirements. Matching fund requirements for these 
proposals will be specified in solicitations including the breakdown of 
cash and in-kind requirements. For those projects not requiring matching 
funds, the presence of match will be considered in the evaluation under 
the Financial Plan criteria.

[[Page 401]]

    (e) Information infrastructure projects evaluation criteria. 
Proposals from applicants will be evaluated and rated on the basis of 
the following criteria listed in descending order of importance:
    (1) Demonstration that the proposed project will meet the need of 
the target customer base. The target customer base must be clearly 
defined and, in general, will be technical assistance providers and/or 
smaller manufacturers. The proposal should demonstrate a clear 
understanding of the customer base's needs within the proposed project 
area. The proposal should also show that the efforts being proposed meet 
the needs identified. Factors that may be considered include: A clear 
definition of the customer base, size and demographic distribution; 
demonstrated understanding of the customer base's needs within the 
project area; and appropriateness of the size of the customer base and 
the anticipated impact for the proposed expenditure.
    (2) Development plans and delivery/implementation mechanisms. The 
proposal must set forth clearly defined, effective plans for the 
development, delivery and/or implementation of proposed services to the 
customer base. The proposal must delineate the sources of information 
which will be used to implement the project. Sources may include those 
internal to the center (including staff expertise) or from other 
organizations. Factors that may be considered include: Adequacy of 
plans; potential effectiveness and efficiency of proposed delivery and 
implementation systems; demonstrated capacity to form effective 
linkages; partnerships necessary for success of the proposed activity; 
strength of core competency in the proposed area of activity; and 
demonstrated access to relevant technical or information sources 
external to the organization.
    (3) Coordination with other relevant organizations. Wherever 
possible the project should be coordinated with and leverage other 
organizations which are developing or have expertise within the project 
area. In addition, the project should demonstrate that it does not 
duplicate efforts which already are being performed by the private 
sector without government support. Applicants will need to describe how 
they will coordinate to allow for increased economies of scale and to 
avoid duplication. If the proposer will not be partnering with any other 
organizations, then the proposal should clearly explain why the project 
will be more successful if implemented as proposed. A proposal which 
makes a credible case for why there are no, or very limited, 
partnerships will not be penalized in evaluation. Factors that may be 
considered include: Demonstrated understanding of existing organizations 
and resources relevant to the proposed project; Adequate linkages and 
partnerships with relevant existing organizations; clear definition of 
the roles of partnering organizations in the proposed activities; and 
that the proposed activity does not duplicate existing services or 
resources.
    (4) Management and organizational experience and plans. Applicants 
should specify plans for proper organization, staffing, and management 
of the project. Factors that may be considered include: Appropriateness 
and authority of the governing or managing organization to conduct the 
proposed activities; qualifications of the project team and its 
leadership to conduct the proposed activity; soundness of any staffing 
plans, including recruitment, selection, training, and continuing 
professional development; and appropriateness of the organizational 
approach for carrying out the proposed activity.
    (5) Financial plan. Applicants should show the relevance and cost 
effectiveness of the financial plan for meeting the objectives of the 
project; the firmness and level of the applicant's total financial 
support for the project; and the ability of the project to continue 
after the cooperative agreement has expired without federal support. 
While projects that appear to require on-going public support will be 
considered, in general, they will be evaluated lower than those which 
show a strong ability to become self-sufficient. Factors that may be 
considered include: Reasonableness of the budget, both in income and 
expenses; strength of commitment and amount of the proposer's cost 
share, if any; effectiveness of management plans for control of budget; 
appropriateness of matching contributions;

[[Page 402]]

and plan for maintaining the program after the cooperative agreement has 
expired.
    (6) Evaluation. The applicant should specify plans for evaluation of 
the effectiveness of the proposed project and for ensuring continuous 
improvement. Factors that may be considered include: Thoroughness of 
evaluation plans, including internal evaluation for management control, 
external evaluation for assessing outcomes of the activity, and 
``customer satisfaction'' measures of performance.



Sec.  292.5  Proposal selection process.

    The proposal evaluation and selection process will consist of three 
principal phases: Proposal qualifications; proposal review and selection 
of finalists; and award determination as follows:
    (a) Proposal qualification. All proposals will be reviewed by NIST 
to assure compliance with the proposal content and other basic 
provisions of this part. Proposals which satisfy these requirements will 
be designated qualified proposals; all others will be disqualified at 
this phase of the evaluation and selection process.
    (b) Proposal review and selection of finalists. NIST will appoint an 
evaluation panel to review and evaluate all qualified proposals in 
accordance with the evaluation criteria and values set forth in this 
part. Evaluation panels will consist of NIST employees and in some cases 
other federal employees or non-federal experts who sign non-disclosure 
agreements. A site visit may be required to make full evaluation of a 
proposal. From the qualified proposals, a group of finalists will be 
numerically ranked and recommended for award based on this review.
    (c) Award determination. The Director of the NIST, or her/his 
designee, shall select awardees based on total evaluation scores, 
geographic distribution, and the availability of funds. All three 
factors will be considered in making an award. Upon the final award 
decision, a notification will be made to each of the proposing 
organizations.



Sec.  292.6  Additional requirements.

    Federal policies and procedures. Recipients and subrecipients are 
subject to all Federal laws and Federal and Department of Commerce 
policies, regulations, and procedures applicable to Federal financial 
assistance awards.



PART 295_ADVANCED TECHNOLOGY PROGRAM--Table of Contents



                            Subpart A_General

Sec.
295.1 Purpose.
295.2 Definitions.
295.3 Eligibility of United States- and foreign-owned businesses.
295.4 The selection process.
295.5 Use of pre-proposals in the selection process.
295.6 Criteria for selection.
295.7 Notice of availability of funds.
295.8 Intellectual property rights; publication of research results.
295.9 Protection of confidential information.
295.10 Special reporting and auditing requirements.
295.11 Technical and educational services for ATP recipients.

 Subpart B_Assistance to United States Industry-Led Joint Research and 
                          Development Ventures

295.20 Types of assistance available.
295.21 Qualifications of proposers.
295.22 Limitations on assistance.
295.23 Dissolution of joint research and development ventures.
295.24 Registration.
295.25 Special rule for the valuation of transfers between separately-
          owned joint venture members.

         Subpart C_Assistance to Single-Proposer U.S. Businesses

295.30 Types of assistance available.
295.31 Qualification of proposers.
295.32 Limitations on assistance.

    Authority: 15 U.S.C. 278n.

    Source: 55 FR 30145, July 24, 1990, unless otherwise noted.



                            Subpart A_General



Sec.  295.1  Purpose.

    (a) The purpose of the Advanced Technology Program (ATP) is to 
assisted United States businesses to carry out research and development 
on high risk, high pay-off, emerging and enabling technologies. These 
technologies are:

[[Page 403]]

    (1) High risk, because the technical challenges make success 
uncertain;
    (2) High pay-off, because when applied they offer significant 
benefits to the U.S. economy; and
    (3) Emerging and enabling, because they offer wide breadth of 
potential application and form an important technical basis for future 
commercial applications.
    (b) The rules in this part prescribe policies and procedures for the 
award of cooperative agreements under the Advanced Technology Program in 
order to ensure the fair treatment of all proposals. While the Advanced 
Technology Program is authorized to enter into grants, cooperative 
agreements, and contracts to carry out its mission, the rules in this 
part address only the award of cooperative agreements. The Program 
employs cooperative agreements rather than grants because such 
agreements allow ATP to exercise appropriate management oversight of 
projects and also to link ATP-funded projects to ongoing R&D at the 
National Institute of Standards and Technology wherever such linkage 
would increase the likelihood of success of the project.
    (c) In carrying out the rules in this part, the Program endeavors to 
put more emphasis on joint ventures and consortia with a broad range of 
participants, including large companies, and less emphasis on support of 
individual large companies.

[62 FR 64684, Dec. 9, 1997]



Sec.  295.2  Definitions.

    (a) For the purposes of the ATP, the term award means Federal 
financial assistance made under a grant or cooperative agreement.
    (b) The term company means a for-profit organization, including sole 
proprietors, partnerships, limited liability companies (LLCs), or 
corporations.
    (c) The term cooperative agreement refers to a Federal assistance 
instrument used whenever the principal purpose of the relationship 
between the Federal Government and the recipient is the transfer of 
money, property, or services, or anything of value to the recipient to 
accomplish a public purpose of support or stimulation authorized by 
Federal statute, rather than acquisition by purchase, lease, or barter, 
of property or services for the direct benefit or use of the Federal 
Government; and substantial involvement is anticipated between the 
executive agency, acting for the Federal Government, and the recipient 
during performance of the contemplated activity.
    (d) The term direct costs means costs that can be identified readily 
with activities carried out in support of a particular final objective. 
A cost may not be allocated to an award as a direct cost if any other 
cost incurred for the same purpose in like circumstances has been 
assigned to an award as an indirect cost. Because of the diverse 
characteristics and accounting practices of different organizations, it 
is not possible to specify the types of costs which may be classified as 
direct costs in all situations. However, typical direct costs could 
include salaries of personnel working on the ATP project and associated 
reasonable fringe benefits such as medical insurance. Direct costs might 
also include supplies and materials, special equipment required 
specifically for the ATP project, and travel associated with the ATP 
project. ATP shall determine the allowability of direct costs in 
accordance with applicable Federal cost principles.
    (e) The term foreign-owned company means a company other than a 
United States-owned company as defined in Sec.  295.2(q).
    (f) The term grant means a Federal assistance instrument used 
whenever the principal purpose of the relationship between the Federal 
Government and the recipient is the transfer of money, property, 
services, or anything of value to the recipient in order to accomplish a 
public purpose of support or stimulation authorized by Federal statute, 
rather than acquisition by purchase, lease, or barter, of property or 
services for the direct benefit or use of the Federal Government; and no 
substantial involvement is anticipated between the executive agency, 
acting for the Federal Government, and the recipient during performance 
of the contemplated activity.
    (g) The term independent research organization (IRO) means a 
nonprofit research and development corporation or association organized 
under the laws of

[[Page 404]]

any state for the purpose of carrying out research and development on 
behalf of other organizations.
    (h) The term indirect costs means those costs incurred for common or 
joint objectives that cannot be readily identified with activities 
carried out in support of a particular final objective. A cost may not 
be allocated to an award as an indirect cost if any other cost incurred 
for the same purpose in like circumstances has been assigned to an award 
as a direct cost. Because of diverse characteristics and accounting 
practices it is not possible to specify the types of costs which may be 
classified as indirect costs in all situations. However, typical 
examples of indirect costs include general administration expenses, such 
as the salaries and expenses of executive officers, personnel 
administration, maintenance, library expenses, and accounting. ATP shall 
determine the allowability of indirect costs in accordance with 
applicable Federal cost principles.
    (i) The term industry-led joint research and development venture or 
joint venture means a business arrangement that consists of two or more 
separately-owned, for-profit companies that perform research and 
development in the project; control the joint venture's membership, 
research directions, and funding priorities; and share total project 
costs with the Federal government. The joint venture may include 
additional companies, independent research organizations, universities, 
and/or governmental laboratories (other than NIST) which may or may not 
contribute funds (other than Federal funds) to the project and perform 
research and development. A for-profit company or an independent 
research organization may serve as an Administrator and perform 
administrative tasks on behalf of a joint venture, such as handling 
receipts and disbursements of funds and making antitrust filings. The 
following activities are not permissible for ATP funded joint ventures:
    (1) Exchanging information among competitors relating to costs, 
sales, profitability, prices, marketing, or distribution of any product, 
process, or service that is not reasonably required to conduct the 
research and development that is the purpose of such venture;
    (2) Entering into any agreement or engaging in any other conduct 
restricting, requiring, or otherwise involving the production or 
marketing by any person who is a party to such joint venture of any 
product, process, or service, other than the production or marketing of 
proprietary information developed through such venture, such as patents 
and trade secrets; and
    (3) Entering into any agreement or engaging in any other conduct:
    (i) To restrict or require the sale, licensing, or sharing of 
inventions or developments not developed through such venture, or
    (ii) To restrict or require participation by such party in other 
research and development activities, that is not reasonably required to 
prevent misappropriation of proprietary information contributed by any 
person who is a party to such venture or of the results of such venture.
    (j) The term intellectual property means an invention patentable 
under title 35, United States Code, or any patent on such an invention.
    (k) The term large business for a particular ATP competition means 
any business, including any parent company plus related subsidiaries, 
having annual revenues in excess of the amount published by ATP in the 
relevant annual notice of availability of funds required by Sec.  
295.7(a). In establishing this amount, ATP may consider the dollar value 
of the total revenues of the 500th company in Fortune Magazine's Fortune 
500 listing.
    (l) The term matching funds or cost sharing means that portion of 
project costs not borne by the Federal government. Sources of revenue to 
satisfy the required cost share include cash and in-kind contributions. 
Cash contributions can be from recipient, state, county, city, or other 
non-federal sources. In-kind contributions can be made by recipients or 
non-federal third parties (except subcontractors working on an ATP 
project) and include but are not limited to equipment, research tools, 
software, and supplies. Except as specified at Sec.  295.25, the value 
of in-kind contributions shall be determined in accordance with OMB 
Circular A-110,

[[Page 405]]

Subpart C, Section 23. The value of in-kind contributions will be 
prorated according to the share of total use dedicated to the ATP 
program. ATP restricts the total value of in-kind contributions that can 
be used to satisfy the cost share by requiring that such contributions 
not exceed 30 percent of the non-federal share of the total project 
costs. ATP shall determine the allowability of matching share costs in 
accordance with applicable federal cost principles.
    (m) The term person shall be deemed to include corporations and 
associations existing under or authorized by the laws of either the 
United States, the laws of any of the Territories, the laws of any 
State, or the laws of any foreign country.
    (n) The term Program means the Advanced Technology Program.
    (o) The term Secretary means the Secretary of Commerce or the 
Secretary's designee.
    (p) The term small business means a business that is independently 
owned and operated, is organized for profit, and is not dominant in the 
field of operation in which it is proposing, and meets the other 
requirements found in 13 CFR part 121.
    (q) The term United States-owned company means a for-profit 
organization, including sole proprietors, partnerships, or corporations, 
that has a majority ownership or control by individuals who are citizens 
of the United States.

[55 FR 30145, July 24, 1990, as amended at 59 FR 666, 667, Jan. 6, 1994; 
62 FR 64684, 64685, Dec. 9, 1997; 63 FR 64413, Nov. 20, 1998]



Sec.  295.3  Eligibility of United States- and foreign-owned businesses.

    (a) A company shall be eligible to receive an award from the Program 
only if:
    (1) The Program finds that the company's participation in the 
Program would be in the economic interest of the United States, as 
evidenced by investments in the United States in research, development, 
and manufacturing (including, for example, the manufacture of major 
components or subassemblies in the United States); significant 
contributions to employment in the United States; and agreement with 
respect to any technology arising from assistance provided by the 
Program to promote the manufacture within the United States of products 
resulting from that technology (taking into account the goals of 
promoting the competitiveness of United States industry), and to procure 
parts and materials from competitive suppliers; and
    (2) Either the company is a United States-owned company, or the 
Program finds that the company is incorporated in the United States and 
has a parent company which is incorporated in a country which affords to 
United States-owned companies opportunities, comparable to those 
afforded to any other company, to participate in any joint venture 
similar to those authorized under the Program; affords the United 
States-owned companies local investment opportunities comparable to 
those afforded to any other company; and affords adequate and effective 
protection for the intellectual property rights of United States-owned 
companies.
    (b) The Program may, within 30 days after notice to Congress, 
suspend a company or joint venture from continued assistance under the 
Program if the Program determines that the company, the country of 
incorporation of the company or a parent company, or the joint venture 
has failed to satisfy any of the criteria contained in paragraph (a) of 
this section, and that it is in the national interest of the United 
States to do so.
    (c) Companies owned by legal residents (green card holders) may 
apply to the Program, but before an award can be given, the owner(s) 
must either become a citizen or ownership must be transferred to a U.S. 
citizen(s).

[59 FR 667, Jan. 6, 1994, as amended at 62 FR 64685, Dec. 9, 1997]



Sec.  295.4  The selection process.

    (a) The selection process for awards is a multi-step process based 
on the criteria listed in Sec.  295.6. Source evaluation boards (SEB) 
are established to ensure that all proposals receive careful 
consideration. In the first step, called ``preliminary screening,'' 
proposals may be eliminated by the SEB that do not meet the requirements 
of this Part

[[Page 406]]

of the annual Federal Register Program announcement. Typical but not 
exclusive of the reasons for eliminating a proposal at this stage are 
that the proposal: is deemed to have serious deficiencies in either the 
technical or business plan; involves product development rather than 
high-risk R&D is not industry-led; is significantly overpriced or 
underpriced given the scope of the work; does not meet the requirements 
set out in the notice of availability of funds issued pursuant to Sec.  
295.7; or does not meet the cost-sharing requirement. NIST will also 
examine proposals that have been submitted to a previous competition to 
determine whether substantive revisions have been made to the earlier 
proposal, and, if not, may reject the proposal.
    (b) In the second step, referred to as the ``technical and business 
review,'' proposals are evaluated under the criteria found in Sec.  
295.6. Proposals judged by the SEB after considering the technical and 
business evaluations to have the highest merit based on the selection 
criteria receive further consideration and are referred to as 
``semifinalists.''
    (c) In the third step, referred to as ``selection of finalists,'' 
the SEB prepares a final ranking of semifinalist proposals by a majority 
vote, based on the evaluation criteria in Sec.  295.6. During this step, 
the semifinalist proposers will be invited to an oral review of their 
proposals with NIST, and in some cases site visits may be required. 
Subject to the provisions of Sec.  295.6, a list of ranked finalists is 
submitted to the Selecting Official.
    (d) In the final step, referred to as ``selection of recipients,'' 
the Selecting Official selects funding recipients from among the 
finalists, based upon: the SEB rank order of the proposals on the basis 
of all selection criteria (Sec.  295.6); assuring an appropriate 
distribution of funds among technologies and their applications; the 
availability of funds; and adherence to the Program selection criteria. 
The Program reserves the right to deny awards in any case where 
information is uncovered which raises a reasonable doubt as to the 
responsibility of the proposer. The decision of the Selecting Official 
is final.
    (e) NIST reserves the right to negotiate the cost and scope of the 
proposed work with the proposers that have been selected to receive 
awards. For example, NIST may request that the proposer delete from the 
scope of work a particular task that is deemed by NIST to be product 
development or otherwise inappropriate for ATP support.

[63 FR 64413, Nov. 20, 1998]



Sec.  295.5  Use of pre-proposals in the selection process.

    To reduce proposal preparation costs incurred by proposers and to 
make the selection process more efficient, NIST may use mandatory or 
optional preliminary qualification processes based on pre-proposals. In 
such cases, announcements requesting pre-proposals will be published as 
indicated in Sec.  295.7, and will seek abbreviated proposals (pre-
proposals) that address both of the selection criteria, but in 
considerably less detail than full proposals. The Program will review 
the pre-proposals in accordance with the selection criteria and provide 
written feedback to the proposers to determine whether the proposed 
projects appear sufficiently promising to warrant further development 
into full proposals. Proposals are neither ``accepted'' or ``rejected'' 
at the pre-proposal stage. When the full proposals are received in 
response to the notice of availability of funds described in Sec.  
295.7, the review and selection process will occur as described in Sec.  
295.4.

[63 FR 64414, Nov. 20, 1998]



Sec.  295.6  Criteria for selection.

    The evaluation criteria to be used in selecting any proposal for 
funding under this program, and their respective weights, are listed in 
this section. No proposal will be funded unless the Program determines 
that it has scientific and technological merit and that the proposed 
technology has strong potential for broad-based economic benefits to the 
nation. Additionally, no proposal will be funded that does not require 
Federal support, that is product development rather than high risk R&D, 
that does not display an appropriate level of commitment from the 
proposer, or does not have an

[[Page 407]]

adequate technical and commercialization plan.
    (a) Scientific and technological merit (50%). The proposed 
technology must be highly innovative. The research must be challenging, 
with high technical risk. It must be aimed at overcoming an important 
problem(s) or exploiting a promising opportunity. The technical leverage 
of the technology must be adequately explained. The research must have a 
strong potential for advancing the state of the art and contributing 
significantly to the U.S. scientific and technical knowledge base. The 
technical plan must be clear and concise, and must clearly identify the 
core innovation, the technical approach, major technical hurdles, the 
attendant risks, and clearly establish feasibility through adequately 
detailed plans linked to major technical barriers. The plan must address 
the questions of ``what, how, where, when, why, and by whom'' in 
substantial detail. The Program will assess the proposing team's 
relevant experience for pursuing the technical plan. The team carrying 
out the work must demonstrate a high level of scientific/technical 
expertise to conduct the R&D and have access to the necessary research 
facilities.
    (b) Potential for broad-based economic benefits (50%). The proposed 
technology must have a strong potential to generate substantial benefits 
to the nation that extend significantly beyond the direct returns to the 
proposing organization(s). The proposal must explain why ATP support is 
needed and what difference ATP funding is expected to make in terms of 
what will be accomplished with the ATP funding versus without it. The 
pathways to economic benefit must be described, including the proposer's 
plan for getting the technology into commercial use, as well as 
additional routes that might be taken to achieve broader diffusion of 
the technology. The proposal should identify the expected returns that 
the proposer expects to gain, as well as returns that are expected to 
accrue to others, i.e., spillover effects. The Program will assess the 
proposer's relevant experience and level of commitment to the project 
and project's organizational structure and management plan, including 
the extent to which participation by small businesses is encouraged and 
is a key component in a joint venture proposal, and for large company 
single proposers, the extent to which subcontractor/subrecipient teaming 
arrangements are featured and are a key component of the proposal.

[63 FR 64414, Nov. 20, 1998]



Sec.  295.7  Notice of availability of funds.

    The Program shall publish at least annually a Federal Register 
notice inviting interested parties to submit proposals, and may more 
frequently publish invitations for proposals in the Commerce Business 
Daily, based upon the annual notice. Proposals must be submitted in 
accordance with the guidelines in the ATP Proposal Preparation Kit as 
identified in the published notice. Proposals will only be considered 
for funding when submitted in response to an invitation published in the 
Federal Register, or a related announcement in the Commerce Business 
Daily.

[63 FR 64414, Nov. 20, 1998]



Sec.  295.8  Intellectual property rights; publication of research results.

    (a)(1) Patent rights. Title to inventions arising from assistance 
provided by the Program must vest in a company or companies incorporated 
in the United States. Joint ventures shall provide to NIST a copy of 
their written agreement which defines the disposition of ownership 
rights among the members of the joint venture, and their contractors and 
subcontractors as appropriate, that complies with the first sentence of 
this paragraph. The United States will reserve a nonexclusive, 
nontransferable, irrevocable, paid-up license to practice or have 
practiced for or on behalf of the United States any such intellectual 
property, but shall not, in the exercise of such license, publicly 
disclose proprietary information related to the license. Title to any 
such intellectual property shall not be transferred or passed, except to 
a company incorporated in the United States, until the expiration of the 
first patent obtained in connection with such intellectual property. 
Nothing in this paragraph shall be construed to prohibit the licensing 
to any company

[[Page 408]]

of intellectual property rights arising from assistance provided under 
this section.
    (2) Patent procedures. Each award by the Program shall include 
provisions assuring the retention of a governmental use license in each 
disclosed invention, and the government's retention of march-in rights. 
In addition, each award by the Program will contain procedures regarding 
reporting of subject inventions by the funding Recipient to the Program, 
including the subject inventions of members of the joint venture (if 
applicable) in which the funding Recipient is a participant, contractors 
and subcontractors of the funding Recipient. The funding Recipient shall 
disclose such subject inventions to the Program within two months after 
the inventor discloses it in writing to the Recipient's designated 
representative responsible for patent matters. The disclosure shall 
consist of a detailed, written report which provides the Program with 
the following: the title of the present invention; the names of all 
inventors; the name and address of the assignee (if any); an 
acknowledgment that the United States has rights in the subject 
invention; the filing date of the present invention, or, in the 
alternative, a statement identifying that the Recipient determined that 
filing was not feasible; an abstract of the disclosure; a description or 
summary of the present invention; the background of the present 
invention or the prior art; a description of the preferred embodiments; 
and what matter is claimed. Upon issuance of the patent, the funding 
Recipient or Recipients must notify the Program accordingly, providing 
it with the Serial Number of the patent as issued, the date of issuance, 
a copy of the disclosure as issued, and if appropriate, the name, 
address, and telephone number(s) of an assignee.
    (b) Copyrights: Except as otherwise specifically provided for in an 
Award, funding recipients under the Program may establish claim to 
copyright subsisting in any data first produced in the performance of 
the award. When claim is made to copyright, the funding recipient shall 
affix the applicable copyright notice of 17 U.S.C. 401 or 402 and 
acknowledgment of Government sponsorship to the data when and if the 
data are delivered to the Government, are published, or are deposited 
for registration as a published work in the U.S. Copyright Office. The 
funding recipient shall grant to the Government, and others acting on 
its behalf, a paid up, nonexclusive, irrevocable, worldwide license for 
all such data to reproduce, prepare derivative works, perform publicly 
and display publicly, and for data other than computer software to 
distribute to the public by or on behalf of the Government.
    (c) Publication of research results: The decision on whether or not 
to publish research results will be made by the funding recipient(s). 
Unpublished intellectual property owned and developed by any business or 
joint research and development venture receiving funding or by any 
member of such a joint venture may not be disclosed by any officer or 
employee of the Federal Government except in accordance with a written 
agreement between the owner or developer and the Program. The licenses 
granted to the Government under Sec.  295.8(b) shall not be considered a 
waiver of this requirement.

[55 FR 30145, July 24, 1990. Redesignated and amended at 59 FR 667, 669, 
Jan. 6, 1994; 63 FR 64414, Nov. 20, 1998]



Sec.  295.9  Protection of confidential information.

    As required by section 278n(d)(5) of title 15 of the United States 
Code, the following information obtained by the Secretary on a 
confidential basis in connection with the activities of any business or 
joint research and development venture receiving funding under the 
program shall be exempt from disclosure under the Freedom of Information 
Act--
    (1) Information on the business operation of any member of the 
business or joint venture;
    (2) Trade secrets possessed by any business or any member of the 
joint venture.

[55 FR 30145, July 24, 1990. Redesignated at 59 FR 667, Jan. 6, 1994]

[[Page 409]]



Sec.  295.10  Special reporting and auditing requirements.

    Each award by the Program shall contain procedures regarding 
technical, business, and financial reporting and auditing requirements 
to ensure that awards are being used in accordance with the Program's 
objectives and applicable Federal cost principles. The purpose of the 
technical reporting is to monitor ``best effort'' progress toward 
overall project goals. The purpose of the business reporting system is 
to monitor project performance against the Program's mission as required 
by the Government Performance and Results Act (GPRA) mandate for program 
evaluation. The audit standards to be applied to ATP awards are the 
``Government Auditing Standards'' (GAS) issued by the Comptroller 
General of the United States (also known as yellow book standards) and 
the ATP program-specified audit guidelines. The ATP program-specific 
audit guidelines include guidance on the number of audits required under 
an award. In the interest of efficiency, the recipients are encouraged 
to retain their own independent CPA firm to perform these audits. The 
Department of Commerce's Office of Inspector General (OIG) reserves the 
right to conduct audits as deemed necessary and appropriate.

[62 FR 64686, Dec. 9, 1997. Redesignated at 63 FR 64415, Nov. 20, 1998]



Sec.  295.11  Technical and educational services for ATP recipients.

    (a) Under the Federal Technology Transfer Act of 1986, the National 
Institute of Standards and Technology of the Technology Administration 
has the authority to enter into cooperative research and development 
agreements with non-Federal parties to provide personnel, services, 
facilities, equipment, or other resources except funds toward the 
conduct of specified research or development efforts which are 
consistent with the missions of the laboratory. In turn, the National 
Institute of Standards and Technology has the authority to accept funds, 
personnel, services, facilities, equipment and other resources from the 
non-Federal party or parties for the joint research effort. Cooperative 
research and development agreements do not include procurement contracts 
or cooperative agreements as those terms are used in sections 6303, 
6304, and 6305 of title 31, United States Code.
    (b) In no event will the National Institute of Standards and 
Technology enter into a cooperative research and development agreement 
with a recipient of awards under the Program which provides for the 
payment of Program funds from the award recipient to the National 
Institute of Standards and Technology.
    (c) From time to time, ATP may conduct public workshops and 
undertake other educational activities to foster the collaboration of 
funding Recipients with other funding resources for purposes of further 
development and commercialization of ATP-related technologies. In no 
event will ATP provide recommendations, endorsements, or approvals of 
any ATP funding Recipients to any outside party.

[55 FR 30145, July 24, 1990. Redesignated at 59 FR 667, Jan. 6, 1994. 
Redesignated and amended at 63 FR 64415, Nov. 20, 1998]



 Subpart B_Assistance to United States Industry-Led Joint Research and 
                          Development Ventures



Sec.  295.20  Types of assistance available.

    This subpart describes the types of assistance that may be provided 
under the authority of 15 U.S.C. 278n(b)(1). Such assistance includes 
but is not limited to:
    (a) Partial start-up funding for joint research and development 
ventures.
    (b) A minority share of the cost of joint research and development 
ventures for up to five years.
    (c) Equipment, facilities and personnel for joint research and 
development ventures.



Sec.  295.21  Qualifications of proposers.

    Subject to the limitations set out in Sec.  295.3, assistance under 
this subpart is available only to industry-led joint research and 
development ventures. These ventures may include universities, 
independent research organizations, and governmental entities. Proposals 
for funding under this Subpart may be submitted on behalf of a joint

[[Page 410]]

venture by a for-profit company or an independent research organization 
that is a member of the joint venture. Proposals should include letters 
of commitment or excerpts of such letters from all proposed members of 
the joint venture, verifying the availability of cost-sharing funds, and 
authorizing the party submitting the proposal to act on behalf of the 
venture with the Program on all matters pertaining to the proposal. No 
costs shall be incurred under an ATP project by the joint venture 
members until such time as a joint venture agreement has been executed 
by all of the joint venture members and approved by NIST. NIST will 
withhold approval until it determines that a sufficient number of 
members have signed the joint venture agreement. Costs will only be 
allowed after the execution of the joint venture agreement and approval 
by NIST.

[63 FR 64415, Nov. 20, 1998]



Sec.  295.22  Limitations on assistance.

    (a) An award will be made under this subpart only if the award will 
facilitate the formation of a joint venture or the initiation of a new 
research and development project by an existing joint venture.
    (b) The total value of any in-kind contributions used to satisfy the 
cost sharing requirement may not exceed 30 percent of the non-federal 
share of the total project costs.

[62 FR 64687, Dec. 9, 1997]



Sec.  295.23  Dissolution of joint research and development ventures.

    Upon dissolution of any joint research and development venture 
receiving funds under these procedures or at a time otherwise agreed 
upon, the Federal Government shall be entitled to a share of the 
residual assets of the joint venture proportional to the Federal share 
of the costs of the joint venture as determined by independent audit.



Sec.  295.24  Registration.

    Joint ventures selected for funding under the Program must notify 
the Department of Justice and the Federal Trade Commission under the 
National Cooperative Research Act of 1984. No funds will be released 
prior to receipt by the Program of copies of such notification.

[63 FR 64415, Nov. 20, 1998]



Sec.  295.25  Special rule for the valuation of transfers between
separately-owned joint venture members.

    (a) Applicability. This section applies to transfers of goods, 
including computer software, and services provided by the transferor 
related to the maintenance of those goods, when those goods or services 
are transferred from one joint venture member to other separately-owned 
joint venture members.
    (b) Rule. The greater amount of the actual cost of the transferred 
goods and services as determined in accordance with applicable Federal 
cost principles, or 75 percent of the best customer price of the 
transferred goods and services, shall be deemed to be allowable costs; 
provided, however, that in no event shall the aggregate of these 
allowable costs exceed 30 percent of the non-Federal share of the total 
cost of the joint research and development program.
    (c) Definition. The term ``best customer price'' shall mean the GSA 
schedule price, or if such price is unavailable, the lowest price at 
which a sale was made during the last twelve months prior to the 
transfer of the particular good or service.

[62 FR 64687, Dec. 9, 1997]



         Subpart C_Assistance to Single-Proposer U.S. Businesses



Sec.  295.30  Types of assistance available.

    This subpart describes the types of assistance that may be provided 
under the authority of 15 U.S.C. 278n(b)(2). Such assistance includes 
but is not limited to entering into cooperative agreements with United 
States businesses, especially small businesses.

[59 FR 670, Jan. 6, 1994]



Sec.  295.31  Qualification of proposers.

    Awards under this subpart will be available to all businesses, 
subject to the limitations set out in Sec. Sec.  295.3 and 295.32.

[62 FR 64687, Dec. 9, 1997]

[[Page 411]]



Sec.  295.32  Limitations on assistance.

    (a) The Program will not directly provide funding under this subpart 
to any governmental entity, academic institution or independent research 
organization.
    (b) For proposals submitted to ATP after December 31, 1997, awards 
to large businesses made under this subpart shall not exceed 40 percent 
of the total project costs of those awards in any year of the award.
    (c) Awards under this subpart may not exceed $2,000,000, or be for 
more than three years, unless the Secretary provides a written 
explanation to the authorizing committees of both Houses of Congress and 
then, only after thirty days during which both Houses of Congress are in 
session. No funding for indirect costs, profits, or management fees 
shall be available for awards made under this subpart.
    (d) The total value of any in-kind contributions used to satisfy a 
cost sharing requirement may not exceed 30 percent of the non-federal 
share of the total project costs.

[62 FR 64687, Dec. 9, 1997]



PART 296_TECHNOLOGY INNOVATION PROGRAM--Table of Contents



                            Subpart A_General

Sec.
296.1 Purpose.
296.2 Definitions.
296.3 Types of assistance available.
296.4 Limitations on assistance.
296.5 Eligibility requirements for companies and joint ventures.
296.6 Valuation of transfers.
296.7 Joint venture registration.
296.8 Joint venture agreement.
296.9 Activities not permitted for joint ventures.
296.10 Third party in-kind contribution of research services.
296.11 Intellectual property rights and procedures.
296.12 Reporting and auditing requirements.

                    Subpart B_The Competition Process

296.20 The selection process.
296.21 Evaluation criteria.
296.22 Award criteria.

               Subpart C_Dissemination of Program Results

296.30 Monitoring and evaluation.
296.31 Dissemination of results.
296.32 Technical and educational services.
296.33 Annual report.

    Authority: 15 U.S.C. 278n (Pub. L. 110-69 section 3012)

    Source: 73 FR 35915, June 25, 2008, unless otherwise noted.



                            Subpart A_General



Sec.  296.1  Purpose.

    (a) The purpose of the Technology Innovation Program (TIP) is to 
assist United States businesses and institutions of higher education or 
other organizations, such as national laboratories and nonprofit 
research institutes, to support, promote, and accelerate innovation in 
the United States through high-risk, high-reward research in areas of 
critical national need within NIST's areas of technical competence.
    (b) The rules in this part prescribe policies and procedures for the 
award and administration of financial assistance (grants and/or 
cooperative agreements) under the TIP. While the TIP is authorized to 
enter into grants, cooperative agreements, and contracts to carry out 
the TIP mission, the rules in this part address only the award of grants 
and/or cooperative agreements.



Sec.  296.2  Definitions.

    Award means Federal financial assistance made under a grant or 
cooperative agreement.
    Business or company means a for-profit organization, including sole 
proprietors, partnerships, limited liability companies (LLCs), and 
corporations.
    Contract means a procurement contract under an award or subaward, 
and a procurement subcontract under a recipient's or subrecipient's 
contract.
    Contractor means the legal entity to which a contract is made and 
which is accountable to the recipient, subrecipient, or contractor 
making the contract for the use of the funds provided.

[[Page 412]]

    Cooperative agreement refers to a Federal assistance instrument used 
whenever the principal purpose of the relationship between the Federal 
government and the recipient is to transfer something of value, such as 
money, property, or services to the recipient to accomplish a public 
purpose of support or stimulation authorized by Federal statute instead 
of acquiring (by purchase, lease, or barter) property or services for 
the direct benefit or use of the Federal government; and substantial 
involvement is anticipated between the Federal government and the 
recipient during performance of the contemplated activity.
    Critical national need means an area that justifies government 
attention because the magnitude of the problem is large and the societal 
challenges that need to be overcome are not being addressed, but could 
be addressed through high-risk, high-reward research.
    Direct costs means costs that can be identified readily with 
activities carried out in support of a particular final objective. A 
cost may not be allocated to an award as a direct cost if any other cost 
incurred for the same purpose in like circumstances has been assigned to 
an award as an indirect cost. Because of the diverse characteristics and 
accounting practices of different organizations, it is not possible to 
specify the types of costs which may be classified as direct costs in 
all situations. However, typical direct costs could include salaries of 
personnel working on the TIP project, travel, equipment, materials and 
supplies, subcontracts, and other costs not categorized in the preceding 
examples. NIST shall determine the allowability of direct costs in 
accordance with applicable Federal cost principles.
    Director means the Director of the National Institute of Standards 
and Technology (NIST).
    Eligible company means a small-sized or medium-sized business or 
company that satisfies the ownership and other requirements stated in 
this part.
    Grant means a Federal assistance instrument used whenever the 
principal purpose of the relationship between the Federal government and 
the recipient is to transfer something of value, such as money, 
property, or services to the recipient to accomplish a public purpose of 
support or stimulation authorized by Federal statute instead of 
acquiring (by purchase, lease, or barter) property or services for the 
direct benefit or use of the Federal government; and no substantial 
involvement is anticipated between the Federal government and the 
recipient during performance of the contemplated activity.
    High-risk, high-reward research means research that:
    (1) Has the potential for yielding transformational results with 
far-ranging or wide-ranging implications;
    (2) Addresses areas of critical national need that support, promote, 
and accelerate innovation in the United States and is within NIST's 
areas of technical competence; and
    (3) Is too novel or spans too diverse a range of disciplines to fare 
well in the traditional peer-review process.
    Indirect costs means those costs incurred for common or joint 
objectives that cannot be readily identified with activities carried out 
in support of a particular final objective. A cost may not be allocated 
to an award as an indirect cost if any other cost incurred for the same 
purpose in like circumstances has been assigned to an award as a direct 
cost. Because of diverse characteristics and accounting practices it is 
not possible to specify the types of costs which may be classified as 
indirect costs in all situations. However, typical examples of indirect 
costs include general administration expenses, such as the salaries and 
expenses of executive officers, personnel administration, maintenance, 
library expenses, and accounting. NIST shall determine the allowability 
of indirect costs in accordance with applicable Federal cost principles.
    Institution of higher education means an educational institution in 
any State that--
    (1) Admits as regular students only persons having a certificate of 
graduation from a school providing secondary education, or the 
recognized equivalent of such a certificate;
    (2) Is legally authorized within such State to provide a program of 
education beyond secondary education;
    (3) Provides an educational program for which the institution awards 
a

[[Page 413]]

bachelor's degree or provides not less than a 2-year program that is 
acceptable for full credit toward such a degree;
    (4) Is a public or other nonprofit institution; and
    (5) Is accredited by a nationally recognized accrediting agency or 
association, or if not so accredited, is an institution that has been 
granted preaccreditation status by such an agency or association that 
has been recognized by the Secretary of Education for the granting of 
preaccreditation status, and the Secretary of Education has determined 
that there is satisfactory assurance that the institution will meet the 
accreditation standards of such an agency or association within a 
reasonable time (20 U.S.C. 1001). For the purpose of this paragraph (l) 
only, the term State includes, in addition to the several States of the 
United States, the Commonwealth of Puerto Rico, the District of 
Columbia, Guam, American Samoa, the United States Virgin Islands, the 
Commonwealth of the Northern Mariana Islands, and the Freely Associated 
States. The term Freely Associated States means the Republic of the 
Marshall Islands, the Federated States of Micronesia, and the Republic 
of Palau.
    Intellectual property means an invention patentable under title 35, 
United States Code, or any patent on such an invention, or any work for 
which copyright protection is available under title 17, United States 
Code.
    Joint venture means a business arrangement that:
    (1) Includes either:
    (i) At least two separately owned companies that are both 
substantially involved in the project and both of which are contributing 
to the cost-sharing required under the TIP statute, with the lead 
company of the joint venture being an eligible company; or
    (ii) At least one eligible company and one institution of higher 
education or other organization, such as a national laboratory, 
governmental laboratory (not including NIST), or nonprofit research 
institute, that are both substantially involved in the project and both 
of which are contributing to the cost-sharing required under the TIP 
statute, with the lead entity of the joint venture being either the 
eligible company or the institution of higher education; and
    (2) May include additional for-profit companies, institutions of 
higher education, and other organizations, such as national laboratories 
and nonprofit research institutes, that may or may not contribute non-
Federal funds to the project.
    Large-sized business means any business, including any parent 
company plus related subsidiaries, having annual revenues in excess of 
the amount published by the Program in the relevant Federal Register 
notice of availability of funds in accordance with Sec.  296.20. In 
establishing this amount, the Program may consider the dollar value of 
the total revenues of the 1000th company in Fortune magazine's Fortune 
1000 listing.
    Matching funds or cost sharing means that portion of project costs 
not borne by the Federal government. Sources of revenue to satisfy the 
required cost share include cash and third party in-kind contributions. 
Cash may be contributed by any non-Federal source, including but not 
limited to recipients, state and local governments, companies, and 
nonprofits (except contractors working on a TIP project). Third party 
in-kind contributions include but are not limited to equipment, research 
tools, software, supplies, and/or services. The value of in-kind 
contributions shall be determined in accordance with Sec.  14.23 of this 
title and will be prorated according to the share of total use dedicated 
to the TIP project. NIST shall determine the allowability of matching 
share costs in accordance with applicable Federal cost principles.
    Medium-sized business means any business that does not qualify as a 
small-sized business or a large-sized business under the definitions in 
this section.
    Member means any entity that is identified as a joint venture member 
in the award and is a signatory on the joint venture agreement required 
by Sec.  296.8.
    Nonprofit research institute means a nonprofit research and 
development entity or association organized under the laws of any state 
for the purpose of

[[Page 414]]

carrying out research and development.
    Participant means any entity that is identified as a recipient, 
subrecipient, or contractor on an award to a joint venture under the 
Program.
    Person will be deemed to include corporations and associations 
existing under or authorized by the laws of the United States, the laws 
of any of the Territories, the laws of any State, or the laws of any 
foreign country.
    Program or TIP means the Technology Innovation Program.
    Recipient means an organization receiving an award directly from 
NIST under the Program.
    Small-sized business means a business that is independently owned 
and operated, is organized for profit, has fewer than 500 employees, and 
meets the other requirements found in 13 CFR part 121.
    Societal challenge means a problem or issue confronted by society 
that when not addressed could negatively affect the overall function and 
quality of life of the Nation, and as such justifies government 
attention.
    State, except for the limited purpose described in paragraph (l) of 
this section, means any of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, and any territory 
or possession of the United States, or any agency or instrumentality of 
a State exclusive of local governments. The term does not include any 
public and Indian housing agency under the United States Housing Act of 
1937.
    Subaward means an award of financial assistance made under an award 
by a recipient to an eligible subrecipient or by a subrecipient to a 
lower tier subrecipient. The term includes financial assistance when 
provided by any legal agreement, even if the legal agreement is called a 
contract, but does not include procurement of goods and services.
    Subrecipient means the legal entity to which a subaward is made and 
which is accountable to the recipient for the use of the funds provided.
    Transformational results means potential project outcomes that 
enable disruptive changes over and above current methods and strategies. 
Transformational results have the potential to radically improve our 
understanding of systems and technologies, challenging the status quo of 
research approaches and applications.
    United States owned company means a for-profit organization, 
including sole proprietors, partnerships, limited liability companies 
(LLCs), and corporations, that has a majority ownership by individuals 
who are citizens of the United States.



Sec.  296.3  Types of assistance available.

    Subject to the limitations of this section and Sec.  296.4, 
assistance under this part is available to eligible companies or joint 
ventures that request either of the following:
    (a) Single company awards: No award given to a single company shall 
exceed a total of $3,000,000 over a total of 3 years.
    (b) Joint venture awards: No award given to a joint venture shall 
exceed a total of $9,000,000 over a total of 5 years.



Sec.  296.4  Limitations on assistance.

    (a) The Federal share of a project funded under the Program shall 
not be more than 50 percent of total project costs.
    (b) Federal funds awarded under this Program may be used only for 
direct costs and not for indirect costs, profits, or management fees.
    (c) No large-sized business may receive funding as a recipient or 
subrecipient of an award under the Program. When procured in accordance 
with procedures established under the Procurement Standards required by 
part 14 of Subtitle A of this title, recipients may procure supplies and 
other expendable property, equipment, real property and other services 
from any party, including large-sized businesses.
    (d) If a project ends before the completion of the period for which 
an award has been made, after all allowable costs have been paid and 
appropriate audits conducted, the unspent balance of the Federal funds 
shall be returned by the recipient to the Program.

[[Page 415]]



Sec.  296.5  Eligibility requirements for companies and joint ventures.

    Companies and joint ventures must be eligible in order to receive 
funding under the Program and must remain eligible throughout the life 
of their awards.
    (a) A company shall be eligible to receive an award from the Program 
only if:
    (1) The company is a small-sized or medium-sized business that is 
incorporated in the United States and does a majority of its business in 
the United States; and
    (2) Either
    (i) The company is a United States owned company; or
    (ii) The company is owned by a parent company incorporated in 
another country and the Program finds that:
    (A) The company's participation in TIP would be in the economic 
interest of the United States, as evidenced by investments in the United 
States in research, development, and manufacturing (including, for 
example, the manufacture of major components or subassemblies in the 
United States); significant contributions to employment in the United 
States; and agreement with respect to any technology arising from 
assistance provided by the Program to promote the manufacture within the 
United States of products resulting from that technology, and to procure 
parts and materials from competitive United States suppliers; and
    (B) That the parent company is incorporated in a country which 
affords to United States-owned companies opportunities, comparable to 
those afforded to any other company, to participate in any joint venture 
similar to those authorized to receive funding under the Program; 
affords to United States-owned companies local investment opportunities 
comparable to those afforded to any other company; and affords adequate 
and effective protection for the intellectual property rights of United 
States-owned companies.
    (b) NIST may suspend a company or joint venture from continued 
assistance if it determines that the company, the country of 
incorporation of the company or a parent company, or any member of the 
joint venture has failed to satisfy any of the criteria contained in 
paragraph (a) of this section, and that it is in the national interest 
of the United States to do so.
    (c) Members of joint ventures that are companies must be 
incorporated in the United States and do a majority of their business in 
the United States and must comply with the requirements of paragraph 
(a)(2) of this section. For a joint venture to be eligible for 
assistance, it must be comprised as defined in Sec.  296.2.



Sec.  296.6  Valuation of transfers.

    (a) This section applies to transfers of goods, including computer 
software, and services provided by the transferor related to the 
maintenance of those goods, when those goods or services are transferred 
from one joint venture member to another separately-owned joint venture 
member.
    (b) The greater amount of the actual cost of the transferred goods 
and services as determined in accordance with applicable Federal cost 
principles, or 75 percent of the best customer price of the transferred 
goods and services, shall be deemed to be allowable costs. Best customer 
price means the GSA schedule price, or if such price is unavailable, the 
lowest price at which a sale was made during the last twelve months 
prior to the transfer of the particular good or service.



Sec.  296.7  Joint venture registration.

    Joint ventures selected for assistance under the Program must notify 
the Department of Justice and the Federal Trade Commission under section 
6 of the National Cooperative Research Act of 1984, as amended (15 
U.S.C. 4305). No funds will be released prior to receipt by the Program 
of copies of such notification.



Sec.  296.8  Joint venture agreement.

    NIST shall not issue a TIP award to a joint venture and no costs 
shall be incurred under a TIP project by the joint venture members until 
such time as a joint venture agreement has been executed by all of the 
joint venture members and approved by NIST.

[[Page 416]]



Sec.  296.9  Activities not permitted for joint ventures.

    The following activities are not permissible for TIP-funded joint 
ventures:
    (a) Exchanging information among competitors relating to costs, 
sales, profitability, prices, marketing, or distribution of any product, 
process, or service that is not reasonably required to conduct the 
research and development that is the purpose of such venture;
    (b) Entering into any agreement or engaging in any other conduct 
restricting, requiring, or otherwise involving the marketing, 
distribution, or provision by any person who is a party to such joint 
venture of any product, process, or service, other than the distribution 
among the parties to such venture, in accordance with such venture, of a 
product, process, or service produced by such venture, the marketing of 
proprietary information, such as patents and trade secrets, developed 
through such venture, or the licensing, conveying, or transferring of 
intellectual property, such as patents and trade secrets, developed 
through such venture; and
    (c) Entering into any agreement or engaging in any other conduct:
    (1) To restrict or require the sale, licensing, or sharing of 
inventions or developments not developed through such venture; or
    (2) To restrict or require participation by such party in other 
research and development activities, that is not reasonably required to 
prevent misappropriation of proprietary information contributed by any 
person who is a party to such venture or of the results of such venture.



Sec.  296.10  Third party in-kind contribution of research services.

    NIST shall not issue a TIP award to a single recipient or joint 
venture whose proposed budget includes the use of third party in-kind 
contribution of research as cost share, and no costs shall be incurred 
under such a TIP project, until such time as an agreement between the 
recipient and the third party contributor of in-kind research has been 
executed by both parties and approved by NIST.



Sec.  296.11  Intellectual property rights and procedures.

    (a) Rights in data. Except as otherwise specifically provided for in 
an award, authors may copyright any work that is subject to copyright 
and was developed under an award. When claim is made to copyright, the 
applicable copyright notice of 17 U.S.C. 401 or 402 and acknowledgment 
of Federal government sponsorship shall be affixed to the work when and 
if the work is delivered to the Federal government, is published, or is 
deposited for registration as a published work in the U.S. Copyright 
Office. The copyright owner shall grant to the Federal government, and 
others acting on its behalf, a paid up, nonexclusive, irrevocable, 
worldwide license for all such works to reproduce, publish, or otherwise 
use the work for Federal purposes.
    (b) Invention rights. (1) Ownership of inventions developed from 
assistance provided by the Program under Sec.  296.3(a) shall be 
governed by the requirements of chapter 18 of title 35 of the United 
States Code.
    (2) Ownership of inventions developed from assistance provided by 
the Program under Sec.  296.3(b) may vest in any participant in the 
joint venture, as agreed by the members of the joint venture, 
notwithstanding section 202(a) and (b) of title 35, United States Code. 
Title to any such invention shall not be transferred or passed, except 
to a participant in the joint venture, until the expiration of the first 
patent obtained in connection with such invention. In accordance with 
Sec.  296.8, joint ventures will provide to NIST a copy of their written 
agreement that defines the disposition of ownership rights among the 
participants of the joint venture, including the principles governing 
the disposition of intellectual property developed by contractors and 
subcontractors, as appropriate, and that complies with these 
regulations.
    (3) The United States reserves a nonexclusive, nontransferable, 
irrevocable paid-up license, to practice or have practiced for or on 
behalf of the United States any inventions developed using assistance 
under this section, but shall not in the exercise of such license 
publicly disclose proprietary information related to the license. 
Nothing in this

[[Page 417]]

subsection shall be construed to prohibit the licensing to any company 
of intellectual property rights arising from assistance provided under 
this section.
    (4) Should the last existing participant in a joint venture cease to 
exist prior to the expiration of the first patent obtained in connection 
with any invention developed from assistance provided under the Program, 
title to such patent must be transferred or passed to a United States 
entity that can commercialize the technology in a timely fashion.
    (c) Patent procedures. Each award by the Program will include 
provisions assuring the retention of a governmental use license in each 
disclosed invention, and the government's retention of march-in rights. 
In addition, each award by the Program will contain procedures regarding 
reporting of subject inventions by the recipient through the Interagency 
Edison extramural invention reporting system (iEdison), including the 
subject inventions of recipients, including members of the joint venture 
(if applicable), subrecipients, and contractors of the recipient or 
joint venture members.



Sec.  296.12  Reporting and auditing requirements.

    Each award by the Program shall contain procedures regarding 
technical, business, and financial reporting and auditing requirements 
to ensure that awards are being used in accordance with the Program's 
objectives and applicable Federal cost principles. The purpose of the 
technical reporting is to monitor ``best effort'' progress toward 
overall project goals. The purpose of the business reporting is to 
monitor project performance against the Program's mission as required by 
the Government Performance and Results Act (GPRA) mandate for program 
evaluation. The purpose of the financial reporting is to monitor the 
status of project funds. The audit standards to be applied to TIP awards 
are the ``Government Auditing Standards'' (GAS) issued by the 
Comptroller General of the United States and any Program-specific audit 
guidelines or requirements prescribed in the award terms and conditions. 
To implement paragraph (f) of Sec.  14.25 of this title, audit standards 
and award terms may stipulate that ``total Federal and non-Federal funds 
authorized by the Grants Officer'' means the total Federal and non-
Federal funds authorized by the Grants Officer annually.



                    Subpart B_The Competition Process



Sec.  296.20  The selection process.

    (a) To begin a competition, the Program will solicit proposals 
through an announcement in the Federal Register, which will contain 
information regarding that competition, including the areas of critical 
national need that proposals must address. An Evaluation Panel(s) will 
be established to evaluate proposals and ensure that all proposals 
receive careful consideration.
    (b)(1) A preliminary review will be conducted to determine whether 
the proposal:
    (i) Is in accordance with Sec.  296.3;
    (ii) Complies with either paragraph (a) or paragraph (c) of Sec.  
296.5;
    (iii) Addresses the award criteria of paragraphs (a) through (c) of 
Sec.  296.22;
    (iv) Was submitted to a previous TIP competition and if so, has been 
substantially revised; and
    (v) Is complete.
    (2) Complete proposals that meet the preliminary review requirements 
described in paragraphs (b)(1)(i) through (v) of this section will be 
considered further. Proposals that are incomplete or do not meet any one 
of these preliminary review requirements will normally be eliminated.
    (c) The Evaluation Panel(s) will then conduct a multi-disciplinary 
peer review of the remaining proposals based on the evaluation criteria 
listed in Sec.  296.21 and the award criteria listed in Sec.  296.22. In 
some cases NIST may conduct oral reviews and/or site visits. The 
Evaluation Panel(s) will present funding recommendations to the 
Selecting Official in rank order for further consideration. The 
Evaluation Panel(s) will not recommend for further consideration any 
proposal determined not to meet all of the eligibility and award 
requirements of this part and the Federal Register notice announcing the 
availability of funds.

[[Page 418]]

    (d) In making final selections, the Selecting Official will select 
funding recipients based upon the Evaluation Panel's rank order of the 
proposals and the following selection factors: assuring an appropriate 
distribution of funds among technologies and their applications, 
availability of funds, and/or Program priorities. The selection of 
proposals by the Selecting Official is final.
    (e) NIST reserves the right to negotiate the cost and scope of the 
proposed work with the proposers that have been selected to receive 
awards. This may include requesting that the proposer delete from the 
scope of work a particular task that is deemed by NIST to be 
inappropriate for support against the evaluation criteria. NIST also 
reserves the right to reject a proposal where information is uncovered 
that raises a reasonable doubt as to the responsibility of the proposer. 
The final approval of selected proposals and award of assistance will be 
made by the NIST Grants Officer as described in the Federal Register 
notice announcing the competition. The award decision of the NIST Grants 
Officer is final.



Sec.  296.21  Evaluation criteria.

    A proposal must be determined to be competitive against the 
Evaluation Criteria set forth in this section to receive funding under 
the Program. Additionally, no proposal will be funded unless the Program 
determines that it has scientific and technical merit and that the 
proposed research has strong potential for meeting identified areas of 
critical national need.
    (a)(1) The proposer(s) adequately addresses the scientific and 
technical merit and how the research may result in intellectual property 
vesting in a United States entity including evidence that:
    (i) The proposed research is novel;
    (ii) The proposed research is high-risk, high-reward;
    (iii) The proposer(s) demonstrates a high level of relevant 
scientific/technical expertise for key personnel, including contractors 
and/or informal collaborators, and have access to the necessary 
resources, for example research facilities, equipment, materials, and 
data, to conduct the research as proposed;
    (iv) The research result(s) has the potential to address the 
technical needs associated with a major societal challenge not currently 
being addressed; and
    (v) The proposed research plan is scientifically sound with tasks, 
milestones, timeline, decision points and alternate strategies.
    (2) Total weight of (a)(1)(i) through (v) is 50%.
    (b)(1) The proposer(s) adequately establishes that the proposed 
research has strong potential for advancing the state-of-the-art and 
contributing significantly to the United States science and technology 
knowledge base and to address areas of critical national need through 
transforming the Nation's capacity to deal with a major societal 
challenge(s) that is not currently being addressed, and generate 
substantial benefits to the Nation that extend significantly beyond the 
direct return to the proposer including an explanation in the proposal:
    (i) Of the potential magnitude of transformational results upon the 
Nation's capabilities in an area;
    (ii) Of how and when the ensuing transformational results will be 
useful to the Nation; and
    (iii) Of the capacity and commitment of each award participant to 
enable or advance the transformation to the proposed research results 
(technology).
    (2) Total weight of (b)(1)(i) through (iii) is 50%.



Sec.  296.22  Award criteria.

    NIST must determine that a proposal successfully meets all of the 
Award Criteria set forth in this section for the proposal to receive 
funding under the Program. The Award Criteria are:
    (a) The proposal explains why TIP support is necessary, including 
evidence that the research will not be conducted within a reasonable 
time period in the absence of financial assistance from TIP;
    (b) The proposal demonstrates that reasonable and thorough efforts 
have been made to secure funding from alternative funding sources and no 
other alternative funding sources are reasonably available to support 
the proposal;

[[Page 419]]

    (c) The proposal explains the novelty of the research (technology) 
and demonstrates that other entities have not already developed, 
commercialized, marketed, distributed, or sold similar research results 
(technologies);
    (d) The proposal has scientific and technical merit and may result 
in intellectual property vesting in a United States entity that can 
commercialize the technology in a timely manner;
    (e) The proposal establishes that the research has strong potential 
for advancing the state-of-the-art and contributing significantly to the 
United States science and technology knowledge base; and
    (f) The proposal establishes that the proposed transformational 
research (technology) has strong potential to address areas of critical 
national need through transforming the Nation's capacity to deal with 
major societal challenges that are not currently being addressed, and 
generate substantial benefits to the Nation that extend significantly 
beyond the direct return to the proposer.



               Subpart C_Dissemination of Program Results



Sec.  296.30  Monitoring and evaluation.

    The Program will provide monitoring and evaluation of areas of 
critical national need and its investments through periodic analyses. It 
will develop methods and metrics for assessing impact at all stages. 
These analyses will contribute to the establishment and adoption of best 
practices.



Sec.  296.31  Dissemination of results.

    Results stemming from the analyses required by Sec.  296.30 will be 
disseminated in periodic working papers, fact sheets, and meetings, 
which will address the progress that the Program has made from both a 
project and a portfolio perspective. Such disseminated results will 
serve to educate both external constituencies as well as internal 
audiences on research results, best practices, and recommended changes 
to existing operations based on solid analysis.



Sec.  296.32  Technical and educational services.

    (a) Under the Federal Technology Transfer Act of 1986, NIST has the 
authority to enter into cooperative research and development agreements 
with non-Federal parties to provide personnel, services, facilities, 
equipment, or other resources except funds toward the conduct of 
specified research or development efforts which are consistent with the 
missions of the laboratory. In turn, NIST has the authority to accept 
funds, personnel, services, facilities, equipment and other resources 
from the non-Federal party or parties for the joint research effort. 
Cooperative research and development agreements do not include 
procurement contracts or cooperative agreements as those terms are used 
in sections 6303, 6304, and 6305 of title 31, United States Code.
    (b) In no event will NIST enter into a cooperative research and 
development agreement with a recipient of an award under the Program 
which provides for the payment of Program funds from the award recipient 
to NIST.
    (c) From time to time, TIP may conduct public workshops and 
undertake other educational activities to foster the collaboration of 
funding Recipients with other funding resources for purposes of further 
development and diffusion of TIP-related technologies. In no event will 
TIP provide recommendations, endorsements, or approvals of any TIP 
funding Recipients to any outside party.



Sec.  296.33  Annual report.

    The Director shall submit annually to the Committee on Commerce, 
Science, and Transportation of the Senate and the Committee on Science 
and Technology of the House of Representatives a report describing the 
Technology Innovation Program's activities, including a description of 
the metrics upon which award funding decisions were made in the previous 
fiscal year, any proposed changes to those metrics, metrics for 
evaluating the success of ongoing and completed awards, and an 
evaluation of ongoing and completed awards. The first annual report 
shall include best practices for

[[Page 420]]

management of programs to stimulate high-risk, high-reward research.

                        PARTS 297	299 [RESERVED]

[[Page 421]]



                              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 423]]



                    Table of CFR Titles and Chapters




                     (Revised as of January 1, 2023)

                      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 424]]

     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)
        LX  Federal Communications Commission (Parts 6000--6099)

                        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)

[[Page 425]]

      XXVI  Department of Defense (Parts 3600--3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    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)

[[Page 426]]

    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    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 427]]

        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 428]]

         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 429]]

        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 430]]

      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 431]]

                     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 432]]

                          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 433]]

        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 434]]

        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 435]]

         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 436]]

                          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 437]]

       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 438]]

       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 439]]

                       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 440]]

                      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 441]]

        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 442]]

        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 443]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of January 1, 2023)

                                                  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 444]]

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 445]]

  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 446]]

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                 2, LX; 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 447]]

  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 and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Immigration and Customs Enforcement Bureau        19, IV
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Independent Counsel, Offices of                   28, VI
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V

[[Page 448]]

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
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50

[[Page 449]]

  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
National Technical Information Service            15, XI
National Telecommunications and Information       15, XXIII; 47, III, IV, V
   Administration
[[Page 450]]

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
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
  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

[[Page 451]]

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 453]]



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, 2018 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.

                                  2018

15 CFR
                                                                   83 FR
                                                                    Page
Subtitle A
4.1 (c) redesignated as (d); new (c) added.........................39589
4.2 (a) and (c) revised............................................39589
4.3 (d) revised....................................................39589
4.4 Revised........................................................39590
4.5 (a), (b), and (c) revised......................................39590
4.6 (d)(1), (2), and (e)(1) revised................................39591
4.7 Revised........................................................39591
4.9 Revised........................................................39592
4.10 (a) through (d), (f)(3), and (4) revised; (f)(5) added........39593
4.11 (a), (b)(2), (4), (6), (7), (8), (c) introductory text, (2), 
        (3)(ii), (d)(6), (7), (e), (i)(4), (j), (l)(2)(iii), 
        (3)(ii), and (l)(5) revised; (d)(8) added..................39594
4 Appendix A amended...............................................39596
6 Revised............................................................707
27 Regulation at 82 FR 7270 eff. date delayed to 7-19-18............2885
27.101 (l)(3) and (4) revised; interim..............................2891
    (l)(1) heading and (5) added; (l)(2), (3), and (4) revised.....28512
30.1 (c) amended...................................................17751
30.4 (e) added.....................................................17751
30.7 (c) revised...................................................17751
30.50 (c) revised..................................................17751
30.60 Note added...................................................17751
30.70 Introductory text revised....................................17751
Subtitle B
Chapter I
Chapter I Notification..............................................5525

                                  2019

15 CFR
                                                                   84 FR
                                                                    Page
Subtitle A
6 Revised...........................................................2446

                                  2020

15 CFR
                                                                   85 FR
                                                                    Page
Subtitle A
4a Authority citation revised......................................35375
4a.1 Revised.......................................................35375
4a.2 Revised.......................................................35375
4a.3 Revised.......................................................35375
4a.4 Revised.......................................................35375
4a.5 Revised.......................................................35375
4a.7 (a) and (c) through (e) revised...............................35376
4a.8 (b)(5) introductory text revised..............................35376
6 Revised............................................................208
29 Added; interim..................................................60695
Subtitle B
Chapter I
90 Stayed...........................................................1101
Chapter II
285.1 Revised......................................................60060

[[Page 454]]

285.6 Revised......................................................60060
285.7 Amended......................................................60060
285.8 Revised......................................................60060
285.10 (b) revised.................................................60060
285.12 Revised.....................................................60060
285.14 Revised.....................................................60061
285.15 (b) revised.................................................60061
285.16 Added.......................................................60061
287 Revised........................................................60905

                                  2021

15 CFR
                                                                   86 FR
                                                                    Page
Subtitle A
4.7 (d) added......................................................21934
4.21--4.34 (Subpart B) Nomenclature change.........................21934
4.22 (b)(10) added.................................................21935
4.25 (a)(3), (4), (b)(2)(iv), and (v) added; (b)(2)(iii) revised 
                                                                   21935
4.33 (b)(5) added..................................................49921
4.34 (a)(1), (b)(1), (2)(i) introductory text, and (4)(i) revised; 
        (b)(2)(i)(G) added.........................................49921
4 Appendix B amended...............................................21935
6 Revised...........................................................1765
7 Added; interim....................................................4923
Subtitle B
Chapter II
290.7 Revised......................................................56183

                                  2022

15 CFR
                                                                   87 FR
                                                                    Page
Subtitle A
6 Revised............................................................158
15.11 Revised........................................................162
15.12 Revised........................................................162
15.13 Revised........................................................162
15.14 Revised........................................................162
15.15 Revised........................................................162
15.16 Revised........................................................162
15.17 Revised........................................................162
Subtitle B
Chapter I
30 Notification....................................................62303
90 Stay lifted.....................................................71242


                                  [all]